CIVILIAN OVERSIGHT OF THE RCMP

*** The RCMP is badly in need of effective oversight. Something like a parliamentary office that oversees national security operations of CSIS and RCMP (in real-time) is certainly warranted. Given the Conservative government's inability to hold themselves accountable to the Canadian public, the obligation upon parliament is thus, clear. ***

Historical Context

Prior to 1984, the RCMP Security Service was responsible for providing security intelligence services to the Government of Canada. However, the Service’s involvement in illegal activities led the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (McDonald Commission) to recommend that a new civilian security intelligence service be established.(1) Parliament disbanded the RCMP Security Service when it created the Canadian Security Intelligence Service (CSIS) in 1984. CSIS is subject to a high level of civilian oversight.

On 11 September 2001, terrorists hijacked several aircraft and attacked civilian and military targets in the United States. These attacks resulted in a high number of civilian casualties, caused extensive property damage, and had a disruptive effect on air travel and the global economy.

Following these events, Parliament passed the Anti-terrorism Act. This statute enacted the Charities Registration (Security Information) Act and amended 20 other laws. By defining terrorist support as a criminal offence, it changed the RCMP’s role and provided an opportunity for the organization to be more involved in matters of national security.(2)

Although Parliament expanded the role of the RCMP, it did not subject its national security functions to comprehensive civilian oversight. This has created a disparity between the review mechanisms for CSIS and the RCMP, whereby the RCMP is subject to less rigorous scrutiny.

Recent Events

A series of incidents have drawn attention to the expanded role of the RCMP. American authorities at New York’s Kennedy Airport arrested Maher Arar, a Canadian citizen, in September 2002. Mr. Arar was then deported to Syria, where he spent 10 months in captivity and was tortured.(3) It has been reported that the RCMP provided information to the United States that may have contributed to his initial detention.(4) The House of Commons Standing Committee on Foreign Affairs and International Trade attempted to clarify this point in a series of hearings in the fall of 2003, but had limited success.(5) However, a public inquiry later found that “it is very likely that, in making the decisions to detain and remove Mr. Arar, American authorities relied on information about Mr. Arar provided by the RCMP.”(6)

In January 2004, RCMP officers used search warrants issued under the Security of Information Act (SOIA) to raid the home and office of Ottawa Citizen reporter Juliet O’Neill. It was reported that they were “looking for evidence that one of their own officers may have leaked damaging allegations in the … Maher Arar case.”(7) Following this event, the Ontario Court of Justice ruled that sections 4(1)(a), 4(3) and 4(4)(b) of the SOIA violated the Canadian Charter of Rights and Freedoms, and ordered that the seized items be returned to Ms. O’Neill. The court also found that the issuance and execution of the warrants constituted an abuse of process by the RCMP, and ordered that they be quashed.(8) The Government of Canada decided not to appeal the court’s decision.(9)

Also in January 2004, the Government of Canada announced a public inquiry into the actions of Canadian officials dealing with the deportation and detention of Mr. Arar (O’Connor Commission). The terms of reference were issued the following month, and included a mandate for the presiding judge to “make any recommendations that he considers advisable on an independent, arm’s length review mechanism for the activities of the Royal Canadian Mounted Police with respect to national security.”(10)

On 18 September 2006, Commissioner O’Connor issued his findings on the handling of the Arar case, repeatedly criticizing the RCMP’s conduct. Specifically, he found that the organization had breached its own policies on information sharing, provided American authorities with inaccurate information about Mr. Arar, given unclear and misleading direction to its own investigators, failed to properly oversee its own investigation of Mr. Arar, refused to support efforts by the Government of Canada to secure Mr. Arar’s release from jail in Syria, and when briefing the Privy Council Office and other senior government officials had omitted key facts that could have reflected adversely on the Force.(11)

Review Mechanisms for Canada's Security and Intelligence Agencies

A. RCMP

The RCMP is Canada’s national police service. It came into existence in 1920 when the Royal North West Mounted Police and the Dominion Police were merged into a single entity. The RCMP was involved in the provision of security intelligence services to the Government of Canada during World War II. Its security operations were expanded after the war with the establishment of the Special Branch (1950), the Directorate of Security and Intelligence (1962), and the Security Service (1970). In 1984, Parliament disbanded the RCMP Security Service and transferred its functions to the newly created CSIS.

The RCMP now provides federal police services throughout the country. In addition, the organization also provides services to provinces, territories, municipalities and First Nations communities on a contract basis. Passage of the Anti-terrorism Act in 2001 provided an opportunity for the RCMP to be more involved in matters of national security, as this law defined terrorist support as a criminal offence.

The Commission for Public Complaints Against the RCMP (Commission) was established by Parliament in 1988. It is an independent civilian body that reports publicly to Parliament through the Minister of Public Safety and Emergency Preparedness. The Commission investigates public complaints regarding the conduct of RCMP members. In most cases, complainants must first approach the RCMP. However, the Commission Chair does have limited authority to commence his or her own investigation or may proceed directly to a public interest hearing. The RCMP is not obligated to follow recommendations made by the Chair or by a public interest hearing panel.

Shirley Heafey, former Commission Chair, repeatedly called for new powers to better enable the Commission to review the RCMP’s anti-terrorism activities. This call has been echoed by her successor, Paul Kennedy. A rebalancing of the relationship between the RCMP and the Commission might also preclude further litigation between the two bodies regarding the sharing of information.

B. Canadian Security Intelligence Service

CSIS is a civilian agency that does not have any law enforcement powers. Its role is to “investigate threats, analyze information and produce intelligence”(13) and it may gather information only on those individuals and organizations suspected of engaging in espionage and sabotage, foreign-influenced activities, political violence and terrorism, and subversion. The Canadian Security Intelligence Service Act prohibits the organization from investigating lawful acts of advocacy, protest or dissent.

To ensure an appropriate level of accountability, CSIS activities are subject to scrutiny by an Inspector General. Appointed by Cabinet, and answering to a deputy minister, the Inspector General is to be “the Minister’s eyes and ears in the Service … and to maintain an appropriate degree of ministerial responsibility.”(14) The Inspector General is charged with monitoring compliance with operational policies, reviewing operational activities, and evaluating reports provided by the Director of CSIS to the Minister of Public Safety and Emergency Preparedness.

The Inspector General does not accept public complaints. However, he or she may conduct research and inquiries at the request of the Minister or the Security Intelligence Review Committee (SIRC). The Inspector General is entitled to have access to all CSIS information except Cabinet documents. However, he or she may not convene public hearings or make binding recommendations. In certain cases, the Inspector General’s reports are conveyed through the Minister to SIRC.

SIRC is an independent, external review body that reports publicly to Parliament through the Minister of Public Safety and Emergency Preparedness on an annual basis. It is empowered to examine CSIS’s performance of its duties and functions, and to investigate complaints made by any person regarding any act performed by the organization. SIRC is entitled to have access to all information held by CSIS and the Inspector General except Cabinet documents, but cannot hold public hearings or make binding recommendations.

C. Communications Security Establishment

The CSE was established in 1946. Originally, it was the Communications Branch of the National Research Council. In 1975, however, it was transferred to the Department of National Defence.

The role of the CSE is to “provide the Government of Canada with two key services: foreign signals intelligence in support of defence and foreign policy, and the protection of electronic information and communication.”(15) This role is set out in the National Defence Act.

The Office of the Communications Security Establishment Commissioner was created in June 1996. The Commissioner is independent and has authority to review CSE activities to ensure they comply with Canadian law, and investigate complaints against the agency. Although the National Defence Act empowers the Commissioner to undertake any investigation that he or she considers necessary in response to a complaint, only complaints made by Canadian citizens and permanent residents, including CSE employees, are accepted at present. The Commissioner has access to all CSE information holdings; however, he or she may not convene public hearings or issue binding recommendations.

The Commissioner submits an annual report to the Minister of National Defence that is tabled in Parliament. Results of reviews of certain CSE activities are also submitted to the Minister; these, however, are not made public as they contain secret information.

Options for Oversight of the RCMP's National Security Functions

A. Strengthening the Role of the Commission for Public Complaints Against the RCMP

The table above points to a number of similarities between the Commission and SIRC. Both operate independently, receive public complaints, and have the power to initiate and conduct their own investigations, and to make recommendations. Key differences remain, however.

First, SIRC has a broader mandate. The Commission is devoted to receiving and investigating complaints of misconduct made by members of the public, while SIRC is charged with reviewing the performance by CSIS of all of its duties and functions. The receipt and investigation of complaints, while important, is but one part of a much larger oversight function.

Second, SIRC has broader powers to carry out its mandate. The most important of these is the right of access to information. The Commission may have access only to information held by the RCMP that is relevant to a particular complaint, and this has caused disagreement between the two organizations. SIRC, however, is entitled to all information held by CSIS and the Inspector General, except Cabinet documents.

There is a certain logic to the arguments that favour an expansion of the Commission’s role over the establishment of a second review mechanism. After all, the Commission is well established, already familiar with the RCMP’s duties, functions and organizational culture, and known to the public. In the second report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Commissioner O’Connor recommended that the Commission be restructured and renamed the Independent Complaints and National Security Review Agency for the RCMP (ICRA).(16) The ICRA would have jurisdiction to review all of the RCMP’s activities, including those related to national security.(17) Specifically, the Commissioner recommended that the ICRA have the authority to conduct self-initiated reviews using comprehensive new powers including the power to decide what information is necessary to fulfil its mandate, and to subpoena documents and compel testimony from any federal, provincial, municipal or private sector person or entity.(18)

B. Establishing a New Review Mechanism for the RCMP

Alternatively, the Government of Canada could opt for a two-tiered review mechanism for the RCMP. This mechanism could take a variety of forms, including:

1. retaining the Commission in its present form (i.e., primarily a complaint review mechanism) while granting a new agency powers to review the RCMP’s national security functions;
2. maintaining the Commission as a review mechanism for most complaints while granting a new agency powers to review the RCMP’s national security functions and process a limited number of complaints (i.e., only complaints of misconduct against RCMP personnel involved in investigating matters of national security);
3. abolishing the Commission and adopting the model used to review CSIS’s activities (i.e., an Inspector General or equivalent plus an oversight committee).

It is suggested that in the event that a two-tiered model is selected, care will have to be taken to ensure that the roles of the two agencies are complementary.
C. Leaving the Existing Review Mechanism for the RCMP Unchanged

Finally, the Government of Canada could opt to leave the existing structures in place. After all, the mandate of the Commission does not preclude it from investigating complaints of misconduct against RCMP personnel involved in investigating matters of national security. While the Commission’s oversight powers are more limited than those of either SIRC or the CSE Commissioner, most of the federal departments and agencies with national security functions currently operate without scrutiny by any review mechanism. Nonetheless, the RCMP’s apparent reluctance to fully cooperate with the Commission where matters of national security are involved,(19) coupled with the recommendations of the O’Connor Commission, make the status quo an unlikely choice.

*References cited can be viewed at the source document at:
http://www2.parl.gc.ca/Content/LOP/ResearchPublications/prb0409-e.htm