ACCESS AND PRIVACY CONFERENCE - 2005

Speech Delivered By

Shirley Heafey
Chair
Commission For Public Complaints Against the RCMP

The Need for Civilian Review of the RCMP on National Security Issues

Edmonton, Alberta
June 17, 2005

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Thank you for your kind introduction.

As you just heard, I'm Chair of the Commission for Public Complaints Against the RCMP - So you may be wondering, as I did at first, why I was invited to speak to an Access and Privacy conference.

But as I thought about it, I realized how much I have in common with all of you.

Every day, I handle personal information that needs protection.

Every day, I think about the challenges of getting access to information held by a large and powerful government agency: The Royal Canadian Mounted Police

But we have more in common: A good number of you in this room are political appointees, and the rest of you probably work for one.

And that's not always easy.

Those of us who are heads of agencies are sometimes depicted as puppets of the government that appointed us. I have seen that implied in print about me - many times.

For the eight years that I've been in this job, I've been grateful for the opportunity I was given to serve this country and some very important principles.

But, we often have disturbing decisions to make.

Do you remember the first time you had to make a hard decision in your new job? When your throat was tight and a small army of butterflies was flapping in your stomach and the only thing you could do was go with your gut? Do you remember that?

I do.

A couple of months after M. Chrétien and his Cabinet had passed an order-in-council making me Chair of the Commission for three years, the infamous APEC conference took place in Vancouver.

Protesters and police - mainly the RCMP - clashed and we received more than 50 complaints. Many of them alleged political interference in the work of the RCMP. They alleged the Prime Minister and his staff had ordered the RCMP to harass the protesters.

The television images were pretty graphic and my gut told me that I had to conduct an investigation. Three months into my 3-year mandate and I was taking on the Prime Minister of Canada.

I don't mind saying - I was apprehensive because I did not really know what I was in for. But I went ahead.

Months later, unable to pry a single piece of paper out of the RCMP relating to the event, I called a public hearing so I could invoke the subpoena power that we have only when a hearing is called.

It turned out pretty much as I had anticipated. Thousands of documents became available from the RCMP and, as I had feared, a media circus ensued. I was called a puppet of the government and, in turn, the government was accused of covering up because it kept insisting on letting the Commission do its work.

As difficult as it was for me, in the end, it was a positive experience.

No one from the government and no one from Mr. Chrétien's office ever tried to influence me. I was allowed to do my job. I got the resources I needed. And when I needed a new member appointed quickly to conduct the hearing - that was former Justice Ted Hughes - the government did exactly what I asked and did it promptly.

The hearing - as protracted as it was - produced some good results: A new respect for the rights of demonstrators emerged as did a new understanding of what it takes for the police to ensure the security of internationally protected persons.

The RCMP Commissioner endorsed and implemented most of the recommendations made by Mr. Hughes.

The next time I had to consult my gut on a decision, it was a little bit easier - not much - just a little.

Have any of you had a similar experience?

The work we're entrusted with can be hard. It takes resolve.

We sometimes have to look a government in the eye and say they were wrong. And sometimes we have to take a government to court - the very government that appointed us to our jobs.

And we have to do it - win or lose - because it's the right thing to do. We have had to do it and I know the Federal Information Commissioner, John Reid, knows what I am talking about.

Sometimes we embark on something, not knowing what we'll find and sometimes we end up looking for skeletons in the closets of the powerful.

Last year, the Commission received a number of complaints from former residents of the Kingsclear Youth Training Centre in New Brunswick.

This was a juvenile detention facility that was also designated as a place for boys in need of protection.

Instead of protection, many of the boys were systematically subjected to physical and sexual abuse.

We know that for a fact: One guard was convicted on some 30 counts.

The complainants allege that justice was denied because the RCMP conducted an inadequate investigation into their claims of abuse.

Even worse, perhaps, they allege that a member of the RCMP also engaged in such abuse and the RCMP tried to cover up the criminal acts of one of their own.

