Human Rights Considerations by National Security Agencies and their Monitors
1. Royal Canadian Mounted Police and its Monitoring Agency
a. Royal Canadian Mounted Police (RCMP)
The RCMP is one of the three primary agencies responsible for the maintenance of national security in Canada. It is Canada’s national policing agency and as the provincial police force everywhere in Canada except for Quebec and Ontario, is responsible for the criminal aspect of national security. This includes investigation, prevention and enforcement, and responsibility for enforcing a myriad of other federal and provincial legislation.12
Enabling Legislation
The RCMP exists pursuant to the Royal Canadian Mounted Police Act and its Regulations. Neither the Act nor the Regulations require any consideration of human rights, as defined by the CHRA, in the performance of the RCMP’s duties.
The RCMP is not required by its own legislation to submit an annual report of any kind. The Act and Regulations create some general reporting obligations, but only for the Commission for Public Complaints Against the RCMP.13
Reports to Parliament
The RCMP’s enabling legislation and its Regulations do not contain any obligation to report on human rights issues or to consider them in fulfillment of the RCMP’s mandate. Unlike its enabling legislation, the FAA obligates the RCMP to produce annual reports. The Departmental Performance Report for 1999-2000, however, was not available for review.
None of the reports to Parliament include any reporting on human rights issues. However, 14 of the 19 reports contain statements to guide the RCMP on human rights issues.14 The following excerpt from the 2005-2006 Departmental Performance Report is a representative example of these statements:
I am confident that the Public Safety Portfolio will continue to fulfill its mandate of protecting Canadians from threats to their safety, while maintaining the rights and freedoms on which our open society depends.15
The report does not indicate whether such references relate to the human rights set out in the CHRA, or whether there are other kinds of rights that arise in the criminal context including the right to counsel, as provided by the Charter.
Three of the 19 reports mention strategies implemented by the RCMP to protect human rights, including the development of a Bias-free Policing Program and a National Security Community Outreach Program.16 The 2004-2005 Departmental Performance Report reads as follows:
In keeping with the goal of safe homes and safe communities, the RCMP National priorities of Terrorism and Youth, and the RCMP’s Bias-free Policing Program, the RCMP National Security Program is setting up a Community Outreach Program in the Integrated National Security Enforcement Teams (INSETs) and National Security Investigations Sections (NSIS), similar to the Community Advisory Committees at all RCMP detachments across Canada. This is an enhancement of existing National Security outreach work, as the RCMP has been working with Visible Minority communities pre- and post-9/11. To enhance this cooperation, the RCMP is now designing comprehensive community programs to engage diverse ethnic, cultural and religious communities across Canada to increase the understanding of mutual goals and concerns, elicit cooperation in making Canada secure from terrorist activity and to ensure appropriate and informed communications should a crisis arise.17
The 2004-2005 Departmental Performance Report notes that the Commissioner consulted with the Cross-Cultural Roundtable on Security, an advisory group that provides the Minister of Public Safety with a better understanding of the inadvertent effects that national security measures could have on Canada's diverse communities.18
Committee Appearances
In appearances before parliamentary committees, three human rights issues in relation to national security were raised: profiling, respect for diversity in police interactions and the definition of terrorism under the Anti-terrorism Act.
Committee members asked the RCMP officials about the use of profiling based on race, religion or nationality in identifying, investigating and arresting individuals. In response, Commissioner Zaccardelli stated the following:
Senator, on the point of racial profiling, we do not do racial profiling. We investigate criminal acts or acts that we believe are criminal in nature. We investigate those acts and try to prosecute those acts as best as we can. We do not consider the person's gender, colour or religion. We simply investigate criminal acts.
