GOVERNMENT RESPONSE TO THE REPORT OF THE STANDING COMMITTEE ON PUBLIC SAFETY AND NATIONAL SECURITY: REVIEW OF THE FINDINGS AND RECOMMENDATIONS ARISING FROM THE IACOBUCCI AND O’CONNOR INQUIRIES

National security is the most fundamental duty of any national government.  The federal Government’s responsibility is to counter new threats and challenges within a national security framework that guarantees accountability and the protection of civil liberties.   

The Government welcomes the opportunity to respond to the report of the Standing Committee on Public Safety and National Security, Review of the Findings and Recommendations Arising from the Iacobucci and O’Connor Inquiries.

The Government has carefully reviewed and considered the Committee’s report and is pleased to inform the Committee that it has already taken steps with respect to a number of the recommendations found therein.

RECOMMENDATION 1

The Committee reiterates the recommendation made in its report presented to the House of Commons on January 30, 2007, and recommends that the Government of Canada recognize the urgency of the situation by immediately implementing all the recommendations from the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (O’Connor Inquiry).

In recent years, the national security landscape has changed, with more departments and agencies working together to address emerging challenges and threats.  The Government is committed to ensuring that Canada’s national security review structure reflects the changing nature of national security investigations, responds to the shifting security and threat environment, and respects the principles of independence and accountability. 

The Government of Canada, through its efforts to modernize and strengthen Canada’s national security review framework, continues to work towards filling the gaps highlighted by the O’Connor Inquiry.

The Government took immediate action to accept and implement the recommendations put forward in Justice O’Connor’s first report, Report of the Events Relating to Maher Arar (Part I – Factual Inquiry), and this process is largely complete, with 22 of the 23 recommendations having been implemented. 

Notwithstanding the work accomplished to date, the Government recognizes the need to continually assess existing policy and practice against the ever-changing environment in which we operate.  External review is an essential component of this process, enhancing the system by fostering an ongoing process of adjustment and refinement.

Strengthening public trust in Canada’s national security architecture, as outlined in Justice O’Connor’s second report, A New Review Mechanism for the RCMP’s National Security Activities (Part II – Policy Review), is a priority for the Government of Canada.

The Government’s objective is to strengthen national security review structures that are already in place to achieve the desired balance between maintaining operational effectiveness and a modernized review process.  Much work has also been accomplished in advancing policy analysis with respect to Canada’s national security review framework, particularly with regard to enhancing the Royal Canadian Mounted Police (RCMP) complaints and review process, including review of its national security activities, and providing a mechanism to facilitate inter-agency review of national security activities.  The Government is committed to modernizing and strengthening Canada’s national security review framework.  In achieving this objective, the Government will continue to take into consideration the advice and recommendations of key stakeholders and advisors, including Justice Major’s forthcoming report in the context of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 (Air India Inquiry).

RECOMMENDATION 2

The Committee recommends that the Government of Canada immediately issue regular public reports on the progress made in implementing the findings and recommendations arising from the O’Connor Inquiry and the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin (Iacobucci Inquiry).

The Government of Canada acted to implement the recommendations put forward in the Report of the Events relating to Maher Arar, and is pleased to provide a detailed progress report outlining the measures taken across the federal government. 

The Iacobucci Inquiry identified a number of issues, with particular emphasis on the sharing and handling of information provided to, and received from, foreign agencies, as well as the provision of consular services.  It should be noted that Justice Iacobucci was not given a mandate to make recommendations, nor did he.  Broadly speaking, the areas of concern identified by Justice Iacobucci were addressed by the Government when it implemented the recommendations arising from Justice O’Connor’s Factual Inquiry and through regular revisions to existing policies, which take place as a matter of course as policies are refined and evolve over time.  

The Government is committed to addressing the recommendations enumerated in the second report released by the O’Connor Inquiry, Part II – Policy Review.  As noted in response to the Committee’s first recommendation, the Government continues to develop its proposal for modernizing and strengthening the current RCMP review and complaints body.  To further these efforts, the Government has and will continue to consult with key stakeholders, in particular those jurisdictions that contract the RCMP to provide policing services in their jurisdictions.  Much work has also been done to advance policy analysis on Canada’s national security review framework.  All of this work has been undertaken with due consideration of each of Justice O’Connor’s recommendations. 

The Government is confident that it will be ready to move forward to address the gaps identified by Justice O’Connor with regard to the review of national security activities, and will continue to keep Members of Parliament and Canadian citizens apprised of new developments.

RECOMMENDATION 3

In consideration of the harm done to Messrs. Almalki, Abou-Elmaati and Mr. Nureddin, the Committee recommends:

• that the Government of Canada officially apologize to Messrs. Almalki, Abou-Elmaati and Nureddin;
• that the Government of Canada allow compensation to be paid to Messrs. Almalki, Abou-Elmaati and Nureddin as reparation for the suffering they endured and the difficulties they encountered; and
• that the Government of Canada do everything necessary to correct misinformation that may exist in records administered by national security agencies in Canada or abroad with respect to Messrs. Almalki, Abou-Elmaati and Nureddin and members of their families.

The Government acted decisively on the recommendation of Justice O’Connor to establish an independent and credible process to review the cases of Messrs. Almalki, Abou-Elmaati and Nureddin.  In the interest of ensuring a thorough process, the Government commissioned an inquiry, which presented its findings in Justice Iacobucci’s report, published on October 21, 2008. 

