Committee on Public Safety and National Security report urges government to create independent national security review body

This month, the Standing Committee on Public Safety and National Security issued its "Review of the Findings and Recommendations Arising From the Iacobucci and O'Connor Inquiries." These inquiries exposed that Mahar Arar, Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Narreddin were victims of "inaccurate intelligence sharing practices by Canadian security agencies..." The inquiries also "...exposed the glaring lack of civilian oversight of our national security activities." The report begins with the recognition that in the wake of 9/11, anti-terrorism efforts have "resulted in the racial profiling of members of the Muslim and Arab communities ..."

In its report, the Committee expressed strong concerns that all of the O'Connor recommendations had not been implemented, particularly, those concerning oversight. It issued the following five recommendations:

RECOMMENDATION 1:
The Committee reiterates the recommendation made in its report presented to the House of Commons on January 30, 20071 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.

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 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar and the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki,
Ahmad Abou-Elmaati and Muayyed Nureddin.

RECOMMENDATION 3:
In consideration of the harm done to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin, the Committee recommends:

• That the Government of Canada apologize officially to Mr. Abdullah Almalki, Mr. Ahmad Abbou-Elmaati and Mr. Muayyed Nureddin.

• That the Government of Canada allow for compensation to be paid to Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin as reparation for the suffering they endured and the difficulties
they encountered.

• 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 Mr. Almalki, Mr. Abou-Elmaati and Mr. Nureddin and members of their families.

RECOMMENDATION 4:
The Committee recommends that the Government of Canada issue a clear ministerial directive against torture and the use of information obtained from torture for all departments and agencies responsible for national security. The ministerial directive 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.

RECOMMENDATION 5:
The Committee recommends, once again, that Bill C-81, introduced in the 38th Parliament, An Act to Establish the National Security Committee of Parliamentarians, or a variation of it, be introduced in Parliament at the earliest opportunity.

Posted by Ashley Paterson (Law II) (LEAP Summer Intern)

Military police watchdog probes transfers to torture

Established in the wake of civilian abuse by members of the Canadian Airborne Regiment in Somalia in 1993 – and the failure of a Military Police (MP) force too integrated into the chain of command to adequately investigate this abuse - the Military Police Complaints Commission (the MPCC) provides independent, civilian oversight for the Canadian Forces military police. At times, however, together with its civilian oversight cousin, the Canadian Forces Ombudsman, the MPCC has seemed somewhat a “bit player” in promoting real reform and accountability. The main story – and this is as it should be – was taking place in the wide-reaching reforms in military justice ushered in by the public inquiries which followed the Somalia affair. These reforms included establishing a Canadian Forces National Investigation Service which reports outside the regular chain of command directly to the Canadian Forces Provost Marshall. In most years since its inception, the MPCC has had a low caseload and rarely exercised its power to hold public hearings.

However, the MPCC’s importance as a civilian oversight mechanism for the Canadian Forces’ roughly 1200 MPs has become apparent in the last year. First of all, its 2008 case load – with 92 new files opened - was the highest since its creation ten years ago. Second, its current probe into the activities of Canadian military police in Afghanistan promises real relevancy and, more importantly, the possibility of shining light on the treatment of detainees by Canadian troops. With a 2008 Federal Court ruling (confirmed by the Federal Court of Appeal with application for leave to the Supreme Court of Canada dismissed in May 2009) that the Charter does not apply to the actions of Canadian Forces personnel in their treatment of Afghan citizens in Afghanistan – even when detainees are under the Forces’ direct control – the judiciary appears to have foreclosed the possibility of judicial oversight of expeditionary military action. Furthermore, the military’s internal investigatory procedures – both the investigation ordered by the Provost Marshall and the Boards of Inquiry ordered by top brass – have found no wrongdoing. And yet there are many unanswered questions. Chief among them is this: why did the Canadian Forces - contrary to our obligations under International Humanitarian Law and the UN Torture Convention - transfer Afghan detainees to prospective torture at the hands of local authorities? And what omissions or commissions did MPs commit in the transfers to torture?

The MPCC’s decision to hold a Public Hearing into the Afghan detainees came in March 2008, roughly one year after its investigation was launched and after the failure of various government departments to fully provide the MPCC with documents necessary for its investigation. Hearings began at the end of May of this year and, after 5 days of establishing the wider context of the Canadian Forces engagement in Afghanistan, will reconvene in October.

It should be noted that the MPCC’s hearings are operating under a cloud. The federal government has brought an application for judicial review into the Commission’s decision to hold a public hearing, arguing that the inquiry does not involve members of the military police in the performance of any “policing duties or functions”. Fortunately, the government’s request for a stay of the hearings until the full judicial review application is heard was refused by the Federal Court in April 2009.

One of the complainants before the MPCC, Ottawa University’s Prof. Amir Attaran, has criticised commission counsel for taking a non-adversarial approach at the start of the May hearings. However, given the Commission’s determination to go ahead with the hearing despite vigorous government opposition, and its wide subpoena powers, the hearings this coming fall do offer the best prospect of accountability for the transfers to torture.

Posted by Professor Christopher Waters, University of Windsor, Faculty of Law

Executive Director of Alberta's Serious Incident Response Team calls for more cilivian involvement

Clifton Purvis, the ED of Alberta's Serious Incident Response Team, the unit that investigates serious instances of police misconduct, has called for more civilian involvement of investigations. As he put it, "my personal vision would see a much greater balance so that we'd have about a 50-50 split between civilian officers and sworn police officers." The current team is composed of 12 investigators --- four civilian and eight officers from the RCMP and Edmonton and Calgary Police Services.

Harper government to cut funding of RCMP police complaints commission

According to estimates tabled by the federal Treasury Board, the RCMP Public Complainants Commission which oversees the RCMP will face a substantial cut in funding from the federal government. Commission chair Paul Kennedy has warned that the cuts will force him to cut a policy division created in 2007 to explore the use of tasers and which was responsible for the creation of the new RCMP policy. See the discussion of the new policy in the February 13, 2009 blog entry entitled "RCMP admit dangers of tasers and establish new policy for use and training." The policy division is currently conducting research on how the police deal with mentally ill suspects.

Alone and Cold: The Davies Commission Inquiry into the Death of Frank Paul

Ten years in the making, in a 445 page report, Commissioner William Davies, a retired judge, gave a scathing account of the circumstances that led to the death of Frank Paul. Frank Paul, a Mi’kmaq man, succumbed to hypothermia after being dumped into an alley. Earlier on that night, he had been placed in a holding cell by the Vancouver Police Department.

In his report, “Alone and Cold: The Davies Commission Inquiry into the Death of Frank Paul,” Commissioner Davies criticizes both police conduct on the night of December 5, 1998 and the VPD investigation that followed. Citing the inadequacies of the police investigation as being “methodically flawed,” he noted that the investigating officer did not contact several key witnesses. He further stated that the systemic flaws in the investigation procedures of the VPD are so severe that it is not feasible for even external police investigating the VPD. Finally, in a recommendation that has been gaining popularity in British Columbia, he stated that a civilian body should be established to investigate the custodial deaths of civilians. The recommendations relating to police investigations are directed towards the province’s 11 municipal police forces that police roughly 30% of the population, while the RCMP police 1/3 of the province.

What are significant are his findings on death in police custody, an issue that has garnered much attention in recent years. Commissioner Davies recommended a broader interpretation of what constitutes a death in police custody. Davies stated that “a death in a police department jail cell, a death resulting from an officer’s use of force or motor vehicle, or a death arising from some other form of police interaction with the deceased.” While circumstances of police custody deaths will not be limited to the foregoing, the Commissioner has recommended for an expansive framework to the circumstances, situations and police actions that result in the custodial deaths of civilians.

The Commissioner looked at the actions of other public bodies as well. During the inquiry, the Commissioner had argued that he had the jurisdiction to inquire into the reasons the Criminal Justice Branch of the Ministry of Attorney General did not advance criminal charges against any of the involved police officers. The British Columbia Supreme Court held that the Commission could hear this evidence from the Crown. However, the Criminal Justice Branch appealed this decision and is currently on reserve with the BC Court of Appeal.

The BC Coroners Service was criticized for failing to inform the family of his death and for failing to keep an accurate and complete record of his death, citing it initially as a hit and run, rather than a death in police custody. Also, cognizant of Mr. Paul’s personal circumstances, Davies recommended the establishment of a civilian run alcoholic treatment program for chronic homeless alcoholics.

Posted by Mandy Cheema (Windsor Law III)

BC government introduces legislation to amend police complaints process

Last week, the British Columbia Legislature introduced Bill 6 -- Police (Misconduct, Complaints, Investigations, Discipline and Proceedings) Amendment Act, 2009. Solicitor-General John van Dongen stated that the legislation is intended to give effect to the recommendations of Justice Josiah Wood who prepared a 2007 report on the BC complaints process. Some of the changes include:

"— Making it mandatory for external police forces to investigate any in-custody death or serious injury.

— Empowering the complaints commissioner, not the police force facing allegations, to decide how to proceed with a complaint.

— Allowing the commissioner to track all investigations in real time.

— Compelling police officers to provide statements within five days of a request.

— Increasing the maximum-allowable suspension for misconduct to 30 days from five."

Posted by Professor Tanovich

Increased civilian oversight legislation brewing in Manitoba

In Manitoba, the Doer government is proposing changes to the Police Act which would provide for meaningful civilian oversight of police forces in cases involving death or serious bodily harm. One of the proposals is to create an Independent Investigation Unit, like the SIU in Ontario, which would handle these kinds of cases. The Unit would also investigate other allegations against the police where there is a public interest in having an independent investigation. Public consultations are scheduled to begin at the end of February on the proposed changes. For more information, see Police Act Consulations: Background and Issues; and, Police Act Consultations: Questionnaire.

Currently, incidents involving serious injury or death are handled in accordance with a 2004 protocol. Under this protocol, the police agency involved decides whether to investigate the incident or to call in an outside agency. That decision is made by the Chief of Police. The results of the investigation are then reviewed by an independent legal counsel appointed by Manitoba Justice to determine if criminal charges should be laid. The Provincial Police Act also has a regulation requiring a major police department not involved in the incident to review the completed investigation in cases involving a police shooting and injury or death. Finally, there is the Fatality Inquiries Act which requires an inquest whenever a person has died in police custody.

Civilian oversight for non-criminal conduct is the domain of the Law Enforcement Review Agency (LERA). To learn more about LERA, click here. Criminal conduct is investigated by the police through Police Professional Standards Units.

Posted by Professor Tanovich

Reflections on Scadding Court Summit on Bill 103

In May of 2007, the Liberal government passed Bill 103: An Act to establish an Independent Police Review Director and create a new public complaints process by amending the Police Services Act. This introduced a much-needed overhaul of the complaints system that was previously instituted in 1997. It came on the heels of a report by former Chief Justice Patrick LeSage on the complaints process in Ontario.Very little is known about the new police complaints process and when exactly it is expected to be in effect. We do know that the system will be headed by Independent Police Review Director, Gerry McNeilly. On February 5, 2009, Mr. McNeilly attended Windsor Law to launch LEAP. The IPRD has wide-ranging decision making powers to develop regulations, policy, and procedural aspects of the system as well as the discretion to refuse complaints. Mr. McNeilly was also present at the summit.

In response to Bill 103, Scadding Court Community Centre and CEAPC, extended invitations to the three pillars to engage in constructive discussion focused on critically analyzing the new legislation. I attended as note-taker on behalf of LEAP for the sessions on accessibility, transparency, accountability, public education and support. The different pillars were integrated into small working groups to discuss their perspectives and make recommendations to improve the proposed system. An executive summary of the report is available here.

I was also given the opportunity to participate in the discussions taking place. Given my experiences, including as a member of Students Against Anti-Black Racism at the University of Windsor, I entered the conference with cynical views of the current state of our criminal justice system and the seemingly widening power imbalances between systemic powers and ordinary citizens. SAABR has been struggling vigorously to seek redress for several Black students implicated in incidents of alleged police brutality and racism at an on-campus party in mid-January 2008. The footage of one student’s arrest, Bright Kyereme, is available on You Tube. None of the individuals chose to file complaints with the police because there is little faith, trust, and confidence in the current police complaints system. Professor Tanovich discussed this lack of faith in a commentary in the Windsor Star. This fact was a consistently recurring theme at the summit in Toronto.

Community members from all over Ontario came together to share their narratives and experiences. Many expressed their frustrations with the government’s delay in overhauling the system and criticized the lack of civilian oversight with enforcing police accountability. Their concerns also voiced the risks that racialized communities face at the hands of the police. I feel that their perspective was the one that I benefited from most from. As the least developed and often ignored pillar, communities at risk for police misconduct are an essential component that require much consideration and attention in implementing a successful police complaints process. In essence, their suggestions on how to improve police-community relations and community policing activities and how to ensure community safety remain critical factors to maintain communities’ participation and interaction with the new system. What made the Summit so important was that these voices were heard by lawyers, government members, police officers, human rights agencies, and community leaders who have the capabilities and resources to take these views into consideration and implement some real change. And unless this actualizes, it remains easy to be cynical of the new system that’s on its way in.

This event was a remarkable learning experience. It truly demonstrated the importance of bringing together the three pillars of government, police, and communities to share meaningful dialogue on Ontario’s new police complaints system.

Posted by Lily Tekle, Student Director

Commission for Public Complaints Against the RCMP releases first major study of complaint review process

This week the Commission for Public Complaints Against the RCMP issued its first ever report on the RCMP public complaints process entitled Review of the RCMP's Public Complaint Records 2007. In 2007, 3,104 complaints were made against the RCMP with neglect of duty, improper attitude and improper use of force being the most common issues raised. Unfortunately, there is no specific category for racial profiling and so it is unclear how many complaints involved racial discrimination.

The Commission headed by Paul Kennedy, Chair, raised a number of concerns including an under-reporting of complaints in rural and remote areas and lack of awareness of the rights of complainants. In an effort to improve public trust, transparency and accountability, the Commission issued the following recommendations:

Recommendations

"Recognizing the importance of Force-wide consistency and based on the findings of the analyses within the Review of the Record Project, the Commission recommends the following:

1. That the Professional Standards and External Review Directorate at RCMP Headquarters organize a Force-wide meeting of divisional Professional Standards Units and the Commission in order to discuss best practices and ways of improving efficiency and effectiveness in the public complaint process.

2. That the Professional Standards and External Review Directorate at RCMP Headquarters send out a directive clearly articulating:

a. when it is appropriate to informally resolve improper use of force complaints and when it is not;

b. how public complaints defined under Part VII of the RCMP Act are to be processed when the complainant raises statutory offence allegations; and

c. when it is appropriate to terminate a public complaint under the RCMP Act and what information must be included in a Notice of Direction.

3. That the RCMP implement a more efficient means of tracking public complaints and that Divisions and detachments provide the Commission with a copy of all of the outstanding complaint dispositions.

4. That the RCMP ensure that those tasked with capturing public complaints and writing complaint dispositions be appropriately trained and that manuals related to the public complaint process be immediately updated to ensure a standardized national approach.

5. That the RCMP commit to improving its service standards by implementing ways to reduce wait times and increase processing times for complaint dispositions.

6. That the RCMP ensure that all of the complaint dispositions be provided to the Commission concurrent to being provided to the member and the complainant."

Posted by Professor Tanovich

SIRC identifies concerns with Canada's spy agency's investigation of terrorism and reliance on information obtained by torture

The Security Intelligence Review Committee (SIRC) is a body created in 1984 and empowered under the Canadian Security Intelligence Service Act to review the actions of the Canadian Security Intelligence Service (CSIS), Canada's spy agency. It also investigates citizen complaints about CSIS. The SIRC review model was discussed recently by the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 at paras. 71-74.

In its 2007-2008 Annual Report, SIRC pointed to a number of problems with the investigation of suspected terrorist activity. In one instance, SIRC was critical of the failure of CSIS to include the relevant literature concerning whether a particular group was a terrorist organization in the "targeting approval process." In another investigation involving what CSIS calls "second-generation terrorists" or "homegrown" terrorists, CSIS had failed to obtain the proper approval before it sent a "human source" to obtain information within a sensitive institution (e.g. academic, political, media, religious or trade-union fields). There were also concerns raised about the investigation's target-approval documentation.

SIRC also recommended that CSIS adopt the recommendations made out of the Arar Inquiry as it relates to Canada's dealings with countries or agencies that use torture as a means of gathering information. As SIRC put it in their review:

Based on these facts, SIRC found CSIS is concerned with human rights, but nevertheless may use information obtained by torture. Although it did not find a “total lack of concern” for evidence obtained by torture, SIRC did find that CSIS focused on the impact that torture might have on the reliability of information used in carrying out its responsibilities under the CSIS Act, rather than on its obligations domestically under the Canadian Charter of Rights and Freedoms and the Criminal Code of Canada, as well as internationally under the treaties signed by Canada that absolutely reject torture.

Posted by Professor Tanovich

Commission of Public Complaints against the RCMP launches Taser inquiry

On January 15, 2009, Paul Kennedy, Chair of the Commission for Public Complaints Against the RCMP (CPC) announced that his office has initiated a complaint and public interest investigation into the use of tasers by RCMP officers in circumstances where death ensued between January 1, 2001 and January 1, 2009. The inquiry will investigate whether the use of tasers in these circumstances complied with appropriate training and procedures. It will also assess the adequacy of the policies.

Since the tragic taser death of Robert Dziekanski at the Vancouver airport in October, 2007, the use of tasers has come under consideration attention. See "Law enforcement re-examines taser", Vancouver Sun (17/01/09).

Posted by Professor Tanovich