We do some profiling. It is not racial profiling. Obviously, in the domain of drugs, for example, we consider certain countries that produce drugs and so on. We consider certain people who might be involved in the drug trade or other contraband, so we try to do that type of profiling. We profile modes of transportation. We never do racial profiling. That is unacceptable in this country. I will never accept that as part of a policy of the RCMP.19
In a separate appearance, Commissioner Zaccardelli raised the issue of cultural sensitivity in response to a question on why some individuals may feel targeted because of their race:
We are working towards a policy of bias-free policing. That is a current, active initiative. You were in Saskatoon and I was in Regina last week. I had my national visible advisory committee with me. There is a Muslim on that committee, and we talked about these issues. We are actively talking about these issues. As you know, I met and spoke with the Muslim Canadian Congress in Toronto. Across the country we are actively talking about racial profiling. I agree with you. I have made it very plain. It is not for me whether I think there is racial profiling. If there is a perception in the minds of certain people, then I have to deal with that, and I have taken that approach. We are trying to be proactive, and I am open to any meeting, at any time, in any place to talk with anyone about these things. The question is how to deal with this, and we are trying. I appeared before the national council dealing with diversity. I will appear before the council again in Vancouver in the fall. We are actively talking about this.
We need to come to terms with racial profiling because it means many things to many people. We have done some research on this, and have found that there were some complaints about the RCMP. The question is whether it was racial profiling or did the person feel that they were treated in a way that did not respect their diversity. It is hard to actually define that….20
The only other reference to a human rights issue in the context of protecting national security arose as a question to the RCMP before a Parliamentary Committee about the definition of terrorism in the ATA, which limits the definition to actions motivated by a political, ideological or religious purpose.21 When asking whether the religious reference in the definition was necessary and whether it might result in profiling, Senator Andreychuk illustrated the concern using the fear of associating with communists, or those believed to be communists, during the Cold War. She was concerned that individuals would similarly be fearful, or have their reputation tainted, because they had happened to attend an event or religious facility where individuals who did pose a threat also attended.22
b. Commission for Public Complaints Against the RCMP:
The Commission for Public Complaints Against the RCMP ("Complaints Commission" ), formerly known as the RCMP Public Complaints Commission, primarily oversees the activities of the RCMP. The Complaints Commission investigates and reviews complaints into the policing activities of the RCMP.
Any member of the public with a complaint relating to the conduct of an RCMP member in the performance of their duties under the RCMP Act or the Witness Protection Program Act may file a complaint with the Complaints Commission.23 The Commission Chairman may also initiate a complaint where he is satisfied that there are reasonable grounds to investigate the conduct of a member.
The complaint is initially referred to the RCMP for investigation. Following a decision by the RCMP Commissioner not to investigate or a final report after an investigation has been completed, the Complainant may refer the complaint to the Complaints Commission for review. After reviewing the complaint and disposition, the Commission Chairman can then take one of several steps. He may prepare a report indicating satisfaction with the disposition of the complaint, request that the Commissioner investigate further, investigate further himself, institute a hearing into the complaint, or prepare a report with such findings as the Chairman sees fit.
The Complaints Commission, where dissatisfied with the RCMP’s handling of the complaint, produces a report of its findings and recommendations. After the Commissioner replies to the report, the final report is forwarded to the Minister, the parties involved and the Commissioner.
Enabling Legislation
The Complaints Commission exists pursuant to the Royal Canadian Mounted Police Act and its Regulations. The Act requires that the Complaints Commission submit to Parliament, through the Minister, an annual report on its activities. Neither the Act nor its Regulations specify what information should be included in these reports.
The Act and its Regulations also do not require the Complaints Commission to consider human rights. However, the Complaints Commission may handle human rights issues depending on the nature of a given complaint.
Reports to Parliament
The Complaints Commission’s enabling legislation and its Regulations contain no obligation to report or consider human rights issues. Under the RCMP Act the Complaints Commission has an obligation to produce annual reports on its activities and under the FAA it has an obligation to produce Reports on Plans and Priorities and Departmental Performance Reports. These reports are tabled before Parliament through the Minister.
