The RCMP and Terrorism: Have we come full circle?

Speech given by Mr. Paul E. Kennedy / University of Ottawa Roundtable on Security and Intelligence November 24, 2009

The topic of terrorism is quite broad. However, I intend to focus my presentation upon a narrow slice of that particular subject. I will deal with the period from 1980 to the present and discuss how in many ways, from my perspective, we have found ourselves facing many of the same public policy issues relative to the actions of the RCMP in the national security field that confronted Canadians and their elected representation in 1980.

The principle concern is whether members of the RCMP in this important area will comport themselves in a manner consistent with the expectations of Canadians. Contrary to what many Canadians may think, this issue was not addressed following the McDonald Commission of Inquiry. In 1984 Parliament created a civilian intelligence service under the direction of a Minister in the form of CSIS with its two review bodies. By virtue of the Security Offences Act, however, the RCMP retained its role as the primary police investigative body in respect of criminal activities arising from threats to the security of Canada.

Although Parliament clearly established the continuing role of the RCMP in the national security area, in contrast to its treatment of CSIS, it at that time provided no independent external review of its activities. The police as you know at common law are independent in respect of their investigative activities. They decide who they will investigate, when they will investigate and in respect of what offences they will investigate. This independence has been recognized by the courts and is frequently voiced by Ministers at both the provincial and federal levels. This principle protects Canadians from the prospect of the police becoming a coercive tool of the political power of the day. It also affords the police with significant freedom of action subject, we are assured by the police, to the ultimate supervision of the court.

In contrast to CSIS which upon its creation in 1984 was to be reviewed by two independent bodies, each of which has access to all information but for Cabinet confidences, the RCMP did not have any external review until 1988 following the establishment of the Commission for Public Complaints Against the RCMP. For reasons unknown to me, the CPC's review mandate was significantly weaker than that of SIRC or even of the offices of the Access to Information Commissioner, the Privacy Commissioner and the Auditor General, all of which existed prior to the creation of the CPC. One can only assume, since policy makers and legislative drafters like to copy existing models, that there was a deliberate intention to have a less robust model of review in respect of the RCMP. If this was the goal of the drafters, I can assure you that they were highly successful in that regard. Based upon my four plus years as Chairman of the CPC, I can with confidence say that little if any of the RCMP's activities in their role as a national police force comes to the attention of the Commission.

The vast bulk of our work engages the RCMP in its contract role either as the provincial, territorial or municipal police force. The work of IBETs, IMETs, INSETs, interprovincial or international organized crime or national security files appear with the frequency of a lotto 6/49 grand prize winning number. On the rare occasion when they do surface the failings of the CPC's legislative mandate become readily apparent. The CPC in contrast to SIRC does not have access to all information that it considers relevant to its mandate. This weakness was highlighted in a decision dated June 2005 by the Federal Court of Appeal Canada (RCMP Public Complaints Commission) v Canada (Attorney General) which ruled that the RCMP could refuse to disclose certain classes of information.

In a Directive issued in February 2006, then Commissioner Zaccardelli outlined those classes of information. They include:

• 1) Section 37 of the Canada Evidence Act
  • Significant damage to ongoing investigations
  • Confidential human sources
  • Investigative techniques not known to the public
• 2) Solicitor/client privilege, litigation privilege
• 3) Other recognized privilege
• 4) Section 38 of the Canada Evidence Act
  • Risk of harm to national security
  • Risk of harm to national defence
  • Risk of harm to international relations
• 5) Other statutory prohibitions
• 6) Youth Criminal Justice Act

Some examples of other statutory prohibitions would include Part VI of the Criminal Code which criminalizes the unauthorized disclosure of intercepted communication and the provisions of the Witness Protection Act which criminalizes the disclosure of certain information.

What is good about the Commissioner's Directive is that it, because of the Federal Court of Appeal ruling, requires RCMP members to acknowledge that they are withholding information and are required to identify the general grounds for doing so. This directive suggests to me that prior to the court's ruling in June of 2005, in the previous 16 or 17 years information may have been withheld absent the Commission's knowledge. One might today take some comfort in the belief that, so long as everyone follows this Directive, we at the Commission at least know that there is something that we don't know. However, since the RCMP also believes it has the additional right to decide what is relevant to a particular complaint, I do not take too much comfort from the Commissioner's Directive.

