Making Sense of Two Proposals for RCMP Review - Part 2

Link to Part 1.

Part 2: The O’Connor Report on A New Review Mechanism for the RCMP’s National Security Activities

The Task Force report discussed in part 1 made recommendations that encompassed both review and oversight. Commissioner O’Connor differentiates between the two:

To summarize, a review body assesses the activities of an organization against standards such as lawfulness and propriety and delivers reports, which often contain recommendations, to those in government who are politically responsible for the organization. In contrast, an oversight body performs the same functions but plays a more direct role in the management of the organization.

He suggests that RCMP national security activities require a new review mechanism, but not an oversight body. His rationale is that such a body could intrude on the principle of police independence, potentially diminish the accountability of the RCMP to the government, and potentially compromise itself by getting too close to a sensitive investigation. Ultimately, O’Connor argues that a review body without oversight responsibilities would be able to exercise maximum critical distance and independence.

Several specific aspects of the RCMPs national security activities are flagged by O’Connor as necessitating an enhanced review mechanism, which I summarize below:

1. Lack of Transparency: The secrecy associated with national security investigations coupled with the preemptive / preventative nature of such activities in the contemporary context means that a complaints process such as the CPC cannot be counted on to ensure accountability. Individual rights and procedural rules may be violated in ways that are not immediately apparent. Accordingly, O’Connor recommends that the new RCMP review body be able to self-initiate reviews in a manner similar to CSIS’ review body, SIRC.

2. Increased Information Sharing: The Arar Affair made it abundantly clear that the forms of inter-agency information sharing that characterize national security investigations exceed the capacity of agency-specific review bodies. O’Connor recommends that the new RCMP review body pay particular attention to the policing of RCMP info-sharing practices .

3. Increased International Cooperation: As with the above point, but in relation to transnational information-sharing. The O’Connor Commission found that the RCMP’s existing policies were sorely lacking in this regard, particularly as regards the human rights implications that might arise from the transmission or receipt of information (as illustrated by the Arar case and similar instances). O’Connor argues that a new RCMP review body should be able to ensure that decisions around this sort of info-sharing are subject to accountability and independent review.

4. Potential for Racial, Ethnic, and Religious Profiling: O’Connor recognizes that contemporary national security investigations create a heightened risk of profiling, and that an enhanced review body is necessary to ensure accountability on this matter. The subtext is that systematic racial profiling cannot be addressed through individual complaints.

5. Lack of Judicial Scrutiny: The quantity and scope of national security investigations greatly exceeds the number of cases that proceed to prosecution - the stage where judicial scrutiny can provide accountability for police actions. Further, the secrecy associated with these activities means that even when judicial pre-authorization is sought for particular investigative techniques, it is necessarily done ex parte, without adversarial contestation. O’Connor concludes that the comparative lack of judicial scrutiny must be compensated for by an enhanced review capacity.

Based on these observations, and given the overarching objective of ensuring that the RCMP is held accountable for its national security activities, O’Connor makes the following recommendations (again, summarized. See the O’Connor Report, starting at p. 603 for an official summary of recommendations):

1. An Independent, Arms-length review and complaints mechanism with enhanced powers should be created.

2. This new body should be located within a restructured CPC, and the amalgamated body should be renamed the Independent Complaints and National Security Review Agency (ICRA).

3. ICRA’s mandate should allow it to conduct self-initiated reviews of RCMP national security activities. ICRA should also be able to undertake investigations and report on complaints made by individuals and third parties. ICRA’s mandate should also allow it to conduct joint reviews or investigations with SIRC and the CSE Commissioner into integrated national security operations involving the RCMP. Additionally, ICRA should be able to initiate investigations or reviews at the request of the Minister of Public Safety. Beyond this, at the request of the Governor in Council, ICRA should be have the authority to conduct reviews or investigations into national security activities of other government departments or employees. ICRA would be mandated to make recommendations to the Minister of Public Safety and, in the case of investigations outside of the Public Safety portfolio, to other relevant ministers.

4. ICRA should have extensive investigative powers, similar to those of public inquiries under the Inquiries Act. This should include the power to subpoena documents and compel testimony. ICRA should also have the power to stay a review so as not to interfere with an ongoing criminal investigation or prosecution. ICRA should have the power to conduct public education programs and provide information concerning its role and activities, and to commission research on relevant matters.

5. ICRA should be able to refer complaints to the RCMP for investigation or to investigate them itself, and to review complaints investigated by the RCMP. ICRA should be able to dismiss a complaint at any complaint at any stage (on the basis that it is trivial, frivolous, vexatious, or made in bad faith). ICRA should also be able to undertake mediation and informal complaint resolution. ICRA should be able to hear representations from members of the RCMP and the complainant, and / or counsel for either. ICRA should be able to conduct hearings pursuant to a complaint in private when ongoing investigations, confidentiality, or national security concerns are at issue. ICRA should be able to appoint security-cleared counsel independent of the RCMP or government to test official claims around confidentiality or disclosure of information. ICRA should be able to seek the opinions or comments of other accountability bodies.

6. ICRA should be structured so that complaints and review related to RCMP national security activities are addressed only by specified members (with the goal of inspiring public confidence in the process - O’Connor recommends an appointment process similar to SIRC).

7. ICRA should prepare reports for the Minister of Public Safety and the Commissioner of the RCMP on an annual basis (an edited version should be given to Parliament), and following individual complaints or reviews - the latter should include non-binding findings and recommendations.

8. ICRA should have an adequate budget to fulfill its mandate.

9. Quoting directly: “There should be independent review, including complaint investigation and self-initiated review, for the national security activities of the Canada Border Services Agency, Citizenship and Immigration Canada, Transport Canada, the Financial Transactions and Reports Analysis Centre of Canada and Foreign Affairs and International Trade Canada.” This is a hugely important recommendation. O’Connor recognizes the lack of oversight associated with some of the organizations that RCMP interacts with in national security investigations. In order for an integrated national security structure to be accountable, its individual components must include their own review mechanisms. Even if an ideal RCMP national security review body were realized, it would be unable to ensure maximum accountability in an collaborative environment where the RCMP’s partners are not subject to similar accountability mechanisms.

10. O’Connor recommends that CBSA be brought under the ICRA review mandate, and that the other agencies mentioned in point 9 be moved under SIRC’s mandate.

11. ‘Statutory gateways’ should be created to allow for information-sharing and cooperation between ICRA and other Canadian national security review bodies.

12. Again, quoting directly: “The government should establish a committee, to be known as the Integrated National Security Review Coordinating Committee, comprising the chairs of ICRA and the Security Intelligence Review Committee, the Communications Security Establishment Commissioner and an outside person to act as Committee chair.

INSRCC would have the following mandate:

• to ensure that the statutory gateways among the independent review bodies operate effectively;

• to take steps to avoid duplicative reviews;

• to provide a centralized intake mechanism for complaints regarding the national security activities of federal entities;

• to report on accountability issues relating to practices and trends in the area of national security in Canada, including the effects of those practices and trends on human rights and freedoms;

• to conduct public information programs with respect to its mandate, especially the complaint intake aspect; and

• to initiate discussion for co-operative review with independent review bodies for provincial and municipal police forces involved in national security activities.”

13. In five years, the government should appoint an independent person to investigate the framework for ICCRA set out by O’Connor’s report.

Between this post and the previous post on ICCOR, I hope to have provided a sufficient summary of both proposed review mechanisms to provide a basis for comparison and analysis in the third and final post in this series, which will be up tomorrow.

- Mike