Annual Report 2007-2008 - An Operational Review of CSIS Activities
SIRC reported a decision made under Section 41 of the CSIS Act about a complaint concerning the conduct of three male CSIS officers during their interaction with the complainant, a female lawyer. She alleged that the three men had addressed her in a physically threatening manner and intimidated her in the presence of her clients at an office of Citizenship and Immigration Canada (CIC). The complainant’s clients, a husband and wife, required a security screening interview by CSIS for purposes of their application for permanent residence.
Without notice to the complainant, CIC scheduled the clients to each be interviewed by CSIS officers separately and simultaneously. According to the complainant, this scheduling meant that she could not be present with her clients at both interviews. A conflict arose between the complainant and the three CSIS officers over the scheduling of the interviews and the complainant’s role during the interview. The complainant stated that she felt physically threatened by the CSIS officers and was shaking. She also found their behaviour and comments to be rude and sexist. Furthermore, she alleged that the CSIS officers were racist.
As part of SIRC’s investigation, a hearing was held. The complainant did not offer an independent third party to testify about the alleged conduct of the CSIS officers. SIRC was left with two different but equally plausible interpretations of how the events transpired.
SIRC found that the three CSIS officers reacted reasonably under the circumstances. They were following CSIS policy concerning the conduct of immigration interviews. The three CSIS officers maintained that their conduct was not intended to intimidate, but rather to find out what the problem was regarding the scheduled interviews. The prospect of simultaneous interviews caused conflict for the complainant, while the prospect of re-scheduling consecutive interviews caused conflict for CSIS.
SIRC found that, given the circumstances of this case, both sides would have been agitated by the conflict, and their behaviour would have been affected accordingly. Nevertheless, SIRC did not find evidence that either the complainant’s behaviour in serving as counsel to her clients, or the CSIS officers’ behaviour was unreasonable, threatening or intimidating.
As with all complaints, the complainant had the burden of proof. SIRC concluded that the complainant did not present sufficient evidence to prove the alleged intimidation and misconduct.
Nevertheless, SIRC concluded that the conflict between the two parties might have been avoided if CSIS policies permitted an individual not only to have counsel or another representative attend a security screening interview, but also to advocate for that individual during the interview process with CSIS.
SIRC recommended that the Service’s policies be amended so that individuals are permitted to be accompanied and fully represented by counsel or another representative during a security screening interview conducted by CSIS.
In this complaint filed with SIRC under Section 41 of the CSIS Act, the complainant alleged that CSIS had abused his human rights and those of his family, and that the Service had treated him unfairly. SIRC investigated the complaint and concluded that there was no evidence of any abuse of human rights as alleged. While SIRC did find that the complainant had been treated unfairly, it was to a much lesser degree than had been alleged by the complainant.
SIRC reported a decision concerning a complaint pursuant to Section 41 of the CSIS Act, in which the complainant, Paul Copeland, alleged a “total lack of concern” by CSIS regarding evidence obtained by torture.
Noteworthy in this case is that immediately after SIRC began its investigation, the Government of Canada implemented a key recommendation made by Justice O’Connor in his report on the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. On December 12, 2006, the Honourable Frank Iacobucci was appointed to undertake an inquiry into the actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin. Therefore, SIRC decided that it would be inappropriate for the Committee to include any findings in its report that could be the subject of this inquiry.
In investigating Mr. Copeland’s complaint, SIRC had access to classified information relevant to the allegations, including a classified version of the report of Justice O’Connor (hereafter referred to as the “Arar Report”). After having reviewed all the documentation made available, as well as the representations of the parties, SIRC did not find evidence of a “total lack of concern.”
In its decision, SIRC noted that on June 29, 2005, CSIS had implemented two relevant recommendations contained in SIRC’s review of the role of CSIS in the matter of Maher Arar.3 The first recommendation was to change CSIS operational policies so that it must consider the human rights record of a foreign state or agency when information received from those sources will be used in an application for targeting approval. The second recommendation was to amend a CSIS operational policy that governs the information included in a foreign-travel proposal so that it must consider the human rights records of foreign states or agencies regarding incoming visits or travel abroad.
