Mr. Geoffrey O'Brian:
Thank you, Mr. Chairman.
My name is Geoffrey O'Brian. I'm a member of CSIS. I am, by training, a lawyer, but I have been a manager within the service since it started.
I recognize that my appearance here today follows on that of two CSIS directors, both our current one and our former one, who appeared before the forerunner of this committee in October 2006, which I think was just about a month after the O'Connor commission's first report, its factual report with its 23 recommendations, was made public. More recently, just three weeks ago the executive director of SIRC, the Security Intelligence Review Committee, appeared before you.
Having reviewed their testimony and the questions that were asked there, I frankly didn't think it would be useful simply to repeat what they said. Instead, if you will permit me, I'd like to use this opportunity just to make one sort of general point. That is, as complex as they are, the issues surrounding both the O'Connor and Iacobucci inquiries—information-sharing, human rights, accountability—are not new for CSIS. Indeed, what we refer to as the granddaddy of all inquiries, the McDonald commission, which took place in the late 1970s and reported in the early 1980s, whose recommendations of course led to the creation of CSIS, looked at these issues in their August 1981 report.
Among their comments on the subject is the following, and here I'm quoting: “Liaison with foreign agencies raises a number of important policy concerns”, one of which “relates to the entering into agreements which may conflict with Canada's foreign policies.”
Another issue involves the need for sufficient control over information leaving this country to ensure that the rights of Canadians are adequately protected. It's in part because of the importance and complexity surrounding international information-sharing that unusual safeguards were built into the CSIS act in 1984. And I think members may know that before CSIS can enter into an arrangement with a foreign agency, under section 17 of our act we have to obtain the approval of our minister, the Minister of Public Safety, and he has to consult with his or her colleague, the Minister of Foreign Affairs. So before we can enter into an arrangement, there is an opportunity, indeed a requirement, to consider the foreign policy and human rights implications of such an arrangement and of course direct ministerial accountability, in the sense that our minister approves each proposal.
SIRC also reviews these arrangements, looking in detail at particular arrangements or particular issues under those arrangements. I think I'm right in saying that every one of SIRC's annual reports in the last nearly 25 years has examined and commented on some aspect of these issues.
For example, in their most recent report, tabled on January 27 in the House this year, SIRC noted that we had some 276 arrangements with agencies in 147 countries.
In particular, during the past year SIRC examined those foreign arrangements where there had been restrictions imposed “because of concerns relating to a country's or agency's human rights record, reliability or ability to protect information provided by the Service”. SIRC found that we had stuck to our self-imposed restrictions, and here I quote:
||The Service performed well in terms of balancing the need to collect vital security intelligence information, while remaining aware of the potential problems of dealing with a restricted agency.
The same sentiment was echoed by Mr. Justice O'Connor in 2006, when he wrote in his report that “decisions about how to interact with a country with a poor human rights record can be very difficult and do not lend themselves to simple or prescriptive rules.”
These decisions “do not lend themselves”, in Mr. Justice O'Connor's words, “to simple or prescriptive rules”. In practice, what that means, I think, for CSIS is that we have had nearly 25 years of experience working under ongoing review and accountability mechanisms. It is ingrained in our culture. While we don't always agree with SIRC, or always enjoy the SIRC process, our director has noted that the system of review set up under the CSIS Act has, over time, made us a better service.
I used the phrase "over time" on purpose, because it seems to me that virtually everyone who's thought about these issues has concluded there are no simple, easy, and once-and-for-all answers. To me, that's part of the genius of the CSIS Act process, that's it's just that, an ongoing process capable of adjusting to changed and changing operational, legal, and political circumstances.
When she appeared before this committee earlier this month, the executive director of SIRC, Susan Pollak, alluded to this. She stated that her experience, or the experience of SIRC, is that
||often our recommendations tend to end up being published after steps have already begun to address the issues that have been uncovered through...[our] reviews.... In other words...through the process of review, issues have become apparent on both sides and the service has already started to implement steps that will address the recommendation. By the time the recommendation is done, they've already partially or completely taken up what we've suggested they do.