The Complaints Commission’s reports reflect similar human rights issues as those raised by the RCMP: general rights-based statements, reports on racial profiling complaints, and strategies for preventing or responding to human rights issues.
Seventeen of the 30 reports make statements about human rights issues that guide the Complaints Commission in its review of RCMP activities.24 For example, in the 2006-2007 Report on Plans and Priorities, the Complaints Commission stated that the following was its strategic outcome for the upcoming year:
Uphold safe communities by promoting Canadian values of respect for human and civil rights, multiculturalism and diversity, equality and fairness, and respect for the rule of law.25
Three of the Complaints Commission’s reports referenced two human rights complaints filed against the RCMP. The 2004-2005 Annual Report states the following:
The CPC is currently reviewing a complaint whereby the RCMP assisted in the execution of 31 arrest warrants under the Immigration Refugee Protection Act and arrested a total of 23 individuals. The complainant alleged, among other things, that the RCMP improperly arrested the 23 Muslim men under suspicion of terrorist-type activities and failed to conduct a complete and thorough investigation into the matter.26
The 2002-2003 Annual Report notes a complaint by an individual who was improperly targeted because of her ethnicity:
A woman complained that the RCMP executed a search warrant at her residence in the middle of the night without justification. Although the complainant was later told that the search had been conducted in the context of suspected terrorism activities, she believes that her family was singled out because of their Arabic descent.27
No recommendations or conclusions flowing from these complaints are noted in any of the annual reports reviewed.28
Finally, the Commission’s reports discuss strategies for preventing or responding to human rights issues. Two of the reports indicate that the Commission Chairman has met with the Cross-Cultural Roundtable on Security to learn more about the barriers preventing some groups from using the public complaints process.29 The Complaints Commission also reported on its outreach activities in three reports.30
In seven of the Complaints Commission’s reports, the Chairman comments on obstacles that the Commission experiences in fulfilling its oversight role. He recommends that there be greater clarity on the Commission’s right to access all information deemed relevant.31 This issue is outlined in greater detail below.
Committee Appearances
In committee appearances, the three human rights issues discussed, as they relate to national security were: human rights generally, racial profiling and recommendations to allow the Complaints Commission to better monitor the RCMP’s actions.
The Complaints Commission Chair made general reference in one appearance to the importance of protecting the rights of Canadians: "Given the extraordinary powers traditionally given to our police services and our national security services, it is vital to have effective oversight of their work in order to ensure that the civil liberties and human rights of all Canadians are preserved."32
As with the RCMP, the Complaints Commission representatives were also questioned on one occasion on complaints they had received on racial profiling. Commission Chair Shirley Heafey indicated that as of June 8, 2005 they had five racial-based complaints, all of which alleged that there were racial reasons for a search.33 No more information on these complaints was provided before the committee.
In this same committee appearance, the Commission Chair made two recommendations on how to ensure the RCMP’s compliance with the guidance provided by legislation and generally accepted policing practices. First, the Comp laints Commission requested that the RCMP grant it more ready access to its documents:
I've been there for almost eight years, and it's a never-ending struggle to try to get the information in some cases. It's not 100%. There are some cases that are benign enough. The information comes in; it's not a big issue. But as soon as there is something controversial--and even when there isn't something controversial--we have to be relentless. We have to keep going back.
For me it's remarkable because of my experience with SIRC. I did the first investigations at SIRC. I was there when it was just set up. I simply went there and asked for the material and I got it. They didn't always like it but they gave it to me. They gave it all to me, and if I asked for more, I got more. I didn't have to make the kinds of efforts I'm making now, writing letters and calling people over and over, waiting sometimes a year, two years, three years to get information.34
This recommendation was reiterated in its 2005 Annual Report.35
The Commission Chair also recommended that the agency be granted audit powers like those of SIRC.36 She argued that without such powers the Commission is limited in its ability to oversee the activities of the RCMP as complaints are rare in certain circumstances. For example, the Commission Chair indicated that she had been notified of a number of alleged instances of racial profiling, but individuals were unwilling to file formal complaints for fear of reprisal by the agency that they depended upon for policing:
Given the powers that we have, if we had an audit power we'd have a lot more work to do, but because of the kinds of people affected since September 11....
