Presentation to the Standing Committee on Public Safety and National Security

Review of Findings and Recommendations of Justices O'Connor and Iacobucci

Delivered by Paul E. Kennedy, Chair of the CPC

March 5, 2009

Check against Delivery

Thank you Mr. Chairman.

I would like to thank the Committee for having invited me to appear today. I believe that the primary purpose of my attendance is to respond to your concerns as to whether the RCMP has implemented the recommendations made by Justice O'Connor in respect of certain national security related investigations carried out by the RCMP in the period following the events of 9/11.

I would like to point out that the CPC, historically, has not dealt with many national security investigations. During my approximately three and a half years at the Commission, I can recall three files that could be truly considered national security in nature.

There are a number of reasons for this. Firstly, such investigations are generally conducted in a covert manner and the subject of the investigation would be unaware of its existence. Few such investigations actually result in the laying of criminal charges. Of those criminal charges that are laid fewer still would be of such a nature as to be self-identified as being related to national security. An investigation in relation to the making of a false document may or may not be related to an ongoing national security investigation. If you don't know, how do you complain?

Secondly, the current legislative mandate does not give the CPC access as of right to all information in the possession of the RCMP. The RCMP may refuse, and have, to disclose confidential or privileged information. That would include classified information pertaining to RCMP national security investigations. It was only in 2005 that then Commissioner Zaccardelli signed a Directive to RCMP members that required them to advise the CPC that it was not making information available and the grounds for such refusal. I suspect that prior to this Directive, the CPC was simply kept in the dark about the existence of such information.

Lastly, the Commission does not possess a general power to review or audit programs, policies or activities of the RCMP. Any such reviews have to be part of a complaint process. I have the power to launch my own complaints but I must have knowledge of a potential problem before I can engage the process.

This situation is to be contrasted with the work of the CPC in regards to the RCMP's use of the Taser wherein it produced a comprehensive review of RCMP usage, policy and training for the period of 2001 to 2007, and for which it will be producing annual reports dealing with members' use of the weapon.

These legislative shortcomings have been known for decades. I believe the public statement by the former Chair of the CPC that she did not have the means to adequately investigate the role of the RCMP in relation to Mr. Arar was a contributing factor in the government's decision to call the O'Connor Inquiry.

Accordingly, I cannot today give you any assurance that the RCMP has implemented the recommendations of Justice O'Connor or if such recommendations, if implemented, are either being adhered to or are in fact adequate to achieve their stated purpose.

These legislative inadequacies, as I noted, have been known for decades. More recently, the Auditor General in her 2003 audit of review bodies in the national security area specifically highlighted this problem. With respect to the CPC and the RCMP, she advanced the proposition that agencies exercising intrusive powers be subject to levels of external review and disclosure proportionate to the level of intrusion. This is not the case with respect to the CPC.

I appeared before Justice O'Connor on November 17, 2005 in relation to Phase II of his inquiry. I put forth at that time the elements required for effective review of all activities of the RCMP, a sub component of which is their investigative activities in respect of criminal activities arising from threats to the security of Canada.

The recommendations found in Justice O'Connor's report as well as the 2007 report of the Task Force on Governance and Cultural Change in the RCMP chaired by David Brown, Q.C. reflect that model.

I have prepared a draft legislative mandate that further articulates what that regime would look like. The elements in that model would address all the myriad challenges that accompany effective review of such a large organization.

Key attributes to effective review are:

• unfettered access as of right to all information – but for Cabinet Confidences with the accompanying safeguards;
• a positive obligation on law enforcement officers to account for their actions;
• enlargement of the scope of review to include retired members and non-members who work under the supervision of a police officer;
• an audit/review power focused on the adequacy or appropriateness of policies, procedures, guidelines and training; and
• authority for the review body to conduct joint investigations and to share information with other review bodies that have powers, duties and functions that are similar.

With such a legislative mandate, I could provide you with the assurance that both the Committee members and the Canadian public need and deserve in this matter.

Last and not least, the review body must have the human and financial resources to effectively fulfill its mandate.  In 1988, the CPC had a budget of $3.1M, whereas the RCMP had a budget of $1.3B. 

Today the CPC's permanent budget is $5.2M with 40 full-time employees, whereas the RCMP had grown to $4.27B and 27,669 full-time employees as of fiscal year 2007-2008. 

Both the Auditor General and Justice O'Connor recognized that legislative powers must be accompanied by the financial means to exercise them.

The previous Minister of Public Safety helped secure additional temporary funding in the amount of $3.7M for the CPC in respect of the fiscal year ending March 31, 2009.

Those funds allowed the CPC to do a comprehensive review of Taser use by the RCMP, to launch a comprehensive review of the impartiality of RCMP investigations of members alleged to have committed criminal offences, to investigate the 10 instances of death in Canada proximal in time to RCMP use of the Taser, and to conduct a systemic review of all complaints disposed of by the RCMP in the calendar year 2007, to name but just a few examples.

An enhanced legislative mandate coupled with appropriate financial resources would enable the CPC to play a similar role in respect of the RCMP's national security criminal investigations.

I would be pleased to answer any questions you may have concerning our work.

Thank you.