Are these difficult issues? Yes. The very existence of these major commissions of inquiry, the O'Connor, Iacobucci, and, I might add, the Air India commissions of inquiry, I think are a testament to that. But we have reacted, and I think will react, to these inquiries, frankly, in the same way we regularly react to the ongoing reviews of our activities by SIRC. As well, I might add that the inspector general of CSIS reports to our deputy minister. That is, we absorb the lessons and insights they offer on how we can improve our policies and practices, including those related to information sharing with foreign states with poor human rights records.
In short, we have become accustomed to such ongoing review, and it results for us in an ongoing process of adjustment and refinement.
In looking at the comments, findings and recommendations of the O'Connor and Iacobucci commissions, I hope that my opening remarks will have provided some added context.
Thank you for inviting all of us here today. I look forward to your questions with an anxious dose of equal parts anticipation and interest.
Thank you, Mr. Chair.
Mr. Geoff Leckey (Director General, Intelligence Directorate, Canada Border Services Agency):
Thank you, Mr. Chairman.
My name is Geoffrey Leckey. My current post is that of director general in charge of the intelligence directorate at CBSA.
Thank you, Mr. Chairman and committee members, and good morning.
On behalf of the Canada Border Services Agency, CBSA, I would like to thank the committee for affording us this opportunity to discuss our role in the government's response to the recommendations made by Justice O'Connor and to answer any eventual questions.
I'd like to begin with a general comment about the CBSA's role in protecting Canada's national security, which hopefully will clarify the role our agency played in the events that were examined by the O'Connor and Iacobucci commissions.
I'll explain how we work with other Canadian agencies as part of our mandate to maintain the security of Canada's borders, to fight transborder crime, and to protect the integrity of Canada's immigration programs. I'll then discuss steps we have taken since the release of the O'Connor report to improve our policies and procedures for cooperating with other agencies to counter threats to the security of Canada and Canadians, while better protecting human rights in a manner consistent with the expectations of Canadians.
Justice O'Connor identified the CBSA's role in the events surrounding Mr. Arar as consisting primarily of how we share information, particularly the lookouts we place on behalf of other agencies. With this in mind, I'd like to offer some context about lookouts and border screening, before going on to provide details of the different measures we've taken to improve the management and effectiveness of our lookout systems.
CBSA's staff, which consists of more than 13,000 employees, provides services at approximately 1,200 locations in Canada and 39 international locations. CBSA employees administer the Immigration and Refugee Protection Act, the Customs Act and more than 90 other federal statutes.
Visitors, immigrants and asylum seekers are carefully selected to prevent banned individuals from entering or remaining in Canada. This selection is an essential part of the Canadian government's commitment to ensuring Canada's safety and security.
CBSA works in close cooperation with Citizenship and Immigration Canada, the Canadian Security Intelligence Service and Canadian law enforcement agencies to prevent criminals and individuals presenting a security risk from entering Canada.
Lookouts are alerts in a system designed to identify subjects, businesses, and conveyances that may be of interest for many different reasons. Adverse information based on risk indicators or intelligence is uploaded into systems used by CBSA. This information is used to help prevent the entry of travellers who may be inadmissible to Canada and to help prevent the entry of illegal goods. The CBSA places and maintains lookouts for its own use. However, information from our Canadian partners may also be placed in our lookout database, or we may place lookouts at the request of Canadian partners, such as the RCMP, or international partners, such as Interpol.
The CBSA began a comprehensive review of its policies and procedures regarding information sharing following the release of the Auditor General's report on national security in March 2004. This review was informed by the work we did in cooperation with the O'Connor inquiry and addressed many of the issues that Justice O'Connor ultimately identified in his report.
Of the recommendations made by Justice O'Connor, those of greatest significance for the CBSA related to lookouts and the sharing of information, including recommendations regarding safeguards to prevent information from being shared inappropriately; the use of information received from countries with questionable human rights records; and the perception of racial, religious, or ethnic profiling. Our review resulted in the development of improved policy guidelines and written procedures for the use of lookouts and information sharing, including procedures that will enable the CBSA to respond immediately to situations where its information has been misused, and to prevent further misuse.