Further, SIRC took into consideration Recommendation 14 made by Justice O’Connor in the Arar Report, which states:
“Information should never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture. Policies should include specific directions aimed at eliminating any possible Canadian complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability.”
SIRC views this recommendation as the standard that CSIS should apply when exchanging information. As Justice O’Connor further stated:
“Domestically, the Canadian Charter of Rights and Freedoms confirms the absolute rejection of the use of torture.”
Although SIRC did not find evidence of a “total lack of concern” on the part of CSIS regarding evidence obtained by torture, it did find that at the time the complaint was made, CSIS lacked specific policies aimed at eliminating any possible Canadian complicity in torture. As noted in the Arar Report, CSIS had no personnel with expertise in recognizing intelligence that may have been the product of torture, but “[r]ather, CSIS’s assessment focuse[d] on whether the Service can corroborate the information.”
SIRC found this lack of expertise hampered the Service in exercising due diligence, not only in assessing the reliability of information—particularly whether the information was obtained by torture—but also in assessing whether there was a credible risk that the exchange of information would cause or contribute to the use of torture.
SIRC noted the following advice provided by Justice O’Connor in his report:
“Canadian officials must be more sophisticated in their assessments, taking into consideration all of the available information in order to draw reasonable inferences about what may have happened. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) provides that the human rights record of a country must be considered in assessing the risk of torture.”
During its investigation, SIRC was informed that CSIS has personnel with the expertise to assess the reliability of information. However, SIRC was neither informed nor could it determine whether CSIS has personnel with the expertise to make sophisticated assessments as to whether exchanges of information will create a risk of causing or contributing to any possible Canadian complicity in torture, or the risk of other human rights abuses.
In SIRC Review 2005-02 (CSIS Liaison with Foreign Agencies: Review of a Security Liaison Post),4 SIRC had found a lack of any written documentation about possible human rights concerns cited by organizations such as Amnesty International and Human Rights Watch. The concerns related to the Service’s documentation of a separate and relatively new foreign arrangement with a particular intelligence agency. SIRC found that this lack of written documentation would not meet the standard of assessment as contemplated by Justice O’Connor in ensuring Canada’s non-complicity with human rights abuses.
With respect to arrangements with foreign states or agencies to collect and share information and intelligence, both Ministerial Direction and operational policy require that CSIS address a country’s human rights record. This includes any possible abuses by the security or intelligence organizations. Further, arrangements with countries that do not share Canada’s respect for democratic or human rights will only be considered where contact is required to protect the security of Canada.
CSIS’s policy requires that all applications for any targeting submission take into consideration the human rights record of any foreign state or agency whose information may be used to support the submission.
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.
For purposes of this investigation, SIRC found that Justice O’Connor’s findings and recommendations—as well as any future findings and recommendations by the Honourable Iacobucci’s inquiry—will ensure that the use of information obtained through exchanges with foreign agencies is done in such a way that protects Canadians from threats to their security. These efforts will also respect the values of Canada’s free and democratic society as reflected in the Charter, the Criminal Code, and its treaty obligations regarding the abhorrence of torture.
SIRC recommended that CSIS implement the recommendations directed at the Service in the Arar Report.
A second recommendation made as a result of this investigation cannot be disclosed for reasons of national security.
SIRC reported a decision on a complaint pursuant to Section 45 of the Canadian Human Rights Act. The complainant alleged that Transport Canada had discriminated against him on the grounds of race, national or ethnic origin, and religion by treating him in an adverse differential manner.
The Minister of Transport asked the Canadian Human Rights Commission to refer the case to SIRC.
