Home Programs National security Air India review Lessons to be learned: The report of the Honourable Bob Rae 7. Issues for further review

7. Issues for further review

The conclusion of my work is that a further inquiry should be held to provide satisfactory answers to the following questions:

1. Was the assessment by Canadian government officials of the potential threat of Sikh terrorism in the period prior to 1985 adequate in light of the information reasonably available at
   the time, and was there sufficient co-ordination of a response by Canadian government agencies? If there were deficiencies in the assessment, and in the response, have systemic issues been effectively resolved, such that similar errors would not be committed today?
2. In the periods before and after June 23, 1985, were there problems in the relationship between CSIS and the RCMP and any other government departments or agencies that detrimentally affected the surveillance of terrorist suspects and the investigation of the Air India bombings, and have these problems now been resolved? If not, what further changes in practice and/or legislation are required to ensure an effective co-operation?
3. The investigation and prosecutions in the Air India matter point to the difficulty of establishing a reliable and workable relationship between security intelligence and evidence that can be used in a criminal trial. The intelligence/evidence/enforcement conundrum is not unique to Canada. Drawing on our own and other closely related experiences, how can we deal with these relationships in an effective way today?
4. There were grievous breaches of aviation security in the Air India bombing. Has Canada learned enough from the Air India bombing in terms of its public policy in this area, and what further changes in legislation, regulation, and practice are required?

I see each of these questions as falling clearly into the category of issues that still need to be addressed. The first speaks to the understandable concern that a threat, once identified, must be dealt with effectively. This is not a case of “Monday morning quarterbacking”. Any analysis has to deal with the context of the time and with people working with imperfect knowledge. But a review of the record does leave a sense that there are still important issues to be faced in the area of threat assessment and subsequent action.

The second and third issues follow equally clearly from the public record and my interviews with officials. The splitting off of security intelligence functions from the RCMP, and the creation of the new agency, CSIS, came just at the time that terrorism was mounting as a source of international concern. At the time of the split, counter-intelligence (as opposed to counter-terrorism) took up 80% of the resources of CSIS. The Cold War was very much alive, and the world of counter-intelligence and counter-espionage in the period after 1945 had created a culture of secrecy and only telling others on a “need to know” basis deeply pervaded the new agency.

The 9/11 Commission Report in the United States is full of examples of the difficulties posed to effective counter-terrorist strategies by the persistence of “stovepipes and firewalls” between police and security officials. Agencies were notoriously reluctant to share information, and were not able to co-operate sufficiently to disrupt threats to national security. There is, unfortunately, little comfort in knowing that Canada has not been alone in its difficulties in this area. The issue to be faced here is whether anything was seriously wrong in the institutional relationship between CSIS and the RCMP, whether those issues have been correctly identified by both agencies, as well as the government, and whether the relationships today are such that we can say with confidence that our security and police operations can face any terrorist threats with a sense of confidence that co-operation and consultation are the order of the day.

The intelligence-evidence debate is equally important. If an agency believes that its mission does not include law enforcement, it should hardly be surprising that its agents do not believe they are in the business of collecting evidence for use in a trial. But this misses the point that in an age where terrorism and its ancillary activities are clearly crimes, the surveillance of potentially violent behaviour may ultimately be connected to law enforcement. Similarly, police officers are inevitably implicated in the collecting of information and intelligence that relate to the commission of a violent crime in the furtherance of a terrorist objective.

Commissioner O’Connor’s inquiry into the Arar case touches on these issues as well. At what point does “need to share” replace “need to know” as the prevailing culture? How do we manage the issues of privacy and rights of the subject when the firewalls between agencies come down? The test for a warrant which allows interception of communications under the CSIS Act and the provision of similar warrants under the Criminal Code of Canada are different. How do we ensure that we have achieved the right mix of protecting the rights of the individual and the need to ensure the protection of the security of the citizenry?

The fourth question points to a need to make sure we have learned all the lessons we need to learn from the breaches of aviation security at the time of the Air India bombing. As I have said above, this question needs to be answered by someone. If it is covered by the CATSA review, there is no need for it to be added as a subject for this proposed inquiry.