This was another one of those gut-wrenching decisions - because, prior to being Commissioner, the present Commissioner of the RCMP held a supervisory post at the RCMP's "J" Division and has been specifically named by the complainants.

I decided to go forward - which means, I will be investigating the role of the present Commissioner in relation to these allegations of cover-up.

This decision was difficult but the investigation got off to a good start. Commissioner Zaccardelli made a commitment to me to co-operate in any way he could to assist the investigation.

And he has done that.

That's the way it should work. But you all know that's not always the way it happens. Too often, we meet resistance and have to struggle to get every piece of paper necessary to do our jobs.

In our jobs, we sometimes see difficult things that need to be done and we wonder if we have the stamina and courage to pursue them.

Knowing that we're going to encounter opposition and, much worse, indifference.

And that brings me to the topic that's next to my name on today's agenda: Balancing Canada's Security with Canadians' Rights.

The Anti-Terrorism Act provoked much public debate over the appropriate balance to strike between rights, on the one hand, and security on the other.

In the dark days following 9/11, the RCMP assumed an expanded role in the protection of national security. Shortly after that, rumblings were heard about 'racial profiling' and intimidating investigation tactics.

I've been told of Muslims being visited at work by the RCMP. They were being asked questions like: Do you pray 5 times a day and what do you think about 'Al Quaeda'. And then told that they don't need a lawyer. Told to co-operate and be good citizens.

These are stories that people have told me. I haven't investigated these stories because, with two exceptions, no one telling me this stuff has lodged a complaint with my Commission.

And the way things are at present, I really can't do it without them.

Because - Firstly, I need a complaint from a member of the public, and, secondly, I need the complainant's co-operation and many people are just too afraid of retaliation to complain.

That's not hard to understand. To lodge a complaint is to invite more attention, from police and government officials.

Not everyone living in this country grew up trusting police and government officials to protect them.

When the Anti-Terrorism Act was being considered by Parliament, there was much focus on preventative detention and judicial investigations. That's not surprising, because the legislation was intended to prevent terrorist acts, not prosecute terrorists after the damage was done.

But, few people appreciated the significance of the definition of terrorism in the legislation.

Terrorism is, in effect, bad things done by someone for political, ideological or religious reasons.

Since 9/11, we know for sure that the RCMP is back in the national security business. They didn't ask for it but they got it.

We also know the legislation has made it clear that the political, ideological and religious inclinations of any individual targeted in a national security investigation is fair game. Police did not one day decide to do this. They were given the legal right to do it.

The preventive nature of the Anti-Terrorism Act means the police must cast their net of suspicion widely. How they do it should concern us.

We have heard, for example, that Mr. Arar came to the attention of authorities because he had an apartment lease witnessed by another person who was under scrutiny. This is important because it means that a large number of people can get caught in the crosshairs of a preventive national security investigation.

Given the oftentimes frustrating work of policing, you can see the potential for abuse and misuse of the law if there is no effective accountability mechanism in place.

Whether or not you agree with the law as written and passed by Parliament - that's not for us to debate today - it doesn't take much imagination to see how such investigations could lead to stories of abusive tactics.

I am not suggesting any malice on the part of the RCMP or any other police force. They are trying to do their jobs and to keep us all safe. The challenges they face are enormous.

But infringement of the rights and liberties of any part of the population, even with the best of intentions, cannot be condoned by a democratic country concerned with striking the appropriate balance between rights and security.

To ensure police tactics used in the post-9/11 environment are appropriate, we need something other than complaints to trigger an independent Review Mechanism.

A complaints-driven system is just not adequate to the task.

The need for an effective, independent mechanism to review the national security activities of the RCMP is indisputable.

When Mr. Martin became Prime Minister in December 2003, he immediately committed the Government of Canada to the establishment of an appropriate mechanism.

To that end, when Mr. Justice O'Connor was appointed to inquire into the circumstances surrounding the deportation of Canadian citizen Maher Arar from the U.S. to Syria, he was also asked to make such recommendations as he saw fit about the best way to review the national security activities of the RCMP.