It would be inappropriate to address the Committee’s third recommendation, as it pertains to ongoing civil litigation.   

RECOMMENDATION 4

The Committee recommends that the Government of Canada issue a clear ministerial direction against torture and the use of information obtained from torture for all departments and agencies responsible for national security.  The ministerial direction must clearly state that the exchange of information with countries is prohibited when there is a credible risk that it could lead, or contribute, to the use of torture.

The Government of Canada’s policy on torture, and the use of information elicited through torture is clear.  As stated by the Minister of Public Safety on April 2, 2009, “we do not condone the use of torture in intelligence gathering.  Our clear directive to our law enforcement agencies and our intelligence service is that they are not to condone the use of torture, practice torture or knowingly use any information obtained through torture.” 

Federal departments and agencies involved in protecting Canada’s national security do not condone or support torture or other abuses of human rights.  This unequivocal position is supported by the recent ministerial direction issued to Canadian Security Intelligence Service (CSIS) by the Minister of Public Safety, which clearly states that “the government is steadfast in its abhorrence of and opposition to the use of torture by any state or agency for any purpose whatsoever, including the collection of intelligence.”

The Government’s implementation of Justice O’Connor’s recommendations has also served to strengthen safeguards in relation to the exchange of information with foreign governments and agencies.  For example, CSIS has pursued a number of important initiatives to improve its information handling practices, including: amending operational policy governing information‑sharing and cooperation to restate the need to take the human rights record of a country into account before sending or using information from that country; conducting assessments of the human rights records of the countries and agencies with which it exchanges information; and introducing a new caveat to information it shares with foreign agencies that seeks assurances that any Canadian citizen detained by a foreign government will be treated in accordance with the norms of relevant international conventions. 

The RCMP has enhanced its information sharing practices by updating its policies on information sharing, caveats, border lookouts, and on bias-free policing; and creating a National Security Criminal Investigations training course that deals with an array of important issues including information sharing, the role and operations of liaison officers, the appropriate use and management of border lookouts, and the importance of human rights and cultural sensitivity matters in a number of wide-ranging situations.  A more detailed discussion of safeguards around the exchange of information with countries with poor human rights records has been provided in the attached progress report. 

International collaboration, including the exchange of information, is critical to Canada’s national security.  That said, the exchange of information with foreign partners raises unique challenges - policy, legal and operational – that are examined on a case-by-case basis in the context of Canada’s national security environment.

The cumulative result of successive commissions of inquiry, reports and lessons learned has been the refinement of policies and practices surrounding the exchange of information between foreign partners and Canada’s national security and intelligence and law enforcement communities.  With these measures in place, and the issuance of an unequivocal statement by the Minister of Public Safety and the recent ministerial direction to CSIS, the Government of Canada considers this recommendation to be fulfilled.

RECOMMENDATION 5

The Committee recommends that Bill C-81, An Act to establish the National Security Committee of Parliamentarians, or a variation of it, which was previously introduced in the 38th Parliament, be reintroduced in Parliament at the earliest opportunity.

Effective and efficient review is critical to ensuring that national security activities remain appropriate, respect the law and inspire public confidence.  Currently, national security activities are reviewed by a diverse range of actors, including Members of Parliament, independent agencies and ad hoc commissions of inquiry, as well as the Auditor General, the Privacy Commissioner and the judiciary, among others.

Clearly, Parliamentarians have an important role to play.  Parliamentary engagement on issues of national security is principally achieved through Members’ participation in a number of standing committees, including the Standing Committee on Public Safety and National Security, the Standing Senate Committee on National Security and Defence, the Standing Committee on Access to Information, Privacy and Ethics, and the Standing Committee on Public Accounts.  In addition, special committees may be appointed to examine specific issues of importance to Canada.  Recent examples include the Special Committee on the Canadian Mission in Afghanistan, the former Special Senate Committee on the Anti-terrorism Act and the House of Commons Subcommittee on the Review of the Anti-terrorism Act.  The Government recognizes the importance of these committees in ensuring a robust Parliamentary system, and Members of Cabinet will continue to make themselves available to testify and support the important work carried out by Parliamentaty committees. 

In addition to Parliamentary review of national security matters, there are four main bodies that provide review of national security activities in Canada: the Security Intelligence Review Committee (SIRC), the Inspector General of CSIS, the Commission for Public Complaints Against the RCMP, and the Commissioner of the Communications Security Establishment.

These review bodies prepare annual reports that are tabled in Parliament.  For example, SIRC publishes its findings in an annual report to Parliament, which is tabled by the Minister of Public Safety.  Likewise, the Commission for Public Complaints Against the RCMP and the Communications Security Establishment Commissioner produce annual summaries of their findings, which are also tabled in Parliament. 

SIRC was established in 1984, as an independent, external review body that reports to the Parliament of Canada on the performance of CSIS.  With the enactment of the CSIS Act, Parliament gave CSIS extraordinary powers and in exchange, Parliament entrusted SIRC with ensuring that these powers are used legally and appropriately, in order to protect Canadians’ rights and freedoms. 

While neither of Justice O’Connor’s two reports specifically addressed the role of Parliamentarians, the Government unequivocally supports the continued involvement of Parliamentarians in this area.  At this time, efforts are focused on developing proposals in response to the second report released by the O’Connor Inquiry, A New Review Mechanism for the RCMP’s National Security Activities.  The Government notes the Committee’s fifth recommendation, which will be given due consideration in the context of the development of an enhanced national security review framework.