The alleged discrimination concerned Transport Canada:
Under Transport Canada’s Airport Restricted Area Access Clearance Program (hereafter “the Program”), the complainant (who was working for a private-sector employer) needed site-access clearance to be issued a pass by the Airport Pass Control Office. This would have provided the individual with access to restricted areas within an airport. The aim of the Program is to prevent unlawful acts of interference with civil aviation. It does so by issuing a site-access pass to persons who meet the standards set out in this Program. The objective is to prevent uncontrolled entry into a restricted area of a listed airport by a person who falls within one of the listed categories of threats to security.
As part of the complainant’s application process for a pass, the Director of Preventive Security for Transport Canada was provided with information about the complainant resulting from a criminal record check, a credit check and a CSIS indices check. The Director of Preventive Security decided to convene an Access Clearance Review Board, which took into consideration the national security concerns communicated by CSIS and the results of the criminal record check. The Review Board decided to recommend to the Minister of Transport the denial of the clearance. Subsequently the Minister denied the complainant site-access clearance. Since restricted-area access at the airport was a condition of employment, the individual’s job was terminated.
The Minister of Transport made the decision without providing the complainant with the opportunity “to know the case against him” or to respond to the adverse information. Nor was the complainant provided any reasons for the denial. The Minister informed the individual that there was a 30-day deadline within which to seek from the Federal Court a judicial review of the decision.
SIRC found that:
More specifically, SIRC found the procedure under the Program was inherently unfair and breached the rules of natural justice by:
Given the serious consequences of the Minister’s decision, which resulted in the loss of the complainant’s employment, the complainant should have been afforded a fair process which adhered to the rules of natural justice.
SIRC recommended that the Canadian Human Rights Commission not investigate this complaint in accordance with Subsection 46 (2) of the Canadian Human Rights Act. It maintained that the Minister did not make his decision to deny the complainant site-access clearance based on a prohibited ground of discrimination, nor was Transport Canada pursuing a policy and/or practice of denying site-access clearance to individuals of the same ethnic origin as the complainant.
SIRC further recommended that the Minister provide the complainant with the opportunity to re-apply for the security clearance under the new policy.
Finally, SIRC recommended that if the complainant were to re-apply, CSIS or Transport Canada should conduct an interview with the complainant in the presence of counsel or any other representative. In addition, the complainant should be made aware of the right to record the interview, and that CSIS or Transport Canada also record the interview and retain a copy of the recording until the complainant has had an opportunity to exhaust any review process or until the retention period under the Privacy Act has expired, whichever is later.
SIRC reported an investigation of a complaint made under Section 41 of the CSIS Act alleging that CSIS had provided improper advice to Citizenship and Immigration (CIC) in 2001 and 2004 regarding a complainant’s application for permanent resident status in Canada under the former Immigration Act.
In this case, the complainant was a refugee from Pakistan. In his immigration documents, he had declared that while he was in Pakistan from 1985 until he immigrated to Canada in 1996, he had been a member of an organization called the Muttahida Quami Movement (otherwise referred to as “MQM”). In 2000, he was interviewed by CSIS, at which time he provided details of his past involvement with the MQM. He told the CSIS interviewer that he had not been involved with the MQM since arriving in Canada.
Following the interview, CSIS provided an inadmissibility brief to CIC in 2001. In 2004, CSIS updated their advice to CIC. At the time of the second inadmissibility brief, the Immigration Act had been replaced by the Immigration and Refugee Protection Act (IRPA). Section 19 of the former Act had been replaced with Section 34 of the IRPA.
Much of SIRC’s investigation focused on whether, by law, there are reasonable grounds to believe the MQM is an organization that is or was engaged in terrorism. The investigation also focused on whether the advice from CSIS to CIC regarding this issue was proper. SIRC received evidence from both the Service and the complainant on this issue. SIRC considered the wording of the Immigration Act as it was applied by CSIS in the 2001 inadmissibility brief that was later confirmed by the 2004 inadmissibility brief and found that the advice from CSIS to CIC on this issue was proper.
However, SIRC found other aspects of the advice from CSIS to CIC were wrong or inaccurate and therefore improper. SIRC found no evidence to support a bona fide belief that the complainant has been a member of the MQM since arriving in Canada. This advice was wrong and was perpetuated by the second inadmissibility brief in 2004. SIRC also found an inaccurate statement in the 2001 inadmissibility brief.