The weaknesses in the CPC's legislative mandate, as they apply to national security, were less problematic in 1988 than today. The past 25 years, however, have seen a number of major changes that I believe have significantly altered the landscape and have caused the RCMP to more vigorously re-engage in national security, particularly in relation to counter-terrorism. This re-engagement, in light of the legislature gaps, enlarges the size of the dark corner in which no light of scrutiny may shine.

Let us for a moment return to the world of 1980. We still lived in the cold war era; an era dominated by the two political and military giants of the day, the USA and USSR, and a cluster of non-aligned states that kept their heads down. CSIS in this period expended 80% of its collection and investigation resources on counter-intelligence operations with the balance spent on counter-subversion and relatively minor counter-terrorism activities. The threats of that era, although serious, had a more predictable nature to them. This was the era of expulsion of diplomats who conveniently confused espionage with diplomacy and there were the relatively rare but noteworthy acts of violence such as those directed against Turkish officials and their Embassy. Undesirables who were detected at our borders were denied entry and quickly sent on their way. There was the occasional terrorist supporter who managed to get into the country and obtained permanent resident status. These people tended to be individuals who engaged in support activities such as recruitment, collection of money and, in the odd case, procurement of equipment.

There was also the trend whereby formerly active terrorists sought to retire to the tranquility of Canada along with their family members. CSIS, using an array of administrative techniques, was able to effectively deal with these threats by disruption activity, such as the displacement of key individuals through deportation or extradition. The RCMP would investigate the occasional terrorist case relying upon traditional investigative methods. These cases generally focused on events that had manifested themselves as overt criminal acts, i.e. the attack on the Iranian Embassy and the assault of its Ambassador.

The ground started to shift in the mid to late 1980s and the changes continued to accelerate thereafter. In 1985, the S.C.C. in the matter of Singh et al v Canada (Minister of Employment and Immigration) held that the legal protection of section 7 of the Charter applied to anyone physically present in Canada. This led to the creation of the Immigration and Refugee Board, which over the ensuing years regrettably encountered a significant backlog of cases. The collapse of the USSR and the loosening of controls by both the USA and USSR on countries previously under their influence expressed itself, in part, through the emergence of nationalism accompanied by the rekindling of historic ethnic and religious hatreds.

Canada, like most western democracies, experienced a large growth in its population attributed to immigration both of a legal and illegal nature. Many of these new arrivals came from areas of the world that were in crises including armed clashes between citizenry and the state.

Inexpensive sophisticated technology especially as manifested by the Internet coupled with encryption capabilities facilitated the ability of the individual to organize, plan and execute. Meanwhile CSIS continued to run into challenges as it tried to employ what tools it had to address threats arising in a more challenging domestic and international environment. The national security certificate process which for decades had been an important tool to remove suspected terrorists from Canada has been mired in legal machinations. Calls for increased disclosure of sensitive information to better prepare the individual concerned to address the Crown's case resulted in the foreseeable outcome whereby CSIS accepted the overturning of the certificate rather than risk the disclosure of sensitive national security information. Even in cases where CSIS has been able to make its case that a certificate should be sustained it has yet to satisfy the presiding judge that the individual upon return to his or her country of origin would not face the risk of torture or such other cruel or inhuman treatment as described in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The long-term detention of suspected terrorists in these circumstances becomes untenable and they eventually secure release.

In those instances where CSIS has co-operated with the police to advance a criminal prosecution, such as Air India, it has found itself subject to criticism. In the Air India case it was in respect of the interception of private communications and the "failure" to retain a copy of the intercepted communications. A reoccurrence of such a "failure" in the future will without doubt significantly negatively impact the Crown's ability to successfully prosecute. One could easily argue that the call for CSIS to collect and retain information to criminal law-evidentiary standards, as is implicitly recommended in the judge's ruling in the Air India case, has largely negated the work of the McDonald Commission and has pushed CSIS into a quasi-police role. It will no longer be retaining information "only to the extent that it is strictly necessary" for its investigation of threats to the security of Canada.

If things have not gone well for CSIS, it is fair to inquire as to how matters are proceeding on the law enforcement front. The police world as it relates to national security has not been static. As I observed earlier, most of what one would call terrorist related prosecution in the 1980s was from a police or prosecution perspective quite straightforward. The assassination or attempted assassination of a terrorist target factually spoke for itself and was easily proven. It was the emergence of organizations with a domestic presence, global reach, organizational structure and long range plans that put pressure on the RCMP to enlarge its national security investigative capacity. This pressure became significant when terrorism evolved beyond the realm of sporadic individual acts of revenge to large scale public mayhem, such as we witnessed in Air India and the later day attacks in New York, London, Bali and Madrid to name but a few. It is doubtful that either CSIS or the RCMP would wish to bear the blame for a failure to effectively co-operate where such failure led to or contributed to the inability to successfully prosecute a terrorist related case. This reality I am sure encourages an early identification and handover of files from the intelligence silo to the criminal investigation silo.