These policies and procedures have been implemented. Mandatory training for CBSA intelligence officers on policies regarding the proper use of lookouts and the sharing of information and an integrated information sharing and disclosure course were developed and began to be delivered in fiscal year 2007-2008.
A review and update of the CBSA information-sharing policy for intelligence was completed and implemented in October 2008. This policy establishes a principal basis for sharing information with enhanced safeguards and the regular and unscheduled review of lookouts for accuracy and validity. The information-sharing policy, as is consistent with previous practice, explicitly requires as standard procedure that the CBSA review all information received from outside sources to assess its reliability and to determine whether there is a possibility that the information might have been obtained by means that violate human rights.
Our policy provides guidance to all field officers in national security investigations and emphasizes that targeting and lookouts are to be based on objective risk assessment formulas. The policy makes clear the CBSA's position—again, this is consistent with previous practice—that race, religion, or ethnicity are not risk factors to be used in targeting calculations or in the production of lookouts.
A review and update of the CBSA lookout policy and procedures was implemented in November 2008. Systems changes to support the update were completed in January 2009. A process allowing our migration integrity officers who are posted overseas and visa officers of Citizenship and Immigration Canada to request lookouts from their locations overseas was added in March 2009.
The lookout policy establishes enhanced internal controls and oversight for the issuance, maintenance, reporting, and closing of CBSA lookouts. The steps I've mentioned, which have made significant enhancements to the way we share information and manage lookouts, meet our commitment to implementing the recommendations of the O'Connor report.
Commissioner Iacobucci reported on CBSA's measures mainly concerning the posting of lookouts for three individuals, at the request of partner agencies, border controls conducted by CBSA officers to support the investigation conducted by Project A-O Canada and the exchange of intelligence that was communicated by CBSA to Project A-O Canada without CBSA's consent.
These issues were raised in the O'Connor report. The measures I have described, which were taken to address the deficiencies detected in the review of our policies on lookouts, intelligence exchange and border controls, were adequate in light of the recommendations made by Justice O'Connor.
At present, CBSA information-sharing policies and practices are entirely consistent with the findings published by Commissioner Iacobucci. Our legislation, principally section 107 of the Customs Act, provides the CBSA with a principled basis on which to share information within a legal context. It's consistent with the charter and the expectations of Canadians that their personal information will be protected from unjustified intrusions.
The CBSA is committed to the Charter of Rights and Freedoms as the cornerstone of our democracy. We recognize that security measures must strike the right balance between protecting Canadians, their way of life and their freedoms, and upholding the rights and freedoms of all persons in keeping with domestic and international law.
That concludes my introductory remarks, Mr. Chair. Once again, thank you for inviting me to appear before you today.
I'll be pleased to address questions from members of the committee.
Chief Superintendent Gilles Michaud (Director General, National Security Criminal Operations Branch, Royal Canadian Mounted Police):
Good day. Thank you Mr. Chairman, and thank you members of the committee for this opportunity to answer your questions about this very important matter.
My name is Gilles Michaud. I am the director general of national security criminal operations. I've been occupying that position for the last eight months.
I am accompanied this morning by Superintendent Bert Hoskins, who is in charge of our national security legislative affairs branch.
First, I would like to emphasize that the RCMP takes the findings of the O'Connor and Iacobucci inquiries with the utmost seriousness.
In the process of implementing all the recommendations directed at the RCMP that Justice O'Connor made in Part 1 of his report, the RCMP has strengthened its policies and governance framework regarding national security criminal investigations.
These enhancements have focused on relations with partner agencies, cultural sensitivity and human rights training, information sharing and central control.
We have provided the committee with a comprehensive document explaining how the RCMP has addressed each of Justice O'Connor's part one recommendations that apply to the force. Last week we invited some of your committee staff members and researchers into our office to further discuss the steps that we have taken to ensure that Justice O'Connor's recommendations help to guide the important work we do to protect Canada's national security. I believe our actions speak to the RCMP's commitment in addressing the important issues raised by Justice O'Connor and Justice Iacobucci. Indeed, O'Connor's part one recommendations are now at the core of how the RCMP conducts national security criminal investigations.
I would like to take a moment to mention some of the key areas in which, from a national security perspective, we have moved forward. In developing the government's framework for increased effectiveness and the policy on national security, we have strengthened our capacity to centrally monitor, supervise, and direct national security criminal investigations. This is achieved largely through more responsibility and accountability at all levels, in conjunction with a decentralized governance approach. This means, among other things, that our employees have a clear and concise framework within which to operate—one that ensures centralized control and monitoring of national security criminal investigations. Bolstering this framework is the fact that our employees have access to enhanced training that addresses human rights and cultural sensitivities. This training is given by respected citizens representing Canada's diverse communities and is regularly updated to reflect the current environment. The national security program's extensive community outreach activities are intended to build mutual trust and understanding between RCMP personnel and the community members most affected by national security operations.
Regarding information sharing, the RCMP will continue its policy of releasing information to relevant partner agencies, as supported by Justice O'Connor in his report. In adhering to his recommendations, we must ensure that information is shared in accordance with clearly established policies respecting relevance, reliability, and accuracy. In addition, national security criminal investigations consult with the Department of Foreign Affairs and International Trade when assessing the implications of sharing information with a country that has a questionable human rights record.
As stated in our policy, in assessing the implications of sharing information with a country with a questionable human rights record, every attempt is made to ensure there is no support or condonation of torture or other abuse of human rights. Specifically, the RCMP conducts an analysis of the human rights record of a country with which it intends to share information. This analysis is based on DFAIT annual reports assessing that country's human rights record. Reports from other human rights organizations may also be consulted. All decisions to interact with a country with a questionable human rights record are documented, including the importance of supplying or receiving such information and the implication of doing so for Canada's human rights obligations.
I would like to be clear that there is no absolute ban on the use of any information received by the RCMP. However, we do not use information whose reliability, accuracy, and relevance is suspect. Information knowingly extracted under torture would by definition be unreliable. In the real world, the challenge is to make a judgment on the known facts about whether any particular information received is the result of torture. Our policy is based on making such assessments on a case-by-case basis.
I would also like to stress that the RCMP's relationship with the Canadian Security Intelligence Service is as strong as ever. We have updated the RCMP-CSIS Memorandum of Understanding to clarify key aspects of our respective operations, and to establish procedures that help resolve problems in a cooperative manner. This has further strengthened our working relationship by instituting activities such as joint workshops aimed at clarifying the respective roles and responsibilities of the two organizations. We are committed to further changes to our national security criminal operations as we continuously adapt to the ever-changing environment.
In closing, I would like to say that public trust is essential to the RCMP's ability to respond to issues of national security. To this end, the RCMP fully supports enhanced review of its national security criminal investigations, and recognizes the important role it plays in maintaining this trust. Enhanced review, however, can only be implemented by the Government of Canada, and any questions on this issue should be directed to the Department of Public Safety.
The RCMP will work within whatever framework the Government of Canada adopts to establish the necessary oversight structures that will ensure continued transparency and accountability of our national security criminal investigations.
Mr. Geoffrey O'Brian:
Certainly. If you don't mind, I can take that back; I know that the director, in October 2006, spoke to a number of those. I think of the 23 recommendations--and that has become sort of a buzz phrase, if I may say--there were only six recommendations that mentioned CSIS specifically. For example, I think recommendation 13 says that we should have the yearly human rights record assessed by the Department of Foreign Affairs. That's done.
I believe that in the minister's letter, which was tabled before the committee and about which some people didn't say awfully nice things.... But if you go through it, look at the recommendations, and match them, there is quite a lot there, frankly, because I think recommendations 11, 14, and 15 all deal with information sharing. Therefore, if you address information sharing, you address three recommendations.
But certainly, if it would help the committee to have that.... There may well be some repetition, frankly, in terms of responses, depending.... But yes, if that would help the committee, I'd be happy to take that back and see if we can do that.
Mr. Phil McColeman (Brant, CPC):
First of all, I'd like to thank you all for taking the time from your schedules to be with us. I think it's important to our study of the recommendations that you came prepared today. I appreciate that.
As a new parliamentarian, I tend to think in terms of the general context of what it is we're trying to achieve here, and of the recommendations put before us by these two reports, their acceptance by the agencies who have to adapt, and the implementation of those recommendations. I believe it's the role, from this seat, to be studying it from a 30,000-foot level initially and then to drill down to see evidence of that having occurred.
Having said that, I'll first address my comments and questions to Mr. O'Brian. If you'll allow me, I want to read a section of your submission. It says:
||While we don't always agree with SIRC or, frankly, always enjoy the SIRC process, our Director has noted that this system of review set up under the CSIS Act has - over time - made us a better service. I used the phrase "over time" on purpose because it seems to me that virtually everyone who has thought about these issues has concluded that there are no simple, easy once-and-for-all answers. To me, that's part of the genius of the CSIS Act process; that it's just that - an ongoing process, capable of adjusting to changed and changing operational, legal and political circumstances.
Having been involved in civilian oversight of a police service in my history, it seems to me that this context--and I'd like you to comment--implies there's ongoing training and things that are happening in the implementation as recommendations roll out. We see evidence from the minister that there are issues that have been implemented.
I'd like your comments about some of that, about some of the context of the acceptance and implementation, and in the case of CSIS, the oversight of SIRC and how that works well for you.
Mr. Geoffrey O'Brian:
Yes, thank you.
I think it's terribly important, in terms of context, to understand that this world of review is with us all the time. It isn't a question of going along and being found out and then suddenly having to adjust. It's a constant thing.
When I was trying to prepare for this today, one of the things I found, which frankly surprised me, was that this year's SIRC report, which I think was tabled in the House two months ago, talking about our operational policy, notes that in 2007 and 2008--those are the years they are reporting--CSIS revised and/or published over 140 policies. And I think they mentioned there were 70 more that were being initiated or were under development.
All I'm saying is that it's a continual process. I think that's a terribly important point to make. We sometimes think, and I think legitimately so, of examples like the O'Connor commission, the Iacobucci commission, and Mr. Justice Major's commission, as negative events because they are pointing out what they consider to be lacks or gaps or whatever in our process.
I think that's one way to look at it. The other way to look at it is that it's a positive process. I can't think of too many countries in the world that actually have the commitment to adjust and correct and try to improve the systems they have. I think we should take some pride in that.
Instead of people saying, gosh, they're out to get us, I would hope they would instead say that these are people doing a difficult job under ministerial control, under judicial control, obviously, for warrants, and constantly being reviewed. Under section 41 of our act, there is the ability for anyone to complain if they believe that CSIS has done something that has affected them in any way--I mean, the wording is very general.
Frankly, I think it's a pretty good system. Are there mistakes? Yes. Do bad things happen from time to time? Yes. Is the system a good system? Frankly, I think it is, and I think we should take some pride in it. I think we should view it as a positive.
Mr. Geoffrey O'Brian:
I am pausing because I am, frankly, listening to the held breath of a number of government lawyers, with whom we have all sat down and....
I do in some ways apologize, because it's not an easy position. But the fact is that three individuals are suing the government and individual agencies for several hundred million dollars. We have been informed that anything we say here that could have the least impact upon those cases will be used.
Frankly, our instructions, therefore, are not only slight, they are completely and utterly clear: we cannot in fact discuss anything that would indicate that the government is either in agreement with all of the findings or comment specifically on any of the findings. That's why, in my opening remarks, I tried to phrase it generally.
With respect to your constituent, with respect to any constituent, I would hope that you, as a member of Parliament, would draw to their attention section 41 of our act, which says that any person can complain to SIRC about any act or thing they believe the service has done. I think that's.... I mean, there are very few countries in the world where you can actually do that.
Now, the reality, of course, is that the person will not necessarily find out the information against them, because that's the nature, again, of our organization. But they can be assured that someone outside the organization, someone hopefully with credibility, with complete access to all of the service records, will examine what the service has done. If that person has been affected, there will be a finding.
Mr. Geoffrey O'Brian:
Let me start.... I'm trying to find a good way to start and to come at this. Perhaps I can start with what Susan Pollak said. She was here a few weeks ago. I think you asked the same question of her and she replied that CSIS does use information. Frankly, I'm tempted to say that there are four words that can provide a simple answer, and those four words are either “yes, but” or “no, but”, and the “yes, but” is, do we use information that comes from torture? And the answer is that we only do so if lives are at stake.
And there is a premise to that. The premise to that is, first of all, it happens rarely in the exchanges of information that we have. Second of all, information that may have been extracted by methods which are less than the kinds of methods we would like applied to people--citizens, dual citizens, whatever, whether citizens or not.... Normally, the recipient of that information doesn't know how that information was obtained.
So with those first two points--“happens rarely” and “don't necessarily know”--there's been a general answer, which is that every bit of information we get we attempt to assess in terms of its reliability, but in trying to get at this debate, one of the best discussions I've ever seen of this, and I don't know whether the committee's had a chance to read the House of Lords decision, the famous--at least for us famous--House of Lords decision in 2005 called, in shorthand, the torture decision, but that was dealing with their SIAC process. Their security--
Mr. Brent Rathgeber:
Thank you, Mr. Chair.
Thank you very much to all four witnesses. I'd like to thank you and your respective agencies for providing security to our borders and to our country.
I'm following up on some questions that my friend Mr. Norlock posed and some comments that you made, Mr. O'Brian, borrowing from Justice O'Connor and indicating that no Canadian agency or likely no Canadian would knowingly subject another Canadian citizen to indignity or torture. When you quoted Justice O'Connor, the quote you used was “interact with countries with poor human rights records”.
Mr. Michaud, you used similar phraseology in your briefing paper when you talked about “decisions to interact with a country with a questionable human rights record”, and then you went on.
I'm curious. Is there a concise or pithy definition of what is and what is not “questionable” or “poor human rights”, and who makes that decision?
Mr. O'Brian first, perhaps.
Mr. Mark Holland:
Thank you, Mr. Chair.
Thank you, witnesses.
I'm disturbed by what I heard on this issue of torture. I'm disturbed because while I'm hearing from you that there's a lot of grey and ambiguity, and that it's a difficult question for which there's no clear answer, Justice O'Connor--and I read the section of his report that was relevant to this--is very clear when he says, “Information should never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture.” That's what I was expecting to hear today. Particularly, Mr. O'Brian, that's not what I heard from you.
Let me be very specific. In the case of Mr. Elmaati, we now know that the confession was extracted using torture. CSIS and RCMP officials repeatedly told the inquiry that they had no evidence that Syria used torture, so they didn't consider that a confession would have been a product of torture. We're obviously studying this. No one ever wants to see a Canadian citizen put in this position again.
Very specifically to you, with respect to both Egypt and Syria, where there had been problems in the cases we as a committee are looking at, would you share information with those jurisdictions today--yes or no?
Mr. Geoffrey O'Brian:
I seem to be apologizing a lot.
I would make two comments. If I could add the word “knowingly”, I would feel more comfortable, because the reality is that in many cases, you don't know. That's the first point.
The second point is that I would reserve, on the side, that one-in-a-thousand or one-in-a-million--whatever it is--case that we all talk about and that I don't raise simply for simplistic, argumentative, and legalistic.... The simple truth is that if we get information that can prevent something like the Air India bombing, the twin towers, or whatever, frankly, that is the time we will use it, despite the provenance of that information. Those are minuscule. Everything else is for building in a system that ensures that we respect and follow Canadian values.
So with those two caveats--knowingly and in that one instance--yes.