Two years ago I spoke at a mosque in London. There were about 600 people in the mosque, and I had an investigator with me, just in case somebody wanted information. I was swarmed at the end. Half the people were trying to get to me and telling me stories, and not one complaint came out of it. But they all had a problem; they all had something to complain about. Whether it was legitimate or not, I don't know, but they wouldn't complain…
We have had a little bit of an increase, but where there's been an increase is in the calls and the talking and the questioning. People ask, "If we complain, what are you going to do? How are you going to do it?" The legislation says if they complain I have to send it to the RCMP to investigate. They're not very happy about that. They have to be investigated by the exact people they're complaining against.
These recommendations are not specifically targeted at reviewing the RCMP’s actions for human rights issues but are nonetheless relevant to such concerns.
2. Canadian Security Intelligence Service and its Monitoring Agencies:
a. Canadian Security Intelligence Service (CSIS)
CSIS is responsible for the collection and analysis of information on potential threats to national security. Where such information requires preventative action or an arrest, CSIS shares this information with the RCMP or other policing agencies. CSIS is also responsible for conducting security checks for individuals seeking employment or other contracts with the federal government or airports and for individuals seeking to immigrate to Canada.
Enabling Legislation
CSIS exists pursuant to the Canadian Security Intelligence Service Act and its Regulation. Neither the Act nor the Regulation requires any consideration of human rights, as defined by the CHRA, in the performance of CSIS’s duties.
CSIS is not required by its own legislation to submit a public annual report, but a report on its operational activities must be submitted to the Minister and the Inspector General.37
The report of the Special [parliamentary] Committee on the Review of the Canadian Security Intelligence Service Act and the Security Offences Act in 1990, entitled In Flux but not in Crisis, required that more information be made available to Parliament and the public on the mandate and function of CSIS.38 In the government’s response, entitled On Course: National Security for the 1990’s, it undertook to table before Parliament an annual report from CSIS that would discuss the "threat environment".39 Since that time such reports have been tabled annually, but no report has been tabled since 2005.
Reports to Parliament
CSIS does not report publicly under its enabling legislation or the Regulation, but rather pursuant to the commitment of the government in 1991. In contrast to the other agencies, CSIS does not produce Reports on Plans and Priorities or Departmental Performance Reports under the FAA. Despite being listed as a federal agency in the schedules to the FAA, national security concerns prevent regular public reporting.40
None of the last 10 annual reports include any reporting on human rights issues; however, two human rights-related issues emerge. First, three of the reports contain statements that human rights issues must be respected and taken into account by CSIS.41 For example:
Investigative action taken by the Service is commensurate with the perceived level of the threat. Action begins with the least intrusive measures appropriate to the situation. Further steps are taken as needed, each requiring higher levels of approvals. At all times, the Service is mindful of individual rights and civil liberties, balancing them against its responsibility to protect all Canadians and Canada’s national security.42
Second, one CSIS report contained statements on strategies implemented to ensure greater cultural awareness among staff and protection of human rights:
The Service also strives to ensure that staff are respectful of diversity and sensitive to all cultures. Employment equity presentations and cultural awareness sessions form part of the Orientation Course for new employees, the Intelligence Officer Entry Training course and other development courses.
In addition, intelligence officers receive ongoing training in cultural awareness and sensitization.43
Committee Appearances
Representatives of CSIS also appear before Parliamentary Committee. In these discussions, three human rights issues were raised in relation to national security: general statements on the respect for individual rights, racial or religious profiling and strategies to protect human rights.
CSIS officials made general comments about respecting rights:
There's no question that one would like to have a system that works very effectively and efficiently, but of course that's a tradeoff to democratic rights and freedoms and so on. It's not for me, at the end of the day, to make a judgment about where the tradeoff should take place. Indeed, that's for you ladies and gentlemen to do more than I.44
Questions on racial, religious, ethnic or political profiling were also raised.45 In response, CSIS stated that they did not do such profiling, as it would not be a useful tool to them in fulfilling their mandate. The following statement by Director Ward Elcock presents such an example:
The concern with racial profiling, as much as anything else, is action that is purely racially based, when it is solely an individual's skin colour or religion that arouses suspicion. The reality for us as an organization is that skin colour and religion do matter. You are looking at a range of factors. Someone may be of interest not only because of his or her religion or perhaps not even because of religion. A person may present himself or herself as a Christian by birth or as a convert but if that person went to a specific school at a specific point of time in a specific part of the world, that person may be of concern to us. Even Caucasians originally from Canada or the United States could be of concern. It is a range of information that causes people to be of concern to us; not their skin colour or religion specifically.46
Strategies for preventing human rights abuses or other improper uses of CSIS’s power were also discussed. The following were specifically raised in committee appearances as aspects of CSIS’s processes or strategies that exist to prevent abuse: CSIS’s formal targeting regime,47 diversity and cultural awareness training,48 and the definition of national security in the CSIS Act.49
b. Inspector General of the Canadian Security Intelligence Service:
The Inspector General of CSIS is responsible for reviewing the reports of CSIS to ensure their accuracy and clarity. The Inspector General also reviews CSIS activities and provides the Minister information on whether CSIS is in compliance with its statutory obligations and operational policies.
Enabling Legislation
The Inspector General exists pursuant to the Canadian Security Intelligence Service Act. Its associated Regulation does not relate to the Inspector General.
CSIS provides a copy of the report both to the Inspector General and the Minister. The Act then requires the Inspector General to submit a certificate to the Minister. This certificate must state the extent to which he is satisfied with CSIS’s report. The certificate must also state whether any of the operational activities during the period of the report were contrary to the Act or Ministerial direction, or involved an unreasonable exercise of CSIS’s powers. This certificate and report are then provided to SIRC.
The Inspector General reports on legislative compliance but is not directed by legislation to report on human rights issues. The reports are not publicly available.
Reports to Parliament
The Inspector General’s Certificates are provided to the Minister and are not generally public documents. Nonetheless several of the past Certificates were obtained in a redacted form. The certificates issued after 2000 were available on the Inspector General’s website; the 1997 Certificate was available on the Public Safety website. There are no Certificates for 1998 and 1999. The 1994-1996 Certificates were obtained through a freedom of information request.
Four of the Certificates referenced the rights of Canadians. Three of those references were specific to compliance with the Charter’s privacy rights and warrant requirements.50 The remaining reference is a general one: "An appropriate balance must always be sought between national security and public safety on the one hand, and the maintenance of the rights and liberties of Canadians on the other."51
However, each of the Inspector General’s reports contains a general statement of her satisfaction that CSIS has complied with all statutory and ministerial direction during the applicable time period.
Committee Appearances
There were no committee appearances by the Inspector General or her representatives in the last 10 years.
c. Security Intelligence Review Committee (SIRC):
SIRC reviews CSIS’s activities through its power to audit all CSIS activities for their completeness, accuracy and legislative compliance and through complaints from members of the public. These audit reports are not publicly available.
Under the CSIS Act, SIRC may investigate a complaint against CSIS if the CSIS Director has not responded or if SIRC is dissatisfied with the response given.
SIRC can also investigate CSIS on matters referred to under the CHRA. Where a minister of the Crown states a complaint filed with the Canadian Human Rights Commission has national security implications, the Commission may dismiss the complaint or refer it to SIRC for investigation.52
Furthermore, SIRC investigates reports from the Minister of Citizenship and Immigration that an individual be denied citizenship because they constitute a threat to Canadian security. Under the Citizenship Act, SIRC must investigate the grounds stated in the report and report back to the Minister and the individual.
SIRC may also review CSIS’s reports, Regulations, reports on the use of warrants, Ministerial directions, and agreements with other agencies.
Enabling Legislation
SIRC exists pursuant to the Canadian Security Intelligence Act, but the Regulation does not relate to it. The CSIS Act directs SIRC to submit an annual report on its activities, which the Minister then lays before Parliament. SIRC is also required to provide such special reports as requested by the Minister and must report to the Minister, Director of CSIS and the Complainant on its findings following any investigation. The statute does not require any of these reports to include information on human rights issues. However, reports following investigations based on complaints of discrimination under the CHRA will, by necessity, include a discussion of human rights issues.
The CSIS Act does not direct SIRC to consider human rights issues in fulfilling its mandate, other than in the investigation of complaints under the CHRA, where they must be considered.
Reports to Parliament
SIRC reports pursuant to its enabling statute and the FAA. SIRC’s last 10 annual reports and the last 10 Reports on Plans and Priorities and Departmental Performance Reports were reviewed. However, the 1999-2000 Report on Plans and Priorities was unavailable. This review uncovered general statements on rights-protection and allegations of racial or religious discrimination.
All 29 reports reviewed made reference to the collection of information while guarding individual’s or citizen’s rights. In its Departmental Performance Report from 2005-2006, SIRC states that its reason for existence is:
To provide assurance to the Parliament of Canada and through it, to Canadians, that CSIS is complying with law, policy and Ministerial Direction in the performance of its duties and functions. SIRC’s mission is to protect Canadians’ rights by ensuring that CSIS acts within the law.53
On occasion, CSIS shares information that it acquires with overseas governments. In each of its annual reports, SIRC commented on the importance of taking care not to share information with countries "with poor human rights records".54
A general statement in the 1997-1998 Annual Report specifically referenced the CHRA:
Operational policies [of CSIS], some of which are sensitive and potentially intrusive, must comply with Ministerial Direction, the CSIS Act, the Canadian Human Rights Act, and other relevant legislation.55
In the 2004 annual report, SIRC also maintained that it is satisfied that the security profiles used by CSIS did not target individuals based on ethnicity or religion.56 SIRC received two complaints against CSIS based on racial and religious discrimination. The first complainant alleged loss of employment due to racial discrimination. The second complainant alleged to have been denied airport security clearance based on religion. In both cases SIRC found the allegations unsubstantiated.
Nine of the annual reports contained a statement that CSIS took care not to impede "lawful advocacy, protest, and dissent" or to negatively impact sensitive institutions such as religious organizations, the media, and political institutions in its investigations.57
Committee Appearances
Discussion before parliamentary committees revealed general statements on the respect of individual rights and racial and religious profiling.
In three appearances, SIRC representatives made general statements on the need to "balance" individual rights when protecting national security,58 for example:
In conclusion, as the chair of SIRC, I believe its work is more vital than ever and is a vital part of the framework established by Parliament to balance the need to protect both the state and the rights of the individual. Given the new world we suddenly find ourselves in, the need to maintain that essential balance is more important today than it has ever been. The committee as a whole will follow your work with great interest.59
When asked whether SIRC had received an increase in complaints since September 11, 2001 or whether they had received complaints of racial profiling, Tim Farr, Associate Executive Director, stated:
No. There hasn't been a spike under section 41 of the act--that's what Marian was referring to, "any act or thing done by the Service"--in the number of complaints since 9/11. We haven't received a specific complaint related to racial profiling, nor have we, when we've conducted our reviews, come across any evidence that would suggest they're engaging in this practice. But there is a lot of anecdotal evidence that has been raised, and certainly we're aware of the allegations that have been made and reported in the media, and we take this pretty seriously.60
In two other appearances, a committee member asked questions about the targeting of Quebec sovereigntists during the period leading up to the Quebec referendum.61