In addition to the natural desire to act promptly in light of the severity of the terrorist threats, a number of significant events occurred post 9/11 that also altered the role of police in the national security area.

First there was the recognition that just like any criminal enterprise, terrorism could only be addressed if you attacked all its constituent elements such as its leadership, facilitators and its financial base. Most importantly, the change in terrorist tactics from attacks on identifiable targets to mass murder also necessitate the earliest intervention possible. As well, the global reach of a terrorist organization either due to a sympathetic diaspora or relationships with allied terrorist groups called for new international partnership beyond the traditional policing community.

The Department of Justice website with reference to the Anti-Terrorism Act reflects this reality. It states, in part, that the Act improves Canada's ability to investigate, detect and prevent terrorist activities at home and abroad. It enables us to take the necessary steps to deter and detect money laundering and to deny terrorists access to funding. It allows Canada to work with the international community in the fight against terrorism. It recognizes the importance of prevention by creating offences that criminalize activities such as "participation" in a terrorist group: the type of activities that take place before a more dangerous terrorist event can occur.

More specifically:

• Terrorist activity was defined
• Expanded jurisdiction was granted to investigate and prosecute such activity
• Power was granted to identify terrorist entities – some 41 have been listed to date
• General intent offences were created in respect of activities that supported terrorism such as the providing or collecting of property for certain terrorist activities

Beyond these legislative initiatives the government in 2003 reorganized its key enforcement partners into the portfolio of Public Safety Canada. The inclusion of CBSA with the enforcement arm of customs and immigration, along with CSIS and the RCMP, provides the core for national security enforcement under the general direction of a single minister and, in theory, should provide the synergy and range of tools required to detect and prevent terrorist activity.

CSIS, though a weakening of its traditional tools for addressing the terrorist threat coupled with a series of, from its perspective, adverse judicial rulings, has been driven towards a more quasi-criminal law model. At the same time, the police by virtue of the emphasis on detection and deterrence and a focus on the underlying activities of facilitating terrorism have been driven more heavily into the intelligence gathering mode. In some cases the demarcation of activity as being either a criminal or a national security threat has become significantly blurred.

By way of illustration, there was a police investigation in North Carolina which dealt with a group of individuals who were involved in illegal cigarette smuggling. During the investigation, it became known that these individuals also happened to be members of Hezbollah. Intelligence indicated that they were going to use the proceeds of their criminal activity to acquire night vision goggles in Canada for export to assist fellow members of their terrorist group. This case is a good illustration of the difficulty of compartmentalizing activities into one silo or the other. In this instance traditional criminal activity was the enabler for terrorism and a terrorism goal was the ultimate motive for the traditional crime.

With respect to the RCMP, I see three forces at play:

• 1) The importation of criminal law principles into the national security area such as a more demanding evidentiary retention and disclosure obligation imposed upon CSIS which has weakened its traditional tools of dealing with terrorist threats;
• 2) An enhanced police focus on the early detection and prevention of terrorist activity both direct and indirect; and
• 3) The increasing prevalence and serious harm occasioned by terrorist activity,

all of which combine to re-engage the RCMP more deeply on the national security front.

Unfortunately there are certain constants in the counter-terrorism sphere that apply equally to CSIS and the RCMP.

The RCMP like CSIS will need to use information obtained from its international partners.

• That information will be accompanied by non-disclosure caveats
• The disclosure of that information absent consent of the third party will damage future information sharing relationships
• Such third party consent to disclosure is rarely granted.

Failure to provide the information will deny the individual a fair trial which in turn will lead to a judicial stay of proceedings.

The reluctance of the police to provide full disclosure to the defence is a reality that occurs with some regularity in respect of complex organized crime files. The police know at the early stages of an investigation that there is information that cannot be disclosed, hence a prosecution may not ensue.

Accordingly, just because the police are involved in the investigation of a terrorist related criminal activity does not mean that criminal charges will be laid and the supervision of the court engaged. The discretion to lay or not lay a criminal charge belongs solely to the police. Their overriding obligation is to keep the peace. That obligation can be satisfied though an investigation that leads to the detection, disruption, deterrence or frustration of the terrorist activity. It does not have to result in the laying of criminal changes.

Have we seen the RCMP employ disruption tactics in the past? Remember the infamous barn burning episode of the 1970s wherein the RCMP burned a barn to prevent a meeting between the FLQ and the American Black Panthers. That activity along with other questionable disruptive tactics employed by the RCMP led to the McDonald Commission and the creation of a civilian national security agency. With the significant re-engagement of the RCMP in counter-terrorism investigation are we likely to see a return of those practices?

A National Post article dated November 10, 2009 references an RCMP 2008-2009 fiscal performance report that was tabled in Parliament. It detailed suspected national security related criminal acts. Assistant Commissioner Paulson with reference to the report said "Prosecutions are by far the preferred path (but) it is just not always possible." He talked about disruption tactics such as search and seizure. He specifically referenced the raid on the Toronto and Montreal offices of the World Tamil Movement and the seizure of property and bank accounts as well as the arrest and extraditions of three Tamil supporters to the U.S. Commissioner Elliott in the same article is quoted as saying that "disrupting credible and imminent threats without significant evidence to justify criminal charges is sometimes necessary." Yet he boldly states that "law enforcement and criminal prosecutions will be the new paradigm of national security in democratic nations the world over."

It is clear, I would submit, that the RCMP has run into the same obstacles that confronted CSIS, that it has deployed similar disruption tactics and that it will, I believe, in the future see itself using the criminal prosecution route for a minority of its investigations.

There has, however, been a significant tool made available to the police that must be considered when discussing such disruption tactics. In that regard I would draw your attention to section 25.1 of the Criminal Code. That section was proclaimed on February 1, 2002 as part of the government's organized crime package and was developed in response to the Supreme Court of Canada's ruling in R. v Campbell and Shirose. It provides a limited justification at law for acts and omissions that would otherwise be criminal offences when committed by designated law enforcement officers (and those acting under their direction) while investigating an offence under federal law, enforcing a federal law, or investigating criminal activity. Within the range of activities that such a designated officer may conduct there are two distinct categories, the more serious of which requires the personal authorization in writing of a designated senior official (who is a police officer). Within this more serious class of activities are "acts or omissions that would otherwise constitute an offence that would be likely to result in loss or serious damage to property."

The new reality is that the RCMP in 2009 in order to detect, investigate and disrupt terrorist activity could do the very activity that helped give rise to the McDonald Commission and the creation of a civilian national security organization. Since December 2001, the RCMP is authorized in law to burn the barn.

We seem to have, as noted in the title to this presentation, come full circle. Not only is the RCMP back in the national security business in a significant way (remember counter-terrorism as a national security threat occupies about 80% of CSIS's resources) but it does so unencumbered by the oversight/review regime that was put in place in respect of CSIS.

We find ourselves as Canadians confronted with a situation wherein the RCMP in response to a serious public threat has become increasingly involved in the investigation of terrorist activities. Such involvement will require them to employ the full range of tactics previously employed by CSIS which includes surveillance, monitoring, clandestine interception of communications and covert searches and disruption tactics to name just a few. As noted in the comments by Assistant Commissioner Paulson and Commissioner Elliott, not all of these will lead to prosecution and supervision by the court. I would venture to say that the vast majority will not. Even more tellingly few people would even become aware that they were or are the subject of an RCMP counter-terrorism investigation. You cannot complain about that which you do not know.

Who then can provide either Ministers, Parliament or the Canadian public with assurances that these activities are being carried out in a manner consistent with the expectations of Canadians? I have pointed out in each of my Annual Reports the growing public trust deficit in respect to the activities undertaken by the RCMP. CPC has recommended legislative steps to address this reality. The RCMP has recognized the need for enhanced external review in respect of its investigation of deaths or serious injury occasioned by the actions of its members. With the O'Connor Inquiry findings and recommendations, in respect of the RCMP's investigation of Maher Arar, still fresh in the mind of Canadians how much faith do you believe the Canadian public has that there will not be a repeat of this type of occurrence? How much damage would a repeat of the Arar events do to the reputation of the RCMP? Could it recover from such an event?

I believe that it is time to put in place an enhanced review regime in respect of all RCMP activities including its investigation of terrorist activities. Central to such enhanced powers is access to all information but for Cabinet confidences and the power to self initiate reviews of RCMP programs, operational policies and training as well as the conduct of members in the performance of their duties. Failure to address the adequacy of review powers whilst allowing the RCMP, as noted by the Commissioner in his recent speech at CASIS "To Close the Loop on National Security through Law Enforcement" will merely invite déjà vu all over again.