My Commission devoted a great deal of time and effort to formulating our submission to Mr. Justice O'Connor because effective civilian review of national security activities is so critical to protecting our human, civil and constitutional rights.

We had a number of suggestions, only one of which I will focus on today: The need for an audit power.

As Chair of the Commission, I have the ability to personally make a complaint about RCMP conduct. But I can't exercise that ability if I don't find out about an incident or practice that might give rise to a complaint.

Unless an incident is publicized and comes to my attention through the media, for example, I can do nothing.

And event if I learn of an incident, I have to take great care not to further traumatize the person involved by embroiling them in an investigation they don't want to be a part of.

So it is very difficult for me to proceed with my own complaint unless I am sure the person involved is willing.

An audit power, on the other hand, is a review of selected files where no complaint has been made.

An audit doesn't require any suggestion of misconduct and does not necessarily require the targeted individual to know about, or be involved in, the review.

With an audit power, I could, for example, review 10 files where search warrants were issued in respect of suspected terrorist activity. Or I could ask to see 10 files where people were interviewed for national security reasons at their place of work.

The security intelligence review committee - SIRC - which reviews the work of the Canadian Security Intelligence Service - CSIS - has an audit power.

Twenty years ago, when CSIS and SIRC were established, the grant of such a power to SIRC was seen as necessary because of the secretive, intrusive nature of security intelligence work.

Well, the RCMP are heavily involved in just that kind of work today. So, why aren't they subject to the same kind of review as CSIS?

So I am strongly of the view that an effective mechanism for the review of the national security activities of the RCMP must include an audit power.

That is the only way we can truly determine if the laws passed by Parliament are being used by the RCMP in a way that respects the rights and liberties of all our citizens.

Any review mechanism that is dependent on complaints alone will not allow us to ensure an appropriate balance between rights and security.

I spoke earlier of the resolve we - the people in this room - sometimes need to do our jobs. Given that, is it fair to have the quality of our civilian review process dependent on the courage of private individuals?

People who may be visible minorities, people who may or may not be citizens, people who have only recently come to this country and have not yet shed their fear of police and governments.

I don't think so. We are either a democracy or we're not. We can't allow people's human and constitutional rights to be violated in Canada.

To advocate for an effective civilian review process to ensure that an appropriate balance is struck between rights and security is not to impugn the RCMP.

Its long, proud history and the stellar reputation that it enjoys nationally and internationally is well justified.

But that reputation cannot exempt it from its continuing duty to account to the people it serves.

You know, in some circles, it is almost regarded as unpatriotic to question or critique the RCMP.

When I have asked hard questions about matters I am investigating, I have had members of the RCMP say: Don't you trust me?

What's the answer to that one?

I have been thinking a lot lately about the public trust. Recently, I attended a leaders roundtable - organized by the Conference Board of Canada - that focused on rebuilding trust in both the public and private sectors.

Public trust is a fragile thing: easy to squander and very hard to recapture.

Political and business leaders - you and I, all government agencies - must bear this in mind every day.

We nurture public trust with effective processes that reflect checks and balances - that's why a civilian review mechanism for the national security activities of the RCMP must include a random audit power.

As leaders in our fields, we nurture public trust by doing the best we can everyday - even when our throats get tight and the butterflies are fluttering about in our stomachs.

I am not suggesting that we won't make mistakes. We will.

But I don't think public trust is dependent on perfection. Reasonable people know that other good and reasonable people make mistakes.

And I can live with my mistakes if, in good conscience, I can explain my actions to Parliament or to the public and say I did my very best.

I said earlier that I have been asked by members of the RCMP: Don't you trust me?

Trusting the RCMP is not the point. My job is to ask questions, get answers and make findings. This is the essence of accountability - the proper way for the RCMP to be accountable to the people they serve, through me.

If I am only here to take their word, then I serve no purpose.

Let me finish by proposing a partial answer to the question of how we balance rights and security and that is.effective civilian review.

And, to the RCMP, I say: Accept it for what it can do for you.. work with it... and be better for it.