Additionally, SIRC considered the exception set out in Section 19 (1)(f)(iii)(B) of the former Immigration Act whereby an applicant could not fall within the inadmissible class as set out in paragraph (f) or be deemed inadmissible, where the applicant has satisfied the Minister of Citizenship and Immigration that his or her admission would not be detrimental to the national interest. From a review of the CSIS analyst’s assessment, the analyst did not address the exception.
Finally, the 2004 inadmissibility brief did not address the fact that the Immigration Act had been replaced by the Immigration and Refugee Protection Act and that the exception embedded in Section 19 (1)(f)(iii)(B) of the former Immigration Act is currently found in a general exception in Section 34 (2) in the IRPA. Therefore, it was improper for CSIS not to have updated their advice by referring to the new legislation. SIRC found that the advice in the 2004 inadmissibility brief was wrong because it did not take the new legislation into account.
SIRC also made two findings regarding procedure.
The first finding concerned the production of documents. On four occasions during the investigation, SIRC requested a copy of the relevant security screening guidelines or procedures relied on by CSIS for the provision of their advice to CIC. After the hearing, counsel for CSIS provided SIRC, pursuant to an undertaking, a copy of the Security Screening Procedures Guidelines which, to the best of the Service’s knowledge, were in effect at the time the first inadmissibility brief was prepared. Security screening procedures for the purpose of preparing the second inadmissibility brief in 2004 were never formally approved. Although a witness for CSIS testified that all the procedures and guidelines were complied with in the preparation of the inadmissibility briefs, SIRC could not give much weight to that testimony since the witness had no personal involvement in the preparation of the briefs. Moreover, CSIS could not tell SIRC with full certainty what documents were relied upon in the preparation of the briefs.
The second finding concerned the destruction of the CSIS interviewer’s notes. SIRC was informed that the interviewer had destroyed the notes taken during the interview with the complainant in accordance with CSIS operational policy, identified as OPS-217 Operational Notes and thus the notes were not available to SIRC for purposes of the investigation. SIRC determined that the destruction of the notes did not hinder its investigation. However, SIRC found that the notes of a subject interview for immigration screening may be required as evidence or information for investigations or proceedings before the courts or administrative tribunals and therefore should be retained by the Service. SIRC has recommended on other occasions that notes of interviews not be destroyed.
Finally, SIRC recommended that CSIS prepare fresh advice to CIC, to satisfy the Minister of CIC that the presence of the complainant in Canada would not be detrimental to the national interest in accordance with Subsection 34(2) of the IRPA, or if required, could be used by the complainant to seek what is referred to as “Ministerial Relief” in respect of Subsection 34(2) under the IRPA.
SIRC reported on a complaint made pursuant to Section 41 of the CSIS Act, regarding the delay by CSIS in completing its security assessment for the purposes of the complainant’s employment. The complainant had received an offer of employment that was conditional upon the complainant successfully obtaining a reliability and site-access clearance. The employer specified in the letter of offer the date by which the complainant was to obtain the reliability and site-access clearance, failing which the employer would have the option of either extending the time for the satisfaction of the condition of employment or of rescinding the offer. When SIRC began the hearing of this complaint, CSIS had not completed its security assessment. More than twenty months had elapsed since the complainant had received the offer of employment, and the complainant had been subjected to three subject interviews by CSIS.
SIRC concluded that when the complainant first wrote the Director of CSIS (approximately two months after the complainant had received the letter of offer) to complain about the time taken by CSIS to complete its security assessment, the complaint was premature, notwithstanding the date specified by the employer in the offer of employment. SIRC also found that although there was an accumulation of moderate delays, the overall time taken by CSIS to complete its security assessment during the first seven months was reasonable. However, SIRC found that after the first seven months, although the delays were not deliberate, the time taken by CSIS to conduct its security enquiries was not reasonable and the delays could have been avoided.
SIRC made four recommendations: