Sunday, August 22, 2010


*** Lack of political will. Simple as that. MS ***

OTTAWA - New legislation still doesn't give the RCMP watchdog the bite it needs to fully investigate scandals like the Maher Arar affair, says the organization's former chairman.

A long-awaited bill intended to modernize the Commission for Public Complaints Against the RCMP gives the top Mountie and Public Safety minister too much room to meddle in sensitive probes, Paul Kennedy said in an interview.

Bill C-38, tabled in June, would give the complaints commissioner only limited access to the information he needs to see, said Kennedy, chairman of the body for four years ending last December.

"With the current legislation, you wouldn't get through the door. The door is barred," he said.

"Now, you get through to the extent that the commissioner wants to let you through."

The current watchdog is widely seen as wanting because it does not have complete access to RCMP files and lacks the power to review or audit the force's programs and policies.

Kennedy, who also served five years as chief counsel for the Canadian Security Intelligence Service, says the proposed model falls short of the powers held by watchdogs over CSIS and the Communications Security Establishment, the electronic eavesdropping agency.

"Although it's an improvement, I don't think it goes far enough."

The bill would see the watchdog renamed the Royal Canadian Mounted Police Review and Complaints Commission, reflecting its new and somewhat broader responsibilities.

Still, Kennedy doesn't believe the legislation would allow the RCMP watchdog to delve deeply into a matter such as the Arar case involving highly classified files.

It took a full-blown federal inquiry led by Justice Dennis O'Connor to explore the role Canadian officials played in opening the door to Arar being brutalized in a grave-like Syrian cell after he was falsely accused of ties to terrorism.

O'Connor found the RCMP passed inaccurate and unfair information to the United States that likely led to Arar's arrest, deportation and ultimate torture.

Among the changes O'Connor called for more than three years ago was an overhaul of the RCMP complaints commission that would give it new powers to keep an eye on the Mounties' intelligence activities.

The bill tabled by the Conservatives would give the commission greater access to RCMP information and beef up its investigative arsenal, including the power to compel witnesses, evidence and materials.

It would also empower the body to do policy reviews, carry out probes with other review bodies and provide reports to provinces and territories where the force does front-line policing.

But Kennedy argues the legislation is so riddled with loopholes it doesn't meet O'Connor's standard.

The law would allow the public safety minister to "make regulations" concerning the watchdog's access to "privileged information" such as classified intelligence or material about clandestine operations.

Following such a refusal by the top Mountie, the minister may appoint a former judge to review the material and make recommendations to help settle the dispute — something Kennedy calls a "bizarre apparatus."

All of this could create real obstacles for the complaints commission, he said.

In the Arar file, for example, the commission would have trouble obtaining material in RCMP files from Syrian and American sources, Kennedy said. "You'd have a devil of a time getting to even see that."

The new law also lacks time limits for the RCMP to respond to the commission's interim reports. That's problematic because, in one case, Kennedy waited over 800 days for the Mounties to reply, delaying his final report.

"That is just an intolerable situation, that someone can frustrate the process so easily," he said.

Critics of the Harper government maintain Kennedy wasn't renewed as commission chairman because he was too tough on the force, taking a hard line on issues including what he considered excessive use of Taser stun guns.

The commission, now led by Ian McPhail, is studying the bill and plans to provide detailed comments to the Public Safety Department and the Commons public safety committee in coming weeks.

Kennedy says the bill's problems are fixable. "I think it can be done through some judicious surgery at committee."

He hopes MPs pass a stronger version of the legislation, because it'll likely be another generation before they get a chance to revisit RCMP oversight.

"You're not going to see this for another 20 years."