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Air India Flight 182
A Canadian Tragedy
READER’S GUIDE
ACRONYMS AND KEY NAMES
�©Her Majesty the Queen in Right of Canada, represented by the
Minister of Public Works and Government Services, 2010
Cat. No: CP32-89/4-2010E
ISBN: 978-0-660-19983-2
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
K1A 0S5
Telephone: (613) 941-5995 or 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Publications@pwgsc.gc.ca
Internet: www.publications.gc.ca
�Key Name List
Abid (“Joe”), Jainul: Air India’s traffic and sales representative for Montreal and
occasional air traffic officer for Mirabel Airport.
Adams, Jeanne (“Jeannie”): The CP Air agent who checked in luggage for “M.
Singh” and allegedly interlined the luggage that contained the bomb that blew
up Air India Flight 182. “L. Singh’s” luggage was placed on board the CP Air Flight
to Tokyo, Narita. Neither “M. Singh” nor “L. Singh” boarded the outbound CP
flights from Vancouver. Adams now goes by the name Jeanne Bakermans.
Alemán, Moses: Aviation security expert who has advised the US Federal
Aviation Administration and the International Civil Aviation Organization.
Atkey, Hon. Ronald (“Ron”): Lawyer and former Progressive Conservative
cabinet minister who from 1984 to 1989 served as the first chairman of the
Security Intelligence Review Committee, an oversight group of Privy Councillors
which monitors the activities of CSIS.
Ayre, David: At the time of the Air India bombing, was a CSIS Intelligence
officer working from the Service’s Vancouver office, tasked with tracking Sikh
extremism.
Bagri, Ajaib Singh: Member of Babbar Khalsa, a radical Sikh extremist
organization, allegedly nominated to a committee to plan the hijacking of an
Air India plane. Was tried along with Ripudaman Singh Malik and acquitted.
Bagri, Amrik Singh: Brother of Ajaib Singh Bagri, and considered to have
possibly persuaded a CP Air agent to accept one or more bags containing
bombs for shipment on the day of the Air India bombing.
Barr, Archie: Former Director of Security Policy Development in the Security
Intelligence Transition Group that oversaw the transition of the RCMP Security
Service to CSIS. Later, he served as Deputy Director of National Requirements
at CSIS headquarters.
Barrette, Jean: Director of Security Operations at Transport Canada at time of
the Commission hearings.
Bartleman, James K.: Director General of Intelligence Analysis and Security
at the Department of External Affairs from late 1983 to November 1985. Later
became an ambassador and Lieutenant Governor of Ontario.
Bass, Gary: As head of the RCMP’s Major Crime section in BC, became involved
in the Air India Task Force in 1995. From early 1996 up to and through the
Malik and Bagri trial, he was Officer in Charge of the E Division Task Force. He is
currently Deputy Commissioner of the RCMP in E Division.
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Reader’s Guide
Beitel, Robert: Member of the RCMP’s Air India Task Force in BC, with largely
administrative duties, in the years immediately following the Air India
bombing.
Belanger, Norman: Head of the Air India Task Force at RCMP headquarters in
1985.
Bennett, R.H.: Director General of Counter Terrorism at CSIS headquarters in
late 1980s.
Bertram, Jim: Director of Public Safety for the Greater Toronto Airports Authority
at the time of the Commission hearings.
Best, Douglas: Joined the RCMP’s Air India Task Force in BC in April 1996 and was
assigned the duty of determining the feasibility of doing follow-up investigative
work with sources Ms. D and Ms. E.
Bhindranwale, Jarnail Singh: The leader of a group of Sikhs seeking an
independent state who occupied the Golden Temple in Amritsar, India in 1984.
Bhindranwale was killed when the Indian Army took control of the temple, thus
becoming a martyr among some Sikhs.
Blachford, Bart: At the time of the Commission hearings, the lead investigator
for the RCMP’s Air India Task Force in BC, which he has been intermittently
involved with since 1989.
Bloodworth, Margaret: National Security Advisor to the Prime Minister and
Assistant Secretary to the Cabinet at the time of the Commission hearings; had
previously been Deputy Minister of the Departments of Public Safety, National
Defence, and Transport.
Boisvert, Anne-Marie: A professor in the Faculty of Law at the Université de
Montréal and an expert on criminal law and megatrials.
Bolan, Kim: Vancouver Sun reporter who has extensively covered Sikh extremism
and the Air India bombing; author of Loss of Faith: How the Air India Bombers Got
Away with Murder.
Bonneau, Régis: At the time of the Commission hearings, the RCMP coordinator
of the Witness Protection Plan in Quebec.
Bourgault, Jacques: A professor at the University of Québec at Montréal and
member of the Canadian Air Transport Security Authority Act Advisory Review
Panel, which submitted a report on the Air India bombing, “Air India Flight 182:
Aviation Security Issues,” in May 2007.
Brandt, Brion: Transport Canada’s Director of Security Policy at the time of the
Commission hearings.
�Key Name List
Brar, Lakhbir Singh: In an alleged confession by Talwinder Singh Parmar to
police in India, Brar, head of the International Sikh Youth Federation, was named
as a mastermind behind the Air India bombing and as the unidentified young
man known as Mr. X who accompanied Talwinder Singh Parmar and Inderjit
Singh Reyat into the woods outside Duncan to test an explosive device.
Brost, Don: In the mid-1990s, worked in the RCMP’s National Criminal Intelligence
Section in BC, serving during one period as acting Officer in Charge.
Brown, Dennis: Assistant Commissioner and the Criminal Operations Officer for
the RCMP in BC in the mid 1990s.
Browning, Greg: RCMP Superintendent who, as Director of National and
International Learning Services, had overall responsibility for the Canadian Air
Carrier Protective Program at the time of the Commission hearings.
Burbridge, Ted: RCMP officer who in 1988, as a member of the National Security
Offences Section in BC, had charge of protecting Tara Singh Hayer.
Burgoyne, Robert (“Bob”): CSIS investigator who worked on the Sikh Desk at
CSIS headquarters at the time of the Air India bombing.
Carignan, Serge: Sûreté du Québec dogmaster who, with his dog Arko,
inspected three bags kept off Air India Flight 182 at Mirabel International Airport
and found no explosives.
Carlson, Gary: At the time of the Air India bombing, he was the RCMP’s
dogmaster at Pearson International Airport, away with his dog for a training
program.
Cartwright, Nick: Transport Canada’s Director of the Security Technology
Branch, Security and Emergency Preparedness, at the time of the Commission
hearings.
Chauhan, Jagjit Singh: Founder of the Khalistan movement which sought the
establishment of a Sikh state.
Chopra, Rajesh: Air India’s Manager of Canadian Operations at the time of the
Commission hearings.
Chrétien, Rt. Hon. Jean: Liberal Prime Minister of Canada from November 1993
to December 2003.
Ciuffreda, Michael: Burns International Security supervisor for guards providing
security for Air India at Pearson International Airport the day of the Air India
bombing.
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Reader’s Guide
Clark, Rt. Hon. Joe: Progressive Conservative Prime Minister of Canada from
June 1979 to March 1980 and later Minister of External Affairs in the cabinet of
Brian Mulroney from 1984 to 1991.
Clarke, Gary: From 1984 to 1987, was the RCMP officer in charge of Protective
Policing at O Division headquarters in Toronto, responsible, among other things,
for establishing policy and procedures for policing at Pearson International
Airport.
Claxton, Randil: Director General of CSIS’s BC Region at the time of the Air India
bombing.
Coghlin, Charlie: CSIS investigator at CSIS headquarters in Ottawa who
developed an ear for code words used by Sikh extremists.
Conrad, Stephen: Transport Canada’s Project Director of Air Cargo Security at
the time of the Commission hearings.
Cook, John: At various times acting director and manager of policy and
intelligence for Transport Canada’s Civil Aviation Security Branch.
Crook, Rick: Member of the Vancouver Police Department’s Strike Force
Surveillance Team who, in October 1984, conducted an interview with Person 2
regarding an alleged plan to place a bomb aboard an Air India flight.
Cummins, Pat: RCMP Chief Superintendent in charge of national security
investigation at RCMP headquarters in early 1990s.
Cunningham, Jim: As an RCMP investigator in the early 1990s in BC, had looked
into matters dealing with Sikh extremism.
Cyr, Pierre: Vice president of Strategic and Public Affairs for the Canadian Air
Transport Security Authority at the time of the Commission hearings.
Dandurand, Yvon: A criminologist and associate vice president of research and
graduate studies at the University of the Fraser Valley, who prepared a paper for
the Commission entitled “Protecting Witnesses and Collaborators of Justice in
Terrorism Cases.”
Dawson, Bill: RCMP Officer in Charge at Pearson International Airport at the
time of the Air India bombing.
de Bruijn, Donald: An RCMP analyst in BC at the time of the Air India
bombing.
Deschenes, Mel: Director General of Counter Terrorism at CSIS headquarters at
the time of the Air India bombing.
�Key Name List
Dexter, Bill: Analyst on the Sikh Desk at CSIS headquarters in BC at the time of
the Air India bombing.
Dhillon, Baltej Singh: An RCMP corporal who worked on the Air India Task
Force in BC.
Dicks, Ron: RCMP Officer in charge of the National Security Investigations
Section in BC from 1989 into the 1990s. Had earlier been the RCMP liaison to
CSIS in Toronto.
Doak, Betty: CSIS transcriber in the BC Region who kept records of when
intercepted phone calls were made, by whom, to whom, and at what telephone
number.
Dosanjh, Hon. Ujjal: An outspoken moderate Sikh lawyer who was severely
beaten early in 1985 because of his opposition to extremism; became premier of
British Columbia and, later, federal minister of health in the Liberal government
of Paul Martin. He currently serves as MP for Vancouver South.
Doucet, J.A. (“Fred”): Senior adviser to Prime Minister Brian Mulroney.
Douglas, Wayne: RCMP officer who worked in the National Criminal Intelligence
Unit in Vancouver, as part of the Terrorist Extremist Group, which focused largely
on Sikh terrorism. The Vancouver unit of the NCIS was part of the Vancouver
Integrated Intelligence Unit, which was a joint Vancouver Police Department/
RCMP intelligence gathering section.
Doyon, Louise: At the time of the Commission hearings, Director General of the
Intelligence Assessment Branch at CSIS headquarters.
D’Souza, John: Air India’s security officer for Pearson and Mirabel airports in
1985.
Duguay, Yves: At the time of the Commission hearings, senior director of Air
Canada Security and chair of the International Air Transport Association (IATA)
Security.
Elliott, William: The current Commissioner of the RCMP, appointed in July
2007.
Ellis, Andrew: Director General of CSIS in the Toronto Region at the time of the
Commission hearings.
Eshleman, Neil: CSIS agent in BC at the time of the Air India bombing who
helped develop sources crucial to the investigation. He had earlier been an
RCMP officer, and returned to the RCMP after his time in CSIS.
Finn, Ted: First Director of CSIS, serving from 1985 to 1987.
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Reader’s Guide
Fowles, Rob: Inspector with the Vancouver Police Department in early 1980s.
Francis, Jim: A Unit Head of CSIS’s Counter Terrorism Section in the BC Region
at the time of the Air India bombing.
Gagnon, Réal: Burns International Security supervisor of guards providing
security for Air India Flight 182.
Gandhi, Indira: Prime Minister of India who was assassinated for ordering the
Indian army’s 1984 assault on the Golden Temple, Sikhism’s holiest shrine.
Gartshore, Glen: Intelligence officer in the Counter Terrorism Branch who
supervised the Sikh Desk at CSIS headquarters at the time of the Air India
bombing.
Gilbert, Dorothy: Burns International Security terminal manager at Pearson
International Airport at the time of the Air India bombing.
Gill, Surjan Singh: A member of the Sikh extremist group Babbar Khalsa and a
suspect in the Air India bombing.
Gillies, John: CSIS’s Director General for BC Region at the time of the Commission
hearings.
Godbout, Dan: An analyst on the Sikh Desk at CSIS headquarters at the time of
the Air India bombing.
Goral, Terry: RCMP officer who worked on the Air India Task Force at RCMP
headquarters from late 1986 until his retirement.
Graham, Georgina: Global Head, Security and Facilitation for the International
Air Transport Association at the time of the Commission hearings.
Grierson, Mervin: Former Chief of Counter Intelligence for CSIS in the BC
Region, and later Deputy Director of Counter Terrorism for BC Region.
Hall, Craig: Director of the National Security Committee of the Airline Pilots
Association, International at the time of the Commission’s hearings.
Hayer, David (“Dave”): Son of Tara Singh Hayer, the publisher and editor of the
Indo-Canadian Times who was shot to death in 1998.
Hayer, Isabelle (also Martinez-Hayer): Wife of David Hayer and daughter-inlaw of Tara Singh Hayer.
Hayer, Tara Singh: Founder and publisher of the Indo-Canadian Times in Surrey,
BC. He became opposed to Sikh separatism in the wake of the Air India bombing
and other terrorist acts and wrote articles critical of the movement. He was shot
and paralyzed in 1988, and fatally shot ten years later.
�Key Name List
Heaton, D.H.: RCMP Chief Superintendent and Officer in Charge of Criminal
Operations in Ontario at the time of the Air India bombing.
Heed, Chern: Has served as an executive and consultant for numerous airports
in Canada and abroad, and as a member of the Canadian Air Transport Security
Authority Act Advisory Review Panel, which submitted a report on the Air India
bombing, “Air India Flight 182: Aviation Security Issues,” in May 2007.
Henry, John: At the time of the Air India bombing, was in charge of the Threat
Assessment Unit in the Counter Terrorism Branch at CSIS headquarters.
Henschel, Lyman: RCMP Officer in Charge of Support Services in BC from 1982
to 1989.
Hickman, Lloyd: Inspector with Protective Services at RCMP headquarters. In
testimony, denied having heard of the threat against Air India Flight 182 from
James Bartleman.
Hoadley, John: The RCMP officer who put together the initial Air India Task
Force in BC in 1985.
Hoffman, Bruce: Professor at the Edmund Walsh School of Foreign Service at
Georgetown University and author of Inside Terrorism.
Holmes, Les: In July 1985, became the first Officer in Charge of the RCMP’s Air
India Task Force in BC.
Hooper, Jack: At the time of the Air India bombing, was head of the Emergency
Preparedness Program at CSIS headquarters; his later responsibilities included
head of the Threat Assessment Unit, then Deputy Director of Counter Terrorism,
and finally Assistant Director of Operations.
Hovbrender, Axel: Officer of the Vancouver Police Department who from 1982
to 1986 worked in the terrorism/extremist section of the Vancouver Integrated
Intelligence Unit, which was a joint VPD/RCMP intelligence gathering section,
and, though a VPD officer, worked for a time on the Air India Task Force.
Inkster, Norman: Commissioner of the RCMP from 1987 to 1994.
Jagoe, Jamie: RCMP Superintendent and Assistant Criminal Operations Officer
for National Security in Ontario at the time of the Commission hearings;
had previously been Officer in Charge of the Integrated National Security
Enforcement Team in Ontario.
Jardine, James: As Crown Counsel for the Attorney General of British Columbia,
he assisted the Air India Task Force in getting authorization for wiretaps and led
the prosecution of Inderjit Singh Reyat in the Narita bombing. Later, became a
BC Provincial Court Judge.
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Reader’s Guide
Jarrett, Lynne: In the summer of 1985, was a CSIS officer on the BC Region’s
Physical Surveillance Unit. On June 4th, in a car with agent Larry Lowe, she
followed Talwinder Singh Parmar, Inderjit Singh Reyat, and an unidentified
young man (Mr. X) from the Vancouver Island town of Duncan into a remote
area where the subjects set off some kind of explosion in the woods.
Jensen, Henry: Former Deputy Commissioner, Operations of the RCMP who,
through most of the 1980s, had oversight of criminal intelligence, protective
policing, national security matters involving terrorism and other areas. Also sat
on the GOC Intelligence Advisory Committee and the GOC Security Advisory
Committee.
Jodoin, Jacques: Director General of Communications Intelligence and Warrants
at CSIS headquarters from 1984 to late 1980s.
Johal, Hardial Singh: Sikh male alleged to have been a follower of Talwinder
Singh Parmar and a participant in the Air India and Narita bombings.
Jones, Fred: Vice president, Operations and Legal Affairs, with the Canadian
Airports Council at the time of the Commission hearings.
Josephson, Hon. Justice Ian: The BC Supreme Court judge who presided over
the trial of Ripudaman Singh Malik and Ajaib Singh Bagri, often referred to as
the “Air India Trial.”
Judd, Jim: Director of CSIS from November 2004 to June 2009.
Kaplan, Hon. Robert: Former Liberal MP and Solicitor General of Canada from
1980 to 1984.
Kelleher, Hon. James: Former Progressive Conservative MP who served as
Solicitor General of Canada from 1986 to 1988.
Kenny, Colin: Chair of the Standing Senate Committee on National Security and
Defence at the time of the Commission hearings.
Khurana, Sarbjit: A Sikh businessman in Vancouver who opposed violence and
the setting up of an independent Sikh state. He was a source for the Vancouver
Police Department’s Indo-Canadian Liaison Team.
Kirpal, B.N.: Justice of the High Court of Delhi who led the Indian government’s
investigation into the Air India bombing.
Kobzey, Ray: At the time of the Air India bombing, was a CSIS intelligence
officer working from the Service’s Vancouver office, tasked with tracking Sikh
extremism.
Kordts, Holger (“Nick”): The Burns International Security branch manager at
Pearson International Airport at the time of the Air India bombing.
�Key Name List
Kumar, T.N.: Air India’s General manager for legal affairs, operating from the
Mumbai offices, at the time of the Commission hearings.
Labbé, Jean: Security coordinator of the National Security Committee of the Air
Line Pilots Association, International at the time of the Commission hearings.
LaCompte, Pierre: A signals intelligence analyst and a liaison officer with the
Communications Security Establishment from 1981 to 1985; thereafter, worked
at CSIS.
Lalonde, Daniel: Burns International Security officer at Mirabel who helped to
check through luggage for Air India Flight 182.
Laurie, William Dean (“Willie”): CSIS counterterrorism agent based in Vancouver
whose intelligence gathering caused him to develop a close relationship with
the source known as Ms. E. He worked initially for the RCMP, then joined CSIS,
and finally returned to the RCMP.
Leiss, William: Past President of the Royal Society of Canada and expert on risk
management.
Loeppky, Garry: Deputy Commissioner of Operations and Integration at RCMP
headquarters from 2000 to 2005.
Lowe, Larry: Supervisor of a CSIS surveillance unit in BC that was targeting
Talwinder Singh Parmar. (See Jarrett, Lynne)
Lyon, David: Expert on aviation security, surveillance, and national identification
cards, and founder of the e-journal “Surveillance and Society.”
MacDonald, J.B. (“Joe”): Acting Officer in Charge of the Air Policing Branch,
part of P Directorate at Ottawa headquarters of the RCMP, at the time of the
Air India bombing. The branch set policies for many airports, including Pearson
International Airport and Mirabel International Airport.
MacDonell, Laurie: RCMP officer who worked in the Criminal Intelligence
Section in Surrey, BC through most of the 1980s, and was part of the Air India
Task Force in BC in the early 1990s.
MacEwan, Ian: Former Director General of Counter Terrorism at CSIS
headquarters in the early 1990s.
MacKay, Hon. Elmer: Former Progressive Conservative MP and Solicitor General
of Canada from September 1984 to August 1985.
MacKay, Ron E.: RCMP Inspector who, with Insp. Brian Watt, wrote the 1989
Watt MacKay Report on the RCMP investigation of the Air India bombing to that
point.
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Reader’s Guide
MacNeil, Alphonse: RCMP Superintendent who was Officer-in-Charge of
the Canadian Air Carrier Protective Program at the time of the Commission
hearings.
MacPhee, Rick: Officer in Charge of the RCMP’s Air India Task Force in BC in mid
1990s, retiring early in 1996, at which time he was replaced by Gary Bass.
Maile, Fred: RCMP Sergeant with the National Security Investigations Section in
BC who worked extensively on the Air India investigation.
Malik, Ripudaman Singh: A Vancouver businessman who had been suspected
of helping to finance the Air India bombings. He was charged along with Ajaib
Singh Bagri and found not guilty at trial.
Marriott, Jim: Director of Transport Canada’s Aviation Security Regulatory
Review at the time of the Commission’s hearing.
Mattson, Dale: Transport Canada’s Manager of Safety and Security at Pearson
International Airport at the time of the Air India bombing.
McDonell, Mike: Assistant Commissioner, National Security Criminal
Investigations of the RCMP, since 2005.
McLean, Don: A Vancouver Police Department constable in charge of
investigating matters in the East Indian community in Vancouver. He helped set
up the meeting of a group of Sikhs in Sarbjit Khurana’s house, where mention
was made of “something” happening in “two weeks.” Later, was seconded briefly
to the Air India Task Force.
Menezes, Derek: Air India’s sales representative for Eastern Canada in Montreal,
and present at Mirabel Airport in a public relations role on the day of the Air
India bombing.
Morden, Reid: Director of CSIS from September 1987 to September 1991.
Mr. A: A potential source who indicated that he had information about the Air
India bombing and access to members of Babbar Khalsa. However, his value as a
witness was lost because of competing intentions between the RCMP and CSIS,
with the RCMP focussing on criminal investigation, and CSIS seeking to develop
an intelligence source.
Mr. G: Important figure in the Sikh extremist movement who gave RCMP
information that would seem to implicate Ajaib Singh Bagri and Talwinder Singh
Parmar and others in the bombings. He was never called to testify at their trial.
Mr. X: An unidentified young man believed to be of East Indian origin who
accompanied Talwinder Singh Parmar and Inderjit Singh Reyat into the
countryside outside Duncan, BC, where they are believed to have set up off an
explosive device.
�Key Name List
Mr. Z: A Sikh who in 1986 told both CSIS and the RCMP that he had information
about the identity of two Sikhs, L. Singh and M. Singh, who allegedly checked
in luggage that contained the bombs involved in the Air India and Narita
explosions.
Ms. D: An employee at a Sikh school run by Ripudaman Singh Malik. She was
the main witness in the Crown’s eventual case again Malik for his alleged part in
the Air India bombing.
Ms. E: A Sikh woman who was a close friend of Ajaib Singh Bagri. In discussions
with CSIS and the RCMP, she seemed able to implicate Bagri in the Air India
bombing, but claimed at the 2003 trial of Bagri and Malik in BC Supreme Court
that she could not remember essential details. Her many earlier statements to
investigators were ruled to be insufficient evidence.
Muir, R.E.: Officer in Charge of the RCMP’s VIP Security Branch within P
Directorate, reporting to the Director of Protective Policing, from 1984 to 1986.
Mulroney, Rt. Hon. Brian: Progressive Conservative Prime Minister of Canada
from 1984 to 1993.
O’Brian, Geoffrey: A member of the transitional group that made
recommendations to the Solicitor General on the setting up of CSIS. Later
served as Director General of the Subversion Section, of Operational Support, of
Counter Espionage, and of Legal Affairs requirements.
O’Connor, R.E.: In 1986, was the Operation Support Officer of the RCMP’s Surrey
Detachment in BC.
Osborne, Kenneth: CSIS’s Deputy Director General of Operations for the BC
Region in 1985.
Palmer, Frank: Officer in Charge of the RCMP’s Federal Operations in BC in the
late 1980s.
Paris, Justice Raymond: The BC Supreme Court judge who presided over the
1991 trial of Inderjit Singh Reyat.
Parmar, Talwinder Singh: An extremist among Canadian Sikhs who advocated
violence to promote the establishment of an independent Sikh state. The most
prominent of the suspects in the Air India bombing, he was killed by police in
India in 1992.
Person 1: Approached in the fall of 1984 by Person 2 and Z with plans to blow
up an Air India plane and to assassinate Indian Prime Minister Rajiv Gandhi.
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Reader’s Guide
Person 2: A Sikh who, with an individual named Z, offered Person 1 money to
bomb an Air India plane. Person 2 told his story, without mentioning names of
any co-conspirators, to Vancouver Police Department investigators during his
incarceration for charges unrelated to any bombing scheme.
Portelance, Luc: Deputy Director of Operations at CSIS headquarters at the
time of the Commission hearings.
Purdy, Margaret: In 1988, joined the Ministry of the Solicitor General, where
she worked in the Office of the Inspector General of CSIS and in the National
Security Directorate; in 1993, was appointed Deputy Director General of the
Counter Terrorism Branch at CSIS headquarters, and became the Director
General one year later.
Puri, Ramesh: Air India’s Manager of Canadian Operations at the time of the Air
India bombing.
Rae, Hon. Bob: Former Ontario premier who led a 2005 inquiry into whether
there should be a further investigation into the Air India bombing; his report,
“Lessons To Be Learned,” recommended that further inquiry take place.
Ram, Jas: Vancouver Police Department officer who translated the tapes of the
meeting at Sarbjit Khurana’s home at which mention, not caught on tape, was
allegedly made of terrorist activities to occur at about the time of the Air India
bombing.
Rautio, Rick: An RCMP corporal who worked in the National Security
Investigations Section in BC in the early 1990s.
Redfern, J. Richard (“Dick”): CSIS agent in BC Region at the time of the Air India
bombing. Later, became Head of Counter Terrorism Section in the BC Region.
Reyat, Inderjit Singh: The driver of the car that took Talwinder Singh Parmar and
an unidentified young man (Mr. X) to a site near Duncan, BC, where explosives
were set off. He was convicted of explosives charges in BC Supreme Court in
1990 for building the bomb that killed two baggage handlers in Narita, Japan,
and in 2003 pled guilty to manslaughter charges for the deaths caused in the
Air India bombing.
Riordan, Cornelius: Coroner who led the inquest into the Air India bombing in
Cork, Ireland in 1985.
Roth, Michael (“Mike”): Head of the RCMP’s National Security Liaison Unit set
up in BC after the creation of CSIS; later, he was seconded to the Air India Task
Force in BC.
Roy, J.A.R.: Assistant Commissioner and Director of Protective Policing at RCMP
headquarters in mid 1980s.
�Key Name List
Rudner, Martin: Distinguished Research Professor Emeritus at the Norman
Paterson School of International Affairs at Carleton University and an expert on
intelligence and international terrorism.
Sandhu, Manjit (“Sandy”): Punjabi-speaking member of the RCMP’s Air India
Task Force in BC.
Sarwal, Ashwani: Originally, Air India’s assistant airport manager for Mirabel
International Airport; when Air India began flying out of Toronto in early 1995,
Pearson International Airport was added to his responsibilities.
Saxena, Mahendra: Air India’s head of security at John F. Kennedy Airport in
New York at the time of the Air India bombing.
Schneider, John: Long-time member and eventual head of the Air India Task
Force in BC.
Schwartz, Lorne: As an RCMP corporal working on the Air India Task Force, took
part in interviews with suspect Lal Singh in India in 1997 and 2000.
Scowen, Chris: At the time of the Air India bombing, was Chief of the Middle
East Desk within the Counter Terrorism Branch at CSIS headquarters. Earlier, as
an RCMP officer, he had worked on the Security Intelligence Transition Group
that advised on the writing of the CSIS Act and on the reorganization of the
RCMP Security Service into CSIS.
Seaborn, Blair: The intelligence and security coordinator in the Privy Council
Office at the time of the Air India bombing, he and the Interdepartmental
Committee on Security and Intelligence produced the Seaborn Report of 1985
which was considered a seminal document on civil aviation security.
Sheahan, William (“Bill”): At time of retirement in 2006, was Acting Director
General of the Communications Security Establishment.
Sheppard, Paul: Director of Transport Canada’s Civil Aviation Security Branch
in 1985.
Shoemaker, Michael: Deputy Commissioner of the RCMP in the early 1990s.
Simmonds, Robert: Commissioner of the RCMP from 1977 to 1987.
Simpson, Brian: An Air Canada cabin services employee in June 1985 at Pearson
International Airport who testified that he was able to freely enter and wander
around an Air India jet on the day of the Air India bombing without being
challenged by security personnel.
Singh, “L”: A Sikh male who allegedly checked in the luggage containing a
bomb at Vancouver International Airport that blew up at Narita International
Airport in Japan.
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Reader’s Guide
Singh, Lal (also known as Manjit Singh): In an alleged confession by Talwindar
Singh Parmar made to police in India, he was the man who bought tickets for the
Air India flight in order to have luggage containing a bomb placed on board.
Singh, “M”: A Sikh male who allegedly checked in the luggage containing a
bomb at Vancouver International Airport that was interlined from a CP Air flight
onto Air India Flight 182.
Singh, Manmohan: Spokesman for the International Sikh Youth Federation
(ISYF) at the time of the Air India bombing.
Singh, Pushpinder: A leader of the International Sikh Youth Federation who
allegedly spoke of imminent terrorist actions just before the Air India bombing.
Smith, Robert: At the time of the Air India bombing, was CSIS’s Head of Counter
Terrorism in the BC Region.
Solvason, Robert: In the early 1980s was an investigator with the RCMP’s
National Criminal Intelligence Section in Surrey, BC, and in 1985 was seconded
to the Air India Task Force.
Sommerville, Brian: Member of the Vancouver Police Department Strike Force
Surveillance Team.
Souccar, Raf: At the time of the Commission hearings, Assistant Commissioner,
Federal and International Operations of the RCMP, and the officer delegated to
admit individuals to or remove them from the Witness Protection Program.
Stevenson, John: CSIS agent in British Columbia who, in the mid and late 1980s,
worked variously in counterterrorism as Unit Head for the BC Region, in counterintelligence, and as a liaison officer with the RCMP.
St. John, Peter: Former professor at the University of Manitoba who specializes
in intelligence, espionage, insurgency and terrorism and has consulted with
numerous governments.
Stoddart, Jennifer: The Privacy Commissioner of Canada at the time of the
Commission hearings.
Sweeney, Warren: In charge of the terrorist/extremist desk at the National
Security Enforcement (NSE) Section of the National Criminal Intelligence Branch
at RCMP headquarters in mid-1980s; later, seconded to the National Security
Offences Task Force, which assisted with ongoing investigation of the Air India
bombing.
Sweet, Kathleen: A US-based expert on risk management, terrorism and
aviation security.
�Key Name List
Thivierge, Mike: Assistant Commissioner of the RCMP in the early 1990s.
Tomalty, Gordon: At the time of the Air India bombing, was the RCMP’s Officer
in Charge, Federal Operations in BC, and later became the operational director
of the Air India Task Force in BC.
Tremblay, Larry: At the time of the Commission hearings, an RCMP member
seconded to CSIS. As former head of the Service’s Litigation Unit, spoke on how
and by what official process CSIS determines what information ought to be
shared with the RCMP and other agencies or government departments.
Turner, Bill: Worked on Sikh Desk at CSIS headquarters from 1986 to 1995,
spending the last five years as head of the desk; later worked on the Sikh Desk
in BC and on the Air India Task Force.
Turner, Rt. Hon. John: Liberal Prime Minister of Canada from June to December
1984.
Upton, Russell: At the time of the Air India bombing, Head of the Europe and
Far East Desk at CSIS headquarters, which included the Sikh Desk.
Vaney, Herbert: Air India’s Toronto area sales manager at the time of the Air
India bombing.
Venner, J.A.: Director General of Counter Intelligence at CSIS headquarters in
the mid 1980s.
Venner, Thomas: RCMP Deputy Commissioner in BC in mid 1980s.
W: A Sikh allegedly involved in a plot to bomb an unspecified Air India plane
in November 1984 and who was found to have connections with several of the
conspirators allegedly involved in the Air India bombing seven months later.
Wall, Robert: RCMP officer in the Vancouver Integrated Intelligence Unit and
later in the Air India Task Force in BC, of which he became second-in-command
in July 1985.
Wallin, Dick: CSIS’s Chief of Communications Intelligence and Warrants for BC
Region, 1984-1985.
Wallis, Rodney: Aviation security expert who was Director of Security for
the International Air Transport Association from 1980 to 1991; served on the
International Civil Aviation Organization’s Panel of Aviation Security Experts;
author of Lockerbie: The Story and the Lessons, Combating Air Terrorism, and How
Safe Are Our Skies?
Warden, William: Canadian High Commissioner to India from 1983 to 1986,
who warned early on about emerging Sikh extremism.
17
�18
Reader’s Guide
Wark, Wesley: Expert on the history, the structure and the performance of
intelligence communities in Canada and internationally.
Warren, James (“Jim”): Head of the Counter Terrorism Branch at CSIS
headquarters in 1986 and 1987, then briefly Assistant Director of Requirements,
and from 1989 to his 1995 retirement, Deputy Director of Operations.
Warrick, Ed: Transport Canada’s General Manager at Pearson International
Airport at the time of the Air India bombing.
Watt, Brian G.: RCMP Inspector who, with Insp. Ron MacKay, wrote the 1989
Watt MacKay Report on the RCMP investigation to that point.
Wheler, Doug: Analyst at RCMP headquarters who wrote a report in 1987
analyzing information from a meeting between an important BC source and a
number of Sikh activists.
Whitaker, Reg: Professor emeritus at York University and Chair of the Canadian
Air Transport Security Authority Act Advisory Review Panel, which submitted a
report on the Air India bombing, “Air India Flight 182: Aviation Security Issues,”
in May 2007.
Wickie, Joe: Deputy Director of CSIS in the late 1980s.
Wilson, Donald: RCMP officer who at various times in the 1980s was Deputy
Commissioner and Officer in Charge of the Operations Branch in BC.
Yodh, Divyang: Air India’s Passenger Service Supervisor at John F. Kennedy
Airport in New York. On the day of the Air India bombing, he was replacing the
manager of Pearson and Mirabel airports, Ashwani Sarwal, who was away.
Z: A Sikh allegedly involved in a plot to bomb an unspecified Air India plane in
November 1984 and who claimed to have information about the conspirators
involved in the Air India bombing.
Zaccardelli, Giuliano: Commissioner of the RCMP from 2000 to 2006.
Zelmer, Daryl: Warrant director for the Counter Terrorism Branch at CSIS
headquarters at the time of the Air India bombing.
OTHER COMMISSIONS AND KEY GOVERNMENT REPORTS
Kirpal Report: In an official Indian inquiry, Justice Bhupinder Kirpal of the Indian
High Court, in his 1986 report, attributed the breakup of the Air India jet to a
bomb.
�Key Name List
MacKenzie Commission: In its 1969 report, the Royal Commission on Security,
under Maxwell Mackenzie, recommended that a separate civilian security
agency be established. The Trudeau government responded in part, keeping
security within the RCMP, but appointing a civilian director general.
McDonald Commission: In its 1981 report, the Commission of Inquiry
Concerning Certain Activities of the Royal Canadian Mounted Police, under
Judge David McDonald, recommended, among other things, the establishment
of a new civilian intelligence service, separate from the RCMP.
Osbaldeston Report: In a 1987 report to the Solicitor General, Gordon
Osbaldeston recommended changes in CSIS management, an improved
support structure, and elimination of the then-separate Counter-Subversion
Branch, and accommodation separate from the RCMP.
Rae Report: In a 2005 report to the Federal Minister for Public Safety, the Hon.
Bob Rae presented the results of a limited inquiry into the Air India and Narita
bombings entitled “Lessons to be Learned.”
Seaborn Report: This 1985 Report on Security Arrangements Affecting Airports
and Airlines in Canada was the federal government’s first review of the Air India
disaster. Blair Seaborn was commissioned by the Solicitor General to investigate
the role of intelligence, inter alia, in aviation security matters.
19
�20
Reader’s Guide
�List of Acronyms
Acronyms
ACI
ACIIS
ACPA
ACS Initiative
ADO
ADR
AG
AGAS
AG BC
AGC
AI
AICCA
AICVWS
AITF
AIVFA
AKJ
ALARA
ALPA
AML
AML/ATF
AML/CFT
APEC
API/PNR
APO
ARAACP
ASIO
ATA
ATAC
ATF
ATFT
ATSC
AVSEC Panel
BC
BK
BOAC
BPR
BSO
BSS
C
Airports Council International
Automated Criminal Intelligence Information System
Air Canada Pilots Association
Air Cargo Security Initiative
Assistant Director of Operations (CSIS)
Assistant Director, Requirements and Analysis
Attorney General
Advisory Group on Aviation Security
Attorney General for British Columbia
Attorney General of Canada
Air India
Air India Cabin Crew Association
Air India Crown Victims and Witnesses Service
Air India Task Force
Air India Victims Families Association
Akhand Kirtani Jotha
As Low As Reasonably Achievable
Air Line Pilots Association, International
Anti-Money Laundering
Anti-Money Laundering and Anti-Terrorist Financing
Anti-Money Laundering and Counter-Terrorist Financing
Asia-Pacific Economic Cooperation
Advance Passenger Information and Passenger Name
Record
Aircraft Protective Officer
Aerodrome Restricted Area Access Clearance Program
Australian Security Intelligence Organisation
Anti-terrorism Act
Air Transport Association of Canada
Anti-Terrorist Financing
Anti-Terrorist Financing Team
Air Travellers Security Charge
Aviation Security Panel
British Columbia
Babbar Khalsa
British Overseas Airways Corporation
Behavioural Pattern Recognition
Border Services Officer (CBSA)
British Secret Service
Compliant (FATF Rating)
�22
Reader’s Guide
CAC
CACP
CACPP
CAFAS
CAIR-CAN
CAJ
CAPI
CASB
CATA
CATSA
CBA
CBCR
CBI
CBSA
CBSR
C-CAT
CCD
CCLA
CCSI
CCTV
C Directorate
CEA
CEIC
CFT
CI
CIB
CIC
CID
CIFFA
CIO
CIP
CIS
CISBC
CI&W
CJC
CJC
CLA
CLEU
CMCLA
CO
CO
CP or CP Air
CP
CPC
CPIC
CRA
CRCVC
CRSIA
Canadian Airports Council
Canadian Association of Chiefs of Police
Canadian Air Carrier Protective Program
Consolidated Aviation Fuelling and Services
Canadian Council on American Islamic Relations
Canadian Association of Journalists
Civil Aviation Protective Intelligence
Canadian Aviation Safety Board
Canadian Air Transportation Administration
Canadian Air Transport Security Authority
Canadian Bar Association
Cross-Border Currency Report (CBSA)
Central Bureau of Investigation (India)
Canada Border Services Agency
Cross-Border Seizure Report
Canadian Coalition Against Terror
Canadian Coalition for Democracies
Canadian Civil Liberties Association
Cabinet Committee on Security and Intelligence
Closed Circuit Television
Criminal Operations Directorate of RCMP
Canada Evidence Act
Canada Employment and Immigration Commission
Countering the Financing of Terrorism
Counter-Intelligence
Criminal Investigation Branch
Citizenship and Immigration Canada
Criminal Intelligence Directorate (RCMP)
Canadian International Freight Forwarders Association
Communications Intercept Officer (CSIS)
Communications Intelligence Production
Criminal Intelligence Service
Criminal Intelligence Service of British Columbia
Communication Intelligence and Warrants
Canadian Jewish Congress
Canadian Judicial Council
Criminal Lawyers’ Association
Coordinated Law Enforcement Unit (BC)
Canadian Muslim Civil Liberties Association
Charitable Organization
Commanding Officer
Canadian Pacific Airlines
Counter-Proliferation (CSIS branch)
Commission for Public Complaints Against the RCMP
Canadian Police Information Centre
Canada Revenue Agency
Canadian Resource Centre for Victims of Crime
Charities Registration (Security Information) Act
�List of Acronyms
CS
CSC
CSE
CSEC
CSIS
Cst.
C/Supt.
CT
CT or CAT, CT-X
CTC
CTF
DDG, ops
DDR
DEA
DFAIT
DG
DHS
DIO
DND
DNI
DOJ
DOT
DPP
DSSO
DTP
EACSR
ECAC
EDD
EDS
EDT
EDU
E&FE
EFTR
EVD
FAA
FATF
FAU
FBO
FININT
FINTRAC
FIU
FLQ
FLSC
FMCMV/IN
Counter-subversion
Correctional Service of Canada
Communications Security Establishment
Communications Security Establishment Canada
Canadian Security Intelligence Service
Constable
Chief Superintendent
Counterterrorism
Computed Tomography
Counter-Terrorism Committee (United Nations Security
Council) - (see also UN CTC)
Counter-Terrorist Financing
Deputy Director General, Operations
Deputy Director of National Requirements
Department of External Affairs
Department of Foreign Affairs and International Trade
Director General
Department of Homeland Security (US)
District Intelligence Officer
Department of National Defence
Director of National Intelligence (US)
Department of Justice
Department of Transport (see also MOT and TC)
Director of Public Prosecutions
Designation Standards for Screening Officers
Director of Terrorism Prosecutions
External Advisory Committee on Smart Regulation
European Civil Aviation Conference
Explosives Detection Dog
Explosives Detection Systems
Explosive-Detecting Trace systems
Explosives Detection Unit (RCMP)
Europe and Far East (CSIS section that was also called
Western Europe and the Pacific Rim)
Electronic Fund Transfer Report
Explosives Vapour Detection
Federal Aviation Administration (US)
Financial Action Task Force
Financial Analysis Unit (CSIS)
Fixed Base Operation
Financial Intelligence
Financial Transactions and Reports Analysis Centre of
Canada
Financial Intelligence Unit
Front de Libération du Québec
Federation of Law Societies of Canada
Family Members of the Crew Member Victims of Air
India Flight 182 and India Nationals
23
�24
Reader’s Guide
GA
GIS
GMT
GOC
GOI
GTTA
HBS
HHMD
HQ
IAB
IAC
IATA
IBET
I/C
ICAO
ICLT
ICSI
IED
IG
IMF
IM/IM
INSET
Insp. or Inspt.
IO
IPOC
IR
IRPA
I&S
ISO
ISYF
IT
ITA
ITAC
IVTS
JFO
JIC
JMT
LC
LCTR
LO
LTTE
MANPAD
MATRA
MI5
MILF
ML
MLAT
General Aviation
General Investigation Section
Greenwich Mean Time
Government of Canada
Government of India
Greater Toronto Airports Authority
Hold Bag Screening
Hand-Held Metal Detector (wand-type)
Headquarters
Intelligence Assessment Branch (CSIS)
Intelligence Advisory Committee
International Air Transport Association
Integrated Border Enforcement Team
In Charge
International Civil Aviation Organization
Indo-Canadian Liaison Team (VPD)
Interdepartmental Committee on Security and
Intelligence
Improvised Explosive Device
Inspector General (CSIS)
International Monetary Fund
Incident Management Intervention Model
Integrated National Security Enforcement Team
Inspector
Intelligence Officer
Integrated Proceeds of Crime Unit (RCMP)
Intelligence Requirement(s)
Immigration and Refugee Protection Act
Intelligence and Security
International Standards Organization
International Sikh Youth Federation
International Terrorism (CSIS branch)
Income Tax Act
Integrated Threat Assessment Centre (CSIS)
Informal Value Transfer System
Joint Forces Operations
Joint Intelligence Committee (UK)
Joint Management Team (CSIS-RCMP)
Largely Compliant (FATF Rating)
Large Cash Transaction Report
Liaison Officer
Liberation Tigers of Tamil Eelam
Man-Portable Air Defence System
Multi-Agency Threat and Risk Assessment
British Security Service
Moro Islamic Liberation Front
Money Laundering
Mutual Legal Assistance Treaty
�List of Acronyms
MOA
MOT
MOU
MSB
NAPSP
NC
NCCT
NCIB
NCIS
NCO
NPO
NPRM
NPS
NSA
NSC
NSCIS
NSE
NSID
NSIS
NSOB
NSOS
NSOTF
NSR
NSTAS
NSY SB
OAS
OAS
OCP
OIC
OP
OPC
OPP
OPRC
ops
OSA
OSCE
OSFI
PBS
PC
PCMLTFA
PCO
P Directorate
PEP
PFLP
PHRO
PIA
Memorandum of Agreement
Ministry of Transport (see also DOT and TC)
Memorandum of Understanding
Money Services Business
National Airport Policing and Security Program
Non-Compliant (FATF Rating)
Non-Cooperative Countries and Territories (FATF)
National Criminal Intelligence Branch
National Criminal Intelligence Section (in each RCMP
division)
Non-Commissioned Officer
Non-Profit Organization or Not-For-Profit Organization
Notice of Proposed Rulemaking
Non-Passenger Screening
National Security Advisor
National Security Confidentiality
National Security Criminal Investigations Section
National Security Enforcement (added to NCIB)
National Security Investigations Directorate
National Security Investigations Section
National Security Operations Branch (RCMP)
National Security Offences Section
National Security Offences Task Force
Narrative Storage and Retrieval (System)
National Security Threat Assessment Section (RCMP)
New Scotland Yard, Special Branch
Operational Auxiliary Section (VPD)
Organization of American States
Ottawa City Police
Officer In Charge
Observation Post
Office of the Privacy Commissioner of Canada
Ontario Provincial Police
Operational Priorities Review Committee
Operations
Official Secrets Act
Organization for Security and Co-operation in Europe
Office of the Superintendent of Financial Institutions
Pre-Board Screening
Partially Compliant (FATF Rating)
Proceeds of Crime (Money Laundering) andTerrorist
Financing Act
Privy Council Office
Protective Policing Directorate (RCMP)
Politically-Exposed Person
Popular Front for the Liberation of Palestine
Punjabi Human Rights Organization
Pearson International Airport
25
�26
Reader’s Guide
PIRS
PMO
POC
PPP
PRPF
PS or PSC
PSD
PSEPC
PSU
PTV
QPF
RAD
RAIC
RAP
RAW
RCMP
RCMP SS
RFID
RIUNRST
RIUNSTR
SAC
SDS
SeMS
Sgt.
SIGINT
SIRC
SIT
SLO
SOP
SOS
SOS
SPL
SPOT
SPP
SPROS
SQ
SR
SRAS
SS
SSCMS
SSEA
S/Sgt.
SSO
STR
Police Information Retrieval System
Prime Minister’s Office
Proceeds of Crime
Passenger Protect Program
Peel Regional Police Force
Public Safety Canada (successor to PSEPC)
Police Service Dog
Public Safety and Emergency Preparedness Canada
Physical Surveillance Unit
Passenger Transfer Vehicle
Quebec Police Force
Research and Analysis Division (CRA’s Charities
Directorate)
Restricted Area Identification Card
Restricted Area Pass
Research and Analysis Wing, India Intelligence
Agencies
Royal Canadian Mounted Police
RCMP Security Service
Radiofrequency Identification
Regulations Implementing the United Nations
Resolutions on the Suppression of Terrorism
Regulations Implementing the United Nations
Resolutions on the Suppression of Terrorism
Security Advisory Committee
Suspect Detect System
Security Management Systems
Sergeant
Signals Intelligence (Foreign)
Security Intelligence Review Committee
Security Intelligence Transition (Group)
Security Liaison Officer
Standard Operating Procedures
Security Offences Section (RCMP)
Special Operations Security
Specified Persons List
Screening of Passengers by Observation Techniques
Security and Prosperity Partnership of North America
Secure Police Reporting Operating System
Sûreté du Québec
Special Recommendation (FATF)
Secure Remote Access Security Database
Security Service (RCMP)
Secure Supply Chain Management System
Secretary of State for External Affairs
Staff Sergeant
Security Screening Order
Suspicious Transaction Report
�List of Acronyms
STS
TA
TAPP
TARC
TAU
TC
TF
TFU
TIPS
TNA
TPR
TSA
TSC
TWA
U/F
UK
U/M
UN
UNAQTR
UN CTC
UNSTR
US
USAP
USSS
VDS
VIA
VIIU
VIP
VIR
VPD
VSI
WAC&R
WPP
WPPA
WRC
WSO
WTM
WTMD
XRT
Scientific and Technical Services
Threat Assessment
Technical Aids Policies and Procedures (CSIS)
Target Approval and Review Committee
Threat Assessment Unit (CSIS)
Transport Canada (see also DOT and MOT)
Terrorist Financing
Terrorist Financing Unit (CSIS)
Threat Image Projection System
Thermal Neutron Activation
Terrorist Property Report
Transportation Security Administration (US)
Transport Security Clearance
Trans World Airlines
Unidentified Female
United Kingdom
Unidentified Male
United Nations
United Nations Al-Qaida and Taliban Regulations
United Nations Counter-Terrorism Committee (see also
CTC)
United Nations Suppression of Terrorism Regulations
United States
Universal Security Audit Program (ICAO)
United States Secret Service
Vancouver Drug Squad
Vancouver International Airport
Vancouver Integrated Intelligence Unit
Very Important Person
Voluntary Information Record
Vancouver Police Department
Voluntary Sector Initiative (CRA’s Charities Directorate)
Warrant Acquisition Control and Requirements
Witness Protection Program
Witness Protection Program Act
Warrant Review Committee
World Sikh Organization
World Tamil Movement
Walk-Through Metal Detector (archway)
X-ray Tutor
27
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Reader’s Guide
�
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PDF Text
Text
Air India Flight 182
A Canadian Tragedy
VOLUME ONE
The Overview
�©Her Majesty the Queen in Right of Canada, represented by the
Minister of Public Works and Government Services, 2010
Cat. No: CP32-89/2-2010E
ISBN: 978-0-660-19926-9
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
K1A 0S5
Telephone: (613) 941-5995 or 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Publications@pwgsc.gc.ca
Internet: www.publications.gc.ca
��Volume One: The Overview
�Volume One: The Overview
TERMS OF REFERENCE
Her Excellency the Governor General in Council, on the recommendation
of the Prime Minister, hereby directs that a Commission do issue under
Part I of the Inquiries Act and under the Great Seal of Canada appointing
the Honourable John C. Major, Q.C., as Commissioner to conduct an
inquiry into the investigation of the bombing of Air India Flight 182 (the
“Inquiry”), which Commission shall direct
a.
the Commissioner to conduct the Inquiry as he considers appropriate
with respect to accepting as conclusive or giving weight to the
findings of other examinations of the circumstances surrounding
the bombing of Air India Flight 182, including
i.
the report of the Honourable Bob Rae entitled Lessons to
Be Learned of November 23, 2005,
ii.
proceedings before the superior courts of British Columbia,
iii.
the 1991-1992 Security Intelligence Review Committee
review of Canadian Security Intelligence Service activities
in regard to the destruction of Air India Flight 182,
iv.
the report of the Honourable Mr. Justice B.N. Kirpal of the
High Court of Delhi of February 26, 1986,
v.
the Aviation Occurrence Report of the Canadian Aviation
Safety Board into the crash involving Air India Flight 182
of January 22, 1986,
vi.
the 1985 report of Blair Seaborn entitled Security
Arrangements Affecting Airports and Airlines in Canada, and
vii.
the reports prepared by the Independent Advisory Panel
assigned by the Minister of Transport to review the provisions
of the Canadian Air Transport Security Authority Act, the
operations of the Canadian Air Transport Security Authority and
other matters relating to aviation security;
�Volume One: The Overview
b.
the Commissioner to conduct the Inquiry specifically for the purpose
of making findings and recommendations with respect to the
following, namely,
i.
if there were deficiencies in the assessment by Canadian
government officials of the potential threat posed by Sikh
terrorism before or after 1985, or in their response to that
threat, whether any changes in practice or legislation are
required to prevent the recurrence of similar deficiencies
in the assessment of terrorist threats in the future,
ii.
if there were problems in the effective cooperation between
government departments and agencies, including the Canadian
Security Intelligence Service and the Royal Canadian Mounted
Police, in the investigation of the bombing of Air India Flight 182,
either before or after June 23, 1985, whether any changes In
practice or legislation are required to prevent the recurrence
of similar problems of cooperation in the investigation of
terrorism offences in the future,
iii.
the manner in which the Canadian government should
address the challenge, as revealed by the investigation
and prosecutions in the Air India matter, of establishing
a reliable and workable relationship between security
intelligence and evidence that can be used in a criminal
trial,
iv.
whether Canada’s existing legal framework provides
adequate constraints on terrorist financing in, from or
through Canada, including constraints on the use or
misuse of funds from charitable organizations,
v.
whether existing practices or legislation provide adequate
protection for witnesses against intimidation in the course
of the investigation or prosecution of terrorism cases,
vi. whether the unique challenges presented by the
prosecution of terrorism cases, as revealed by the
prosecutions in the Air India matter, are adequately
addressed by existing practices or legislation and,
if not, the changes in practice or legislation that
are required to address these challenges, including
whether there is merit in having terrorism cases
heard by a panel of three judges, and
�Volume One: The Overview
vii. whether further changes in practice or legislation are
required to address the specific aviation security breaches
associated with the Air India Flight 182 bombing, particularly
those relating to the screening of passengers and their
baggage;
c.
the Commissioner to conduct the Inquiry under the name of the
Commission of Inquiry into the Investigation of the Bombing of
Air India Flight 182;
d.
that the Commissioner be authorized to adopt any procedures
and methods that he may consider expedient for the
proper conduct of the Inquiry, and to sit at any times and in any
places in or outside Canada that he may decide;
e.
that the Commissioner be authorized to conduct consultations
in relation to the Inquiry as he sees fit;
f.
that the Commissioner be authorized to grant to the families
of the victims of the Air India Flight 182 bombing an opportunity
for appropriate participation in the Inquiry;
g.
that the Commissioner be authorized to recommend to the
Clerk of the Privy Council that funding be provided, in accordance
with approved guidelines respecting rates of remuneration and
reimbursement and the assessment of accounts, to ensure the
appropriate participation of the families of the victims of the Air
India Flight 182 bombing;
h.
that the Commissioner be authorized to grant to any other
person who satisfies him that he or she has a substantial
and direct interest in the subject-matter of the Inquiry
an opportunity for appropriate participation in the Inquiry;
i.
that the Commissioner be authorized to recommend to
the Clerk of the Privy Council that funding be provided,
in accordance with approved guidelines respecting rates of
remuneration and reimbursement and the assessment of
accounts, to ensure the appropriate participation of any party
granted standing under paragraph (h), to the extent of the
party’s interest, where in the Commissioner’s view the party
would not otherwise be able to participate in the Inquiry;
�Volume One: The Overview
j.
that the Commissioner be authorized to rent any space and
facilities that may be required for the purposes of the Inquiry,
in accordance with Treasury Board policies;
k.
the Commissioner to use the automated litigation support
program specified by the Attorney General of Canada and
to rely, to the greatest extent possible, on documents that have
been previously identified for use in Canadian criminal proceedings
arising from the bombing of Air India Flight 182, and to consult with
records management officials within the Privy Council Office on the
use of standards and systems that are specifically designed for
the purpose of managing records;
l.
that the Commissioner be authorized to engage the services
of any experts and other persons referred to in section 11 of
the Inquiries Act, at rates of remuneration and reimbursement
approved by the Treasury Board;
m. the Commissioner, in conducting the Inquiry, to take all steps
necessary to prevent disclosure of information which, if it
were disclosed, could, in the opinion of the Commissioner,
be injurious to international relations, national defence or
national security and to conduct the proceedings in accordance
with the following procedures, namely,
i.
on the request of the Attorney General of Canada, the
Commissioner shall receive information in camera and
in the absence of any party and their counsel if, in the
opinion of the Commissioner, the disclosure of that
information could be injurious to international relations,
national defence or national security,
ii.
the Commissioner may release a part or a summary of
the information received in camera, if, in the opinion
of the Commissioner, its disclosure would not be injurious
to international relations, national defence or national
security, and shall provide the Attorney General of Canada
with an opportunity to make submissions regarding
international relations, national defence or national security
prior to any release of a part or a summary of information
received in camera,
iii. if the Commissioner concludes that, contrary to the
submissions of the Attorney General of Canada referred to
in subparagraph (ii), disclosure of a part or a summary of
information received in camera would not be injurious
to international relations, national defence or national
�Volume One: The Overview
security, he shall so notify the Attorney General of Canada,
which notice shall constitute notice under section 38.0 of
the Canada Evidence Act,
iv.
the Commissioner shall provide the Attorney General
of Canada with an opportunity to make submissions
regarding international relations, national defence
or national security with respect to any reports that are
intended for release to the public prior to submitting
such reports to the Governor in Council, and
v.
if the Commissioner concludes that, contrary to the
submissions of the Attorney General of Canada referred to
in subparagraph (iv), disclosureof information contained
in reports intended for release to the public would
not be injurious to international relations, national defence
or national security, he shall so notify the Attorney General of
Canada, which notice shall constitute notice under
section 38.01 of the Canada Evidence Act;
n.
that nothing in that Commission shall be construed as limiting the
application of the provisions of the Canada Evidence Act;
o.
the Commissioner to follow established security procedures,
including the requirements of the Government Security Policy,
with respect to persons engaged pursuant to section 11
of the Inquiries Act and the handling of information at all stages of
the Inquiry;
p.
the Commissioner to perform his duties without expressing
any conclusion or recommendation regarding the civil or
criminal liability of any person or organization;
q.
the Commissioner to perform his duties in such a way as to
ensure that the conduct of the Inquiry does not jeopardize any
ongoing criminal investigation or criminal proceeding;
r.
the Commissioner to file the papers and records of the Inquiry
with the Clerk of the Privy Council as soon as reasonably possible
after the conclusion of the Inquiry;
s.
the Commissioner to submit a report or reports, simultaneously
in both official languages, to the Governor in Council; and
t.
the Commissioner to ensure that members of the public can,
simultaneously in both official languages, communicate with, and
obtain services from it, including transcripts of proceedings if made
available to the public.
�Volume One: The Overview
�Volume One: The Overview
AIR INDIA FLIGHT 182: A CANADIAN TRAGEDY
REPORT TABLE OF CONTENTS
VOLUME ONE
The Overview
Letter of Transmittal
Order in Council
Chapter I:
Chapter II:
Chapter III:
Chapter IV:
Chapter V:
Chapter VI:
Chapter VII:
Introduction
The Inquiry Process
Historical
Intelligence and Evidence
Aviation Security
Terrorist Financing
Recommendations and Observations
ANNEXES
A: Commission Rulings
B: Parties and Intervenors
C: Commission Staff and Counsel
D: Witness List
VOLUME TWO
Part 1: Pre-Bombing
Chapter I:
Chapter II:
Chapter III:
Chapter IV:
Chapter V:
What Was Known about the Threat
Threat Assessment and Response
What Went Wrong
Responding to the Threat
The Day of the Bombing
Part 2: Post-Bombing: Investigation and Response
Chapter I:
Human Sources: Approach to Sources and Witness
Protection
�Volume One: The Overview
Chapter II:
Chapter III:
Chapter IV:
Chapter V:
RCMP Post-Bombing
CSIS Post-Bombing
CSIS/RCMP Information Sharing
The Overall Government Response to the
Air India Bombing
VOLUME THREE
The Relationship between Intelligence and Evidence
and the Challenges of Terrorism Prosecutions
Chapter I:
Chapter II:
Chapter III:
Chapter IV:
Chapter V:
Chapter VI:
Chapter VII:
Chapter VIII:
Chapter IX:
Chapter X:
Introduction
Coordinating the Intelligence/Evidence
Relationship
Coordinating Terrorist Prosecutions
The Collection and Retention of Intelligence:
Modernizing the CSIS Act
The Disclosure and Production of Intelligence
The Role of Privileges in Preventing the
Disclosure of Intelligence
Judicial Procedures to Obtain Non-Disclosure
Orders in Individual Cases
Managing the Consequences of Disclosure:
Witness and Source Protection
Managing the Consequences of Disclosure:
The Air India Trial and the Management of
other Complex Terrorism Prosecutions
Recommendations
VOLUME FOUR
Aviation Security
Chapter I: Introduction
Chapter II: Responses to the Bombing of Air India Flight 182
Chapter III: Civil Aviation Security in the Present Day
Epilogue
Chapter IV: Recommendations
Appendices
�Volume One: The Overview
VOLUME FIVE
Terrorist Financing
Chapter I:
Chapter II:
Chapter III:
Chapter IV:
Chapter V:
Chapter VI:
Chapter VII:
Terrorist Financing – An Overview
Canadian Legislation Governing Terrorist
Financing
The Roles of Federal Departments and Agencies
in Efforts to Suppress Terrorist Financing
External Reviews of Canada’s Anti-TF Program
Canada’s Response to Reviews of its Anti-TF
Program
The Links between the Charitable Sector and
Terrorist Financing
Resolving the Challenges of Terrorist Financing
READER’S GUIDE
Acronyms and Key Names
�Volume One: The Overview
�Volume One: The Overview
VOLUME ONE
THE OVERVIEW
TABLE OF CONTENTS
CHAPTER I: INTRODUCTION
21
The Past
22
1.0 Pre-Bombing: Assessment of and Response to the Threat
1.1 Agencies’ Preparedness for the Threat of Terrorism
1.1.1 CSIS
1.1.2 RCMP
1.1.3 Transport Canada
1.1.4 RCMP Protective Policing
1.1.5 Air India
22
22
22
23
24
24
25
1.2 The “Mosaic Effect”: Did the Government Have Advance
Warning of a Possible Bomb Attack on Flight 182
1.3 Conclusion: Pre-Bombing
1.4 Post-Bombing: CSIS/RCMP Cooperation
1.4.1 CSIS Does Not Collect Evidence
1.4.2 The Battle over Sources
1.4.3 The RCMP Investigation
1.5 Conclusion: Post-Bombing
26
28
28
28
29
30
31
The Future
31
1.6
1.7
1.8
1.9
32
33
34
Aviation Security
Terrorism and Criminal Prosecution
Terrorist Financing
The Government, the Families, and the Role of a
Public Inquiry
1.9.1 The Present Inquiry
1.9.2 Racism
1.9.3 Treatment of the Families
1.10 Doing More for the Families
34
36
38
38
39
�Volume One: The Overview
CHAPTER II: THE INQUIRY PROCESS
41
2.0 Introduction
2.1 Outline of the Inquiry Process
2.1.1 Mandate and Initial Process
2.1.2 Document Collection Process
2.1.3 National Security Confidentiality Claims and
Redaction of Documents
2.1.4 Conduct of the Stage 2 Hearings
2.1.5 Section 13 Notices
2.1.6 Inquiry Report
2.1.7 Research Papers
2.2 Managing the Proceedings and Inherent Challenges
2.3 Special Procedural Challenges
2.3.1 The Importance of Public Hearings
2.3.2 The Impact of NSC Claims
2.3.3 The Nature of the Government’s NSC Claims
2.3.4 Identification of Relevant Information
2.3.5 Resource Issues
2.3.6 Representation of Government Agencies
2.3.7 Ongoing Investigations
2.3.8 Witness Interviews
2.4 Conclusion
41
41
44
45
45
48
50
50
51
53
56
56
59
61
66
72
74
79
81
82
CHAPTER III: HISTORICAL
83
3.0 Pre-Bombing: Assessment and Response to the Threat
3.1 Intelligence and the CSIS Investigation
3.1.1 Physical Surveillance
3.1.2 Electronic Surveillance
3.2 The RCMP Response
3.3 What Was Known
3.4 Response to the Threat
3.5 The Bombing of Air India Flight 182: A Litany of Security
Breaches
3.6 Resources and Privatization
3.7 Lack of Sensitivity to Emerging Threats
3.7.1 Information Sharing and Coordination
3.7.2 Lack of Risk Analysis and Misuse of “Specific Threat”
Concept
3.8 Ineffective Regulation
Post-Bombing: RCMP/CSIS Cooperation
83
84
87
89
90
95
103
104
107
110
110
112
114
116
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3.9 Human Sources: Approach to Sources and Witness Protection
3.9.1 A Lack of Effective Governance
3.9.2 CSIS: Refusal to Collect Evidence
3.9.3 RCMP: Refusal to Collect Anything But Evidence
3.9.4 Lack of Effective Source / Witness Protection
3.10 RCMP Investigation
3.10.1
National Security without Intelligence
Gathering
3.10.2
Premature Dismissal of Intelligence
and Theory of the Case
3.11 The Sharing and Use of CSIS Information
3.11.1
Early Access to and Use of CSIS Information
3.11.2
The Reyat Trial and Beyond
3.12 Overall Government Response to the Air India Bombing
3.12.1
The Government’s Past Response
Defensiveness
Resistance to Review
3.12.2
The Government’s Voice
3.12.3
That Was Then, This Is Now
3.12.4
The Present Inquiry
116
116
119
121
125
127
CHAPTER IV: INTELLIGENCE AND EVIDENCE
147
4.0 Introduction
4.1 Secrecy vs. Openness
4.2 Concurrent National Security Mandates and Information
Sharing
4.3 Ineffective Responses to the Disclosure Dilemma
4.3.1 Informal Solutions
4.3.2 Proposed Legislative Changes
4.4 Towards the Effective Management of the “Intelligence
into Evidence” Problem
4.5 Reforming Decision-Making
4.5.1 The National Security Advisor
4.5.2 Director of Terrorism Prosecutions
4.6 Determining National Security Privilege Claims
4.7 “Disclose or Dismiss”: The Role of the Attorney General
of Canada
4.8 Source and Witness Protection
4.9 Conclusion
147
147
128
130
135
135
136
138
139
139
141
142
142
143
150
151
151
152
155
157
157
159
160
161
162
163
�Volume One: The Overview
CHAPTER V: AVIATION SECURITY
165
5.0 Introduction
5.1 The Bombing of Air India Flight 182: A Multifaceted Failure of
Aviation Security
5.2 From Hijacking to Sabotage: Evolution of the Terrorist Threat
5.3 Domestic and International Responses to the Bombing
5.4 The Commission’s Aviation Security Mandate
5.5 Passenger and Baggage Screening Today
5.6 The Long-Standing Inadequacy of Canada’s Air Cargo
Security Measures
5.7 Improving Airport Security
5.8 Identifying the Threat: Past, Present and Future
5.9 Use of Intelligence
5.10 Risk Management
5.11 Oversight of Aviation Security
5.12 Limits on Civil Aviation Security
5.13 Duty to Warn
5.14 Funding Aviation Security
5.15 Conclusion
165
165
168
169
170
171
174
176
178
179
179
180
182
182
183
183
CHAPTER VI: TERRORIST FINANCING
185
6.0
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
185
186
187
187
188
188
188
189
Introduction
The Importance of Legislating Against Terrorist Financing
The 2001 and 2006 Reforms
The Money Laundering Model
FINTRAC and its Private Sector Partners
Information Supplied to FINTRAC Voluntarily by Other Agencies
Information Sharing
Secondments, Joint Training and the Kanishka Centre
The Value of Continual Review of the Effectiveness of Antiterrorism Measures
6.9 Charities and Terrorist Financing
6.10 Intermediate Sanctions
6.11 Non-Profit Organizations: A Gap in the System
190
190
191
191
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CHAPTER VII: RECOMMENDATIONS AND OBSERVATIONS
193
ANNEXES
219
A: COMMISSION RULINGS
B: PARTIES AND INTERVENORS
C: COMMISSION OF INQUIRY STAFF AND CONSULTANTS
D: WITNESS LIST
221
243
245
247
�Volume One: The Overview
�VOLUME ONE
THE OVERVIEW
CHAPTER I: INTRODUCTION
On June 23, 1985, a bomb explosion killed the 329 passengers
and crew of Air India Flight 182* in mid-flight. Fifty-nine minutes
earlier, at Tokyo’s Narita Airport, two baggage handlers were killed
by an explosion from a bomb while offloading luggage from a
Canadian Pacific Airlines flight. The luggage had been destined for
an Air India flight. Both bombs were planted in suitcases by the
same group of Sikh terrorists. Three hundred and thirty-one people
were killed.
There have been two criminal trials. At each, Inderjit Singh
Reyat was convicted for manslaughter for his involvement in the
explosions, which were found to be part of a criminal conspiracy. In
2005, two accused were acquitted of the crimes. No other persons
have been charged.
This remains the largest mass murder in Canadian history,
and was the result of a cascading series of errors.
***
This is a large report, covering seven substantive Terms of Reference, and events
commencing over twenty years ago.
Its size reflects the ambitious mandate that has been assigned to this Commission,
encompassing a review and evaluation of the performance and interactions of
government agencies before and after the bombing, along with a request for
recommendations in some of the most difficult and complex areas in relation to
this country’s response to the murderous phenomenon of terrorism.
The size of the report also reflects the Commission’s view of its obligation to lay
out in comprehensive detail the facts about the Government’s preparedness
for the possibility of the bombing and for the subsequent post-bombing
investigation. At a minimum, this much is owed to the families of the victims
and to the Canadian public at large.
Important new facts came to light during the hearings and the documentary
review conducted by the Commission. The Commission viewed it as an
important part of its mandate to establish the official public record of this event
and the Report attempts to do so in a comprehensive fashion.
* The Boeing 747 “Kaniskha” flew into Montreal as Air India Flight 181 and departed as Air India Flight 182.
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Volume One: The Overview
The Commission’s mandate to provide realistic and pragmatic
recommendations for complex policy issues means that the portions of the
Report devoted to that endeavour must also be detailed, comprehensive and
fully informed by the current state of expert understanding in these areas.
This volume is provided for those who want a quick and convenient ‘bottom line’
discussion of the issues. The Overview is not a substitute for the Report nor is it,
strictly speaking, an Executive Summary. It is designed to function as a type of
reader’s guide to the Report, presenting, in an accessible form, highlights of the
major observations and findings in the Report. It does not attempt to condense
the Report, but rather to reflect on it, bringing together themes and conclusions
based on the larger Report.
This first chapter of this volume is an introduction, to orient the reader to
the discussion that follows. It is a high-level capsule summary of some of the
findings and conclusions reached by the Commission. Most, but not all, of these
conclusions are also discussed in the volume itself and detailed in the body of
the Report.
The Past
1.0 Pre-Bombing: Assessment of and Response to the Threat
1.1 Agencies’ Preparedness for the Threat of Terrorism
The Government of Canada and its agencies were not prepared for a terrorist
act like the bombing of Flight 182.
1.1.1 CSIS
CSIS had been created less than a year before the terrorist attack. At the time,
it was still primarily focused on Cold War priorities like counter-espionage.
CSIS was poorly trained and under-resourced for counter-terrorism, and what
resources existed were focused primarily on threats other than those emanating
from Sikh extremism.
Although human sources are the lifeblood of intelligence, CSIS had few, if any,
sources in the Sikh community in the pre-bombing period. Its ability to respond
to Sikh terrorism was further impaired by unwieldy policies and procedures for
wiretaps.
There seemed little sense of purpose to CSIS intelligence gathering in this
area. The information gathered from the wiretap on Talwinder Singh Parmar,1
obtained after months of delay, was not processed effectively or in a timely
manner; it was ignored by CSIS investigators and, to compound the problem,
1
The person who, at the time, was thought to be the leader of a terrorist group.
�Chapter I: Introduction
the tapes of the wiretap were prematurely and unthinkingly erased, even
after the bombing. Surveillance on Parmar was intermittent and ineffective.
Even though a surveillance team was present when Parmar and his associates
detonated a device in the woods near Duncan, causing a loud explosive sound,
the sound was misinterpreted and the surveillance report was ignored. Despite
the remarkable and unambiguously alarming behaviour witnessed by the
surveillance team, further surveillance was called off on the very day of the
bombing in order to follow a Cold War target.
Most importantly, however, the CSIS analysis of the threat posed by Sikh
extremism was handicapped because it was not provided with key intelligence
information in the possession of the RCMP and the Communications Security
Establishment (CSE).
1.1.2 RCMP
In the wake of the creation of CSIS, the RCMP attempted to reconstitute its
intelligence capacity on the basis of a misguided emphasis on its mandate to
investigate “security offences” for criminal purposes. The decentralized RCMP
structure was not easily adaptable to the needs of intelligence gathering and
analysis. Little thought was put into the reporting relationships and requirements
that would allow for effective collection and analysis of intelligence information.
The result was that, at best, the RCMP duplicated CSIS intelligence gathering
and, at worst, it failed to report important information that CSIS might have
been able to use in its intelligence analysis.
Despite its aspirations to be an intelligence-gathering agency, the RCMP
showed a surprising lack of understanding of the nature or purpose of
intelligence gathering. The RCMP neglected to consider, let alone report or
pass on to CSIS, important information to which it had access from local forces,
such as the Khurana information about a comment by a Sikh extremist leader
in mid-June 1985, that something would be done in two weeks to address the
absence of attacks on Indian interests. The RCMP focused to such an extent on
gathering information of evidentiary value or admissibility that it prematurely
dismissed information that was useful intelligence. Often, the Force’s subjective
judgement of credibility for evidentiary use was inadequate even for criminal
law purposes, let alone as a justification for failing to report threat information
to other agencies.
The failure to understand the value of intelligence and the importance of
reporting meant that, when information was received by the RCMP, CSIS was
often not given a proper report. This is what happened with the November
Plot information about Sikh extremists who were planning to bomb one, and
possibly two, Air India planes in November 1984. This is also what happened
when, unforgivably, the RCMP did not forward to CSIS the June 1st Telex that set
out Air India’s own intelligence, forecasting a June terrorist attempt to bomb
an Air India flight by means of explosives hidden in checked baggage. This
fact, which the RCMP did not reveal to the Honorable Bob Rae in 2005, was
uncovered by the Commission.
23
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Volume One: The Overview
1.1.3 Transport Canada
As of the late 1970s, Transport Canada was aware of a major gap in this country’s
civil aviation security regime.
It was aware that the security plans in place focused on hijacking, even though
sabotage by means of concealed explosives was the greater and more urgent
risk. It was aware that Air India’s security plan was inadequate to deal with the
risk of sabotage by means of explosives and had even prepared a series of draft
regulations capable of responding to some of these problems, but did not push
for regulatory change until after the bombing.
Under the regulatory scheme in place, the airlines had responsibility for
implementing many of the key security measures. However, Transport Canada
had few, if any, mechanisms by which to ensure that the airlines actually
performed their functions effectively. It stood by, as a lax and ineffective security
culture permeated both private security and RCMP protective policing security
arrangements at airports.
On the day of the bombing, an unauthorized summer employee was able to
get on board the ill-fated Air India plane and circulate throughout the aircraft
unchallenged. Throughout the pre-bombing period, and even thereafter,
security checks were so lax that persons with known associations to Sikh
extremist groups had access to numerous highly sensitive areas at Vancouver
International Airport.
1.1.4 RCMP Protective Policing
RCMP Protective Policing played an important role in maintaining the security
of Canadian airports, but it was afflicted with poor morale and poor policies.
Protective policing was not valued within the structure of the RCMP, and was
often left out of the loop in terms of threat information because of the RCMP’s
failures in gathering and reporting that information. Protective Policing had no
analytical capability of its own to assess what information it did receive from
the airlines and External Affairs. It was entirely dependent on CSIS and on the
RCMP threat assessment processes, both of which regularly conducted their
analyses on the basis of incomplete information. Security measures in response
to possible threats to aviation were poorly thought-out and not tailored to meet
the particular nature of the actual threat. An undue and unreflective reliance
on the concept of “specific threat” meant that, in the absence of a same-day
phone-in bomb threat, certain types of security responses, including those
capable of detecting explosives in registered luggage, were not available. In
other circumstances, security measures were mechanically applied to a notional
“threat level” rather than being based on an analysis of the actual threat.
On the day of the bombing, despite the heightened threat environment, the
RCMP canine bomb sniffing unit, the single most effective means to detect
�Chapter I: Introduction
explosives, was entirely unavailable at Canadian airports because all the police
dogs and their handlers were at a training session in Vancouver. This occurred,
despite the fact that the RCMP knew of the increased threat to Air India. Included
in the intelligence at its command, was the June 1st Telex, which foretold a June
attack against an Air India flight. Yet the RCMP permitted its entire canine unit to
engage in a training session at the point when the threat was at its highest. The
RCMP and Transport Canada concealed and misrepresented this fact, up to and
including their submissions to the Honourable Bob Rae in 2005. In Montreal,
where a back-up dog was available, it was not even called into the airport until
after the plane had departed.
1.1.5 Air India
With the partial privatization of aviation security responsibilities at Canadian
airports, Air India was left to devise its own security program. Customer service
concerns often trumped security concerns, as Air India’s security operations
were heavily influenced by the need to speed up screening and to meet strict
timelines imposed by management.
Air India subcontracted security duties to private security firms whose employees
were poorly trained and poorly compensated. It placed its confidence in
technology that was known to be unreliable. Its equipment was not well
maintained and was poorly calibrated, with the result that its X-ray screening
equipment at Pearson broke down on the day of the bombing after screening
only a portion of the checked baggage.
The rest of the baggage was screened by use of a “PD4 sniffer” device. The
PD4 sniffer equipment had been demonstrated in tests at Pearson airport to
be ineffective in detecting explosives. On the day of the bombing the device
was being operated by security staff unfamiliar with it and untrained in its
operation.
Despite the detailed advice set out by the Air India intelligence bureau in the
June 1st Telex as to the security measures necessary to meet the risk of a terrorist
bombing, Air India did not deviate from its existing security plan. Specifically,
it did not implement measures suggested in the Telex, such as random physical
checks of registered luggage, that were designed to guard against the sort of
terrorist plan that caused the bombing of Flight 182.
Neither Transport Canada nor Air India were prepared for the possibility of an
unaccompanied interlined bag containing a bomb that could be placed on an
Air India flight. On June 22, 1985, those who plotted the Air India bombing
successfully used this means of placing the “unaccompanied, infiltrated” bag
on Air India Flight 182. Passenger-baggage reconciliation – something that
had been successfully implemented in Canada on an ad hoc basis prior to the
bombing – would have prevented the bomb from being placed on the flight.
25
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Volume One: The Overview
Despite the identification of several suspicious bags at Mirabel airport (the first
stop after take off from Pearson), cost considerations motivated the decision to
allow Flight 182 to depart. The plane was already late, and further delay would
have added a cost to Air India in the form of additional airport fees.
1.2 The “Mosaic Effect2”: Did the Government Have Advance
Warning of a Possible Bomb Attack on Flight 182
At the hearings, the Government tried to frame this question in terms of
whether government agencies had information about a “specific threat.” A
great deal of effort was expended in trying to demonstrate that pre-bombing
threat information lacked particularity and specificity, as an attempt to provide
justification for not employing measures tailored to meet the threat.
Nowhere did this strategy see greater expression and focus than in the
Government’s efforts to attack the credibility of James Bartleman, who, at the
time of the bombing, was Head of the Intelligence Bureau at External Affairs,
and subsequently became Lieutenant Governor of Ontario. Bartleman testified
that, shortly before the bombing, he saw a highly classified CSE document that
indicated that Flight 182 would be targeted by Sikh extremists.
Despite the vigour of the cross examination, Bartleman’s testimony, namely
that a document he saw led to the conclusion that the weekly Toronto to New
Delhi Air India flight was a likely terrorist target remains, in its essence, credible.
However, despite the Government’s strenuous efforts to make the case, it is
simply not accurate that other than Bartleman’s testimony, there was nothing
to suggest the existence of documents that should have led the Government to
have anticipated the bombing of Flight 182 and to have acted to put in place
security precautions to minimize the risk. To the contrary, Bartleman’s testimony,
was neither the only, nor even the most important evidence pointing to precisely
that conclusion. The Government strategy and its attack on Bartleman were
both misconceived.
The June 1st Telex was detailed and specific: as to the nature of the threat, as
to the means likely to be used, and as to the time frame of the danger. It even
provided a checklist of potential security measures capable of responding to
the threat. The RCMP did not pass the June 1st Telex on to anyone and never did
anything about it.
Given what else was known about Sikh extremism in Canada, the contents of
the June 1st Telex would, on their own, be enough to justify the Commission’s
conclusion that the Government was in possession of enough information to
2
The “mosaic effect” is the term used by intelligence agencies, often as an argument against the
release of information to the public. It suggests that an individual piece of information, though
seemingly insignificant on its own, may serve as the missing piece to a puzzle that allows a hostile
group see a pattern or draw conclusions about sensitive government secrets. This same process of
gathering and piecing together even seemingly insignificant information can equally be exploited to
further an agency’s own intelligence effort.
�Chapter I: Introduction
understand that there was a high risk of Sikh extremists trying to blow up an
Air India plane by means of explosives concealed in checked baggage. Those
contents would also, on their own, validate the further conclusion that it is
impossible to justify the state of security at that time at Pearson and Mirabel
airports, which was totally inadequate to deal with this threat.
But the June 1st Telex was not the only item of new intelligence to come to
light in June 1985. After the close of the hearings, the Commission’s review
of CSE material revealed that CSE was in possession of additional information
about threats indicating that during essentially the same time period, security
measures substantially similar to those listed in the June 1st Telex were being
mandated for Air India operations, inside and outside of India, in light of threats
of hijackings and bombings by Sikh extremists. As well, there was information
that Indian airports were undertaking security audits in response to these
instructions and that the Government of India had recently shown an increased
interest in the security of airports against the Sikh terrorist threat in June 1985.
Knowledge of the CSE information could have helped dispel the perception of
RCMP and Transport Canada officials that threats to Air India, such as the June
1st Telex, were provided to the Canadian Government as a means of obtaining
additional security for free. The fact that the Government of India was pursuing
anti-sabotage measures similar to those outlined in the June 1st Telex in June
1985 would seem to support the credibility of this threat. There is no record of
this information being circulated anywhere within the Canadian Government.
The Commission concludes that, in the hands of a skilled intelligence analyst,
the CSE information would, on its own, more than justify a review of the security
measures in place at Pearson and Mirabel to determine whether they were
adequate to deal with the risk identified in the information.
That, of course is exactly what Bartleman did as a result of the document he
testified to having seen. The document he described had more detail, in some
respects, than the June 1st Telex or the CSE information. But, even if it were no
more detailed than either of those pieces of information, it would have justified
Bartleman’s reaction of turning to the protective authorities in order to make
sure that they were aware of the threat information and had the response in
hand.
However, even without Bartleman’s document, there was enough information
in the hands of various Canadian authorities to make it inexcusable that the
system was unable to process that information correctly and ensure that there
were adequate security measures in place to deal with the threat. The June 1st
Telex, the November Plot information, the CSE information, the fact that the Sikh
extremist community in Canada had issued threats against Indian interests and
had engaged in violence, and the fact that CSIS suspected that Parmar would
engage in terrorist activities, all combine to create a mosaic of information
which clearly identified a particularised threat to Air India for the month of June
1985. This constellation of factors should have compelled the Government to
tailor and implement security measures to meet this identified threat.
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Volume One: The Overview
1.3 Conclusion: Pre-Bombing
The arrangements in place at the relevant government agencies in June 1985
were entirely inadequate to deal with the threat of Sikh extremism in general or
to anticipate and prevent the bombing of Flight 182.
1.4 Post-Bombing: CSIS/RCMP Cooperation
In the post-bombing period CSIS and RCMP cooperation was poor. Each
agency became unduly focused on its own mandate, and this prevented the
development of a cooperative and pragmatic approach to the investigation
of the bombing. Each agency relied on its inward-looking, silo-oriented
understanding of its own mandate to justify its failure to cooperate with the
other, and the “big picture” was lost.
1.4.1 CSIS Does Not Collect Evidence
In the aftermath of the bombing, it was CSIS that had the lion’s share of
information that might be relevant to the investigation of the bombing. Its
approach ranged from sporadic attempts at cooperation to frequent retreats
into its own independent mandate as a justification for non-involvement. There
was a degree of defensiveness and self-justification and even an apparent
attempt by CSIS to “solve” the bombing on its own.
Sharing by CSIS was never complete, and much of its reticence was expressed
in its mantra: “CSIS does not collect evidence.” This accurate statement of fact
- that CSIS was not a law enforcement agency and that its mandate was to
collect intelligence rather than to support prosecutions - soon lost its original
meaning and became a justification for CSIS to withhold information and ignore
its potential role as an aid to law enforcement. A variant of this formulation
was used to justify CSIS’s destruction of the Parmar tapes, though the evidence
suggests that the destruction was a result of CSIS’s automatic and unthinking
application of its erasure procedure, rather than having been done for any
ulterior motive. The same justification was invoked to explain the destruction
of original notes and tape recordings by CSIS of interviews with “Ms. E”, which
was one of many failures that served to impair the usefulness of her statements
as evidence at the Air India Trial.
On the other hand, CSIS did have some cause to be sceptical of the RCMP’s
ability to handle sensitive intelligence information. On one occasion, the
RCMP included sensitive CSIS information in court documents without CSIS’s
permission, and thereby endangered CSIS’s ongoing operations.
Ultimately, CSIS information was necessary to the prosecution in both the Narita
and the Air India trials, for use as evidence and for purposes of disclosure to
the defence. This led to ongoing disputes about the use of CSIS information,
disputes in which CSIS interests in maintaining the confidentiality of its
�Chapter I: Introduction
intelligence constantly clashed with the needs of the criminal justice system for
full disclosure. Each side had difficulty understanding the perspective of the
other, and each agency frequently attributed bad faith to the other agency’s
position.
There is no evidence that CSIS ultimately withheld any relevant information from
the RCMP. However, as outlined in the testimony of Crown Prosecutor James
Jardine, who is now a provincial Court judge in British Columbia, the process
of disclosure was slow, intermittent and acrimonious. CSIS waited until it had
absolutely no other choice but to disclose, and the RCMP continued to harbour
suspicions that CSIS had information that it had not disclosed.
1.4.2 The Battle over Sources
The most acrimonious disputes between the two agencies occurred in
connection with questions of access to sources and the use of their information.
CSIS considers human sources to be its most valued assets. The RCMP considers
human sources as witnesses as well as informants, and evaluates their information
in terms of its evidentiary value at a potential trial.
Despite having few human sources at the outset of the investigation, CSIS did
eventually succeed in cultivating a number of sources in the Sikh community.
“Mr. A”, “Mr. Z”, “Ms. D” and “Ms. E” were all sources from the Sikh community, who
first spoke with CSIS and were willing to share information with the authorities
but only on condition, at least initially, that they not be required to testify.
The RCMP took the position that the criminal investigation took priority, and
wanted access to the sources. The RCMP used approaches more suitable to
dealing with police informants with a criminal background than to speaking
with frightened members of a close-knit ethnic community. Although RCMP
investigators tended to discount the credibility of the sources, they nevertheless
insisted on exclusive access so as to prevent “contamination” of the witnesses’
potential evidence by CSIS. This fear was borne-out in the case of Ms. E, whose
hearsay statements were found unreliable at the Air India trial, in part on this
basis. As was the case with Mr. A, an equally frequent result was that both
agencies lost out when CSIS’s access to the source was cut off, but the source
refused to cooperate with the RCMP.
Each of “Mr. A”, “Mr. Z”, “Ms. D” and “Ms. E”, along with the publisher Tara Singh
Hayer, who was a community contact for CSIS, was treated insensitively by the
RCMP. This was especially true in the case of Ms. E, whose life was permanently
altered for the worse by her contact with the RCMP – to the point where she
refused further contact with the RCMP and feigned memory loss when forced
to testify. In the case of “Ms. D” and Tara Singh Hayer, RCMP sloppiness led to
disastrous results. For Ms. D, it meant premature entry into a witness protection
program that cut her off from her family and that, from her perspective, ruined
her life. For Hayer, the result was a failure on the part of the RCMP to provide
adequate or effective protection. In 1998, he was murdered in his own garage.
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CSIS reacted to the RCMP’s mistreatment of CSIS sources with considerable
bitterness and dismay. It became an additional reason cited for CSIS’s wariness
in sharing information with the RCMP. Several skilled CSIS source handlers left
the Service in the wake of these episodes.
1.4.3 The RCMP Investigation
The RCMP post-bombing investigation was marred by a number of factors. The
investigation was conducted by a task force made up of members seconded from
federal units of the RCMP and was short on practical experience investigating
serious crimes. The approach taken was a generally unimaginative one, more
suitable to the investigation of an ordinary crime than of a terrorist conspiracy,
with an overly narrow and premature focus on evidentiary issues.
The task force seemed stymied by the lack of a crime scene and the absence
of other usual features of a criminal offence. The Narita bombing, which did
have a crime scene and, through the excellent work of the Japanese police, had
evidence to link the crime to a specific individual, soon became the focus.
In the late 1980’s and early 1990’s, RCMP management showed little interest
in treating the investigation of the Air India bombing as a conspiracy. Little
progress was made using conventional investigative approaches, and the
efforts to turn CSIS sources into witnesses or to recruit RCMP sources came up
empty. Morale was low and personnel changes were frequent, allowing for little
continuity. At one point, the Air India investigation was assigned to a single
RCMP investigator, whose focus was on the coordination of attempts to raise
the wreckage of the plane from the ocean bottom and on file administration. In
this time frame, an attempt was made at E Division to formally shut down the
investigation.
Coordination between the investigators and Headquarters was poor and
further hampered by dysfunctional lines of reporting. The B.C. investigators
became defensive and spent much of their investigative effort attempting to
justify their early dismissal of the relevance of episodes like the Khurana Tapes
and the November Plot or their denial of the usefulness of potential sources of
information like Mr. A, or Pushpinder Singh.
By the mid-1990’s, the police investigation was at an impasse and serious
consideration was again given to winding it up. Rather than admitting defeat,
the RCMP decided in 1995 to review and reinvigorate the investigation, and
charges were eventually laid. The investigation then proceeded largely, and
at times exclusively, on the basis of information generated by CSIS in the prebombing and immediate post-bombing periods. Many of the most important
witnesses at trial were CSIS sources who had been taken over by the RCMP. The
prosecution failed because of credibility and evidentiary problems arising from
the testimony of these witnesses.
�Chapter I: Introduction
1.5 Conclusion: Post-Bombing
In the wake of the bombing, each of CSIS and the RCMP became fixated on
a restrictive understanding of its own mandate, to the detriment of a coordinated effort to investigate the bombing. CSIS’s focus on keeping its
intelligence out of the judicial process led to the loss of important evidence
and needlessly complicated the Reyat and Air India prosecutions. The RCMP’s
unimaginative approach to the investigation, as well as its dysfunctional focus
on self-justification and on the pursuit of ready “evidence,” led to the premature
dismissal of potential leads, compromised the utility of human sources, and
drove a further unnecessary wedge between it and CSIS.
It is important to note that, the story of the investigation of the Air India bombing
demonstrates that the problems that plagued the relationship between CSIS
and the RCMP were not simply the result of misunderstandings or personality
conflicts. They were primarily the result of each agency’s principled but overly
narrow focus on its own mandate.
There is no doubt that, on both a personal and an organizational level, relations
between CSIS and the RCMP are more cordial at present. The channels of
communication are more open and a measure of coordination in the area of
“deconfliction” has been achieved. Nevertheless, on an operational level, the
central issues have not been resolved. The structures adopted by CSIS and the
RCMP, which seek to minimize the passage of CSIS information to the RCMP,
exacerbate, rather than relieve, the problem. They continue to deprive the RCMP
of CSIS intelligence without, at the end of the day, protecting that intelligence
from disclosure at trial. It follows that the resolution of issues related to
cooperation cannot rely solely on improving personal relationships.
Volume Three is directed at providing better resolutions for the remaining
real problems in cooperation as they manifest themselves in the criminal trial
process.
The Future
Peter Archambault, in a paper written for the Research Studies volumes of the
Report, contends that the terrorism of 1985 is not necessarily the same as the
terrorism of today3. He accurately depicts it as continuously changing. This view
is supported by the growing variety of “home-grown” terrorist cells emerging in
the Western World. While this subject is not included in the Terms of Reference,
it became evident during the Commission’s work that this particular sort of
terrorism represents an increasing threat to Canada; media and government
commentary from the United States and Britain reflect considerable concern
with the same phenomenon. Nevertheless, despite these evolutionary changes
to terrorism, the Air India narrative continues to raise issues and to give illustrative
3
Peter M. Archambault, “Context is Everything: The Air India Bombing, 9/11 and the Limits of Analogy” in
Vol. 1 of Research Studies: Threat Assessment RCMP/CSIS Co-operation.
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examples that are entirely sufficient to provide a comprehensive springboard
for a discussion of the policy issues assigned to this Commission.
Important as it is to establish the facts about what happened in the past,
it is equally necessary to look ahead. The Commission’s mandate requires
recommendations for future actions dealing with aviation security, with the
prevention or limiting of terrorism financing, and with the criminal prosecution
of terrorism; especially as it relates to the use of intelligence as evidence.
The issues to be tackled are complex. For purposes of this introduction, it will
suffice to provide a few comments that will help orient the reader to the thematic
presentation in this volume and the detailed discussions in the Report itself.
The actual recommendations of the Commission with regard to these issues are
to be found at the end of this volume.
1.6 Aviation Security
Because of the high propaganda value offered by a successful terrorist attack
on an aircraft, civil aviation will continue to present an appealing target for
terrorists. As a consequence, Canada cannot afford a return to the complacency
that marked its approach to civil aviation security in 1985. Just as importantly,
specific steps must finally be taken to close gaps that have been known to
exist for decades. Modern civil aviation security regimes rely on the concept
of mutually reinforcing layers. At present, some of the layers in the Canadian
regime are too thin, or too widely-spaced, with insufficient overlap.
History has taught that terrorists continually probe security systems, looking for
gaps and weaknesses. Airport security and air cargo are obvious deficiencies
in Canada’s current civil aviation security regime. Airports provide a means of
introducing bombs and hijackers onto aircraft and are themselves targets of
opportunity. Yet, perimeter security is lax and access to airside and restricted
areas is poorly controlled. The majority (i.e., at least 70 per cent) of air cargo in
Canada is transported on passenger flights, but, in stark contrast to the multilayered approach currently used to screen passengers and their baggage, air
cargo is not routinely searched, X-rayed, or subjected to adequate screening
measures. The time has come to address these deficiencies.
Paradoxically, the emphasis on screening passengers and their baggage – a
focus that has resulted from the Air India bombing and the 9/11 attacks – has
contributed to the perpetuation of these deficiencies by drawing resources
away from other aspects of the Canadian aviation security regime. To its credit,
the current Government has moved to address this problem, but much more
will be required to ensure that civil aviation security becomes, and remains, a
national security priority.
In addition to other recommendations, the Commission has recommended
periodic reviews of Canada’s aviation security regime so as to guard against
�Chapter I: Introduction
complacency, ensure compliance with international obligations, and assure
adequate funding for the system.
1.7 Terrorism and Criminal Prosecution
Society has an interest in the effective prosecution of crime, and terrorism is
clearly a crime. Terrorism, however, is not simply a crime. It is also an existential
threat to the societies it attacks, and Government has a legitimate interest
in preventing terrorism, above and beyond that of punishing terrorists as
criminals.
The collection and analysis of intelligence is a central resource in responding
to the threat of terrorism and in preventing terrorist acts. The current reality
is that CSIS will almost always be the first repository of information about
terrorist offences that may ultimately be dealt with in a court of law. Complex
and vexing problems can arise when the requirements of the criminal justice
system for openness, as part of its constitutional commitment to a fair trial,
are confronted by the need for intelligence information to be kept secret for
purposes of protecting national security.
The approach recommended by the Commission is for both the criminal
justice system and the intelligence community to review their procedures and
to practise self-discipline so as to minimize the occasions when there is a true
conflict between the need to disclose and the need to keep a secret. Where the
conflict cannot be avoided, the key to a proper resolution is not to be found in
some abstract rule or guideline, but rather in having in place a decision-maker
sufficiently removed from the immediate interests of the contending institutions
to be able to make a decision in the public interest.
Volume Three follows this approach through a number of potential decision
points and provides specific recommendations for improvements to help the
intelligence community, the police and the criminal justice system deal with the
challenges associated with terrorism prosecutions.
These recommendations include an expanded mandate for the National Security
Advisor to the Prime Minister, the creation of a new position of Director of
Terrorism Prosecutions within the Department of Justice and a reconfiguration
of decision-making procedures related to witness protection issues in terrorism
investigations and prosecutions. They also include a recommendation that,
in the context of terrorism prosecutions, the responsibility for reconciling the
competing claims of disclosure to ensure a fair trial and secrecy to protect
national security should be consolidated and assigned to the trial judge, rather
than, as is now the case, being bifurcated between the trial court and the Federal
Court of Canada.
In addition, in light of all the evidence before it, the Commission believes
that the RCMP is not properly structured to deal with the unique challenges
of terrorism investigations. There is merit in considering structural changes to
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allow for a greater degree of specialization and for a more concentrated focus on
investigating and supporting the prosecution of national security offences. This
may mean divesting the RCMP of its contract policing duties so as to simplify
lines of communication and to clarify the national dimensions of its mandate as
a pan-Canadian police force.
1.8 Terrorist Financing
Canada is under a number of international obligations concerning the detection
and prevention of terrorism financing. Compliance with these obligations is
extremely important, and there is room for improvement by Canadian authorities
in this regard.
Most of the current mechanisms that governments have in place to deal with
terrorism financing are based on a money laundering model. While there are
good reasons for this approach, the analogy is not perfect and therefore the
model is of limited usefulness. Money laundering, driven by profit, involves the
transfer, of, usually, large sums of money gleaned from criminal or other illicit
activities, with the intention of concealing those criminal origins. Terrorism
financing, driven by ideology, involves the transfer, often of small sums of
money, whose origin may well be perfectly legitimate, with the intention of
concealing their ultimate intended use for the illicit and criminal purposes of
terrorism. Stopping this flow will require additional creative approaches.
The Regulatory authorities currently dealing with terrorism financing follow
policies and procedures whose origins are in the oversight and enforcement of
the Income Tax Act and which are subject to strict requirements of confidentiality.
The analogy is not perfect in this respect either, and consideration should be
given to developing means to allow for a more analytic, “intelligence-oriented”
approach that may require further loosening of restrictions on the information
that can be shared, while continuing to respect the legitimate privacy rights of
Canadians.
1.9 The Government, the Families, and the Role of a Public Inquiry
In the days immediately following the bombing of Flight 182, responsibility for
coordinating the Government response was transferred from the public service
and was assigned to a representative of the Prime Minister’s Office.
The Government response soon became focused on public relations and on
defending the reputation of the Government and its agencies in order to protect
them from criticism and from any possible finding of liability or any obligation
to compensate the families of the victims.
Instructions were issued to avoid referring to the crash as a “bombing.” Canada
took the singular position at the Coroner’s Inquest in Ireland that there was
no evidence of a bomb aboard Flight 182 and, based on this argument, the
�Chapter I: Introduction
Coroner instructed the jury that they should make no recommendations about
the cause of the crash. The Canadian Aviation Safety Board was prevented from
filing a separate brief with the Kirpal Commission, which had been established
by the Government of India to investigate the crash. The purpose was to ensure
a consistent and positive portrayal of the safety and security arrangements
that were in place in Canada at the time of the bombing. In the result, Canada
succeeded in keeping any conclusions about responsibility for the crash out of
the Kirpal Report.
Issues of civil liability loomed large. The Government denied any obligation to
compensate the families of the victims and treated the families as adversaries. The
defensiveness increased once the families brought an action for compensation.
The civil claim was settled by hard bargaining at an early stage, before the
Government was obliged to disclose its documents. Thus key information, like
the existence of the June 1st Telex, was not disclosed to the families. Even after
the civil litigation was settled, the Government resisted disclosure of information
about the bombing on the grounds that the police investigation was ongoing.
When the authorities did disclose potentially embarrassing information, it was
mainly as a result of a leak to the press. The police did not meet with the families
of the victims as a group until 1995, and CSIS would not meet with them until
2006.
In response to calls by the families for a review or public inquiry, the Government
consistently refused, citing the ongoing investigation. When in 1991, SIRC finally
conducted a review of CSIS’s activities in relation to the Air India bombing,
including the erasure of the Parmar tapes, the Government responded by
putting together a coordinating committee in order to ensure consistency in
the submissions by government agencies. The RCMP chose to accentuate the
positive and submitted an 11-page, double-spaced brief whose major message
was that any problems in cooperation between CSIS and the RCMP were in the
past and that CSIS’s actions had not hindered the police investigation. This was
done despite the existence of internal RCMP documents which portrayed a very
different situation. SIRC’s report reflected this manufactured message.
When the RCMP investigation hit a ‘dead end’ in the early-to-mid 1990s,
consideration was given to shutting down the investigation. There were
concerns in Government that, once the investigation was at an end, a public
inquiry would have to be struck. The RCMP decided to give the investigation
one last best attempt. For the next 10 years, the need to protect the ongoing
investigation and then, after that, the integrity of the trial process, were cited as
reasons to refuse an inquiry.
In the aftermath of the 2005 acquittals, there were renewed calls for a public
inquiry. Despite growing public pressure, there were still arguments made,
including by Ministers of the Crown, that nothing could be learned from a public
inquiry and that the trial had canvassed all the issues.
In fact, nothing could have been further from the truth.
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1.9.1 The Present Inquiry
Individuals and institutions who are called before an inquiry are entitled to the
assistance of counsel to help them protect their reputations. Government should
pay for this representation, but its interests in an inquiry are quite different.
It is Government that calls the inquiry and, as a result, its goal must be to get
the most accurate, impartial and useful answers to its questions and to let the
chips fall where they may. In this Inquiry, the Department of Justice, which is the
Government’s law firm, was retained to represent the reputation and interests of
all government employees and institutions. An arrangement of this type raises
a potential conflict because of the differing goals of the Government calling the
Inquiry and of the government witnesses and institutions wanting to defend
their reputation.
Even with the best of intentions and the utmost in probity, there is danger that
one set of lawyers will act like the coordinating committee that oversaw the
submissions of the various government agencies to the 1991 SIRC Review.
This Inquiry was called in response to the families’ decades-long quest for
meaningful answers, as undeniable deficiencies in the response of some
government agencies have trickled out in reviews and prosecutions over the
years. The evidence heard in the Inquiry left no doubt that many government
witnesses unequivocally felt the response of certain government agencies was
problematic or deficient.
Given that reality, it was disturbing that the Department of Justice, the lawyer
for the Government that called this Inquiry, was put in the position of making
submissions on behalf of its clients to the effect that there is no basis for any
criticism of the actions of any government agency in connection with the
investigation of the bombing of Flight 182. And further, it argued that no
changes are needed in current policies and procedures dealing with interagency
cooperation, aviation security, terrorism financing or the competing demands of
security intelligence and the criminal justice system. In essence, the Department
of Justice ended up taking one of two closely related, but equally unhelpful,
positions: either that of claiming that there was no reason for this inquiry to
have been called in the first place, or that of saying, in effect, “It wasn’t broken,
but we fixed it anyway.”
That is the unfortunate result of the Government’s multiple parties trying to
“speak with one voice.” Government ends up denying everything and saying
nothing constructive. More than that is owed to families of the victims and the
rest of the Canadian public.
The agencies of the Government have a duty to provide a commission of inquiry
with full and frank disclosure of all relevant information in as timely a manner as
possible. The “public” dimension of a public inquiry also requires that as much
of this information as possible be made available in a form that can be disclosed
to the public.
�Chapter I: Introduction
Claims to exemption from public disclosure, whether on the basis of National
Security Confidentiality (NSC), the requirements of an ongoing criminal
investigation or some other privilege or exception, must be carefully weighed
before they are asserted. These should not be blanket claims. In each case a
pragmatic assessment needs to be made as to the true harm disclosure is likely
to cause as against the benefit of allowing the Commission to carry on its work
in public.
The performance at this Inquiry in this regard by each of the relevant
government agencies was mixed. The agencies initially took positions as to
what should be protected from disclosure on the basis of National Security
Confidentiality that would have made it impossible for this Inquiry to be
conducted in public. It was only after the Prime Minister intervened directly
that there was movement from this position by the agencies.
CSIS was over-zealous in its claims of NSC. This, combined with the Service’s
tendency to answer only the precise question asked and nothing more,
made telling the CSIS story more difficult than necessary. Transport Canada’s
documentary disclosure was tardy and disorganized, making it difficult to
deal with a number of aviation security issues in the public hearings. These
difficulties were compounded by Transport Canada taking unhelpful, and
ultimately untenable, positions on what could be disclosed to the public –
positions that seemed aimed more at preventing embarrassment to the agency
than at protecting any realistic interest in secrecy.
The conduct of the RCMP on disclosure issues was especially troubling to
the Commission. There were several instances in which the Commission was
discouraged from pursuing certain areas of investigation on a doubtful assertion
of the requirements of “the ongoing investigation,” assertions at times based on
investigative initiatives that were revived by the RCMP after the Commission
began making enquiries.
One incident in particular was especially troubling. “Mr. G,” a person with
potential knowledge of matters relating to the bombing of Flight 182, told
the RCMP during the currency of the hearings that he wished to speak to the
Commission and to testify. Rather than inform the Commission of the approach
by this witness, the RCMP instead used the fact that Mr. G had contacted the
RCMP as the basis for demanding further redaction of previously cleared
documents, asserting that this was necessary in order to protect the ongoing
criminal investigation. Even after the Commission by chance discovered Mr. G’s
attempts to make contact, the RCMP did not confirm this fact until after the
close of the hearings, months after being asked directly by the Commission. The
RCMP then continued to assert the need to protect the integrity of its ongoing
investigation hoping to discourage the Commission from pursuing the matter,
even after it had interviewed Mr. G and dismissed the utility of his information
for police purposes.
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1.9.2 Racism
A suggestion was made during the hearings that the Government’s attitude to
the bombing and its treatment of the families of the victims was a manifestation
of “racism,” though not perhaps of a conscious sort.
The Commission finds that the term “racism” is not helpful for purposes of
understanding the Government response. “Racism” carries with it so many
connotations of bigotry and intolerance that even the most careful definition
that purports to focus on effects rather than on intent ends up generating a
great deal more heat than light. This was amply illustrated on the hearing date
devoted to evidence regarding this issue.
While the Commission does not feel that the term “racism” is helpful, it is also
understandable that the callous attitude by the Government of Canada to the
families of the victims might lead them to wonder whether a similar response
would have been forthcoming had the overwhelming majority of the victims
of the bombing been Canadians who were white. The Commission concludes
that both the Government and the Canadian public were slow to recognize the
bombing of Flight 182 as a Canadian issue. This reaction was no doubt associated
with the fact that the supposed motive for the bombing was tied to alleged
grievances rooted in India and Indian politics. Nevertheless, the fact that the
plot was hatched and executed in Canada and that the majority of victims were
Canadian citizens did not seem to have made a sufficient impression to weave
this event into our shared national experience. The Commission is hopeful that
its work will serve to correct that wrong.
1.9.3 Treatment of the Families
The families of the victims of the bombing were poorly treated by their
Government. For the longest period of time the Government seemed dedicated
to self justification and denial of fault that led it to cast a blind eye and a deaf ear
to the suffering and the needs of the families.
The Government was too preoccupied with its international reputation to
appreciate its obligations to the families of the victims. It was so keen on
debunking any notion that the bombing was tied to deficiencies in Canadian
safety and security that it alienated the very people who deserved support and
empathy: the families of the victims.
It is hard to believe that a desire to avoid civil liability to the families of the
victims – for an amount that, in the big picture, would not have constituted a
rounding error in the budget of any of the Canadian agencies involved – would
have motivated the Government of Canada to turn its back on the victims for
so long.
In stark contrast to the compassion shown by the Government of the United
States to the families of the victims of the 9/11 terrorist attacks, for all too long the
�Chapter I: Introduction
Government of Canada treated the families of the victims of the terrorist attack
on Flight 182 as adversaries. The nadir of this attitude was displayed when the
families’ requests for financial assistance were met by the Government’s callous
advice to seek help from the welfare system.
Even after the modest settlement of the civil litigation, a settlement which,
ironically, prevented the families from receiving disclosure from Government of
the extent of the deficiencies in the pre-bombing period, the Government was
slow to recognize any duty towards the victims or their families.
A notable exception to this past neglect is to be found in the elaborate and
effective mechanisms implemented by the post-1995 RCMP Air India Task Force,
which made it possible for them to liaise with, understand and provide support
to the families of the victims over the course of the Air India prosecution.
The establishment of the present Commission of Inquiry is a further positive
development, but the fact remains that, for over two decades, the Government
of Canada and its agencies stood adamantly opposed to any public review.
The Government and its agencies have the right to defend themselves and
to put their best foot forward, in the context of civil litigation and in public
inquiries such as this one. However, the Government was indiscriminate in its
denials, doggedly denying all potentially unflattering facts, even some that had
been uncontrovertibly shown to be true. As well, the Government’s constant
over-claiming of privilege and its continued withholding of information have
had a painfully negative impact on the vulnerable families of the victims of this
immense tragedy.
Whatever “truth and reconciliation” may be generated by the present Inquiry, it
remains the case that, long after the settlement of the civil litigation, important
information continued to be withheld from the families. It took a decade for
the RCMP, and two decades for CSIS, to appreciate the need to meet with the
families.
1.10 Doing More for the Families
Although condolences to the families of the victims have been frequent
and free-flowing during the course of this Inquiry, no one on behalf of the
Government of Canada or its agencies has thought it appropriate to offer an
apology. The record before the Commission demonstrates that there is a great
deal to apologize for.
Some steps have been taken to correct the neglect of the past.
The erection of memorials and the annual ceremonies of commemoration on
June 23 are excellent and tangible demonstrations of Canada’s attempts to
integrate the bombing of Flight 182 into Canadian history and consciousness.
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The Commission believes that there is more that could be done.
As discussed in the Volume Five, the funding of an academic institute for
the study of terrorism, – possibly to be called the “Kanishka Centre” to
commemorate the name of the aircraft that was bombed on June 23, 1985 –
could be an important step toward preventing future terrorist attacks while
honouring the memory of those who perished in the bombing.
The Commission also believes, however, that there would be great merit in a
demonstration of solicitude by the current Government, even at this late date,
for the families of the victims of the bombing. There is nothing in the Terms
of Reference to prevent the Commission from asking that the Government
consider a one-time ex gratia payment to family members of the victims of Flight
182. To that end, an arm’s-length independent body should be constituted to
recommend an appropriate amount, as well as a formula for its distribution, and
should remain in existence to oversee the payment process. Providing an ex
gratia payment will go a long way to alleviating what is now over twenty years
of alienation for those Canadian families.
The mandate of this Commission expires with the publication of the Report
and its Recommendations. The families of the victims and the Canadian public
will want to know whether the Recommendations have been accepted and
how they have been implemented. The Government should provide a Report,
perhaps through the Office of the Auditor General, on which Recommendations
have been implemented and which have been rejected.
�VOLUME ONE
THE OVERVIEW
CHAPTER II: THE INQUIRY PROCESS
2.0 Introduction
Commencing more than 20 years after the events under consideration took
place and mandated to examine a broad range of factual and policy issues,
this Inquiry was faced with significant challenges from the outset. As the work
unfolded, further specific obstacles to the expeditious conduct of the Inquiry
appeared. Most notable among these was the need to address National Security
Confidentiality (NSC) issues. This chapter describes how the Commission
approached its mandate, and discusses some of the procedures used to ensure
that the Inquiry could proceed as efficiently as possible. The chapter also reviews
the various special challenges encountered, many of which have contributed to
extending the time and resources necessary to complete the Inquiry’s mandated
work.
2.1 Outline of the Inquiry Process
2.1.1 Mandate and Initial Process
By Order in Council dated May 1, 2006,1 the Commission of Inquiry into the
Investigation of the Bombing of Air India Flight 182 was established pursuant
to Part I of the Inquiries Act.2 The Honorable Bob Rae, who had been appointed
in 2005 to provide independent advice to the then Minister of Public Safety
and Emergency Preparedness, had previously concluded that, in spite of
the passage of 20 years since the terrorist attack on Flight 182, outstanding
questions of public interest still required answers.3 The Terms of Reference for
this Inquiry require the Commission to make findings and recommendations
with respect to a broad range of issues arising out of the Air India investigation
and prosecution, including issues of threat assessment, aviation security,
interagency cooperation, terrorist financing, witness protection, the relation
between security intelligence and evidence, as well as the unique challenges
presented by the prosecution of terrorism cases.4
1
2
3
4
P.C. 2006-293 (referred to here as the “Terms of Reference”).
R.S.C. 1985, c. I-11.
See Lessons to be Learned: The Report of the Honourable Bob Rae, Independent Advisor to the Minister of
Public Safety and Emergency Preparedness, on outstanding questions with respect to the bombing of Air
India Flight 182 (Ottawa: Air India Review Secretariat, 2005).
See P.C. 2006-293, para. (b).
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On June 21, 2006, an initial session of the Commission was convened at which
a public opening statement was made on behalf of the Commission addressing
procedural matters and setting out some of the principles which would guide
the conduct of the Inquiry. The statement expressed the Commissioner’s
intention to conduct a thorough investigation in compliance with the Terms of
Reference and the legal requirement to act fairly.5
In June and July 2006, Rules of Procedure and Practice were adopted6 and the
Commission received 21 applications for Standing. On August 9, 2006, a ruling
was issued granting 18 of the applications.7 Two types of standing were granted
to the successful applicants: Party Standing and Intervenor Standing. Party
Standing, the more extensive type reserved for those directly and substantially
affected by the mandate of the Inquiry, was granted to a total of eight individuals
and organizations, including individual family members of the victims of Air
India Flight 182 and organizations representing family members, the Attorney
General of Canada (AGC) on behalf of the Government of Canada and all
affected departments and agencies, as well as Air India. Family members and
organizations representing them were divided into three main groupings for
purposes of representation: the Air India Victims Families Association (AIVFA),
representing a large group of family members residing in North America, Lata
Pada and other individuals aligned with her, mostly residing in North America
but not members of AIVFA, and a grouping including the Air India Cabin Crew
Association (AICCA), the Family Members of the Crew Member Victims of Air
India Flight 182 and India Nationals (FMCMV/IN), as well as individual family
members residing in India. Each group was encouraged to cooperate with other
groups to the extent possible to avoid repetition during the Inquiry hearings.
This was accomplished successfully through a division of labour among counsel
representing the three groupings, which ensured that specific areas of evidence
were not canvassed separately where the Parties’ interests did not require it. On
August 9, 2006, Intervenor Standing was granted to a total of 10 organizations
and individuals with interests and perspectives relating to the Commission’s
mandate. As a result of further applications presented during the following
months, three additional organizations received Intervenor Standing and one
additional individual received Party Standing.8 Intervenors included a number
of organizations representing civil liberty and Canadian democracy interests, as
well as organizations representing the legal profession and law enforcement.
Individuals and organizations with Party Standing were represented in the
Inquiry hearings and participated by cross-examining witnesses and making
submissions on a regular basis. Intervenors had opportunities to participate
by presenting written submissions and, in some cases, making oral opening
statements.
5
6
7
8
Opening statement of the Commissioner, Transcripts, June 21, 2006, pp. 8, 10.
See Rules of Procedure and Practice for the Commission of Inquiry into the Investigation of the Bombing
of Air India Flight 182 (revised July 17, 2006).
August 9, 2006 Ruling on Standing in Annex A of this Volume.
Rulings on Standing dated August 23, 2006, November 1, 2006, March 14, 2007 and May 11, 2007
included in Annex A of this Volume.
�Chapter II: The Inquiry Process
On October 12, 2007, one of the Intervenors, the World Sikh Organization
(WSO) applied for broader standing, including the right to cross-examine
witnesses and to receive notices and documents, and asked that Commission
counsel be compelled to call a number of witnesses.9 On October 29, 2007, the
Commissioner granted expanded Intervenor status to the WSO, allowing it to
make submissions on all Terms of Reference, but noted that the right to crossexamine witnesses belonged to Parties alone and that the witnesses the WSO
wanted called, with one exception, were either already scheduled to testify or
did not have evidence relevant to the Terms of Reference.10 Not satisfied with
this ruling, the WSO raised numerous complaints throughout the remainder of
the Inquiry and used its Final Submissions, filed on January 31, 2008, to challenge
the Commissioner’s decisions and even to attempt to circumvent prior rulings
by appending documents and referring to “facts” which had not been admitted
into evidence and which, in any event, contributed little to matters relevant to
the Terms of Reference.11
Counsel for the WSO had an important role to play with respect to the
reputational interests of the Sikh community. Instead, they expended
considerable time, resources, and energy seeking to advance a number of
peripheral issues beyond the jurisdiction of the Commission through repeated
motions to tender evidence intended to suggest that the Government of India
was involved in the bombing of Air India Flight 182. It is regrettable that the
WSO missed the opportunity to make a more meaningful contribution to the
Inquiry with regard to promoting Sikh reputational interests. Fortunately,
those interests were well protected by the evidence brought forward at the
Inquiry, which has amply demonstrated that Sikhs in Canada are law-abiding,
peaceful, and outraged by the terrorist attacks on Flight 182 and at Narita.
Commission counsel, charged with representing the interests of the Canadian
public at the Inquiry, were automatically a Party before the Commission.12
All Commission counsel were appointed by the Commissioner to assist him
in carrying out his mandate. They were responsible for bringing all matters
relevant to the Terms of Reference to the Commissioner’s attention. Their role
was to assist the Commissioner in a non-partisan and non-adversarial manner
throughout the Inquiry.13 To this end, Commission counsel reviewed documents,
interviewed witnesses and led the evidence in the Inquiry hearings.
The Commissioner was authorized by the Terms of Reference to recommend that
funding be provided to ensure the appropriate participation of the families of
9
10
11
12
13
See WSO Application for Broader Standing, October 12, 2007 and WSO Applications to Call Zuhair
Kashmeri, Gary Bass, David Kilgour and Gian Singh Sandhu as Witnesses, October 12, 2007 in Annex A of
this Volume.
See Ruling on Standing and Ruling on Application to Call Certain Witnesses, October 29, 2007 in Annex A
of this Volume. One of the witnesses proposed by the WSO was called by Commission counsel on
December 7, 2007, but the testimony had to be restricted for relevance and because of civil litigation
issues.
See WSO Final Submissions, January 31, 2008.
See Rules of Procedure and Practice, Rule 2(c).
Ontario, Report of the Walkerton Commission of Inquiry, Part One (Toronto: Queen’s Printer for Ontario,
2002), p. 479 [Walkerton Report].
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the victims and of any Party granted standing.14 Recommendations were made
to provide funding for counsel representing family members organizations
or groups, as well as some of the Intervenors. Those recommendations were
accepted by the Government of Canada.
As set out in the Rules of Procedure and Practice, the Inquiry hearings were
divided into two separate but interrelated stages. Stage 1, which proceeded
during the fall of 2006, with one additional witness heard in June 2007, involved
the voluntary testimony of family members of the victims of the bombing of Air
India Flight 182, who are themselves victims of terrorism. Many family members
chose to be heard in the Inquiry hearings to share memories of their lost loved
ones, as well as to describe the impact of the bombing and share expectations
for the Commission. Printed, audio and video materials were submitted.
During Stage 1, the Commission also heard evidence from individuals who
were involved in the first response following the explosion. A report entitled
The Families Remember15 was released in December 2007, while the Inquiry
continued to receive evidence with respect to Stage 2 of the hearings. This first
report attempted to record the human toll of the Air India bombing. It was felt
that the families had already waited too long to have their stories told and that
there was no reason to wait for the entire Inquiry to be complete prior to the
release of this first report. Stage 2 of the Inquiry proceeded from November 6,
2006 to December 13, 200716 with an inquiry into the matters set out in clauses
(b)(i)-(vii) of the Terms of Reference.
2.1.2 Document Collection Process
In July 2006, the Commission issued its first requests for documents and
information relevant to the Commission’s mandate in the possession of the
government departments and agencies involved, beginning with a request dated
July 12, 2006, for all documents “relevant to the mandate of the Commission
as set out in the Commission’s Terms of Reference.” Over the ensuing months,
numerous additional requests followed as existing documentation was reviewed
and new facts learned through the witness interviews and testimony.
New documents were, accordingly, received by the Commission on a
continuous basis throughout the proceedings. Even after the conclusion of the
hearings, new documents continued to be delivered, sometimes in response to
requests from Commission counsel for further information, sometimes at the
Government’s own instance. A total of 17,692 documents consisting of tens
of thousands of pages were provided via a secure electronic network which
allowed the Commission to review and organize the materials. In addition, the
Commission was provided with access to a portion of the RCMP database on
the Air India investigation, containing countless documents with a total number
14
15
16
P.C. 2006-293, paras. (g) and (i).
The Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, The Families
Remember (Ottawa: Public Works and Government Services Canada, December 2007).
Two additional hearing days were also held in February 2008.
�Chapter II: The Inquiry Process
of pages ranging in the millions.17 Thousands of additional pages of hard copy
documents were also obtained and further access was provided to materials
which were made available for review on Government premises.
Although document collection did not always proceed smoothly or without
incident, ultimately sufficient documentation was identified and made available
to the Commission to allow it to discharge the mandate set out in the Terms of
Reference. The Attorney General of Canada certified that it was satisfied that the
Government and its agents, servants, agencies and departments had diligently
searched for and produced to the Commission documents “potentially relevant”
to the Commission’s Terms of Reference as well as documents responding to the
Commission’s subsequent document requests.
2.1.3 National Security Confidentiality Claims and Redaction of
Documents
All documents received by the Commission from the Government, except
documents for which solicitor-client privilege or Cabinet confidence was
claimed, were initially provided to the Commission with no deletions or
redactions, regardless of any National Security Confidentiality (NSC) claims
asserted or to be asserted by the Government.18 All documents were handled
by the Commission in accordance with their security classification.
Eventually, the Government asserted NSC claims and other privilege claims
over a large portion of the documents initially provided to the Commission.
The claims were made in cases where the Government took the position that
the disclosure of information contained in the documents would be injurious
to international relations, national defence or national security, or that it
could identify confidential sources of information or compromise ongoing
investigations.19 A special process was agreed upon to enable the Government
to notify the Commission of the exact documents and extracts over which it
intended to assert NSC claims. Commission counsel were required to identify,
after a first review of the documents provided by the Government, the
documents they anticipated would be entered into evidence or be disclosed
to the Parties in advance of the hearings. Lists of such documents then had to
be provided to counsel for the Government in the form of “redaction requests”.
The Government subsequently provided redacted versions of the documents,
where all information over which NSC claims were asserted was blacked out.20
Commission counsel continued to have access to uncensored versions of all
17
18
19
20
Statement by Barney Brucker, Transcripts, vol. 19, March 9, 2007, p. 1770.
Where solicitor-client privilege or Cabinet confidence was claimed, the documents were generally
provided to the Commission with the portions over which privilege was claimed already
deleted. Where the privilege was claimed over entire documents, the documents were not provided to
the Commission, but the Commission was advised of their existence upon request.
For present purposes, all Government privilege claims (except solicitor-client and Cabinet confidence
which involved a different procedure) will be collectively referred to as NSC claims as the same
procedure was followed with respect to all such claims in the context of this Inquiry.
A general description of this process was provided in the opening statement to Stage 2 of the hearings
by Mark J. Freiman, Lead Commission Counsel, Transcripts, vol. 12, November 6, 2006, pp. 1045-1046.
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documents, but only the redacted versions could be disclosed to the Parties
and entered into evidence.
In September 2006, the Commission began to receive Government documents
in response to its July 2006 and subsequent requests. Approximately 4,500
documents were initially received and the documentary review and redaction
requests process began. Meanwhile, as the document collection process
continued, more new documents were provided to the Commission in response
to prior and new requests. Because a vetting process had already commenced
within Government, it was possible in October 2006 for the Commission to
provide to the Parties, in redacted form, approximately 1500 documents
identified as essential by the Government. Commission counsel progressively
sent lists of additional documents requested for redaction to the Government
as the documentary review continued, but it was not until December 2006
that the next installment of redacted documents was received. Because of
this ongoing process, it was not possible to begin with the Stage 2 hearings
in October 2006 as initially planned.21 At the time, the Commission was still
receiving new materials and, most importantly, the process of identifying
documents and receiving redacted versions for purposes of disclosure to the
Parties and production before the Commission had not progressed sufficiently.
Although it was planned to commence hearing Stage 2 evidence in November
2006, that timetable also proved impossible to meet, as a sufficient number of
redacted documents was still not available.22 This was in large part caused by
the nature of the document collection process which required the identification,
disclosure and review of documents from several different agencies, covering a
period of time ranging over many years. Further, the document collection and
redaction process involved electronic versions of documents, since the Terms of
Reference required the Commission to process documents using the automated
litigation support program prescribed by the Attorney General of Canada.23 As a
result, the process was highly dependent on technology. Unfortunately, several
weeks’ worth of the Commission’s work in processing documents was lost in
early November as a result of a technical glitch in the Government’s uploading
of new documents to the Commission’s server.24 In general, it was difficult
for the Government to provide redacted versions of documents within short
time frames given its process of extensive internal reviews involving different
agencies and departments. It was also necessary to allow counsel for the Parties
before the Inquiry sufficient time to review the documents to enable them to
contribute to the hearings in a meaningful way. This could not be done until
redacted versions of the documents were available for disclosure to the Parties’
counsel. The hearings were therefore adjourned to February 2007 in the hope
that this would allow sufficient time for this process to be completed.
21
22
23
24
Statement by the Commissioner, Transcripts, vol. 11, October 13, 2006, pp. 1041-1042.
See, generally, statements by Commission counsel, Government counsel and counsel for the families:
Transcripts, vol. 12, November 6, 2006, pp. 1044-1051. Evidence about the Canadian consular response
following the Air India bombing was nevertheless heard during the week of November 6, 2006.
P.C. 2006-293. para. (k).
Opening statement by Mark J. Freiman, Transcripts, vol. 12, November 6, 2006, pp. 1046-1047.
�Chapter II: The Inquiry Process
Unfortunately, the Stage 2 hearings could still not proceed as planned when the
Commission hearings reconvened in February. At that point, a large number
of redacted documents had been provided by the Government, but the extent
of the proposed NSC claims advanced by the Government made the holding
of public hearings impossible. The proposed redactions essentially made
the documents meaningless, with too much of the information remaining
censored and unavailable to counsel for the families and to the public. Under
the circumstances, a meaningful discussion of the factual issues could not have
taken place, since even the most basic facts and issues could not have been
dealt with in public. A decision was made that resolution of this issue would
require reassessment by Government of its position, rather than resorting to
in camera hearings, either to hear the evidence on the merits or to rule on the
justification for the proposed redactions. Since rulings would have been subject
to judicial review, the result would inevitably have been long and complex
judicial proceedings that would essentially have made the Inquiry “…disappear
in the quicksand of bureaucracy.”25
The Government was asked to reassess the proposed NSC claims before the
Commissioner reported to the Prime Minister on the feasibility of carrying out
the Inquiry’s mandate.26 Counsel for the Government agreed to work with
Commission counsel to review the redactions and determine whether sufficient
unredacted documentation could be made available to enable meaningful public
hearings to proceed.27 A new process was devised to provide the Government
with an opportunity to reassess its NSC claims. Commission counsel agreed to
review all of the documents initially provided by the Government in redacted
form and to make a selection of the most important documents and information.
To assist the Government, specific extracts of the documents were also identified.
The Commission provided the Government with “redaction reconsideration
requests” identifying the document extracts, and the Government proceeded
to reassess its NSC claims.28 New versions of the documents were eventually
returned with significantly fewer redactions. The new versions were reviewed
again by Commission counsel and any additional issues were brought to the
Government’s attention through “subsequent redaction reconsideration
requests” specifically identifying the documents and extracts involved and
triggering a new Government examination of NSC claims.
It was hoped that Stage 2 hearings could finally proceed in March 2007.
However, the new redaction reconsideration process proved to be equally as
time-consuming as the initial redaction process. It required Commission counsel
to review for the second and third time a large numbers of documents in order
to make the best selection possible and to enable the Government to reassess its
claims. The process also placed considerable strain on the Government officials
involved, and their ability to provide documents with revised redactions in an
25
26
27
28
Opening statement by the Commissioner, Transcripts, vol. 15, February 19, 2007, p. 1371.
Opening statement by the Commissioner, Transcripts, vol. 15, February 19, 2007, pp. 1370-1371.
Opening remarks by Barney Brucker, Transcripts, vol. 19, February 19, 2007, p. 1377.
See, generally, Statement by Barney Brucker, counsel for the Government, explaining the process:
Transcripts, vol. 16, March 5, 2007, pp. 1414-1415.
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expeditious manner was dependent on available resources. The Commission
was advised by counsel for the Government in early March 2007 that, despite
their best efforts, the reconsideration of NSC claims was not yet complete.29 A
sufficient amount of information could not yet be made available to counsel for
the Parties to allow them to prepare and contribute in a meaningful way to the
proceedings.30
As a result, it was only at the end of April 2007 that the Stage 2 hearings referring
to the Government documents could finally proceed. Even then, the redaction
reconsideration process was still ongoing with respect to documents relevant
to the evidence anticipated to be heard in subsequent weeks. In fact, the
process continued throughout, and even after the conclusion of the hearings.
Documents continued to be received as a result of the ongoing disclosure
requests. They were then redacted a first time by the Government following
requests by Commission counsel, and then were often redacted a second and
sometimes a third time following reconsideration requests. The Commission
continued to receive documents from the Government after the conclusion
of the hearings. When the documents were suitable for public release, they
were produced to the Parties who were given the opportunity to make written
submissions as to their contents.
2.1.4 Conduct of the Stage 2 Hearings
While most of the evidence relating to Stage 2 of the Inquiry could not be
presented before April 30, 2007 because of the redaction reconsideration
process, evidence respecting the Canadian consular response to the bombing, as
well as some of the more general evidence respecting RCMP and CSIS structures
and mandates, was nevertheless presented during seven hearing days in
November 2006 and March 2007. The Stage 2 hearings then proceeded without
interruption between April 30 and June 20, 2007 and between September 17
and December 13, 2007. Two additional days of hearings were held on February
14 and 15, 2008. During this period, a total of 85 days of hearings were held and
195 witnesses testified, some on more than one occasion.
In order to prepare the evidence to be presented in the Inquiry hearings,
Commission counsel conducted numerous interviews with potential witnesses.31
This process was necessary to identify the persons who had sufficient knowledge
and memory of relevant facts and events. In most cases, the potential witnesses
were present or former Government employees. Counsel for the Attorney
General of Canada attended most of the interviews, including all interviews of
current Government employees. Commission counsel then determined which
individuals would be called as witnesses before the Commission and prepared
29
30
31
Statement by Barney Brucker, Transcripts, vol. 16, March 5, 2007, pp. 1414-1421.
As had been done during the week of November 6, 2006, the Commission nevertheless proceeded to
hear some of the Stage 2 evidence which was not dependent on documentary production, this time
with respect to the structure and mandates of CSIS and the RCMP.
See Rule 34 of the Rules of Procedures and Practice.
�Chapter II: The Inquiry Process
statements of the witnesses’ anticipated evidence as well as lists of documents
associated with the witnesses’ testimony (“will say” statements).32 Those
statements were meant to assist the Parties, especially those whose counsel were
not present during the interviews, to appreciate the nature of the anticipated
evidence and to identify the relevant documents in order to prepare for any
cross-examination. Pursuant to the Protocol for the Protection of Privileged
Documents and Information between the Government and the Commission,
in the case of all witnesses privy to Government documents produced to the
Commission, the will say statements prepared by Commission counsel had to
be submitted in advance to the Attorney General of Canada, who could then
advise of any NSC claims that would be asserted by Government over the
proposed evidence. Commission counsel were only permitted to disclose the
will say statements to other Parties once they were advised by Government that
no NSC issues were involved or once changes were made to remove any NSC
concerns.
The Stage 2 hearings were divided into four different phases devoted to specific
subject areas related to the Terms of Reference: law enforcement and intelligence
response to Sikh terrorism, aviation security, terrorist financing, and terrorism
and the justice system. The evidence heard included general descriptive, policy
and expert evidence respecting the matters of inquiry, as well as detailed factual
and historical evidence respecting specific actions taken in relation to the Air
India bombing.
On May 1, 2007, a set of Evidence Binders containing most Government
documents relevant to the historical aspects of the Commission’s mandate
was entered into evidence.33 Throughout the remainder of the Inquiry, new
documents were added to the Evidence Binders. As redactions were reassessed
by Government, new versions of the existing documents were also added.
At the end of the hearings, approximately 3,300 documents were entered as
part of the Evidence Binders, many in more than one version as a result of the
redaction reconsiderations. In addition, over 300 documents were entered as
separate exhibits throughout the Stage 2 hearings, some simply as updates to
the Evidence Binders, others containing many new separate documents. Further
updates to the Evidence Binders and other documents, totaling approximately
230, were also entered after the conclusion of the hearings as a result of the
continuing document production and redaction process. The limited number
of documents entered, as compared to the volume of documentation obtained
by the Commission in the document collection process, is a reflection of the
selection that had to be made in the context of the NSC claims reconsideration
process. Only documents considered essential to the Inquiry’s mandate were
entered into evidence.
32
33
See, generally, Rules 35 and 50 of the Rules of Procedure and Practice.
Exhibit P-101.
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In February and March 2008, the Parties before the Inquiry provided Final
Submissions in writing.34 The submissions addressed the factual issues before
the Commission in considerable detail, and provided suggestions of possible
recommendations to avoid the recurrence of any deficiencies identified and to
address the broader policy issues within the Commission’s mandate. All Parties
were provided with an opportunity to respond to the submissions presented
by other Parties. Many of the Intervenors also provided written submissions
focusing on specific areas of inquiry relevant to their expertise and experience,
and also suggesting recommendations.
Commission counsel did not prepare written final submissions at the close of
the Inquiry hearings in the same manner as Intervenors and Parties. Written
submissions were filed by these groups to represent their particular interests
and to advocate for specific recommendations. Since Commission counsel,
like the Commissioner, were responsible for representing the interests of the
Canadian public at large and not of any particular group, it would not have been
appropriate for them to file submissions. Their role was rather to ensure that all
relevant evidence was presented, that all sides were heard and that all relevant
matters were considered.35
2.1.5 Section 13 Notices
The Commission issued notices in accordance with section 13 of the Inquiries
Act36 to those who might be the subject of findings of misconduct or unfavorable
comments in the Commissioner’s report. In the context of this Inquiry, such
notices were, in the end, only issued to institutions and not to individuals.
As required by law, the notices were issued confidentially. The institutional
recipients of the notices were provided with an opportunity to be heard and to
be represented by counsel in order to respond to any allegations of misconduct.
In fact, all recipients had been entitled to participate fully in the Inquiry hearings
and were represented by counsel throughout. They could cross-examine
witnesses, suggest evidence to be presented by Commission counsel, apply to
the Commissioner to present evidence not otherwise presented by Commission
counsel, and make closing submissions. Commission counsel advise that no
suggestion made by the recipients of the notices for evidence to be called was
refused during the course of the Inquiry.
2.1.6 Inquiry Report
The purpose of this Report is to analyze the evidence heard in the public hearings
with a view to making recommendations about the changes that can be made
to avoid the pitfalls encountered in the Air India matter and to improve Canada’s
34
35
36
Counsel for the Air India Victims’ Families Association also presented oral submissions before the
Inquiry: see Transcripts, vol. 97, February 15, 2008, pp. 12865-12898 (Closing submissions by Jacques
Shore, Norman D. Boxall, Raj Anand and Richard Quance).
Walkerton Report, p. 479.
R.S.C. 1985, c. I-11.
�Chapter II: The Inquiry Process
ability to respond to the modern reality of terrorism. The recommendations
are based on factual findings about what, if anything, went wrong in the
investigation of Sikh terrorism and of the Air India bombing, and about the
challenges that remain with respect to the response to modern terrorism more
generally. Rather than chronologically summarizing the facts and evidence, the
substantive issues as set out in the Terms of Reference are used as organizing
principles to analyze the evidence and draw conclusions where appropriate.
The Report is based on the evidence presented in the public hearings and in
the Commission dossiers. At times, the Commission has taken special measures
to protect the identity of certain individuals, where it was felt that their safety
could be jeopardized or where court ordered publication bans required it. In
some cases, this was achieved by applying additional redactions to Government
documents entered into evidence. In a limited number of instances involving
less than 20 documents, this was accomplished by not entering into evidence
some documents that had been returned by the Government in redacted form.
In such cases, the Government quite appropriately refrained from making NSC
claims as no national security issues were involved, but the disclosure of the
documents, even if the Commission had applied additional redactions, could
have jeopardized the safety of individuals. Where facts are described in the
Report without reference being made to documents entered into evidence
before the Commission, it is because the documents, though not subject to
NSC claims, were part of the small number of documents held back to protect
individual safety.
The findings of fact in the Report and the opinions expressed are not legal
findings of responsibility. They are meant to describe for the public what
happened as revealed by the evidence and what can be done to ensure that any
such deficiencies do not recur. As mandated by the Terms of Reference, there
are no conclusions or recommendations respecting the civil or criminal liability
of any person or organization.37 While, in some cases, the alleged actions or
omissions of various individuals or organizations in connection both with the Air
India bombing and its investigation had to be examined or mentioned, nothing
in the Report should be interpreted as an indication that the Commission has
come to any conclusions about the civil or criminal responsibility of anyone.
2.1.7 Research Papers
Fifteen research papers were written for the Commission. Research studies
have long been an important part of the public inquiry process in Canada. For
example, the McDonald Commission of Inquiry, which examined activities of the
Royal Canadian Mounted Police (RCMP) and made recommendations that led to
the creation of the Canadian Security Intelligence Service (CSIS) in 1984, issued
37
P.C. 2006-293, para. (p).
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a number of research papers and monographs as part of its process.38 Other
commissions of inquiry have also undertaken ambitious research agendas.39
Research papers were particularly important, given the breadth of this Inquiry’s
mandate. A broad range of expertise drawn from a variety of academic disciplines
was needed to address this mandate. The Commission was fortunate to be able
to retain the majority of Canada’s leading experts in many of these areas. The
Commission was also able to retain a number of leading international experts to
provide research of a more comparative nature. The comparative research was
undertaken to determine if Canada could learn from the best practices of other
democracies in many of the areas related to the Commission’s mandate.
The research papers were written independently on the basis of available public
sources. They were also written in a timely manner so that they could be made
available to the Parties and Intervenors during the Commission’s hearings. The
researchers did not have available to them all the evidence that was called
throughout the Inquiry. This allowed for the expeditious preparation of the
papers. It also recognized that it was the mandate of the Commissioner, who
presided over all the hearings, and not the researchers, to draw conclusions based
on the evidence heard at the Inquiry. The recommendations of the independent
researchers did not necessarily represent those of the Commission. Indeed, the
papers were designed in part to formulate tentative proposals that could be
tested and challenged by Parties and Intervenors at the Inquiry.
In almost every case, the experts who wrote the reports were called to testify
in the Inquiry’s proceedings with a preliminary version of their papers being
disclosed in advance to the Parties. Such a process has not been the norm for
commissions of inquiry. Nevertheless, it proved to be useful as a vehicle to
test and challenge the ideas and proposals put forth by the researchers. There
was also a concern that the Commissioner should be able to see the research
produced for him challenged and defended in a public forum.
Canadian research into terrorism-related issues has generally been relatively
sparse.40 A decision was made to translate and publish the research studies and
release them in four volumes with the Report. One of the functions of a public
38
39
40
For example, see the research studies published by the McDonald Commission of Inquiry Concerning
Certain Activities of the Royal Canadian Mounted Police. J. Ll. J. Edwards, Ministerial Responsibility
for National Security as It Relates to the Offices of Prime Minister, Attorney General and Solicitor General
of Canada (Ottawa: Supply and Services Canada, 1980); C.E.S. Franks, Parliament and
Security Matters (Ottawa: Supply and Services Canada, 1980); M.L. Friedland, National Security:
The Legal Dimensions (Ottawa: Supply and Services, 1980).
Recent examples are The Commission of Inquiry into the Sponsorship Program and Advertising
Activities (2006) and The Commission of Inquiry into the Activities of Canadian Officials in Relation
to Maher Arar. Among the series of background papers published by the Arar Inquiry is A New Review
Mechanism for the RCMP’s National Security Activities (Ottawa: Public Works and Government Services,
2006).
On some of the challenges, see Martin Rudner, “Towards a Proactive All-of-Government Approach to
Intelligence-Led Counter-Terrorism” and Wesley Wark, “The Intelligence-Law Enforcement Nexus” in Vol.
1 of Research Studies: Threat Assessment RCMP/CSIS Co-operation.
�Chapter II: The Inquiry Process
inquiry is to make information available to the public and to build an accessible
and permanent foundation for further research into the area.
The four volumes of research studies published at the same time as the Report
are organized thematically. Each contains an introduction which summarizes
the content of the papers. The first volume examines the threat of terrorism,
threat assessment and RCMP/CSIS cooperation.41 The second volume deals with
terrorism financing and charities.42 The third volume examines the challenges
of terrorism prosecutions, including witness protection.43 The fourth volume,
written by the Commission’s Director of Research (Legal Studies), Kent Roach,
focuses on the relationship between intelligence and evidence.44
2.2 Managing the Proceedings and Inherent Challenges
At the outset of the Commission proceedings, the Commissioner expressed
the hope that the Inquiry could proceed effectively and efficiently, noting that
the Commission would be judged by its effectiveness and not by its length.45
As stated in the Arar Report, “…in order to be effective, a public inquiry must
also be expeditious.”46 The expeditious conduct of an inquiry can contribute to
significantly diminishing the cost of the inquiry to the public. Further, it allows
the Inquiry to remain relevant and “…makes it more likely that members of the
public will be engaged by the process and feel confident that their questions and
concerns are being addressed.”47 In the present Commission, while the events
inquired into were removed in time, it remained important to attempt to avoid
unnecessary interruptions and delays to allow ongoing public engagement in
the issues once the public interest in this matter was revived. Furthermore, given
the delay between the events and the Inquiry, the families deserved to obtain
the long overdue answers they had been seeking as quickly as possible.
41
42
43
44
45
46
47
The first volume contains the following papers: Bruce Hoffman, “Study of International Terrorism”;
Michael A. Hennessy, “A Brief on International Terrorism”; Peter M. Archambault, “Context is
Everything: The Air India Bombing, 9/11 and the Limits of Analogy”; Martin Rudner, “Towards
a Proactive All-of-Government Approach to Intelligence-Led Counter-Terrorism”; Wesley Wark, “The
Intelligence-Law Enforcement Nexus”; and Jean-Paul Brodeur, “The Royal Canadian Mounted Police
and the Canadian Security Intelligence Service: A Comparison Between Occupational and
Organizational Cultures.”
The second volume contains the following papers: Nikos Passas, “Understanding Terrorism Financing”;
Anita Indira Anand, “An Assessment of the Legal Regime Governing the Financing of Terrorist Activities
in Canada”; David G. Duff, “Charities and Terrorist Financing: A Review of Canada’s Legal Framework”;
Mark Sidel, “Terrorist Financing and the Charitable Sector: Law and Policy in the United Kingdom, the
United States and Australia”; and Kathleen Sweet, “Canadian Airport Security Review.”
The third volume contains the following papers: Yvon Dandurand, “Protecting Witnesses and
Collaborators of Justice in Terrorism Cases”; Robert M. Chesney, “Terrorism and Criminal Prosecutions
in the United States”; Bruce MacFarlane, “Structural Aspects of Terrorist Mega-Trials: A Comparative
Analysis”; and Kent Roach, “The Unique Challenges of Terrorism Prosecutions.”
Kent Roach, The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation Between
Intelligence and Evidence. A summary of this study is also contained in the third volume.
Opening statement by the Commissioner, Transcripts, June 21, 2006.
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the
Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public Works and Government
Services Canada, 2006),p. 282
[Emphasis in original] [Arar Report].
Walkerton Report, p. 473.
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Regrettably, the Commission’s ability to conduct its hearings expeditiously
was complicated by the delay of more than 20 years in establishing this
Inquiry. In addition to depriving the families for many years of the answers
they deserved and of the opportunity to have their stories heard publicly, the
time that had transpired since the bombing of Air India Flight 182 introduced
a layer of additional complexity to the Commission’s process. The fact that the
Government had allowed such a significant amount of time to elapse before
calling an inquiry was in large part responsible for making the process more
difficult, lengthier and more costly than it otherwise needed to have been. A
vast amount of documentation accumulated over the years which then had to
be reviewed and analyzed in order to find and select relevant documents. The
dated files were more difficult to retrieve and search. Some documents, notably
those in the possession of the Department of Foreign Affairs and International
Trade (DFAIT), have been lost or destroyed. Some individuals involved in
crucial events have died. Others have had their memories of events fade or
even disappear. In the end, the Commission had to rely to a large extent on
a documentary record that was difficult to assemble and understand, without
always being able to obtain first-hand evidence from live witnesses.
The documents, when available, often constituted the best and sometimes the
only evidence that could be relied on, since they recorded the events as they
happened, with no alteration resulting from the passage of time. However,
significant time and effort were required to reconstitute a narrative ranging over
20 years, in many cases without the benefit of the memories or explanations of
the individuals involved, and on the basis of documents that were not always
self-explanatory. To prepare and present comprehensive evidence about all
facts and events would have required years of Inquiry hearings. To address this
and the added complexities resulting from the Inquiry’s broad mandate, which
called for the examination of a wide range of complex issues, the Commission
had to devise special procedures. Commission dossiers and an episodic approach
to the evidence were used to make sense of the factual, historical and other
relevant evidence and to relate it to the Terms of Reference. This combination of
tools helped sharpen the focus and maximize the efficiency of the Commission’s
approach to its work.
Commission dossiers contained a concise statement of facts based on other
examinations of the circumstances surrounding the Air India bombing,48 as
well as on other reliable public sources.49 Their main purpose was to provide a
factual introduction to the specific subject matter to be dealt with and to set
out relatively uncontroversial facts to allow the Inquiry hearings to focus on
the heart of the more complex or controversial issues relevant to each topic.
The evidence heard by the Commission related to events occurring over many
years and could not always be presented chronologically if it was to be related
to the substantive issues examined. The dossiers could be used to situate the
48
49
The Commissioner could accept these as conclusive or assign them the weight he deemed appropriate.
As set out in Rule 42 of the Rules of Procedure and Practice, the dossiers could contain a “…statement of
evidence, facts or conclusions together with the sources or basis for the evidence, facts or conclusions
that Commission counsel proposes that the Commissioner adopt…”.
�Chapter II: The Inquiry Process
evidence heard within a broader context and to provide a better appreciation of
its relevance.50 As a result, it was possible to present evidence relating to specific
events or issues occurring in different time periods without losing sight of the
surrounding circumstances and context. Substantive links between apparently
separate and unrelated events could be made and trends and patterns could
more easily be identified. Further, the dossiers provided an appreciation of the
previous state of public knowledge which could then be compared with the
new information learned during the Inquiry – a comparison that demonstrates
that the families were justified in their persistence to demand a public Inquiry in
spite of the previous reviews and examinations that had been conducted.51
While it was explicitly contemplated that statements made in the Commission
dossiers could be refuted by the evidence presented before the Inquiry,52 the
use of dossiers nevertheless contributed to making the process more efficient.
The dossiers eliminated the need to present evidence about peripheral or
uncontroversial issues. As a result, the Commission’s time and resources were
not wasted on the resolution of unimportant debates and could be more fully
devoted to the most important issues, without losing sight of the broader
historical context.
The Commission also adopted a concrete, episodic approach to the actual
evidence heard, rather than an abstract or purely narrative approach. For
example, Phase I of Stage 2, focusing on the law enforcement and intelligence
response to Sikh terrorism, began with the examination of a number of episodes
or “critical incidents” that allowed the Commission to trace the manner in which
specific pieces of information relevant to threat assessment and response were
handled prior to the bombing.53 This provided concrete examples capable of
being used as a prism to examine the general structure of the threat assessment
process, the general flow of threat information and the adequacy of the
measures put in place to respond to the threat. The 1985 regime could thus be
examined with a view to identifying specific deficiencies and to understanding
the changes, if any, necessary to correct the deficiencies and prevent the
recurrence of any identified failures. This episodic approach was used to an
even greater extent for the evidence relating to the investigation into the Air
India bombing. Given the time period involved and the quantity of material
50
51
52
53
See, generally, the explanations provided by Lead Commission Counsel Mark J. Freiman in his Opening
statement, Transcripts, vol. 1, September 25, 2006, pp. 5-6 and in his Opening statement, Transcripts,
vol. 15, February 19, 2007, p. 1381.
In some cases, specifically with respect to factual and historical evidence, the summary of publicly
available materials contained in the dossiers was considerably supplemented by the documentary
record and evidence heard before the Commission, in light of the limited amount of materials
previously available. See, in particular, Exhibit P-102: “Dossier 2: Terrorism, Intelligence and Law
Enforcement – Canada’s Response to Sikh Terrorism”, February 19, 2007.
See Opening statement by Mark J. Freiman, Transcripts, vol. 15, February 19, 2007, pp. 1381-1382.
With respect to Dossier 2, it was stated that no position was taken by Commission counsel as to the
correctness of the various positions adopted and conclusions reached by persons and institutions, as
documented in publicly available materials, which were set out in the Dossier.
See generally, the explanations provided by Lead Commission Counsel Mark J. Freiman in his Opening
statement, Transcripts, vol. 20, April 30, 2007, pp. 1869-1870. Freiman noted that one of the episodes,
the Parmar warrant critical incident, also related to the specific process which was used to fill a known
information gap.
55
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Volume One: The Overview
available, the presentation of a detailed narrative would have been impractical
and inefficient. Instead, a number of episodes or incidents that occurred during
the course of the investigation were examined in detail during the hearings
because they spoke directly to the issues at the heart of the Inquiry’s mandate
and they illustrated both the serious challenges encountered and the practical
consequences which resulted.54
The episodic approach to the evidence, in addition to contributing to making
the inquiry process as focused and efficient as possible, sought to capture the
issues as they presented themselves rather than to look for complete historical
evidence. This allowed for the creation of order out of chaos by relating the
factual evidence to the substantive issues to be examined. It enabled the
Commission to review concrete illustrations in a manner that would not have
been possible if a detailed mining of all documents had been undertaken.
The critical incidents examined during the Inquiry hearings provided the
Commission with an appreciation of how the general theoretical issues
and challenges manifested in practice, how they were dealt with and what
concrete consequences resulted. This contributed to focusing the Inquiry by
ensuring that the examination of any deficiencies and the formulation of any
recommendations to address those deficiencies remained grounded in reality,
and took into account the real difficulties faced by the members of the security
intelligence and law enforcement communities engaged in the prevention and
investigation of terrorism.
2.3 Special Procedural Challenges
In addition to the inherent challenges associated with the nature of the Inquiry’s
mandate and, most importantly, with the passage of a significant amount of
time since the events, several specific procedural issues posed additional
challenges for the Commission. In some cases, those issues impacted on the
substance of the evidence that could be heard and required the use of creative
solutions to ensure that all relevant matters would be addressed. In other cases,
most notably that of NSC claims, the issues had a significant impact on the
Commission’s ability to proceed efficiently and expeditiously.
2.3.1 The Importance of Public Hearings
Because of the redaction reconsideration process, which the Government
ultimately agreed to engage in, it was possible to hold the Inquiry hearings in
public. As a result, a considerable amount of new information could finally be
revealed to the public. Contrary to what may have initially appeared to many
of those closely involved with this Inquiry,55 the holding of in camera hearings
was not necessary in order to discharge the Commission’s mandate. The only
in camera hearing held in the course of the 85 days of Stage 2 hearings was
one brief hearing in November 2007, respecting a motion by Government that
54
55
Statement by Mark J. Freiman, Transcripts, vol. 46, September 17, 2007, p. 5515.
See, for example, the Opening statement by Barney Brucker, Transcripts, vol. 12, November 6, 2006, p.
1065 and Opening remarks by Barney Brucker, Transcripts, vol. 15, February 19, 2007, p. 1377.
�Chapter II: The Inquiry Process
certain matters not be heard in public.56 Some affidavit evidence was filed by the
Government, but no oral evidence was heard. In the end, Commission counsel
and Government counsel were asked to pursue discussions that resulted in an
agreement on the evidence that could be filed. “Admissions” addressed to the
content of a number of specific documents were filed and a lengthy Agreed
Statement was entered covering the entire content of the information that could
be made public about “Mr. A”.57 A similar process of filing an Agreed Statement or
Chronology containing summaries of documents had been used in the spring of
2007 for the “November 1984 Plot Chronology”. The general approach adopted
by the Commission was to resort to such summaries or admissions only where
the production of original documents remained impossible without extensive
redactions that would render them meaningless, and where the information
included in the summaries was considered sufficient for purposes of advancing
the Inquiry within the terms of the mandate.
While it is possible in the context of a Commission of Inquiry to hear and receive
some evidence in camera and while the Terms of Reference for this Commission
specifically provide for this contingency,58 the fundamental nature of a public
inquiry must remain, as the name indicates, public. It is essential that the
proceedings of a public inquiry “…be as transparent, accessible and open to the
public as possible.”59 After all, “…one of the main purposes of an Inquiry is to
enable concerned citizens to learn firsthand what occurred …”60 The “…public
desire to learn the truth”61 will generally be fully satisfied only through a process
that is completely transparent and that involves hearings fully accessible to the
public. As indicated by Commissioner John Gomery:
By following the public hearings, [concerned citizens] are
able to arrive at informed opinions as to who might be held
responsible for any errors or mismanagement that might
have occurred affecting what the Inquiries Act calls “the good
government of Canada”. The first role of the Commissioner is
to conduct hearings that serve to facilitate the understanding
of the public…62 [Emphasis added]
56
57
58
59
60
61
62
See Statement by Mark J. Freiman outlining the issues at stake, Transcripts, vol. 12, November 6, 2007,
pp. 8996-8997. An in camera hearing was also called on June 20, 2007 but could not proceed as a
result of the Commission’s inability to offer absolute assurances to the witnesses that their evidence
would never become public: Remarks by the Commissioner, Transcripts, vol. 45, June 20, 2007, pp.
5481-5482.
See Opening remarks by the Commissioner, Transcripts, vol. 75, November 14, 2007, p. 9371 and
Opening remarks by Mark J. Freiman, Transcripts, vol. 75, November 14, 2007, pp. 9373-9375.
P.C. 2006-293, para. (m)(i)-(iii).
Arar Report, p. 282 [Emphasis in original].
John H. Gomery, Fact Finding Report, Commission of Inquiry into the Sponsorship Program and
Advertising Activities, p. 10 [Gomery Report].
Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, para. 175
(Cory J.).
Gomery Report, p. 10.
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Justice Samuel Grange, who presided over the Inquiry into Certain Deaths at the
Hospital for Sick Children, discussed the important role of inquiries in informing
the public and the value of the presentation of evidence in public, even apart
from the other benefits associated with public inquiries. He wrote:
I remember once thinking egotistically that all the evidence,
all the antics, had only one aim: to convince the commissioner
who, after all, eventually wrote the report. But I soon
discovered my error. They are not just inquiries, they are public
inquiries… I realized that there was another purpose to the
inquiry just as important as one man’s solution to the mystery
and that was to inform the public. Merely presenting the
evidence in public, evidence which had hitherto been given
only in private, served that purpose. The public has a special
interest, a right to know and a right to form its opinion as it
goes along.63 [Emphasis added]
Allowing the public to learn all the facts which will form the basis of the
Commissioner’s conclusions and recommendations and to witness the
unfolding of the process is therefore crucial. As indicated by Commissioner
Dennis O’Connor in the Arar Report:
Openness and transparency are hallmarks of legal proceedings
in our system of justice. Exposure to public scrutiny
is unquestionably the most effective tool in achieving
accountability for those whose actions are being examined
and in building public confidence in the process and resulting
decision.64 [Emphasis added]
These fundamental principles should only be derogated from in truly exceptional
cases, where real harm could be done to legitimate interests through the
disclosure of information. The information sought to be kept secret should be
as limited as is possible, and the premise should always be that hearings are to
be held in public unless it is absolutely impossible.
In this Inquiry, the public nature of the hearings was particularly important in
light of the fact that the families, those most affected by the events that made
the Inquiry necessary, had been promised a full public inquiry. The Terms of
Reference for the Commission recognize the importance of granting the families
of the victims an “…opportunity for appropriate participation” in the Inquiry.65
Under the circumstances, and in light of the burden the families bore as a result
of the bombing and of the efforts they made for over 20 years to ensure that
63
64
65
S.G.M. Grange, “How should lawyers and the legal profession adapt?” in A. Paul Pross, Innis Christie and
John A. Yogis, eds., Commissions of Inquiry, Dalhousie Law Journal, vol. 12 (1990), 151, pp. 154-155.
Arar Report, p. 304.
P.C. 2006-293, para. (f ).
�Chapter II: The Inquiry Process
a public inquiry would take place, “appropriate participation” required nothing
less than receiving a full opportunity to hear and see the evidence. Had this
evidence been heard in camera, the families and their counsel would have been
excluded.66 Any summaries of the in camera evidence issued by the Commission
would have been subject to vetting by the Government, which could have
again asserted National Security Confidentiality (NSC) claims that would have
prevented portions of the information from being made available to the families
and to the public. Counsel for the families would have been unable to crossexamine Government witnesses testifying about crucial issues. Given that most
of the information the Government sought to redact was 15 to 20 years old
and related to historical events with little connection to the present security
context, this type of proceeding was not necessary, and would neither have led
to meaningful participation by the families nor to the “appropriate participation”
contemplated by the Terms of Reference.
Further, the Commission was mandated to inquire into and make
recommendations about broad policy issues of interest to the public at large.
The methods available to the law enforcement and security intelligence
communities to combat terrorism and protect human life, as well as the limits
placed on those methods as a result of policy decisions or deficiencies in
the existing regime, are of interest to all members of the public. Under the
circumstances, it was of the utmost importance that not only the families
of the Air India victims, but all members of the public be provided with an
opportunity to follow the proceedings of the Commission so that they might
learn first hand about the evidence presented, and be able to assess the issues
and form their own opinion about the facts, the deficiencies identified, if any,
and the eventual recommendations meant to improve Canada’s ability to
prevent and prosecute acts of terrorism.
2.3.2 The Impact of NSC Claims
While in the end it was possible to achieve the goal of holding full public
hearings, the NSC issues which had to be addressed throughout the proceedings
nevertheless did have a serious impact on the process of this Inquiry. A great
deal of time and considerable resources were expended dealing with NSC
issues. These issues caused delay in the progress of the hearings, and were the
major force behind a delay in the Commission’s proceedings for most of the
period between November 2006 and the end of April 2007. The NSC claims
reconsideration process, which continued throughout the remaining months
of Commission hearings, in some cases caused further delays and required
adjustments in the hearings schedule to await documents becoming available
with fewer redactions and in all cases consumed significant resources both
66
See Reasons for Decision with Respect to the AIVFA’s Request for Directions Regarding Access to Unredacted
Documents and In Camera and Ex Parte Hearings in Annex A of this Volume, which concluded that
the Terms of Reference precluded the Commissioner from granting AIVFA counsel access to any in
camera hearings and unredacted documents, and that, in any event, even if such access had been
possible, counsel would have been precluded by law from sharing the information acquired with the
families.
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for the Commission and the Government legal teams. Those resources had
to be diverted to reviewing NSC claims, even though many requests for new
documents and information remained pending and much remained to be done
to work through and prepare the substance of the evidence to be presented
before the Commission.
Further, the final versions of documents often could not be made available to
counsel for the Parties as far in advance of the hearings as would have been
desirable. This was especially troubling with respect to the victims’ families, given
the express mandate in the Terms of Reference calling for their “meaningful
participation.”67 Because of the time necessary to complete the redaction
reconsideration process, the families frequently received the final redacted
versions of the documents a few days before the hearings and sometimes only
a few hours before. This required counsel for the families to attempt instantly
to absorb an important amount of entirely new information. The challenge this
represented must be recognized. Since most of the witnesses were present or
former Government agents or employees and therefore would have been privy
from the start to all of the information initially subject to redaction (as were
counsel for the Government), the witnesses and Government counsel had much
more opportunity to prepare in advance than did counsel for the families. To
make matters worse, because the will say statements containing a description
of the witnesses’ anticipated evidence and lists of associated documents also
had to be vetted for NSC purposes, counsel for the Parties also often did not
have the benefit of this information as far in advance of the hearings as would
have been desirable. The dedication of counsel for the Parties was of great
assistance in overcoming these challenges wherever possible, and in ensuring
the meaningful participation of the families in this Inquiry.
Under the circumstances, Commission counsel were called upon to conduct
more searching examinations than would otherwise have been necessary
to ensure that all relevant issues were explored. While this was, in some
respects, different from the role normally assumed by Commission counsel in
public inquiries, it was necessary in order to compensate for the challenges
associated with the late disclosure of large volumes of documents and
information. As indicated by Commissioner O’Connor in the Arar Report, the
fact that Commission counsel may, in such circumstances, have to depart from
their usual role need not result in their adopting an adversarial role or taking
a prosecutorial stance, both of which would be contrary to their duty to lead
evidence in an independent and fair manner.68 In this Inquiry, the occasionally
somewhat more active role of Commission counsel was, to the contrary,
necessary to ensure that the evidence was presented fairly and completely.
In this respect, the role of Commission counsel could best be described as
“inquisitorial” rather than “adversarial” and reflects the status of the Commission
as an Inquiry.
67
68
P.C. 2006-293, para. (f ).
Arar Report, pp. 292-293. In the Arar Commission, the circumstances required the actual crossexamination of witnesses by Commission counsel in the absence of counsel present to represent the
interests of other parties.
�Chapter II: The Inquiry Process
2.3.3 The Nature of the Government’s NSC Claims
Because of their impact on the process of this Inquiry, and because of the
challenges they posed for non-government Parties, the nature and extent
of the Government’s initial NSC claims deserve comment. The extent of the
Government’s reconsideration of its own claims is helpful in understanding
whether the unfortunate consequences of the original NSC claims on the
process of the Inquiry could have been avoided. Essentially, a large number of
documents that were entirely blacked out in the version initially provided to
the Parties ended up being produced with few if any redactions.69 In the Arar
Report, Commissioner O’Connor described a phenomenon he referred to as
“overclaiming”, which involved the Government maintaining NSC claims over a
great deal of information throughout the proceedings of the Commission and
then conceding after the fact that the information in question could in fact be
publicly disclosed.70 Commissioner O’Connor explained that the Government
engaged in a review of redactions and modified its position with respect to
many of its initial NSC claims near the end of the public hearings, or after the
hearings were completed. As a result, in the Arar Inquiry some of the information
over which the Government initially claimed NSC was eventually disclosed
without challenge, but not always in time for the evidence to be heard in public.
Unfortunately, the term “overclaiming” also aptly describes the Government
approach to NSC claims in the present Inquiry.
The differences between the various versions of redacted documents provided
by the Government over the course of the Inquiry leave little doubt about
the extent of the unnecessary NSC claims that were initially made. After
reconsideration, the Government itself concluded that much of the redacted
information could in fact be publicly disclosed without compromising national
security.
The February 2007 redactions rendered many key documents meaningless and
thus made the conduct of public hearings impossible at the time.71 Yet, after
the Government reconsidered its original redactions, it became possible to
conduct all of the Commission’s hearings in public, using the very documents
that had originally been redacted beyond any potential use. This “overclaiming”
continued throughout the Inquiry process. Redaction reconsideration requests
continued to be necessary not only for the very first set of redacted documents
provided by the Government prior to February 2007, but also for new documents
redacted by the Government over the summer and into the fall of 2007 and
beyond. Many of the documents provided after the conclusion of the hearings
continued to be subject to wide initial NSC claims.
69
70
71
See, for example, Exhibit P-101 CAC0403, re-entered as CAC0403(i) on May 3, 2007 and Exhibit P-101
CAB0073, re-entered as CAB0073(i) on June 18, 2007. The majority of the most striking examples are
not referred to here as the very first versions produced by the Government were not entered into
evidence in light of their lack of usefulness as a result of the extensive redactions.
See, generally, Arar Report, pp. 301-303.
See Opening statement by the Commissioner, Transcripts, vol. 15, February 19, 2007, pp. 1370-1371.
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Since the reconsideration process continued after redacted versions of the
documents were entered into evidence,72 it is now possible to appreciate, at
least to some extent, the nature and extent of the overclaiming of NSC by the
Government. A few examples of the evolution of the redactions are instructive
in this respect.
The Commission heard evidence about CSIS contacts with a person referred to
as Ms. E, who eventually testified in the criminal trial of Ajaib Singh Bagri and
Ripudaman Singh Malik. The CSIS agent who dealt with Ms. E, William Dean
(“Willie”) Laurie, had prepared reports about his conversations with Ms. E, where
his position and that of his superiors on the issue of whether and when her
information should be passed to the RCMP was discussed. Despite the fact that
those issues went to the heart of the Commission’s mandate and that Laurie had
testified extensively in public proceedings before the Supreme Court of British
Columbia in the Malik and Bagri trial about the content of the reports,73 all
comments respecting the passing of the information to the RCMP were redacted
in full in the versions initially produced by the Government.74 New versions of
the documents had to be entered in evidence on October 15, 2007, after the
Government reconsidered and eventually abandoned its NSC claims.75
The Commission also heard evidence about the security measures put in place
by the RCMP at Pearson and Mirabel airports prior to the Air India bombing. One
document contained a grid of the security measures corresponding to various
security levels used in 1985. This document was initially produced to the Parties
with its contents fully blacked out. These redactions were reconsidered by the
Government and, in the end, the document was filed with no redactions at all.76
Nevertheless, information from this document continues to be blacked out in
full in another, identical document in the evidentiary collection.77
The Commission requested documents from Air India and Air Canada in
connection with the aviation security evidence. Having reviewed the documents,
Commission counsel provided copies to counsel for the Government. The
Government took the position that information found in those documents,
though not provided by the Government to the Commission, had to be redacted
pursuant to the Aeronautics Act.78 The Commission agreed to some of the
proposed redactions out of an abundance of caution, but was again forced to
request reconsideration of portions of the redactions made by the Government,
including redaction of information about the 24-hour hold on cargo imposed
by Transport Canada following the Air India bombing, which was clearly already
72
73
74
75
76
77
78
Some of the documents contained in the Evidence Binders entered as Exhibit P-101 on May 1, 2007 had
already been subject to the redaction reconsideration process, while others had not.
See Trial Transcripts: Exhibit P-244.
See Exhibit P-101 CAA0553, CAA0562, CAA0579.
Exhibit P-101 CAA0553(i), CAA0562(i), CAA0579(i).
See Exhibit P-101 CAA0025.
See Exhibit P-101 CAA0027.
R.S.C. 1985, c. A-2.
�Chapter II: The Inquiry Process
public. The Government finally agreed to lift some of its more egregious claims
on the day before the documents were to be entered into evidence79.
The Commission heard evidence from members of the Integrated Threat
Assessment Center (ITAC), who testified about the threat assessments prepared
by ITAC. In this context, it was learned that ITAC, where possible, produces
unclassified versions of its threat assessments intended for broader circulation.
However, the illustrative unclassified threat assessment which was initially
provided to the Commission surprisingly emerged from the review process
heavily redacted.80 Another version, completely unredacted this time, was finally
entered into evidence after the Government again reconsidered its position.81
In addition to these examples, it should be noted that counsel for the
Government stated before the Commission on March 5, 2007 that, in response
to the Commissioner’s February 19th call for more information to be made
available to the public, Government agencies not only began reviewing their
own NSC claims, but also contacted the Vancouver Police Department and the
Government of India to obtain permission to release information provided
under caveats.82 This permission was obtained in many cases, and a large
number of the documents that were initially redacted in full were released in
the public hearings.83 The process would have been expedited for all involved
if this authorization had been sought and obtained right from the start rather
than having the documents initially provided in redacted form.
This apparently reflexive application of third party caveats, without requesting
that the caveats be lifted, finds echoes in continuing CSIS practices that are
discussed in Volume Three and that have been the subject of critical comment
from the judiciary, notably in the Khawaja case.84 In fact, the Attorney General of
Canada argued in its Final Submissions to this Inquiry that “…constant requests to
lift caveats would demonstrate that CSIS failed to appreciate their importance.”85
This proposition defies logic, as it would rather seem that requests to lift caveats
demonstrate Canada’s commitment to respecting caveats and to not using
third party information without authorization. The fact that the Government,
and CSIS in particular, continues to take this position means that in some cases,
as was initially the case in this Inquiry, NSC claims are made with respect to
third party information without even asking originators for permission to lift
the caveat. In this Inquiry, the failure to take this most basic step contributed to
79
80
81
82
83
84
85
Because the documents were not initially provided by the Government to the Commission, the
Government further requested that the Commission physically redact the documents itself, causing
further delay for the Parties who were waiting to receive disclosure of the materials.
Exhibit P-101 CAF0542.
Exhibit P-349.
Statement by Barney Brucker, Transcripts, vol. 16, March 5, 2007, pp. 1415-1416.
See, for example, the “June 1st Telex,” authorized for release by the Government of India (Exhibit P-101
CAA0185) and the “Khurana report,” authorized for release by the Vancouver Police Department
(Exhibit P-101 CAC0487), which were both crucial documents in these proceedings that were initially
redacted in full and later released with practically no redactions.
Canada v. Khawaja, 2007 FC 490, para 146.
Final Submissions of the Attorney General of Canada, Vol. I, para. 487.
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slowing down and complicating the process unnecessarily, as well as making it
more difficult for other Parties.
The Government’s efforts to reconsider its initial NSC claims must be
commended.86 An impressive amount of time and effort was expended by
Government officials in the redaction reconsideration process in order to
make documents available to the public. Nevertheless, the extent of the
reconsideration engaged in also shows that the negative impact on the
Inquiry could have been avoided to a large extent if the Government had
appropriately limited its initial NSC claims to what was truly necessary. While
the consequences of Government overclaiming on the process of the present
Inquiry were not as severe as in the Arar Commission (where Commissioner
O’Connor indicated that NSC issues not only lengthened the process by
approximately 50 per cent,87 but prevented the Commission from actually
hearing in public evidence which could have and should have been heard
publicly88), the waste of public resources for the present Inquiry was not
negligible.
Prior to the Arar Commission, there was no precedent for redacting documents
for NSC concerns in the context of a public inquiry.89 Commissioner O’Connor
formulated his comments about NSC overclaiming in the hope that his
experience could provide guidance in other cases. He indicated that:
In legal and administrative proceedings, where the
Government makes NSC claims over some information,
the single most important factor in trying to ensure public
accountability and fairness is for the Government to limit,
from the outset, the breadth of those claims to what is truly
necessary.90 [Emphasis added]
Unfortunately, Commissioner O’Connor’s efforts in raising the issue for the future
had little impact on the Government’s approach to NSC claims in this Inquiry. It
must be reiterated in the strongest terms that Government NSC claims should
never be “an opening bargaining position.”91 There is no room for negotiation
strategies in the realm of national security confidentiality, both because the
legitimate interests that actually require protection are of the utmost importance
and because the principles of public accountability and fairness require that
such claims be limited from the outset to what is truly necessary to protect vital
interests.
86
87
88
89
90
91
See Arar Report, p. 303, where Commissioner O’Connor also recognized this.
Arar Report, pp. 279-280.
Arar Report, pp. 301-302.
Arar Report, p. 302.
Arar Report, p. 304.
Arar Report, p. 302.
�Chapter II: The Inquiry Process
A significant consequence of NSC overclaiming is that it “…promotes public
suspicion and cynicism about legitimate claims by the Government of national
security confidentiality.”92 In many cases, there will be a legitimate Government
interest in protecting the identity of informants, in preserving the integrity of
ongoing national security investigations and in preserving the confidence of
foreign governments who provide information vital to the protection of Canada’s
national security.93 When seeking to protect such important interests, it may be
understandable that some Government officials may choose “…to err on the
side of caution in making NSC claims.”94 However, NSC overclaiming ultimately
harms the very interests that national security confidentiality is meant to protect.
The less seriously NSC claims are taken, the more breaches are likely to occur.
Further, overclaiming also promotes public suspicion and cynicism toward
Government institutions in general. If a significant volume of NSC claims are
shown to have been made unnecessarily, there is a risk that members of the
public will conclude that the Government is attempting to hide embarrassing
information, as opposed to protecting legitimate national interests, thereby
undermining public confidence in our national security establishment. In his
testimony before the Inquiry, former RCMP Commissioner Giuliano Zaccardelli
commented on the tendency to overclassify information which he observed in
federal agencies and on its impact on Government:
MR. FREIMAN: […] There’s been some reference in our
hearings to a culture of secrecy that pervades Ottawa. Do you
have any comment on that characterization?
MR. ZACCARDELLI: I think it’s an accurate characterization.
MR. FREIMAN: Accurate or inaccurate?
MR. ZACCARDELLI: Accurate. It’s accurate. We over classify,
we over-redact and then we ultimately get embarrassed by it
being shown to not have been necessary so many times. I think
it’s just in the nature of the beast, and that happens all the
time, and it happens continuously before every inquiry that
seems to take place. We start from the position of we’re not
going to share, we’re not going to show anything because we
don’t want to reveal anything and then, ultimately, we have to
reveal, and we have to show, and the system gets embarrassed
because of some obvious, you know, classifications that were
clearly inappropriate and so on.
92
93
94
Arar Report, p. 302.
See, generally, Opening statement by Barney Brucker, Transcripts, vol. 12, November 6, 2006, p. 1064.
Arar Report, p. 302.
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And I don’t think there’s any malice intended by anybody at all
when they do this. They honestly believe this is what we have
to do. But it’s shown in the end that it doesn’t work...95
The evidence heard before the Inquiry demonstrated that the culture of secrecy,
the extensive use of caveats, the exaggerated reliance on the “need-to-know”
principle and the over-claiming of national security confidentiality that occurred
throughout the pre-bombing threat assessment process and through the Air
India investigation itself have been a source of significant conflict among the
agencies and a significant hindrance to the criminal prosecutions. This culture
of secrecy may well have deprived important actors of crucial information that
might have assisted in preventing or solving the Air India bombing. One of
the fundamental questions posed by the Terms of Reference for this Inquiry is
whether the Government agencies involved in the lead-up to and the aftermath
of the bombing have learned the necessary lessons from their past mistakes.
The continued overclaiming of NSC observed in the initial stages of this Inquiry,
occurring as it did immediately after this very problem was identified in the Arar
Inquiry and after the results of the problem could clearly be observed in the Air
India case itself, is not encouraging. Nor is it encouraging that aggressive NSC
claims continued throughout the hearings in this Inquiry, and even after the
conclusion of the hearings. As well, it is not encouraging that Government had
not initially requested the lifting of caveats by the originator before claiming
NSC over a large portion of materials which could be released in the end, nor
that Government nevertheless continues to take the position that requests to
lift caveats need not always be made before NSC is claimed.
It must also be noted that, even with the reconsideration process, a number
of the redactions that remain appear unnecessary for purposes of protecting
national security though, to be sure, the endless hours spent negotiating the
lifting of redactions of words and paragraphs, and turning specific references
into more generalized ones, did result in most, if not all, of the key information
being made available in some form to the public.
It can only be hoped that the Air India bombing and the experience of this
Inquiry will encourage the Government to further refine its process for NSC
claims to ensure that such claims are more effectively tailored and limited to
what is truly necessary to protect Canada’s national security.
2.3.4 Identification of Relevant Information
The collection of documents in preparation for the Inquiry posed serious
challenges both for the Government and the Commission. In light of the
variety and complexity of the subject matters to be inquired into, the number
of government agencies and departments involved and the length of time
elapsed since the events, it was extremely difficult to discover and isolate the
95
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11082.
�Chapter II: The Inquiry Process
documents relevant to the Inquiry’s mandate. The document collection and
redaction process was further complicated by the extensive negotiations with
the Government relating to identification of relevant documents and information
and by the resulting delays in obtaining the necessary materials.
In fairness to the Government officials involved, they faced an extremely
challenging task. Many thousands of documents could potentially fall within
the ambit of the Terms of Reference,96 and a large number of those had to be
reviewed for relevancy and thereafter for NSC. Under the circumstances, it is
not surprising that the Government sought to obtain as much clarification as
possible respecting the Commission’s interests to assist in narrowing the search
parameters to select the most appropriate documents. Government officials
were willing to work with the Commission to find creative solutions to overcome
the challenges arising from document selection and redaction processes.
Helpful discussions with Commission counsel achieved a clearer identification
of the most important documents. In some cases, access to government
offices was provided and the Commission staff were allowed to review the
available documents or databases in order to formulate more specific requests.
Knowledgeable staff from the various government agencies was made available
to assist the Commission in its review of government files.
However, frequent lengthy meetings and correspondence with counsel for
the Attorney General of Canada (AGC) imposed large time and resource
requirements, as the Government sought to obtain an increasing level of detail
about the scope of Commission counsel’s requests for documentary disclosure
and about the precise redacted information sought to be reconsidered. Too
often, those discussions became an occasion for the Government to argue its
views about the relevance to the Inquiry’s mandate of the information being
requested or being sought to be made public. For example, when information
was first requested about what would become known as “the Mr. A. story”,
which illustrated many of the issues at the heart of the Inquiry’s mandate,
Government counsel advised in December 2006 that this avenue of inquiry led
nowhere and would only result in “…a tremendous waste of time and resources
at the expense of matters germane to the Terms of Reference.” In another case,
a redaction request for extracts of a report respecting protective policing issues
in the period immediately preceding the bombing was challenged as not being
relevant to the Inquiry.
Such discussions were also common in the context of the NSC vetting process
for will say statements, where Government counsel provided comments that
addressed not only NSC issues, but also the actual content of the anticipated
evidence, including arguments about the relevance, appropriate interpretation
or fairness of the evidence which Commission counsel proposed to lead.97
In some instances, Government counsel requested changes to the will say
96
97
See Statement by Barney Brucker, vol. 19, March 9, 2007, p. 1769.
Those types of comments were received on a regular basis during the “will says” vetting process, while
actual NSC issues were seldom raised in that context.
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statements that were contrary to what the witnesses had said in interviews, but
fit better with Government counsel’s view of what the witnesses meant or with
their suggested interpretation of what was said.98
In addition, an unduly narrow view, not appropriate in the context of a public
inquiry, was at times adopted by the Government in its interpretation of
Commission requests and of the Government’s obligations. In some cases,
attempts were made to provide only as much of a response as was absolutely
required, taking the narrowest view of the request. Equally disconcerting,
Commission counsel were not always advised promptly when documents of
interest were located by the Government prior to being specifically requested by
the Commission. At times this tardiness simply constituted a minor annoyance.
Thus, when discussions began between Government counsel and Commission
counsel to create what would become the “November 1984 Plot Chronology”,
Government counsel used its own set of materials, not previously disclosed to the
Commission, to prepare a proposed Agreed Statement and only provided those
additional materials to the Commission some weeks later. On other occasions,
the consequences were more serious and threatened unfairness to witnesses.
Notably, during the cross-examination of Brian Simpson, Government counsel
sought to rely on documents that had been identified from the civil litigation file,
without providing prior notice of the specific documents upon which they would
be relying.99 Not only was Simpson cross-examined with a view to impugning
his credibility on the basis of a description of documents that no one outside
of Government and its counsel had previously seen, but the full documentary
record turned out, in fact, to include a document that corroborated aspects
of his testimony that were being challenged.100 The Government has tried to
explain away its reliance on these previously unseen documents, in part, on the
basis that they were included in an RCMP database compiled for purposes of
the Air India criminal trial that was made available to Commission counsel in the
summer of 2006.101 This collection consisted of tens of thousands of unindexed
documents housed in a document management system that was different
from the one the Department of Justice insisted be used by the Commission
and that was capable of being searched in only the most rudimentary manner.
The Commission does not accept that in effect inviting Commission counsel to
sift through this unwieldy mountain of data constituted adequate production
of relevant documents let alone effective notice of documents intended to be
used to cross examine Simpson.
98
This situation continued even after concern was expressed by Commission counsel to counsel for the
Attorney General, in correspondence dated June 1, 2007.
99 See Remarks by Mark J. Freiman and Loretta Colton, Transcripts, vol. 32, May 23, 2007, pp. 3714-3715;
Remarks by Tracey McCann and Anil Kapoor, Transcripts, vol. 33, May 24, 2007, pp. 3865-3869; and
Volume Two: Part 1, Pre-Bombing, Section 1.9, Mr. Simpson’s Visit to the Air India Aircraft. It should
be noted that the civil litigation file contains over a hundred boxes and was only accessible to
Commission counsel upon attendance at government premises.
100 See Volume Two: Part 1, Pre-Bombing, Section 1.9, Mr. Simpson’s Visit to the Air India Aircraft.
101 Letter from Government counsel dated May 25, 2007.
�Chapter II: The Inquiry Process
Even after Commission counsel asked that all documents identified as relevant
by Government counsel be provided immediately to the Commission,102 and the
Attorney General of Canada signaled its recognition that all relevant documents
in the Government’s possession should be disclosed,103 there were still instances
where the Commission received production of documents, or notice of their
existence, weeks, and sometimes months, after its interest in presenting
evidence respecting their subject matter was known to the Government.104 In
one particularly egregious case, full disclosure did not occur until many months
after the close of hearings.105
In the end, the Government’s attempts to tailor and narrow the Commission’s
requests further delayed the proceedings and put the Commission in a position
where it was obliged to keep going back with additional requests in circumstances
where it could not have had knowledge of the complete documentary record in
the Government’s possession. By slowing down the entire document collection
and redaction process, such situations also contributed to increasing the
challenges faced by counsel for the Parties who often received the redacted
materials at the last minute. Given the requirement for openness, transparency
and fairness in the Inquiry process, full documentary production should not be
the subject of a game of “Twenty Questions.”
The document collection and redaction process is not the appropriate forum to
engage in discussions respecting the nature and extent of what information is
or is not relevant, in the Government’s view, to the Inquiry’s mandate. Nor is the
process of vetting of will-says to identify National Security Confidentiality (NSC)
issues the appropriate forum to discuss the fairness of inferences taken from
the evidence or the accuracy of a witness’s evidence. Commission counsel are
responsible for representing the public interest and for determining the relevant
materials and evidence to be put before the inquiry in public hearings. It is
crucial that an inquiry be and appear to be independent from the Government
into whose actions it must inquire. As stated in the Arar Report, in order to fulfill
“…this duty of independence and impartiality, an inquiry must be thorough and
examine all relevant issues with care and exactitude, to leave no doubt that all
questions raised by its mandate were answered and explored.”106 As a practical
matter, this requires that the Commission be provided an opportunity to request
and review Government documents and information independently in order
102 Letter from Commission counsel to Government counsel dated May 24, 2007.
103 Letter from Government counsel dated May 25, 2007.
104 Examples include the receipt of documents respecting Tara Singh Hayer in late January 2008, when
the Commission’s interest in presenting evidence about the agencies’ dealings with Mr. Hayer was
known to the Government since the summer of 2007 and the last witness who testified on this issue
was heard in early December 2007, as well as notification in February 2008 of the existence of a VPD
report which could clarify aspects of the evidence of Detective Don McLean, who testified in the spring
of 2007, and which was apparently located by the RCMP sometime prior to February 11, 2008, but was
only provided to Commission counsel after the RCMP went directly to McLean with the report.
105 See Volume Two: Part 2, Post-Bombing, Section 5.7, The present Commission of Inquiry, under the
subheading “Stonewalling”, as well as the discussion in Section 2.3.7 of the RCMP’s failure to disclose
information about Mr. G.
106 Arar Report, p. 282 [Emphasis in original].
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to make its own determinations about their relevance in a manner that does
not delay or hinder the preliminary document collection and redaction process.
Disputes and disagreements about Commission counsel’s selection should take
place in the public hearings, where all parties have an opportunity to present
their positions subject to public scrutiny.
Similarly, the process used by the Government to present facts and provide
information for the consideration of the Commission and of other Parties must
be open and transparent. One incident raised concerns in this respect after
the close of the hearings. The Attorney General of Canada’s Final Submissions
contained a substantial amount of new information regarding civil aviation
security that had not been canvassed during the Commission’s public hearings.
As a result, the Commission requested briefings from Transport Canada, with
a view to determining whether some or all of the new information should be
reflected in the Commission’s report.
In all, three briefings were held with Transport Canada officials to address
the new information. These briefings related to current aviation security
initiatives generally, and to air cargo security and risk management in particular.
Commission counsel subsequently prepared summaries of these briefings with
the ultimate objective of disclosing their content to the Parties for comment.
Because the briefings had entailed discussion of classified and security sensitive
information,107 the briefing summaries were first provided to the Attorney
General of Canada (acting on behalf of Transport Canada and other agencies)
for redaction and fact-checking.
The manner in which the Government performed the redaction and factchecking tasks was unsatisfactory.
When the Attorney General of Canada produced the redacted briefing summaries
to the Commission, no mention was made of any factual errors identified in
the documents. On its face, each document appeared to be a redacted version
of the original: that is, a version identical to the original where any passages
subject to NSC claims or claims based on the confidentiality that attaches to
aviation security measures were simply blacked out. On this basis, the redacted,
but otherwise apparently unaltered briefing summaries were disclosed to
the Parties shortly after their receipt by the Commission. The Parties were
entitled to assume, as had the Commission, that the final text was the result of
agreement between the Commission and the Attorney General of Canada as to
the substance of the briefings. But this was not the case.
Without any notice or comment, the Government had undertaken to edit the
documents for content. Commission counsel did not notice this fact until after
production to the Parties, because of the manner in which the changes were
made.
107 The security-sensitive information discussed at the briefings included aviation security measures made
or authorized under sections 4.72 and 4.73 of the Aeronautics Act, R.S.C. 1985, c. A-2. Section 4.79 of
the Act prohibits unauthorized disclosure of such measures.
�Chapter II: The Inquiry Process
It was only in the course of referring to one of the redacted documents that
it was noticed that the text on one of its pages appeared oddly positioned.
Commission counsel then undertook a detailed line-by-line comparison of
the original text and the redacted versions. It was discovered at that point
that all three briefing summaries had been substantially altered without the
Commission’s knowledge or approval. Extensive changes had been made to the
original text, in some cases altering the meaning. In one instance, the text was
changed so that it not only became an inaccurate reflection of what had been
discussed at the briefing, but also constituted an inaccurate statement about a
boarding denial under the Passenger Protect Program.108 Entire portions of text
had been added, deleted or modified without any markings to indicate that the
documents had been so altered. Indeed, it appears that the Government went
to considerable trouble to make the modified summaries look like the originals.
Each of the documents had been retyped, using the same format and the same
distinctive font as had been used by Commission counsel in the originals.
At one point prior to production, the Attorney General of Canada had made
general mention of corrections to one of the documents due to alleged factual
errors.109 No specific details were offered. When the document was later
produced as a final product, without any further mention of changes to the text
or of concerns with its factual content, this created the false impression that the
only changes to the document were the redactions themselves. It was not until
the Commission conducted its own detailed analysis and subsequently raised
the issue of the unidentified changes, that the AGC then itemized the specific
alterations.
The Attorney General of Canada offered a number of reasons why changes to
the text were deemed necessary, including disagreements as to factual accuracy,
changes to the classification of material discussed at the briefings, changes to
the status of aviation security initiatives and even stylistic preferences. However,
this cannot explain or justify the lack of notification of the proposed changes.
The AGC was free to point out any substantive disagreements it might have
had with the contents of the briefing summaries, as it had been invited to do,
but the Government was under an onus to clearly articulate the ways in which
it wished to alter the documents. As the Attorney General of Canada conceded
in subsequent correspondence with the Commission: “…it would have been
preferable if delivery of the versions of the briefing summaries had highlighted
108 At a briefing on May 14, 2008, Commission counsel requested an update on denials of boarding
privileges under the Passenger Protect Program. Transport Canada officials replied that there had
been no denials of boarding privileges as of that date. An “action box” indicated that Transport Canada
had undertaken to inform Commission counsel should any boarding denial take place in the coming
months. This information was reflected at page 11 of the briefing summary prepared by the
Commission and submitted to the Government for redaction and fact-checking. In the version of the
briefing summary that the Government authorized for release to the parties, the relevant portion of
the text was changed to indicate that there had been one boarding denial. In fact, a denial of boarding
privileges had not occurred until June 2008 – weeks after the briefing took place. The “action box” was
completely removed from the text.
109 The document in question was the May 14, 2008 briefing summary.
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or otherwise identified changes or deletions made or that correspondence
accompanying delivery had indicated that such changes had been made.”110
The Commission is prepared to accept the Attorney General of Canada’s
subsequent assurances that there was no intention to mislead or to frustrate
the Commission, but it remains troubling that anyone would have thought it
open to the Government to attempt to rewrite Commission documents, let
alone that such “corrections” would be undertaken without any mention of the
alterations.
2.3.5 Resource Issues
Responding to this Inquiry required a significant investment of time and
resources for the Government.111 Documents had to be constantly reviewed
for purposes of redaction and reconsideration of NSC claims, which required
input from numerous agencies. Meanwhile, new and pending requests for
additional information and documents had to be addressed, and this required
Government agencies to identify relevant materials among large collections
of documents covering activities ranging over 22 years, some of which were
not easily retrievable.112 Requests relevant to other more policy-oriented
Terms of Reference, such as terrorist financing, also had to be processed. In
addition, witness interviews had to be arranged and attended, and draft will say
statements had to be reviewed for NSC purposes.
In spite of the industrious effort of the Government officials involved, the
resources at their disposal were apparently insufficient to enable them to meet
the Commission’s requests in a timely fashion. Documents were often disclosed
or redacted late. Examples include a delay of approximately nine weeks between
November 2006 and late January 2007 to obtain a response to a request for
information and documents from CSIS, and a delay of almost three full months
to obtain a first response to a redaction request for documents relating to the
Mr. A story, following which extensive negotiations were necessary to produce
an Agreed Statement in lieu of the documents.
In addition to the challenges caused by the delay in calling the public inquiry,
which resulted in the accumulation of an unmanageable volume of documents
and information, the Commission faced serious obstacles to proceeding
efficiently and expeditiously, and counsel for the Parties, in particular the victims’
families, had to face additional challenges associated with late disclosure
resulting from the lack of sufficient resources available to the Government
officials in charge of responding to the Inquiry. This resource insufficiency also
contributed to increasing the cost of the present Inquiry to the public by making
the overall process lengthier and more complex and plaguing it with protracted
and unnecessary discussions about the relevance or appropriateness of the
110
111
112
Letter from Government counsel to Commission counsel dated February 13, 2009.
For an outline of the various tasks which had to be performed, see Statement by Barney Brucker,
Transcripts, vol. 19, March 9, 2007, pp. 1768-1769.
Statement by Barney Brucker, Transcripts, vol. 19, March 9, 2007, p. 1768.
�Chapter II: The Inquiry Process
Commission’s requests, discussions which were in some cases openly driven
by the fact that it was simply not possible to mobilize sufficient resources to
respond to some of the requests formulated by Commission counsel.113
Further, not all Commission requests were processed by the Government prior
to the end of the hearings, or in some cases, for months thereafter. As of midJanuary 2008, numerous Commission disclosure and redaction requests still
remained unanswered, including requests dated July 2007 and October 2007.
Not until late March 2008 did those requests finally receive a response. The
Commission continued to issue requests in light of its ongoing review of new
and existing documents, and responses continued to be provided in a less than
timely manner. The last installment of redacted documents was received by the
Commission on February 18, 2009, in response to requests made in September
and October 2008. It was not until March 2009 that the Government provided a
response to another request, outstanding since October 2007, after considerable
resources were expended in unnecessary debates over production.
In October 2007, the Commission had requested that a 1985 Transport Canada
security audit of Vancouver, Pearson, and Mirabel international airports,
conducted immediately after the bombings, be made public. The Attorney
General of Canada responded that, because of the limited resources available
for the redaction process, consideration of the Commission’s request would
have to be delayed until November or December 2007. By January 2008, the
document had still not been produced and no response had been received
from the AGC. Commission counsel followed up on the request, only to be told
that Transport Canada now took the position that the document would not be
released on the basis of a claim of solicitor-client privilege. It was Commission
counsel’s view that the audit revealed important details of the inadequate
security at some of Canada’s largest airports in the spring of 1985, and hence
that the production of its contents was important for the Commission’s mandate.
Although Commission counsel saw no basis for the claim of privilege, in an
attempt to reach a compromise, a proposal was made to the Attorney General
of Canada in March 2008 that a summary of the document be entered as an
agreed statement of fact.
Commission counsel followed up to enquire about the proposal, but no
response was received from the Attorney General of Canada until October 31,
2008. At that point, the AGC proposed that the Government would draft its own
summary, to be provided within one week. By January 2009, the Government
had still not provided any draft summary. Commission counsel again followed
up on its request for the public disclosure of either the document itself or a
113 Government counsel took issue with some of the Commission’s requests because of the amount of
material which would have to be reviewed. For example, the Government indicated in July 2007 that
one request could not be responded to because the RCMP did not catalogue documents according
to subject matter and a review of the entire database would be necessary to respond to the request,
which could not be accomplished prior to the completion of the hearings. In another case, the large
number of CSIS files involved was invoked to refuse to respond to a Commission request, and the
Government subsequently indicated that the Commission’s attempts to narrow the request were still
not helpful practically in assisting to narrow the scope of the search that would have to be done.
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mutually acceptable summary. The AGC’s response came in February 2009,
at which time it indicated that Transport Canada’s position had again shifted.
Transport Canada was now reluctant to release any summary of the document,
as it was now unwilling to waive any portion of the claim of alleged privilege
regarding the contents. Following fruitless discussions about the merits of the
privilege claim, Commission counsel made one final attempt at compromise by
submitting a list of specific extracts from the report that would be disclosed
to the public. Transport Canada officials reviewed the extracts and, in March
2009, the Attorney General of Canada conveyed Transport Canada’s refusal
to authorize the release of any information. Commission counsel responded
by informing the Attorney General of Canada that the audit report would be
produced to the Parties by way of disclosure forthwith, and that the Government
would have to formally assert any objections it intended to raise on the basis of
alleged privilege through available legal means.
Immediately thereafter, the Attorney General of Canada informed Commission
counsel that the Government would not be asserting any claim of privilege in
connection with the audit report. Almost a year and a half after the original
request, the Government agreed to the release of the audit report in its entirety,
with no redactions.
Counsel for the victims’ families were able in March 2009 to provide very helpful
written submissions to the Commission regarding this and other tardily disclosed
documents, and these submissions were then published on the Commission’s
website. However, the fact remains that because of the time the Government
took to respond to the Commission’s request, and to come to a final position
about its privilege claim, a key document, that could have been made public
prior to the close of the hearings, was not available at a time and in a manner
that would have allowed the issues it raised to be dealt with in public hearings.
2.3.6 Representation of Government Agencies
The Attorney General of Canada asked for and was granted Party Standing
to act on behalf of the Government of Canada and all affected Government
departments and agencies.114 The Government chose to have only one set of
counsel represent all potentially affected departments and agencies, as well as
the Government itself.115
This means that, as a practical matter, the Attorney General of Canada acted for
and attempted to represent the interests of the following:
(a) the Government that called the Inquiry and that asked for the answers to
seven mandate questions in the Terms of Reference, mainly touching on
the effectiveness of past and/or current practices by government
agencies;
114
115
Ruling on Standing, August 9, 2006 in Annex A of this Volume.
Ruling on Standing, August 9, 2006, p. 4 in Annex A of this Volume.
�Chapter II: The Inquiry Process
(b) the government agencies whose past and present actions and
practices were put in question by the Terms of Reference in
circumstances where historically there had been differences
and disagreements among these agencies in connection with
those activities and practices;
(c) present and past individual employees of the Government and
its various agencies who had historically participated in the
events and activities that are invoked in the Terms of Reference,
in circumstances where some had in the past been critical of
Government actions or of other agencies;
(d) individual present and past employees of Government and
its various agencies who qualify as experts able to provide
opinions on activities and practices referred to in the Terms of
Reference;
(e) the Minister of Justice, who is responsible for the conduct of
the justice system in response to the unique challenge of
terrorism prosecutions as referred to in the Terms of Reference;
(f ) the Attorney General of Canada as Chief Law Officer of the Crown,
whose constitutional duty it is to see to it that the affairs of
Government are conducted in accordance with the law and the
Constitution of Canada.
In explaining the decision to have all these interests represented by the
same set of counsel, counsel for the Attorney General of Canada stated that
the Government of Canada would “…attempt to speak with one voice” at this
Inquiry, and that it had taken into account the possibility of conflicts.116
As a matter of principle, the intricate balancing act that would be necessary to
be all things to all these people seems unlikely to be capable of meeting with
any measurable success. In practice, such forebodings were amply borne out by
the consequences of this unified representation at this Inquiry
It was a foreseeable result of this approach, as had been the case in the Arar
Inquiry, that “…when departments or agencies had differences in positions,
those differences were not explored by Government counsel.”117 Further, since
the vast majority of past and present Government employees who testified
before the Inquiry were represented by Government counsel, interagency
differences were also not explored by counsel for Government witnesses.
A large portion of the evidence heard in this Inquiry, especially that relating to
the investigation that followed the bombing, related to difficulties in interagency
116
117
Submissions by Barney Brucker, Transcripts, July 18, 2006, p. 3.
Arar Report, p. 291. The same approach had been adopted by the Government in its response to the
Arar Commission.
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cooperation, in particular between the RCMP and CSIS. Evidence of significant
disputes and disagreements between CSIS and the RCMP in the course of the
Air India investigation was heard, and the facts surrounding these events were
examined in detail. It was clear from some of the testimony heard and mostly
from the documentary record, that these two agencies had, at least in the past,
taken markedly different and diverging positions with respect to the significance
of the issues at stake and the very facts surrounding the disputes.118 Given the
clear differences of views between CSIS and the RCMP, the Commission would
have benefited from having the evidence presented by witnesses from one
agency tested by counsel representing the other agency. While the evidence in
this Inquiry was heard in public, and Parties with interests different from those
of the Government agencies were present,119 the agencies would no doubt have
been in the best position to vigorously test and challenge some of the evidence
related to matters in which they were directly involved and of which they had
first-hand knowledge. That was obviously not the approach taken on behalf of
Government at this Inquiry.
Commission counsel were able to explore some of the interagency differences,
but were limited because of their duty to lead evidence in an independent and
even-handed manner.120 While Commission counsel did find it necessary at
times to take a more active role as a result of the challenges associated with the
redaction reconsideration process, and in light of the unified representation of
all government agencies, they could not advocate vigorously for the position
of one particular agency in order to test and contradict the claims of another
agency, and they should not have been expected to perform this function.
Although public inquiries are not “…strictly speaking, an adversarial process”,
in general, the Commissioner “…has the advantage of hearing evidence tested
through cross-examination by those with competing points of view.”121 Having
parties with divergent and opposing interests testing the evidence and making
representations before the Inquiry about the interpretation of documents
and testimony allows the Commission to benefit from a broad range of views
before coming to its own conclusions based on the evidence. Because of the
Government decision to “speak with one voice”, vigorous testing of the evidence
respecting interagency conflicts was made more difficult and the evidence was
much less revealing.122
118 See Volume Two: Part 2, Post-Bombing, Chapter V, The Overall Government Response to the Air India
Bombing.
119 In the Arar Inquiry, Commission counsel had to be instructed to cross-examine Government witnesses
in order to ensure that their evidence could be tested, since much of their evidence was heard in
camera, with no parties with interests different from the Government’s interests present or represented
and with one team of counsel representing all Government agencies: Arar Report, p. 291.
120 Arar Report, p. 292.
121 Arar Report, p. 292.
122 It is not for this Commission to pronounce on the existence of a conflict of interest between the
agencies which would have made representation by the same counsel impossible. That is a matter
properly addressed by the agencies and the Government within the confines of the solicitor-client
relationship. The present comments are meant only to address the impact on the Inquiry process of
the Government decision to have all agencies represented by the same counsel.
�Chapter II: The Inquiry Process
Further, also because of the Government decision to speak with one voice, the
Commission was not presented with a clear statement of the agencies’ official
positions about contentious issues. At times this unified representation had an
impact on the Commission’s ability to evaluate factual issues. To take one clear
example, in the past CSIS had alleged that the RCMP had used its information
without authorization in an application to intercept private communications in
connection with the Air India investigation,123 even though in the application
the RCMP claimed that such authorization had been granted by CSIS.124 Though
conflicting evidence was heard about this issue, the Final Submissions of the
Attorney General of Canada provide no indication of the current position of
the agencies. In fact, it is even difficult to ascertain the Government’s ultimate
position on this issue, as conflicting statements are made in different sections of
the submissions.125 As a result, the Commission has not been advised whether
the conflict between the RCMP and CSIS positions has now been resolved and,
if so, how.
More importantly, the Government’s position about issues central to the
Commission’s mandate, such as interagency cooperation and the use of security
intelligence as evidence, remains unclear, again because of the contradictory
statements made in the Final Submissions. On the one hand, the Attorney
General of Canada points out that current cooperative efforts by CSIS and the
RCMP will not resolve the legal difficulties associated with the use of intelligence
as evidence, clearly implying that change is necessary to improve interagency
cooperation.126 On the other hand, the Attorney General of Canada argues that
neither disclosure law nor the Canada Evidence Act provisions providing for
the protection of sensitive information should be modified in any way.127 If it
is the case that government agencies have different positions on those issues
because of their different roles and expertise, it would have been helpful for
the Commission to receive clear statements and explanations of the agencies’
positions, rather than being presented with contradictory submissions on behalf
of the Government as a whole.
It should also be noted that the general message contained in the Attorney
General of Canada’s submissions on the policy issues raised by the Terms
of Reference appears to be that the status quo has successfully met all of the
relevant policy challenges, that no changes are advisable or that any changes
123 Exhibit P-101 CAA0609, p. 17, where CSIS indicates they have “no record” of being told in advance by
the RCMP when their information was used in a September 1985 affidavit.
124 Exhibit P-101 CAA0324(i), para. 49.
125 On the one hand, the Attorney General points out that “…whether due to a miscommunication or
not, [RCMP] officers understood they had permission from Joe Wickie [a CSIS employee] to use the
CSIS material in the Affidavit” [Final Submissions of the Attorney General of Canada, Vol. I, p. 132, fn
398], and on the other hand, the Attorney General indicates that CSIS Headquarters had not authorized
the use of its information in the affidavit and that “…it is possible that [CSIS] BC Region had indicated a
willingness to obtain permission from [CSIS] HQ on behalf of the RCMP” [Final Submissions of the
Attorney General of Canada, Vol. I, para. 368]. The Government does not specify whether it takes the
position that there was, in fact, a miscommunication, nor discuss whose understanding was correct.
126 See Final Submissions of the Attorney General of Canada, Vol. I, paras. 449-452.
127 See Final Submissions of the Attorney General of Canada, Vol. III, paras. 101-113.
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would be premature, except for a limited number of witness protection issues.128
This position is difficult to square with the Attorney General of Canada’s role
as representing the Government that called the Inquiry with the ostensible
purpose of soliciting advice on addressing what it considered to be difficult but
pressing policy challenges. It is somewhat surprising in that context to be told
by the Government’s lawyers that there is little if anything that can or should be
changed.
This raises an additional important issue: what exactly is being referred to as the
“Government” that is attempting to speak with one voice? The Commission is
obviously not entitled to go behind issues of representation by counsel and for
that reason in this chapter references to “Government” are intended to designate
the originator of the instructions acted on in the context of this Inquiry by the
Attorney General of Canada through its lawyers. Based on the experience of
the Commission, this “Government” in fact consists of the accumulation of
positions and institutional interests of the departments and agencies that
played or continue to play a role in the Air India narrative. The inability of this
“Government” to speak consistently, or at times at all, when these institutional
interests diverge suggests that there is no single directing mind speaking on
behalf of what most people would understand as the “Government.” In this
respect, the situation resembles that described in Volume Three, where Canada’s
anti-terrorism response appears to consist of the sum of the efforts of individual
departments, agencies and institutions, each of which largely continues to
operate “independently” (which often means within its own silo) and without
overall direction.
There certainly did not appear to be any overall direction or “whole of
Government” perspective in Final Submissions on behalf of the Government
that suggested to the Commission that had been created by the Government to
advise it about necessary changes to practice and procedure or to the operation
of institutions, that no changes were needed to the legal and procedural
status quo. Nor did there seem to be much coherence between the request
of the Government that constituted the Commission to advise it of possible
shortcomings in the behaviour of departments and agencies in both the prebombing and post-bombing eras, and the positions adopted at this Inquiry by
the Attorney General of Canada on behalf of the Government which involved
a systematic and consistent denial of any mistakes or deficiencies on the part
of the Government agencies involved.129 It will also not escape the notice of
the reader that there is an added ironic dissonance between, on the one hand,
the suggestions in the Attorney General of Canada’s submissions that the
Commission should avoid assigning blame and reevaluating past decisions
in detail with the benefit of hindsight130 but should rather concentrate on its
128 Final Submissions of the Attorney General of Canada, Vol. III, paras. 81, 100, 101-113, 115, 176, 197, 207,
244-245.
129 See Volume Two: Part 2, Post-Bombing, Chapter V, The Overall Government Response to the Air India
Bombing.
130 Final Submissions of the Attorney General of Canada, Vol. I, paras. 18-19; Opening remarks by Barney
Brucker, Transcripts, vol. 15, February 19, 2007, p. 1386.
�Chapter II: The Inquiry Process
mandate to provide “forward looking recommendations” to avoid problems in
the future,131 and, on the other hand, the submission of the Attorney General of
Canada that nothing at this present time is in need of change.
It is also worth noting that where the Report, and especially this chapter, refers
to the “Attorney General of Canada”, the intended denotation is the entity that
carries out the instructions formulated by the “Government” that is trying to
speak with one voice. It is not intended to refer to one individual, but rather to
an institutional function. Any comments about the “Attorney General of Canada”
or its submissions are not intended to reflect on the personal conduct, ethics or
integrity of the individual lawyers in the Department of Justice through whom
the Attorney General of Canada provided legal representation in the proceedings
of this Inquiry. To the contrary, it must be emphasized that these individuals
conducted themselves throughout with admirable integrity and professionalism
in often stressful circumstances as they did their best to discharge what to the
Commission appears to be an almost impossible assignment given the disparate
interests of their “unified” client.
There is no doubt that agencies, no less than individuals, are entitled to
representation by counsel who will present their actions and represent their
interests in their best light. Where one set of counsel is appointed to do this for a
variety of agencies with historically divergent perspectives and understandings,
the task becomes unmanageable and risks trivializing the real differences that
separate the agencies and compromising the benefits that might be expected
from the separate representation of competing viewpoints.
2.3.7 Ongoing Investigations
The criminal investigation into the bombing of Air India Flight 182 continues to
this day. As a result, the Commission had to ensure that no information would
be made public in the process of the Inquiry that could in any way jeopardize
the ongoing investigation. While the families had been waiting too long to
receive answers and the Commission therefore had to do everything possible
to provide those answers, the families and the Canadian public also have an
interest in seeing those responsible for the Air India bombing finally brought
to justice. The Terms of Reference recognized this through a requirement that
the Inquiry be conducted in a manner that did not jeopardize ongoing criminal
investigations or proceedings.132
It was inevitable that in the course of the document collection and witness
interview process, some information would be learned that might potentially
have an impact on the ongoing criminal investigation. Commission counsel
were instructed to exercise the utmost care in this respect, and to ensure that
the ongoing investigation would not be jeopardized as a result of any new
information made public in the context of the Inquiry. It was also important
131 Final Submissions by the Attorney General of Canada, Vol. I, paras. 1, 20, 248; Opening remarks by
Barney Brucker, Transcripts, vol. 15, February 19, 2007, p. 1386.
132 P.C. 2006-293, para. (q).
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that information that may have otherwise already been public not be used in a
manner that could jeopardize the ongoing investigation. Commission counsel
worked with Government counsel to find creative solutions to allow for the
information necessary to fulfill the Commission’s mandate to be made public
without revealing information that could, if disclosed, negatively affect the
investigation. In some cases, where focusing on certain episodes or events might
arguably have risked interfering with the investigation, it was possible to lead
evidence about different episodes to illustrate the same issues. At other times,
it was possible to remove some sensitive details and identifying information,
or otherwise generalize information, whether already in the public domain or
not, in such a way that the relevant point was made without disclosing details
or linkages in a manner that might have a negative effect on the investigation.
As a result, the challenges associated with the parallel existence of an ongoing
criminal investigation and a public inquiry were, in the end, capable of being
overcome.
Nevertheless, one area of concern did arise when it was learned that on several
occasions, specific aspects that the Government or its agencies characterized
as part of the ongoing investigation only began to be actively pursued after
Commission counsel made inquiries on the subject. Another serious concern
arose when additional redactions were sought on the basis of what was
described as a risk of jeopardizing a new investigative avenue that had just
been opened when an important individual, Mr. G, contacted the RCMP to offer
cooperation. In fact, Mr. G had contacted the RCMP to indicate that he wanted
to testify at this Inquiry. The RCMP began discussions with him and asked him to
postpone his plans to make direct contact with the Inquiry. Instead of advising
the Commission that Mr. G wanted to testify, the RCMP invoked his offer of
cooperation to attempt to shield information from public disclosure.133
However, bringing those responsible for the bombing to justice must always
remain a priority, and every possible avenue of investigation should be
explored, regardless of the timing or the reasons for the initial probing. Thus,
the Commission continued to adopt the same general approach of avoiding the
release of any information that might compromise the investigation, no matter
when – or why – any specific aspect of the investigation commenced.134
While the imperative not to interfere with any aspect that the RCMP identified
as part of the ongoing investigation inevitably leaves some loose ends and
unexplored possibilities, on the whole it was possible to obtain and make public
the information necessary to fulfill this Inquiry’s mandate without jeopardizing
the investigation. Where this was not possible, other information was found to
illustrate the same themes and issues. At all times, the Commission attempted
to remain mindful that its role was to address seven specific historical and policy
issues, not to “solve” the bombing of Air India Flight 182.
133 See Volume Two: Part 2, Post-Bombing, Chapter V, The Overall Government Response to the Air India
Bombing.
134 The Commission did not attempt to discover whether Commission counsel’s inquiries had any impact
on the decisions to begin to pursue certain aspects of the investigation at particular times.
�Chapter II: The Inquiry Process
2.3.8 Witness Interviews
To ensure that potential Government witnesses would be as candid as possible
in interviews with Commission counsel, it was agreed that the interviews would
remain “off the record” and confidential. It was therefore understood that the
statements made by the witnesses during those interviews would not be put
to them during their testimony in the hearings and that those statements
would not be revealed to third parties by Commission counsel. It was felt that
this approach would be conducive to making as much information as possible
available to Commission counsel. Understandably, some potential witnesses
would feel more comfortable in private and could freely express some personal
views or share anecdotal information respecting personal interactions which
they would not feel comfortable revealing in public hearings. The airing of
such information and opinions in public might not have been strictly necessary
to fulfill the Commission’s mandate. Nonetheless, it was felt that this added
context would better position Commission counsel to evaluate the evidence
that did need to be called and to understand the significance of the information
contained in the documents collected.
Overall, this approach was successful in making more information and context
available to Commission counsel. However, in some cases, Government witnesses
not only avoided repeating the opinions previously expressed in interviews,
but actually presented contrary and incompatible opinions or positions
while testifying in the public hearings. Because of the initial agreement with
Government, Commission counsel were prevented from exploring the reasons
for the change of views on the witnesses’ part or from probing further into
possible differences between the institutional positions of the Government or
its agencies and the opinion of individuals working within those institutions. This
raised particularly serious concerns in connection with the evidence relating to
the current regime for national security investigations and to the current level of
interagency cooperation. Documentary or other evidence that might provide
additional information or background was not generally available with respect
to those matters, in light of the risk of compromising ongoing investigations
or operations. As a result, the contradictions between opinions expressed in
interviews and in public hearings, and the apparent incompatibility between
institutional positions and personal views, remained largely incapable of
exploration.
None of the statements made by witnesses in interviews have been used as
the basis for any of the conclusions or recommendations in the Report, and
the content of these statements will remain confidential. However, since
the initial agreement with Government was not meant to allow witnesses to
present different and incompatible versions of events without explanation, the
advice of Commission counsel respecting blatant incompatibilities between
the interview statements and the public evidence was considered relevant to
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the assessment of the degree of reliance that could be placed on the evidence
respecting certain matters.135
2.4 Conclusion
In the end, it was possible to fulfill the mandate of the Commission and
to inquire into all of the matters set out in the Terms of Reference. It did
prove possible to conduct the Inquiry in accordance with the principles of
thoroughness, fairness and independence, as well as in accordance with the
fundamental principles of openness and transparency. However, as a result
of the factors discussed above, the process was not always as expeditious as
initially had been hoped.
All those who were involved in the Inquiry faced significant challenges and
all, including Commission counsel, at times made errors in their sincere but
unrealistic attempt to meet ambitious deadlines that were intended to give
the public, and especially the families, the timely answers they deserved. The
procedural challenges encountered in the Inquiry often – but not always –
resulted from positions taken by the Government agencies involved, especially
with respect to NSC claims. This by no means implies any bad faith or misconduct
on the part of the Government counsel who appeared before this Inquiry. On the
contrary, Government counsel acted honourably and seemed to attempt to the
best of their abilities to carry out their instructions in a manner that recognized
their ethical and professional obligations. Wherever responsibility for some of
the problems outlined in this chapter might lie, it should not be laid at the feet
of the diligent individuals who consistently strove to represent their clients as
well as was possible under extremely difficult circumstances.
Despite the difficulties and setbacks, the most important objectives of the
Commission were accomplished with the cooperation of all Parties and counsel
involved. In the end, it was possible to hold the Inquiry hearings in public and
to provide answers that can at last be openly shared with the families and with
the Canadian public.
135 The Government, having been made aware of concerns about specific contradictions between witness
interviews and certain portions of the evidence presented before the Inquiry, nevertheless chose to
rely on such “contradicted” evidence in its final submissions in at least one instance.
�VOLUME ONE
THE OVERVIEW
CHAPTER III: HISTORICAL
3.0 Pre-Bombing: Assessment and Response to the Threat
As stated, the Air India Flight 182 tragedy was the result of a cascading series of
failures. The failures were widely distributed across the agencies and institutions
whose mandate it was to protect the safety and security of Canadians. There
were structural failures and operational failures; policy failures, communications
failures and human errors. Each contributed to, but none was the sole cause
for, Sikh terrorists being able to place a bomb in the checked baggage loaded
aboard Flight 182 without being detected. Some failures came to light almost
immediately, but a number have lain undetected, or at least unacknowledged,
for decades and have only come to light during the currency of this Commission
of Inquiry.
The first question posed by the Terms of Reference of this Inquiry is whether
Canadian institutions adequately understood and assessed the threat posed by
Sikh extremism.
All of the institutions and agencies were theoretically aware of the potential
threat to safety and security posed by terrorism in general. A few had some
knowledge of the dangers of its Sikh extremism version in particular. Several
were nominally aware of the threat of sabotage to passenger aircraft by means
of timed explosive devices in checked baggage, and one agency was even
aware of information indicating that Air India might be targeted by this method
in June 1985. As a practical matter however, none of the institutions or agencies
was adequately prepared for the events of June 22/23, 1985.
Indeed it is impossible to draw any conclusion other than that, almost without
exception, the agencies and institutions did not take the threat seriously, and
that the few individuals within these institutions who did, were faced with
insurmountable obstacles in their efforts to deal with the threat.
There are a number of plausible ways to break down the failures that allowed
the bombing of Flight 182 to occur. Each of the agencies and institutions that
should have had a role in preventing terrorist attacks displayed structural flaws
that impaired their performance in:
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a) detecting the threat
b) assessing the threat, and
c) putting in place reasonable counter measures to respond
appropriately to the threat.
While each institution must be understood in terms of its own unique
circumstances, there are general themes that weave their way through all the
separate parts of the story.
3.1 Intelligence and the CSIS Investigation
The intelligence community has the primary responsibility for anticipating
threats to national security. The primary responsible agencies at the time of the
terrorist attack on Flight 182 were the Canadian Security Intelligence Service
(CSIS), whose mandate is to collect, analyze and report information about
threats to Canada’s security, and the Communications Security Establishment
(CSE), which monitors foreign electronic communication to provide intelligence
to the Government of Canada and its agencies.
CSIS only came into being as an independent civilian agency in 1984. Before
that, the national security intelligence was under the purview of the Security
Service of the Royal Canadian Mounted Police. The circumstances surrounding
the birth of CSIS had a deep and detrimental impact on its ability to detect the
particular security threat posed by Sikh extremism and on its ability to provide
useful advice to the agencies and institutions charged with protecting Canadian
lives and property.
Although the notion that intelligence should be handled by a civilian agency
rather than the police had been widely discussed and debated in Canada for
over a decade, the CSIS Act, which brought about this transformation, was
passed hurriedly as the last legislative act of the outgoing Liberal government
in June of 1984. It was then left to be implemented in a very short time frame
by a new Progressive Conservative administration with limited accumulated
experience in the area of national security. The result was an uneven transition,
marred by scarce resources and by bruised feelings: both at the RCMP, which
felt wronged by the removal of its intelligence mandate, and at CSIS, which felt
poorly supported in its new role.
While intelligence officers were aware of the existence of the phenomenon of
Sikh extremism, the rise in the intensity, fervour and potential danger of this
phenomenon was the result of events in the Indian sub-continent that took
place in the same time frame as the transition from the Security Service to CSIS.
These events included the occupation and fortification of the Golden Temple
in Amritsar, Sikhism’s central shrine, by armed Sikh separatists, the subsequent
bloody storming of the Golden Temple by the Indian army, and the resulting
massacres and intercommunal violence in the State of Punjab, all of which
�Chapter III: Historical
culminated in the assassination of Indian Prime Minister Indira Gandhi by her
own Sikh bodyguards. This chain of events led to a rise in anti-Indian sentiment
within the Sikh diaspora, including the Sikh community in Canada.
Even in a relatively stable institutional environment, keeping up with the rapidly
changing landscape of Sikh extremism in Canada would no doubt have proved
challenging. The impact of the transition from the RCMP Security Service to CSIS
made a difficult situation that much worse.
Although CSIS personnel were dedicated and hardworking, the institutional
context was poorly geared toward dealing with terrorism in general – and with
a terrorist threat arising from Sikh extremism in particular. Canadian intelligence
gathering was stuck in a Cold War paradigm in which the primary threat to
national security was assessed as emanating from espionage by hostile foreign
governments. Most resources were allocated to counter-espionage, with
comparatively few resources devoted to counter-terrorism.
Of the resources devoted to counter-terrorism, most were concentrated on the
risks posed by Armenian terrorist attacks against Turkish interests in Canada.
Even at the so-called “Sikh Desk” at CSIS headquarters, (which was a sub-unit
of the “Western Europe and Pacific Rim” unit of the Counterterrorism unit) the
arguably inadequate official complement, consisting of a unit head and four
analyst positions, was in fact only partially staffed. Only the unit head and
two analyst positions were actually filled, and that even smaller number was
further reduced by the fact that, for the better part of the year leading up to the
bombing of Flight 182, one of the incumbents was away on French language
training. In the Regions, staffing was equally thin. In BC Region, where the most
militant and most obviously dangerous elements of Sikh extremism in Canada
were to be found, two investigators were responsible for the entire investigation
of Sikh terrorism.
CSIS personnel assigned to this investigation received no additional training;
investigators and analysts were expected to learn on the job.
CSIS appears to have uncovered little, if any, information on its own, with most of
its information coming from the Government of India through the Indian High
Commission. The full extent of CSIS’s knowledge in the summer of 1984 was that
Talwinder Singh Parmar had been released from prison in Germany following a
failed extradition attempt on murder charges by the Government of India, and
had returned to Canada, where he was launching a public campaign of fiery
rhetoric and communal intimidation to radicalize gurdwaras (Sikh temples)
and to take over their direction and their revenues. CSIS was unable to provide
confirmation of its existence in Canada, let alone the actual size of the extremist
Babbar Khalsa movement that Parmar claimed to lead, and even referred to it as
the “Barbara Khalsa group.” By the fall of 1984, CSIS had pieced together enough
information to be able to identify Parmar as the most dangerous Sikh in Canada
and to opine that his associate Ajaib Singh Bagri could be manipulated to carry
out a terrorist attack.
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Despite its awareness of the threat and of the identity of the potential
protagonists who might carry it out, CSIS appears to have obtained little
important new information of its own about the Sikh extremist threat or about
the Babbar Khalsa or about Parmar from the fall of 1984 through to March of
1985. The major reason for this gap lay in the state of the warrant approvals
process that had been put in place by the CSIS Act in June 1984.
On the ground, CSIS BC investigators were aware of the urgent nature of the
threat from Sikh extremism and of the inadequacy of their information resources
to deal with it. They simply had no information sources of their own and had
been totally unsuccessful in recruiting sources within a Sikh community that
was somewhat insular and vulnerable to intimidation by the extremists. They
soon concluded that they needed surveillance and electronic intercepts in order
to be able to understand and respond to the increasing threat.
The institutional response to the request to approve a warrant to intercept
Parmar’s communications demonstrates a fixation with form over substance
and, despite protestations to the contrary at the time – and subsequently,
suggests a lack of appreciation of the reality of the threat.
The civilianization of CSIS was in part a reaction to RCMP Security Service
excesses in its investigation of the Front de Libération du Québec (the “FLQ”)
and extremist Quebec Separatists. Under the RCMP Security Service, while
electronic intercepts had required approval, the process was informal, simply
requiring a request to the Solicitor General, the Minister responsible for the
RCMP (and later also for CSIS). With the creation of CSIS, as one of the means to
protect civil liberties from unjustifiable intrusion by or on behalf of government,
a new system of judicial supervision of certain intelligence operations was
instituted, including a requirement for judicial approval for intercepting private
communications. This new protocol was to apply prospectively but also was
intended to cover existing intercepts that had been approved by the Minister.
There was an explicit requirement that existing intercepts had to be reviewed
internally and approved by the Solicitor General and then by a judge of the
Federal Court, all within 6 months of the coming into force of the CSIS Act, i.e. by
January 1985.
When added to the considerable stresses and strains that accompanied
the rushed transition to CSIS from the RCMP Security Service, it was entirely
foreseeable that this warrant conversion process would be the source of added
pressure and potential misadventure. The foreseeability of the problems that
might be caused by the requirement to devote considerable resources to the
conversion process should have called for added care and attention to ensure
that the process would be capable of meeting new needs that would arise and
not just of preserving existing arrangements. Instead, the response of CSIS was
to prioritize existing warrants and to defer new applications, with the exception
of only those deemed most urgent. As CSIS understandably would want to avoid
disrupting existing investigations, in theory, this process could be considered a
�Chapter III: Historical
sensible policy; in practice, its effectiveness depended on the Service’s ability to
respect the new needs that were more urgent.
The evidence before the Commission indicates that, despite the priority
afforded to the warrant conversion process, it was possible to secure a warrant
in an extremely short timeline to respond to a perceived urgent priority, as
occurred in an area other than the threat of Sikh extremism. The protracted wait
for the processing of the Parmar warrant application either demonstrates an
unthinking application of the concept of priority of existing warrants or, more
likely, reflects the lack of appreciation of the true urgency of the threat of Sikh
extremism.
Despite certification by the existing chain of command in BC as well as by the
Headquarters counterterrorism hierarchy, and despite increasingly pointed
memoranda from the front lines in BC, the application for the Parmar warrant
lay dormant for months while the conversion process went forward. Then, after
proceeding through multiple steps in the complicated, and still in flux, approval
process, it was further delayed for an additional month by what turned out to
be an irrelevant issue raised by the Minister’s Office. Although the final steps
leading up to the submission of the warrant to, and approval by, the Federal
Court proceeded relatively quickly, the total time from the request for a warrant
to the date of approval was over five months. This lengthy delay was entirely
disproportionate to the heightened threat and the demonstrated lack of
intelligence sources available to respond to it.
The subsequent course of the BC investigation confirms the theme of inadequate
resourcing and indicates that execution on the ground was not sufficient for the
seriousness of the threat being dealt with.
Eventually the BC investigators did get approval both for electronic intercepts
and for physical surveillance coverage on Parmar. As will be seen, the story of
neither effort is particularly edifying.
3.1.1 Physical Surveillance
The mobile surveillance of Parmar was carried out for 39 of the 72 days: between
April 6 to June 16, 1985, including continuously for the first two weeks of June
1985 – an exceptionally long period for what was seen as a very scarce resource.
Nevertheless, as has been widely reported, this surveillance was withdrawn on
June 17, at precisely the most crucial time in terms of the terrorist preparations for
the bombing. The stationary observation post (OP) near Parmar’s residence was
also withdrawn on the day of the bombing. The rumour that the OP withdrawal
was to allow the investigators to participate in a social event appears to be
based on a misunderstanding of the CSIS code name for the operation to which
the surveillance team was reassigned. Nevertheless the fact that surveillance
was redirected to shadow a counter-espionage target at the moment when the
danger of an act of domestic terrorism was at its height, is a telling illustration of
how poorly understood the threat was.
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No less telling is the way the surveillance was conducted, and especially how it
was (or was not) used. The conduct of the surveillance was marked by numerous
low lights, with the surveillants unable to keep track of their targets, and often
mistaking one traditionally-attired Sikh for another. This apparent inability to
tell one Sikh from another continued into the post-bombing era as well.
The nadir of ineffectiveness of CSIS pre-bombing surveillance is arguably the
moment of what perhaps might have been its greatest success: the monitoring
of the “Duncan Blast.” On June 4, 1985, a CSIS surveillance team followed
Parmar as he traveled with a young man, misidentified by the surveillance
team as Parmar’s son Jaswinder, to the BC Ferry Docks. The lead surveillance car
narrowly avoided missing the ferry, a fate the second car and its surveillance
team was unable to avoid. The lead surveillance team followed Parmar’s car to
the Duncan, BC residence of Inderjit Singh Reyat, who would later be convicted
of manslaughter for his role in the Narita, Japan, bombing, and would enter a
guilty plea in connection with the terrorist attack on Flight 182. The surveillants
followed Parmar’s car from Reyat’s house to a clearing off the highway in the
woods near Duncan and saw Reyat and Parmar walk into the woods. Shortly
thereafter, they heard a loud explosive sound coming from the woods which
they misidentified as a shotgun blast. The team observed Parmar and Reyat
emerge from the woods and put something in the trunk of Parmar’s car. They
then followed the car to Reyat’s residence where the young man got out of the
car and accompanied Reyat into his house.
Although they were on a surveillance mission, the surveillants did not have
a camera and so were unable to photograph the unknown young man, who
would later be referred to as “Mr. X.” This individual was the subject of a long
and unsuccessful search to discover his identity as one of the missing pieces
in the Air India narrative. Although they remained on Vancouver Island for the
night, the surveillants were, for unknown reasons, unable to secure permission
to follow the young man the next day and thus lost a further chance to make
the crucial identification.
Additional examples of such fumbling extended into the post-bombing
investigation of the identity of Mr. X. When the RCMP obtained school records
placing Parmar’s son Jaswinder in school on the day of the Duncan Blast and
began to raise questions with CSIS, CSIS did nothing to verify whether its team
had misidentified the person accompanying Parmar and Reyat. In fact, even
when one of the CSIS surveillants who had followed Parmar and his associates to
Duncan began to work for the RCMP and, having there the opportunity to view
Jaswinder at close range, realized with certainty that he was not the person she
had seen on June 4th, CSIS still stubbornly maintained that Mr. X was Jaswinder.
CSIS did not question the PSU team in light of the RCMP’s expressed concerns.
Even a cursory review of its surveillance records pertinent to this issue would
have revealed that its surveillance team placed Jaswinder in two places at the
same time: on Vancouver Island and at school in Vancouver on the day after the
Duncan Blast.
�Chapter III: Historical
In addition to the failure to identify Mr. X, there were further investigative dead
ends resulting from the mis-transmission in the CSIS Report of the telephone
number Parmar was seen to have dialed from the ferry.
Even the most important achievement of the surveillance, hearing the explosion
in the woods, was marred by the misinterpretation by the surveillants of what
they actually heard. The surveillants thought they heard a shotgun blast, when
in fact they heard an explosion intended to test the detonation system for the
bombs Parmar was building. Instead of leading to a realization that Parmar was
planning to blow something up, the surveillants’ belief that they heard a gunshot
supported the mistaken conclusion by the CSIS BC Region that the primary
danger from Parmar and the Babbar Khalsa was a possible assassination attempt
or armed assault. But even this misinterpreted information, which at the very
least appears to demonstrate that Parmar and his group posed a serious threat
to commit a terrorist act, never made it into the formal CSIS threat assessment
process. Likewise, a number of other significant pieces of threat information in
various hands were also never reported, further compromising the ability of the
CSIS HQ threat assessment process to put together the pieces of the puzzle in
time to raise an effective response to the threat that was to crystallize into the
terrorist attack on Flight 182.
3.1.2 Electronic Surveillance
The fate of the electronic surveillance on Parmar, finally approved in March 1985,
was no less problematic, and arguably constituted an even more serious failure
because of its consequences for the subsequent investigation of the bombing.
In this case too, resource issues were important. While listening devices can
record conversations, it takes human resources to transcribe, to translate if
necessary, and, ultimately, to analyze and interpret them. Each of these steps
proved problematic. In order to safeguard security, CSIS, like the RCMP Security
Service before it, adopted stringent security qualifications for its translators,
including lengthy periods of Canadian residency as well as Citizenship.
As prudent as this may have seemed in the abstract, in practice it meant that
there was only a very small pool of potential translators available for recruitment.
In BC Region it meant that there were no Punjabi translators available at all.
To cope with this problem, the tapes of the Parmar intercepts were shipped to
Ottawa, where they were added to the workload of the already overburdened
Punjabi translator at CSIS Headquarters. Delays were inevitable and a serious
backlog ensued.
Shipping the tapes across the country meant that there was no meaningful
possibility for the BC investigators to interact with the translator, who was
essentially left to her own devices to extract, translate and summarize what
was related on the tapes. Although a Punjabi translator for the BC Region was
eventually recruited and began work on June 8, 1985, a significant backlog of
translation work in BC remained throughout the pre-bombing period. There still
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seems to have been little interaction with the investigators on the ground and
there remains some doubt as to how many, if any, of the “transcripts” that were
produced were in fact reviewed by the investigators.
The transcripts were prepared by a transcriber who reviewed and summarized
what she thought relevant in the English language content, adding material
from the Punjabi content based on the translators’ notes. The effectiveness of
this disjointed process became further impaired by the vacation schedules of
the transcriber and one of the investigators. One of the investigators was off
duty in the two weeks leading up to the bombing and the transcriber was away
just prior to, and for a week after, the bombing. Because the intercept tapes
were erased shortly after they were processed, there was no opportunity to go
back to the actual tapes for further analysis or to remedy any deficiencies in the
transcription and translation process. Whatever information was not recorded
in the transcription notes was lost permanently.
As discussed elsewhere in this Overview, disputes remain as to the actual content
of the tapes that were reviewed and of those that were caught in the backlog, as
well as about the adequacy and comprehensiveness of the review and analysis.
What is beyond doubt is that no material from the Parmar intercepts made its
way into the CSIS, or any other, threat assessment process in April – May or June
of 1985.
3.2 The RCMP Response
In a Cold War environment, it was possible to conceptualize the worlds of
intelligence gathering and law enforcement as being entirely distinct, and each
function as better off divided from the other. The intention of the drafters of the
CSIS Act was to separate the two functions. The idea was that CSIS would have a
monopoly on intelligence gathering and the RCMP would have a monopoly on
assembling evidence. CSIS would be proactive, attempting to anticipate security
risks, while the RCMP would be reactive, responding to crimes and attempting
to bring the perpetrators to justice.
Reality did not unfold in conformity with those early expectations. In the postbombing period, and to the present day, the major stress on the original model
would turn out to be the assumption that CSIS intelligence information would
have no role to play in court proceedings or in the criminal justice system. In
the pre-bombing era and immediately thereafter, however, the main area
of contention between the agencies was precisely about CSIS’s presumed
monopoly on intelligence gathering and assessment.
In part, this was a function of an unwillingness by the RCMP to let go of the
notion of a unified investigative effort and of intelligence-gathering resources
as a “Special Branch” of the RCMP. It also related to a perceived “gap” created
when the Security Service was separated from the Force. The RCMP believed
that CSIS intelligence gathering and its threat assessment process would not
be sufficient to address the “criminal perspective” and that it would not be
�Chapter III: Historical
able to make good use of the threat information incidentally obtained by the
RCMP members in the conduct of their regular policing duties. These views
found expression in the notion that the police needed “criminal intelligence” as
distinct from the “security intelligence” gathered by CSIS. This notion was given
a huge boost by the Security Offences Act, which was passed as Part IV of the
Original CSIS Act and which specified that the RCMP mandate was to include the
investigation of crimes that were “Security Offences.”
In fact, the Security Offences Act merely gave the RCMP jurisdiction to investigate
criminal cases that would have traditionally fallen under the responsibility of
provincial or municipal police forces in locations where the RCMP was not the
police of jurisdiction. The RCMP, however, read more into the new provisions.
Rather than depend on CSIS to provide for its intelligence needs, as intended
in the 1984 Ministerial Directive issued by Solicitor General Robert Kaplan, the
RCMP posited a relationship in which CSIS dealt with “security intelligence,” but
in which intelligence relevant to a “security offence” would constitute “criminal
intelligence” within the purview of the RCMP mandate.
Although the RCMP’s initial efforts to reconstitute a “criminal intelligence”
function analogous to its lost Security Service mandate were denied funding
or staffing approval, the RCMP nevertheless did manage to put together a
rudimentary parallel structure designed to collect and analyze intelligence so
as to allow the RCMP to engage in “threat assessment” from a “criminal” point
of view.
Because of the deficiencies in the new RCMP structure and process, gaps in the
threat assessment process were never adequately addressed. The structure
proved incapable of addressing the pre-existing difficulties in incorporating
threat information incidentally obtained by RCMP members. It also proved
unable to deal with new problems that would emerge as a result of the creation
of a separate civilian intelligence agency, including the difficulties down the road
in using CSIS information for court purposes. The existing delay in transmitting
information through cumbersome formal mechanisms for information
exchange was left unaddressed, and was in fact aggravated by the new RCMP
threat assessment process.
In the end, RCMP threat assessments usually contained no more, and often
less, information than the assessments that CSIS, in parallel efforts, continued
to produce. While the RCMP devoted resources to duplicating CSIS’s work, it
still managed to deprive the new agency of important information, including
information that CSIS needed to assess terrorism threats.
The newly created National Security Enforcement (NSE) units were intended to
identify threat information, but had neither the mandate nor the capacity to
conduct investigations that might unearth such information. On the other hand,
the regular RCMP units who were expected to carry out these investigations
had no training or experience in dealing with this sort of threat information.
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The purpose of the new RCMP threat assessment process was not clearly
defined or understood within the Force. The manner in which the new RCMP
functions could be distinguished from those of the CSIS Threat Assessment Unit
remained unclear. RCMP members received no clear instructions as to the type
of information they were expected to identify, report and share. They received
no special training about the threat assessment process and the impact of the
creation of CSIS on their responsibilities. As a result, the individuals involved often
failed to appreciate the significance and requirements of the threat assessment
function, and a great deal of relevant threat information went unreported and
was not shared – even internally.
Crucial information, such as the fact that Parmar’s group was working on a
“highly secret project” in the spring of 1985, and the information received from
Person 1 in September 1984 about the November Plot to bomb an Air India
aircraft, was not reported to RCMP HQ and, hence, was not taken into account
in the RCMP threat assessment process.
RCMP failures to report information internally often also meant that the
information was not shared with CSIS. Where the information was not otherwise
available to CSIS, it was never included in any threat assessment process and the
RCMP Protective Policing (P Directorate) was never advised.
The manner in which the RCMP processed information it received from CSIS also
created obstacles. The liaison process put in place by the RCMP generally had
limited success. Information continued to be shared informally, with members
of each agency relying on personal contacts in the other agency. Because of
tense relations between CSIS and the RCMP in the early years in British Columbia,
CSIS at times used Vancouver Police Department (VPD) members as a conduit to
pass information to the RCMP. Informal and indirect sharing between agencies
meant that no consistent records were created. This lack of consistent records
made it difficult for the RCMP, despite its repeated attempts at file review, to
locate, let alone to analyse, all relevant information.
RCMP Divisions were supposed to obtain and report threat information from
local police forces, but relations between the RCMP and local forces were also
often tense. The RCMP insisted on being the first and only recipient of CSIS
intelligence and reserved for itself the decision to pass the information to local
forces as it saw fit, often invoking as a justification the fact that most local police
officers were not security-cleared.
In British Columbia, where relations with local forces were less tense, the RCMP
nevertheless failed to achieve sufficient integration and information sharing.
The RCMP did not sufficiently share its own information with the VPD members
of the Vancouver Integrated Intelligence Unit (VIIU). The VPD members of VIIU
received a great deal of information from the VPD’s Indo-Canadian Liaison Team
(ICLT), which had managed to gain trust in the Sikh community. But the RCMP
often did not access the VPD files, or it failed to recognize the significance of the
information it received from the VPD.
�Chapter III: Historical
The RCMP E Division NCIS terrorist/extremist unit had limited knowledge of the
most important players in the Sikh extremist movement and had few resources
to devote to developing this knowledge. The wealth of general intelligence
gathered by the ICLT about local extremist organizations was not reported to
RCMP HQ. Specific information, such as the comment made by a Sikh extremist
leader in mid-June 1985 indicating that something would happen in two weeks,
was also not reported to HQ, and was not taken into account in the RCMP threat
assessment process. As a result, the RCMP HQ branch had little or no context to
allow it to understand the significance of the threat information it did receive
from the Divisions.
In BC, the Criminal Intelligence Service of BC (CISBC) was available to the RCMP.
The CISBC was part of a program bringing together the intelligence units of
provincial and municipal police forces with that of the RCMP to exchange
information. The RCMP failed to access crucial information that was part of the
CISBC holdings.
The fate of the Duncan Blast information demonstrates both the impact of
the failure by RCMP personnel to utilize the channels that Headquarters had
attempted to establish for purposes of information sharing, and the RCMP’s
inability to identify and report relevant threat information. The Duncan Blast
information was provided by CSIS to RCMP members in E Division, but was not
shared with the RCMP liaison unit. Because the information was not internally
reported to the NSE unit, it could not be disseminated within the RCMP to all the
units that might have needed it. The information also did not enter the RCMP
threat assessment process. CSIS did provide the information to the VPD, which
in turn shared it with the RCMP during a briefing, but again the information did
not make its way to RCMP HQ. A report about the information was also available
at CISBC, but was not accessed by the RCMP prior to the bombing.
Because records of the exchange of information that actually took place were
not kept, CSIS and the RCMP are still debating to this day the sufficiency of the
information that was shared about the Duncan Blast.
The RCMP failure to provide threat information to CSIS was essentially selfdefeating, since its P Directorate largely relied on CSIS threat assessments to
determine what security measures to implement. In the same way, the RCMP’s
failure to disseminate information to its own units, or to report threat information
to HQ, meant that P Directorate was also deprived of the possibility of receiving
the information through RCMP threat assessments.
The lack of communication up to HQ from the Divisions was mirrored by the lack
of communication down from HQ to the divisional units. The failure to provide
the Divisions with information and assessments about threats to Air India greatly
impaired investigations at the local level. Not only did RCMP investigations have
to proceed on the basis of incomplete information, but local police units that
might have been of assistance could not participate.
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The RCMP reporting structure was further ill-adapted to the threat assessment
process because divisional units did not report directly to HQ. The HQ branch
had no direct authority to command divisional investigators and was not kept
sufficiently updated about the details of ongoing investigations to be able to
provide useful suggestions in any event. It was left to divisional investigators,
with no national security training and no appreciation of international issues, to
decide which matters to probe further, and when.
The deficiencies in this structure were particularly apparent in the investigation
of the November Plot, which involved information, originally obtained from two
sources in the fall of 1984, that Sikh extremists were plotting to place bombs
on two Air India aircraft. The Division provided insufficient information to HQ
from the start, not immediately reporting crucial facts that would allow HQ to
make its own assessment of the seriousness of the threat. Instead, the Division’s
scepticism about the validity of the information was relayed to P Directorate; a
scepticism found to be unwarranted.
The Division provided few reports about the investigation, and those it did
provide did not contain sufficient information. After the bombing, the Division
ignored repeated requests for updates and, for over a year, failed to provide
information it had promised HQ. A HQ member eventually turned to CSIS for
the information, which it received three days later. Because of the Divisions’
resistance to central direction or authority, the HQ branch was totally incapable
of fulfilling its mandate to gather and analyse threat information.
There were other significant deficiencies in the flow of information. Intelligence
regarding threats to national security was often not transmitted to the HQ threat
assessment unit (NCIB/NSE) by other RCMP branches or directorates. Although
P Directorate depended on CSIS and RCMP threat assessments to carry out its
own functions, it often did not transmit information about threats to Indian
interests that it received from External Affairs. Airport Policing detachments
often did not transmit threat information about Air India, which they received
directly from the airline, to the HQ Airport Policing Branch. Even when they did,
the information was often not shared with NCIB or CSIS. In the pre-bombing
period, RCMP airport detachments did not send to Headquarters information
that had originated from Air India about the need to carefully examine “…
cameras electronic equipments and parcels carried as hand baggage,” nor the
information about the threat of a terrorist group intent on exploding a device on
an international airline in flight by placing an explosive inside a suitcase. Since
RCMP HQ was not receiving comprehensive information, it could not properly
advise other airport detachments that might be affected, such as those with
flights connecting to Air India.
Since information was not provided to the divisional units, it could not be shared
with local police forces. When E Division reported in April 1985 that it had no
information from any sources indicating that any bombing of an Air India plane
would occur, NCIB did not (and likely could not) take any steps to correct this
impression, in spite of the fact that there was, indeed, information about threats
�Chapter III: Historical
to Air India suggesting that hijacking or sabotage were possibilities and that the
threat to Air India was considered high.
The HQ section in charge of threat assessment and the divisional units it
relied on to gather information had limited analytical capability. In British
Columbia, despite a mass of information indicating significant activity by Sikh
extremists, the threat was sometimes assessed as non-existent or very low. HQ
NSE members often simply passed information on to P Directorate without
attempting to assess it and without asking further questions. Even worse was
the inappropriate substitution of credibility assessments, based on criminal
law evidentiary standards, for threat assessment. The RCMP treatment of the
November Plot is a clear example of this phenomenon: RCMP investigators,
suspicious about the motivations of the individuals who provided information
about a possible bomb plot, failed to report this information to HQ or to share
it appropriately with CSIS.
The crux of the matter is that the creation of a parallel RCMP threat assessment
process precluded the establishment of a single location for the centralized
assessment of all of the threat information in the Government’s possession.
CSIS and the RCMP collected and analysed their threat information separately,
with neither agency able to conduct a complete analysis of the entirety of the
available information. NCIB had access to CSIS threat assessments, but did not
access them or incorporate them into its own analyses. CSIS was often not
provided with the information in NCIB’s possession. NCIB itself did not receive
all the RCMP information. RCMP P Directorate received the most information,
but had no central threat assessment mandate or capacity of its own and was
fully dependent on CSIS and NCIB to assess the seriousness of threats.
In the end, the RCMP proved incapable of the effective collection and reporting
of even its own information. When it did report information, its significance was
often not recognized.
3.3 What Was Known
Perhaps the central unanswered question that Canadians, and especially the
families of the victims of the bombing of Flight 182, have hoped a Public Inquiry
might reveal is whether the Government and its institutions had information
prior to the bombing that could have allowed the authorities to prevent it.
The answer is complex. There is no evidence that the Government was aware in
advance of the details of the events of June 22, 1985. That is the basis for the oftrepeated statement that there was no knowledge of any “specific threat” against
Flight 182.
To pose the issue in this form is, however, to miss the point. In 1985, “specific
threat” was a technical term tied to emergency protocols put into place when
the authorities received a call-in threat that identified a target, in circumstances
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where there was not enough time to conduct a proper investigation or
assessment of the threat. This sort of “specific threat” justified emergency
measures because of the magnitude of potential consequences even if it wasn’t
possible to assess the likelihood of their occurrence.
It is one thing to say that, had there been such a “specific threat,” detailing a time,
place and method of a planned attack on Flight 182, emergency measures would
have been implemented to hunt down the bomb. It is entirely something else
to suggest that, in the absence of such a detailed, precise and “specific” threat,
nothing further could or should have been done to prevent the bombing.
The claim that there was no “specific threat” to the June 22, 1985 departure of
Flight 182 is accurate only in a limited and literal sense. No one source provided
detailed information to any one agency in one place and at one time about
the plan to blow up Flight 182 on June 23, 1985. On the other hand, various
agencies of government had extremely important pieces of information that,
taken together, would have led a competent analyst to conclude that Flight 182
was in danger of being bombed by known Sikh extremists.
Prior to the bombing, CSIS, the RCMP, the Department of External Affairs, local
police forces and Transport Canada were collectively in possession of the
following information about Sikh extremism and threats to Indian interests:
• A plot to bomb one and possibly two Air India planes was allegedly
being hatched by Sikh extremists in British Columbia in the fall
of 1984;
• In the fall of 1984, Ajaib Singh Bagri was allegedly nominated to a
committee planning the hijacking of an Air India plane;
• Talwinder Singh Parmar’s group, the Babbar Khalsa, was reportedly
working on a “highly secret project” in the spring of 1985, and
Parmar had been assessed as the greatest threat in Canada to
Indian diplomatic missions and personnel;
• In early June, Parmar and associates conducted experiments in the
woods involving a loud explosion;
• During a June 12, 1985 meeting, a prominent Sikh extremist stated
– in response to questions about the lack of attacks on Indian
officials - that something big would happen in two weeks; and
• In late May and early June, Air India warned that sabotage attempts
against Air India planes were likely to be made by Sikh extremists
using time-delayed devices in registered baggage, that special
vigilance was warranted on items like transistor radios, and
that police should oversee the loading of registered luggage
onto airplanes.
James Bartleman, who at the time he gave his evidence was Lieutenant Governor
of Ontario, and in 1985 was Director General (DG) of the Intelligence Analysis and
�Chapter III: Historical
Security Bureau at External Affairs, testified that shortly prior to the bombing, he
saw, as part of the material he received electronically from CSE on a daily basis,
information that indicated that Flight 182 would be targeted. He was not able to
assess the reliability of the information but thought it important to ensure that
the authorities were aware of the information and were dealing with it. When he
brought the information to the attention of an RCMP official who was attending
a security meeting in the building, he was met with a hostile reception and an
indication that the RCMP was aware of the matter and had it in hand. On June
23, 1985, when he was informed of the bombing, he thought immediately that
this was the materialization of the threat, and that the authorities had been
unable to prevent it.
Counsel from the Department of Justice, on behalf of the Government and all
its agencies, approached Bartleman’s evidence as though it was the only prebombing indication of the danger to Air India Flight 182. In an entirely misguided
approach, Bartleman was aggressively cross-examined and witnesses were
called to attempt to call into question the details of his evidence.
Intelligence specialists often observe that an item of information, although
apparently insignificant in itself, may in fact be the missing piece to a puzzle
that helps a foreign or hostile group or agency see a pattern or draw conclusions
that have profound intelligence value. This “mosaic effect” metaphor is typically
used by intelligence agencies, sometimes excessively, to describe the potentially
dangerous consequences that can result from the disclosure of their own
information and to justify the need for secrecy. It is an equally apt description of
how gathering and sharing information can help an agency’s own intelligence
effort.
The essence of good intelligence analysis is that it pulls together disparate
facts and information from diverse sources to assemble a pattern in which one
can have confidence. Once enough information has been assembled, even
seemingly insignificant new additions can lead to new insights and deeper
understanding.
However startling and important Bartleman’s testimony may be, it is not, as
the blistering assault on his credibility by some Government witnesses and the
Attorney General of Canada’s submissions would imply, the only evidence that
suggests that the Government had enough knowledge of the threat to Flight
182 to warrant a different security response.
Even without the document that Bartleman described, there was more than
enough disparate pieces of information that, had they been assembled in one
place, would have not only pointed to the nature of the threat, but would have
provided corroboration for the seriousness of that threat, thereby highlighting
the need to implement measures aimed specifically at responding to the
possibility of sabotage by means of explosive devices concealed in checked
baggage.
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Bartleman’s evidence is best understood as simply one more piece in the
mosaic.
In 1985, the institutional arrangements in place and the prevailing practices
of Canadian information-gathering agencies were wholly deficient in terms of
allowing the mosaic of the threat of Sikh extremism to be pieced together so as
to make visible the pattern that clearly pointed to the high risk of a bombing of
Flight 182.
The consequence of these deficient arrangements was that CSIS, the government
agency that was given the primary responsibility for threat assessment, did
not have sufficient access to facts about the threat of Sikh extremism. Lacking
good access to sources of its own within the Sikh community, CSIS was heavily
dependant on other agencies, both foreign and domestic, for the information it
needed to understand the threat. CSIS had an abundance of threat information
from the Indian government about the situation in India and about what was
going on in the Sikh community in Canada, but it was unable to corroborate it.
Without corroborating information, however, the large volume of information
from the Government of India gave the impression that it was “crying wolf.”
CSIS’s lack of access to sufficiently detailed information, perhaps compounded
by a lack of necessary technical skill, compromised CSIS’s ability to identify
the nature of the danger and to determine, with any degree of reliability, the
likelihood that it might materialize. The result was the production of threat
assessments that provided a qualitative assessment of the danger as “high”
or “elevated,” with little detail that would allow a recipient of the assessments
to make intelligent decisions as to how to deploy, or how to prioritize the
deployment of, scarce protective resources, which is, ultimately, the purpose of
threat assessment.
In terms of the most important information regarding threats to Air India in
the year leading up to the bombings, CSIS appears to have been provided with
very few of the essential pieces of the mosaic possessed by other government
agencies.
One of the most striking instances of the impairment of CSIS’s ability to benefit
from the mosaic effect is the June 1st Telex.
On June 1, 1985, Air India’s Chief Vigilance and Security Manager in Bombay sent
a telex to Air India offices worldwide, warning of “…the likelihood of sabotage
attempts being undertaken by Sikh extremists by placing time/delay devices
etc. in the aircraft or registered baggage.” The telex went on to set out specific
security precautions to be implemented. These precautions included “explosive
sniffers and bio-sensors [dogs]” as well as physical random checks of registered
baggage, at least until June 30, 1985.
Air India forwarded the telex to the RCMP Officer in Charge at Pearson airport in
Toronto, who sent it on to the Acting Officer in Charge in the RCMP HQ Airport
�Chapter III: Historical
Policing Branch, requesting instructions on how to respond. The A/OIC sent a
telex to CSIS, asking for an updated threat assessment in relation to Air India.
CSIS responded with a threat assessment indicating that it was unaware of any
“specific threats” against Air India at the time.
In its submissions to the Honourable Bob Rae, the RCMP indicated that it had
forwarded the June 1st Telex to CSIS along with its request for an updated threat
assessment. The RCMP also told Rae that the heightened security measures
it implemented included the use of explosives-sniffing dogs to check the
passenger section of the aircraft prior to departure.
Both of these statements were incorrect.
The June 1st Telex not only was not sent to CSIS, it appears not to have been sent
anywhere other than to HQ Airport Policing. It was not even sent to RCMP NCIB,
the branch in charge of internal RCMP threat assessments.
The June 1st 1985 Telex was a key piece of the mosaic that never reached CSIS and
was never integrated into the threat assessment process about Sikh extremism.
The failure to forward the telex to CSIS eliminated any opportunity for CSIS to
consider the information it contained about the threat of imminent attack in
light of other information CSIS had received.
In his testimony, the former CSIS investigator in charge of the pre-bombing BC
investigation into Sikh extremism stated that knowledge of the June 1st Telex
would have given him a better understanding of the significance of the “loud
noise” reported by CSIS surveillants when they followed Parmar, Reyat and an
unknown person into the woods near Duncan on June 4, 1985. A Toronto CSIS
investigator made precisely that connection shortly after the bombing when
he zeroed in on the Duncan Blast surveillance report and identified the noise
referred to as almost certainly being a test explosion rather than, as previously
thought, a shotgun blast.
The November 1984 Plot is a similar instance of a pre-bombing failure to
integrate important information into the mosaic of threats. In September 1984,
the RCMP learned, through “Person 1,” that Sikh extremists were organizing to
bomb an Air India plane but failed to share this information with its own HQ,
with CSIS or with other agencies. CSIS did not learn of the existence of this
plot until late October 1984, when the Vancouver Police Department received
essentially the same information from “Person 2”, which it then shared with
CSIS and with the RCMP. The RCMP, however, failed to inform CSIS that this
information constituted corroboration of earlier information from another
independent source, Person 1.
CSIS was aware of several threats against Air India during the month of October
1984 and, prior to learning of Person 2’s information, issued a threat assessment
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noting that an attack in Canada was remote but could not be ruled out.
After receiving Person 2’s information, CSIS updated its assessment to a “real
possibility” that Sikhs would damage an Air India plane.
It was not until March 1986, when the RCMP performed a post-bombing file
review, that Person 1’s statement to police in September 1984 about a man in
Duncan who could manufacture “nitro” for blowing up an Air India flight come
to light. If CSIS had received this information in the pre-bombing period, the
significance of the excursion by Parmar and Duncan resident Inderjit Singh
Reyat into the woods near Duncan would have undoubtedly been assessed in
a more sinister light.
This chain of events dramatically illustrates the role that corroborating
information can have on the threat assessment process. It also highlights how
a lack of all relevant information can result in a serious potential threat being
disregarded.
Quite aside from the information provided by Bartleman and intelligence about
the June 1st Telex and the November Plot, there were other key pieces of the
mosaic in the possession of government agencies that CSIS never received and
therefore couldn’t use in its threat assessment.
After the close of the hearings, the Commission became aware of relevant
information in the possession of the Communications Security Establishment.
CSE information is subject to rigorous National Security Confidentiality
requirements, and little detail can be revealed about this information except
that the information indicated that specific security measures, substantially
similar to those listed in the June 1st Telex, were to be undertaken inside and
outside of India for Air India flights due to threats of sabotage and hijacking by
Sikh extremists. Furthermore, Indian airports were undertaking security audits
in response to the threats and the Government of India had shown an increased
interest in the security of airports against the Sikh terrorist threat in the month
of June 1985. This latter fact would have clearly called into question RCMP and
Transport Canada officials’ view that threats, such as the June 1st Telex, were
provided by Air India solely as a means to obtain additional security for free.
This additional information might, in itself, seem unremarkable, but in the
context of the June 1st Telex, as well as other information known to agencies of
the Canadian government in June 1985, it should have suggested a significant
risk of a bomb attack on an Air India flight in June 1985.
There is no record of the CSE information being provided to CSIS.
The June 1st Telex and the CSE information were more than enough, had they
been assembled in one place and assessed by a skilled analyst, to have mandated
an upgrading of security and the implementation of responsive measures at
Pearson and Mirabel airports and, arguably, at airports with connecting flights
to Air India, so as to respond to a high threat of sabotage by bombs concealed
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in checked baggage. The Commission accepts the expert evidence given at the
Inquiry that, even on its own, the June 1st Telex clearly should have led to this
upgrade in security.
Bartleman’s evidence is not essential to arrive at the conclusion that the
Government knew enough about the pre-bombing threat to make its failure to
implement responsive security measures inexcusable. However, the prominence
given to the testimony of Bartleman by the Government makes it necessary to
conduct an evaluation of his evidence. With an understanding of what was
known by the Government in the pre-bombing period, Bartleman’s evidence
can now be assessed in its proper context.
Despite the aggressive insistence of the Government to the contrary, there is
nothing implausible about the existence and subsequent disappearance of a
document referring to a threat directed against a Canadian Air India flight. It is
possible that the passage of over two decades may have blurred some details
in Bartleman’s recollection, but the essence of his testimony is credible. The
Commission, applying the elements of common law assessment of evidence,
finds him a credible witness. He had nothing to gain from coming forward
with his evidence and he was fully aware that his evidence would be vigorously
attacked.
The Commission accepts the possibility that a document such as that described
by Bartleman would have been ignored and then subsequently could have
gone missing from the Government’s documentary holdings because:
The documentary holdings for the pre-bombing period are
incomplete.
DFAIT archives have been purged with no index of destroyed
documents.
CSIS, as a matter of policy, destroyed source documentation
once it had been reviewed and any intelligence reports had
been written.
Despite statements made in documents before the
Commission and in corroborating testimony at the hearings
that asserts that in the pre-bombing period the RCMP was in
receipt of a large volume of threats to Air India forwarded by
Air India itself, the number of RCMP documents produced to
the Commission falls well short of that description.
The state of CSE documentary holdings from the pre-bombing
period is unclear and the holdings themselves almost certainly
incomplete.
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Various government witnesses claimed that information about a threat against
an Air India flight would have made an impression on them and that they
would have raised an alarm immediately. This assertion, however, is inconsistent
with what is known about the reaction to threat information received by the
Government of Canada in the spring of 1985 for which documentary evidence
remains. Such threat information, including the June 1st Telex, received little if
any reaction.
A government witness who stated that he would have remembered and reacted
to any bomb threat concerning Air India had to be reminded of the existence
of an April 1985 threat against an inbound Air India flight. He defended his lack
of response in that case on the basis that there were no security precautions
necessary to deal with a threat against an inbound flight. Nevertheless, the
failure to raise an alarm and the absence of documentary reference to this
threat in any other material from the pre-bombing and post-bombing periods
parallels what happened to the June 1st Telex.
A CSE witness who attempted to attack Bartleman’s credibility asserted that he
would have warned the Government of any threat against an Air India flight, as
he had done months earlier when he saw a reference to the November Plot. He
apparently was unaware, however, of the existence of the CSE information about
security measures being mandated for Air India operations, inside and outside
of India in response to threats of sabotage by Sikh extremists and information
that Indian airports were conducting security audits in light of these threats.
This is information whose relevance to the Air India bombings the Government
disputes to this day. The very fact that the relevance of the CSE documents is
disputed is illustrative. If past and current CSE officials cannot, even in hindsight,
make the connection between this information and the threat to Flight 182, it
should hardly be surprising that its relevance was unappreciated in 1985.
It remains unknown how accurate the threat information seen by Bartleman may
have been. As he freely admitted, the information he saw merely suggested the
existence of a threat and he had no way to assess its seriousness or credibility.
The RCMP witness who testified that the Force received threats to Air India before
every flight used that fact as justification for the RCMP’s view of these threats as
“floaters” – sent by Air India in the hopes that the Canadian Government would
provide additional security without additional cost. This account of the RCMP’s
view of the credibility of threats to Air India issued at the time is consistent with
Bartleman’s account of the dismissive and even hostile reception he received
when he sought to bring the information to the attention of the Force. It is also
consistent with notations in earlier documentation about a seeming annoyance
on the part of the RCMP with being “second-guessed” on security decisions by a
member of External Affairs.
Even if Bartleman saw nothing more than what was contained in the CSE
information unearthed by the Commission, it is likely that it would have been
enough, given his knowledge of Sikh extremism in Canada, to convince him that
the threat needed follow-up. The fact that Canada had the largest Sikh diaspora
�Chapter III: Historical
in the world, that June was a time when there was a very high risk that some
action would be carried out against Government of India interests and that Air
India was a possible symbolic target, all would lead anyone with his knowledge
and experience in the area to raise questions about what precautions had been
taken. This was precisely what Bartleman did.
3.4 Response to the Threat
Prior to the bombing, the Government as a whole had the following information
relevant to the risk that Sikh extremists could successfully carry out the bombing
of an Air India plane:
It was aware that Sikh extremists were serious about a terrorist
attack during June 1985 against a symbol of the Government
of India. It knew the identity of the extremists likely to be
involved in such an attack.
It was aware that Air India’s flights were likely to be a target
of Sikh extremists and that a likely means for such a terrorist
attack was a time-delayed explosive concealed in checked
baggage.
It was aware that the most serious threat to civil aviation was
no longer hijacking, but sabotage.
It knew that Transport Canada’s regulatory regime was
inadequate to deal with this sort of threat and that the specific
security measures currently instituted by Air India were
inadequate and were based on unreliable technology and
untrained screeners.
It was aware of rules and procedures that could have been
prescribed by Regulation, and that would have been more
effective in responding to security risks posed by interlined
baggage and by baggage checked-in by passengers who did
not show up for their flights.
It was also aware of more effective procedures, such as
passenger-baggage reconciliation, and practices for screening
baggage and identifying potential risks.
Nevertheless, because the Government did not address what was, by its own
evaluation, a security regime wholly inadequate to identify and respond to
known serious threats, it failed to prevent the bombing of Air India Flight 182.
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3.5 The Bombing of Air India Flight 182: A Litany of Security
Breaches
By June 1985, the threat of terrorists attempting to exploit vulnerabilities in the
aviation security system by placing explosives in checked baggage had been
well understood by Transport Canada for at least five years. The concern about
the threat of sabotage was so great that in 1980, Canadian aircraft operators
and manufacturers had requested that Transport Canada develop screening
techniques and equipment for detecting explosives. Even so, as of June 22,
1985, the standard security procedures in place at Canadian airports were still
oriented towards the prevention of hijacking. These measures were focused
upon preventing potential hijackers from carrying weapons aboard an aircraft
and there existed no screening requirement for checked baggage.
CP Air in Vancouver was operating at a “normal” threat level on June 22, 1985,
despite the fact that Transport Canada and elements of the RCMP possessed
voluminous information about the high threat to Air India and despite the fact
that Transport Canada was aware that CP Air had flights connecting with Air
India. “M. Singh” became disruptive and insisted that his luggage be tagged
through to his final destination in India, ostensibly to save him from having
to pick them up and check them in again when the CP Air flight arrived in
Toronto. The CP Air agent violated CP Air’s own security protocol by tagging the
luggage through to Air India 181/182 even though the passenger did not have
a confirmed seat aboard these flights. CP Air also took no steps to remove the
bag checked by “M. Singh” when he did not board the aircraft. Upon arrival in
Toronto, this “unauthorized” bag was placed on board Air India Flight 181 by
ground staff at Pearson Airport. Due to its own deficient protocols, Air India was
unaware that this bag had been loaded.
Meanwhile, earlier that same day at Pearson Airport, Brian Simpson, an Air
Canada summer employee at the time and now a lawyer, was curious about
the very large Kanishka aircraft stationed outside the international departures
area. Although he was not authorized to be inside the aircraft, he was able to
walk to, and board, the plane; explore its interior for approximately 10 minutes
and leave without being challenged by security officials or other airport staff.
Simpson, who had observed numerous lapses in security in his time working
at Pearson, was not surprised by this inattentiveness. He testified that, at the
time, security doors that were meant to be locked were frequently kept open,
and that doors secured by coded locks often had the access codes written on
the wall nearby.
In that same period, similar lax security procedures had been observed at
Vancouver and Montreal airports. Transport Canada was aware of the lax
security culture prior to the bombing. Although annual security surveys were not
conducted at Mirabel, they had been at Pearson in 1983, 1984 and in the spring
of 1985 and at Vancouver airport in 1982 and 1985. A 1982 Transport Canada
report noted that many aspects of Canada’s security program were cosmetic
�Chapter III: Historical
and incapable of resisting a well-organized terrorist attack. Nevertheless, this
situation was permitted to persist.
While RCMP HQ had assigned a level of security for the Air India flights in
June that called for an RCMP explosives detection dog (EDD) team to search
the passenger section of the aircraft, as well as any suspect luggage, prior to
departure, the EDD teams were unaware of the state of alert at the time. On
June 22, 1985, the EDD teams were all in Vancouver for training, leaving the
Toronto airport without any trained dogs, and with only the RCMP Hand Search
Team as backup. In case of a security alert, the role of the Hand Search Team
(despite its name) was merely to search the interior of the aircraft and to oversee
a process of passenger-baggage matching.
Although Montreal’s Mirabel Airport had arranged for access to the Sureté de
Québec dog team if necessary, this team was not at the airport prior to the
flight’s departure, and despite the identification of three suspicious bags that
were not loaded, neither the passenger section of the aircraft nor the flight’s
checked baggage was searched.
Due to the constant high threat to Air India operations, Air India’s security
program called for the use of X-ray machines at both Pearson and Mirabel to
examine checked baggage for explosives before any bags would be loaded
aboard their aircraft. Air India also employed an electronic explosives detection
device, the PD4, as a back-up when the X-ray was broken or not available. The
PD4 device had been tested and proven totally ineffective by a member of
the RCMP at Pearson in early 1985, in front of a group of representatives from
Air India, Transport Canada, Peel Police and the RCMP. At the time, the RCMP
told Air India that it had no confidence in the efficacy of the PD4 sniffer device.
However, it did not intervene to prevent its use as part of Air India’s security plan
for flights in early 1985, prior to the arrival and installation of its X-ray machine, or
thereafter, as a back-up to the X-ray. When Air India’s X-ray machine at Pearson
airport, which had malfunctioned at least once before in June 1985, and which
had experienced reliability problems in the past due to mistreatment, broke
down after scanning about 50-75 per cent of the luggage on June 22, 1985, the
Air India security officer decided that the remaining bags would be examined
for explosives with the PD4 sniffer device instead. Despite the high threat level
assigned to Air India flights, neither Burns Security nor Air India informed the
RCMP about the X-ray equipment breakdown on that day, and RCMP members
did not monitor or even liaise with Air India or the screeners in the nearly 5 hours
between the time the machine broke down and the time the plane departed.
The Burns Security employees, private security officers employed by Air India
to conduct checked baggage screening, had no prior experience or formal
training in the operation of the PD4. There was no supervision by Canadian
government officials. Burns employees were not instructed about how to
interpret the sounds the PD4 made, and no one informed the Burns supervisor
or the Air India Security Officer that the device may have reacted to some of the
bags it scanned. Then, without further contemplation of the potential danger
they posed, the bags were loaded onto the aircraft.
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Sometime before the check-in screenings at Mirabel were completed, Daniel
Lalonde, now an Ontario Provincial Police officer, who in 1985 worked for Burns
Security, was asked to leave his post at a security checkpoint to assist a number
of other security officers in the X-ray scanning of checked baggage. Lalonde
had never operated, nor even seen, the type of X-ray machine that was in the
baggage room. The extent of his training to examine carry-on baggage with an
X-ray machine was a one-hour video showing images of a handgun and a stick
of dynamite as the types of dangerous articles he was to watch for, and on-thejob learning. In the course of screening the checked bags, he and the other
Burns employees identified three bags whose contents appeared suspicious.
The suspicious bags were placed on the floor next to the X-ray machine. The
Burns supervisor notified an Air India representative about the bags, but the
RCMP was not alerted until about 2 to 3 hours later. When RCMP officers arrived
at the baggage area, they found that the suspect bags had been left unattended
on the floor.
The Air India security officer had arrived from Toronto about 2 hours after the
suspect bags were discovered and decided that they should not be loaded
aboard the aircraft. Lalonde overheard the Air India security officer mention his
concerns about the cost of delayed takeoff when he made the decision to clear
Air India Flight 182 – which was running behind schedule - for takeoff. In 1985,
the cost of delaying the takeoff of a wide-bodied jumbo jet like the Kanishka
was between $10,000.00 and $18,000.00 an hour.
When the SQ dog handler was called in by the RCMP on the night of June 22,
1985, he believed he was being called to search the plane and its checked
luggage. However, the aircraft had already departed prior to his arrival and he
was only able to search the three bags that had been left behind.
On June 23, 1985, at 07:14 GMT, Air India Flight 182 disappeared from radar
screens.
It has often been said that the failures that ultimately permitted the loading
of the bomb onto Air India Flight 182 on June 22, 1985, were the result of a
series of tragic coincidences and overlapping lapses. While this is true in some
respects, the many deficiencies and errors that were observed on June 22, 1985,
were also the predictable outcomes of poor regulatory and funding decisions
and of a lack of leadership, which combined to create an environment ripe for
exploitation by would-be terrorists. Air India’s operations in Canada were known
to be a “soft target” and little stress on that system was required to set off the
chain of failures that ultimately led to disaster.
History has demonstrated the tragic extent of harm that can result from an
ineffective aviation security regime. The risk to aviation security demands that
there be a well-coordinated system of multiple, overlapping layers of security
measures and a pro-active and responsive regulatory regime that is consistently
reviewed for its effectiveness, in the context of past, present and future threats.
This was not the type of security regime in place at Canadian airports in 1985.
�Chapter III: Historical
3.6 Resources and Privatization
The 1980s was a period of deregulation, downsizing, and privatization.
Though the Aeronautics Act, the primary regime setting out authority for
the regulation of civil aviation in Canada, gave the overall responsibility and
authority to the Minister of Transport to “supervise all matters connected with
aeronautics,” the regulatory regime in place put much of the responsibility for
aviation security onto private actors. In this context, privatization could only
work if the Government discharged its duty to take reasonable steps to protect
its citizens through active monitoring and oversight of security operations.
Profit-conscious carriers might be tempted to save money by reducing security
expenditures, so it was reasonable to expect an increased level of Government
intervention when it was aware of a heightened threat.
In the pre-bombing period, however, Government resources for airport security
were scarce and thinly stretched. Transport Canada faced major budgetary
constraints as the incidence of hijacking attempts and other criminal acts
against civil aviation declined, and it became increasingly difficult to justify the
costs of security expenditures. Transport Canada airport managers were under
continuing pressure to reduce spending, which resulted in local constraints
being applied to their budgets. This had an impact on RCMP airport policing
resources which were negotiated locally with Transport officials at the airport
level.
In 1985, the RCMP was mandated by contract with Transport Canada to
perform specific police and security duties at designated airports, including:
formulating, disseminating and auditing airport emergency procedures;
collecting, evaluating and disseminating intelligence; and guarding against
sabotage of airlines and the airport. The RCMP Airport Policing program had
experienced progressive budgetary cutbacks for years. By 1983, the cutbacks
had reached a level that made it impossible to meet its obligations to respond
to threats to airlines in some locations. By June 1985, the RCMP’s presence
had been downsized at most airports to include traffic control, a uniformed
presence within and outside the airport and the occasional patrol of the
perimeter.
Transport Canada inspectors were directed to monitor airports and to alert the
carriers to any shortcomings in their security systems. There were, however, only
11 inspectors across Canada to conduct such reviews for the roughly 70 carriers
operating across the country. By June 1985, inspectors had not completed
more than 10 per cent of their workload for that year in any region, and in some
regions no aviation security inspections had yet been conducted.
Entrusting vital security responsibility to the carriers themselves, in combination
with the lax security culture at airports and the lack of resources for Government
oversight and training, was a recipe for disaster. Without continual and thorough
monitoring of the air carriers, airport personnel, and security staff within that
system, carelessness and complacency flourished.
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Both foreign and domestic air carriers were required to establish, maintain and
carry out certain security measures at airports, including passenger and baggage
screening. Private security officers were contracted by the air carriers to staff
the security checkpoints and to conduct pre-board screening of passengers
and luggage. In 1985, the Aeronautics Act limited the designation of “security
officers” to properly qualified personnel. Security officers were required to
complete Transport Canada’s passenger inspection training program with an
average mark of 70 per cent and refresher training was also required within 12
months of any previous training. However security service contracts tended
to be awarded by airlines to the lowest bidder. The security officers were paid
minimum wage, and were unqualified to do their jobs, as many had either never
taken the mandatory Transport Canada passenger inspection program or the
required refresher training. Transport Canada was aware of these deficiencies
but took no action to remedy them.
While Transport Canada required its own employees to undergo background
and criminal record checks in order to obtain security clearance, the employees
of the carriers working at airports across Canada were not subject to either
criminal record checks or credit checks. They nevertheless had access to airport
restricted areas and aircraft. Following the bombing, CSIS checked the names
of the janitorial staff with access to the location where the bags containing the
bombs were placed on the aircraft at Vancouver International Airport. CSIS
found that multiple individuals among the airport janitorial staff, who had wide
access to the airport and could move about virtually unnoticed, had connections
to extremist Sikh organizations. The brother of Ajaib Singh Bagri, the latter of
whom was suspected of a role in the Air India bombing, was among them.
Security companies were generally under the direct supervision of an air
carrier’s customer service section, whose focus on keeping passengers happy by
minimizing delays and inconvenience often conflicted with security priorities.
Contracted screening companies were often urged to rush through screening
as quickly as possible. Prior to the bombing, in March 1985, Air India’s acting
airport manager for Mirabel and Pearson airports expressed concern about the
numerous complaints that were being received about the delays of its flights
leaving Toronto. Air India headquarters had set a “2 hours ground time” limit for
delayed flights that was to be “strictly followed.” Simply put, customer service
and other commercial concerns trumped aviation security.
In combination with the lack of resources for oversight, the privatization of
airport security also led to a “hands off ” approach towards oversight at Transport
Canada. Transport Canada was aware of the potential value of passengerbaggage reconciliation and considered it an effective security measure for high
threat situations. Confirming that all checked bags were matched with travelling
passengers required additional time before a flight could depart and caused
inconvenience to passengers.
Prior to the bombing, Transport Canada was tentatively considering a
requirement for X-ray inspections as a viable alternative to the lengthy
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passenger-baggage reconciliation process. Transport Canada appeared to
view X-ray technology as something of a panacea, despite the poor resolution
of the X-ray images and the high degree of skill required to appropriately
interpret them.
Concerns about costs and delays influenced Air India’s decision to use
technological solutions to speed up security screening wherever possible. In
1985, Air India’s security plan for operations in Canada included screening all
passengers and their carry-on baggage by use of X-ray scanners and walkthrough metal detectors as well as X-raying or using the PD4 explosives detection
device on all checked baggage as a standard measure prior to its being loaded
aboard aircraft. This plan was “informally” approved by Transport Canada with
some minor modification. However, in spite of its international obligations to
approve, monitor and comment upon air carrier security plans, monitoring was
effectively non-existent.
Burns employees received practically no formal training in the examination
of baggage with an X-ray machine. The utility of any screening technology
necessarily depends on the skill of those employed to use it. Air India’s X-ray
machine was poorly handled and poorly maintained, had malfunctioned on
several occasions, and ultimately broke down on the eve of the bombing.
Given the state of X-ray technology at the time, the efficacy of the machine in
detecting explosives was already quite limited, and these other factors further
compromised its usefulness. Despite the high threat situation, the Government
raised no objection to Air India’s continued use of this machine or to the use of
the proven-ineffective PD4 as a replacement.
The first Air India flight from Pearson took place on January 19, 1985. At that
point, Air India’s checked baggage X-ray had not yet been installed, and so
the PD4 was used instead to examine the checked baggage destined for the
flight, despite the advice from the RCMP not to rely on the device. The RCMP
and Transport Canada did nothing to intervene, in spite of a second failed test
conducted by the RCMP that day, and in spite of the fact that both agencies
had been evaluating the progress of explosives detection technology through
the late 1970s and early 1980s, and had been finding that such devices were
generally unreliable. In light of the primitive state of explosives detection
technology at that time, Air India’s reliance on the PD4 was alarming.
The Government retained ultimate authority at the airport to decide whether
or not to allow a flight to depart, and could detain a plane or take other action
to ensure a flight would not depart in dangerous circumstances. In reality,
however, the combination of the Government’s laissez-faire approach and its
lack of oversight ensured that, aside from obvious circumstances of inclement
weather, the Government would almost never have the information nor the will
required to exercise this power.
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3.7 Lack of Sensitivity to Emerging Threats
In a dynamic environment in which new threats can emerge at any time, an
effective aviation security regime requires a high degree of flexibility in order to
identify emerging threats and then to tailor a coordinated response, sensitive
to the relevant risk. Risk assessment requires a calibration of the vulnerabilities
that make a system more susceptible to attack or exploitation by terrorists,
and of the potential for harm in the context of a particular threat. In 1985,
numerous discrete deficiencies aligned to create a situation in which Canada’s
state of aviation security was utterly unable to identify and respond to emerging
threats.
3.7.1 Information Sharing and Coordination
The involvement of multiple actors in the protection of civil aviation – including
Transport Canada, the RCMP, Air India and Burns Security – meant that a
high level of coordination was required to ensure that those responsible for
implementing security measures were aware of relevant threats and understood
their responsibilities in terms of responding to any given threat. In 1985, each
actor operated in its own silo, without an understanding of how any piece of
information it obtained related to the broader picture of aviation security. Even
within each agency, there was significant uncertainty about how information
was to be shared internally and about how measures were to be implemented
in response to it.
As stated earlier, the RCMP did not share the June 1st Telex with either CSIS or
Transport Canada, which could have then taken steps to impose additional
safety measures. Over two years later, in October 1987, a member of Transport
Canada’s HQ Civil Aviation Security Branch first learned of the existence of the
June 1st Telex, and was alarmed by the many questions it raised as well as by the
failure of both the RCMP and Air India to take proper action.
Transport Canada’s ability to disseminate threat intelligence to airports was
impeded by a lack of its own secure national communication system. Instead,
it had to rely on the RCMP to transmit classified intelligence to personnel at
airports. Multiple steps involved in sending intelligence reports in an emergency
created a clumsy protocol and, as a result, major airports did not always receive
classified security intelligence quickly, if at all. Transport Canada officials found
that, even where an RCMP airport detachment received classified information
well in advance of Transport Canada officials, the RCMP was often reluctant to
pass such information on.
The lack of understanding of the phenomenon of Sikh extremism, and the failure
to appreciate the symbolic significance of the Indian Government’s ownership
of Air India, complicated the situation further. As a result, when CSIS issued
threat assessments indicating that the threat to Indian property and personnel
was high, the relevance to Air India wasn’t understood, and therefore, these
warnings were not taken into account and shared with those charged with
making decisions about the protection of Air India.
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Excessive secrecy further compromised the ability to respond effectively to
threats. The “need-to-know” principle prevented information from reaching
the critical decision-makers on the front lines. In June 1985, when the RCMP
received classified intelligence indicating that an incident was imminent, it took
the position that this information could not be shared with Transport Canada
officials. Without this information, it was impossible for Transport Canada to
make its own assessment regarding the imposition of additional security
measures and whether funding should be released to the RCMP for the extra
manpower to respond to the threat.
Frontline workers such as Air India personnel and Burns Security agents were
similarly deprived of information specifying what they should be alert for. The
greater detail that security officers have about the nature of the threat, the better
they will be able to direct their energy and tailor their response in a meaningful
way. Providing detailed threat information to frontline workers would have
been the optimal strategy.
With airports on a generalized “high threat” alert over long periods of time, even
as security incidents in day-to-day work were extremely rare, threat fatigue as
well as a lax security culture further eroded vigilance among airport workers.
Confusion regarding which organization held the ultimate responsibility for
decision-making in a given threat situation further hindered responses. Some
RCMP officials believed it was their responsibility to determine the threat level
and the appropriate response; Transport Canada airport officials disagreed
with this assertion. Confusion over responsibility led to acrimonious personal
relationships between officials from Transport Canada and the RCMP Airport
Policing detachment at Pearson.
Transport Canada had its own policies and protocols, and had the ability to
impose additional security measures at the airport if warranted by the level
of threat, but was not kept informed of the level of security the RCMP was
applying at the airports or of the protocols the RCMP followed. The lack of
coordination and understanding of other agencies’ protocols increased the risk
of disagreements between them, and inflated the potential for security gaps to
arise.
RCMP Airport Policing did not regularly inform others, including the individuals
expected to implement security measures, of the security levels it was
implementing in response to current threat information. The RCMP dog handler
for Pearson was unaware that the Air India flights in June were operating under
an increased level of security which required his presence, and that of his dog,
at the airport to search the passenger section of the aircraft prior to departure
and to check any suspicious luggage. Despite the heightened security level,
RCMP dogs across Canada were on training that weekend. As a result, on June
22, 1985, Canada’s busiest airport was left without the security services of an
explosives detection dog.
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Even though the same weekly Air India flight stopped at Pearson and Mirabel,
there was so little coordination between RCMP airport detachments that, despite
threats preceding almost every Air India flight, throughout most of the first half
of 1985, Air India was afforded different levels of security at each airport. While
at Mirabel airport, Air India was given the second highest level of security, at the
Pearson detachment, the same flight was provided only the minimum possible
level of security. On May 31, 1985, External Affairs noticed this discrepancy and
intervened to request that the level of security for Air India in Toronto be made
consistent with that provided in Mirabel.
3.7.2 Lack of Risk Analysis and Misuse of “Specific Threat” Concept
In the aviation security context, a bomb threat that was assessed to be a “specific
threat” would trigger an elaborate airport emergency protocol that involved the
offloading of all luggage from an airplane, a search of the plane, passengerbaggage matching and the use of an explosives-sniffing dog to search all
luggage. Had this protocol been employed on June 22, 1985, the bomb that
ultimately brought down Flight 182 almost certainly would have been identified,
but, on the eve of the bombing, the Government of Canada did not implement
these or other search methods to identify bomb-laden luggage.
Given the numerous pieces of threat information received by the Government
of Canada in the pre-bombing period, including warnings that specified the use
of time-delay devices in registered luggage checked onto an Air India flight,
the obvious question is: why did the Government not take appropriate, timely,
responsive, and protective action?
The significance of a “specific threat” in the 1985 threat-response regime was
limited to the circumstance of an emergency phone-in bomb threat. The
definition of “specific threat” used by Transport Canada officials required details
about the precise date, time, and even flight number. Importantly, the “specific”
versus “non-specific” characterization, according to this definition, was to be
made in time-sensitive circumstances, solely on the face of a particular threat
without the need for additional or corroborative information. This narrow
“specific threat” definition in use at the airport was never meant to apply outside
of the emergency context.
In practice, the concept of specificity was inappropriately used. The quest for
a “specific threat” impeded the proper analysis and response to threats. The
“specific threat” concept was misapplied to threats received outside of the
emergency context and was used in an all-or-nothing manner, often to deny
additional security.
The “specific threat” concept had no relevance to the security that should
have been implemented in relation to Air India Flight 182. The Government of
Canada received many threats, including the June 1st Telex, well in advance of
the flight. In these circumstances, there was sufficient time for an intelligence
assessment, which could then have been relied on by officials to tailor an
�Chapter III: Historical
appropriate response to the threat. Indeed, the RCMP had developed separate
non-emergency security protocols to be implemented in response to CSIS’s
assessment of the threat. Misapplying Transport Canada’s highly restrictive
emergency definition, which was designed for a time-sensitive phone-in threat,
to threats received outside of an emergency context, ensured that essentially
no threat received by other means would ever be viewed as a “specific threat.”
Despite the Government’s awareness of the paradigm shift in aviation terrorism
from hijacking to sabotage, its threat-response protocols remained targeted
to the prevention of hijacking. The Government’s continued focus on the
concept of “specific threat” serves to distract from the real issue, which is that
the applicable protocols in 1985 were not responsive to the risk of sabotage and
were thus woefully inadequate in the circumstances.
When airport policing obtained a threat assessment from CSIS, the level of
threat identified by CSIS was then used by the RCMP to determine the type of
deployment with which to respond. A “security grid” set out five levels of security
and the type of deployment to be effected at each level. A “high” threat, for
example, would elicit a “level 4” response on the security grid, whereas “level 5”
was reserved for a so-called “specific threat.” To add to the confusion, in CSIS’s
lexicon, for a threat to be “specific” required not only a high degree of specificity,
but also a degree of corroboration.
Whether the threat was “specific” or not, the actual difference in deployment
between levels 4 and 5 was nearly insignificant, amounting to the use of an
additional airline vehicle stationed airside, and another that would follow an
RCMP patrol car while the escort of the aircraft was underway. Even at the
highest level of security, the measures would have done nothing to prevent the
loading of a time/delay device in registered luggage.
In mechanically translating threat levels into security deployment without even
considering whether the measures dictated by the grid were at all responsive
to the nature of the actual threat, the RCMP failed to appreciate the inherent
need for risk analysis in order to appropriately translate threat information into
operational deployment. This lack of understanding or appreciation for risk led
to absurd situations.
The RCMP implemented additional security at Pearson airport in light of threat
information received in late May 1985. However, due to an oversight, Transport
Canada had not budgeted for overtime for that year. This increased level of
security was maintained throughout June, but without Transport Canada’s
consent, additional funds would not be released to pay for the additional
manpower. A dispute erupted at Pearson airport in June 1985 between
Transport Canada and RCMP officials over the payment for this additional RCMP
security. When additional, “highly classified,” threat information was received
by the RCMP in early June that left RCMP officials at Pearson with no doubt that
“something was going to happen,” the seriousness of this undisclosed threat was
argued as an abstract concept and was used to justify payment for the security
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already in place. There was never a consideration of whether or not the existing
security was an appropriate response to this new threat. In fact, no adjustment
to the existing security was made in light of this information. Similarly, when the
June 1st Telex was received at Pearson, RCMP Airport Policing simply maintained
the existing (non-responsive) “level 4” security already in place, given that CSIS
(which was not provided with the Telex) was unaware of any “specific threats.”
In the context of this Inquiry, the Government continued to misuse the concept
of “specific threat” in support of its argument that the June 1st Telex was not
specific, thereby implying that additional security was not warranted. Dr. Leiss,
an expert in the area of risk communication and risk management was shown
the June 1st Telex and was astounded by its specificity. He stated that in the
area of aviation security it would be extremely rare to get such a precise piece
of information. In light of the high risk situation at the time, the June 1st Telex
should have stood out and officials would have been justified in “basically
pulling out the stops.”
In fact, the reason for the inadequate response to the June 1st Telex was not
because it lacked specificity. The telex was sufficiently specific that, had anyone
considered doing so, a sensitive response would not have been difficult to
implement. Air India was operating only one flight out of Canada each week;
the telex specified a narrow time period and suggested measures that would
be responsive to the nature of the threat. Deficient protocols and a lack of
understanding of the purpose of what it was doing resulted in the RCMP’s
failure to understand the significance of the June 1st Telex and in its ineffective
response as a consequence.
3.8 Ineffective Regulation
In addition to the requirement that the system have the flexibility to quickly
identify and respond to individual threats, regular assessment of whether the
legislative and policy framework was adequate to meet the nature of potential
threats was essential. By 1985, such assessments had been undertaken and
serious problems were thereby identified, but nothing was done to rectify
them.
While Transport Canada had long been aware of the threat of sabotage as well
as of the many weaknesses in its airport security, the ability to correct these
weaknesses was hampered by deficiencies in its regulations. The problematic
nature of the regulations was well understood prior to the bombing, yet the
Government delayed bringing the Aeronautics Act and the accompanying
security regulations up to date and to a level capable of meeting the threat of
terrorism.
Perhaps surprisingly, regulations relating to observation, inspection, and
searches of passengers, baggage, and cargo were already authorized under the
existing Act. Draft regulations, most of which could have been passed under
the Aeronautics Act then in force, and which could have remedied many of
�Chapter III: Historical
the identified security problems, had been circulating since 1982. However,
Transport Canada sat on them, preferring to await passage of a bill that was
before Parliament at the time of the bombing and that would have significantly
amended the Act and given the Minister of Transport broader powers to regulate
with respect to aviation security. Though some officials recognized that the
draft regulations were urgently needed, nothing was put into place until after
the bombing.
Transport Canada generally took the position that as long as an airline’s security
plan met the basic and vague requirements outlined in the regulations, it was
valid. In the words of one official, the regulations provided that a valid “security
plan” required only that there be a “system” in place – whether that system was
“good, bad, or indifferent.” But even without the planned amendments to the
Act, it would have been possible to update the regulations to require that air
carriers provide specific details in their security plans. Such details could have
included the designated security officers assigned to provide services for the air
carrier, and a description of their required training, as well as the procedures and
guidelines to be used by the carrier for screening persons, personal belongings,
carry-on baggage, checked baggage and cargo. Regulations under the authority
of the existing legislation could also have authorized the Minister of Transport to
independently request changes to air carrier security plans where such changes
were deemed necessary for civil aviation security.
Regulations under the then current Act also could have addressed numerous
other deficiencies that had been recognized before the bombing. Regarding
the threat of sabotage, regulations could have been passed to direct that air
carriers take steps to prevent the carriage of explosives in checked baggage.
Additional security measures to be implemented during a high threat situation,
at a minimum, could have included matching all checked baggage to the
passenger manifest prior to departure, X-raying or providing a manual search of
all baggage using an explosive detection device or dog and handler or delaying
the transportation of baggage on high-risk flights for a specified period of
time.
Regulations could also have provided for more consistent and effective responses
to the security risks posed by “unauthorized, infiltrated” baggage by requiring
that checked baggage only be accepted from validly ticketed passengers and
that all checked bags be personally identified by their owners. The level of
training of airport workers could have been addressed by regulations stipulating
that no personnel would be allowed to perform passenger, ticket, and baggagerelated duties unless they had completed approved security training courses.
In light of the frequent security breaches that plagued many airports, a number
of other remedial security provisions were also possible. Airport operators could
have been required to keep records of all keys in their possession, to record the
names of the individuals who were issued airport keys, and to prohibit anyone
from entering or remaining in a restricted area without possessing and visibly
displaying their identification card unless otherwise authorized.
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All of these regulations would have been possible under the Aeronautics Act
in the pre-bombing period. In fact, most were already contained in the 1982
draft regulations and could have been passed long before the bombing, but for
Transport Canada’s inaction.
What the Aeronautics Act in the pre-bombing period did not provide was
sufficient authority to make regulations dealing with enforcement. One of the
main deficiencies, identified long before the bombing, was that if an inspection of
an air carrier uncovered a security issue, there was no authority for enforcement
action other than either a written reprimand or a total revocation the airline’s
landing rights at Canadian airports. There was nothing in between. There was
no specified penalty for the failure of an air carrier to follow the requirements of
its own security program. This was a fact that was highlighted when, after the
bombing, Transport Canada concluded that no enforcement action could be
taken against CP Air for interlining the “M. Singh” bag directly to Air India Flight
181/182 without the passenger having a confirmed seat.
While technically it was an offence to breach the regulations, the possible fines
against carriers were not meaningful. Only after the bombing was the Act
amended to authorize large fines (up to $25,000) against corporations upon
conviction of a breach of the Act, regulations, or orders.
Post-Bombing: RCMP/CSIS Cooperation
3.9 Human Sources: Approach to Sources and Witness Protection
3.9.1 A Lack of Effective Governance
Without a central informed decision-maker to direct the entire Canadian
counter-terrorism landscape, CSIS and the RCMP were left to proceed according
to their own lights and based on their view of the needs and best interests of
their own institution. In the competition and mistrust that ensued there were
no winners.
The Air India narrative is littered with lost opportunities where the value of
potentially useful information was nullified in the fallout of the agencies’ selfinterested actions. Nowhere was this more apparent than in the approach of
the agencies to human sources and in their competition for access and control
in connection with these “assets.” In the end, few positive results were achieved,
while the relationship between CSIS and the RCMP continued to deteriorate
and sour.
CSIS reserved for itself the decision about when and how it would turn over
criminal information to the RCMP. At times, it delayed turning over information,
with the goal of squeezing as much information out of a source as possible
before relinquishing control, often without keeping the records necessary to
allow for the eventual evidentiary use of that source’s information. When Mr.
Z disclosed to CSIS the identity of the two Sikhs who he had been told were
responsible for checking in the luggage, CSIS made a decision to hold off on
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passing this information to the RCMP so that its avenues of investigation were
not “jeopardized.” CSIS ended up disclosing the information to the RCMP after
about a month, but only because it learned that the RCMP was going to start a
program of interviews that would turn up CSIS initiatives involving Mr. Z.
When CSIS investigator William Dean (“Willie”) Laurie met with Ms. E in 1987,
she told him that the night before Air India Flight 182 crashed, Ajaib Singh Bagri
had come to her door, asking to borrow her car to go to the airport and telling
her that only the luggage would be travelling. CSIS made a conscious decision
to hold off passing this astonishing statement on to the RCMP, despite its clear
and potentially transformative relevance to the criminal investigation, based
on the dubious rationalization that Ms. E’s information was mainly “historical”
and incapable of being corroborated. In fact, the CSIS decision was motivated
by a belief that the RCMP would bungle the approach to Ms. E and the result
would be to end any hope of obtaining any further information from her. CSIS
did eventually give the RCMP, verbally, enough information to discharge what
it saw as its legal obligation, but did little if anything to ensure that the RCMP
would be able to put together enough details to actually find her.
For its part, the RCMP appeared to live down to CSIS expectations and only
began to pursue the Ms. E connection in 1990. Faced with RCMP allegations
that it had withheld information about Ms. E in 1987, CSIS scrambled to uncover
documentary corroboration that it had turned over the information. Though it
failed to surface any such proof, CSIS nevertheless drafted a letter to the RCMP
that provided assurances that all details had indeed been passed-on verbally,
relying on cryptic internal RCMP telexes as justification.
The revelation that CSIS had withheld or delayed the passing of important
criminal information only further fuelled the mistrust the RCMP had for CSIS
and led it to feel justified in constantly questioning whether it had received all
relevant information in relation to a source.
The case of Mr. A was equally unedifying. CSIS and the RCMP became aware of Mr.
A at around the same time and both believed that he likely had key information
about the Air India terrorist attack. The agencies met and agreed that CSIS would
interview him first and would report the results of the interview to the RCMP.
However, upon meeting with Mr. A, CSIS investigators realized that he was an
extremely valuable source and that he had concerns about his safety that made
him reluctant to share the details of his story. Despite the earlier agreement and
the potential criminal relevance of his information, CSIS proceeded to provide
Mr. A with assurances of confidentiality and turned him into a CSIS source. The
information he had provided about Air India was subsequently provided to the
RCMP, but without revealing that Mr. A was the source, relying for justification
on the promise of confidentiality it should arguably never have made in the
first place. Meanwhile, CSIS had no apparent problem in directly breaching its
numerous assurances of confidentiality to Ms. E when it revealed her identity
to the RCMP in 1990, once it became concerned about being blamed for not
passing her information in the past.
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Sources have rightfully been described as CSIS’s lifeblood. CSIS’s long-term
investigation into Sikh extremism in the late 80’s and early 90’s depended on its
ability to develop long-term relationships with individuals who could provide
the Service with insight into what was happening in the Sikh community. Time
and again, when CSIS did pass criminal information it received from a source
to the RCMP, it ended up being forced to terminate its relationship with that
source entirely. This was usually in order to protect the evidentiary value of
the source’s potential testimony from “contamination” and from allegations
of “coaching” by CSIS, though at times it was simply the result of the source’s
refusal to cooperate further with anyone because of the RCMP’s heavy-handed
approach. The RCMP’s concerns about the impact of CSIS involvement on
eventual prosecutions were not unfounded, especially in light of CSIS’s constant
failure to preserve records of its dealings with its sources. On the other hand, the
RCMP’s bull-headed approach burned bridges for both agencies to the sources.
The repeated loss of some of its most promising sources had, not surprisingly,
a significant negative impact on morale among the CSIS investigators. CSIS’s
reluctance to pass information with potential criminal relevance over to the
RCMP can accordingly be understood, if not condoned.
The combination of the RCMP’s aggressive approach and its tendency to quickly
discount sources often led to a lose/lose outcome: CSIS lost its source and the
RCMP failed to gain any “evidence”, or even any information, from the source. CSIS
was ordered to hand Mr. A over to the RCMP as the result of RCMP lobbying for
exclusive access. The RCMP dismissed Mr. A’s utility after a 15 minute interview
and left him fearing for his safety as a result of its unwelcome approach. Neither
agency derived any benefit from the information he had to offer.
The result in connection with Ms. E was equally unsatisfactory. When the RCMP
decided to approach Ms. E in 1990, CSIS Investigator Laurie warned that she
would not be receptive to the police. The RCMP charged ahead regardless,
with its usual aggressive approach. Laurie, the person with whom she had the
best rapport, and who by then had transferred back to the RCMP, was excluded
from the process as soon as possible and not re-involved until 1997. Ms. E was
subjected to a long audio-taped interview at RCMP headquarters, during which
she expressed considerable fear and reluctance. She was repeatedly approached
by an ever-shifting cast of RCMP investigators who showed little concern for her
feelings or her privacy. Ultimately Ms. E refused to cooperate with police any
further and feigned memory loss when she was called to testify at trial.
It was not only the RCMP’s aggressive approach to sources that caused CSIS
concern. CSIS saw the RCMP place potential sources and witnesses in jeopardy
by failing to implement adequate measures to protect them or to ensure that
the confidentiality of their information was maintained. CSIS was shocked by
the RCMP’s failure to seal its Information to Obtain and thus to protect Ms.
D’s identity. It was similarly dismayed to learn about the RCMP’s persistent
aggressive approaches to Ms. E, often in public places or within earshot of
others, which clearly placed her at risk. At times, even members within the
RCMP took issue with the Force’s handling of sensitive information. RCMP NCIS
�Chapter III: Historical
Surrey investigators expressed concern that RCMP HQ had widely distributed
correspondence within the RCMP that could identify Tara Singh Hayer as the
source of information about an alleged confession by Bagri about delivering the
bag to the Vancouver International Airport on the eve of the bombing.
The squabbling over sources was unremitting. CSIS complained of not being
informed about RCMP plans to send Hayer to England to help gather evidence
against Bagri, a plan it felt had potential to damage CSIS’s operations, to harm
CSIS’s reputation and to put Hayer in danger by exposing CSIS’s contacts with
him. Despite these protests, when RCMP investigators travelled once more to
England in 1988 for an “investigational trip” in relation to this scenario. CSIS was
again kept in the dark and not told about the operation until a month afterwards,
when the RCMP happened to need CSIS information for its own purposes.
Like opposing teams running in pursuit of the ball around a soccer field without
goalposts, CSIS and the RCMP continued to actively pursue exclusive access
to sources, without much clarity as to exactly what they thought they were
trying to accomplish. A simplistic and inflexible view that CSIS was concerned
with “intelligence” whereas the RCMP dealt with “evidence” led the agencies to
approach their investigations mechanically. Without stopping to think about
whether their “usual” methods made sense, both agencies as often as not ended
up sabotaging their own interests as much as each other’s.
3.9.2 CSIS: Refusal to Collect Evidence
The spectre of the abuses of civil liberties committed by the former Security
Service and revealed publicly through the McDonald Commission continued to
haunt the newly created CSIS. If nothing else, CSIS was determined to distance
itself from scandal and keep within the four corners of its new mandate as it
perceived it. There was a strong emphasis on limiting the information CSIS
retained, as well as on avoiding the use of any “police-like” methods in collecting
information. This strategy, which was plausible as a means to prevent repetition
of past errors, soon became an end in itself as the new agency became
mesmerized by the mantra that “CSIS doesn’t collect evidence.” This mantra was
used to justify the destruction of raw material and information, even in cases
where that material clearly implicated criminal activity and represented no more
of an infringement of privacy than the summary reports CSIS did preserve.
At the same time, CSIS took an expansive view of its security intelligence
mandate and seemed unable to resist the temptation of developing source
“intelligence” – even when the information provided by sources was solely
relevant to the question of who was responsible in the Air India case. The result
was that throughout the Air India narrative, CSIS repeatedly took it upon itself
to develop intelligence that went to the heart of the criminal investigation, with
seemingly no regard for evidentiary requirements or thought for what would
happen when the information ultimately ended up in a court of law.
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CSIS continued to mechanically destroy its raw materials regardless of their
content, a practice that came to have serious consequences for the Air India
trial. When, in 1987, Ms. E told Laurie her story about Ajaib Singh Bagri’s request
to borrow her car the night before Air India Flight 182 crashed, Laurie followed
the general practice at CSIS and destroyed the original notes and recordings
he made in relation to his interviews. He did this, despite the fact that it was
immediately clear to him and to his superiors that this was criminal information
that would likely one day end up in court. Despite what he and his superiors
may have believed, in doing so, he was not even going by the book. Up until
1990, the official CSIS policy dealing with retention of investigators’ notes was
still the old Security Service policy that required investigators to retain their
notes where there was “reason to believe” that an investigation would “result in
court appearances being necessary.” Though still applicable, this was a policy
that seems neither to have been known nor ever applied at CSIS.
At the Air India trial, Justice Josephson concluded that the destruction of Laurie’s
notes and audio recordings of his interviews with Ms. E violated Bagri’s rights
under the Charter. He then found that Laurie’s reports about Ms. E’s statements
were admissible, but were not sufficiently reliable to support a conviction, since
they were not meant to provide a complete record of his interactions with Ms. E
or of all the statements she made, because CSIS “does not collect evidence.”
CSIS’s cavalier attitude towards the “evidentiary process” opened up the
possibility that its investigations would ultimately compromise the RCMP’s
evidentiary position at trial. Even though CSIS appeared to recognize that the
problem of “contamination” of the RCMP’s Air India investigation could be an
issue, it proved unable to take effective steps to avoid it. Laurie was instructed
not to task Ms. E with any actions and not to question her specifically on criminal
matters, but he was not told to stop meeting with her. Every time he did meet
her, the topic of Air India ended up becoming the central issue discussed.
Inconsistencies developed in the numerous reports Laurie created about what
Ms. E told him during their meetings, and these ultimately served to weaken the
Crown’s case. The independence of Ms. E’s recollection also became a concern,
based on suspicion that Laurie may have provided information to her during
their meetings - a suspicion that was difficult to refute at trial over ten years later
in the absence of complete notes or recordings of the meetings.
Whether because of its more effective methods in approaching sources or
because of the natural advantage it enjoyed in not being “the police,” CSIS
succeeded in obtaining a larger quantity of information, and more valuable
information, from human sources than did the RCMP during the post-bombing
period. It then proceeded to render that information essentially useless for the
purpose of bringing the perpetrators for the bombing to justice as a result of its
stubborn and unreflective insistence on not collecting “evidence.”
�Chapter III: Historical
3.9.3 RCMP: Refusal to Collect Anything But Evidence
Running parallel to CSIS’s unhelpful insistence on not collecting evidence was
the RCMP’s insistence on not collecting anything but evidence. In relation to
sources, this meant that the RCMP tended to assume that they were important
only to the extent that they were willing and able to become witnesses and
that their information was valuable only to the extent that it could be used as
admissible evidence.
This attitude helps to explain the singular ineffectiveness of the RCMP in
developing sources and its corresponding ability to squander the opportunity
to elicit information from the sources that CSIS ended up turning over to the
RCMP.
It should have been clear from the outset that if perpetrators of the bombing
of Flight 182 were to be brought to justice, the authorities would have to rely
on information from sources in the Sikh community. Though the forensic
evidence about the bombing lay beneath the depths of the Irish Sea, there
was a widespread belief that members of the tight-knit Sikh community knew
who was behind the crime. These were circumstances that called for patient
and sensitive approaches to members of the Sikh community, in the hope of
drawing out the information that could piece together the conspiracy and point
to the evidence that would be needed to make out the case in court.
The RCMP proved entirely incapable of meeting these challenges. Instead of
emulating the successful methods of CSIS source handlers, the RCMP adopted
an aggressive, insensitive and sceptical approach to potential sources of
information which served to turn them away and render them uncommunicative
rather than encouraging them to be forthcoming. Given this approach, it is not
surprising that, when several of the CSIS source handlers who had developed
promising sources in the Sikh community for CSIS transferred back to the RCMP,
none were kept on in a parallel capacity at the Force, nor were they brought into
the police investigation of the bombing.
The RCMP tended to take a linear approach. The predominant view was that,
in light of the magnitude of the Air India tragedy, individuals with important
criminal information were duty-bound to cooperate with police. This led
the RCMP to approach sources in an aggressive manner, with a sense of
entitlement. This approach was particularly ineffective in dealing with sources
afraid for their safety. Members of the Sikh community were often reluctant to
cooperate with police, both because of cultural assumptions about the police
that were rooted in the Sikh experience in India and because they were fearful
of the consequences of “collaboration” with the police for themselves and
their relatives if their cooperation was discovered. It did not help that a man
(Balbir Singh Kaloe) was believed to have been killed at the hands of Indian
authorities as a result of information supplied to India by Canadian authorities.
The RCMP’s seeming blindness to the continuing threat of Sikh extremism, and
the effect it had on the community, was in line with its narrow view of its role
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and its lack of curiosity about the people or the culture it was dealing with.
When CSIS investigators tried to explain to RCMP members the nuances of the
Sikh community – including community attitudes towards the Sikh separatist
movement, Sikh extremism and the bombing - they showed little interest, and
a good deal of impatience with information they did not see to be relevant to
their immediate criminal investigation.
This lack of understanding by the RCMP of the Sikh community compounded
its problems in recruiting sources, and its approach turned sources into
adversaries.
In the case of Ms. E, despite knowing that she was potentially suicidal and feared
that if she cooperated with police, she and her children would be murdered,
the RCMP made repeated, public, and aggressive approaches to her. Officers
constantly dropped by her residence, where she worked with other employees,
and spoke to her about Air India, at times within earshot of others. They made
repeated suggestions about the “unpleasant things” that could happen if she did
not disclose the full extent of her knowledge, even suggesting that if she failed
to respond to a subpoena she would be arrested. They constantly referred to
her alleged affair with Bagri in an accusatory manner, and even spoke to Ms. E’s
common law husband in a manner that led him to believe that Ms. E had had an
affair with Bagri while already living with him. Determined to obtain a useable
statement from her, the RCMP asked Ms. E to come to RCMP HQ, where she was
interviewed for almost six hours, leading her to believe, as she later claimed,
that she would not be allowed to leave until she provided a statement.
The impact of this bull-headed approach was counterproductive. Ms. E eventually
sought psychiatric help, alleging that “…the police were putting words in her
mouth and making her sign documents,” a statement hardly likely to improve
the credibility of any statements the police would subsequently seek to rely on
in court. Undeterred, the police continued to drop in on her even after she
retained a lawyer and required the RCMP to go through him.
While the safety of its sources should have been of the utmost concern to
the RCMP, it often displayed a seemingly callous attitude towards its sources
and resented their reluctance to help. In response to CSIS concerns about the
inherent risk of the plan to send Tara Singh Hayer to England in order to have
him gather evidence about Bagri’s purported confession, the RCMP retorted
that Hayer was a “grown man” and could make his own decisions. When Hayer
changed his mind about participating in the plan, deciding not to act as an agent
for the RCMP, some RCMP members interpreted his decision as an indication of
his being unreliable and opportunistic.
The RCMP’s approach to sources was heavily influenced by its hyper focus on
“evidence”. In contrast to CSIS, which felt intellectually compelled to pursue
each interesting piece of “intelligence”, the RCMP viewed its mandate as limited
to the pursuit of “evidence.” In practice this meant that the RCMP tended to lose
interest quickly in information that did not seem potentially useful as evidence
for securing a conviction in court.
�Chapter III: Historical
RCMP Officers flew to India to meet with Pushpinder Singh, the ISYF leader who,
at the time of the bombing, had been described as “one of the most important
Sikh terrorists in the world,” and who was alleged to have stated at the Khurana
meeting two weeks before the bombing: “Wait two weeks and something big
will happen.” Once there, they concluded that any statement Pushpinder Singh
was likely to make would be “totally exculpatory.” On that basis they decided
not to attempt to take a statement from him and for the time being to take no
further action.
The deep suspicion of human sources, which was probably the result of the
RCMP’s routine dealings with the criminals and jailhouse informants who made
up its usual sources, could lead to a premature dismissal of information based
on preliminary assessments of credibility. Human sources who were looking to
exchange information for a benefit were treated with special disdain, in part
perhaps because of the RCMP view that witnesses should come forward out of a
sense of civic duty and in part, no doubt, because such information is potentially
vulnerable to aggressive cross examination when tendered as evidence in court.
On the other hand, the information might just be true.
Time and again in the Air India investigation, the RCMP came down on the side
of scepticism based on a superficial assessment of credibility, which led them to
dismiss information long before its truth could reasonably be assessed.
When Person 1 provided information to the RCMP in the pre-bombing period
about a plot to bomb an Air India plane, his information was quickly discounted,
as investigators assumed that he was providing it only to further his own personal
interests. This suspicion persisted even after the bombing, and in spite of the
fact that the same information had been reported independently by another
individual. It took months before the RCMP finally followed up with Person 1,
whose information was ultimately verified by a polygraph examination.
In the case of Ms. E, before finally deciding to pursue her remorselessly to get
her to testify, the RCMP had repeatedly found reasons to discount her value as
a source of possible evidence. At first, though they believed her to be Bagri’s
mistress, the RCMP assumed that Bagri was unlikely to have discussed anything
of importance with her. Later, officers cited her reluctance to admit her alleged
affair with Bagri and her fear that it would be made public, as well as her
unwillingness to testify as reasons to discount her. It was not until other RCMP
investigators approached her by coincidence as part of a source development
project in 1991 that the RCMP began to warm to the idea that she might be
a useful witness. Despite the inconsistencies in her statements noted by the
RCMP during its sceptical phase, she would ultimately become the Crown’s key
witness against Bagri at trial.
In yet another example of the RCMP’s pursuit of “ready evidence,” after the
RCMP fought for months with CSIS over access to Mr. A, RCMP officers finally got
the opportunity to meet with him. Then, after speaking to him for 15 minutes,
during which he claimed that he had no “direct knowledge” and said he was
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concerned for his safety, the officers wrote him off as having no immediate
value to the investigation and concluded that no further follow-up in relation to
this source was required at E Division. The RCMP did not consider the possibility
that using Mr. A to develop intelligence could open doors in the investigation
that might allow the potential gathering of evidence in the future.
Part of the RCMP’s reluctance to deal with Mr. A was also based on a perception
that he was an “opportunist,” as he would not disclose the full extent of his
information without a benefit for himself. Whereas the RCMP often engages
in negotiations with, and provides benefits to, informants involved in criminal
activities, it seems that in the counter-terrorism context, the RCMP expected
that sources with criminal information would act altruistically and freely disclose
their information to police, without benefits to themselves and without regard
to their personal safety.
A similar pattern can be seen in the RCMP dealings with Mr. G – an important
figure in the Sikh extremist movement in 1985 – whom the RCMP suspected
might have had information about the bombing. When Mr. G informed the
RCMP he was willing to provide information, but not to testify, the RCMP
decided that it could not consider providing any concessions to him unless he
provided “…full and complete co-operation of an evidentiary nature.” When in
1997, Mr. G agreed to testify, asking only for protection for himself and his family
in exchange, the RCMP still held back, insisting that he first needed to provide
a statement that could be evaluated by the Crown before any commitments
would be made.
The RCMP’s pursuit of “ready evidence,” and lack of interest in what it viewed as
“intelligence,” seems to have led it to prematurely cut off avenues of investigation
that could have led to a deeper understanding of the Air India conspiracy and
the persons involved. On August 26, 1988, Hayer was the victim of a vicious
attack that left him in a wheelchair for the rest of his life. Harkirat Singh Bagga
visited the Indo-Canadian Times office and shot Hayer three times. Bagga
initially identified Bagri as having put him up to the crime, but later retracted
his statements and pled guilty to the crime. RCMP investigator Solvason, as well
as the Hayer family, expressed the view that there were other extremists who
had put Bagga up to the shooting and that the investigation had an important
national security dimension. However, there was no willingness at the E Division
Air India Task Force to take the case on. Following an investigation by the Surrey
Detachment, Bagga was convicted of attempted murder. It was the family’s
view that, at that point, the RCMP simply closed the file in relation to this matter.
They testified that this decision was emblematic of the Task Force’s failure to see
the bigger picture in relation to Sikh extremism. It was only in the late 1990s
that the Air India Task Force finally got involved in the investigation of the Hayer
shooting. Once the Task Force began looking to establish a motive for Bagri to
have conspired with Bagga to murder Hayer, it discovered information showing
that Hayer had publicly pointed to Bagri as responsible for the Air India bombing,
even mentioning an alleged confession, shortly before the shooting.
�Chapter III: Historical
3.9.4 Lack of Effective Source / Witness Protection
Not surprisingly, given the RCMP’s failure to appreciate the continuing threat of
Sikh extremism, it had a poor record in terms of responding to threats directed
at both sources and potential witnesses in the Sikh community.
Of the three individuals who were to be the key witnesses at the Air India trial,
one was murdered before the trial began, one feigned memory loss because
she was too scared to testify about the knowledge she had previously claimed
to have, and one was forced to enter the Witness Protection Program two years
earlier than planned and felt that her life was ruined.
As with the other aspects of its dealings with Ms. E, the RCMP’s response to
her stated fears for her own safety and that of her family were insensitive and
ham-handed. The RCMP had few effective strategies for dealing with reluctant
witnesses who feared for their safety.
The RCMP speculated that Ms. E’s reluctance to cooperate was more the result of
concern that her alleged affair with Bagri would become publicized than of any
genuine fear of a threat Bagri might pose to herself and her family. The irony of
the RCMP’s belief that Bagri was one of the key masterminds in the worst terrorist
attack in Canadian history alongside its questioning of the genuineness of Ms.
E’s fears was apparently lost on its members. The same scepticism about her
fears, combined with the familiar fear of compromising credibility by offering
a “reward,” would seem to explain the view expressed by the current head of
the Air India investigation that discussing possible source or witness protection
measures with Ms. E would have been premature until the RCMP had obtained
statements about the full extent of her knowledge, since it was important to get
the source’s “evidence” prior to offering her any “incentives.”
It was not until after the murder of Tara Singh Hayer, in November 1998, that Ms.
E was informed of examples of specific safety measures that could be provided
to her for protection, all of which she then declined.
At trial, Ms. E was ultimately left with the onus of personally applying for a
publication ban on her name, with both Crown and defence taking no position
in relation to the application. By this point in time, Ms. E was no longer on
speaking terms with the RCMP. She was so concerned for her safety that she
feigned memory loss, leaving the Crown with only the flawed reports written
by Laurie through which to try to enter into evidence the information she had
provided.
In some cases, the difficulty the RCMP experienced in appropriately responding
to the threat to potential witnesses may have been the result of a lack of
centralization in the RCMP investigation. This certainly appears to have been a
factor in the lack of adequate protection for the identity of Ms. D, who was the
Crown’s key witness against Malik at trial. Ms. D initially approached CSIS with
information about Malik in the late 1990s and was promptly turned over to the
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RCMP. Some of her information related to frauds at Malik’s Khalsa School, which
the RCMP decided to refer to its commercial crime section while the Air India
Task Force continued to stay in contact with her. The commercial crime section,
perhaps unaware of the nature of Sikh extremism and seriousness of the threat
faced by Ms. D, allowed Ms. D’s name to be released when it inadvertently left
a warrant application in connection with its investigation unsealed. Once the
fact that she was providing information to the RCMP was revealed publicly, Ms.
D had to enter into the Witness Protection Program over two years earlier than
would have otherwise been necessary, exacerbating the disastrous impact that
the Witness Protection Program has had on her life. Ms. D felt that her “whole life
[was] ruined,” as she lost the opportunity to watch her eldest son grow up and
her youngest son lost the opportunity to be with his brother and father.
Serious as these failures undoubtedly were, nowhere are the RCMP’s failures
to protect its potential witnesses more dramatic than in relation to Tara Singh
Hayer. Hayer’s family testified as to the difficulty in getting the RCMP to take
threats against Hayer seriously, even after two attempts had been made on his
life. When Hayer provided the RCMP with a letter containing threats against
him, the RCMP became fixated on an analysis of whether “overt threats” were
being made as the basis for assessing the seriousness of these threats, an
analysis reminiscent of the similarly undue and mechanical reliance placed by
government agencies on the concept of “specific threat” to explain away the
importance of pre-bombing threat information. Despite the statement “…[s]
ometimes I think what a big mistake he did who just made you handicapped.
Well that’s okay there is delay but not darkness at God’s house,” and despite
the reference to big “punishment”, the RCMP concluded there were no overt
threats in the letter and thus nothing further needed to be done. It took the
intervention of the Ministry of the Attorney General of British Columbia (BC) to
get the RCMP to take action.
This, apparently obtuse, initial response to the threat against Hayer may in part
be explained by the fact that, because there was no centralized coordination
of threat information, the unit that first dealt with the threat was unaware of
previous threats to Hayer or of the fact that Hayer had in the past been the
subject of a murder attempt. While this may serve in some measure to explain
the response, it also demonstrates the inadequacy of RCMP information
management about threats. Indeed it appears that, rather than centralize and
coordinate such information, the RCMP practice was often to purge it from the
records.
The RCMP had difficulty providing Hayer with protection while respecting his
autonomy. Hayer was committed to continuing his journalistic work and thus
he did not consider entering a witness protection program to be a viable option.
The RCMP invoked resource constraints to explain its inability to provide Hayer
with constant personal security, apparently believing that there was no other
alternative that could have kept Hayer safer while allowing him to continue
living his life as normally as possible.
�Chapter III: Historical
After a period of escalation of threats, and after Hayer’s name appeared on a
“hit list,” the RCMP finally installed video surveillance at Hayer’s residence in
July 1998. But the equipment installed was totally inadequate. Because of
a unilateral RCMP decision not to drill holes in the residence, the equipment
ceased working when its antenna was not kept in a particular position. To make
matters worse the Hayer family was not informed of this fact, and was unaware
of the steps necessary to ensure that the equipment would function properly.
When Tara Singh Hayer was brutally murdered in his garage in November 1998,
the equipment was not functional. Only “snow” was recorded on the video
cassette and no footage could be recovered. Prior to appearing as witnesses
before this Inquiry, Hayer’s son and daughter-in-law were unaware that the
video surveillance system had failed. When in the past the family had asked the
police if they could view the surveillance tapes, they had been told that this was
not possible due to the “ongoing investigation.” The murder of Hayer occurred
ten years ago. The individuals responsible have still not been identified and
brought to justice.
The final accounting of what occurred in relation to these three key human
sources of information about the Air India bombing is disturbing. In light of
the RCMP’s woeful failure to protect these and other individuals, along with
its mechanical, aggressive and uncoordinated approach, it is no wonder that
the RCMP experienced significant difficulty in penetrating the Sikh community.
There is a reasonable limit to how much any individual citizen can be expected
to sacrifice in support of the pursuit of justice.
3.10 RCMP Investigation
The RCMP has long insisted that, though the security intelligence function was
transferred to CSIS, it had to maintain responsibility for, and control of, national
security criminal investigations. The RCMP pointed to CSIS’s lack of mandate
and lack of expertise in the conduct of criminal investigations as a prime reason
why the RCMP should be involved in cases involving potential criminality early
on, and why the RCMP should take over the investigation of all criminal offences
involving national security, such as terrorism.
However, when the RCMP did become responsible for the Air India criminal
investigation, the challenge of uncovering and bringing to justice those
responsible for this unprecedented act of terrorism proved more difficult for the
Force than perhaps had been expected. Conducting this terrorism investigation
with international ramifications necessitated working without the ready
availability of forensic evidence about the crash of Flight 182, and required the
gathering of intelligence in a community and about a phenomenon not well
known to the RCMP or well understood by its officers.
Rather than adapting its approach and methods to the unique national security
aspects of the case, the RCMP maintained its traditional focus on obtaining
ready “evidence” and applied a rigid standard of credibility or evidentiary value
to potential investigative leads.
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The RCMP was unable to suspend the evaluation of the information it compiled
until it had accumulated a meaningful amount of information from various
sources and instead prematurely discounted information, such that it was never
able to accumulate enough pieces to complete the puzzle. Very early on in
the investigation, the RCMP developed a theory of the case, and from then on
quickly discounted potential leads or pieces of the puzzle that did not appear
to fit.
Overall, the RCMP was unable to incorporate an intelligence-based approach to
the investigation.
3.10.1 National Security without Intelligence Gathering
From the outset of the Air India and Narita investigations, the RCMP’s view
was that there had been one plan to execute two concurrent acts of terrorism
against the Indian government, in which the key participants were Parmar, Bagri,
Gill, and Johal – with Inderjit Singh Reyat used in the plot for his bomb-making
expertise and access to materials. Given the results obtained in Narita – which
had a readily available crime scene and in which Reyat was ultimately convicted
for manslaughter only – it should have been clear to the RCMP that in order to
get to “the brains” of the operation, something more than a purely forensic or
“yellow tape” crime scene-oriented type of investigation was needed.
However, challenges were encountered from the beginning. Even assembling
the E Division Task Force to investigate the bombing was difficult. Not only did
Federal operations RCMP members lack experience in homicide or other major
crimes investigations, but investigators generally had no training in the area of
terrorism/extremism investigations, no understanding of Sikh extremism, and
only one or two members could speak Punjabi.
RCMP management was unsupportive of the type of investigative initiatives
that would have been required to investigate such an exceptional case. When
investigators suggested a re-orientation of the investigation towards a conspiracy
approach or attempted to engage in intelligence-connected endeavours – such
as source development and strategic prosecutions – management was unable to
appreciate the value of these pursuits and actively discouraged the initiatives.
The perceived difficulties in solving the Air India bombing led the RCMP to
devote fewer resources, rather than more, to the investigation, and it increasingly
focused its resources and energy on Narita. By the late 1980s, the Air India file
at E Division was being handled by a unit for which the investigation was one
assignment among many others. At one point, it was assigned to a single person,
who coordinated recovery attempts of the wreckage of Flight 182 and took care
of file administration. There was a formal attempt by E Division management to
shut down the Air India investigation. Not surprisingly, morale became a very
serious issue and the work environment became “poisoned.”
�Chapter III: Historical
Structurally, RCMP decentralization made it difficult for the Force to achieve
central coordination of the investigation and to see the broader picture emerge.
RCMP Divisions were not accustomed to involving HQ in operational decisions
and HQ personnel had no formal line authority over members in the Divisions.
“Directives” issued by HQ were generally taken as suggestions and were often
unwelcome. The Divisions only informed HQ of what they thought HQ should
know. Answers to HQ’s questions, when and if they were provided, were often
superficial.
With this structure and approach, the RCMP was frequently unable to recognize
the value of the information in its possession. Often, RCMP investigators simply
could not access all the pieces in the RCMP’s possession because of the manner
in which the information was filed. There were ultimately numerous and
extensive file reviews, but no ongoing summary of the Air India file was created.
Investigators could not easily gain an overview of the file. With the high rate
of turnover on the Task Force, maintaining continuity in the investigation was
difficult. The filing system itself did not help put information together. Due
to the multiple filing systems across the country, investigators had to search
multiple databases – sometimes in different geographic locations – to find all the
relevant information. Given the difficulties in storing and retrieving information,
important information was at times misplaced, lost, and even destroyed.
Even when information was accessible, the lack of an intelligence orientation in
the investigation meant that no one even thought to access it. The information
accumulated by the RCMP in the pre-bombing period about threats to Air India,
about the individuals who were likely to attack Indian interests in Canada and
about the modes of attack that were possible, was never accessed in the postbombing period. As a result, the June 1st Telex – which provided information
about the June 1985 threat of sabotage with time-delayed devices concealed in
luggage – was never looked into by the Air India Task Force, nor were its origins
investigated.
Even when RCMP investigators did find new information and began to examine
it, the information was often discounted – precisely because so many other
pieces of the puzzle which had been uncovered before had already been
discounted, lost, or buried in files that were never reviewed.
Very little progress had been made in the investigation by the early 1990s. Current
Deputy Commissioner Gary Bass was asked in 1995 to examine the investigation
that had been done to date and to advise whether there was anything else that
could be done in the investigation, which had seemingly reached an “impasse.”
He decided to re-orient the investigation towards a conspiracy approach, place
experienced members on the file, create a dedicated task force, and implement
new intelligence-led investigative strategies. The investigation, and the ultimate
decision to take the matter to prosecutors, proceeded largely, and at times
exclusively, on the basis of information that had been in the RCMP’s possession
all along, but which was finally being examined in a new light. What could have
been done 10 years before was finally done in 1995. Some of the information
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dismissed by the RCMP over the years in its pursuit of its primary theory of the
case continues to raise questions to this day.
3.10.2 Premature Dismissal of Intelligence and Theory of the Case
The RCMP demonstrated an insufficient ability to recognize the significance
of intelligence or to correlate all the relevant information. As a consequence,
the RCMP deprived itself of a great deal of important additional information,
as it made decisions to delay or not to follow up on leads and continued to
discount the value of some of the information it was receiving. Assuming, as
the RCMP has certified, that the Commission has been provided with all relevant
documentation, the RCMP’s follow-up investigation in relation to a number of
leads raises questions.
Within the first few months of the investigation, the RCMP developed a theory
of the case in terms of the main suspects, the motive, and the modus operandi
of the crime. By August 1985, the RCMP’s investigative efforts were focused on
demonstrating that the Air India bombing had been perpetrated by the Babbar
Khalsa (BK) – masterminded by Parmar, with the assistance of Bagri, Gill, Reyat
and Johal.
However, immediately after the bombing, the RCMP suspected the involvement
of members of the International Sikh Youth Federation (ISYF) – an historically
violent organization that had been proscribed in India because of its bombing
assassinations of Sikhs and Hindus. The ISYF was one of the three organizations
that had claimed responsibility for the attack on Air India Flight 182. Members
of the ISYF had been present at the June 12, 1985 meeting at the home of
Sarbjit Khurana, where ISYF leader Pushpinder Singh was alleged to have
commented that something big would happen in two weeks to show the
Indian government that they were serious. Khurana reported the information
about the “wait two weeks” comment allegedly made by Pushpinder Singh to
Vancouver Police Department Detective Don McLean immediately after the
meeting, approximately two weeks before the bombing, and McLean had no
doubt that Khurana had been telling the truth.
The RCMP initially focused its efforts on the surveillance of ISYF members who
had been present at the Khurana meeting. Extensive coverage of Lakhbir Singh
Brar, another ISYF leader who accompanied Pushpinder Singh to the Khurana
meeting, began by the RCMP in late June 1985. However, in mid-August 1985,
the RCMP decided that its focus on Lakhbir Singh Brar should be discontinued
and efforts re-focused on Parmar and associates since Lakhbir Singh had not
demonstrated any involvement in criminal activity. The RCMP theory that the
Air India bombing was an act of the BK alone soon became firmly entrenched.
From that point on, information implicating other groups or individuals not seen
to be directly connected to Parmar and his BK associates was often consigned to
the RCMP’s category of “alternative theories” and was not intensively pursued.
�Chapter III: Historical
The view that the Air India bombing was an act of the BK alone appeared to
affect the RCMP’s follow-up on the Pushpinder Singh comment, in spite of its
clear intelligence value and even though the involvement of the BK in no way
excluded the possibility of ISYF involvement. In fact, Khurana had reported that,
during the meeting at his residence, Pushpinder had praised Parmar, had said
that he had met with him the previous week, and had indicated that he was using
him to bring all Sikhs in the lower mainland together. The persistent refusal to
explore the possibility that other organizations, such as the ISYF, had worked
in conjunction with the BK is difficult to understand in light of the fact that, in
the course of subsequent RCMP investigations into terrorist plots involving the
Babbar Khalsa in 1986, the RCMP became seriously concerned that the BK and
ISYF had been consolidating their efforts within Canada and had been working
together in furtherance of their separatist goals.
When an RCMP HQ analyst showed interest in Pushpinder Singh and raised
questions about the possibility that the BK and ISYF had worked together in
relation to the Air India bombing, the response of E Division was dismissive and
even hostile. E Division complained in effect that HQ was wasting its time with
fanciful theories.
The RCMP’s efforts to follow up on the Khurana information after the bombing
were heavily and inexplicably focused on pursuing an exact translation of the
Khurana tapes that would verify the alleged comment. Early RCMP translations
of the Khurana tapes, which were based on extremely poor quality of recording,
had revealed portions of conversations containing ominous remarks, including
the comment that “…it may take two weeks, a few months, or a few weeks and
then we will do something….” In spite of these early translations, which appear
to support Khurana’s statement, the RCMP seems to have simply accepted CSIS’s
view that the only conversation of interest on the tape was about the goal of
bringing Sikh groups together. The RCMP later flatly told Rae that the “wait two
weeks” comment had not been recorded. No mention was made of the early
RCMP translations.
The pursuit of any possible ISYF connection had become so low a priority
after the re-orientation that, aside from the early surveillance, no follow-up to
determine Pushpinder Singh’s possible involvement in the Air India bombing
had been commenced by the RCMP over a year after the bombing. When the
RCMP learned that Pushpinder Singh had been arrested in India in early 1987,
no attempt was made to interview him at that time; on the basis that such action
was deemed to be “premature.” When an RCMP team traveled to India in January
1988, Pushpinder Singh was finally interviewed. The interview consisted of
asking him, point blank, for information about his knowledge of, or responsibility
for, the Air India bombing. When Pushpinder Singh, not surprisingly, displayed
an apprehensive and defensive attitude, the Force concluded he was not
forthright and stopped pursuing the matter. Pushpinder Singh offered to take
a polygraph about his involvement in the Air India bombing, but the RCMP did
not follow up because of the difficult logistical arrangements that would have
been necessary in India and, remarkably, because it was felt that he might well
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have passed the test. Very little investigation took place over the next seven
years. It was not until 1995, when the file was reviewed in preparation for the
10-year anniversary of the bombing and a revived Task Force was constituted,
that further investigation of Pushpinder Singh’s possible role took place.
So complete was the RCMP’s dismissal of a possible ISYF connection in relation
to Air India that, prior to 2001, Lakhbir Singh Brar had never been interviewed
as a potential witness or suspect regarding Air India, despite his frequent
association with Babbar Khalsa suspects, despite the fact he had been involved
in the Khurana meeting, and despite the RCMP’s initial focus on his activities.
In May 1997, the RCMP received information that called into question the official
version of the circumstances surrounding Parmar’s death in India in 1992, which
was originally reported to have been the result of a “shoot out” with Indian
police. The new information revealed the existence of a confession that was
purported to have been made by Parmar prior to his death. The RCMP received
information from a number of sources that Parmar had died while in the custody
of the Punjabi police who had interrogated him and extracted information
about his activities, including some information about the Air India bombing.
The sources told the RCMP that Parmar had indicated that the identity of Mr.
X, the third individual who had accompanied Parmar and Reyat to the Duncan
Blast site, was Lakhbir Singh Brar – a member of the ISYF, and that Lakhbir Singh
had also purchased the ticket in the name of “L. Singh.”
Lakhbir Singh was finally interviewed by the RCMP in 2001, when he surfaced as
an applicant for Canadian immigration in Pakistan. The RCMP did not interview
him solely because of the purported confession. Indeed, Lakhbir Singh was “…
well on his way to elimination [as a suspect by the RCMP] before these interviews
took place.” Investigators felt that the information contained in the purported
Parmar confession was problematic in that it did not accord with information the
RCMP already had on file. Much emphasis was seemingly placed on information
investigators had about Lakhbir Singh’s age, which was felt to be incompatible
with the observations that the CSIS surveillance team had made of Mr. X during
the Duncan Blast. According to the RCMP’s information, Lakhbir Singh would
have been 33 years old at the time of the bombing. Information uncovered by
the Commission called into question the RCMP conclusion about Lakhbir Singh’s
actual age. Certainly, the extent of reliance placed on conclusions arising from
CSIS surveillance information was questionable given the multiple instances in
the pre-bombing period of misidentification by CSIS of individuals of a different
race from their own.
The RCMP’s “evidentiary” focus also meant that the RCMP’s initial assessment
that Person 1 and Person 2 lacked credibility was used to justify its failure to
follow up or even adequately to report information about the November Plot
in the pre-bombing period. After the bombing, the scepticism continued, and
this meant that the RCMP failed to follow up on the information in a timely
way despite the potential connections with the Air India bombing. The RCMP
viewed this matter as totally unconnected to the Air India case, and dealt with
�Chapter III: Historical
inquiries about it as merely tying up “loose ends,” for purposes of confirming the
main theory of the case. HQ sent information requests aimed at exploring the
possibility of a connection, but E Division often simply failed to answer.
Of course, it was only by investigating the information as it presented itself that
any connections with the Air India bombing could have been discovered. It
was no surprise that such connections were later discovered when HQ finally
received from CSIS the information E Division failed to provide about Person
2’s associates: at least one of whom had connections to the Babbar Khalsa.
Telephone records reveal that calls had been made from the home of Person
1 to Inderjit Singh Reyat, the Air India bomb-maker, the day after Person 2 was
arrested in October 1984.
It was not until media reports in 1986 described the November Plot information
as a forewarning of the Air India bombing that the RCMP had received and
ignored, that the investigation into this matter truly began in earnest. Even
when RCMP analysts did begin to recognize the potential relevance of the
November Plot information and the significance of the fact that the information
had been provided by two separate sources prior to the Air India bombing, the
follow-up investigation continued to be tainted by the initial RCMP assessment
that the information lacked credibility and by the view that any November Plot
connection did not fit with the RCMP’s theory of the case.
When the RCMP began to make inquiries about “Z”1, who had been identified
by Person 1 and Person 2 as having potential involvement in the November
plot, it was learned that he had departed Canada for India and had not since
returned. In 1988, “Z” was charged in an unrelated matter and arrangements
were made for him to provide a polygraphed statement about the November
Plot in exchange for a reduction in his sentence. He provided an exculpatory
statement. Although the RCMP told Rae that “Z”’s polygraph “verified” his
information, the Commission discovered in the course of this Inquiry that Z’s
polygraph examination had, in fact, been inconclusive in part. Despite the fact
that the test was incompatible with Person 1’s polygraph test, which he passed
in its entirety, the RCMP concluded that “Z” was not involved in the Air India
bombing.
When the RCMP began to investigate the possible involvement of “W”, an
individual identified by Person 2 as having had possible involvement in the plot,
and identified by Person 1 as likely having been responsible for the calls made
from his home to Reyat, it emerged that “W” had been involved in the past with
Parmar, Gill, and Reyat, the RCMP’s main suspects in the Air India bombing. “W”
was a member of the ISYF and admitted to the RCMP that he would be willing
to “do anything” to avenge the death of his relatives in the Punjab. He also
told police that, in the past, he, Parmar and Gill had been planning on “doing
something” in India. In spite of this startling information, it is not clear what, if
anything, the RCMP did to further pursue the possibility of “W’s” involvement.
1
This is not the same individual as “Mr. Z”, a CSIS source who also provided information to the RCMP.
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Perhaps because of the difficulties it experienced in managing an investigation
of this magnitude, the RCMP sometimes prematurely discounted or failed to
follow up – even on information that was consistent with its principal theory
of the case. When Tara Singh Hayer provided information in 1986 about Bagri’s
alleged confession in England that he had been responsible for taking the
bomb-laden luggage to the airport, Bagri became an important RCMP suspect.
Nevertheless, the RCMP did not go back to pursue Ms. E, whom investigators
had identified in 1985 as potentially being Bagri’s mistress. The RCMP also did
not pursue CSIS’s cryptic references in 1987 to a Vancouver source who had been
approached by Bagri to borrow her car and take it to the airport the night before
the bombing. In 1989-90, during the Watt MacKay file review, this information
was finally re-evaluated, leading the RCMP to understand that the person in
question was Ms. E.
Information received from Mr. Z in 1986 about individuals connected to Bagri
who were identified as potentially having involvement in the delivery of the
luggage on Bagri’s behalf was not followed up until 1987. Even then, the followup was less than enthusiastic. The 1987 investigation of Mr. Z’s information
consisted of having officers observe the individuals named by Mr. Z and compare
their appearances to the composite of “M. Singh,” that had been created by the
RCMP on the basis of information provided by Ms. Jeanne (“Jeannie”) Adams,
the check-in agent for CP Air in Vancouver. They concluded that the suspects
did not match the drawing.
The RCMP’s quick discounting of the Mr. Z information is puzzling for a number of
reasons. The currently accepted theory is that two individuals, the so-called “M.
Singh” and “L. Singh” were responsible for checking in the luggage containing
the explosives on June 22, 1985. Adams was only able to recall the check-in of
“M. Singh,” and thus could not provide information about L. Singh’s appearance.
To discount the possible involvement of individuals on the basis of a composite
for only one of the two suspects seems unusual. It’s also unclear how much
reliance should have been placed on the “M. Singh” composite produced by the
RCMP. Though Adams had provided a number of different descriptions to the
RCMP, she also stated that she did not recall the suspect’s face. More importantly,
she said the composite drawing that the RCMP had produced was not correct.
Even more remarkably, the factor used to rule out the suspect - two years after the
events and on the basis of comparing his appearance to an imprecise drawing
- was the observation that he was “different by his hair,” as it appeared to be
combed straight back, and was “not wavy and not parted on the left side.” After
making these observations, officers concluded that there would be no further
investigation of the file unless CSIS provided further information to substantiate
the Mr. Z information.
In early 1988, the RCMP met with some (but apparently not all) of the individuals
identified by Mr. Z as having possible involvement. Again, the RCMP discounted
the potential involvement of these individuals on the basis of the “M. Singh”
composite, as well as on factors such as the level of English spoken by the suspects.
�Chapter III: Historical
Though at least one suspect had indicated a willingness to be polygraphed,
none was asked to undergo a polygraph test and these “interviews” apparently
put an end to any follow-up investigation in relation to the Mr. Z information.
The interviews were taped, but the tapes were destroyed for unknown reasons
and no transcripts were ever made. No further investigation of this matter was
conducted until close to a decade later, at which point some of the suspects
were finally subjected to polygraph examinations.
The RCMP’s approach to its post-bombing investigation must be kept in mind
when evaluating the Force’s strong criticism of CSIS and of its failures to share
information post-bombing. The manner in which the RCMP conducted the
investigation, both in terms of its relationship with sources and its follow-up on
leads, might naturally be expected to have an impact on CSIS’s willingness to
share information. At the same time, this consideration does not exonerate CSIS
in its information-sharing practices.
3.11 The Sharing and Use of CSIS Information
The Air India investigation raised the question of the limits to the protection
that CSIS information could legitimately receive in the face of the imperative of
prosecuting those involved in the murder of 331 persons. Too often, informationsharing disputes prevented a proper balancing from being properly carried out,
as CSIS and the RCMP debated everything except the real issues. The RCMP
experienced frustration because of CSIS’s refusal to provide information based
on legalistic distinctions between “raw material” and “information” and its
practice of answering RCMP questions in the narrowest manner possible. CSIS,
meanwhile, was unable to gain any comfort that its sensitive information would
not be made public by the RCMP. Each agency exaggerated the public interest
that corresponded to its particular interests, with the RCMP generally claiming
that every piece of information was essential to the investigation and CSIS often
taking the initial position that disclosing the requested information was too
dangerous to its operations. Too often, no real analysis was conducted on either
side and the agencies came to have little respect for each other’s broad claims
and assertions.
3.11.1 Early Access to and Use of CSIS Information
CSIS did not, as a matter of policy, retain the tapes made from intercepted
communications, and routinely erased them following translation and
transcription. By July 1985, the RCMP was aware that CSIS had been
intercepting Parmar’s communications since before the bombing, and the Task
Force requested direct access to the materials at that time. Although the RCMP
continued to seek access to the tapes, and the Crown counsel assigned to the
investigation directed the RCMP to seek their retention, the Task Force did not
make a written request to CSIS for the preservation of the tapes. The erasures
of the pre-bombing intercepts continued. Indeed, CSIS continued to erase the
tapes of its ongoing post-bombing intercepts of Parmar’s conversations until
the Department of Justice ordered a stop to the erasures in February 1986.
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While the RCMP Task Force obtained access to CSIS reports containing
summaries of the available intelligence during the early days of the
investigation, requests for raw data such as underlying surveillance reports,
interview notes, or intercept logs were generally met with resistance by CSIS.
Continuing policy debates at CSIS about the terms and extent of RCMP access
resulted in a “revolving door” of changing rules, marked by intermittent access
punctuated by abrupt interruptions and long periods without access to any
information.
An RCMP affidavit in support of an application to intercept the
communications of Parmar and other key Air India suspects was sworn on
September 19, 1985. It made extensive use of CSIS information and also made
reference to the problems experienced by the RCMP in gaining access to CSIS
materials. Use of CSIS information in warrants raised the possibility that these
warrants would be challenged in court in such a way as to expose the CSIS
information publicly. CSIS reacted to the use of its information by revoking
RCMP access to the Parmar logs and by placing additional restrictions on access
to its information. When the RCMP wanted to use CSIS information in support
of a search warrant application, CSIS stipulated that the RCMP had to hide the
fact that CSIS was the source of the information, which raised concerns that
the RCMP’s legal position in any eventual prosecution could be compromised,
given the legal need to be forthcoming in warrant applications.
It was not until October 1985 that the RCMP learned that CSIS had erased the
tapes on which its Parmar intercept logs were based. It was only in December
1987 that CSIS formally acknowledged that the Parmar tapes had been destroyed,
and it would be years before the question of why the tapes were erased – and
of whose responsibility it had been to ensure their preservation – would begin
to be answered.
Over time, the back and forth recriminations between CSIS and the RCMP
distorted perceptions and led the RCMP to take the position that, due to
a lack of information about CSIS’s investigation, the Force focused its early
investigation on, and obtained intercepts on, the “wrong targets.” According
to this revision of history, without access to CSIS intercepts, the RCMP did not
know that Parmar was to be a primary suspect. This is not the case. The RCMP
was aware of Parmar as a prime CSIS target early in July 1985, and even had
access to reports containing some of Parmar’s conversations, that it later viewed
as providing key indications of his involvement in the conspiracy. The debate
was not about a lack of awareness of CSIS information, but about the ability to
access and use “raw” information contained in the CSIS translators’ notes and
intercept logs in support of RCMP warrant applications or prosecutions. This
confusion demonstrates precisely the muddling of the issues of access and use
that plagued the agencies’ relationship throughout.
3.11.2 The Reyat Trial and Beyond
Between July 1985 and October 1991, James Jardine (now a judge of the
Provincial Court of British Columbia) was the Crown Counsel involved in the
�Chapter III: Historical
Air India and the Narita investigations. He was involved in the prosecution of
Parmar and Reyat in connection with the Duncan Blast charges and later in the
prosecution of Reyat in connection with the Narita bombing. He transmitted
numerous requests to the RCMP for access to CSIS information, including
requests for explanations about CSIS policies and procedures for the processing
of the Parmar tapes as well as a reliable accounting of their destruction. Jardine
testified that CSIS’s relationship with him was not open or cooperative, and that
CSIS was not forthright.
Jardine was worried about the possibility of defence challenges to the search
warrant used to seize key items of evidence from Reyat’s home, given that the
warrant application relied on CSIS information but concealed CSIS’s role as a
source. He was also concerned about potential abuse of process arguments
being made by the defence because CSIS’s erasure of the Parmar tapes made
it impossible to disclose this possibly relevant material to the defence. The
Crown would need to show that the erasures had been done innocently, and
Jardine believed he required more CSIS information in order to do that. Despite
numerous high-level meetings intended to resolve the issues, Jardine did not
obtain the totality of the information he sought from CSIS until 1991.
In his March 1991 decision in the case against Reyat, Justice Paris stated that
it was clear that the tape erasures occurred strictly as a result of the routine
application of administrative policy and that there was no question of improper
motive. However, in the Air India trial, Justice Josephson found, following a
concession on the point by the BC Crown prosecutors, that the CSIS erasure
of the Parmar tapes was unacceptably negligent. The evidence before the
Commission justifies the latter conclusion, even though CSIS did not repeat its
concession regarding this negligence in these proceedings
The Commission found no evidence that CSIS deliberately attempted to
suppress evidence by erasing the Parmar tapes. Rather, CSIS personnel handling
the Parmar intercepts seemed to have been operating in “default mode,” erasing
tapes regardless of their content and without any awareness of the applicable
retention policies. Although these policies were somewhat vague, had they
been applied they may have led to the preservation of at least some of the
tapes.
With the tapes erased, only the translators’ and transcriber’s original notes
were available to the RCMP. While CSIS continues to claim that there remains
no reason to suspect that the erased tapes contained information about the
planning of the Narita and Air India terrorist attacks, a review of the original
intercept tapes would, at the very least, have yielded a better understanding
of how Parmar employed coded language. Without the tapes, it is simply
impossible to determine what information, if any, was lost due to the Parmar tape
erasures or the potential importance of that information to the investigation
and prosecution of the Air India and Narita bombings. It is clear that CSIS
did not take the necessary steps to properly educate and train the translators
and transcribers for this investigation, and this fact leaves the quality of CSIS’s
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analysis of the intercepts in a state of uncertainty. Even worse, as inadequate
records were kept throughout the processing of the Parmar tapes, it remains
uncertain whether all of the tapes were even listened to prior to being erased.
CSIS officials have pointed to the conviction of Reyat on manslaughter charges
as a signal of success in the RCMP-CSIS relationship. If it was a cooperation
success, it was one that was achieved only after a great deal of posturing and
delay. Another success of sorts occurred at the Air India trial, where, despite the
finding of “unacceptable negligence,” at least the trial itself was not cratered by
disclosure issues, though in the end the prosecution failed on other grounds.
These “successes” should not be mistaken for an indication that the informationsharing problems between CSIS and the RCMP in connection with criminal
prosecutions have been resolved, since they largely resulted from CSIS’s view of
the Air India prosecution as a special case, requiring it to derogate from its usual
practices and policies.
In fact, problems of information sharing were present throughout the Air India
narrative. CSIS failed to share information with the RCMP about important facts
relevant to the police investigation, including, notably, its suspicions that Parmar
– the RCMP’s main Air India suspect - may have died in October 1992, after
being captured, allegedly tortured, and killed in custody by Indian authorities.
Its failure to share information also had significant logistical implications for the
investigation. The RCMP only discovered in early 1996 that CSIS possessed over
200,000 tapes containing the intercepted communications of Parmar, Bagri,
and Malik, among others, recorded between 1985 and 1996. As a result of this
disclosure, the RCMP had to delay submitting its new wiretap application until
it had reviewed 60,000 pages of intercept logs.
3.12 Overall Government Response to the Air India Bombing
Government agencies, in both the pre-bombing and post-bombing eras, often
followed policies and procedures blindly, with no real sense of the concrete
impact of their conduct and with little reflection about the goals they were
pursuing or the best manner of achieving them. The result was that individuals
and units within the Government performed their functions mechanically, often
without co-ordination and without the imagination or flexibility necessary to
enable the system to work in an effective manner.
Ironically in its responses to the victims’ families, to external reviewers and to
the public, the Government showed more coordination and a clearer sense of
purpose than in its implementation of pre-bombing security measures and its
investigation of the terrorist attack. Government agencies united to defend and
justify their behaviour in order to avoid having to answer detailed enquiries about
their processes, or to avoid having to make changes not of their own choosing.
These goals were clear and were vigorously pursued with some success. As a
result, an in-depth independent review of the terrorist attacks on Air India and
an identification of deficiencies in the agencies’ performance were inordinately
delayed. A great deal of information was revealed to the public for the first time
during this Inquiry, more than twenty years after the terrorist attack.
�Chapter III: Historical
Notwithstanding the resistance to review, it cannot be said that the government
agencies were attempting to hide any specific “smoking gun.” In reality, although
they reflexively adopted their defensive stances, for the most part the agencies
did not know what they were hiding, or even whether there was anything to
hide. They simply appear to have been trying to avoid public criticism, to avoid
civil liability, and to avoid having to answer for their actions to independent
or external reviewers whom they did not trust to pass fair judgment on their
policies, practices and behaviour.
The positions taken by the government agencies over the years were effective in
blocking a full public examination of the facts and circumstances that gave rise
to the terrorist attacks on Air India as well as blocking any meaningful review of
the investigation of the attacks. The families of the victims received practically
no information or assistance, with the notable exception of the sensitive and
elaborate mechanisms implemented by the RCMP Air India Task Force to liaise
with and to provide support to the families of the victims over the course of
the Air India prosecution. They received no answers from their Government
and were often treated in a deplorable manner, while the government agencies
continued to pursue the twin goals of deflecting public criticism and avoiding
liability to pay compensation to the families.
3.12.1 The Government’s Past Response
Defensiveness
From the very outset, the Government adopted a defensive stance. Within days
of the bombing, direction regarding the Government position to be taken on
the bombing was passed from the public service to political staff in the Prime
Minister’s Office. The result was that public statements were issued denying
any mistakes and affirming the absolute adequacy of the security measures in
place.
Defending the Government from potential civil liability to the victims’ families
soon became a priority. Instructions were issued to avoid any acknowledgement
that the crash of Flight 182 was caused by a bomb, a fact apparently evident to
the seamen recovering bodies on the fateful day. A preoccupation with avoiding
any statements that might compromise the Government’s ability to deny civil
liability came to colour the interaction with the families of the victims who were
treated more as if they were adversaries than victims.
Efforts were made to limit the funds expended to respond to their concerns.
Families in financial need were essentially told to apply for welfare rather than
expect compensation from Government. It was not until 1995 that the RCMP
decided to hold meetings with the families to inform them about the status of
the investigation. For its part, CSIS steadfastly refused to participate in such
meetings until 2005, based on legal advice.
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Eventually, the victims’ families launched civil suits seeking damages. The
government lawyers who were instructed to resist the families’ claims were
sent to the Coroner’s Inquest in Ireland and to the Kirpal Inquiry in India. The
Government instructed those lawyers to ensure that evidence about Canada
was presented in the best light possible. Government counsel argued that there
was no conclusive evidence that a bomb had caused the Air India crash, even
while the RCMP was conducting a criminal investigation based entirely on the
premise that the crash had been caused by a bomb and was gathering strong
circumstantial evidence to support that premise.
The Government’s position was that no finding could be made that Canadian
security measures were inadequate. Underlying the position was an
apprehension that a finding that Canada was blameworthy would bring about
unavoidable political and financial costs, including an obligation to compensate
the families, something the Government was fiercely determined to avoid. A
decision was made to avoid filing a Canadian Aviation Safety Board (CASB)
report that concluded that the crash had been caused by an explosion, not
because the report was inaccurate, but because it implied that there may have
been security failures at Canadian airports and because it linked the Air India
and Narita bombings in a manner that would inevitably point to Canada as the
location where the bomb was put on board the aircraft.
Defending the civil lawsuits was a matter of the highest priority to government
agencies. CSIS finally stopped erasing the tapes for its intercept of Parmar’s
communications – not because of the criminal investigation, but at the express
direction of the Department of Justice some nine months after the bombing –
for purposes of civil litigation.
Media reports and their potential impact on the public image of the agencies
also played a surprising role in the investigation. The RCMP only began actively
to pursue certain aspects of its investigation in response to critical media
reports or to deal with public relations concerns. The RCMP followed up on the
November 1984 Bomb Plot information after allegations appeared in the media
that the Force had been warned about the Air India bombing and had failed
to act. The RCMP effort in 1995 to resolve all outstanding investigative issues
was made with an eye to the ten-year anniversary of the bombing and with the
purpose of being able to make a pre-emptive public statement, “…rather than
reacting to media queries afterwards.”2
The CSIS Director attempted to defend and justify the erasure of the Parmar
tapes in a television interview, even while the BC Crown prosecutor was still
waiting for answers from CSIS in this respect. In subsequent discussions, CSIS
insisted that the erasure not be referred to as “destruction of evidence,” in light
of concerns about its reputation and potential civil liability.
2
Exhibit P-101 CAF0391, pp. 1-2.
�Chapter III: Historical
Resistance to Review
When the Security Intelligence Review Committee (SIRC) first attempted to
conduct a review of CSIS’s activities in connection with the Air India bombing
in the late 1980’s, government agencies united in successful opposition to the
review, citing possible interference with the ongoing criminal investigation and
the prosecution of Inderjit Singh Reyat. The government agencies were reluctant
to invest resources to shed light on deficiencies in their response. They also
cited a concern that a review could negatively affect the Government’s position
in the civil litigation, fearing that negative conclusions could be used against
them and that the release of information unhelpful to the Government’s case
would mean the lawsuit would become more costly to the Government.
By the spring of 1991, Reyat had been convicted for his role in the Narita
bombing, and calls for a public inquiry were once again mounting. The agencies
again took an aggressive approach in their attempts to stave off external review.
An Interdepartmental Working Group formed by the Solicitor General’s office
prescribed a common front against a possible SIRC review on the basis of
potential damage to the ongoing RCMP investigation, even though the ongoing
RCMP initiatives were limited to wreckage recovery. When the review finally
did proceed, the RCMP consciously limited the amount of information provided
to SIRC and avoided any criticism of CSIS. The RCMP justified its approach on
the basis of its desire to protect the ongoing investigation, then in its sixth
unsuccessful year.
The opposition to external review did not end with SIRC. When it appeared
that the RCMP investigation had reached an impasse in 1995, the Government
considered whether or not to call a public inquiry. Rather than admitting in
public that its investigation was at an impasse, the RCMP asked Gary Bass to
review the Air India file. As a result, a renewed investment in the investigation was
made. Commendable as the re-investigation may have been, it is unfortunate
that it was the spectre of a public inquiry that motivated this long-overdue
development.
The need to protect the “ongoing investigation” has continuously been invoked
by the RCMP to justify insulating its actions from review and to prevent public
disclosure of information by external reviewers, including the Commission.
In its aggressive invocation of the precept of police independence and in its
accompanying warnings about the potential to harm ongoing investigations,
the RCMP at times has been, in the words of current RCMP Commissioner William
Elliott, “…more standoffish than independent and our standoffishness has not
worked to our advantage.”3
Once the review by the Honourable Bob Rae was announced in 2005, the RCMP
and CSIS attempted to demonstrate that initiatives were now in place to address
long-standing issues, including cooperation problems. Many of these issues
had been left unaddressed since 1985. It is as if the prospect of an external,
3
Testimony of William Elliott, vol. 90, December 6, 2007, pp. 11822-11823.
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independent review moved the agencies to ‘fix’ problems so as to avoid the
imposition of measures that would not be of their own choosing.
3.12.2 The Government’s Voice
Throughout the post bombing period the Government has attempted to “speak
with one voice”, and thereby to avoid situations where its agencies would air
their disputes and debates in public or reveal information that might lead to
public criticism.
Counsel appointed to defend the civil litigation presented a unified position
on behalf of Canada at the Coroner’s Inquest and at the Kirpal Inquiry. In
dealing with the SIRC review, the Air India Working Group took on the role of
coordinating all Government agencies’ briefings, with a mandate to ensure
that the Government would present a consistent version of the facts, even at
the expense of completeness and comprehensiveness. The RCMP briefing to
SIRC took a particularly positive spin, with little or no criticism of CSIS and an
emphasis on the good interagency working relationship. This position was in
stark contrast with internal RCMP correspondence that emphasized failures in
cooperation and was replete with criticism of CSIS.
Not surprisingly, SIRC took away from this briefing the view that issues of
cooperation between CSIS and the RCMP had not had a significant impact
on the RCMP investigation. The RCMP did not intervene to qualify or correct
this perception, and chose not to comment on the SIRC report when it was
released. The RCMP would come to regret these decisions years later and to
view the findings in the SIRC report as potentially compromising the eventual
prosecution of Malik and Bagri.
In the briefing it provided to Rae in 2005, the RCMP adopted an entirely different
approach. Without Government-wide coordination, the briefing was more
detailed (though unfortunately not always entirely accurate) and more critical.
It even called into question the very SIRC findings that were based on the RCMP’s
briefing to SIRC. The RCMP provided a detailed list of its grievances about the
behaviour of CSIS. CSIS responded in kind by noting that some information in
the RCMP submission was “simply incorrect.”
External review should be an opportunity for the institutions to reflect on
possible past mistakes and on the measures that might be implemented to avoid
repeating them. It should not be seen as an opportunity to head off changes
that might be suggested by the reviewer. Nevertheless, the agencies’ positions
in their briefings to Rae, with all their defensiveness and finger-pointing, had at
least the merit of constituting a more genuine representation of their respective
institutional views, as opposed to the Government’s “one voice”.
3.12.3 That Was Then, This Is Now
The strategy adopted for two decades by CSIS and the RCMP when responding
to external review has generally been to argue that any problems in interagency
�Chapter III: Historical
cooperation that may have arisen in the past had since been resolved through
initiatives that had been implemented to improve cooperation.
As revealed by the RCMP’s submissions to Rae, the message of “that was then,
this is now” was never particularly accurate, despite its repeated invocation.
The RCMP explicitly admitted that many of the challenges faced in 1985 still
remained in 2005, despite the earlier messages, including that given to SIRC in
1992, that all cooperation problems were resolved.
CSIS, on the other hand, did not refer to any ongoing problems in the current
relationship in its briefing to Rae, and continued instead to point to the progress
that had been made in the relationship and the fact the agencies were now
working closely together.
3.12.4 The Present Inquiry
The Prime Minister called this Inquiry to request answers to seven difficult
policy questions relating to the past and present practices of government
agencies in relation to the Air India matter and to terrorism and aviation
security more generally. The Inquiry was also meant to provide long-awaited
answers to the families of the victims. The approach of the government
agencies to this Inquiry has, in many ways, followed the pattern of reticence
and defensiveness they adopted throughout the post bombing period.
Although a public inquiry sometimes looks like a trial, with examinations and
cross-examinations conducted by lawyers, it is essentially quite different. Its
purpose is not to find liability, but rather to get at the truth and to learn from
past mistakes. As its name suggests, it is an examination (or, to use a word with
negative connotations in the English language) it is an “inquisitorial” process
rather than an adversarial one.
Since it is the Government that calls the Inquiry and sets its mandate, the
Government’s ultimate interest lies in having the Inquiry succeed in getting at
the truth in order to allow it to make useful recommendations intended to resolve
problems and to avoid the repetition of past mistakes. For that endeavour to
succeed, and for the Inquiry to reach its goals, it is crucial that Government be as
forthcoming, transparent and candid as possible in providing information.
The course of this Inquiry has demonstrated that old habits sometimes die hard.
The same defensiveness and reflexive secretiveness that the Commission noted
in the attitude of the government agencies in dealing with the aftermath of the
bombing were at times evident during the course of this Inquiry.
Each of CSIS, the RCMP and Transport Canada have valid interests in preventing
disclosure of any information that would threaten national security, ongoing
criminal investigations and the security arrangements at Canada’s airports.
Those legitimate concerns made it inevitable that relevant documents and
information held by Government would need to be reviewed and, where
necessary, “redacted” (i.e. censored) prior to public disclosure so as to protect
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these interests. In practice, however, the approach to redaction taken by the
agencies proved to be overly broad and seemingly based on a mechanical
application of a set of abstract rules with little, if any, attention paid to any
actual harm that might ensue from disclosing information that was more than
two decades old.
The initial position taken by the agencies resulted in hundreds of documents
being largely, or even entirely, blacked out. The Government took extensive
objection to the public disclosure of information, to the point where no
meaningful public examination would have been possible. It was only after
the direct and welcome intervention of the Prime Minister that these positions
were reconsidered and it became clear that most of the information that was
originally sought to be suppressed was capable of being disclosed with no
risk to Canada’s actual security or to its legal interests. This exemplified former
RCMP Commissioner Zaccardelli’s observation that federal agencies tend to “…
over-classify… over-redact and then… ultimately get embarrassed by it being
shown not to have been necessary so many times.”4
While matters improved to the point where it became possible to hold public
hearings after the Prime Minister’s intervention, problems persisted.
In his evidence, former SIRC Chair Ronald (“Ron”) Atkey noted that, in his
experience, “CSIS were very good at responding to your questions, but only to
your questions.”5 The Commission experienced a number of examples of this
reticence, which, when combined with continuing examples of overly aggressive
claims for National Security Confidentiality, made telling the CSIS story more
difficult than was necessary.
Transport Canada was undoubtedly justified in trying to prevent unnecessary
disclosure of security details related to airports and aviation, but it did not always
exercise appropriate restraint, particularly with regard to historical information
of key importance to the Commission’s Terms of Reference. Its unfounded claims
of privilege regarding certain information not only unnecessarily delayed public
disclosure, but also limited public debate and discussion of clearly relevant
matters. The Government position was reminiscent of the Government-wide
two decade long preoccupation with avoiding any potential admissions of error
or of substandard performance in the destruction of Flight 182.
Most troubling, however, was the RCMP’s reliance on the notion of the possible
effects on the “ongoing investigation”. The spectre of this danger was used in
ways that were occasionally inappropriate and that had the potential to interfere
with the work of the Commission.
In January 2007, the RCMP was contacted by an individual, Mr. G, who was an
important figure in the Sikh extremist movement in 1985 and who was believed
4
5
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11082.
Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5969.
�Chapter III: Historical
to have knowledge about the Air India bombing. Mr. G wanted to testify in this
Inquiry. Without advising the Commission about Mr. G’s approach, the RCMP
made the unilateral decision, that its “revived” investigative interest in Mr. G
should have priority over the work of the Commission and that it should have
the first and exclusive opportunity to investigate any information Mr. G might
have. The RCMP proceeded to request additional redactions to the material that
was to be entered into evidence about Mr. G, telling the Commission that Mr.
G had recently demonstrated a newfound willingness to cooperate, and that
the redactions were necessary to protect this “new initiative” in the ongoing
investigation. The RCMP did not advise that Mr. G wanted to speak to the
Commission.
The last time the RCMP had spoken to Mr. G before this Inquiry was in 2000. At
that time, Mr. G had provided information, but the prosecution decided not to
call him as a witness in light of the contradictions in his past statements. The
RCMP always believed that Mr. G knew more, but for the past seven years had
done nothing to pursue him.
Despite Mr. G’s repeated requests to testify before the Commission throughout
the following months, the RCMP did not advise the Commission. Instead the
RCMP asked Mr. G to delay his plan to contact the Commission. During a formal
interview with the RCMP in September 2007, Mr. G complained that he had
not been able to contact the Commission. RCMP investigators told him that he
could contact the Commission if he so wished, but that Commission staff “were
not investigators” and that they would simply refer him back to the RCMP.
The RCMP had not been successful in the past in obtaining from Mr. G the
additional information the Force believed he possessed and it was no more
successful in 2007. Nevertheless, even after it had dropped its pursuit of Mr.
G’s information, the RCMP still did not advise the Commission of Mr. G’s interest
in testifying at the inquiry, nor did it take steps to allow lifting of the additional
redactions it had sought on the basis of this new “ongoing investigation”
initiative. It was only by accident that the Commission discovered that Mr. G was
potentially interested in testifying. It was not until March 2008, months after the
Commission had specifically asked whether Mr. G had expressed any interest in
speaking with representatives of the Inquiry, that the RCMP finally advised the
Commission, a month after the hearings were concluded, that Mr. G “…was at
one point prepared to speak with representatives of the Commission.”
All these lapses by the various agencies seem to the Commission to have been
unnecessary and to have been the product of years of habit rather than of any
intent to interfere with the work of the Inquiry. Taken together, they seem to
fall in line with the defensiveness and reluctance to acknowledge error that
characterized the reflexive and un-reflective responses of these agencies
throughout the post bombing period.
It is notable that, perhaps because of this default defensiveness, no one who
testified on behalf of any of the agencies of government thought it appropriate
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to apologize to the families of the victims for the errors and omissions of the
Government and its agencies or for the treatment to which the families have
been subjected by the Government as a result of its apparent determination to
avoid an obligation to provide them with meaningful compensation.
It is telling that the only Government witness who expressed regret about
the quality of the information that had been provided to the families was a
former CSE (and current CSIS) employee, who asserted bluntly that the families
had been misled by Bartleman’s testimony and by his implicit criticism of the
Government’s pre-bombing conduct. Interestingly, the witness also insisted
that he would not feel responsible for the families’ plight, based on what turned
out to be his inaccurate conclusion that no CSE intelligence existed that could
have forewarned of the bombing or led to a different security response.
While this particular incident stands out as a rather astonishing and extreme
example of denying the negative, in general, government witnesses seemed
nearly unanimous in emphasizing the positive in their testimony. With the
exception of the thoughtful and balanced testimonies of former CSIS DG CT
James (“Jim”) Warren, of former High Commissioner to India William Warden,
and of former RCMP Staff Sergeant Robert Solvason, government witnesses
seemed loath to acknowledge that any errors at all had been made or that there
were any deficiencies in performance by government agencies. This sunny
attitude spilled over into the submissions of the Attorney General of Canada,
through which the Government of Canada and all its agencies spoke with one
voice during the Inquiry.
Notwithstanding the fact that the Government called this Inquiry, asking
for recommendations to solve problems and deficiencies, and to prevent
the recurrence of past problems, the final position presented on behalf of
Government is that, without admitting that there were any serious deficiencies
in the past, whatever problems there might have been are all in the past. That
was then; this is now, and no significant change to legislation policy or practice
is necessary or advisable.
The Commission disagrees. Errors were made. Each of the relevant agencies of
government showed clear deficiencies in performance that were often related
to, or accompanied by, deficiencies in policy and in the understanding or
application of legislation.
Volume Three chronicles in detail some of the deficiencies in performance.
Volumes Three and Four deal with specific recommendations to address a
number of the systemic, regulatory and legislative deficiencies.
�VOLUME ONE
THE OVERVIEW
CHAPTER IV: INTELLIGENCE AND EVIDENCE
4.0 Introduction
Terrorism is both a serious security threat and a serious crime. Secret intelligence
collected by Canadian and foreign intelligence agencies can warn the
Government about terrorist threats and help prevent terrorist acts. Intelligence
can also serve as evidence for prosecuting terrorism offences.
Volume Three addresses the issues that arise from using intelligence as evidence
in criminal investigations and trials. Using intelligence as evidence can create
a tension between the secrecy essential for the operations of the intelligence
community and the openness demanded by the criminal trial process. Volume
Three recommends having the National Security Advisor resolve this tension,
acting in the public interest instead of in the sometimes narrower interests of
the agencies involved.
The delicate balance between openness and secrecy presents challenges at
each stage of the response to the threat of terrorism. Each terrorist threat is
unique, and will require a response tailored to the specific circumstances of the
threat, so it follows that there can be no presumptively “best” response. In some
cases, it will clearly be appropriate to engage the police early on. In others, it
may better serve the public interest to allow intelligence agencies to continue
to monitor and report on the threat or to use other, non-police, agencies to
disrupt an evolving plot. The most effective use of intelligence may not even
involve the criminal justice system.
Canadian efforts against terrorism involve many entities, including the Canadian
Security Intelligence Service (CSIS), the Canada Revenue Agency (CRA), the
Royal Canadian Mounted Police (RCMP), the Department of Foreign Affairs and
International Trade (DFAIT), the Canada Border Services Agency (CBSA) and
the Communications Security Establishment (CSE). Each agency has its own
mandate and rules governing how it carries out that mandate. The mandates
sometimes overlap.
4.1 Secrecy vs. Openness
Even with the best intentions, coordination and effective communication
among the many agencies involved in the counterterrorism effort in Canada
can be very difficult.
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Both the pre-bombing and post-bombing phases of the Air India tragedy
demonstrate the challenges that these agencies experienced in communicating
effectively with each other and in respecting each others’ rules and requirements
while, at the same time, looking out for their own institutional interests.
During the pre-bombing phase, CSIS did not get important information from
other agencies, including CSE and the RCMP, and hence was unable to provide
a meaningful assessment of the threat to Air India flights. In the post-bombing
phase, CSIS collected and dispersed information according to its own rules and
intelligence requirements, but in the process made the information unavailable
to or unusable by the criminal justice system. This impaired the quality of the
evidence available to the prosecution and compromised the fair trial rights
of the accused. When CSIS passed information to the RCMP, the RCMP was
often careless in respecting caveats or in appropriately protecting sources
and methods. As for the criminal justice system, its focus on complete and
wide-ranging disclosure repeatedly encountered resistance in the form of the
intelligence community’s basic imperative to protect the confidentiality of its
sources, methods and information.
While CSIS faces potentially adverse consequences as a result of sharing
information with the police, there are no similar consequences for other agencies
that share information with CSIS. There is no excuse for any agency failing to
share information with CSIS. Security-related threat information collected by
the RCMP for law enforcement purposes can, and ought to be, shared with
CSIS in all but the rarest of circumstances. The Commission does not view the
report or recommendations of the O’Connor Commission as being in any way
inconsistent with this observation.
Agencies must share information with each other to respond effectively
to terrorist threats. However, Canadian agencies have developed a culture
of managing information in a manner designed to protect their individual
institutional interests. This approach compromises coordination and effective
communication among agencies.
The decision of an intelligence agency to share intelligence with the police may
have far-reaching implications for ongoing intelligence investigations, for the
agency’s sources and for the targets of investigations. The governing imperative
for intelligence-gathering agencies is to preserve tight restrictions on the
dissemination of information. This imperative makes sense, for several reasons.
First, collecting intelligence is largely a clandestine activity. Foreign governments
and intelligence services restrict, often explicitly, the further disclosure of their
intelligence as a condition of sharing it with CSIS. Valuable intelligence often
comes from sources who cannot be revealed publicly without jeopardizing their
continuing usefulness and, possibly, their safety. Almost always, intelligence
agencies prohibit the dissemination of information beyond CSIS, seriously
impeding law enforcement. This is a reality of the modern security intelligence
environment.
�Chapter IV: Intelligence and Evidence
Second, intelligence agencies resist public disclosure of information due to the
realistic fear of compromising the investigation for which it has been collected.
Public disclosure, or even limited disclosure to law enforcement, can interfere
with sensitive intelligence investigations and even lead to their termination.
Compromised investigations may harm Canada’s international strategic interests
and threaten the safety of individuals involved in gathering intelligence.
A further plausible reason for CSIS resisting disclosure is rooted in the intrusive
means by which it is authorized to collect intelligence. The basis for a Criminal
Code warrant application is that the affiant has reasonable grounds to believe
that an offence has been, or will be, committed. An affiant applying for a section
21 warrant under the CSIS Act must only have a belief, on reasonable grounds,
that a warrant is required to enable CSIS to investigate a threat to the security
of Canada. The affiant does not need to specify a reasonable belief that an
offence has been, or will be, committed. The section 21 warrant could relate to
someone reasonably suspected of being involved in a terrorist or other threat to
the security of Canada, even if no offence is specified. For this reason, it is likely
that a CSIS warrant will be less difficult to obtain than a Criminal Code warrant
in the early stages of a terrorist conspiracy or plot. Easy disclosure to the police
of material collected under a CSIS warrant could risk, in the words of Geoffrey
O’Brian, one of the first civilian employees of CSIS, turning CSIS into a “cheap
cop shop.”
These reasons explain and, in some measure, justify resistance by CSIS to public
disclosure of intelligence. However, there are situations in which the disclosure
of intelligence by CSIS to law enforcement is in the public interest.
From the point of view of the criminal justice system, the ruling imperative is
the public production of as much potentially relevant information as possible.
The right to a fair trial, entrenched in section 7 of the Charter, requires that
all relevant information in the possession of the prosecution be given to the
accused person, no matter whether it tends to support or to undermine the
case for the prosecution. In our open system of justice, the information upon
which guilt or innocence is determined must be made public. To justify the
serious sanctions that can be imposed by the criminal justice system, the system
requires reliable proof to a very high standard. These requirements cannot be
circumvented or compromised. As a result, the compelling reasons for the
intelligence community to maintain secrecy are balanced by equally compelling
reasons for the criminal justice system to require openness. Effective protection
of national security depends on both the intelligence-gathering system and the
criminal justice system. Effective cooperation among agencies in sharing and
using intelligence is not merely a subject of theoretical debate; it is a practical
necessity.
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4.2 Concurrent National Security Mandates and Information
Sharing
The counterterrorism mandates of CSIS and the RCMP overlap to a significant
degree. The consequences of a terrorist threat fall squarely within the core
mandate of CSIS, which is to advise the Government of Canada on the nature and
extent of threats to national security. As a criminal offence, terrorism is equally
central to the RCMP mandate to investigate and prosecute serious crimes. The
extent of the overlap is highlighted by the 2001 Anti-terrorism Act definition of
the criminal offence of “terrorism.” Terrorism extends both to completed acts of
violence and to the planning and providing of assistance for such acts, whether
or not they have come to fruition. CSIS and the RCMP are each legitimately
involved in investigating the same activities.
Developments in criminal jurisprudence have put pressure on CSIS to make
intelligence public in the criminal process. The Supreme Court of Canada
decision in R v. Stinchcombe clarified beyond all debate that the prosecution has
an obligation to disclose all potentially relevant material in its possession to the
accused. At around the same time as the Stinchcombe decision, courts began
looking behind claims of “national security confidentiality,” testing the accuracy
of the affidavits used to justify search warrants and wiretap applications, before
admitting material gathered on the basis of such warrants into evidence at trial.
These developments set the CSIS imperative of secrecy directly into conflict
with the criminal justice system’s requirement to disclose all potentially relevant
information to the defence.
Because CSIS will usually begin the investigation of a threat well before there
is any element of criminality, it will have much more information than will the
RCMP. Once engaged in the investigation, however, the RCMP will want as much
information from CSIS as it can get. CSIS information might be vital in that it may
help the RCMP to understand the threat and to fill in any gaps in the body of
information in its case.
For reasons already discussed, CSIS may be cautious about disclosing – and may
even be categorically unwilling to disclose – information to the RCMP without
a guarantee that the information will not be made public. Understandably,
the RCMP cannot make such an assurance. If its own investigation leads to a
prosecution, the RCMP will be required to disclose all potentially relevant
information to the Crown and, eventually, that information will be disclosed to
the defence and perhaps made public in court. Because of this, CSIS might try
to avoid providing the information to the RCMP to protect the viability of its
ongoing investigation.
These opposing interests over the use of CSIS intelligence can, in the extreme,
lead to the unpalatable choice known as “disclose or dismiss”: either disclose
relevant information to the defence, even if it may contain sensitive intelligence,
or protect the information, but risk failure to proceed with a case against an
accused terrorist.
�Chapter IV: Intelligence and Evidence
The “disclose or dismiss” dilemma has arisen in terrorism prosecutions both
before and after Stinchcombe. This has resulted in the termination of several
prosecutions before verdicts were reached. Notably, two of these have involved
allegations of Sikh extremism. In one of the two, Talwinder Singh Parmar was
the accused.
Paradoxically, the risk to criminal cases presented by the desire to protect
sensitive intelligence has motivated the RCMP to avoid acquiring information
from CSIS.
As discussed in detail in Volume Three, there are numerous ways to avoid the
conflict between the desire to keep intelligence secret and the obligation
to disclose potentially relevant information in a criminal trial. However, the
perception that a choice may have to be made results in both CSIS and the
police looking for ways to keep the intelligence out of the hands of the police.
No matter how unintentional, the result will be to impoverish the response to
terrorist threats. Something has to change in the approach taken towards the
transfer of intelligence to the hands of law enforcement.
4.3 Ineffective Responses to the Disclosure Dilemma
4.3.1 Informal Solutions
The evidence shows that both CSIS and the RCMP, though they both may regard
the result as far from optimal, have concluded that the best management of
the potential “disclose or dismiss” dilemma is to avoid the problem entirely by
ensuring that the minimum of potentially disclosable intelligence is passed
from CSIS to the RCMP.
This misguided strategy is not new to either agency. From its inception, the
“civilianization” of CSIS led it to adopt the mantra that “CSIS does not collect
evidence.” CSIS policies had the effect of rendering most CSIS information
unusable in court and of limited value to the police. There may have been no
nefarious purpose behind these policies. They accorded with the overwhelming
sentiment at that time that a clean line needed to be drawn between CSIS as a
civilian intelligence service and the RCMP as a law enforcement agency.
The consequences of the erasure of the Parmar tapes demonstrated that the
policies regarding the collection and storage of information adhered to in
order to protect CSIS information from disclosure in court did not in fact make
CSIS intelligence irrelevant or immune from disclosure. The information on the
destroyed tapes might have been of no use to either the prosecution or the
defence in the Air India trial, and it might have been inadmissible at the trial
based on a number of principles under the law of evidence. Still, the destruction
of the tapes prevented the prosecution from disclosing their contents to the
accused. This led to the worst possible results for CSIS and for the prosecution.
The tapes were ruled disclosable and their destruction was held to be an abuse
of process.
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The larger lesson from this episode, one that may not be fully understood as yet
by CSIS or the RCMP, is that efforts to keep potentially relevant CSIS information
out of the hands of the RCMP are not effective. Disclosure obligations are
engaged by the potential relevance of the information, not by its evidentiary
status or by who holds it. It is for this reason that the philosophy of “the less
information we receive from CSIS, the better” (curiously described in testimony
as a “less is more” philosophy), adopted by the RCMP, is equally unlikely to
shield CSIS intelligence from disclosure or to protect prosecutions in which the
information is not disclosed.
The philosophy of “the less information we receive from CSIS, the better” is
based on an assumption that the obligation to disclose would apply only to
material that is in the hands of the RCMP; if CSIS did not provide material to the
RCMP, the material would be deemed not to be in the Crown’s possession and
there would be no obligation to disclose that material to the defence.
The fact is that relevance, not custody, determines what the prosecution must
disclose to the defence. There may be a privilege or legally recognized right that
a person or institution may raise to persuade a court that, despite relevance,
the material ought not to be disclosed. However, it is not possible to avoid the
obligation to disclose simply by withholding the information from the police in
the first place. Accordingly, the prosecution should pursue all relevant material,
particularly if the information is in the hands of government entities that have
investigated the matter now before the trial court.
The real possibility of the accused obtaining disclosure of intelligence from CSIS
suggests that the RCMP approach of avoiding the acquisition of intelligence
from CSIS is not an effective or reliable means of protecting that intelligence
from disclosure. It also deprives the RCMP of valuable information. Hence, the
philosophy of “the less information we receive from CSIS, the better” should
be abandoned. A better approach, whenever possible, is for CSIS to collect
intelligence in counterterrorism investigations with the expectation that it may
be disclosed or used as evidence in court.
4.3.2 Proposed Legislative Changes
From time to time, both CSIS and the RCMP have proposed that informationsharing challenges might be resolved through legislation. In general terms,
these proposals range from the removal of legislative barriers to the flow of
information from CSIS to the RCMP to the creation of legislative limits on the
information that the criminal justice system can demand from CSIS. Each of these
proposals addresses only one aspect of the problem, and thus will ultimately be
ineffective in serving the public interest.
The Attorney General of Canada (AGC) can apply to the Federal Court to prevent
disclosure of sensitive national security information by invoking section 38 of
the Canada Evidence Act. Where disclosure for purposes of criminal proceedings
is involved, the Federal Court examines whether the material could cause harm
�Chapter IV: Intelligence and Evidence
to Canada’s national security or international relations. If the answer is “no,” the
Court will refuse to bar disclosure. If the answer is “yes,” the Court will consider
whether failure to disclose will harm the fair trial rights of the accused person. If
the answer to this second question is “no,” the Court will bar disclosure outright.
If the answer is “yes,” the Court will still bar disclosure, but can consider a range
of possible remedies, including releasing edited documents or providing
unclassified summaries of the documents or information in question in order to
mitigate the effect of barring direct disclosure.
This process allows CSIS to protect sensitive intelligence information, but both
CSIS and the RCMP see the process as having several significant drawbacks. The
outcome is inherently uncertain. Neither CSIS nor the RCMP can know at the
beginning of the process – the point of disclosure by CSIS to the RCMP – what
its conclusion will be.
Furthermore, the process for determining whether sensitive intelligence
information can be withheld does not end with the Federal Court’s determination
of the section 38 application, or even with the conclusion of any appeals to the
Federal Court of Appeal and Supreme Court of Canada. Whatever the ruling by
the Federal Court, the Attorney General of Canada still has jurisdiction to order
disclosure or to prohibit disclosure of any information or document. All this
clearly adds to the uncertainty for CSIS, and also introduces uncertainty for the
RCMP and, ultimately, for the prosecution.
It is, therefore, not surprising that, at the extreme end of the spectrum, proposals
have been put forth for a legislated privilege which would remove any national
security material from the criminal justice system. Intelligence would not need
to be disclosed to the accused in the same way that the identity of a police
informer is not disclosed.
In a post-Charter, post-Stinchcombe world, it is not possible simply to ignore
the right of an accused person to a fair trial, a right that includes disclosure
of all relevant information capable of assisting an accused person in making
“full answer and defence” to the charges. No blanket privilege can trump these
Charter rights. Even the police informer privilege, perhaps as bullet-proof a
privilege as can exist in the criminal law sphere, cannot prevail when “innocence
is at stake.”
To ensure that a “national security privilege” would comply with the Charter,
it would be necessary to qualify the privilege by requiring disclosure to the
extent necessary to ensure a fair trial. This would produce the same situation as
when the trial judge considers whether any orders under section 38 infringe an
accused person’s right to a fair trial. The intelligence information might not need
to be disclosed, but if it were not disclosed, the case against the accused might
have to be dismissed.
A different proposal to limit the flow of information in the disclosure process
involves the suggestion that the disclosure requirements set out in Stinchcombe
should be limited by statute. This is a suggestion often made by the police,
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who bear the brunt of the Stinchcombe disclosure requirements, which are
sometimes described as the most onerous of any Western democracy. However,
insofar as the problem of excessive resources devoted to needless disclosure
applies to the criminal justice system in general, one should be cautious about
identifying this problem as residing in the Stinchcombe test itself.
The constitutional dimension of Stinchcombe consists of a right to all relevant
information touching on the accused’s ability to defend him- or herself. In order
to make such disclosure, someone must go through the raw material to identify
all potentially relevant information and then identify that which is actually
relevant. This will require separating the clearly irrelevant from the possibly
relevant (which is another way of saying “not clearly irrelevant”) and, then, the
actually relevant from the possibly relevant.
However, this is not to say that practical and cost-saving measures in relation
to Stinchcombe disclosure obligations cannot be taken. Volume Three proposes
that, in terrorism prosecutions, the Crown should be permitted to provide in
electronic form any material on which it intends to rely and should have the
discretion to provide paper copies of such material. Material on which the
Crown does not intend to rely, but which is relevant, should be produced in
electronic format. The Crown should be able to disclose all other material that
must be disclosed pursuant to Stinchcombe and the 2008 decision in Charkaoui
by making it available to the accused for manual inspection.
In any event, whether the rules for initial disclosure obligations are broadly or
narrowly articulated, the fundamental constitutional obligation is always the
same: for a fair trial, the defence must have disclosure of all material necessary
to make “full answer and defence.”
On the other end of the spectrum are proposals designed to enhance the sharing
of intelligence with police. Volume Three discusses an amendment to section
19(2) of the CSIS Act to remove the current CSIS discretion concerning whether
or not to disclose information to police. However, solutions of this nature are
paradoxically likely to do both less and more than one might expect.
On the one hand, requiring disclosure is not tantamount to ensuring that the
information will be admissible at trial. There would still be an opportunity for
CSIS to object to public disclosure at trial on national security grounds under
section 38 of the Canadian Evidence Act, and thus potential “disclose or dismiss”
situations would not be avoided.
On the other hand, mandatory disclosure would have the unsatisfactory result
of giving the RCMP the power to decide unilaterally what should be done with
sensitive CSIS information.
The problem is that allowing the needs of the criminal justice system to take
priority over other considerations will not always be in the best interests of
�Chapter IV: Intelligence and Evidence
Canada. There may be good reasons for CSIS to avoid passing information to
the RCMP. Leaving the choice of whether and when to commence a criminal
investigation to the RCMP is unlikely to lead to better decision-making.
Any workable legislative changes cannot be based upon an a priori view that
favours one of either law enforcement or the intelligence community over the
other. Instead of approaching these issues from the perspective of individual
agency concerns, the solution lies in making changes that allow for the public
interest to be identified and acted upon.
4.4 Towards the Effective Management of the “Intelligence into
Evidence” Problem
No “silver bullet” can exempt relevant intelligence from disclosure without
consequences for the viability of a criminal prosecution. Once the intelligence
and law enforcement communities accept that reality, they can focus on realistic
and pragmatic practices and procedures that can minimize the potential for
adverse consequences caused by using intelligence in criminal prosecutions.
First and foremost, the goal of such an approach should be to establish means
to avoid a stark choice between the needs of a fair trial and those of national
security. A realistic and pragmatic approach by the intelligence community
would be to recognize that, as long as the criminal justice system remains an
important means by which Canada seeks to deal with terrorism, intelligence
may be relevant to the criminal justice system from the moment a terrorist
conspiracy begins to unfold.
For that reason, it is necessary for the intelligence community to abandon the
notion that “CSIS does not collect evidence” as a justification for practices that
compromise the use of CSIS information in ensuing criminal investigations or
prosecutions. The duty of disclosure of relevant information is entirely separate
and distinct from the issue of whether the means by which the information was
gathered, preserved and stored make it admissible as evidence at trial. CSIS has
nothing to lose by ensuring that its practices in gathering, retaining and sharing
information do not compromise the potential admissibility of the information
as evidence in a criminal trial.
So long as the information is relevant, it will have to be disclosed, subject
to national security privilege. On the other hand, a failure to follow such
procedures can profoundly and, in some cases, irremediably, harm the interests
of the justice system by making it more difficult to combat terrorism. Failure
to provide prosecutors with usable information can compromise the viability
of terrorism prosecutions to the extent that the ability to provide a fair trial to
accused persons may be impaired, as illustrated by Justice Josephson’s ruling
on the erasure of the Parmar tapes in the Malik and Bagri trial.
In response to the Supreme Court of Canada’s 2008 decision in Charkaoui, CSIS
may now be attempting to reform its internal procedures for the retention
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of information to comply with the Court’s observations about CSIS retention
obligations. As it approaches this task, CSIS should adopt procedures and provide
training that will ensure that the methods by which information is retained and
stored are capable of serving the interests of both the intelligence and law
enforcement communities. This should include procedures for retention of the
original materials (documents, interview notes, audio or video recordings) as
well as practices to ensure demonstrable continuity of possession. It would be
useful for the Service to seek the advice of the RCMP and the Department of
Justice on the best approach to this.
Self-restraint and self-discipline in and by the institutions involved in the
intelligence community and the criminal justice system would serve them well
in combatting this problem. It is time for each institution, and the actors within
it, to adopt a broader perspective and to avoid patterns of behaviour that may
serve narrow institutional interests well but the public interest poorly.
For the intelligence community, this means not overstating the need for secrecy.
For defence counsel, it means avoiding burdening the court with frivolous pretrial applications. For prosecutors, it means avoiding “overcharging.” For judges,
it means becoming less tolerant of tactics used by counsel to try, for partisan
advantage, to bring national security interests into conflict with the right to a
fair trial. These issues, as well as the sheer volume of disclosure, can make the
trial process cumbersome and, seemingly, out of control.
Defence counsel should abandon frivolous pre-trial applications, which lengthen
proceedings, making criminal trials a war of attrition. A mature attitude and
increased cooperation among counsel are needed. Many pre-trial applications
can be avoided by using agreed statements of facts. Much of the “bulk” of a
criminal trial can also be reduced by agreed statements of fact and admissions of
matters not in dispute, allowing the judge to focus on what is truly in dispute.
Prosecutors should lay charges only for acts that they can prove. Prosecutors
should not lay every possible charge against as many accused as possible.
These “loaded indictments” unduly complicate criminal proceedings and bog
them down in lengthy procedural wrangling.
Trial judges bear a significant responsibility. They are ultimately in charge of
their courtroom and of the trial process. Too often they are timid and unwilling
to rein in wayward counsel. Trial judges must make greater efforts to keep trials
on track and focused on relevant matters. They need to develop a relationship
with counsel so that all appreciate the need to cooperate.
None of this is intended to diminish the adversarial process. Rather, it is meant to
focus the criminal trial on what is truly at issue and requires a determination to
do so, be it about alleged breaches of the Charter or about an essential element
of a criminal charge.
�Chapter IV: Intelligence and Evidence
Volume Three contains a detailed discussion of possible procedural changes
that may better enable the criminal justice system to cope with the unique
challenges of terrorism prosecutions. The Commission gave careful consideration
to suggestions for changes, including those from the Air India Victims Families
Association. The terms of reference required the Commission to examine
whether there is merit in having terrorism cases heard by a three-judge panel.
The panel could replace a judge sitting alone or a judge and jury. While the
Commission understands the thinking behind considering this mode of trial, it
has concluded that the resulting procedural and legal complexities would make
three-judge panels impractical and inadvisable.
4.5 Reforming Decision-Making
Even with the best efforts of the institutions involved in national security and
criminal justice issues, their competing interests in the “intelligence-evidence”
debate cannot easily be reconciled. An effective means of resolving these
conflicts is necessary.
At several key times, choices may need to be made between the legitimate
interests of the intelligence community and those of the criminal justice system.
For each of those times, effective resolution will depend on the continual
improvement of the decision-making process rather than on any formula for
weighing the importance or the legitimacy of the competing interests. Former
Commissioner Zaccardelli astutely observed that such decisions need to be
made “in the interests of Canada.” To resolve differences between competing
interests in a manner that places the broader public interest above the narrower
concerns of any agencies involved, the decision-maker must be sufficiently
independent of the conflicting agencies.
4.5.1 The National Security Advisor
The first major point at which the interests of the intelligence community may
diverge from those of the criminal justice system occurs when CSIS decides
whether it should disclose information to a police agency about a possible
terrorism offence.
CSIS and the RCMP share the reasonable expectation that the criminal justice
system will be a vital tool for responding to planned terrorist acts. The police will
investigate such plans, the Crown will prosecute and the courts will adjudicate.
Testimony heard by the Commission suggests that CSIS will usually have no
objection to disclosing such information to the RCMP in most cases. As CSIS
adopts procedures about the disclosure of the intelligence that it gathers for
use in criminal proceedings, the percentage of cases in which CSIS voluntarily
discloses intelligence to the RCMP will likely rise.
Nevertheless, the possibility of a police investigation and resulting criminal
prosecution can mean that CSIS might lose control over the further disclosure of
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its intelligence. In such an event, the identities of CSIS sources and employees,
the secrets of its allies and the integrity of its long-term investigations may be
jeopardized. For that reason, it seems inevitable that CSIS will sometimes be
reluctant to pass intelligence to the police, or that it will decide to postpone
such disclosure.
The CSIS Act gives CSIS discretion about whether and when to disclose
intelligence to the police. It is neither reasonable nor efficient to put CSIS in the
position of weighing its own interests against those of law enforcement and,
possibly, expecting CSIS to decide against its own interests.
Disclosure decisions related to the implementation of the government’s overall
anti-terrorism strategy should be made by the National Security Advisor (NSA)
to the Prime Minister. Because the NSA reports only to the Prime Minister, it is
appropriate that the ultimate responsibility for deciding what Canada’s national
interest requires remain at the highest level of government. The NSA is intimately
familiar with the needs and the interests of the intelligence community and, as a
result, has a broad understanding of the overall national security landscape and
the potential impact of the involvement of the criminal justice system.
The courts and the police must remain free from external direction. The police
must be independent of government direction about when and what they
investigate, for example. For this reason, NSA would not attempt to direct RCMP
investigators. However, the NSA should decide if and when CSIS intelligence
should be passed to the RCMP if CSIS initially is reluctant to do so. CSIS would
then be required to pass the intelligence to the RCMP, which in turn would use
the intelligence to decide whether a police investigation is warranted. The NSA
would provide high level coordination of the anti-terrorism effort, while taking
into account the interests of CSIS and the RCMP.
The NSA would require assistance in determining the possible effects of any
of its decisions on CSIS, the police and on the criminal justice system. The NSA
would need support in assessing the usefulness of passing the information to
law enforcement agencies. The NSA should have secondees from the RCMP
on staff. These secondees would be able to inform the NSA regarding which
investigations the police are likely to pursue. The NSA will also need adequate
legal expertise, especially to address disputes that may arise in the relationship
between intelligence and evidence. To this end, personnel from the office of the
proposed Director of Terrorism Prosecutions should, if needed, be seconded to
the staff of the NSA.
The NSA should be someone who understands intelligence issues and who
acts independently in helping to arbitrate differences of opinion between
government agencies. It is not necessary that the NSA be recruited within
government. A premium should be placed on finding an individual with
sufficient stature and experience to command the respect of the intelligence
community, while also having the Prime Minister’s confidence.
�Chapter IV: Intelligence and Evidence
4.5.2 Director of Terrorism Prosecutions
The Attorney General of Canada has delegated most decisions about
laying or staying charges and about the general conduct of prosecutions by
federal prosecutors to the Public Prosecution Service of Canada. The bulk of
federal prosecutions occur largely in specialized areas of criminal and quasicriminal proceedings, including drug offences, Competition Act violations and
immigration matters. However, this is not the appropriate institution to conduct
terrorism prosecutions.
Terrorism is an existential threat to Canadian society in a way that murder,
assault, robbery and other crimes are not. Terrorists reject and challenge the
very foundations of Canadian society.
In any criminal matter, prosecutors examine several factors when deciding
whether to prosecute. These factors always include the public interest. In
terrorism cases, however, determining the best course of action consistent with
the public interest involves different considerations from those in most criminal
cases. In terrorism cases, the public interest is the aggregate of considerations
which includes national security, international relations and the impact of
prosecutions on sensitive intelligence operations.
For this reason, decisions about proceeding with a terrorism prosecution should
be made by the Attorney General of Canada. The AGC has the resources and
the legitimacy to take into account the public interest in a way that a delegate
does not. A quasi arm’s-length agency like PPSC is, by design, independent from
government and, as such, is unsuited to make determinations about the public
interest where terrorism cases are involved.
There is also a need for expertise in terrorism prosecutions. It would be advisable
to create a position of Director of Terrorism Prosecutions (DTP), serving under
the Attorney General of Canada, to create a pool of experienced counsel for
terrorism prosecutions. This small team of counsel could also provide legal
advice about the conduct of national security confidentiality proceedings under
section 38 of the Canada Evidence Act and give legal advice to agencies that
collect intelligence and evidence in terrorism investigations.
The DTP should also be the decision-maker regarding the use of human
intelligence sources as witnesses, as well as the liaison with police, intelligence
services and foreign partners on matters concerning terrorism and national
security.
The DTP should prosecute the criminal allegation and litigate all privilege
claims, including those involving national security privilege. The DTP would
work closely with the intelligence and law enforcement communities. This
harmonized approach should promote carefully considered and fair terrorism
prosecutions.
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4.6 Determining National Security Privilege Claims
In a terrorism prosecution, the Attorney General of Canada may have to consider
asking the Federal Court not to authorize the disclosure of information, in
order to prevent harm to international relations, national defence or national
security. If the Court agrees and refuses to authorize disclosure, the defence will
be denied the information, but the prosecution will also be unable to rely on
that information to secure a conviction. The legal basis for such a claim is found
in section 38 of the Canada Evidence Act, and is known as national security
privilege.
Two questions are central to the processes of litigating the section 38 claim and
proceeding with the criminal trial. Would disclosure of the information harm
Canada’s interests? Is the disclosure of the information truly necessary for the
defence to be able to respond to the charges?
The section 38 procedure requires two different courts to decide similar and
closely related issues. Any non- or partial non-disclosure order made by the
Federal Court under section 38 will effectively have to be re-litigated before the
trial judge. This re-litigation is required because section 38.14 of the Canada
Evidence Act requires the trial judge to accept the Federal Court order, but also
requires the trial judge to determine if any additional order is appropriate to
protect the accused’s right to a fair trial in light of the non-disclosure order.
Section 38.14 protects an accused’s right to a fair trial. However, it places trial
judges in the difficult position of deciding, on incomplete information, whether
the right to a fair trial has been compromised by a Federal Court non-disclosure
order.
There are serious and irremediable disadvantages to the current two-court
system for resolving issues of national security confidentiality. The Federal Court
is in the difficult position of having to assess what the defence needs for full
answer and defence in the absence of any intimate familiarity with the issues
in the criminal trial. The trial judge, on the other hand, is given the impossible
task of assessing the importance of the undisclosed information to the defence
–without any direct access to that information.
The Federal Court does not have full information about the trial, while the
trial judge does not have full information about the secret information that is
subject to a non-disclosure order. Section 38 litigation, as it currently occurs,
delays and disrupts terrorism prosecutions, while leaving the trial judge to
decide what, if any, remedy is necessary to compensate the accused for the lack
of disclosure. The trial judge may have to rely on blunt remedies, including a stay
of proceedings that will permanently end the prosecution. The trial judge is not
able to revise the non-disclosure order, even though this power is considered
to be critical in other countries that deal with the same issues of reconciling
competing interests in disclosure and secrecy.
�Chapter IV: Intelligence and Evidence
These problems are compounded by the delays to the criminal trial occasioned
by the separate section 38 proceedings, and the possibility of appeals of section
38 issues to the Federal Court of Appeal and the Supreme Court of Canada.
These interlocutory appeals can bring the criminal trial to a halt until they are
resolved and may result in a mistrial because of unreasonable delay. Instead,
there should be one decision-maker with access to all the relevant information
and with the jurisdiction to make all the necessary findings and decisions. The
current process in Canada, unique among Western democracies, needs to be
changed.
Section 38 of the Canada Evidence Act should be amended so that claims of
national security privilege in a trial of terrorism offences would be adjudicated
by the trial judge as part of the criminal proceedings. Superior courts have
constitutional jurisdiction to try criminal cases. Given the desirability of a single
court, the most practical solution is to give the trial court jurisdiction over all
aspects of disclosure and all claims of privilege. Appeals of decisions on section
38 claims should be allowed only after the verdict in the criminal trial.
The current procedure for dealing with section 38 claims does not allow the
accused to participate, even though the decision about the claim may limit
the disclosure of material that might help the accused’s defence. The Canada
Evidence Act should be amended to allow security-cleared “special advocates” to
represent the interests of the accused, see the material for which the Attorney
General of Canada is claiming national security privilege and, if warranted,
challenge the claim. This role would be similar to that played by special advocates
in immigration security certificate cases. Though passing information to clients
would be prohibited, such special advocates would provide a much needed
adversarial challenge to claims of national security privilege.
Special advocates would help to satisfy the constitutional right of an accused
person to make full answer and defence. The accused would not be permitted
to attend the hearing at which the privilege claim is determined or be informed
about the information at contest unless the judge authorizes disclosure.
4.7 “Disclose or Dismiss”: The Role of the Attorney General of
Canada
At present, the Federal Court may, under section 38 of the Canada Evidence Act,
order information to be disclosed despite a national security privilege claim by
the Attorney General of Canada (AGC). However, the AGC can issue a certificate
preventing disclosure that has been ordered. Besides the authority to override
court orders, the AGC has powers relating to terrorism prosecutions. No terrorism
charge can proceed without the Attorney General of Canada’s consent.
The consequences of making these decisions are serious. The public interest
should be the guiding factor in each case. Because the Attorney General of
Canada already has the first and last word regarding terrorism criminal charges,
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it stands to reason that the AGC should also be the ultimate decision-maker
whenever the dilemma to disclose or dismiss arises.
Each of these powers of the Attorney General of Canada has stirred some
controversy among critics who worry that the AGC’s intervention can inject
“politics” into what should be an “independent” judicial system. These criticisms
do not stand up to scrutiny, because decisions made by the AGC are not based
on partisan considerations. They can only be considered ”political” in the broader
sense that citizens in a democracy entrust their elected officials with the power
to make decisions about the public interest in matters of national security.
Elected officials ultimately are responsible, with the Cabinet and the Prime
Minister at the apex of that structure, to provide for the security of the nation.
In addition to domestic consequences, national security decisions can have
international ramifications, and therefore should not be made solely by the
judiciary. The Attorney General of Canada, as Chief Law Officer of the Crown,
is the appropriate official to bring both political authority and legal probity to
decisions regarding terrorism criminal prosecutions that have an impact on the
public interest.
In our legal and constitutional framework the ultimate decision-maker is the
Attorney General of Canada. Where the decision truly is “disclose or dismiss,” the
current framework gets it right.
4.8 Source and Witness Protection
Law enforcement and intelligence agencies acknowledge that persons who
provide information to them often do so at great risk to themselves and possibly
to others close to them. Maintaining access to information from human sources
may require the government to provide protection. Where individuals assisting
the police are protected by police informer privilege, their identities are kept
secret. If they do testify as witnesses, or if their identity is revealed inadvertently
to their adversaries, these individuals can be protected through formal witness
protection programs. In contrast, individuals who serve as sources to CSIS but
who do not become witnesses do not have access to witness protection.
The Air India narrative demonstrates that, particularly when dealing with
members of communities that may be preyed upon by extremists, individuals
may often be willing to provide information to the authorities only if they are
not required to expose their identities – by, for instance, testifying in a terrorism
prosecution. The reluctance of sources to become witnesses is an important
example of the problems caused by the traditional relationship between
intelligence and evidence.
In terrorism cases, the current federal Witness Protection Program does not
sufficiently address the multiple needs of witnesses and their families. The
Commission recommends the creation of a position of “National Security
�Chapter IV: Intelligence and Evidence
Witness Protection Coordinator” to deal with witness protection issues in
terrorism matters.
One important responsibility of the Coordinator would be to determine who is
allowed to enter the Witness Protection Program. The Coordinator could decide
whether to offer protection to human sources and witnesses, and to their
families, in criminal and intelligence investigations.
At present, the RCMP controls admission to the Program. Having the Coordinator
make admission decisions would insulate decisions about protection of
witnesses from decisions about investigations and prosecutions. It is not
appropriate that a police agency with an interest in ensuring that sources agree
to become witnesses make decisions about admission into a witness protection
program. This is conflict of interest.
It is not clear whether police informer privilege extends to CSIS sources or, if it
does not, whether it should. CSIS counterterrorism investigations are preventive.
They often occur during the early stages of suspicious activities. CSIS may have
difficulty determining whether its investigations will later uncover criminal
behaviour that would warrant police investigation and criminal prosecution.
Allowing CSIS to promise anonymity and to bring the privilege into play at
that point might jeopardize subsequent terrorism prosecutions because those
sources would not be able to testify. CSIS would perhaps be tempted to offer
anonymity to assist it to collect intelligence, and much less interested in helping
to make sources available to testify in terrorism prosecutions. This might lead to
the privilege coming into play in particular situations in a way that serves the
interests of CSIS, but not the broader public interest.
CSIS sources should nonetheless receive some protection against disclosure
of their identities. The common law recognizes a category of privilege – the
“Wigmore privilege” – that protects the confidentiality of information that
is given in the expectation that it will be kept confidential, in circumstances
when it is in the public interest to foster the type of relationship in which the
confidential information was disclosed. At trial, the Wigmore privilege is typically
invoked by the prosecution. However, the source may seek its protection if the
prosecution does not.
Police informer privilege cannot be waived, except with the agreement of both
the police and the informer. The informer alone can waive the Wigmore privilege,
even if the party promising confidentiality (for instance, CSIS) does not agree.
4.9 Conclusion
Intelligence and law enforcement agencies both have legitimate, but sometimes
competing, claims about how to use intelligence. Intelligence agencies may want
to maintain the secrecy of the intelligence for operational reasons, while police
agencies may want to see it made public as evidence in criminal prosecutions.
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Neither claim trumps the other. The result is a tension between the two uses of
intelligence. This is the “intelligence into evidence” conundrum.
Both types of agencies must re-examine their practices and procedures and find
ways to avoid this dilemma. However, in some cases, a conflict will remain. The
key is to ensure that, where a conflict remains about the possible disclosure of
intelligence for a criminal prosecution, a single, independent decision-maker
can resolve the conflict in the public interest. This decision-maker should have
the experience, perspective and authority to transcend the narrower interests
of the agencies involved. The recommendations in Volume Three are directed to
changes in legislation, policy and procedure to assist in identifying and acting
on this broader public interest.
�VOLUME ONE
THE OVERVIEW
CHAPTER V: AVIATION SECURITY
5.0 Introduction
More than 24 years after the bombing of Air India Flight 182 and 8 years after
the 9/11 attacks, terrorism against civil aviation remains a pressing global
concern. Experts attribute this to the horrific and attention-getting results
achieved through air terrorism: the sheer number of victims who can die as a
result of a single attack and the fact that flag carriers can be seen as surrogates
for countries. An attack on an airline whose planes display our flag, for example,
may be seen as an attack on Canada itself. For these reasons, successful attacks
on civil aviation yield high propaganda value, and vigilance in civil aviation
security must continue so long as the terrorist threat remains.
The circumstances which permitted an unaccompanied, interlined bag to be
placed on board Air India Flight 182, and to eventually destroy it, provide the
context for the Commission’s review of passenger and baggage screening and
civil aviation security in general. One of the key lessons that emerges from the
bombing is that security measures must be applied in mutually reinforcing layers
in order to address all susceptibilities in the system. There is no one-size-fits-all
solution. We must resign ourselves to the fact that terrorists will continuously
probe the system’s vulnerabilities. Similarly, we must close the remaining gaps
in civil aviation security – some of which have been known for decades – before
another tragedy occurs.
The evidence at the Commission’s hearings bore out the experts’ assertions that
security must begin on the ground. There are limited options once an aircraft is
airborne. This is demonstrated by the events leading up to the bombing of Air
India Flight 182.
5.1 The Bombing of Air India Flight 182: A Multifaceted Failure of
Aviation Security
The bomb that destroyed Air India Flight 182 on June 23, 1985, killing all 329
passengers and crew, was placed on the aircraft in Toronto in an unaccompanied,
interlined bag. The bag containing the bomb began its journey in Vancouver
on a Canadian Pacific Airlines (CP Air) flight to Toronto and was transferred
(“interlined”) to the Air India Boeing 747, in Toronto. Throughout its entire
transport, the suitcase containing the bomb was not accompanied by any
corresponding passenger. Less than an hour before the Air India bombing,
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another unaccompanied suitcase containing a bomb exploded at Narita Airport
in Japan, killing two baggage handlers and injuring four others. That suitcase
had travelled from Vancouver to Narita on another CP Air flight and had also
been interlined, destined for loading on an Air India flight to Bangkok. Although
Air India was operating under an elevated threat level, CP Air was not informed
of this fact and was operating under normal security protocols.
With today’s knowledge of the threat of sabotage, a number of the circumstances
that allowed for unaccompanied bags to be placed on both CP Air flights for
interlining to Air India are alarming. In retrospect, the behaviour of those who
booked and paid for the tickets and checked in the bags should have raised red
flags, but a customer service mentality governed at the time, and airline staff
were not instructed to watch for indicia of harmful intentions. The names on the
reserved airline tickets were changed just prior to their purchase; a return ticket
was switched to a one-way booking; the tickets were purchased within a few
days of the flights; international tickets were paid for entirely in cash; demands
to interline the bag destined for Air India Flight 182 were made in the absence of
a reservation on that flight; and when the request to interline that bag met with
resistance, the “passenger” identified as “M. Singh” became belligerent with the
CP Air check-in counter staff at the Vancouver International Airport. Were it to
occur now, some of this behaviour would be identified as presenting a possible
threat as a result of airline ticketing surveillance measures that take place prior
to the passenger’s arrival at the airport. In fact, relenting to the demands of
“M. Singh” to interline the bag without a reservation was contrary to industry
practice and to CP Air’s own security protocols, even as they existed in 1985.
The bombing of Air India Flight 182 was preventable but was made possible
because of an unintentionally coordinated series of aviation security failures on
the part of a number of stakeholders:
• CP Air failed to follow its own baggage security procedures;
• Both Air India and Transport Canada failed to appreciate the threat
posed by unaccompanied, interlined bags;
• Air India was inexcusably careless in deploying checked baggage
screening devices and procedures which it ought to have
known were inadequate for the purpose, and failed to prevent
unauthorized bags from being placed on its flights;
• Transport Canada, on behalf of the Government of Canada, failed
in its role as regulator by neglecting to adapt the existing aviation
security regime to confront the known terrorist threat of sabotage;
• Transport Canada also failed in its regulatory role by denying Air
India the security support it required and by permitting Air India to
rely on security procedures and plans that were inadequate to
respond to the known threat of sabotage;
�Chapter V: Aviation Security
• Due to a climate of excessive secrecy nurtured by uncritical
adherence to the “need-to-know” principle, crucially important
intelligence was not shared, nor was it collected and analyzed in a
coordinated manner; and
• Each of Air India, Transport Canada and the Royal Canadian
Mounted Police (RCMP) failed to appropriately assess threat
and intelligence information and to adequately communicate such
information to relevant stakeholders.
The civil aviation security failures that permitted the bomb to be placed in
the hold of the Air India Boeing 747 include a failure of screening technology
and an over-reliance on it. The evidence at the inquiry demonstrated that Air
India placed undue reliance on such technology, which consisted of Linescan
X-ray devices and the Graseby PD4-C (PD4) hand-held explosives vapour and
trace detector. At the time of the bombing, Air India’s security plan for its
Canadian operations included X-raying checked baggage as a standard security
measure – an extraordinary requirement at the time. But by today’s standards,
X-ray technology of that era was both primitive and ineffective in screening
for explosive devices. Metal items would appear as opaque, dark objects but,
because of the quality of the images’ resolution, careful attention and some
interpretation were required on the part of the X-ray operators. These factors
– which were known to authorities at the time – led the Commission’s primary
expert on civil aviation security, Rodney Wallis, to describe the use of X-ray
equipment to screen for explosive devices in 1985 as a “…largely a cosmetic
approach to baggage security” that “…lulled the public and some airline
managements into a false sense of security.” The PD4 was a flawed device that
was unfit for use in detecting explosives, its singular purpose. In theory, the
PD4 detected nitrated organic molecules, which would include nitro-glycerine
and trinitrotoluene (commonly known as TNT). Testing at Lester B. Pearson
International Airport on January 18, 1985 in the presence of officials from
Transport Canada, the RCMP, the Peel Regional Police and Air India showed that
it was ineffective in detecting gunpowder unless its probe was placed within
one inch of the gunpowder sample.
The Air India flight that landed at and departed from Toronto on June 22, 1985
was known as Air India Flight 181, but after stopping at Mirabel International
Airport, it became Air India Flight 182. In Toronto, all checked-in bags, as well
as all interline bags from connecting flights were sent to the international
baggage area for X-ray examination. After approximately two hours and fifteen
minutes of operation, the X-ray machine broke down. The Air India security
officer then directed the Burns International Security guards to use the PD4
to screen the remainder of the checked baggage for explosives. Apart from a
cursory demonstration, the Burns guards had not been trained on the use of the
PD4 and were unfamiliar with its operation. The evidence suggests that the PD4
sounded when brought close to some bags, but that this fact was not reported
to the Burns supervisor and those bags were loaded onto the aircraft anyway.
Whether the bag checked by “M. Singh” and interlined to Air India Flight 182 was
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examined by X-ray before the machine malfunctioned or if it was examined by
the PD4 afterwards cannot be determined.
In 1985, Canada was poorly prepared to defend against aviation terrorism,
despite knowledge of the threat of sabotage and protective security measures.
This country’s aviation security regime was inadequate due to complacency,
poor training and poor supervision of the private security guards hired to
screen passengers and baggage. There was no such thing as a “security culture.”
The few security controls that applied to baggage were insufficient to meet the
known threat of sabotage. In fact, security measures that could have prevented
the suitcase containing the bomb from being placed on the flight were available,
but were simply not implemented. The security regime of the day suffered from
poor regulatory oversight, a lack of vigilance, a culture of complacency, an overconcern for customer convenience and a reactive approach to security threats.
Despite a growing awareness that sabotage would be the terrorist’s preferred
means, aviation security measures were still focused on preventing hijacking.
Except in certain cases of heightened threat, little emphasis was placed on the
screening of checked baggage to be loaded in the hold of passenger aircraft.
5.2 From Hijacking to Sabotage: Evolution of the Terrorist Threat
Hijackings were the predominant threat to civil aviation in the 1960s and
1970s. The specialized United Nations agency with law-making authority in
international civil aviation, was, and continues to be, the International Civil
Aviation Organization (ICAO). It responded to the threat by adopting Annex
17 to the Convention on International Civil Aviation (“Chicago Convention”), the
security annex entitled Safeguarding International Civil Aviation Against Acts of
Unlawful Interference. The Annex sets out standards (adherence to which is
required of states that are signatories to the Convention, known as “Contracting
States”) and recommended practices (which are in the nature of “best practices”
or “desirable measures”). The standards were – and are – understood to be
“minimum standards”that prosperous nations should exceed. Canada’s domestic
response included security measures that were designed to minimize the risk of
hijackings. A 1973 amendment to the Aeronautics Act permitted regulations to
be made for searching passengers, baggage and cargo. (The Act was amended
again in 1976 to extend requirements to foreign aircraft.) The “no search, no fly”
rule – fundamental to passenger and baggage screening – was included in the
Act. This rule prohibited the boarding of commercial airliners unless authorized
searches of persons and their belongings had been conducted.
The anti-hijacking measures appeared to have been effective. As of 1980, there
had not been a successful hijacking in Canada since 1971, and none had been
attempted since 1974. Hijackings around the world were declining by the late
1970s/early 1980s. By 1979, RCMP Security Service intelligence revealed that
sabotage and bomb threats were of greater concern than hijackings. A 1980
Transport Canada report concluded that acts of sabotage posed the greatest
threat to civil aviation in Canada. In that year, the Joint Study Committee on
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Civil Aviation Security (whose membership included senior representatives
of Transport Canada, the Air Transport Association of Canada and the RCMP)
concluded:
“…acts of sabotage rather than hijacking were perceived as
the main threat…. As passenger screening procedures have
proven to be an effective deterrent to prevent the carriage
of unauthorized weapons and explosives in the aircraft cabin
there is concern that persons are now attempting to place
explosives in checked baggage, express parcel shipments,
cargo and mail.”
In recognition of the changing nature of the threat, Annex 17 was updated
in 1981. Recommendation 4.1.14 provided that “…Contracting States should
establish the necessary procedures required to prevent the unauthorized
introduction of explosives or incendiary devices in baggage, cargo, mail and
stores to be carried on board aircraft.”
In 1982, Transport Canada conducted a study on air cargo and baggage security
measures. A draft report was circulated in 1983. It recommended additional
measures in high-level threat situations. The report also stated that all checked
baggage should be manually searched or X-rayed and that all interlined
baggage should be searched or scanned by X-ray. Unaccompanied baggage
should be refused unless searched, sealed and held for 24 hours minimum. The
Commission notes that some form of passenger-baggage reconciliation would
have been required in order to identify unaccompanied baggage. Significantly,
the report noted the temptation to relax security measures in light of tight
funding and lack of terrorism incidents.
5.3 Domestic and International Responses to the Bombing
The Government of Canada responded quickly to the bombing of Air India
Flight 182 by imposing passenger-baggage reconciliation and investing in
new technology designed to assist in screening passengers and their baggage.
In the weeks and months that followed the bombing, Transport Canada and
the Government of Canada took further action to improve national aviation
security. A rigid new Ministerial Directive was issued for all flights to Europe or
Asia, requiring that all checked baggage be physically inspected or X-rayed, all
cargo be held for 24 hours unless it was a perishable item from a known shipper,
and all passengers and carry-on baggage be fully screened. The amended
Aeronautics Act came into force on June 28, 1985, with updated aviation security
regulations in December 1985.
Similarly, the international civil aviation community quickly responded to the
bombing of Air India Flight 182 and the bombing at Narita Airport. The trade
association for the world’s international scheduled airlines, the International
Air Transport Association (IATA) convened an extraordinary meeting of its
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Security Advisory Committee (SAC) within days of the bombings. Led by
Rodney Wallis, IATA’s Director of Security at the time, the meeting resulted in
a number of recommendations that brought about what Wallis described as
“massive changes” in civil aviation security requirements around the world. The
most significant of these was passenger-baggage reconciliation, the process
by which passengers are matched with their baggage in order to prevent
unauthorized baggage from being placed on board aircraft. A passenger and
his or her baggage would be treated as a single entity. However, because IATA
is an industry association, its recommendations reflect best practices and lack
the force of law.
Properly implemented passenger-baggage reconciliation might well have
prevented the bombing of Air India Flight 182. Had passenger-baggage
reconciliation been conducted in relation to either the CP Air flight or Air India
Flight 182, the bag containing the bomb should have been offloaded. In fact, a
year earlier, in 1984, this process had been successfully employed in Canada by
KLM Royal Dutch Airlines and CP Air in the context of a bomb threat, and had
caused only minor delays.
ICAO also acted in the immediate aftermath of the bombings. As a result of
a special meeting of ICAO’s Ad Hoc Committee of Experts, Annex 17 to the
Chicago Convention was amended to require that a form of passenger-baggage
reconciliation be conducted by international air operators. However, what
was eventually published as a standard in Annex 17 was flawed in that while
it prohibited transportation of all baggage (including interlined baggage)
belonging to passengers who registered but did not present themselves for
boarding on international flights, it did not cover bags that were associated with
passengers without a reservation. The unaccompanied bag that was transferred
from the CP Air flight to the Air India flight in Toronto was not associated with
a booked passenger. Given that the standard was adopted in response to the
bombing of Air India Flight 182, it is ironic that compliance with this standard
would not have prevented a recurrence of the same mistake that caused that
disaster.
Canada was the first ICAO member country to require passenger-baggage
reconciliation on international flights, in advance of the standard’s publication.
This measure was later extended to domestic flights.
But it was not until the bombing of Pan American World Airways (Pan Am)
Flight 103 on December 21, 1988 over Lockerbie, Scotland – a copycat of the
Air India Flight 182 bombing – that the international civil aviation community
committed more fully to addressing the threat posed by the unaccompanied,
interlined bag.
5.4 The Commission’s Aviation Security Mandate
The Commission’s aviation security mandate was to conduct an inquiry for the
purpose of making findings and recommendations “…with respect to … whether
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further changes in practice or legislation are required to address the specific
aviation security breaches associated with the Air India Flight 182 bombing,
particularly those relating to the screening of passengers and their baggage.”
However, early in the Commission’s work, it became apparent that a narrow
focus on passenger and baggage screening would not provide assurance that
all of the deficiencies that led to the bombing had been addressed. In addition,
longstanding gaps in civil aviation security were identified. Terrorists probe
the system for weaknesses that they can use to their own advantage. Anything
and anyone that has access to the aircraft must be secured to the extent
that is possible, given predetermined levels of acceptable risk for all areas of
vulnerability. A holistic approach to security is required, and the same approach
was required of the Commission.
The next act of sabotage against civil aviation in Canada could well have air
cargo as its target. Carried primarily on passenger aircraft, an attractive target
for terrorists, air cargo in this country is neither routinely searched prior to
loading, nor subjected to adequate screening measures. In many respects,
air cargo security today is strikingly similar to the checked baggage security
regime as it existed prior to the loss of Air India Flight 182. In contrast to the
multi-layered approach to screening passengers and their baggage, air cargo is
generally placed alongside baggage in the aircraft hold so long as the shipper
meets the minimal criteria of having had a regular business relationship with
the air carrier. This brings to mind the image of fully screened passengers seated
on aircraft with largely unscreened air cargo perhaps one metre beneath them.
Improvements to passenger and baggage screening measures that are aimed at
preventing a concealed bomb from being placed aboard passenger aircraft are
pointless if that bomb can still be directed on board the same plane hidden in
cargo that has not been X-rayed. The inadequate approach to air cargo was the
single most disturbing revelation about the remaining deficiencies in Canada’s
civil aviation security regime. In addition, evidence at the Commission’s
hearings disclosed serious weaknesses in airport security that could undermine
the defence provided by passenger and baggage screening.
As a result, and with the approval of the government, the Commission
interpreted the aviation security aspect of its mandate broadly, and considered
a wide range of issues including air cargo security, non-passenger screening
(NPS), and the particular challenges presented by Fixed Base Operations (FBOs)
and General Aviation (GA).
5.5 Passenger and Baggage Screening Today
Passenger and baggage screening is now much more comprehensive than it
was in 1985. Creation of the Canadian Air Transport Security Authority (CATSA)
on April 1, 2002 represented a significant improvement in screening passengers
and baggage. In November 2002, CATSA, a Crown corporation, became
responsible for effective, efficient and consistent screening nationwide of all
persons accessing aircraft or airport restricted areas through screening points, as
well as their belongings and baggage. This is referred to as pre-board screening,
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or PBS. As of January 1, 2006, 100 per cent of checked bags for flights departing
Canadian airports were screened with explosives-detection equipment. CATSA
now screens 37 million passengers and 60 million pieces of luggage at Canadian
airports each year. Hold bag screening, or HBS, is accomplished through multiple
layers of screening that involve both automated detection, using state-of-theart detection equipment, and human skill and judgment. X-ray machines,
computed tomography (CT or CAT) devices and explosives trace detection
technology are all used for PBS and HBS. At the heart of both PBS and HBS is
the “no search, no fly” principle.
Unlike the low-powered, low-resolution X-ray machines used in 1985, the
devices now used to scan baggage employ two X-ray beams at different
energy levels, allowing differentiation between organic and inorganic materials
within an object being scanned. The images are displayed on high-resolution
monitors and colour-enhanced in a manner that makes them stand out from
surrounding materials. Alertness in screeners involved in PBS is maintained
through a training and motivational tool that randomly projects the image of a
weapon, or of an explosive device or substance.
CATSA contracts screening operations to independent service providers. The
contracted service delivery model fulfills CATSA’s objectives at a reasonable
cost. However, contracted service providers – and by extension, CATSA –
have encountered significant difficulties in recruiting and retaining screening
personnel. This is an ongoing problem that has resulted in staffing shortfalls
and complicates training programs.
In some foreign jurisdictions, screeners search passengers and baggage for
large amounts of currency and illicit items such as narcotics, in addition to
weapons and substances that are potentially dangerous to civil aviation. The
sole focus of CATSA screeners, however, must remain that of civil aviation
security. The task of identifying weapons and improvised explosive devices
before they are placed on aircraft is simply too important to be shared with
other functions.
Screening points must be tested to assist in identifying weaknesses in the
system, whether these occur in the form of technical deficiencies or as a result of
human failure. Effective follow-up is essential. This testing includes infiltration
tests conducted by Transport Canada security inspectors, who attempt to bring
concealed weapons or explosive devices through PBS check points. Infiltration
test failures result in CATSA receiving an“enforcement letter,”advising of the failure
and requiring a written response explaining how that failure is being addressed.
CATSA’s responses to an enforcement letter can include decertification of the
screening officer(s) involved, which necessitates retraining or “de-designation”
of such officer(s). The Standing Senate Committee on National Security and
Defence (Senate Committee) has recommended that a summary of intrusion
test results be released to the public after some reasonable period during
which the deficiencies could be addressed. Ultimately, the evidence at the
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inquiry did not clearly demonstrate the need to disclose infiltration test results
but, nonetheless, there must be continual pressure on all parties to ensure that
deficiencies are quickly addressed – in order to justify the public’s investment in
CATSA and its confidence in our aviation security regime.
Currently, there is a trend in passenger screening that marks a move toward
identifying individuals with hostile intent. This trend is exemplified by ongoing
interest in behavioural analysis, which is already being practised to a limited
extent, and by creation of the Passenger Protect Program (PPP).
Behavioural analysis is a form of PBS that involves monitoring passengers for
atypical or suspicious behavioural patterns or attributes that suggest that
those passengers may present a risk to civil aviation and should therefore be
subjected to more rigorous questioning. Proponents of behavioural analysis
contend that it screens individuals for potentially hostile intent, and that, where
practised, it provides another necessary layer in the multi-layered approach that
is essential to civil aviation security. In fact, it is reasonable to conclude that, had
some method of behavioural analysis been used in 1985, the behaviour of “M.
Singh” may have triggered greater vigilance and prevented the bombing of Air
India Flight 182. Today, the airline industry monitors ticket purchasing patterns
using tools that were not available in 1985. Relevant factors include payment
in cash through third parties, one-way bookings and certain travel destinations.
However, analysis of behaviour observed at the airport terminal raises a number
of concerns, most notably the difficulty in constructing an effective and accurate
tool that respects individual rights and is not prone to abuse. There is a fine line
between behavioural criteria and those which amount to racial profiling.
Behavioural analysis has been used in civil aviation security by other countries,
notably Israel. To some extent, it is already practised in Canada in that it is used
to observe passengers by Aircraft Protective Officers (APOs), the armed RCMP
officers who provide covert security on select flights. However, if behavioural
analysis were to be used in PBS, a high degree of discretion would have to be
assigned to CATSA’s frontline personnel. In the end, the Commission shared the
conclusion of the CATSA Act Review Advisory Panel (CATSA Advisory Panel) that,
prior to any adoption of this measure as part of PBS, international experiences
with this method must be thoroughly reviewed. In addition, the accuracy of
the process and the competencies and training required must be carefully
assessed.
The PPP created and maintains Canada’s no-fly list. Under this program, which
was launched on June 18, 2007, the Minister of Transport, Infrastructure and
Communities can deny boarding privileges to any passenger the Minister
believes poses an “immediate threat to aviation security.” The PPP has been
criticized by the Privacy Commissioner of Canada and her provincial and
territorial counterparts, who have questioned the rationale for the program, as
well as the lack of transparency in the process by which individuals are selected
for inclusion on the no-fly list, which is known as the Specified Persons List
(SPL). The SPL is created by an advisory group that includes the RCMP and
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the Canadian Security Intelligence Service (CSIS), and is updated regularly.
Criteria for inclusion in the SPL are not set out in legislation but are simply
provided as public information on Transport Canada’s website. The Office of the
Privacy Commissioner has questioned the rigour with which foreign-sourced
information provided by the RCMP and CSIS to other advisory group members
will be evaluated. An individual who is denied boarding privileges receives an
emergency direction that is in force for 72 hours. He or she is also referred to the
Office of Reconsideration, which is part of Transport Canada. The reconsideration
process has been heavily criticized for its lack of a legislative basis, for failure to
provide the information underlying the decision, for failure to provide an oral
hearing and for the fact that the final decision is made by the Minister – the
same official who made the initial determination to deny boarding privileges.
To date, there has been only one denial of boarding privileges under this
program: in June 2008. The person who was denied boarding has instituted an
application for judicial review, which includes a contention that the PPP violates
his Charter rights to freedom of movement and due process.
In time, the value of this program – which may include offering a degree of
reassurance to other countries that Canada has a robust aviation security regime
– may be shown to be significant. However, that has yet to be demonstrated.
5.6 The Long-Standing Inadequacy of Canada’s Air Cargo Security
Measures
Much criticism was directed at the Government of Canada by witnesses at
the Commission for the long delay in addressing the known gap in air cargo
security. Air cargo was recognized in Canada as being vulnerable to sabotage
by terrorists, both prior to 1985 and in the immediate aftermath of the bombing
of Air India Flight 182.
The international civil aviation community also recognized the risk posed by
cargo in the wake of the Air India and Pan Am losses, and acted quickly to devise
a viable solution for securing cargo for air transport. Following the bombing
of Pan Am Flight 103 over Lockerbie, Scotland, an amendment to Annex 17
encouraged ICAO Contracting States to implement a system of regulated agents
in order to ensure the security of cargo by those entities handling cargo prior to
its arrival at the airport. The United Kingdom and many other European countries
followed suit, developing regulated agent systems that were highly lauded
by the aviation security experts who appeared at the present Commission’s
hearings. Many of these same countries are also utilizing advanced screening
technologies for searching air cargo.
To date, however, Canada has failed to incorporate such systems, including
X-raying cargo, into its aviation security regime, despite knowledge of the
deficiencies in the existing air cargo security program and despite ICAO’s
recommendations. Although there is a system of known shippers in Canada,
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this term is outdated and, more importantly, has been misinterpreted and used
to refer to entities that have only a cursory business relationship with air carriers.
Contrary to the Annex 17 definition of regulated agents, there is no requirement
in Canada for known shippers to apply security controls to cargo in their care,
nor is there a requirement for government oversight. Cargo is not systematically
searched by air carriers, which constitute the only stakeholder charged with the
responsibility for searching cargo, and there is little access to any technological
equipment for this purpose. There was no evidence to suggest that any training
is provided for cargo searching in Canada and concerns have also been raised
about airside access to, and monitoring of, cargo.
Air cargo has been left dangerously exposed to the threat of bombs, explosive
devices and other methods of unlawful interference. It has been 29 years
since bombs were first recognized as the major threat to civil aviation, and still
this threat has yet to be comprehensively addressed. While passengers and
baggage continue to provide means by which bombs may be placed aboard
aircraft, both are subjected to thorough screening processes. Air cargo is not.
Viewed in this manner, cargo is less the “next threat” than it is the “last war” that
is still being fought, albeit ineptly. To be truly effective the “war” must be fought
on all major fronts, not just a chosen few.
By 1991, at the time Annex 17 was amended to include the definition of the
known shipper (which was later changed to “regulated agent”), Canada had
intimate knowledge of the seriousness of the risk posed by air cargo and should
have taken steps to address this gap in aviation security. In 2009, some 18 years
later, virtually no changes have been implemented to enhance the security of
air cargo.
While harmonization with international partners is a desirable objective, and
responding positively to recommendations from ICAO is expected, air cargo
security should not be driven by the intervention or inducement of others. Air
cargo has been recognized as a weakness in aviation security in Canada since
the 1980s, yet Canada chose not to begin addressing this gap until 2004, at a
time when cargo security had become a greater priority in the United States.
It is difficult to shake the appearance that progress in air cargo security in
Canada has been prompted by external influences from the international civil
aviation community, through ICAO, and because of developments in Canada’s
largest trading partner, the United States. Yet the United States itself has come
under fire for not moving more quickly on securing air cargo since the issue
was identified in 1996 by the Gore Commission. Deficiencies in security cannot
await the slow movement of others.
Such deficiencies, which had grave consequences in 1985, have direct application
to the current context of air cargo security. Cargo represents a significant risk
to civil aviation and great care must be taken not to repeat previous mistakes.
The Commission’s mandate requires consideration of whether a civil aviation
security regime is in place that will assure the security of those who come into
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contact with civil aviation and whether an effective regime exists to thwart
possible terrorist attempts to breach the security barriers as erected. With the
knowledge that cargo is susceptible, vulnerable and inadequately protected, it
is imperative that connections to the past are drawn.
The statistics alone demonstrate the need for a more effective approach to
air cargo security. In Canada, almost 80 per cent of air cargo is transported
on passenger aircraft. There are 30 million potential shippers, approximately
2 million shippers for all-cargo aircraft, 20,000-30,000 frequent shippers and
750-1500 freight forwarders (approximately 250 of whom belong to Canadian
International Freight Forwarder Association (CIFFA)).
Federal Budget 2009 pledged funding to a new air cargo security initiative. The
Commission supports a comprehensive initiative that not only complies with
Canada’s international treaty obligations, but meets or exceeds international
best practices. The Commission urges that this initiative be implemented
expeditiously.
5.7 Improving Airport Security
Measures aimed at protecting the airport environment are fundamental to
a properly functioning civil aviation security regime. The bombing of Air
India Flight 182 revealed important weaknesses in airport security, including
problems with access control, airport security plans, perimeter security and
general security awareness.
Airports represent the hub of civil aviation, where industry, the government and
the public interface. Virtually all aviation security measures, including passenger
and baggage screening, are conducted at the airport, which essentially functions
as a physical barrier to the aircraft. In a multi-layered approach to aviation
security, the airport must provide a protective environment that supports,
complements and preserves the integrity of all other security measures. To
do otherwise leaves the aircraft, with its passengers and crew, vulnerable to
attack.
Quite apart from the sabotage of aircraft, air terminals themselves are targets of
aviation terrorism. Long line-ups and passenger congestion at airline check-in
and security counters cause large numbers of people to assemble in a confined
area, creating target-rich environments that are ripe for attack. There have been
a number of significant attacks on airports throughout the history of aviation
terrorism. As security defences to safeguard the aircraft are strengthened
through the application of comprehensive measures and the use of increasingly
sophisticated technology, terrorists will be deterred from attempting to place
bombs on aircraft because of the unlikelihood of success. Instead, they will turn
to other civil aviation targets to achieve their objectives, probing for areas of
weakness that can be exploited to their advantage. Canadian airports provide
these in abundance, and the airport terminal is one such area.
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The Commission learned that significant deficiencies have long characterized
airport security in Canada. In particular, access to airside and restricted areas
of airports are poorly controlled. In contrast to the comprehensive, multitiered screening process in the airport terminal, to which all passengers and
baggage are subjected prior to being permitted aboard aircraft, the system for
screening non-passengers who access restricted areas of airports, along with
their belongings, lacks rigour and can be easily circumvented. Lax perimeter
security also allows vehicles and their occupants to enter airside portions of the
airport with minimal, if any, screening. There is evidence to suggest that, once
on airport property, the movement of such vehicles is not carefully monitored.
As a result, despite impressive efforts to safeguard the aircraft against sabotage
from passengers and baggage, opportunities remain for bombs to be placed
aboard aircraft by other means.
Weaknesses in airport security, together with shortcomings in air cargo, Fixed
Base Operation (FBO) and General Aviation (GA) security, have created a real
anomaly in Canada’s defence against air terrorism. Charter and air cargo
services at FBOs and GA facilities, often involve wide-body aircraft, but unlike
similar aircraft arriving at and departing from the air terminals, their crews,
passengers and cargo are unscreened. As such, FBOs and the GA sector present
ready targets for terrorists. The result is that fortress-like security is applied to
the front, more publicly visible side of civil aviation, while the side that is more
hidden from public scrutiny remains exposed. The Senate Committee likens
the current status of aviation security in Canada to a house in which “…the front
door…[is] fairly well secured, with the side and back doors wide open.”
That this situation persists is made all the more remarkable by the fact that,
following the loss of Air India Flight 182, airport security was also considered a
priority in Canada. On July 4, 1985, eleven days after the bombing, Transport
Canada’s Deputy Minister requested an audit of airport security at Vancouver,
Pearson and Mirabel International Airports – the very airports in Canada
through which the bomb had journeyed. The audit report was completed on
July 24, 1985, and revealed a number of serious deficiencies at all three airports.
Common themes included inadequate protection of the aircraft, inadequate
control of access to restricted areas, deficiencies in airport security plans and the
need for improved security awareness – all themes that experts have continued
to highlight as problems today.
Over twenty years have passed, but many of the same deficiencies, including
inadequate access control, that were noted in 1985 by the airport security audit
report and the Seaborn Report – a seminal document in Canadian aviation
security and blueprint for further action in this field – continue to be raised as
urgent concerns today. Many solutions similar to those proposed so long ago
are now being proposed as basic requirements for bringing airport security
to an appropriate level. Even though the Seaborn Report was presented as
a strategic action plan for the Government of Canada in relation to aviation
security, action has been slow in coming. However, Budget 2009 included
$2.9 million in funding for the development of aviation security plans, with
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priority being given to the “initiation of airport security plans” as a result of
pilot projects conducted at several airports in the past year. Budget 2009 also
provided funding to hire additional oversight officers. Virtually all stakeholders
and experts recommended the development of security awareness programs
at airports, and various solutions have been proposed for improving access
control.
It is true that some strides have been made in relation to airport security,
particularly since the terrorist attacks of September 11, 2001. These
improvements have included the creation of CATSA, which in November 2002
was given the responsibility for the random screening of non-passengers and
for developing the biometric Restricted Area Identification Card (RAIC). The
RAIC system has still not been fully implemented at airports across Canada, but
is regarded internationally as a very sound security measure. In addition, airport
security has been improved in the post-9/11 era in the form of covert security
provided by APOs, who are armed and well-trained RCMP officers deployed
through the Canadian Air Carrier Protective Program (CACPP). Although their
primary function is to protect high risk flights while airborne, APOs provide an
additional element of security in the airport environment. Recognizing the
growing security concerns surrounding the airport environment, the CACPP
training program is evolving to provide greater emphasis on such issues. The
CACPP has drawn praise from the international civil aviation security community.
The fact remains, however, that much more needs to be done to buttress airport
security in Canada.
5.8 Identifying the Threat: Past, Present and Future
To be effective, security must be both retrospective and pro-active. That may
seem like a contradiction in terms. However, a consistent theme throughout the
history of aviation terrorism is that vulnerabilities are known long in advance,
but measures are not implemented to meet the threats until an incident occurs.
As Rodney Wallis has written,
Hindsight is a great blessing. History provides an opportunity
for turning hindsight into foresight. Hands-on experience
gained in a variety of countries helps in the development of
security defenses. All security executives should have this
experience and be avid students of what has gone on before.
It will help them predict and prevent incidents occurring in the
future. It will also go a long way to making the skies safer for
passengers and crews and for people on the ground. Security
managers must always be open to innovative ideas and be
unafraid to experiment in the interest of passenger security.
The failure to adjust to the shift in threat from hijacking to sabotage and to the
corresponding threat of bombs in baggage is just one example of a reactive
approach that has plagued civil aviation security from the very beginning.
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Another is the failure to adopt measures to counter the threat posed by liquid
explosives. The measures so quickly implemented to address a threat posed by
liquid and gel explosives in August 2006 actually addressed a threat that had
been known to exist for almost two decades. Even the phenomenon of the
suicidal hijacker existed before the events of September 11, 2001. Continuously
and repeatedly, lessons fail to be learned.
5.9 Use of Intelligence
To be effective, an aviation security program must be intelligence-led, be
based upon up-to-date threat assessments and be resilient enough to adapt
to new threats as they emerge. It is apparent that steps have been taken
toward correcting the intelligence failures that contributed to the bombing
of Air India Flight 182. Those failures were due, in part, to excessive secrecy
and the institutional preoccupation with the “need-to-know” principle. After
the September 11, 2001, terrorist attacks, Canada’s intelligence community
moved away from uncritical adherence to that principle and accepted that, in
many circumstances, the need to share must prevail. On an institutional level,
this has resulted in creation of the Integrated Threat Assessment Centre (ITAC),
an organization established in October 2004 and staffed by representatives
of numerous government agencies. ITAC produces comprehensive threat
assessments focused exclusively on terrorism. No such integrated intelligence
capacity existed in 1985.
CATSA has maintained that it lacks sufficient access to the intelligence
it considers essential to its operations and has sought to participate in
ITAC. Although both CATSA and the Senate Committee have argued that
CATSA should be permitted to develop its own intelligence capabilities, the
Commission agreed with the CATSA Advisory Panel that Transport Canada
remains the most appropriate channel for receiving strategic intelligence
information regarding terrorism and disseminating relevant intelligence to
CATSA as a consumer. As long as relevant intelligence is provided by Transport
Canada, there is no need for CATSA to go beyond its core screening mandate
in order to “re-invent the wheel” by developing an intelligence function.
However, there is considerable value in providing front line personnel with
usable, actionable intelligence through regular briefings or security updates.
This is already occurring, and should be encouraged. This intelligence sharing
keeps front line personnel up to date with current threats but also boosts their
motivation and morale, as well as fostering a genuine sense of mission.
5.10 Risk Management
Risk has been defined as the “chance of loss or harm” or the “probability that some
discrete type of adverse effect will occur.” Threat, which is present in securityrelated risk, is an expression of intention to inflict evil, injury or damage.
A proactive approach to risk management is essential for a robust civil
aviation security regime. The object of risk management is to reduce risk to a
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predetermined and acceptable level (often described as “as low as reasonably
achievable” or ALARA). This object is attained by applying a reliable method
for identifying the highest priority risks in order to determine appropriate risk
control measures. This in turn assists in allocating resources in a cost-effective
manner.
In 1985, the risk of sabotage against Air India would have ranked highly in a risk
matrix. Moreover, risk management processes used at the time should have
identified the June 1st Telex as having a significant impact on the perceived
risk. The telex, sent to all Air India stations on June 1, 1985, contained a threat
advisory from Air India’s Chief of Vigilance and Security Manager. It was based
on intelligence obtained by the government of India and reported that Sikh
extremists were likely to sabotage Air India aircraft by means of time-delayed
explosives being placed in the cabin or in checked baggage. It directed all Air
India stations to implement counter-sabotage measures for flights at all airports.
However, this telex was not shared with Transport Canada, and decisions were
made to employ methods that were known to be of questionable value for the
risk faced, or to waive protective measures where there should have been no
discretion.
The terms “risk-based approach” and “risk assessment” were used liberally
throughout the Commission’s hearings, but at times, those who used these
phrases offered little explanation or had little apparent regard for their precise
meaning. This may have created an illusion of rigour where the evidence
may, in some instances, suggest otherwise. When pressed, Transport Canada
officials were unable to articulate a consistent means by which that Department
manages risk in civil aviation security. Public confidence in civil aviation security
demands that institutions with responsibility in this area provide adequate
disclosure of the methods they use to manage risk.
In addition, although civil aviation security is a shared responsibility amongst
numerous stakeholders, there was little evidence of a coordinated, system-wide
risk management strategy.
The Commission has concluded that, in the absence of a systematic approach to
risk management, there is cause for concern that significant risks in civil aviation
security may go unnoticed.
5.11 Oversight of Aviation Security
Annex 17 to the Chicago Convention requires each signatory state to designate
a domestic agency responsible for its civil aviation security program. Despite
the conclusion reached by the Senate Committee, the Commission agrees with
the CATSA Advisory Panel that Transport Canada should remain the designated
authority responsible for Canada’s national civil aviation security program.
Proper oversight requires the development and maintenance, by Transport
Canada, of a robust aviation security regime that adequately addresses all
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significant threats. To do so, the regime must not only meet but exceed Annex
17 standards wherever possible, embracing its tenets in the spirit with which its
provisions are intended, and must be informed by international best practices.
The system must be continuously monitored to ensure that it remains capable
of thwarting terrorist threats or that adjustments can be made, as necessary,
on a timely basis. The system must include a carefully considered plan for
responding to true emergencies.
A sufficiently robust regime can be achieved by ongoing adherence to a
number of key principles that were frequently referenced by the experts and
industry stakeholders who appeared before the Commission. Some of these
principles have already been discussed. They include ensuring that lessons from
the past are understood, along with trends and patterns in global air terrorism;
implementing measures in a proactive manner, establishing a multi-layered
system of security; providing for flexible, performance-based measures where
suitable, fostering a culture of security awareness, and, importantly, determining
the relative need for security measures through the systematic application of
accepted risk management protocols, on both an individual and global basis.
The regime must be constantly scrutinized as to its effectiveness in the context
of past, present and future threats, including threats that arise in other parts of
the world.
Annex 17 requires that each signatory state establish and implement a written
national civil aviation security program. Transport Canada has no specific
document describing Canada’s civil aviation security program in its entirety.
Instead, Transport Canada takes the position that it possesses the equivalent of
a national program as envisioned by the standard in the form of a substantial
body of documents. These documents include all legislative and regulatory
instruments and other documents relating to civil aviation security requirements
in this country. But precisely because civil aviation is a shared responsibility,
a premium should be placed on the clarity and coordination that would be
provided by a single articulation of the entire regime. Such a document
should set out the full slate of civil aviation security policies and procedures
and each entity’s role in their implementation. A national civil aviation security
program will enhance the ability of each entity (be it a government agency or
department, or an industry stakeholder) to comply with the national program
and to develop its own program, as required by Annex 17.
Consistent with its view that there exist deficiencies in aviation security, the
Commission concluded that Canada’s regulatory framework for civil aviation
security does not meet all of the minimum standards outlined in Annex 17.
Standard 4.1 requires Contracting States to establish measures to prevent
unauthorized explosives and other dangerous devices or substances from
being introduced on board civil aviation aircraft “by any means whatsoever.”
At present, Canadian civil aviation security is not sufficiently comprehensive
to meet this standard. Civil aviation remains vulnerable to acts of unlawful
interference because it is still possible to introduce bombs and other weapons
of sabotage on board aircraft by cargo and means other than by passengers and
baggage, contrary to Standard 4.1.
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Transport Canada has launched an initiative to review the national civil aviation
security regulatory regime in its entirety. This is a welcome and important
development, and must be an urgent priority of the Government of Canada.
Where a significant vulnerability is identified, Canada must strive for timely
solutions and must not defer its response until measures are imposed by other
regimes or, worse, by another act of air terrorism.
Oversight in civil aviation security must involve rigorous mechanisms of
inspection and enforcement of established security procedures, which requires
ongoing government commitment.
5.12 Limits on Civil Aviation Security
Security is not absolute. Resources are limited and other factors need to be
considered as well, including the efficiency of air travel and the rights of
individuals. In addition, some measures are required as a result of international
obligations, both legal and practical. Security measures must, therefore, be
chosen on the basis of risk management principles that are themselves based
on nationally/internationally accepted standards. Limited resources must
be distributed across all areas of risk to achieve an overall acceptable level of
security. Both past and anticipated threats must be accounted for. Care should
be taken to ensure that the necessary rigour and meaning are given to the
mantra – often used by those responsible for civil aviation security – that a “riskbased approach” to civil aviation security is required.
5.13 Duty to Warn
No hindsight is necessary to conclude that threat communication among those
responsible for aviation security was starkly deficient in 1985. The Government
of Canada and Air India were both aware of the terrorist threat faced by Air India,
but neither of them ensured that other civil aviation stakeholders were aware
of that threat. If air carriers interlining passengers and baggage to Air India had
been made aware of the threat faced by Air India, they might well have altered
their security operations. Had CP Air been informed of that threat, it might have
exercised greater vigilance about interlining the “M. Singh” bag in the absence
of a reservation on Air India Flight 182. Today, Transport Canada would inform
other air carriers of threats to a target airline or aircraft to which passengers may
be interlined.
The Commission was invited to conclude that government officials have a legal
or ethical duty to warn the public about threats against airlines. However, it is
difficult to articulate the threshold that must be met before a warning should be
given. Ultimately, the Commission concluded that important information about
security threats and measures should be shared with the public in a manner
that promotes overall security.
�Chapter V: Aviation Security
5.14 Funding Aviation Security
The issue of who should pay for aviation security has long been debated. For at
least two decades, IATA has argued that this should be a responsibility of national
governments, due to the fact that, since airlines have national flags on their
tails, they amount to a small piece of the target country. There is force to this
argument. Aviation security is a core function that is directly related to national
security. As such, funding must be derived primarily from government.
Government funding can include funds obtained through the user-pay principle,
as exemplified by the Air Travellers Security Charge (ATSC), first imposed in 2002.
However, the ATSC has well-founded criticism. It lacks transparency, and funds
generated by this charge are not directly applied to aviation security concerns.
Regardless of the precise means by which aviation security is to be funded,
new initiatives to address the gaps in Canada’s aviation security regime will
require both an initial influx of funding and an ongoing commitment on the
government’s part.
The reality is that aviation security incidents themselves are costly events, and
prevention is the more economical option.
5.15 Conclusion
Despite the passage of 24 years since the bombing of Air India Flight 182,
deficiencies continue to exist in Canada’s civil aviation security regime.
Improvements in screening passengers and their baggage have been
necessary and important, but those improvements may have come at the cost
of addressing gaps elsewhere in aviation security. Deficiencies in other areas
must be addressed as soon as possible. It would be unfortunate if Air India
Flight 182’s legacy to Canada’s civil aviation security regime were to be narrowly
focused on passenger and baggage screening. Some of these gaps have existed
for so long that further inaction is both dangerous and unconscionable. The
Government of Canada has recently moved to address some of these gaps –
notably in relation to air cargo security – but increased momentum is essential.
Independent reporting by government watchdogs, such as the Standing Senate
Committee on National Security and Defence and the Auditor General of Canada,
will help to sustain that momentum but, because of the dynamic nature of civil
aviation security and the record of successive governments in delaying action
in this field, the Commission recommends that a formal, independent review of
Canada’s civil aviation security regime should take place every five years. More
detailed recommendations can be found in Volume Four.
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THE OVERVIEW
CHAPTER VI: TERRORIST FINANCING
6.0 Introduction
Before 2001, Canada did not expressly prohibit terrorist financing. The 2001
Anti-terrorism Act (ATA)1 introduced specific crimes relating to the financing of
terrorism, and provisions to allow the revocation of the charitable status of any
charity involved in terrorism. It also added combatting terrorist financing to the
mandate of the Financial Transactions and Reports Analysis Centre of Canada
(FINTRAC).
These laws and the implementation of other government initiatives are no
guarantee of success. Until very recently, these laws yielded few successful
terrorist financing prosecutions.
The struggle to curtail the financing of terrorism is an uphill battle. One
impediment is the small cost of terrorist acts. It has been estimated that the
bombing of Air India Flight 182, which claimed 329 lives, probably cost the
perpetrators less than $10,000. The direct costs of the 2004 Madrid train
bombings which claimed 191 lives have been estimated at €15,000.
The methods to acquire and move the small sums necessary for terrorism are
limitless. They include direct fundraising, extortion, the use of charities and
not-for-profit organizations, legitimate employment and business income,
organized crime and state support. There are near infinite means to move those
funds through formal and informal financial institutions, as well as physically
through the use of trusted couriers.
Currently, much of Canada’s anti-terrorist financing initiative is based on a
money laundering model that focuses on transactions over $10,000. This model
is not well-suited to terrorist financing.
Laws against terrorist financing are at best a limited tool. If one sector such as
financial institutions is regulated, terrorists can quickly move to another sector
such as informal money transfer systems. Revoking the charitable status of a
charity may not impair the flow of funds since donors to extremist causes are
unlikely to be deterred by the loss of a tax receipt. The former charity may survive
nicely as a non-registered, not-for-profit entity that continues to channel funds
to terrorists.
1
S.C. 2001, c. 41.
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Currently, Canada is not making optimal use of the extensive and costly measures
that it has taken against terrorist financing. Agencies responsible for combating
terrorist financing, most notably the Financial Transactions and Reports Analysis
Centre of Canada (FINTRAC) and the Canada Revenue Agency (CRA), which
deals with charities, are not sufficiently integrated into the intelligence cycle to
detect terrorist financing or to provide the best financial intelligence to CSIS and
the RCMP. Moreover, transactions involving the small sums needed to finance
terrorist acts are not likely to be discovered through the routine collection and
processing of information by FINTRAC and the CRA.
Discovering terrorist financing activity amidst millions of reports about financial
transactions or thousands of applications for charitable status is like finding the
proverbial needle in a haystack. It will often be necessary for FINTRAC and the
CRA to be guided in this search by intelligence from CSIS, CSE and their foreign
partners, as well as by tips from the RCMP. At the same time, FINTRAC and, to a
lesser extent, the CRA face restrictions on the information they are free to share
with other agencies. Both are “arms length” bodies because of their obligations
to protect the confidentiality of the information they collect. There are some
legitimate needs to protect the financial and taxpayer information they possess,
as well as legislated restrictions on what they can pass on to other agencies.
Nonetheless, there may be a need to redress the balance between privacy and
openness to reconsider some restrictions in order to accommodate legitimate
needs for information sharing.
6.1 The Importance of Legislating Against Terrorist Financing
Although laws against terrorist financing may not be the most effective
instrument to prevent terrorism, they are a practical necessity. Canada ratified
the International Convention for the Suppression of the Financing of Terrorism in
2001. Various UN Security Council resolutions commit Canada to taking efforts
to prevent and suppress terrorist financing. Canada should and does take these
international obligations seriously.
The G7 countries established the Financial Action Task Force (FATF) as an
inter-governmental body. FATF standards have been endorsed by more than
170 jurisdictions. Canada must live up to these standards. The international
community has recognized that, in a world with increasing globalization, all
countries must take steps to ensure that they do not become safe havens for
terrorist financing. If one country does not do its share, the success of the entire
global fight against terrorist financing is jeopardized.
The freezing of assets or the launching of a terrorist financing prosecution may
be useful means to disrupt a terrorist network long before any act of terrorism
has been committed. Professor Bruce Hoffman warned that the failure by
the authorities to actively counter terrorist fundraising activities also means
“consigning [ethnic and religious] communities to be preyed upon by their coreligionist [brethren] or by their ethnic brethren.”2
2
Testimony of Bruce Hoffman, vol. 19, March 9, 2007, p. 1842.
�Chapter VI: Terrorist Financing
The intelligence produced by initiatives against terrorist financing is increasingly
recognized as a valuable asset in global terrorism investigations. More raw
intelligence on individuals (and thus terrorists) is available in the financial
databases of the Western world than in any other database. Financial intelligence
provides a means to identify the networks that support terrorism, as well as the
links between people, organizations and even countries.
6.2 The 2001 and 2006 Reforms
The 2001 Anti-terrorism Act amended the Criminal Code to prohibit terrorist
financing and to provide for court-ordered freezing of terrorist assets. Parliament
gave an existing entity, FINTRAC, the mandate to collect and analyze financial
data to enable it to assist in the detection, prevention and deterrence of terrorist
financing. FINTRAC’s governing legislation, the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act (PCMLTFA), imposes record keeping
and reporting requirements, primarily on private sector entities. It also permits
FINTRAC to receive information provided to it voluntarily by other agencies and
to disclose certain information to agencies specified in the legislation. Canada’s
regime to combat terrorist financing depends on the sharing of information
between various agencies as well as the reporting by the private sector of
suspicious and other transactions.
The ATA also created the Charities Registration (Security Information) Act (CRSIA),
which provides for the use of classified information to justify a decision to revoke
the charitable status of an organization, without disclosing that information to
the organization.
In late 2006, additional legislation was enacted to respond to deficiencies in
Canada’s terrorist financing laws. The new legislation creates a registration
regime for money services businesses. It strengthens the client identification
process required in the case of wire transfers, strengthens measures against
the use of charitable organizations for terrorist financing, and enhances CRA’s
authority to disclose information to disclose information to CSIS, the RCMP and
FINTRAC.
6.3 The Money Laundering Model
Although there are similarities between money laundering and terrorist
financing, the differences outnumber the similarities. In money laundering,
the money has been accumulated for reasons of greed, through criminal
activity, and is processed to disguise its illicit origins. Terrorist organizations are
motivated by ideology rather than money. While they can be financed through
“dirty” money, they can also be financed by money of legitimate origin – from
charitable donations, foreign states or even a terrorist’s own bank account.
Terrorist financing can involve much smaller sums than are typically involved in
money laundering. The money is processed or transferred in ways that seek, not
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to disguise its criminal origins, but to disguise its purpose of funding terrorism.
Techniques that may work well to identify money laundering, such as a focus on
transactions over $10,000, may not work as well to identify those transactions
indicative of terrorist financing.
6.4 FINTRAC and its Private Sector Partners
The PCMLTFA requires certain entities (“reporting entities”) to report financial
transactions to FINTRAC. The ability to add new financial sectors to the list of
reporting entities is important since those who finance terrorism will adjust
their behaviour to avoid detection through reporting requirements.
FINTRAC’s outreach efforts seemed more focused on money laundering than
on terrorist financing. FINTRAC should make every effort to provide reporting
entities with information that will improve their ability to identify suspicious
transactions in terrorist financing matters. When sending information to
reporting entities, FINTRAC should prioritize indicators of terrorist financing
over indicators of money laundering. In particular, FNTRAC and other authorities
should supply up-to-date and user-friendly lists of terrorist entities.
Some reporting entities do not see terrorist financing as a high profile issue. CSIS
and the RCMP could help more effectively train reporting entities on terrorist
financing issues.
6.5 Information Supplied to FINTRAC Voluntarily by Other Agencies
Information provided voluntarily to FINTRAC by other agencies is vital for
FINTRAC’s efforts against terrorist financing. About 90 per cent of the terrorist
financing cases that come to FINTRAC’s attention do so because law enforcement
agencies or CSIS have made voluntary reports to FINTRAC. The number of
terrorist financing cases discovered solely by FINTRAC is minimal.
A 2008 FATF Mutual Evaluation of Canada (an assessment of Canada’s
implementation of standards to tackle money laundering and terrorist financing)
criticized FINTRAC for excessive reliance on voluntary reports. However, the
smaller sums typically at issue in terrorist financing limits the ability of FINTRAC
to generate leads on its own.
6.6 Information Sharing
FINTRAC and, to a lesser extent, CRA have an arm’s-length relationship with other
agencies, particularly law enforcement agencies. There are valid concerns that
the police and CSIS may use FINTRAC and the CRA to avoid warrant requirements
that would normally apply to obtaining private information. For these reasons,
the type of information that FINTRAC or the CRA can disclose to the police or
CSIS is closely regulated.
�Chapter VI: Terrorist Financing
Limits on the information that they can disclose to other agencies, however,
should not be confused with limits on the information that FINTRAC and the
CRA can receive. FINTRAC, for instance, is required to receive (“shall receive”) a
broad range of information from other agencies about suspicions of terrorist
financing.
One of the dominant themes emerging from the Air India narrative is that
agencies all failed to share relevant intelligence, most notably with those
who had front-line responsibilities for aviation security. Too often, agencies
excessively concerned about protecting information remained isolated in their
silos. Every effort should be made to avoid repeating these mistakes in the
context of terrorist financing.
The Commission has recommended that the Prime Minister’s National Security
Advisor be given the added responsibility to work on problems associated with
the distribution of intelligence, and to make decisions about what information
should be shared, when and with whom. The National Security Advisor could
help ensure that intelligence agencies provide FINTRAC and the CRA with
relevant information. The National Security Advisor could work on co-ordination
issues that are made more difficult when agencies – such as FINTRAC on one
hand, and CSIS, the RCMP and the Canada Border Services Agency (CBSA), on
the other – fall under different departmental portfolios.
The exchange of information must not be one sided, and it may become
necessary to revisit the nature and extent of information that FINTRAC can
provide to intelligence and law enforcement agencies. CSIS, CSE, the RCMP,
CBSA and CRA must continue to provide FINTRAC with information voluntarily
through “Voluntary Information Records” (VIRs). The VIR process is vital to the
success of FINTRAC’s work on TF. Once it receives a VIR, FINTRAC assesses the
information to determine if it can disclose “designated information” to assist the
agency that submitted the VIR. However, limits on the types of information that
FINTRAC can or must disclose need to be reviewed. For example, a FINTRAC
analysis of a particular case cannot be disclosed to another agency unless the
agency first obtains a production order. Allowing such disclosures without a
production order would add value and context to the financial intelligence that
FINTRAC provides.
6.7 Secondments, Joint Training and the Kanishka Centre
An effective approach to terrorist financing would require both increased sharing
of information among agencies and increased investment in human capital. One
way to achieve the second goal is to facilitate increased secondments among
the agencies.
Another is to invest in human capital by providing joint training on terrorist
financing across agencies. Joint training might even reduce costs by reducing
the duplication of training resources.
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Government needs to draw on resources found in the private and academic
sectors. One possibility is to provide funding for an academic centre or centres
to study terrorism and counterterrorism. A precedent for such a research
program exists in the long-running Security and Defence Forum sponsored
by the Department of National Defence. The Department funds 12 “centres of
expertise” in Canadian universities. Modest sums spent in this way on terrorism
and counterterrorism issues could allow the government to receive valuable
private sector and academic advice. At the same time, such centres could
provide a place for officials to receive training, especially about international
best practices. It would be appropriate to name such an institution “the Kanishka
Centre,” to commemorate one of the planes that were targets of the terrorist
bombings.
6.8 The Value of Continual Review of the Effectiveness of Antiterrorism Measures
The National Security Advisor is well positioned to evaluate how FINTRAC works
with partners that cross agency lines. One of the enhanced roles recommended
for the National Security Advisor is to provide oversight of the effectiveness of
national security activities, including those involving terrorist financing. This
new role must, however, be exercised reasonably. Too many reviews would
monopolize Canadian agencies’ resources unnecessarily. A balance is required.
6.9 Charities and Terrorist Financing
The Canada Revenue Agency (CRA) has reported that a significant number
of charities associated with terrorism have been denied registered status.
Significantly, these denials were not based on the new powers in anti-terrorism
legislation but on traditional grounds, not related to terrorism.
The National Security Advisor could also work on problems of integrating the
CRA into the intelligence cycle and could also address concerns about the CRA’s
effectiveness in terrorist financing matters.
The CRA’s counter-terrorism work can be assisted by the proposed Director of
Terrorism Prosecutions.
The traditional privacy concerns that have surrounded income tax information
need to be reconsidered. Bill C-25 started this process. Largely because
of provisions introduced by this Bill in 2006, the CRA can now share more
information (including “publicly accessible charity information” and “designated
taxpayer information”) with other agencies. Despite the expanded disclosure
now allowed, the Income Tax Act still prevents the CRA from disclosing some
information that may be relevant to terrorist financing.
�Chapter VI: Terrorist Financing
6.10 Intermediate Sanctions
“Intermediate sanctions,” which are penalties that fall short of revocation of
charitable status (for instance, monetary penalties or the suspension of a charity’s
power to issue tax receipts for donations), can be a valuable tool to alert donors,
directors and trustees of government concerned with the operation of a charity.
Like targeted prosecutions, they have proven their worth in other jurisdictions
as an effective and creative approach to combatting the misuse of charitable
status. It is helpful for the CRA to make full use of those intermediate sanctions
to encourage charities to “clean house.”
6.11 Non-Profit Organizations: A Gap in the System
Although about 95 per cent of the value of donations given to the non-profit
sector in Canada goes to registered charities, a small percentage is directed to
not-for-profit organizations (NPOs) that do not have charitable status. These
organizations can become conduits for terrorist financing because they lack
even the modest supervision to which charities are currently subject. Aside
from the income tax consequences of having charitable status, the regulation
of charities and NPOs is an area of provincial jurisdiction. The evidence before
the Commission indicates that provincial regulators are often poorly resourced
and not fully aware of relevant information linking NPOs to terrorist financing.
Rules governing NPOs vary among the provinces. In fact, there are few reporting
rules in any of the provinces. The problem lies in the ability of NPOs to operate
in a clandestine manner and to ignore what rules there are, making it almost
impossible to identify terrorist financing within them.
The federal government should take the lead in bringing together provincial
authorities to coordinate responses to the abuse of charitable or not-for-profit
organizations. It is especially important to ensure that regulators are provided
with the information and assistance they need to identify the abuse of charities
and not-for-profit organizations for terrorist financing.
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THE OVERVIEW
CHAPTER VII: RECOMMENDATIONS AND OBSERVATIONS
Recommendations from VOLUME THREE: The Relationship Between
Intelligence and Evidence and the Challenges of Terrorism Prosecution
CHAPTER II: COORDINATING THE INTELLIGENCE/EVIDENCE
RELATIONSHIP
Recommendation 1
The role of the National Security Advisor in the Privy Council Office should be
enhanced. The National Security Advisor’s new responsibilities should be as
follows:
• to participate in setting strategic national security policies and
priorities;
• to supervise and, where necessary, to coordinate national security
activities, including all aspects of the distribution of intelligence
to the RCMP and to other government agencies;
• to provide regular briefings to the Prime Minister and, as required,
to other ministers;
• to resolve, with finality, disputes among the agencies responsible
for national security;
• to provide oversight of the effectiveness of national security
activities; and
• to carry out the government’s national security policy in the public
interest.
In carrying our these new duties, the National Security Advisor should be
assisted by a Deputy and by a staff of secondees from agencies which have
national security responsibilities, such as CSIS, the RCMP, the CBSA, and DFAIT.
The National Security Advisor should continue to support relevant Cabinet
committees and serve as Deputy Minister for the CSE, but these duties could, if
necessary, be delegated to the Deputy National Security Advisor or to another
official within the office of the NSA.
Measures to enhance the role of the NSA should not be delayed until the
enactment of legislation on a new national security privilege.
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CHAPTER III: COORDINATING TERRORISM PROSECUTIONS
Recommendation 2
The role of the National Security Advisor should be exercised in a manner that
is sensitive to the principles of police and prosecutorial independence and
discretion, while recognizing the limits of these principles in the prosecution of
terrorism offences. The principle of police independence should continue to be
qualified by the requirement that an Attorney General consent to the laying of
charges for a terrorism offence.
The Attorney General of Canada should continue to be able to receive relevant
information from Cabinet colleagues, including the Prime Minister and the
National Security Advisor, about the possible national security and foreign
policy implications of the exercise of prosecutorial discretion.
Recommendation 3
Terrorism prosecutions at the federal level should be supervised and conducted
by a Director of Terrorism Prosecutions appointed by the Attorney General of
Canada.
Recommendation 4
The office of the Director should be located within the department of the
Attorney General of Canada and not within the Public Prosecution Service of
Canada. The placement of the proposed Director of Terrorism Prosecutions
in the Attorney General’s department is necessary to ensure that terrorism
prosecutions are conducted in an integrated manner, given the critical role
of the Attorney General of Canada under the national security confidentiality
provisions of section 38 of the Canada Evidence Act.
Recommendation 5
The Director of Terrorism Prosecutions should also provide relevant legal
advice to Integrated National Security Enforcement Teams and to the RCMP
and CSIS with respect to their counterterrorism work to ensure continuity and
consistency of legal advice and representation in terrorism investigations and
prosecutions.
Recommendation 6
The Director of Terrorism Prosecutions should preferably not provide legal
representation to the Government of Canada in any civil litigation that might
arise from an ongoing terrorism investigation or prosecution, in order to avoid
any possible conflict of interest.
�Chapter VI: Terrorist Financing
Recommendation 7
A lead federal role in terrorism prosecutions should be maintained because
of their national importance and the key role that the Attorney General of
Canada will play in most terrorism prosecutions under section 38 of the Canada
Evidence Act. The Attorney General of Canada should be prepared to exercise
the right under the Security Offences Act to pre-empt or take over provincial
terrorism prosecutions if the difficulties of coordinating provincial and federal
prosecutorial decision-making appear to be sufficiently great or if a federal
prosecution is in the public interest.
Recommendation 8
Provincial Attorneys General should notify the Attorney General of Canada
through the proposed federal Director of Terrorism Prosecutions of any potential
prosecution that may involve a terrorist group or a terrorist activity, whether
or not the offence is prosecuted as a terrorism offence. The National Security
Advisor should also be notified.
CHAPTER IV: THE COLLECTION AND RETENTION OF INTELLIGENCE:
MODERNIZING THE CSIS ACT
Recommendation 9
In compliance with the 2008 Supreme Court of Canada decision in Charkaoui,
CSIS should retain intelligence that has been properly gathered during an
investigation of threats to national security under section 12 of the CSIS Act.
CSIS should destroy such intelligence after 25 years or a period determined by
Parliament, but only if the Director of CSIS certifies that it is no longer relevant.
Recommendation 10
The CSIS Act should be amended to reflect the enhanced role proposed for the
National Security Advisor and to provide for greater sharing of information with
other agencies.
Section 19(2)(a) of the CSIS Act should be amended to require CSIS to report
information that may be used in an investigation or prosecution of an offence
either to the relevant policing or prosecutorial authorities or to the National
Security Advisor.
If the National Security Advisor receives security threat information from CSIS,
he or she should have the authority, at any time, to provide the information to
the relevant policing or prosecutorial authorities or to other relevant officials
with a view to minimizing the terrorist threat. The National Security Advisor
should make decisions about whether intelligence should be disclosed only
after considering the competing demands for disclosure and secrecy. In every
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case, the decision should be made in the public interest, which may differ from
the immediate interests of the agencies involved.
Intelligence prepared to assist the National Security Advisor in his or her
deliberations, and the deliberations themselves, should be protected by a new
national security privilege. The privilege would be a class privilege similar to
that protecting information submitted to assist with Cabinet deliberations.
Recommendation 11
To the extent that it is practicable to do so, CSIS should conform to the
requirements of the laws relating to evidence and disclosure when conducting
its counterterrorism investigations in order to facilitate the use of intelligence in
the criminal justice process.
Recommendation 12
In terrorism prosecutions, special advocates, given powers similar to those
permitted under the Immigration and Refugee Protection Act, should be allowed
to represent the accused in challenging warrants issued under section 21 of the
CSIS Act or under Part VI of the Criminal Code. The special advocates should
have access to all relevant information, including unedited affidavits used to
justify the warrants, but should be prohibited from disclosing this information
to anyone without a court order. Both the judges reviewing the validity of
warrants and the special advocates should be provided with facilities to protect
information that, if disclosed, might harm national security.
CHAPTER V: THE DISCLOSURE AND PRODUCTION OF INTELLIGENCE
Recommendation 13
Federal prosecutorial guidelines should be amended to make it clear to those
who prosecute terrorism cases that only material that is relevant to the case and
of possible assistance to the accused should be disclosed. Material of limited
relevance – in the sense that it is not clearly irrelevant – should, in appropriate
cases, be made available for inspection by the defence at a secure location.
Recommendation 14
There is no need for further legislation governing the production for a criminal
prosecution of intelligence held by CSIS. The procedures available under section
38 of the Canada Evidence Act provide an appropriate and workable framework
for the trial court to determine whether production of such intelligence is
warranted.
�Chapter VI: Terrorist Financing
CHAPTER VI: THE ROLE OF PRIVILEGES IN PREVENTING THE
DISCLOSURE OF INTELLIGENCE
Recommendation 15
The RCMP and CSIS should each establish procedures to govern promises of
anonymity made to informers. Such procedures should be designed to serve
the public interest and should not be focused solely on the mandate of the
particular agency.
Recommendation 16
Section 19 of the CSIS Act should be amended to provide that information
about an individual which is exchanged by CSIS with a police force or with the
NSA does not prejudice claiming informer privilege.
Recommendation 17
CSIS should not be permitted to grant police informer privilege. CSIS informers
should be protected by the common law “Wigmore privilege,” which requires
the court to balance the public interest in disclosure against the public interest
in confidentiality. If the handling of a CSIS source is transferred to the RCMP, the
source should be eligible to benefit from police informer privilege.
Recommendation 18
The Canada Evidence Act should be amended to create a new national security
privilege, patterned on the provision for Cabinet confidences under section 39
of the Act. This new class privilege should apply to documents prepared for the
National Security Advisor and to the deliberations of the office of the National
Security Advisor.
CHAPTER VII: JUDICIAL PROCEDURES TO OBTAIN NON-DISCLOSURE
ORDERS IN INDIVIDUAL CASES
Recommendation 19
The present two-court approach to resolving claims of national security
confidentiality under section 38 of the Canada Evidence Act should be
abandoned for criminal cases. Section 38 should be amended to allow the
trial court where terrorism charges are tried to make decisions about national
security confidentiality. Section 38 should be amended to include the criminal
trial court in the definition of “judge” for the purposes of dealing with a section
38 application that is made during a criminal prosecution.
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Recommendation 20
In terrorism prosecutions, there should be no interim appeals or reviews of
section 37 or 38 disclosure matters. Appeals of rulings under sections 37 or 38
should not be permitted until after a verdict has been reached. Appeals should
be heard by provincial courts of appeal in accordance with the appeal provisions
contained in the Criminal Code. If not already in place, arrangements should be
made to ensure adequate protection of secret information that provincial courts
of appeal may receive. Sections 37.1, 38.08 and 38.09 of the Canada Evidence
Act should be amended or repealed accordingly.
Recommendation 21
Security-cleared special advocates should be permitted to protect the accused’s
interests during section 38 applications, in the same manner as they are used
under the Immigration and Refugee Protection Act. Either the accused or the
presiding judge should be permitted to request the appointment of a special
advocate.
Recommendation 22
The Attorney General of Canada, through the proposed Director of Terrorism
Prosecutions, should exercise restraint and independent judgment when
making claims under section 38 of the Canada Evidence Act and avoid using
overly broad claims of secrecy.
Recommendation 23
The Federal Prosecution Service Deskbook and other policy documents that
provide guidance about making secrecy claims should be updated to encourage
the making of requests to foreign agencies to lift caveats that they may have
placed on the further disclosure of information. These documents should
also be updated to reflect the evolution of national security confidentiality
jurisprudence. In particular, the Deskbook should direct prosecutors to be
prepared to identify the anticipated harms that disclosure would cause,
including harms to ongoing investigations, breaches of caveats, jeopardy to
sources and the disclosure of secret methods of investigations. The Deskbook
should discourage reliance solely on the “mosaic effect” as the basis for making
a claim of national security confidentiality.
�Chapter VI: Terrorist Financing
CHAPTER VIII: MANAGING THE CONSEQUENCES OF DISCLOSURE:
WITNESS AND SOURCE PROTECTION
Recommendation 24
A new position, the National Security Witness Protection Coordinator, should be
created. The Coordinator would decide witness protection issues in terrorism
investigations and prosecutions and administer witness protection in national
security matters. The creation of such a position would require amendments to
the Witness Protection Program Act.
The National Security Witness Protection Coordinator should be independent
of the police and prosecution. He or she should be a person who inspires public
confidence and who has experience with criminal justice, national security and
witness protection matters.
Where appropriate and feasible, the Coordinator should consult any of the
following on matters affecting witness and source protection: the RCMP, CSIS,
the National Security Advisor, the proposed Director of Terrorism Prosecutors,
Public Safety Canada, Immigration Canada, the Department of Foreign Affairs
and International Trade and the Correctional Service of Canada. The Coordinator
would generally work closely with CSIS and the RCMP to ensure a satisfactory
transfer of sources between the two agencies.
The National Security Witness Protection Coordinator’s mandate would
include:
• assessing the risks to potential protectees resulting from disclosure
and prosecutions, as well as making decisions about accepting
an individual into the witness protection program and the level of
protection required;
• working with relevant federal, provincial, private sector and
international partners in providing the form of protection that best
satisfies the particular needs and circumstances of protectees;
• ensuring consistency in the handling of sources and resolving
disputes between agencies that may arise when negotiating
or implementing protection agreements (this function would be
performed in consultation with the National Security Advisor);
• providing confidential support, including psychological and legal
advice, for protectees as they decide whether to sign protection
agreements;
• negotiating protection agreements, including the award of
payments;
• providing strategic direction and policy advice on protection
matters, including the adequacy of programs involving
international co-operation or minors;
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• providing for independent and confidential arbitration of disputes
that may arise between the protectee and the witness protection
program;
• making decisions about ending a person’s participation in the
program;
• acting as a resource for CSIS, the RCMP, the National Security
Advisor and other agencies about the appropriate treatment
of sources in terrorism investigations and management of their
expectations;
• acting as an advocate for witnesses and sources on policy matters
that may affect them and defending the need for witness
protection agreements in individual cases.
The National Security Witness Protection Coordinator would not be responsible
for providing the actual physical protection. That function would remain with
the RCMP or other public or private bodies that provide protection services and
that agree to submit to confidential arbitration of disputes by the Coordinator.
CHAPTER IX: MANAGING THE CONSEQUENCES OF DISCLOSURE:
THE AIR INDIA TRIAL AND THE MANAGEMENT OF OTHER COMPLEX
TERRORISM PROSECUTIONS
Recommendation 25
To make terrorism prosecutions workable, the federal government should share
the cost of major trials to ensure proper project management, victim services
and adequate funding to attract experienced trial counsel who can make
appropriate admissions of fact and exercise their other duties as officers of the
court.
Recommendation 26
The trial judge should be appointed as early as possible to manage the trial
process, hear most pre-trial motions and make rulings; these rulings should not
be subject to appeal before trial.
Recommendation 27
The Criminal Code should be amended to ensure that pre-trial rulings by the trial
judge continue to apply in the event that the prosecution subsequently ends
in a mistrial or is severed into separate prosecutions. The only case in which
rulings should not bind both the accused and the Crown should be if there is a
demonstration of a material change in circumstances.
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Recommendation 28
The Criminal Code should be amended to allow omnibus hearings of common
pre-trial motions in related but severed prosecutions. This will facilitate severing
terrorism prosecutions that have common legal issues where separate trials
would be fairer or more manageable. All accused in the related prosecutions
should be represented at the omnibus hearing. Decisions made at omnibus
hearings should bind the Crown and accused in subsequent trials unless a
material change in circumstances can be demonstrated. Such rulings should be
subject to appeal only after a verdict.
Recommendation 29
Electronic and staged disclosure should be used in terrorism prosecutions in
order to make them more manageable. Disclosure should occur as follows:
Recommendation 30
The Crown should be permitted to provide in electronic form any material on
which it intends to rely and should have the discretion to provide paper copies
of such material. If the Crown decides to use electronic disclosure, it must ensure
that the defence has the necessary technical resources to use the resulting
electronic database, including the appropriate software to allow annotation
and searching;
Recommendation 31
Material on which the Crown does not intend to rely but which is relevant should
be produced in electronic format, and the necessary technical resources should
be provided to allow the use of the resulting electronic database;
Recommendation 32
The Crown should be able to disclose all other material that must be disclosed
pursuant to Stinchcombe and Charkaoui by making it available to counsel for the
accused for manual inspection. In cases where the disclosure involves sensitive
material, the Crown should be able to require counsel for the accused to inspect
the documents at a secure location with adequate provisions for maintaining
the confidentiality of the lawyer’s work. Defence counsel should have a right
to copy information but subject to complying with conditions to safeguard
the information and to ensure that it is not used for improper purposes not
connected with the trial;
Recommendation 33
The trial judge should have the discretion to order full or partial paper disclosure
where the interests of justice require; and
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Recommendation 34
The authority and procedures for electronic disclosure should be set out in the
Criminal Code in order to prevent disputes about electronic disclosure.
Recommendation 35
It is recommended that:
a) the Criminal Code be amended to allow the judge in a jury trial to empanel
up to 16 jurors to hear the case if the judge considers it to be in the interests of
justice;
b) if more than 12 jurors remain at the start of jury deliberations, the 12 jurors
who will deliberate be chosen by ballot of all the jurors who have heard the
case;
c) the minimum number of jurors required to deliberate remain at 10;
d) the idea of having terrorism trials heard by a panel of three judges be rejected
because it offers no demonstrable benefit; and
e) the call for mandatory jury trials in terrorism cases be rejected in view of the
difficulties of long trials with juries and the accused’s present ability to opt for
trial by judge alone.
Recommendations from VOLUME FOUR: Aviation Security
CHAPTER IV: RECOMMENDATIONS
I. Oversight of Aviation Security in Canada
The Commission endorses the Government’s decision that responsibility for
national civil aviation security should remain with Transport Canada, and makes
the following recommendations about oversight of aviation security:
Recommendation 1
1. Canada’s regulatory regime must comply with the standards specified in Annex
17 to the Convention on International Civil Aviation (“Chicago Convention”) and
should comply with its recommended practices.
1.1 Annex 17 standards must be considered minimum standards that
Canada should not only meet, but exceed. Canada should not permit
security deficiencies that would result in it being required to file a
difference with the International Civil Aviation Organization (ICAO)
with respect to any Annex 17 standard.
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1.2 In addition to embracing Annex 17 at its core, Canada’s national
regulatory regime must be informed by international best practices
and must address Canada’s unique threat environment.
1.3 Transport Canada should exercise robust regulatory oversight over civil
aviation stakeholders through regular inspection, testing, auditing and
enforcement, carried out by a sufficiently trained, qualified and
resourced inspectorate.
Recommendation 2
2. In accordance with Annex 17, Transport Canada should establish and
implement a single, written National Civil Aviation Security Program that
comprehensively safeguards civil aviation against acts of unlawful interference.
2.1 The National Civil Aviation Security Program should set out the full
slate of legislative instruments, measures, policies, practices and
procedures, as well as the roles and responsibilities of Transport Canada,
airport operators, air carriers, Fixed Base Operations (FBOs), the General
Aviation (GA) sector, the Canadian Air Transport Security Authority
(CATSA), the police of local jurisdiction, airport tenants, caterers and all
other entities involved in implementing the Program.
2.2 Transport Canada should require all entities with responsibilities
in civil aviation security, as outlined in Recommendation 2.1, to
establish and implement written security programs that are
applicable to their operations and appropriate to meet the
requirements of the National Civil Aviation Security Program.
At a minimum, these programs should include measures to prevent
unauthorized access, assign security-related duties, respond to threats
and breaches of security, and allow for periodic review and updating of
the programs.
2.3 Transport Canada should require all civil aviation stakeholder
programs to be submitted to it for approval.
Recommendation 3
3. The Commission supports continued coordination between all industry
and government entities responsible for civil aviation security through the
Advisory Group on Aviation Security (AGAS). AGAS must continue to promote
collaboration, shared objectives and shared understanding, and common
solutions to aviation security problems.
3.1 Transport Canada should require all airports to establish an airport
security committee to help in implementing their respective
airport security programs.
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3.2 Consideration should be given to the inclusion of the National Security
Advisor (NSA) in AGAS discussions and decisions.
Recommendation 4
4. In addition to adhering to Annex 17 standards, a regulatory regime should
observe a number of key principles:
a. Ongoing, informed assessment of past, present and future threats to
civil aviation, with timely proactive adjustments made to the regime as
needed;
b. Adherence to an appropriate national risk management protocol, as
described in Recommendation 6;
c. Effective, multi-layered and overlapping security measures, policies,
practices and procedures that provide redundancies to address all
significant risks;
d. A flexible, performance-based approach to regulation, in which
objectives are set to meet the highest standards, with a more
prescriptive approach employed where necessary because of
complexities and context;
e. Robust emergency response planning, with well-defined roles and
responsibilities; and
f. Establishment of a culture of security awareness and constant
vigilance.
Recommendation 5
5. Independent experts should conduct a comprehensive review of aviation
security every five years.
II. Risk Management
Recommendation 6
6. Transport Canada should ensure that acceptable levels of risk control have
been achieved in all areas of risk pertinent to civil aviation security in Canada.
In doing so, it should adopt a national risk management protocol based on
best practices and using a performance standard of continuous improvement,
delivering levels of risk in all relevant areas that are as low as reasonably
achievable. Where acceptable levels have not been achieved, resources must
be allocated on a priority basis to address the risk appropriately.
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6.1 To facilitate clear communication and understanding, Transport Canada
should require those responsible for aviation security to follow a
common set of risk management protocols consistent with the
national protocol. Transport Canada should require all stakeholders to:
a. Provide a detailed description, in their respective security
programs that are submitted to Transport Canada for
acceptance or approval, of the risk management protocol
employed for their operations;
b. Systematically employ these risk management protocols in the
development and implementation of aviation security
measures, policies, practices and procedures for their
operations; and
c. Promote coordinated risk management decision-making by
engaging in ongoing dialogue with Transport Canada and
other stakeholders through participation in AGAS and its
technical committees, and elsewhere as necessary, to
ensure clarity, precision and a shared understanding
of terminology and methodologies.
6.2 Each year, the Minister of Transport should certify that the civil aviation
security regime in Canada possesses:
a. A common set of protocols for carrying out risk management,
based on current best practices;
b. A performance standard of continuous improvement, delivering
levels of risk in all relevant areas that are as low as reasonably
achievable; and
c. Acceptable levels of risk control in all domains of risk.
6.3 Periodic assessment of Transport Canada’s risk management protocol by the
Auditor General is encouraged.
Recommendation 7
7. There should be no significant gaps in civil aviation security. When a significant
deficiency is identified, the best interim measures must be implemented to
address the risk while more permanent measures, including technological
solutions, are developed.
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7.1 The civil aviation security regime must be capable of redeploying
resources so that all significant threats are adequately addressed
and measures do not disproportionately emphasize a particular threat,
such as the threat posed by passengers and baggage.
7.2 As soon as improved equipment and measures become available, they
should be deployed.
7.3 If, after a systematic risk management process, a decision is made not
to implement measures that address a given threat, measures should
nonetheless be designed for emergency implementation if the threat
subsequently becomes imminent.
7.4 Legislative initiatives to improve civil aviation security should not be
subject to unreasonable delay.
Recommendation 8
1. Transport Canada and others responsible for civil aviation security should
foster a culture of security awareness and constant vigilance. As part of this
endeavour, a comprehensive public education campaign should be developed
to increase awareness of the measures in place for the public’s protection and
the role the public can play in promoting security.
III. Use of Intelligence
Recommendation 9
9. Transport Canada must provide timely, relevant and actionable intelligence
information to civil aviation stakeholders, with the primary recipients being
airport operators, air carriers, pilots, CATSA, FBOs and GA facilities.
9.1 Transport Canada should be guided by the “need to share” principle and
should cooperate more closely with key stakeholders to ensure
they receive the intelligence information they require.
9.2 Aviation stakeholders should provide Transport Canada with feedback
about the quality and timeliness of intelligence they receive. Where
concerns are raised, a collaborative approach to resolving
those concerns should be taken.
9.3 In addition to threats related to airports and air carriers, aviation
stakeholders should be kept abreast of changes to the general threat
environment. Regular security briefings for all stakeholders, including
front-line workers, should occur.
�Chapter VI: Terrorist Financing
IV. Airport Security
Recommendation 10
10. Non-Passenger Screening (NPS) should be improved at all designated
airports in Canada on a priority basis.
10.1 Full (100 per cent) NPS should be implemented upon entry to
restricted areas at all Class 1 and Class 2 airports, with random
NPS upon exit at Class 1 airports.
10.2 NPS upon entry at Class Other and upon exit at Class 2 and Class Other
airports should be implemented as necessary, based on risk.
Recommendation 11
11. Perimeter security should be improved at all designated airports on a
priority basis.
11.1 Perimeter security should be enhanced with physical and
technological barriers and appropriate monitoring, based on risk.
11.2 Transport Canada should conduct intrusion tests of airport perimeters.
Recommendation 12
12. All vehicles entering airside and restricted areas at Class 1 airports should be
subject to a full search, including full NPS of occupants. Vehicles entering Class
2 airports should be searched as necessary, based on risk.
12.1 Where supply chain security measures have been applied to vehicles,
a search may be confined to the areas of the vehicle that have
not been secured, and should include full NPS of occupants.
12.2 CATSA’s mandate should be expanded on a priority basis to include
searching vehicles and screening their occupants. CATSA should be
provided with the necessary funding.
Recommendation 13
13. The Restricted Area Identification Card (RAIC) should be implemented at all
89 designated airports on a priority basis, and should be expanded to include
perimeter security, including vehicle gates, FBOs and tenant facilities.
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13.1 RAICs, Restricted Area Passes (RAPs) and temporary or visitor passes
should be worn and clearly displayed at all times by all individuals who
access restricted and airside areas of the airport.
13.2 All access control devices, including RAICs and RAPs, should be
implemented in a manner that prevents “piggybacking,” “tailgating”
and other means of gaining unauthorized access.
13.3 All RAICs and RAPs, as well as employee uniforms and any other form
of airport identification belonging to former airport employees, should
be diligently accounted for, retrieved and/or deactivated. Appropriate
penalties should be imposed for failing to return such items.
Recommendation 14
14. For FBOs and GA facilities attached to designated airports, access to the
airports’ airside and restricted areas should be strictly controlled through RAICs,
full NPS and vehicle searches.
Recommendation 15
15. Transport Canada should improve its policies and procedures governing
transportation security clearances.
15.1 Transport Canada and the RCMP should increase efforts to share
information on individuals applying for a transportation security
clearance to work at airports.
15.2 Transport Canada should establish a formal process, including specific
criteria, for reviewing applications for security clearances made
by individuals with a criminal record.
15.3 Transport Canada should reinstate credit checks as a component of the
security clearance process before issuing an RAIC for non-passengers
who require access to restricted areas at airports.
15.4 Transport Canada should take steps to reduce the delay in processing
applications for transportation security clearances.
Recommendation 16
16. Security measures should be developed and implemented to protect public
areas of air terminal buildings at Class 1 airports, based on risk.
�Chapter VI: Terrorist Financing
Recommendation 17
17. All airports should develop and implement a security awareness and constant
vigilance program that includes training for all airport workers employed in air
terminal buildings and airside portions of airports.
V. Passenger and Baggage Screening
Recommendation 18
18. Current methods for conducting pre-board screening (PBS) are
comprehensive, but improvements are required in their application.
18.1 Although technology has enhanced the ability to effectively conduct
PBS, that technology should rarely be relied upon exclusively.
When selecting equipment and procedures for passenger screening,
consideration should be given to individual rights, including privacy
rights and the rights guaranteed under the Canadian Charter of Rights
and Freedoms. In particular, any consideration of behavioural
analysis techniques as a tool for PBS must include a thorough review.
Concerns about the risk of racial, ethnic and religious profiling must be
given specific and careful attention. If a decision is made to implement
such a program, the following must be addressed: effectiveness of the
measure; competencies, training (initial and ongoing) and testing
required of those who would conduct the analysis; and oversight
requirements.
18.2 Given the importance of the “no search, no fly” rule and the potential
impact of security measures on individual rights, Transport Canada
and the Office of the Privacy Commissioner of Canada should
collaborate to devise tools and criteria to evaluate proposed security
measures.
Recommendation 19
19. Although the multi-level system in place for Hold Bag Screening (HBS) is
comprehensive, some improvements are required.
19.1 Baggage should never be loaded onto an aircraft without a passengerbaggage reconciliation. Interlined baggage, in particular, must be
subjected to comprehensive passenger-baggage reconciliation prior
to being loaded.
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19.2 Consideration should be given to whether the current administrative
monetary penalties for non-compliance with passenger-baggage
reconciliation procedures provide sufficient deterrence and reflect the
gravity of the potential consequences of non-compliance.
19.3 Although technology has enhanced the ability to effectively screen
checked baggage, that technology should rarely be relied upon
exclusively.
VI. Use of Technology and Explosives Detection Dogs
Recommendation 20
20. Transport Canada should ensure that all screening technology is reliable
and effective. This requires assessment not only during the development and
deployment stages, but also continual assessment during conditions of actual
use.
20.1 Transport Canada should ensure that screening officers operating
equipment are adequately trained and regularly tested to ensure their
competence.
20.2 Transport Canada should ensure that screening equipment is properly
maintained.
Recommendation 21
21. The use of explosives detection dogs should be evaluated and expanded as
appropriate. Consideration should be given to their use in:
a. PBS and HBS;
b. Screening of air cargo; and
c. Perimeter security, including the screening of vehicles.
VII. Screeners
Recommendation 22
22. CATSA should find long-lasting solutions to resolve difficulties in the
recruitment of appropriately qualified screening contractors and in the
recruitment, retention, training and oversight of competent screening officers
to ensure the highest quality of screening.
�Chapter VI: Terrorist Financing
22.1 Because of the voluminous material that all screening officers are
required to master, consideration should be given to specifying a
minimum educational requirement for them in the Designation
Standards for Screening Officers.
22.2 Given the importance of their work, screening officers should receive
appropriate compensation and employee benefits to reduce
difficulties in retaining them.
22.3 Because of the challenges associated with their duties, particularly
repetitive, stressful and monotonous work that only rarely
results in finding prohibited items, CATSA should make ongoing efforts
to instill greater sense of mission and morale among screening
officers:
a. Consideration should be given to creating an employment structure
that provides opportunities for advancement; and
b. Consideration should be given to holding regular briefings for
screening officers, particularly at Class 1 airports, to provide
relevant intelligence updates, as well as information relating
to prohibited items, methods of concealment and information
contained in recent Transport Canada bulletins.
22.4 Screening officer duties should focus solely on preventing unlawful
interference with civil aviation. Screening officers should not be
mandated to search for contraband or other items that may interest
law enforcement, but that are not relevant to CATSA’s mandate.
22.5 Given the changing nature of threats to aviation, training of screening
officers should be continuous. Training should include instruction in
practical skills and in the detection of improvised explosive devices
(IEDs).
22.6 Training of screening officers should be designed to foster a general
culture of security awareness and constant vigilance.
22.7 CATSA should continue to use training and motivational tools such as
X-ray Tutor (XRT) and the Threat Image Projection System (TIPS).
22.8 Where screening officer deficiencies are identified, immediate steps,
primarily additional training, should be taken to ensure competence.
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22.9 Transport Canada should define clear and consistent system-wide
performance standards for CATSA, in addition to the failure rate for
infiltration tests, against which compliance and effectiveness can be
assessed. Performance measures should define whether CATSA’s
performance is satisfactory or unsatisfactory:
a. This should include agreement between Transport Canada and
CATSA regarding the threshold for failure of infiltration tests and
the specific elements that constitute failure; and
b. CATSA’s response to failed infiltration tests should emphasize retraining, and should include documentation of corrective action
taken and timely written responses to Transport Canada enforcement
letters and related enquiries.
22.10 Whenever the Auditor General of Canada deems it necessary, the
Auditor General should review the changes implemented by CATSA to
address problems with recruitment, retention, training, testing
and oversight of screening officers.
VIII. Air Cargo and Other Non-Passenger Items
Recommendation 23
23. A comprehensive system for screening air cargo (including mail) for transport
on passenger and all-cargo aircraft should be implemented as an urgent
priority. Canada’s system of Known Shippers should be discontinued as soon
as possible, and a system of Regulated Agents put in its place in accordance
with international best practices. In designing and implementing the system,
the Government should exceed the minimum requirements of Annex 17 of the
Chicago Convention, with the aim of achieving the highest possible standards of
air cargo security.
23.1 The Commission supports Transport Canada’s proposed Air Cargo
Security (ACS) Initiative and recommends its implementation
on a priority basis.
23.2 Under the new regime, all air cargo to be loaded onto passenger
aircraft should be screened to a level comparable to that currently
provided for hold baggage.
23.3 All air cargo to be loaded onto all-cargo aircraft should be screened to
a level deemed appropriate, on the basis of risk. When air cargo is
�Chapter VI: Terrorist Financing
transferred from all-cargo to passenger aircraft, additional screening
should be conducted commensurate with screening requirements that
normally apply to air cargo carried on passenger aircraft.
23.4 Screening for air cargo should take into account the risk posed by new,
emerging or otherwise unaddressed threats as they arise.
23.5 The evaluation of technologies to screen consolidated or bulk cargo
should be accelerated.
23.6 A centralized screening service for all air cargo requiring screening at
the airport should be considered for all Class 1 airports.
23.7 CATSA, with its screening mandate, expertise, equipment and
dedicated personnel, is the appropriate authority to conduct air cargo
screening services at the airport and may have a role to play in
the oversight and inspection of screening by Regulated Agents.
CATSA’s mandate should be expanded by legislation to include the
screening of air cargo.
23.8 Care must be taken to provide adequate training for all air cargo
screeners. This should include rigorous testing for required
competencies. The development and implementation of computer
software training and screening aids should be accelerated.
23.9 Transport Canada should employ a sufficient number of security
inspectors trained and qualified for inspecting, testing, auditing and
enforcing the new air cargo security regime.
23.10 Funding for the ACS Initiative must ensure that it remains sustainable
and can respond to emerging or otherwise unaddressed threats.
23.11 Annual progress reports on enhancements in air cargo security
should be provided to Parliament by the Minister of Transport for
each of the five years following release of the Commission’s report.
Recommendation 24
24. The new security regime for air cargo must be governed by legislation, not
by non-binding Memoranda of Understanding. The security regime should
reflect international best practices.
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24.1 Legislative provisions should include, but not be limited to, the
following:
a. Mandatory security programs for all Regulated Agents, with formal
approval from Transport Canada;
b. Clear definitions for terminology, including the terms “screen,”
“inspect” and “search”;
c. Measures and technologies for screening air cargo;
d. Screening requirements for all Regulated Agents, whether
shippers, freight forwarders or air carriers;
e. Appropriate training requirements for all Regulated Agents, their
employees and sub-contractors;
f. Requirements to maintain the security of off-airport premises to
a specified level wherever cargo is handled, stored and potentially
accessed;
g. Requirements to maintain the security of off-airport vehicles to a
specified level for the transport of air cargo to its final point of
transfer;
h. Requirements for ensuring appropriate access and security
controls for air cargo while on airport premises, during transfer
to the aircraft and on loading onto the aircraft;
i.
Mandatory security clearances, including a credit check, for all
workers who have access or potential access to air cargo from the
point of receipt to the point of transfer, including sub-contractors
engaged to handle cargo on behalf of a Regulated Agent;
j.
A system of inspection, testing, auditing and enforcement by
Transport Canada or its designated agent; and
k. Methods of enforcement, including administrative monetary
penalties and other penalties that reflect the potential gravity of
the consequences of non-compliance.
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24.2 Regulated Agent security programs should describe all measures, practices,
policies and procedures applicable to air cargo security that have been, or will be,
implemented by the Regulated Agent, including security awareness programs
and risk management protocols.
Recommendation 25
25. A supply chain security regime should be established for other nonpassenger items (such as stores and catering) that are prepared at off-airport
premises before being delivered to an aircraft.
IX. Fixed Base Operations and General Aviation
Recommendation 26
26. As an urgent priority, all passengers and carry-on and checked baggage
boarding flights at FBOs and GA facilities that feed into designated airports or
are attached to designated airports should be screened to a level comparable to
passenger and baggage screening for scheduled commercial flights.
26.1 As an equally urgent priority, all non-passengers entering such FBO
and GA facilities should be screened to an acceptable level, based
on appropriate risk management protocols;
26.2 All non-passenger items (including air cargo) to be placed on flights
departing from such FBO and GA facilities should be screened to
an acceptable level, based on appropriate risk management protocols.
26.3 On a priority basis, all FBO and GA facilities should develop and
implement a security awareness and constant vigilance program
that supports a “neighbourhood watch” approach to security.
An accompanying training program should be developed
and implemented for all personnel to foster a culture of
security awareness and constant vigilance.
26.4 CATSA should oversee security screening services at FBOs
and GA facilities. If CATSA’s resources are engaged,
additional government funding should be provided.
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26.5 The aviation security requirements for FBOs and GA facilities
should be governed by legislation.
XI. Duty to Warn and Transparency
Recommendation 27
27. The development of a public warning system for threats against airlines
should receive further study. Issues include:
a. international experience with such systems;
b. the circumstances under which public warnings of threats have
occurred in Canada;
c.
the proper balance between security and industry interests;
d.
the proper balance between the need for secrecy and the need to
instill public confidence;
e.
the appropriate threshold at which a public warning should be
issued; and
f.
the policy and legal implications, including possible liability to
air carriers whose operations could be compromised by a public
warning.
Recommendation 28
28. In general, greater transparency in aviation security is required to inspire
confidence in the system, to provide assurance that resources are effectively
allocated and to ensure that government and industry stakeholders remain
accountable for managing this mandate.
28.1 The Commission does not recommend publishing intrusion test
results. If a decision is nonetheless made to publish them, publication
should only occur after enough time has passed to enable
vulnerabilities identified by the tests to be addressed.
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XII. Funding
Recommendation 29
29. As a core mandate directly related to national security, civil aviation
security should receive sustained funding, regardless of prevailing economic
circumstances, to maintain an acceptable level of security.
29.1 Funding for civil aviation security should be derived primarily from
government.
29.2 Funding priorities should be directed to areas of risk that have not
achieved an acceptable level of risk control, such as air cargo and
control of access to airside and restricted areas of airports.
29.3 If additional funds are required for initiatives related to passenger and
baggage security, the Commission supports the continuance of an Air
Travellers Security Charge (ATSC). However:
a. The collection, retention and disbursement of the ATSC should be
subjected to comprehensive and transparent accounting. All
revenue from the ATSC should be traceable and should be used
solely for civil aviation security;
b. An annual report of ATSC revenues as well as expenditures by
program or department is recommended; and
c. CATSA should be the main beneficiary of funds from the ATSC.
Observations
1. In light of all the evidence before it, the Commission believes that the RCMP
is not properly structured to deal with the unique challenges of terrorism
investigations. There is merit in considering structural changes to allow
for a greater degree of specialization and for a more concentrated focus on
investigating and supporting the prosecution of national security offences. This
may mean divesting the RCMP of its contract policing duties so as to simplify
lines of communication and to clarify the national dimensions of its mandate as
a pan-Canadian police force.
2. The funding of an academic institute for the study of terrorism – possibly to
be called the “Kanishka Centre” to commemorate the name of the aircraft that
was bombed on June 23, 1985 – could be an important step toward preventing
future terrorist attacks while honouring the memory of those who perished.
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3. The Commission believes that there would be great merit in a demonstration
of solicitude by the present Government for the families of the victims of the
bombing. To that end, an independent body should be created to recommend
an appropriate ex gratia payment and to oversee its distribution.
4. At an appropriate time the Government should provide a report detailing
which recommendations of the Commission have been implemented, and
which have been rejected or are subject to further study.
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ANNEX A: COMMISSION RULINGS
RULING ON STANDING AUGUST 9, 2006
REASONS FOR RULINGS ON STANDING
1. INTRODUCTION
I received 21 applications for standing from groups or individuals. I have given
each application due consideration and have appended to these Reasons the
consequent ruling for each applicant.
Before I turn to a discussion of the merits of each application, I will review some
of the principles and rules that have guided my decisions on standing.
2. GUIDING PRINCIPLES ON STANDING
The Terms of Reference and draft Rules of Procedure and Practice contemplate
two types of standing in this Inquiry: that of parties and that of intervenors.
The Terms of Reference establishing this Inquiry give the Commissioner the authority:
...to grant to the families of the victims of the Air India Flight 182 bombing an
opportunity for appropriate participation in the Inquiry; and
...to grant to any other person who satisfies him that he or she has a substantial
and direct interest in the subject-matter of the Inquiry an opportunity for appropriate participation in the Inquiry.
The Terms of Reference also authorize the Commissioner:
...to adopt any procedures and methods that he may consider expedient for the
proper conduct of the Inquiry...
Pursuant to this latter authority, draft Rules of Procedure and Practice (the
“Rules”) have been issued.
Rule 10 provides:
A person may be granted full or partial standing as a party by the Commissioner
if the Commissioner is satisfied that the person is directly and substantially affected by the mandate of the Inquiry or portions thereof.
Therefore, aside from family members and associations of family members who
presumptively, pursuant to paragraph (f ) of the Terms of Reference, have the
requisite interest in participation in this Inquiry, other groups or individuals
must demonstrate a direct and substantial interest before party standing will
be granted.
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Justice John Gomery, in his reasons with respect to standing before the Commission of Inquiry into the Sponsorship Program and Advertising Activities, explained the concept of “substantial and direct” interest as follows:
What constitutes a “substantial and direct interest in the subject matter of the
Inquiry”? Based upon what has been decided in comparable cases, the interest
of the applicant may be the protection of a legal interest in the sense that the
outcome of the Inquiry may affect the legal status or property interests of the
applicant, or it may be as insubstantial as the applicant’s sense of well-being or
fear of an adverse effect upon his or her reputation. Even if such a fear proves to
be unfounded, it may be serious and objectively reasonable enough to warrant
party or intervenor standing in the Inquiry. What does not constitute a valid
reason for a participant’s standing is mere concern about the issues to be examined, if the concern is not based upon the possible consequences to the personal interests of the person expressing the concern. As was stated by Campbell
J. in Range Representative on Administrative Segregation Kingston Penitentiary v.
Ontario (1989), 39 Admin. L.R. at p. 13, dealing with a coroner’s inquest:
Mere concern about the issues to be canvassed at the inquest, however deep
and genuine, is not enough to constitute direct and substantial interest. Neither
is expertise in the subject matter of the inquest or the particular issues of fact
that will arise. It is not enough that an individual has a useful perspective that
might assist the coroner.
Therefore, while the test for “substantial and direct” interest is not precise, applicants must in some way be directly affected by the conclusions reached in the
Inquiry to be granted party standing.
However, the success of this Inquiry is also dependent on the participation of
those individuals, groups and organizations that, while not affected directly by
the mandate, can provide crucial perspectives in relation to the Terms of Reference.
In this regard, Rule 11 provides:
A person may be granted standing as an intervenor by the Commissioner if the
Commissioner is satisfied that the person represents clearly ascertainable interests and perspectives essential to the Commissioner’s mandate, which the
Commissioner considers ought to be separately represented before the Inquiry,
in which event the intervenor may participate in a manner to be determined by
the Commissioner.
Insofar as the Terms of Reference touch on issues that may affect or engage certain segments of Canadian society in unique and important ways, I should hear
these voices and perspectives.
However, my mandate and role must at all times be guided by the Terms of Reference and the Rules, and it is in the public interest that this Inquiry be focused
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and conducted as expeditiously as possible. Therefore, I cannot grant intervenor
status unless applicants have ascertainable interests and perspectives that are
essential to my mandate. It is not enough that an individual or organization has
interests that overlap with the Inquiry or the desire to influence its outcome.
With these principles in mind, I now turn to my findings.
3. DISPOSITIONS
These applications can conveniently be broken out into a number of categories:
1) Family members and associations of family members
I received applications from the following groups representing family members
of the victims of the bombing:
• Air India Cabin Crew Association (AICCA)
• Air India Victims Families Association (AIVFA)
• Family members of the crew member victims of Air India Flight 182,
and India nationals (FMCMV/IN)
• I also received applications from the following individuals who are
family members:
• Mr. Sanjay Lazar
• Ms. Lata Pada
• Mr. Niraj Sinha
During the course of the hearing, I was advised that AICCA and FMCMV/IN intend to join forces and collaborate with each other, and that Mr. Lazar intends
to join that group as well.
AIVFA stated that it represents a large proportion of family members residing in
North America, and is still gathering new applications for membership.
Ms. Pada stated that she is working with a number of family members residing
in North America who are not members of AIVFA.
Mr. Sinha resides in India and has applied in writing.
All of the foregoing individuals and groups are entitled to participate pursuant
to paragraph (f ) of the Terms of Reference. They all have a direct and substantial
interest in the subject matter of the Inquiry within the meaning of Rule 10 and
should therefore be granted party status.
I find that the appropriate level of participation of these groups and individuals
can be achieved on the following terms:
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AICCA, FMCMV/IN, Mr. Lazar and Mr. Sinha all are or represent family members
or groups of family members of victims of the bombing who reside in India or
elsewhere outside of North America. They form a natural grouping for the purposes of representation.
AIVFA represents a large and potentially growing number of family members of
victims of the bombing who reside in North America. It forms a natural group
for the purposes of representation.
Ms. Pada and other individuals who did not apply separately but are aligned
with her form a natural grouping for the purposes of representation.
Each of the preceding three groups of family members should be granted status as parties for the purposes of participation in this Inquiry pursuant to the
Rules.
Proper conduct of the Inquiry requires that repetition be minimized to the extent possible. Each group is therefore encouraged to cooperate and collaborate
with other groups to the extent possible, and is expected to avoid repetition in
its participation.
On that basis, party status is granted on the terms set out in the rulings attached
to these reasons.
2) Government of Canada
The Department of Justice acts for the departments and agencies of the Government of Canada, as well as for the Government itself. The departments and
agencies relevant to the Inquiry include: RCMP, CSIS, Transport Canada, FINTRAC, Communications Security Establishment, Department of Foreign Affairs
and International Trade, Department of Finance, and Canada Revenue Agency.
Counsel for the Department of Justice indicated at the hearing that the Department of Justice had canvassed the issue of conflict and will address any conflict,
should it arise, to ensure that there is no interruption in the proceedings of the
Inquiry. The Government of Canada will “attempt to speak with one voice.”
Departments and agencies of the Government of Canada clearly have a substantial and direct interest in the subject matter of the Inquiry. The conclusions
of this Commission will have direct implications for their policies, legislation,
protocols and activities. In addition, the historical portion of the mandate directly implicates a number of specific departments and agencies. The Attorney
General of Canada should be granted status as a party to participate on the
Government’s behalf pursuant to the Rules.
3) Air India
Air India applied for standing as a party to participate in the Inquiry with respect
to subparagraphs (b)(i), (ii), (iv), (vi) and (vii) of the Terms of Reference.
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As set out in its application, Air India clearly has a substantial and direct interest
in the subject matter of the Inquiry. It should therefore be given status as a party
to participate, as set out in the Rules, with respect to those parts of the mandate
of the Inquiry.
4) Groups, associations and organizations claiming special expertise
with respect to all or part of the mandate of the inquiry
The following groups, associations and organizations provided affidavit evidence as to their experience and expertise with respect to all or part of the mandate of the Inquiry:
•
•
•
•
•
B’nai Brith Canada
Canadian Civil Liberties Association (CCLA)
Canadian Coalition Against Terror (C-CAT)
Canadian Coalition for Democracies (CCD)
Canadian Council on American Islamic Relations and Canadian
Muslim Civil Liberties Association (CAIR-CAN/CMCLA)
• Canadian Jewish Congress (CJC)
• Canadian Resource Centre for Victims of Crime (CRCVC)
• World Sikh Organization of Canada (WSO)
On examination of the evidence, it is my view that none is affected in such a
direct and substantial manner so as to qualify as a party pursuant to Rule 10,
but that each qualifies, pursuant to the test set out in Rule 11, for participation
as an intervenor.
I find that the proper conduct of the Inquiry requires that in each case the participation of the intervenor should be limited to areas of demonstrated experience and expertise. On the basis of the affidavit evidence, the proper scope of
participation for each of the intervenors is that set out in the rulings appended
hereto.
I find further that, pursuant to paragraph (d) of the Terms of Reference and pursuant to Rule 11 of the draft Rules, the proper conduct of the Inquiry will be
facilitated by restricting the participation of each intervenor at first instance to
written submissions with respect to the areas of the Inquiry or portions of the
mandate for which they were granted standing.
Individual intervenors may wish to extend their participation beyond written
submissions. Different applicants in this group asked for specific extended
rights of participation. Once they file their written submissions, intervenors are
at liberty to apply for extended rights of participation, including the right to
make a 10-minute opening statement, or other participation as envisaged by
the Rules. Such applications should be made in writing, addressed to Commis-
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sion Counsel, with a copy to the Registrar. I shall deal with each such application
on the merits, subject to such additional process, if any, as will be determined at
the time of application.
The Canadian Bar Association (CBA) applied in writing and asked for leave
to extend the time to apply for standing as an intervenor. I hereby grant
such leave, and upon review of the CBA’s materials, also grant the CBA intervenor status in accordance with the terms set out above and with the
rulings appended hereto.
5) Mr. Ripudaman Singh Malik
Mr. Malik was charged in connection with the bombing of Air India Flight 182.
He was acquitted in proceedings reported as R. v. Malik, [2005] B.C.J. No. 521
(B.C.S.C.). Mr. Malik applied in writing for standing with respect to the mandate
of the Inquiry.
Paragraph (p) of the Terms of Reference prohibits the Commissioner from “expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization.” Mr. Malik has a substantial and direct interest in a finding regarding his civil or criminal liability or lack thereof with respect
to the bombing, but that is not part of the mandate of the Inquiry. While Mr.
Malik may have personal experience or evidence as to the impact on him of any
alleged deficiencies in the conduct of the investigation into the bombing and
of the conduct of the trial, such experience does not vest him with the special
expertise with respect to the specific issues within the mandate of the Inquiry
and about which I am to report.
Mr. Malik’s affidavit focuses largely on his interests in his reputation and on the
possibilities he perceives for damage to those interests during the course of the
Inquiry. In view of paragraph (p) of the Terms of Reference, there should be little
if any relevant evidence that could have the impact on Mr. Malik’s interests in his
reputation that he fears. Nevertheless, a possibility does exist of such negative
impact, and in light of the possibility, I find that Mr. Malik has, to that extent, an
interest in the subject matter of the Inquiry, limited as that interest may be.
I find that, pursuant to Rule 11, the appropriate standing for Mr. Malik is as an
intervenor, and that his interest in the subject matter of the Inquiry can be accommodated at first instance by participation in writing.
As with other intervenors, Mr. Malik is at liberty to apply in writing for expanded
participation. The same rules that apply to the other intervenors should apply
to Mr. Malik in this regard.
6) Other individuals who applied for standing
Mr. John Barry Smith, Mr. Arnold Guetta and Mr. Thomas Quiggin also applied
for standing.
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I find that, as interesting as the perspectives of these individuals may be, their
experience and perspectives are not directly applicable to the mandate of the
Inquiry, nor are their specific interests directly and substantially affected by the
mandate. Accordingly, these individuals should be denied standing. Having regard, however, to the effort they have expended in preparing materials, they
should be at liberty to file written materials with the Inquiry. They are to have
no additional rights or status.
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RULING ON STANDING
August 23, 2006
(Criminal Lawyers’ Association - CLA)
Request by Applicant
CLA applied in writing and asked for leave to extend the time to apply for standing before the Inquiry. CLA sought full party status at Stage 2 of the Inquiry. In
the alternative, CLA sought partial party status with respect to Terms of Reference b)iii), b)v) or b)vi). In the further alternative, CLA sought intervenor status
with respect to Terms of Reference b)iii), b)v) or b)vi).
Disposition
Leave to extend the time to apply for standing is granted, and intervenor status is granted on the following basis:
CLA is granted the right, in the first instance, to provide written submissions
with respect to Terms of Reference b)iii), b)v), and b)vi), especially as they relate to issues of how changes to the traditional criminal law model are likely to
impact on defence lawyers’ ability to discharge their public duty of testing the
reliability of evidence in the context of terrorism cases.
Rules Applicable to All Intervenors
The following rules apply to all intervenors who wish to apply for leave to assume a broader role beyond the filing of written submissions:
Following the filing of their written submissions, intervenors may apply for
leave to make a 10 minute opening statement.
Any intervenor wishing to propose a witness to be called by Commission Counsel may make submissions in writing, with reference to Rules of Procedure and
Practice 44 and 49, outlining the nature and importance of the anticipated evidence to be given by such witness.
Any intervenor wishing to participate in a manner beyond that envisioned in
paragraphs 1 and 2 above, may apply in writing for leave, outlining the nature
of the proposed additional participation and attaching submissions as to the
unique and valuable contribution to the accomplishment of the mandate of
the Commission that would result from such additional participation.
All written submissions and applications are to be submitted in hard copy to
Commission Counsel at the address of the Commission, with a copy to the Registrar.
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RULING ON STANDING
November 1, 2006
(Canadian Association of Chiefs of Police - CACP)
Request by Applicant
CACP applied in writing and asked for leave to extend the time to apply for
standing before the Inquiry. CACP seeks limited standing to make submissions
with respect to those aspects of the Terms of Reference that relate to potential
changes in respect of investigations, terrorism prevention, and airline safety.
Disposition
Leave to extend the time to apply for standing is granted, and intervenor status
is granted. CACP may, in the first instance, provide written submissions with respect to the aspects of the Terms of Reference as outlined above.
Rules Applicable to All Intervenors
The following rules apply to all intervenors who wish to apply for leave to assume a broader role beyond the filing of written submissions:
Following the filing of their written submissions, intervenors may apply for leave
to make a 10 minute opening statement.
Any intervenor wishing to propose a witness to be called by Commission Counsel may make submissions in writing, with reference to Rules of Procedure and
Practice 44 and 49, outlining the nature and importance of the anticipated evidence to be given by such witness.
Any intervenor wishing to participate in a manner beyond that envisioned in
paragraphs 1 and 2 above, may apply in writing for leave, outlining the nature
of the proposed additional participation and attaching submissions as to the
unique and valuable contribution to the accomplishment of the mandate of the
Commission that would result from such additional participation.
All written submissions and applications are to be submitted in hard copy to
Commission Counsel at the address of the Commission, with a copy to the Registrar.
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RULING ON STANDING
March 14, 2007
(Aleem Quraishi)
Request by Applicant
Applicant sought full party standing.
Disposition
Party status is granted on the following basis:
The Applicant may participate as provided by the Rules and Terms of Reference
with respect to the mandate of the Inquiry. Party status is granted on the understanding that the Applicant will collaborate and align with AICCA as well as
with FMCMV/IN.
Rules Applicable to All Intervenors
The following rules apply to all intervenors who wish to apply for leave to assume a broader role beyond the filing of written submissions:
Following the filing of their written submissions, intervenors may apply for leave
to make a 10 minute opening statement.
Any intervenor wishing to propose a witness to be called by Commission Counsel may make submissions in writing, with reference to Rules of Procedure and
Practice 44 and 49, outlining the nature and importance of the anticipated evidence to be given by such witness.
Any intervenor wishing to participate in a manner beyond that envisioned in
paragraphs 1 and 2 above, may apply in writing for leave, outlining the nature
of the proposed additional participation and attaching submissions as to the
unique and valuable contribution to the accomplishment of the mandate of the
Commission that would result from such additional participation.
All written submissions and applications are to be submitted in hard copy to
Commission Counsel at the address of the Commission, with a copy to the Registrar.
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RULING ON STANDING
May 11, 2007
(Federation of Law Societies of Canada - FLSC)
Request by Applicant
FLSC seeks standing to make submissions with respect to aspects of the mandate of the Inquiry that relate to the legal profession and the administration of
the justice system in Canada.
Disposition
Intervenor status is granted. FLSC may, in the first instance, provide written
submissions with respect to the aspects of the Terms of Reference as outlined
above.
Rules Applicable to All Intervenors
The following rules apply to all intervenors who wish to apply for leave to assume a broader role beyond the filing of written submissions:
Following the filing of their written submissions, intervenors may apply for leave
to make a 10 minute opening statement.
Any intervenor wishing to propose a witness to be called by Commission Counsel may make submissions in writing, with reference to Rules of Procedure and
Practice 44 and 49, outlining the nature and importance of the anticipated evidence to be given by such witness.
Any intervenor wishing to participate in a manner beyond that envisioned in
paragraphs 1 and 2 above, may apply in writing for leave, outlining the nature
of the proposed additional participation and attaching submissions as to the
unique and valuable contribution to the accomplishment of the mandate of the
Commission that would result from such additional participation.
All written submissions and applications are to be submitted in hard copy to
Commission Counsel at the address of the Commission, with a copy to the Registrar.
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RULING ON STANDING October 29, 2007 GIAN SINGH SANDHU
Order in Council P.C. 2006-293
BEFORE THE COMMISSIONER OF INQUIRY INTO THE INVESTIGATION OF THE
BOMBING OF AIR INDIA FLIGHT 182
REASONS
Gain Singh Sandhu has applied for the right to testify on the record at the Inquiry or, in the alternative, to present evidence by way of Affidavit.
Mr. Sandhu states in an Affidavit that certain testimony heard at the hearings of
the Inquiry implicates him and his reputation.
A review of the transcript reveals that Mr. Sandhu was referred to in the testimony of James Cunningham and certain remarks were make that might be
understood as implicating Mr. Sandhu’s reputation.
The subject matter with respect to which the remarks concerning Mr. Sandhu
were made is incidental to the mandate of the Commission. Little benefit would
be obtained by calling oral evidence on a collateral matter.
On the other hand, Mr. Sandhu should be given an opportunity to respond to
the remarks that he believes reflect negatively on his reputation. Accordingly,
leave is hereby granted to Mr. Sandhu to submit evidence by way of Affidavit
with respect to matters that he believes touch on his reputation as referred to in
the evidence of James Cunningham.
John C. Major, Q.C. Commissioner
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RULING ON STANDING OCTOBER 29, 2007
APPLICATION FOR BROADER STANDING
WORLD SIKH ORGANIZATION CANADA (WSO)
Order in Council P.C. 2006-293
BEFORE THE COMMISSIONER OF INQUIRY INTO THE INVESTIGATION OF THE
BOMBING OF AIR INDIA FLIGHT 182
REASONS
The World Sikh Organization of Canada (“WSO”) has applied for broader standing at these hearings. In particular, the WSO seeks a right to cross-examine witnesses on issues related to the reputational interests of the Sikh community and
a right to make written and oral submissions on all of the Terms of Reference.
Pursuant to its original application for a standing as an Intervenor, the WSO was
given the right to make written submissions with respect to matters touching
upon the reputational interests of the Sikh community.
Given its demonstrated expertise and its attendance at many of the hearing
dates for this Inquiry, it is appropriate to expand the subject matter of the WSO’s
Intervenor status to include all of the Terms of Reference on the same terms as
currently prevail with respect to other Intervenors.
No Intervenor at these hearings has been granted a right to cross-examine. That
right has been reserved for Parties.
It is not appropriate to make an exception in the case of WSO. Like the other
Intervenors, the WSO may present written submissions on all matters for which
it has now been given the right to intervene. Like the other Intervenors, the
WSO may also apply for leave to make oral submissions at the conclusion of the
hearing.
John C. Major, Q.C.
Commissioner
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WORLD SIKH ORGANIZATION CANADA (WSO)
APPLICATIONS TO CALL CERTAIN WITNESSES
Order in Council P.C. 2006-293
BEFORE THE COMMISSIONER OF INQUIRY INTO THE INVESTIGATION OF THE
BOMBING OF AIR INDIA FLIGHT 182
REASONS
The World Sikh Organization of Canada (“WSO”) has brought a motion to call
three individuals as witnesses at this Inquiry.
The witnesses in question are Gary Bass, Zuhair Kashmeri and David Kilgour.
Pursuant to the Rules of Practice of this Inquiry, the first step when an Intervenor proposes that a witness be called is to suggest the name of that witness to
Commission Counsel. Commission Counsel have indicated that they intend to
call Gary Bass as a witness. Accordingly, insofar as Gary Bass is concerned, this
motion is superfluous.
With respect to Zuhair Kashmeri and David Kilgour, the Affidavits submitted
on behalf of the WSO indicate that the purpose of calling these witnesses is to
deal with the allegation that the Government of India (“GOI”) may have been
involved in the bombing of Air India Flight 182 and that this allegation was not
investigated adequately in the aftermath of the bombing.
\
A review of the Terms of Reference of this Commission of Inquiry reveals that
the investigation of the bombing of Air India Flight 182 is intended to serve as a
backdrop and reference point for issues as to the degree of co-operation demonstrated between the departments and agencies of the Government of Canada, including the RCMP and CSIS. The investigation is also intended to present a
reference point for the issue of transforming security intelligence into evidence
admissible in a criminal trial.
None of the Terms of Reference calls for an inquiry into the issue of who was
responsible for the bombing of Flight 182 nor of the role, if any, of the GOI, nor
of the thoroughness of the investigation of any such role by the RCMP and/or
CSIS. This contrasts with the mandate of the 1991-92 SIRC Review.
Since the subject matter of the WSO’s request is not to be found in our Terms
of Reference, the motions to call oral evidence on that subject through Messrs.
Kashmiri and Kilgour are hereby dismissed.
John C. Major, Q.C.
Commissioner
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The Canadian Bar Association (CBA)
June 13, 2007
RULING ON OPENING STATEMENT
Request by Applicant
The Canadian Bar Association sought leave to make an opening statement during Stage 2 of the Inquiry proceedings so that the CBA can address the issues
that are of concern to the CBA and are within the Commissioner’s mandate.
Disposition
The Canadian Bar Association may make an opening statement for up
to 30 minutes to highlight the key points outlined in their written submission. The written submission can be filed as Inquiry evidence at
that time. The CBA is requested to coordinate with Commission counsel to arrange an appropriate time for making the opening statement.
It is also envisaged that Commission counsel may also find an occasion as appropriate to afford the CBA another opportunity to present oral testimony through
participation in a panel. Commission counsel will contact the CBA at a later date
if this opportunity arises.
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Air India Victims Families Association (AIVFA)
January 3, 2007
REASONS FOR DECISION WITH RESPECT TO THE AIVFA’S REQUEST FOR
DIRECTIONS REGARDING ACCESS TO UNREDACTED DOCUMENTS AND IN
CAMERA AN EX PARTE HEARINGS
INTRODUCTION
1. This motion for direction is dismissed. The families in this Inquiry have been
promised full participation in the Air India Inquiry in accordance with Terms of
Reference. The failure of this application requires a full explanation as to why the
limit on their counsel attending in camera hearings or viewing redacted (edited)
documents that could have been injurious to international relations, national
defence or national security (hereinafter collectively referred to as “national security”) is necessary and does not hamper the families participation.
2. Counsel for the families correctly acknowledge that if they were able to attend the in camera hearings, of which there have not been any as of yet, and or
view security related documents they are and would be prohibited by law from
disclosing, however innocuous, any aspects of those proceedings or documents
to their clients who are members or relations of the families of the victims of the
Air India explosion. That raises the question of what possible value such attendance or viewing documents would be to the families.
3. As a corollary to that restriction there is an obligation on this Commission
to ensure to the extent possible that all hearings and document production be
public. The reasons for hearings and production in camera camera for reasons
of national security, which encompasses all Canadians, must be clearly demonstrated to the commission by the Government of Canada (“G.O.C.”) when such
procedure is sought.
4. While counsel are not entitled to attend in camera hearings, they are entitled to make submissions and call relevant evidence if any, to show that the
particular request by the G.O.C. for an in camera hearing should not be ordered.
The only basis for having the in camera hearings will be if the G.O.C. has demonstrated that the matter involved could in the opinion of the Commissioner, be
injurious to national security.
5. The foregoing summary needs elaboration. The elaboration is intended
to explain that any fear by the families of being excluded, misinformed or not
being able to fully participate within the terms of reference is misplaced. The
absence of their counsel from in camera hearings on national security will not
affect their full participation.
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THE POSITION OF THE PARTIES
6.
AIVFA submits that their counsel who have top secret clearance granted
by the Government of Canada be admitted to in camera hearings and be granted access to unredacted documents. They submit there should be no national
security concerns in allowing them to participate in in camera hearings and to
see unredacted documents. Their counsel further submits that for them to have
this access would ensure that AIVFA will be engaged, through its counsel, as a
full contributor to the Commission’s work while increasing the confidence and
trust of family members in the Inquiry itself. AIVFA points specifically to the goal
alluded to at the end of Stage 1 of the Inquiry, namely “to ensure that when parties leave this hearing that they feel they have had a full opportunity to explore
the cause [of the failure to prevent the bombing] and be satisfied they know
what happened to the extent that is possible.” AIVFA submits that the access
it seeks for its counsel is a means to achieve this goal and that nothing in the
Inquiry’s Terms of Reference prevents me from granting the direction or order
being sought.
7.
The Government of Canada opposes the motion. In support of its position,
it cites the Terms of Reference of the Inquiry and the procedures set out in Section 38 of the Canada Evidence Act for dealing with top secret matters as well
as the way national security is treated in other legal proceedings. G.O.C. submits
that the Terms of Reference and the procedure set out in Section 38 preclude
counsel for AIVFA, although holding top security clearance, being granted the
access sought.
DISPOSITION
8.
The explicit provisions of the Terms of Reference of this Inquiry and the
procedural provisions outlined in Section 38 of the Canada Evidence Act support G.O.C. application preclude me from granting AIVFA counsel the access requested. From a functional point of view, even if I did have jurisdiction to grant
access, it is difficult to see how such access could improve the knowledge or
understanding of the families with respect to the subject matter of the Inquiry.
Even if such access were possible, it would serve no practical benefit for the
families themselves as penal sanctions prevent any disclosure to anybody including their clients of anything seen or heard at the in camera hearings or in
unredacted documents. G.O.C. also submits that if the issue is seen as one of
fairness, there are other guarantees of fairness in the Inquiry process that make
the access sought unnecessary.
9.
I agree that the concern advanced by the families demonstrates the necessity of holding as much of this Inquiry as possible in public but, that fact does
not give me jurisdiction to allow the motion for attendance applied for.
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IN CAMERA HEARINGS
10. Unlike a court of inherent jurisdiction, a Commission of Inquiry only has the
powers granted to it by statute or by its Terms of Reference. The Commission’s
Powers and Duties respecting the matters raised by AIVFA are found at paragraphs d, f, m, n and o of the Terms of Reference:
that the Commissioner be authorized to adopt any procedures and methods
that he may consider expedient for the proper conduct of the Inquiry, and to sit
at any times and in any places in or outside Canada that he may decide
that the Commissioner be authorized to grant to the families of the victims of
the Air India Flight 182 bombing an opportunity for appropriate participation
in the Inquiry
the Commissioner, in conducting the Inquiry, to take all steps necessary to prevent disclosure of information which, if it were disclosed, could, in the opinion
of the Commissioner, be injurious to international relations, national defence or
national security and to conduct the proceedings in accordance with the following procedures, namely,
(i) on the request of the Attorney General of Canada, the Commissioner shall
receive information in camera and in the absence of any party and their counsel
if, in the opinion of the Commissioner, the disclosure of that information could
be injurious to international relations, national defence or national security
that nothing in that Commission shall be construed as limiting the application
of the provisions of the Canada Evidence Act
the Commissioner to follow established security procedures, including the requirements of the Government Security Policy, with respect to persons engaged
pursuant to section 11 of the Inquiries Act and the handling of information at all
stages of the Inquiry.
11. At present AIVFA’s request with respect to access to in camera proceedings
is premature since there has not been any request by the Attorney General of
Canada as set out in paragraph m(i) of the Terms of Reference, nor have I made
any ruling to date that any session be in camera. However, undoubtedly such a
request will be made and that it is necessary to determine the principles at this
point, that will govern the conduct of in camera hearings. This provides procedural clarity and it is hoped will avoid unnecessary delay if such a request is
made.
12. It should be noted that a mere request by the Attorney General of Canada
is not sufficient to obtain an order that some particular matter be heard in camera. Pursuant to paragraph m(i) of the Terms of Reference, the Attorney General
must satisfy me that disclosure of the information in question could be injurious to international relations, national defence or national security before I can
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order that the information be dealt with through in camera hearings. G.O.C. concedes that the parties in this Inquiry, including AIVFA through its counsel, have
a right to make submissions in response to any such request and to oppose any
specific request for an in camera hearing.
13. Paragraph m(i) of the Terms of Reference is clear that if I am satisfied by
the Attorney General that disclosure of such information could be injurious to
international relations, national defence or national security, I have no jurisdiction other than I “shall” receive the information “in camera and in the absence of
any party and their counsel.”
14. Paragraph d. of the Terms of Reference, which authorizes me to adopt any
procedures and methods that I may consider expedient for the proper conduct
of the Inquiry does not allow me to modify or ignore the clear instructions set
out in paragraph m(i). I disagree with the proposed reading by AIVFA of paragraph m(i) which would, for purposes of the present motion, read the test to be
whether “disclosure of that information and could be injurious…” as meaning
that I should assess whether “disclosure to counsel with top secret clearance of
that information could be injurious …”. I do not agree with this innovative argument as it is inconsistent with the express requirement that information, the disclosure of which could be harmful, must be received in camera “and the absence
of any party and their counsel.” Wording to prevent this result could easily have
been used had that been the G.O.C. intent.
ACCESS TO UNREDACTED DOCUMENTS
15. Paragraph n of the Terms of Reference provides that nothing in the Terms
of Reference establishing the Commission is to be construed as limiting the application of the provisions of the Canada Evidence Act.
16. Pursuant to Section 38.11(2) of that Act, the Attorney General is entitled
to make ex parte representations (i.e. representations outside of the presence
of any party or its counsel) concerning the redaction of sensitive or potentially
injurious information. I am not bound to accept the submissions of the Attorney
General and Commission counsel may argue either in support of or in opposition to these submissions, but there is no doubt that the redaction process is
not one in which counsel for the parties, with or without security clearance, may
participate. I agree with the Attorney General’s submission, that sensitive or potentially injurious information must be redacted from documents prior to their
use in public hearings and that there is nothing that authorizes me to grant
counsel for AIVFA access to unredacted versions of such documents.
FUNCTIONAL CONSIDERATIONS
17. A consideration of the functional implications of the directions being requested by AIVFA reinforces the conclusions that I have reached.
�Annexes
18. Counsel for G.O.C. submits the case law with respect to national security
issues makes it clear that the potentially injurious consequences of disclosure
have lead courts to take a very cautious approach. See Secretary of State for the
Home Department v. Rehman, [2001] 3 W.L.R. 877. The principle stated there was
accepted by the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para. 33:
“It is not only that the executive has access to special information and expertise in these matters [of national security]. It is also that such decisions, with
serious potential results for the community, require a legitimacy which can be
conferred only be entrusting them to persons responsible to the community
through the democratic process.”
19. The principle that has been adopted by the Government of Canada in dealing with disclosure of information potentially injurious to national security or
to the national interest, is to restrict disclosure on the basis of “need to know”.
This principle has been approved by the Federal Court of Appeal in connection
with the “informer privilege” in Canada (R.C.M.P. Public Complaints Commission)
v. Canada (Attorney General), 2005 FCA 213*. There, disclosure was sought by the
RCMP Complaints Commissioner in order to “ensure the highest possible standard of justice.” Lètourneau J.A. responded that “as laudable as this goal may be,
it cannot justify granting access to persons who are not persons who need to
know such information for law enforcement purposes.” (paras 43-48)
20. This same “need to know” principle should be applied with respect to in
camera hearings and access to unredacted documents. In the present circumstances, it cannot be said that in their role as counsel, counsel for AIVFA “need to
know” the information to which access is being sought. As AIVFA acknowledges,
counsel would not be able to disclose any information learned in the course of
the in camera hearings nor could they disclose the redacted portions of documents to their clients. AIVFA explicitly acknowledges that counsel would be
required to give an undertaking not to make such disclosure. In those circumstances, it is impossible to see how access to in camera hearings or unredacted
documents would add to the families’ “opportunity to explore the cause” or allow them “to be satisfied that they know what happened.” Counsel themselves
might believe that they had more information about what happened, but they
could not communicate that information to their clients. This would not justify
treating granting of access as capable of outweighing the Government’s interest in restricting disclosure, and that would be the case even if the Terms of Reference allowed me to do such balancing, which, they do not. In fact, even if they
were allowed to attend in camera sessions, counsel for AIVFA could only subsequently make arguments and submissions as if they had not attended them.
21. It is important that the public interest (which includes the interest of the
families) with respect to a full exploration of all the facts is not left unguarded.
At the restricted in camera hearing and/or the redaction of document it is the
responsibility of the Commission and the role of Commission counsel to protect
that public interest. As noted by Mr. Justice Dennis O’Connor, Commissioner at
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the Arar Inquiry, in his non-judicial article, “The Role of Commission Counsel in a
Public Inquiry”:
“… commission counsel’s role is not to advance any particular point of view, but
rather to investigate and lead evidence in a thorough, but completely impartial
and balanced manner. In this way, the commissioner will have the benefit of
hearing all the relevant evidence unvarnished by the prospective of someone
with an interest in a particular outcome.” (2003), 22 Advocates Soc. J. No. 1, at
para. 12.
22. As also noted by Justice O’Connor, where a public inquiry does hear evidence in camera, the role of Commission counsel in representing the public interest allows Commission counsel to depart somewhat from his or her normal
role and to engage in pointed cross-examination where necessary, so as to ensure that evidence heard in camera is thoroughly tested -- a procedure intended
to be followed by this Commission.
CONCLUSION
23. There is no doubt, as submitted by AIVFA, that there is a valid interest in
the fullest possible airing of all information relevant to the subject matter of the
Inquiry. For that reason, to the extent that it is possible, hearings should be public and the information disclosed publicly. That is the principle set out in rule 22
of our Rules of Practice and Procedure. The operative concept, however, is the
phrase “to the extent that that is possible”, words that I also used in the passage
cited by AIVFA in describing the educational goal of the Inquiry.
24. By the Terms of Reference of this Inquiry, I have no jurisdiction to grant access to counsel for AIVFA to any in camera hearings that may be held nor to unredacted versions of documents that have been redacted for national security
reasons. Functional considerations, including the deference due to government
with respect to matters touching on national security and the appropriateness
of the “need to know” principle, lead in the present case, to the same result. For
all the above as previously stated this application for direction is dismissed.
�Annexes
ANNEX B: PARTIES AND INTERVENORS
PARTIES
Attorney General of Canada represented by:
Barney Brucker, Department of Justice Canada
Air India represented by:
Soma Ray-Ellis, Patterson, MacDougall LLP
Air India Cabin Crew Association (AICCA) represented by:
Richard P. Quance and Darren James Smith, Himelfarb Proszanski LLP
Air India Victims Families Association (AIVFA) represented by:
Norman Boxall, Bayne Sellar Boxall
Jacques J.M. Shore and Chris Schafer, Gowling Lafleur Henderson LLP
Family members of the crew member victims of Air India Flight 182 and
Indian nationals represented by:
Richard P. Quance and Darren James Smith, Himelfarb Proszanski LLP
Sanjay Lazar represented by:
Richard P. Quance and Darren James Smith, Himelfarb Proszanski LLP
Lata Pada represented by:
Raj Anand and April Brosseau, WeirFoulds LLP
Aleen Quraishi represented by:
Richard P. Quance and Darren James Smith, Himelfarb Proszanski LLP
Niraj Sinha
INTERVENORS
B’nai Brith Canada represented by:
Adam Goodman, Heenan Blaikie LLP
Canadian Association of Chiefs of Police (CACP) represented by:
Vincent Westwick
The Canadian Bar Association (CBA) represented by:
Lorne A. Waldman, Waldman & Associates
Greg Del Bigio
Canadian Civil Liberties Association (CCLA) represented by:
A. Alan Borovoy
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Canadian Coalition Against Terror (C-CAT) represented by:
Aaron Blumenfeld and Amy Westland, Borden Ladner Gervais LLP
Canadian Coalition for Democracies (CCD) represented by:
David B. Harris
Canadian Council on American Islamic Relations (CAIR-CAN) and Canadian
Muslim Civil Liberties Association (CMCLA) represented by:
Faisal Kutty and Akbar Sayed Mohamed, Kutty, Syed & Mohamed
Canadian Jewish Congress (CJC) represented by:
Lawrence Thacker, Lenczner Slaght
Canadian Resource Centre for Victims of Crime (CRCVC)
Criminal Lawyers’ Association (CLA) represented by:
Paul Burstein, Burstein, Unger
Federation of Law Societies of Canada (FLSC)
Ripudaman Singh Malik represented by:
Murray L. Smith, Smith Barristers
World Sikh Organization of Canada (WSO) represented by:
Palbinder Shergill, Shergill and Company
�Annexes
ANNEX C: COMMISSION OF INQUIRY STAFF AND CONSULTANTS
Commissioner’s Office
Major, Hon. John C. - Commissioner
Kenny, Barbara - Executive Assistant to the Commissioner (Calgary)
Archdeacon, Maurice - Special Advisor to the Commissioner
Executive
Brook, Dennis - Director - Operations
Cooke, Lynne - Director - Finance
Administrative Staff
Ariano, Wanda
Brisson, Richard
Cécire, Angelo
Dickerson, Ken
Duquette, Julie
Fitzsimmons, Donna
Guérin, Kim
Godbout, Gail
Hooper, Anne
Irani, Lina
Karmali, Nadia
Monette, Pierre
Mutton, Mary
Osborne, Anita
Rock, Stephanie
Surprenant, Roland
Thomas, Roger
Report Production
Editing:
Gussman, Tom
Sadinsky, Ian
Oscapella, Eugene
S&D Jung
Enman, Charles
Fowler, Rod
Duquette, Julie
Translation:
Translation Bureau (PWGSC)
Design & Production
Fitzsimmons, Donna
Formatting
Burritt, Denise
Guérin, Kim
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Legal
Freiman, Mark – Commission Lead Counsel
Dorval, Michel – Co-Counsel
Bilodeau, Roger – Senior Counsel
Gover, Brian – Senior Counsel
Kapoor, Anil – Senior Counsel
Barragan, Francis
Blum, Nadine
Boucher, Alexandre
Bowes, Tanya
Carle, Frédéric
Coutlée, Geneviève
Fairchild, Robert
Mall, Adela
Marshman, Nigel
Perron, Jean-Paul
Rachamalla, Teja
Saito, Yolanda
Sévéno, Louis
Victor, Marisa
Viswanathan, Hari
Vancouver:
Gudmundseth, Stein
Michelson, Howard
Dosanjh, Arpal
Gartner, Janet
Research
Archambault, Dr. Peter
Roach, Prof. Kent
Hearings
International Reporting (Court Reporters)
PWGSC Translation Bureau (Interpretation Services)
Website
Baytek Systems
Other
Brisson, Gilles – Registrar
Tansey, Michael – Media Advisor
Special Thanks
Special Thanks to all those at the Privy Council and PWGSC who helped the
Commission in so many ways; with special mention to Mark Amodeo of PCO IT
and Denise Larocque of PCO Corporate Services.
�First Name
Laxmansinh Jayantkumar
Jainul (“Joe”)
Moses
Rob
Anita
Ronald (“Ron”)
Michel
Carman
Smita
Rajvinder (Singh)
Jean
James K.
Maureen
Gary
Eric
Marc
Last Name
Abda
Abid
Alemán
Alexander
Anand
Atkey
Aubin
Baggaley
Bailey
Bains
Barrette
Bartleman
Basnicki
Bass
Beauchesne
Beaulieu
Transport Canada
Formerly with Foreign Affairs and International
Trade Canada
Canadian family member of 9/11 victim
Royal Canadian Mounted Police
Family member
Quebec Ministry of Public Security
University of Toronto Faculty of Law
Former Chairman of the Security Intelligence
Review Committee
Royal Canadian Mounted Police
Office of the Privacy Commissioner of Canada
Family member
Punjabi Human Rights Organization
Formerly with Air India
Civil aviation security expert
Family member
Family member
Organization/
Family Member
ANNEX D: WITNESS LIST
Annexes
247
�First Name
Parkash
Jim
Douglas
Michael
Amarjit
Bart
William
Margaret
Anne-Marie
Régis
Jacques
Brion
Jean-Paul
Blake
Daniel
Greg
Last Name
Bedi
Bertram
Best
Bettman
Bhinder
Blachford
Blair
Bloodworth
Boisvert
Bonneau
Bourgault
Brandt
Brodeur
Bromley
Brown
Browning
Royal Canadian Mounted Police
Crew, Laurentian Forest (Recovery)
Université du Québec à Montréal
Transport Canada
Centre international de criminologie comparée,
Université de Montréal
Benefic Group
Royal Canadian Mounted Police
Toronto Police Service
Privy Council Office
Faculty of Law, University of Montreal
Royal Canadian Mounted Police
Family member
Royal Canadian Mounted Police
Correctional Service of Canada
Greater Toronto Airport Authority
Family member
Organization/
Family Member
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�First Name
Robert (“Bob”)
Robert
Serge
Gary
Terrance
Nick
Monique
Steven
Robert
Rajesh
Gary
Michael
Michael
Stephen
Rick
Jim
Last Name
Burgoyne
Burns
Carignan
Carlson
Carter
Cartwright
Castonguay
Chabot
Chesney
Chopra
Clarke
Code
Comeau
Conrad
Crook
Cunningham
Formerly with the Vancouver Police Department
Royal Canadian Mounted Police
University of Toronto Faculty of Law
New Brunswick Department of Justice and
Consumer Affairs
Transport Canada
Wake Forest University
Air India
Formerly with the Royal Canadian Mounted Police
Transport Canada
Family member
Sûreté du Québec
Carters Professional Corporation (Carters)
Formerly with the Canadian Security Intelligence
Service
CanPro Pacific Services Inc.
Formerly with the Quebec Provincial Police
Royal Canadian Mounted Police
Organization/
Family Member
Annexes
249
�First Name
Pierre
Yvon
Terry
Robert
David
Kenneth
Ron
Janet
George
Tom
The Honourable Ujjal
Wayne
Louise
David
Yves
Last Name
Cyr
Dandurand
De March
Desjardins
Dewhirst
Dibble
Dicks
DiFrancesco
Dolhai
Doran
Dosanjh
Douglas
Doyon
Duff
Duguay
Canadian Security Intelligence Service
University of Toronto Faculty of Law
Air Canada
Formerly with the Royal Canadian Mounted Police
MP and prominent member of BC Sikh community
Formerly with the Royal Canadian Mounted Police
Financial Transactions and Reports Analysis Centre
of Canada
Public Prosecution Service of Canada
Garda (Ireland)
Foreign Affairs and International Trade Canada
Formerly with Foreign Affairs and International
Trade Canada
Charity Commission for England and Wales
Canada Revenue Agency
University College of the Fraser Valley
Canadian Air Transport Security Authority
Organization/
Family Member
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Volume One: The Overview
�First Name
William
Andrew
Neil
Geoff
Jim
Glen
Geoff
Saroj
Tyson
Daniel
Colin
John A.
Ram
Ramachandran
Terry
Georgina
Last Name
Elliott
Ellis
Eshleman
Frisby
Galt
Gartshore
Gaul
Gaur
George
Giasson
Gibbs
Gillies
Gogia
Gopalan
Goral
Graham
International Air Transport Association
Family member
Family member
Formerly with the Royal Canadian Mounted Police
Canadian Security Intelligence Service
Formerly with the Canadian Security Intelligence
Service
British Columbia Ministry of the Attorney General
Family member
Canada Border Services Agency
Integrated Threat Assessment Center, Canadian
Security Intelligence Service
Crown Prosecution Service (UK)
Canadian Security Intelligence Service
Canadian Security Intelligence Service
Formerly with the Canadian Security Intelligence
Service
Formerly with the Royal Canadian Mounted Police
Royal Canadian Mounted Police
Organization/
Family Member
Annexes
251
�First Name
Justice Bernard
Mervin
Anita
Bal
Shailendra
Susheel
Craig
Anil
David (“Dave”)
Thomas
Scott
Chern
Michael
John
Lyman
Lloyd
Last Name
Grenier
Grierson
Gupta
Gupta
Gupta
Gupta
Hall
Hanse
Hayer
Hayes
Heatherington
Heed
Hennessy
Henry
Henschel
Hickman
Formerly with the Royal Canadian Mounted Police
Son of Tara Singh Hayer, slain Sikh journalist in BC
Garda (Ireland)
Foreign Affairs and International Trade Canada
Expert consultant - Airports
Department of History, Royal Military College
Formerly with the Canadian Security Intelligence
Service
Formerly with the Royal Canadian Mounted Police
Family member
Air Line Pilots Association International
Family member
Comité du Barreau du Québec
Formerly with the Canadian Security Intelligence
Service
Family member
Family member
Family member
Organization/
Family Member
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Volume One: The Overview
�Fred
Jim
Meera
Vijay
Kachroo
Kachru
Jarrett
Jones
Judd
James
Jardine
Jacques
Jamie
Jagoe
Jodoin
Norman
Inkster
Pierre-Côme
Axel
Hovbrender
Jobin
Jack
Hooper
Jensen
Bruce
Hoffman
Lynne
(formerly Lynne McAdams)
Henry
First Name
Last Name
Family member
Family member
Quebec Ministry of Public Security
Formerly with the Canadian Security Intelligence
Service
Canadian Airports Council
Canadian Security Intelligence Service
Royal Canadian Mounted Police
Former Crown Counsel, Department of the
Attorney General, British Columbia
Formerly with the Canadian Security Intelligence
Service
Formerly with the Royal Canadian Mounted Police
Formerly with Royal Canadian Mounted Police
Vancouver Police Department
Georgetown University
Formerly with the Canadian Security Intelligence
Service
Organization/
Family Member
Annexes
253
�First Name
Rattan (Singh)
Neelam
Phillip
Paul
The Honourable Colin
Deepak
Ramji
Peter
Maurice
Ray
Patricia
Ruth
T. N.
Jean
Last Name
Kalsi
Kaushik
Kelly
Kennedy
Kenny
Khandelwal
Khandelwal
Kirwan
Klein
Kobzey
Kosseim
Krindle
Kumar
Labbé
Air Line Pilots Association, International
Garda (Ireland)
Commission for Public Complaints against the
RCMP
Chair, The Standing Senate Committee on
National Security and Defence
Family member
Family member
Garda (Ireland)
Canada Revenue Agency
Formerly with the Canadian Security Intelligence
Service
Office of the Privacy Commissioner of Canada
Formerly with the Manitoba Court of Queen’s
Bench
Air India
Family member
Family member
Organization/
Family Member
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�First Name
Pierre
Diane
Daniel
Mark
Duncan
Pierre
William Dean (“Willie”)
Sanjay
Dr. William
David
John
J.B. (“Joe”)
Michael Anne
Laurie
Last Name
LaCompte
Lafleur
Lalonde
Lalonde
Lane
Lapointe
Laurie
Lazar
Leiss
Lyon
MacBrayne
MacDonald
MacDonald
MacDonell
Formerly with the Ministry of the Attorney
General, Ontario
Royal Canadian Mounted Police
Formerly with the Royal Canadian Mounted Police
Metropolitan Police Service (London, UK)
Queen’s University
Formerly with the Canadian Security Intelligence
Service
Family member
University of Ottawa
Steering Committee on Justice Efficiencies
and Access to the Criminal Justice System
(Department of Justice - Canada)
CanPro Pacific Services Inc.
Canadian Security Intelligence Service
Canadian Security Intelligence Service
Department of Finance Canada
Formerly with Burns Security
Organization/
Family Member
Annexes
255
�First Name
Bruce
Alphonse
Natasha
Perviz
James
Kalwant
Jim
Isabelle
Dale
Dan
Mike
Don
Daniel
Reid
Last Name
MacFarlane
MacNeil
Madon
Madon
Malizia
Mamak
Marriott
Martinez-Hayer
Mattson
Mayer
McDonell
McLean
Molgat
Morden
Formerly with the Vancouver Police Department
Formerly with Foreign Affairs and International
Trade Canada
Formerly with the Canadian Security Intelligence
Service
Royal Canadian Mounted Police
Royal Canadian Mounted Police
Formerly with Transport Canada
Family member
Transport Canada
Daughter-in-law of Tara Singh Hayer, slain Sikh
journalist in BC
Royal Canadian Mounted Police
Family member
University of Manitoba
Royal Canadian Mounted Police
Family member
Organization/
Family Member
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Volume One: The Overview
�First Name
Keith
Pat
R.E.
Seanie
Dave
William
Paul
Gérard
John
Geoffrey
Lata
Ches
Nikos
Neil
Donna Ramah
Last Name
Morrill
Morris
Muir
Murphy
Murray
Nash
Newham
Normand
Norris
O’Brian
Pada
Parsons
Passas
Passmore
Paul
Family member
Royal Canadian Mounted Police
Northeastern University College of Criminal
Justice
Canadian Security Intelligence Service, (presently
seconded to the Royal Canadian Mounted Police)
Family member
Canadian Security Intelligence Service
National Terrorist Financial Investigation Unit (UK)
Formerly with the National Security Group
Ruby & Edwardh, LLP
Department of Foreign Affairs and International
Trade
Ontario Provincial Police
Formerly with the Royal Canadian Mounted Police
Captain Royal National Lifeboat Institution
(Recovery)
Canadian Security Intelligence Service
Transport Canada
Organization/
Family Member
Annexes
257
�Pierre-Paul
Graham
Luc
Mark
David
Thomas
Aleem
Haranhalli
The Honourable Bob
Satrajpal
Ramu
Shipra
Sherene
Pichette
Pinos
Portelance
Potter
Quartermain
Quiggin
Quraishi
Radhakrishna
Rae
Rai
Ramakesavan
Rana
Razack
University of Toronto
Family member
Family member
Family member
Author of Lesssons to be Learned
Nanyang Technological University
Family member
Family member
Canadian Security Intelligence Service
Financial Transactions and Reports Analysis Centre
of Canada
Canada Border Services Agency
Formerly with the Department of Justice Canada
Service de police de la Ville de Montréal
Quebec Ministry of Public Security
Catherine
Piché
Royal Canadian Mounted Police
Source who warned of plot against Air India
Bob
Paulson
Organization/
Family Member
Person 1
First Name
Last Name
258
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�First Name
Rick
Kent
Michael (“Mike”)
Martin
Promode
Manjit (Singh)
Renee
Gian Singh
Pierre
Chandra
John
Lorne
Lindsay
Chris
Krishna
Last Name
Reynolds
Roach
Roth
Rudner
Sabharwal
Sahota
Saklikar
Sandhu
Sangollo
Sankurathri
Schmidt
Schwartz
Scotton
Scowen
Sharma
Family member
Former president of World Sikh Organization of
Canada
Correctional Service of Canada
Family member
Integrated Threat Assessment Center, Canadian
Security Intelligence Service
Royal Canadian Mounted Police
Office of the Privacy Commissioner of Canada
Formerly with the Canadian Security Intelligence
Service
Family member
Sikh community activist (Toronto)
Formerly with the Royal Canadian Mounted Police
Carleton University
Family member
University of Toronto Faculty of Law
Royal Canadian Mounted Police
Organization/
Family Member
Annexes
259
�First Name
Mahesh Chandra
Usha
Veena
William (“Bill”)
Terry
Mark
Robert
Brian
Sarabjit
Gordon
Robert
Raf
Mark
Ralph
Last Name
Sharma
Sharma
Sharma
Sheahan
Sheehan
Sidel
Simmonds
Simpson
Singh
Smith
Solvason
Souccar
Stagg
Steinberg
Royal Canadian Mounted Police
Crew, Laurentian Forest (Recovery)
The Chief Justice’s Advisory Committee on
Criminal Trials in the Superior Court of Justice
(Ontario)
Punjabi Human Rights Organization
Formerly with Foreign Affairs and International
Trade Canada
Formerly with the Royal Canadian Mounted Police
Family member
Family member
Formerly with the Communications Security
Establishment
Formerly with Foreign Affairs and International
Trade Canada
University of Iowa College of Law
Formerly with the Royal Canadian Mounted Police
Formerly with Air Canada
Family member
Organization/
Family Member
260
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�First Name
Peter
John
Gavin
Jennifer
Bob
Steve
Warren
Kathleen
Mark
Brian
Kim
Jayashree
Brent
Ron
Last Name
St. John
Stevenson
Stewart
Stoddart
Stubbings
Sweeney
Sweeney
Sweet
Tait
Tario
Taylor
Thampi
Thompson
Townshend
British Columbia Ministry of the Attorney General
British Columbia Registry Services
Royal Air Force diver (Recovery)
Deloitte
Integrated Threat Assessment Center, Canadian
Security Intelligence Service
Family member
University of Connecticut
Formerly with the Royal Canadian Mounted Police
Vancouver Police Department
Formerly with the Royal Canadian Mounted Police
University of Manitoba
Formerly with the Canadian Security Intelligence
Service
Formerly with Foreign Affairs and International
Trade Canada
Privacy Commissioner of Canada
Organization/
Family Member
Annexes
261
�First Name
Larry
Reg
Padmini
Bill
Trevor
Russell
Chandra
Herbert
Ann
Esther
Denis
Robert
Rodney
Donna
Last Name
Tremblay
Trudel
Turlapati
Turner
Turner
Upton
Vaidyanathan
Vaney
Venketeswaran
Venketeswaran
Vinette
Wall
Wallis
Walsh
Canada Revenue Agency
Formerly with the Royal Canadian Mounted Police
International civil aviation security consultant
Canada Border Services Agency
Family member
Family member
Formerly with Air India
Royal Canadian Mounted Police
Formerly with the Canadian Security Intelligence
Service
Family member
Canadian Security Intelligence Service
Family member
Royal Canadian Mounted Police (presently
seconded to Canadian Security Intelligence
Service)
Royal Canadian Mounted Police
Organization/
Family Member
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�First Name
William
Wesley
James (“Jim”)
Reg
Giuliano
Daryl
Last Name
Warden
Wark
Warren
Whitaker
Zaccardelli
Zelmer
Formerly with the Royal Canadian Mounted Police
Formerly with the Canadian Security Intelligence
Service
Formerly with Foreign Affairs and International
Trade Canada
Munk Centre for International Studies, University
of Toronto
Formerly with the Canadian Security Intelligence
Service
York University
Organization/
Family Member
Annexes
263
�264
Volume One: The Overview
�
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PDF Text
Text
Air India Flight 182
A Canadian Tragedy
VOLUME TWO
Part 1: Pre-Bombing
�©Her Majesty the Queen in Right of Canada, represented by the
Minister of Public Works and Government Services, 2010
Cat. No: CP32-89/2-2010E
ISBN: 978-0-660-19926-9
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
K1A 0S5
Telephone: (613) 941-5995 or 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Publications@pwgsc.gc.ca
Internet: www.publications.gc.ca
�VOLUME TWO
PART 1: PRE-BOMBING
TABLE OF CONTENTS
CHAPTER I: WHAT WAS KNOWN ABOUT THE THREAT?
Critical Incidents
1.0 Introduction
7
Threat Assessment
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
November 1984 Plot
June 1st Telex
Parmar Warrant
Duncan Blast
Mr. X
Khurana Information
Testimony of James Bartleman
Rogue Agents (Deschenes)
8
21
27
38
60
66
75
91
Threat Response
1.9 Mr. Simpson’s Visit to the Air India Aircraft
1.10 Serge Carignan and Arko the Explosives Detection Dog
1.11 The Cost of Delay – Testimony of Daniel Lalonde
1.12 A “Crescendo” of Threats
96
106
112
121
CHAPTER II: THREAT ASSESSMENT AND RESPONSE
2.0
2.1
2.2
2.3
The Intelligence Cycle and Intelligence Community
131
The Civilianization of Security Services
141
Failure to Appreciate the Nature and Seriousness of the Threat
147
Inadequate Preparation for Nature of Threat
153
2.3.1 Recognition of the Threat of Sabotage and Weaknesses
in the Ability to Respond
155
2.3.2 Failure to Push Through Responsive Regulations
170
2.3.3 Over-Reliance on Technology
187
2.4 Security Culture at Canada’s Airports
213
�Volume Two: Part 1: Pre-Bombing
CHAPTER III: WHAT WENT WRONG?
Assessing the Threat
CSIS Pre-Bombing
3.0
3.1
3.2
3.3
The CSIS Act
Internal CSIS Structure
The CSIS Investigations into Sikh Extremism
CSIS’s Threat Assessment Failures
3.3.1 The Infancy of CSIS
3.3.2 The Changing Threat Paradigm
3.3.3 Failure to Allocate Resources
3.3.4 CSIS Failures in Assessing the Threat
3.3.5 Failures in Internal Information Sharing
3.3.6 Lack of Meaningful Threat Assessments
239
246
258
288
290
301
308
325
336
344
RCMP Pre-Bombing
3.4 Deficiencies in RCMP Threat Assessment Structure and Process
3.5 Information-Sharing Failures
3.5.1 CSIS/RCMP Relations and Information-Sharing
Policies
3.5.2 CSIS Failures in Sharing with RCMP
3.5.3 RCMP Failures in Sharing with CSIS
3.5.4 RCMP Failures in Sharing with Local Forces
3.6 Lack of Government-Wide Coordination in the Threat
Assessment Process
353
390
390
402
404
410
427
CHAPTER IV: RESPONDING TO THE THREAT
Deficiencies in the Translation of Threats into an Operational Response
4.0 Threat-Response Regime in 1985
4.1 General Obligations and Relationship to the Threat Level
4.2 Structural Issues in Protective Policing and Airport Security
4.2.1 RCMP-Transport Canada Relationship
4.2.2 RCMP Protective Policing
4.2.3 Transport Canada Structural Issues
4.3 The Role of the “Specific Threat” in the 1985 Threat-Response
Regime
4.4 Failures in Sharing of Information
4.5 Failures in Coordination between Transport Canada and
the RCMP
4.6 RCMP Implementation Deficiencies in the Threat-Response
Regime
4.7 Transport Canada Policy Gaps and Implementation Deficiencies
441
442
447
447
452
463
468
491
508
517
531
�Volume Two: Part 1: Pre-Bombing
CHAPTER V: THE DAY OF THE BOMBING
5.0 CP Air Checked In Unaccompanied Luggage
5.1 Unaccompanied Bag “Infiltrated” Air India’s System
5.2 No Dogmaster on Duty at Pearson and Mirabel International
Airports
5.3 Lack of Surveillance of Air India Aircraft
5.4 Air India Personnel – Confusion about Duties
5.5 Breakdown of the X-ray Machine and Use of the PD4
5.6 Handling of the Three Suspect Bags Incident at Mirabel
5.7 The Bombing of Air India Flight 182
5.8 The Bombing at Narita
5.9 Conclusion
547
554
556
566
568
578
580
582
584
585
�Volume Two: Part 1: Pre-Bombing
�VOLUME TWO
PART 1: PRE-BOMBING
CHAPTER I: WHAT WAS KNOWN ABOUT THE THREAT?
1.0 Introduction
The first issue in the Commission’s mandate1 is to decide whether there were “...
deficiencies in the assessment by Canadian government officials of the potential
threat posed by Sikh terrorism before or after 1985.”2 The first question is: were
there intelligence failures prior to June 22, 1985?
In answering this question it is important to look at all the stages of threat
assessment, commencing with the development of intelligence.
There are four phases in the intelligence cycle: tasking, collection, analysis and
distribution. A significant failure in any of these will lead to what is called an
intelligence failure.3
To help answer the question of what took place during the pre-bombing period
(events prior to June 22, 1985), the Commission has focused on a series of
“critical incidents” – real, but singularly dramatic, episodes that serve to illustrate
gaps that occurred in the recognition of responsibility, the development of an
intelligence plan, the assignment of resources and the recognition, handling,
assessment and dissemination of information.
A word of caution is required. Hindsight always makes it easier to notice gaps,
identify errors and point out failures. The reader is urged to digest the details
of the following events. Each description may contain clues about the ways in
which systems, structures and individual actions could have triggered a better
or different response to pieces of information that arose in various contexts.
In the critical incidents that follow, a series of seemingly unrelated clues appear
that may fit together to solve a puzzle. At the time these events took place,
there was no awareness that such a puzzle existed. Thus, the Commission has a
retrospective advantage.
The puzzle pieces take the form of possible leads, tips and warnings: some
coming from human informants, some coming from intercepted conversations,
1
2
3
Adapted from Remarks by Mark Freiman, Lead Commission Counsel, Transcript vol. 20, April 30, 2007,
pp. 1867-1870.
Terms of Reference, P.C. 2006-293, para. b(i).
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1442-1443.
�8
Volume Two Part 1: Pre-Bombing
others coming from the intelligence community in other countries, still others
coming from direct observation by domestic security and intelligence personnel.
The pieces provide evidence of what the Canadian security and intelligence
community were looking for, what they thought they knew, what they believed
they did not know and how they planned to fill in information gaps.
These critical incidents are presented as a series of episodes, each illustrating
a single bit of information, a potential clue or a proposed response to a known
information gap. They identify potential issues with respect to the intelligence
cycle and the flow of information during the period leading up to the
bombing. Serving as markers for specific issues and possible difficulties in the
intelligence cycle, these critical incidents also underpin the Commission’s more
detailed inquiry into the larger question of intelligence flow in its historical,
institutional and practical contexts.
These fragments combine to form a mosaic; a larger picture that gives the reader
a better appreciation of what happened. At the same time, they identify specific
details that underlie the Commission’s conclusions and recommendations.
References to these critical incidents appear often in the chapters that follow,
and will help the reader understand the overall context in which decisions and
actions were taken.
1.1 November 1984 Plot
The November 1984 Plot Revealed by Two Independent Sources
By October 1984, the RCMP had learned from two independent sources about
a plot to bomb two Air India flights. Here, they are identified as Person 1 and
Person 2.4 In 1984, these two individuals, who had known each other since
1977, moved in shadowy circles in the Vancouver area. They both had extensive
connections to a web of criminal activity within, and extending beyond, the
BC region. Person 1 told the Inquiry of his dubious past, with a criminal record
dating back to 1956 and approximately 16 convictions including theft, break
and enter, armed robbery, and false pretences. For the past 15 years, however,
he has had no criminal charges or convictions.5
On June 23, 1985, when Constable Rick Crook6 of the Vancouver Police
Department (VPD) learned of the fate of Air India Flight 182 and of the explosion
4
5
6
The individuals and locations associated with this “critical incident” have been provided with aliases in
agreement with the Government of Canada. Though Commission counsel do not
accept the Government of Canada’s position that the individuals associated with this
story are “informants,” the individuals involved are at some risk and summaries of the relevant
documents were created and assembled in an agreed chronology for the purpose of entering the
content into the public record before the Commission.
Testimony of Person 1, vol. 20, April 30, 2007, pp. 1932-1974.
Crook is currently a temporary civilian employee with the RCMP and the Integrated Proceeds of Crime
Section in Vancouver: Testimony of Rick Crook, vol. 20, April 30, 2007, p. 1879.
�Chapter I: What Was Known About the Threat?
that had taken place in Narita, his thoughts immediately returned to his October
1984 interview of Person 2,7 and the information Person 2 had provided about a
terrorist plot to bomb Air India planes. The fact that there had been two bombs,
that the origin of the plot appeared to be out of Vancouver, and that there was
thought to have been a connection to Sikh extremism led Crook to suspect that
the plot he had learned about in 1984 was, in fact, related to the plot that had
been carried out that day. 8
The RCMP apparently had the very same suspicion.9 Early on the morning of
the bombing, Sgt. Wayne Douglas, of the RCMP’s E Division National Criminal
Intelligence Service (NCIS) Terrorist/Extremist unit in Vancouver, received
a phone call at home from RCMP HQ in Ottawa10 instructing him to go and
speak with Person 2, who was at a remand centre in the lower mainland at the
time, about the information that Person 2 had provided to police in the fall of
1984 about a Sikh extremist plot to bomb an Air India plane departing from
Canada.11
In spite of CSIS’s concern in 1984 that there was “... a real possiblity that Sikhs will
damage an Air India plane,”12 and in spite of information indicating that the plot
was continuing even if it could not proceed in the time frame initially planned,
the RCMP, from late November 1984 up to the date of the bombing, had taken
no further steps to investigate the alleged plot.
Person 1 Forewarns of Plot: Sikh Extremists to Bomb Air India
In the fall of 1984, Person 1 was approached by, and met three times with, Person
2 and a third man called “Z”13 to organize and actually put a bomb on an Air India
plane. He was offered approximately $200,000, which included payment for
the Air India bombing, as well as for his involvement in a separate plot to target
Indira Gandhi. Person 1 was asked to find explosives to make a bomb with either
a remote device or a time clock. He was told that the bombing was intended
as revenge against the Indian government for the invasion of the Golden
Temple. He was to go to Montreal to try to obtain access to the area where the
maintenance work for Air India was conducted.14 During his second meeting
with Person 2 and with Z, Person 1 was shown a briefcase full of cash.15 He said
7
8
9
10
11
12
13
14
15
Testimony of Rick Crook, vol. 20, April 30, 2007, p. 1880.
Testimony of Rick Crook, vol. 20, April 30, 2007, pp. 1879-1881.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2615; Exhibit P-120(c) pp. 3-4, (entry for June 23,
1985: doc. 526-3, p. 13).
Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4096.
Exhibit P-120(c), entry for June 23, 1985, pp. 3-4; Testimony of Wayne Douglas, vol. 34, May 28, 2007,
p.4096.
Exhibit P-120(c), p. 2: (entry for Oct. 26, 1984: doc 229-3, p.5
Testimony of Person 1, vol. 20, April 30, 2007, p. 1931. This Z is not the same person as Mr. Z referred to
in Section 2.5.5 (Post-bombing), Mr. Z.
The above evidence comes from Testimony of Person 1, vol. 20, April 30, 2007, pp. 1937-1958.
Testimony of Person 1, vol. 20, April 30, 2007, pp. 1940-1941. An internal RCMP report dated in
1999 states, “If Person 1 was being truthful about Z being at all 3-4 meetings with Person 2 and Z
actually carried the briefcase full of money to the second meeting and departed with it, then Z
certainly was not totally forthcoming during his 1988 interview”: Exhibit P-120(c), pp 10-11
(entry for Feb. 12, 1999: RCMP.SUPERTEXT.0001
9
�10
Volume Two Part 1: Pre-Bombing
that “…when they showed me the money and the equipment they want, I knew
they were serious.” Person 1 said that he had never met the masterminds of the
plot and that Z was acting as the middleman, bringing Person 2 and Person 1
into the plot, but that someone behind Z was making the decisions. 16
In 1984, Person 1 met a number of times with members of the RCMP’s Vancouver
Drug Squad (VDS). During these meetings, he provided information about
criminal activity in the Vancouver area, including within the Sikh extremist
community. In September 1984, two days after his first meeting with Person 2
and Z,17 Person 1 provided information to the RCMP VDS about a plot to bomb
Air India. An RCMP Investigation Report indicates that Person 1 told police
that a group of East Indians was planning to plant a bomb on an Air India flight
in Montreal that would detonate on arrival in India.18 The RCMP Report does
not contain the level of detail about the meetings recounted by Person 1 in
testimony, and does not mention by name the individuals referred to in this
Report as Person 2 and Z.
From the documents provided to the Commission by the Government of
Canada, the identity of Z does not appear in police reports in the pre-bombing
period.19
The information from the RCMP’s VDS September 1984 interview with Person 1
was apparently passed by telephone to the Montreal Drug Squad on September
20, 1984.20 There is no indication that it was shared with RCMP Protective
Policing or with anyone in the RCMP or CSIS involved in the investigation of
national security offences or in the threat assessment process. No investigation
or further action was taken with this information until over a month later when
strikingly similar information was received and passed to the RCMP by Rick
Crook and Bill Warwick of the VPD.
Person 2 Forewarns of Plot: Two Bombs. Two Planes.
Rick Crook, then on the Strike Force Surveillance Team,21 was told by the regional
Crown counsel of an individual in custody, Person 2, who wanted to speak to
the police. In early October 1984, Person 2 was arrested by the VPD on charges
unrelated to Air India and was subsequently released on bail.22 A week later,
16
17
18
19
20
21
22
Testimony of Person 1, vol. 20, April 30, 2007, p. 1941.
Testimony of Person 1, vol. 20, April 30, 2007, pp. 1939-1972.
Exhibit P-120(c), p. 1 (entry for Sept. 1984: doc 1)
Z is first named in a July 10, 1985, report by Detective Dave Randhawa of the VPD. Randhawa
interviewed Person 2 who identified Z as the individual who left India around the time of the attack
on the Golden Temple and brought back a plan to hijack an Air India aircraft. According to Person
2, the attack was cancelled because too many people were involved. This is when the plan was raised
to bomb rather than hijack an aircraft. See Exhibit P-120(c), p. 4 (entry for July 10, 1985: doc
493-3), Person 1 identified Z’s possible involvement when he was interviewed by Sgt. Douglas in
March 1986: Exhibit P-120(c), p. 7 (entry for March 1986: doc 16),.
Exhibit P-120(c), p. 1 (entry for Sept. 20, 1984: doc 526-3, p. 26).
Testimony of Rick Crook, vol. 20, April 30, 2007, p. 1879.
Exhibit P-120(c), p.1 (entry for Oct. 5, 1984: doc 23); Testimony of Person 1, vol. 20, April 30, 2007, p.
1943.
�Chapter I: What Was Known About the Threat?
Person 2 was arrested again, this time for conspiracy to commit murder (again,
unrelated to Air India)23 and was held without bail.24
Crook was directed to speak with Person 2 and was given instructions not to
make any promises, but to get details about the alleged plot to bomb an Air
India plane.25 At the time, his general duties did not include dealing with Sikh
extremism, so his understanding of the issue was limited. He and his partner,
Detective Bill Warwick, interviewed Person 2 in the presence of Person 2’s
lawyer, and the interview was recorded. Prior to commencing, Person 2 signed
a disclaimer (witnessed by the officers and Person 2’s lawyer) indicating that
he understood that the police had no authority to make any arrangements
now, or in the future, in exchange for his information and that he was providing
information about an alleged bombing of an airplane of his own free will and
accord.26 A transcript was produced from the recording. Early on in the interview,
Person 2 reveals details of the alleged plot, which involved the potential use of a
back-up bomb and two planes:
Officer:
Person 2:
Officer:
Person 2:
Officer:
Person 2:
Officer:
Person 2:
Officer:
Person 2:
Officer:
Person 2:
Officer:
Person 2:
Officer:
Person 2:
Officer:
Person 2:
O.K. Let me just get it straight. They’re, if I understand correctly
Yah
There’s a plot to put a bomb on an airplane right?
They said yeah.
O.K.
Maybe two.
Maybe two airplanes?
Well is it two, two, two, yeah. I heard their problem, they say if it
doesn’t blow … what happens. They said … some extra when ….
Back up, back up
I _________
A back up bomb?
Yeah.
What kind of airplane?
Air India 747.
Air India 747. Is this going to be leaving from Montreal?
Yes.
And it’s going to be, when?
Well I don’t know the exact date, you know, the time. A flight
leaves only from Montreal in Canada. 27
Because Air India was to release flight schedules on October 15th, there was
not yet a proposed date for the bombings. Once the change in schedule was
known, it would take 10 days to organize the bombing, at which point the “O.K.”
could come “any day.”28 Person 2 stated that no Sikhs were travelling on Air India
23
24
25
26
27
28
Testimony of Person 1, vol. 20, April 30, 2007, p. 1943.
Exhibit P-120(c), p, 1 (entry for Oct. 12, 1984: doc. 23); Testimony of Person 1, vol. 20, April 30, 2007, p.
1943.
Testimony of Rick Crook, vol. 20, April 30, 2007, pp. 1880-1881.
Testimony of Rick Crook, vol. 20, April 30, 2007, pp. 1882-1884.
Exhibit P-121, pp. 3-4. This is the original record of the transcript.
Exhibit P-121, pp. 37-38.
11
�12
Volume Two Part 1: Pre-Bombing
flights at the time29, and that the purpose of the bombing was to “...strike at the
government” of India and to get back at Indira Gandhi.30 Person 2 felt that this
plot was serious and would be carried out.31
Person 2 reported having met three to four weeks prior to the interview with
a small group of people who talked about the planning and financing of the
bombing.32 Crook’s impression was that the actual genesis of the plot was to be
found with other unnamed individuals who were Sikhs of East Indian origin.33
During the interview, Person 2 was asked if he would disclose the names of the
individuals involved in the plot.34 Crook said that he felt that Person 2 would
provide those names, but his lawyer stopped him and requested that something
be done for his client in exchange for the names.35
Person 2 identified Person 1 as being involved in the plan in return for financial
compensation of “...more than hundred thousand.” 36 Person 2’s lawyer said that
Person 1 had contacted him to act as a receiving agent and that a hundred
thousand dollars would be put into the lawyer’s trust fund on the Monday or
Tuesday of that week.37 Crook’s impression was that this money was “...more-orless proof that some money had been paid in furtherance of the plot,” or was at
least forthcoming.38 At the time, Crook was unable to ascertain whether Person
2 was an integral part of the plot and whether keeping him in custody could
prevent the plot from being carried out.39 Person 2 said there was a possibility
that the plot could go ahead without his involvement.40
Crook was unaware that Person 1 had previously and independently gone to the
police with similar information about the plot. He testified that if he had known
about Person 1’s earlier discussions with police, he would have viewed this as a
confirmation of the existence of the plot and his approach to the interview of
Person 2 would have been different. He suggested that he might have stayed in
the room until he obtained the names of the people involved.
After the interview, Crook met with his immediate supervisor at the VPD to brief
him on what they had learned from Person 2. He also prepared a report about
the interview indicating that he found Person 2 to be less than truthful but was
concerned that the plan “...is a reality and may be accomplished at some time.”41
29
30
31
32
33
34
35
36
37
38
39
40
41
See Exhibit P-101 CAC0109, pp. 1,3 and Exhibit P-101 CAD0180, p. 106 .
Exhibit P-121, p. 4. See also Testimony of Rick Crook, vol. 20, April 30, 2007, p. 1891.
Exhibit P-121, p. 6.
Testimony of Rick Crook, vol. 20, April 30, 2007, pp. 1892-1893; Exhibit P-121, p. 9.
Testimony of Rick Crook, vol. 20, April 30, 2007, p. 1900.
Exhibit P-121, p.6.
Testimony of Rick Crook, vol. 20, April 30, 2007, p. 1894; Exhibit P-121, pp. 7, 13-14.
Testimony of Rick Crook, vol. 20, April 30, 2007, pp. 1911-1912; Exhibit P-121, p. 21.
Exhibit P-121, pp. 21, 26.
Testimony of Rick Crook, vol. 20, April 30, 2007, p. 1911. The Attorney General of Canada maintains in
its Final Submissions that “No tangible steps were taken in support of the plot”: Final Submissions of
the Attorney General of Canada, Vol. I, para. 156.
Testimony of Rick Crook, vol. 20, April 30, 2007, pp. 1909-1910.
Exhibit P-121, pp. 25-26.
Exhibit P-120(c), pp. 1-2 (entry for October 1984: doc 231-3, pp 2-4).
�Chapter I: What Was Known About the Threat?
Crook testified that what gave him concern that the plot could be factual was
“...the absolute magnitude of what he was talking about” and that “...if this was
even being spoken about that it needed to be explored as fully as possible to
see if it was a factual or potential reality.” Crook wanted to continue to pursue the
matter himself but could not do so because the VPD did not have the ability to
handle an investigation of such national scope and magnitude. After he passed
on the information, Crook had no further involvement in the matter. 42
Person 1’s Attempts to Obtain Further Details of Bomb Plot from Person 2
Before Person 2 was arrested a second time and interviewed by the VPD, Person 1
met with Detective Brian Sommerville of the VPD Strike Force. Person 1 testified
that he begged Sommerville not to arrest Person 2 because he “...wanted to get
the final information regarding the bombing of Air India.”43 Person 1 felt that
Sommerville did not take his request seriously, and Person 2 was arrested the
next day.44
An internal RCMP report confirms that Person 1 spoke to Sommerville about
the bomb plot just prior to the arrest. Sommerville reported that Person 1 told
him that they wanted to get a bomb on the plane, and that he had said that he
would do nothing unless $80,000 was deposited in trust in his lawyer’s office.45
According to the internal RCMP report, a tape was made by the investigator of
the interview containing these comments as well as information about other
investigations.46
Of some note, Person 1 was not shown the police reports about his dealings
with Sommerville prior to his testimony at this Inquiry. In fact, that information
was not declassified until a considerable time after his testimony.
Person 1’s statement that Person 2 insisted on the money being put into trust
is also consistent with the information relayed by Person 2 and his lawyer. This
further corroborates the likelihood that the plot discussions were serious and
that steps had been taken to secure a transfer of funds.
Despite the obvious national security aspect to Person 1’s information, the
systems in place at the time did not allow for any RCMP input at the pre-arrest
stage of the VPD’s investigation. It is impossible not to wonder what would
have happened if CSIS or the RCMP had been involved earlier. Had the national
security implications been recognized earlier, the arrest and the charges against
Person 2 might have been seen as opportunities to learn more information
about the alleged bombing plot.
42
43
44
45
46
Testimony of Rick Crook, vol. 20, April 30, 2007, pp. 1914-1920.
Testimony of Person 1, vol. 20, April 30, 2007, p. 1943.
Testimony of Person 1, vol. 20, April 30, 2007, pp. 1942-1944.
Exhibit P-120(c), p. 1 (entry for Oct. 12, 1984).
Exhibit P-120(c), p. 1 (entry for Oct. 12, 1984).
13
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Volume Two Part 1: Pre-Bombing
RCMP Assumes Responsibility for Investigation of Plot
According to a notation made on the VPD report summarizing the results of the
interview with Person 2, the information was discussed with CSIS (Jim Francis
and David Ayre) and with Sgt. Wayne Douglas, then head of the RCMP E Division
NCIS Terrorist/Extremist unit.47 Although both the RCMP and CSIS initially
showed interest in this plot, it took some time before it was decided that the
RCMP E Division NCIS would take responsibility for the follow-up.48
From the very outset of its involvement in the investigation, the RCMP
approached the alleged plot with extreme skepticism.49 An RCMP analyst wrote
later that, at the time, investigators did not believe Person 2’s story about his
alleged involvement in the plot, and were suspicious and reluctant to act on the
information.50 This reluctance continued even after the bombing.
The RCMP skepticism is evident from comparing the ways in which CSIS and
RCMP E Division reported information about the plot. On October 26, 1984, CSIS
reported to the RCMP Airport Policing Branch and to the VIP Security Branch
on the basis of the VPD’s interview of Person 2. The report stated that “...while
in presence of lawyer, person 2 disclosed knowledge of plans to blow up an AI
747 aircraft in November en route to India from Montreal”, and noted that CSIS
felt that “...there is a real possibility that Sikhs will damage an Air India plane.”51
In contrast, on October 26, 1984, E Division sent a telex to RCMP Headquarters,
reporting that information had been received of “...totally unknown reliability”
that an Air India 747 would be the subject of a November bombing. The telex
stated that the information had been reported in September to Montreal
authorities, but had “resurfaced”, thus necessitating the current message.52
By then, NCIS knew that there were two independent sources, Person 1 and
Person 2. However, NCIS did not appear to recognize any significance in this
corroboration and did not inform Headquarters of this fact.53 Four days after CSIS
initially reported the Person 2 information to the Airport Policing Branch and to
VIP Security, National Criminal Investigation Branch (NCIB) forwarded the NCIS
telex to VIP Security (but not to Airport Policing), downplaying the importance
or urgency of its contents: “…in the event you may have an interest or other
information.” 54 But, NCIB noted, “...since receipt of telex, further information has
surfaced casting serious doubts on the validity/reliability of the information.
Appears info may be fabricated.”55
47
48
49
50
51
52
53
54
55
Exhibit P-120(c), pp. 1-2 (entry for Oct. 1984: doc 231-3)..
Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 229-3, p.5) and entry for Nov. 1, 1984: 526-3, pp. 2627).
See, generally, Exhibit P-120(c), pp. 2-3.
See Exhibit P-120(c), p. 6 (entry for Feb. 26, 1986: doc 518-3).
Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 229-3, p. 5).
Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc. 239-3).
Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4087.
Exhibit P-120(c), p. 2 (entry for Oct. 30, 1984: doc 526-3, p. 29).
Exhibit P-120(c), p. 2 (entry for Oct. 30, 1984: doc 526-3, p. 29). This notation likely reflected the view of
E Division as conveyed to Headquarters, because, in an internal RCMP memo, Sweeney noted that
“E division felt Person 2 may be fabricating the story”: Exhibit P-120(c), p. 3 (entry for Nov. 7, 1984:
doc CivLit1).
�Chapter I: What Was Known About the Threat?
Person 1 Meets Person 2 at the Remand Centre
Person 1 met twice with Person 2 at the remand centre.56 After his first meeting
with Person 2, Person 1 met with Douglas, who reported to RCMP Headquarters
Person 1’s confirmation that individuals were attempting to obtain materials to
manufacture a bomb on behalf of interested Sikhs and that he had learned that
the plan was on hold.57 Person 1 also stated that the plans for the bombing were
to be completed in November because Air India had made schedule changes in
mid-October and the plotters had to be sure the flights were continuing from
Montreal, Frankfurt and India.58 The level of detail, including information about
the timing of Air India’s schedule changes, in the information conveyed by Person
1 is markedly similar to the detail that Person 2 gave in his interview with Crook
and Warwick, which would be subsequently repeated to Douglas in his later
interview. Also significant is that, in accordance with the information provided
by Person 2, Person 1’s statement was not that the plot would necessarily take
place in November, but rather that the plans would be finalized in November.
Copies of the summary report on the interview of Person 2 had been given to
CSIS and to CIS BC, 59 an agency that was at the time co-located with NCIS and
staffed entirely by RCMP members.60 The report stated that the interview had
been taped, and that “two bombs” could be involved. It also said that the plot
might still go ahead even though Person 2 was in custody, a fact of which Douglas
was unaware.61 Nothing indicates that this report was accessed or requested by
RCMP NCIS investigators in the pre-bombing period. There is no evidence prior
to, or in the years immediately following the bombing, that RCMP investigators
requested a transcript of the taped interview from the VPD.62 That transcript
contained important information that was not known to Douglas until the
Inquiry hearings, such as the potential involvement of two planes in the plot,63
which undoubtedly would have led the RCMP to take a more serious approach
to its investigation of the November Plot in the period after the bombing.64
When asked by Douglas to visit Person 2 again to seek more information about
the plot,65 Person 1 reported that Person 2 expected to be contacted in the next
few days about the status of the bomb plot.66 It should be noted that in Person
56
57
58
59
60
61
62
63
64
65
66
Testimony of Person 1, vol. 20, April 30, 2007, pp. 1945-1946.
Exhibit P-120(c), p. 2 (entry for Nov. 1, 1984,: doc 526-3, pp. 26-27).
Exhibit P-120(c), p. 3 (entry for Nov. 6, 1984: doc. 526-3, pp. 36).
Testimony of Rick Crook, vol. 20, April 30, 2007, pp. 1912-1915;Exhibit P-120(c), pp. 1-2 (entry for
October 1984: doc 231-3, pp. 2-4) and p. 2 (entry for Oct. 23, 1984: doc 7).
Testimony of Bob Stubbings, vol. 33, May 24, 2007, p. 3929.
Testimony of Wayne Douglas , vol. 34, May 28, 2007, pp. 4085, 4094.
See statements of Sgt. Douglas in 1999 where he advised that he never received any reports, notes or
tapes from the VPD: Exhibit P-120(c), p. 11 (entry for April 14, 1999: doc RCMP.SUPERTEXT.0001)..
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4085, 4094. Sgt. Douglas was quite certain that
he had not seen the transcript of the VPD interview, and indicated that had he seen something such
as this, given its detail, he would have remembered: Testimony of Wayne Douglas, vol. 34, May
28, 2007, p. 4092.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2639.
Testimony of Person 1, vol. 20, April 30, 2007, p. 1949.
Exhibit P-120(c), p. 2 (entry for Nov. 1, 1984: doc 526-3, pp. 26-27).
15
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Volume Two Part 1: Pre-Bombing
1’s testimony, his version of what occurred in the two meetings with Person 2
while in custody was reversed from the version as noted in Douglas’s internal
RCMP report.67 Given the passage of time, it is more likely that the RCMP report
contains a more accurate chronology of events. Regardless, a review of this
information would certainly have cast doubt on any inference that the danger
had passed.
There is no evidence of any RCMP follow-up.
The NCIS report to Headquarters notes that there were “several differences”
between Person 1 and Person 2’s versions of the plot (though it does not specify
what these differences were) and that the information was to be considered of
unknown reliability. It further notes that there was no record of Person 2 being
connected to any extremist group.68
After Person 1 left the remand centre, he went to Person 2’s house to speak
with the latter’s wife. She confronted him with a transcript of a taped telephone
conversation between Person 1 and Brian Sommerville of the VPD. According
to Person 1, the transcript had been disclosed to Person 2’s lawyer at the
preliminary hearing on the charges against Person 2. Understanding that his
cooperation with police had been revealed to Person 2 and his family, Person 1
severed all ties with Person 2 and the other conspirators.69
In the pre-bombing period, Person 1 was not contacted further about his
information.70 He was not asked to submit to a polygraph examination on
the information he had provided, nor was he asked about any contacts he
had with other known extremists. He was also not asked to attempt to find
out more about the status of the plot. The police clearly had concerns about
Person 1’s motivations that led them to approach his information with extreme
skepticism.71
67
68
69
70
71
Testimony of Person 1, vol. 20, April 30, 2007, pp. 1945-1946.
When asked what checks he would have done to determine if Person 2 had any connections to Sikh
extremists, Douglas indicated that he would have looked at any information that was available on
him, through his background and his former dealings, and that this would have been done with
the assistance of his Corporal. At this time, Douglas indicated that he had never encountered Person
2 before and stated that, at this time, he was unaware of who the other participants were, beyond
Person 1 and Person 2. He indicated, “…there were no names, it was just generalities, no specifics”:
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4089-4090.
Testimony of Person 1, vol. 20, April 30, 2007, pp. 1946-1948.
Testimony of Person 1, vol. 20, April 30, 2007, p. 1951; Exhibit P-120(c).
For example, in reporting Person 1’s information to Headquarters, Douglas notes that “Person 1 is hard
pressed for monies and has attempted to gain same from Sgt. Douglas on two occasions”: Exhibit
P-120(c), p. 2 (entry for Nov. 1, 1984: doc 526-3, pp. 26-27). See also Final Submissions of the Attorney
General of Canada, Vol. I, para. 156: “Each of the individuals had extensive criminal records as well as
motivation to provide information to the police in return for some form of benefit” and Testimony
of Person 1, vol. 20, April 30, 2007, p. 1964.
�Chapter I: What Was Known About the Threat?
Douglas Meets with Person 2 for the First Time
Three weeks after Douglas’s last meeting with Person 1 and after he had reported
to Headquarters that Person 2’s story could be fabricated, Douglas met with
Person 2 for the first time on November 23, 1984 in the presence of Dave Ayre
of CSIS and Person 2’s lawyer. A brief summary of the meeting by Douglas notes
that Person 2 relayed facts similar to those he had earlier conveyed to Detectives
Crook and Warwick. Person 2 said that he had been contacted approximately
two months earlier by East Indians who wanted a bomb assembled and placed
on an Air India plane. He was told that the plane “…would depart from Montreal
in November,” as changes to Air India’s flights were occurring in mid-October
and the plotters had to be sure of the Air India routes. Person 2 said that another
individual at the meeting had consented to place the bomb on board for a fee.
Person 2 would not identify the East Indians, except to say that they lived in
what, for purposes of this Report, must be referred to as “x town” in “y province”,
and that he considered them to be financially stable.72 A check of the individuals
who visited Person 2 while in custody identified three persons who had phone
numbers listed in y province. Douglas wrote to Headquarters that the identity
of the subscribers would be forwarded to Headquarters once received.73 After
the interview, Person 2’s lawyer told Douglas that he believed Person 2 “...knows
a lot more than Person 2 is willing to discuss.”74
There is no indication that the RCMP attempted to follow this up with Person
2’s lawyer.75
RCMP Investigation Stalls
About four months later, on March 20, 1985, Headquarters wrote to the Divisional
Intelligence Officer for E Division, pointing out that the last correspondence
from E Division regarding this investigation was on November 26, 1984, and
requesting a “full update”, with a note that “...Your early attention and response
is requested.”76
Three weeks later, on April 10, 1985, Douglas informed Headquarters that “very
little action on the November plot investigation has occurred” and “[t]here has
been no further information received from any sources that would indicate this
72
73
74
75
76
Exhibit P-120(c), p. 3 (entry for Nov 26, 1984: doc 526-3, p. 40),
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4094-4095; Exhibit P-120(c), p. 3 (entry for
Nov. 26, 1984: doc 526-3, p. 40), A few days later, Headquarters wrote to Douglas stating that x town
NCIS was to be brought into the investigation once the identities of the x town subscribers were
identified. The subscriber information was relayed to x town police in December 1984, but not to
Headquarters NCIB: Exhibit P-120(c), p. 3 (entry for Dec..4, 1984: doc 526-3, p. 42),
Exhibit P-121;P-120(c), p. 3 (entry for Nov. 26, 1984: doc 526-3, p. 40),
In fact, many years after the bombing, in 1999, as part of a file review, it was discovered that deBruijn,
who conducted a file review in 1986, had suggested that someone follow up with Person 2’s lawyer
about this statement, but it was not clear from the file whether this had, in fact, ever been done: Exhibit
P-120(c), p. 11 (entry for April 27, 1999 doc: RCMP.SUPERTEXT.0001).
Exhibit P-120(c), entry for March 20, 1985, p. 3.
17
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Volume Two Part 1: Pre-Bombing
or any bombing of an Air India plane will occur.”77 [Emphasis added]
This is a strong indication that E Division NCIS was out of the loop or not paying
attention.78
The Significance of November Plot Recognized Post-Bombing
Even after the Air India bombing, there was significant resistance and delay
at E Division NCIS about a follow-up investigation of the November Plot and
continuing skepticism about any possible connection between the November
1984 Plot and the bombing. Despite repeated requests by Headquarters that
it be updated on the state of the investigation,79 it was not until nine months
after the bombing that E Division took steps to pursue the issue seriously.
Early in 1986, as part of a Headquarters review of the November Plot tip, the
significance of the fact that two independent sources had come forward with
the same information was finally recognized.
In the spring of 1986, almost a year after the bombing, the RCMP again contacted
Person 1 and asked him to take a polygraph on the information he had provided
about the November Plot. He agreed and passed the test a few weeks later.80
Person 1 stated that after he took and passed the polygraph there was “...a
complete turn around” in terms of how the police looked at his information.
Person 1 also agreed that much more attention was being paid to what he was
saying after the bombing and said, “Yes. I think everybody woke up.”81
After Person 1 passed his polygraph test in May 1986, Cpl. Donald DeBruijn
concluded that “... information provided by person 1 and person 2 has been
substantiated.”82 In June 1986, Chief Superintendent Norman Belanger sent a
telex listing the main suspects in the RCMP Air India investigation as including
“… Parmar, Johal, Gill, Bagri and Person 2.”83 [Emphasis added]
The post-bombing investigation of this plot uncovered disturbing information,
not only that the November Plot was a real threat, but that there were, in fact,
significant links in the plot narrative to the conspirators thought to be involved
in the June 23, 1985 bombing of Air India Flight 182. Information uncovered
post-bombing includes the following:
• Person 1 had made statements to police in September 1984 about
a man in Duncan who could manufacture “nitro” for blowing up
an Air India flight;84
77
78
79
80
81
82
83
84
Exhibit P-120(c), entry for April 10, 1985, p. 3 (entry for doc 526-3, p. 45).
This is elaborated in Section 1.12 (Pre-bombing), A Crescendo of Threats.
Exhibit P-120(c), pp. 4-5 (entries from Sept. 9, 1985, until Dec. 17, 1985). There was a string of seven
telexes to E Division requesting responses to previous unanswered enquiries from Headquarters.
Testimony of Person 1, vol. 20, April 30, 2007, p. 1954; Exhibit P-120(c), pp. 8-9 (entry for May 1986: doc
23).
Testimony of Person 1, vol. 20, April 30, 2007, pp. 1964, 1974-1975.
Exhibit P-120(c), pp. 8-9 (entry for May 1986: doc 23),.
Exhibit P-120(c), p. 9 (entry for June 6, 1986: doc April 23 DOJ doc).,.
Exhibit P-120(c), p. 6 (entry for March 10, 1986: doc 521-3).,
�Chapter I: What Was Known About the Threat?
• The day after Person 2 was arrested, two phone calls were made
from the residence of Person 1 to the residence of Inderjit Singh
Reyat;85
• Person 1 later reported that these calls may have been made by
“W”, who was staying at Person 1’s home during the relevant
time. W was an individual reported to be associated with the
ISYF. According to one police report, W was “… totally committed
to the Khalistan cause and would do anything within his power to
avenge the deaths of his/her relatives in the Punjab.”86 Telephone
logs show contacts between W and the residence of Person 1 in
September, October and November of 1984. Logs also show a
call from the residence of Person 2 to W in July of 1984;87
• It was reported that at some point, Talwinder Singh Parmar, W, and
an unnamed Sikh from x town were planning on “doing something”
in India,88 and Person 2 told the police that W was connected to
Surjan Singh Gill, Talwinder Singh Parmar, and Inderjit Singh Reyat;89
• RCMP Constable Manjit Singh “Sandy” Sandhu said that he had seen
Person 2 in association with Surjan Singh Gill, in or around late
1983;90
• According to Person 1, in October 1984, W and an associate
intended to travel to Vancouver Island to visit someone. The
associate was apparently from x town and matched the description
of “Z” 91 – an individual named by both Person 1 and Person 2 as
being involved in the plot;92
• In 1986, W independently provided information to another police
force (the identity of which cannot be disclosed) that two
individuals had approached Person 2, along with two white,
unknown males, and had offered Person 2 a sum of money to
put a bomb on an Air India plane. This would appear to be a third
independent source corroborating the existence of the November
Plot;93 and
85
86
87
88
89
90
91
92
93
Exhibit P-120(c), p. 7 (entry for April 6, 1986: doc 523-2).
Exhibit P-120(c), pp. 7-8 (entry for April 10, 1986: doc 523-3).
Exhibit P-120(c), pp. 8-9 (entry for May 1986: doc 23).
Exhibit P-120(c), pp. 7-8 (entry for April 10, 1986: doc 525-3).
Exhibit P-120(c), p. 9 (entry for May 26, 1986: doc 529-3).
Exhibit P-120(c), pp. 8-9 (entry for May 1986: doc 23).
See Exhibit P-120(c), p. 8 (entry for April 25, 1986: doc 2).
Exhibit P-120(c) p. 4 (entry for July 10, 1985: doc 493-3) and p. 7 (entry for March 1986: doc 16). It is not
clear that Z was identified to police in the pre-bombing period as his name does not appear in reports
from the interviews of Person 1or Person 2.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7822-7823.
19
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Volume Two Part 1: Pre-Bombing
• While Person 2 was in custody, he had phone contact with an
individual from x town who was identified as being affiliated with
the terrorist group, Babbar Khalsa.94
These and other details about the November Plot were not recognized or
discovered until long after the actual bombing of Flight 182. They support the
conclusion that there were numerous missed opportunities for intelligencegathering in the pre-bombing period that, had they been pursued, would at
a minimum have provided valuable insight into important Sikh extremist
participants, activities and methods of destruction contemplated.
In 1999, the RCMP noted that Person 1 was connected with individuals “...who
are very likely to have been involved with one or more of our suspects in the
early planning stages of placing bombs on Air India planes. These individuals
are Person 2 and W.”95 Despite this statement by the RCMP, and despite the
information and connections discovered after the bombing, the RCMP told the
Honourable Bob Rae in a briefing that “...[t]his incident has not [sic] connection
to the June 1985 disasters and the investigation failed to substantiate any actual
plot. The RCMP was satisfied that the information provided in this regard was, and
is, totally unrelated to the current ongoing criminal investigation surrounding
the Air India crash.”96
This conclusion defies reasonable explanation.
Undue skepticism on the part of RCMP investigators prevented them from
looking seriously into the alleged plot. Divisional investigators continued to
maintain that “...Person 2 concocted [the] story of possible bombing in order
to obtain release from custody”,97 and never seemed to waiver from that belief
despite seemingly independent corroboration from Person 1, who, in fact,
passed a polygraph examination on his information.
Douglas testified that the RCMP file on the November Plot “...has been examined,
reviewed a thousand different ways by a hundred different people”, without
conclusively linking the information to the bombing of Flight 182 - a fact that, in
his view, “...substantiates [his] decision back then to say that [he] did not believe
this information from [Person 1] and [Person 2] to be credible.”98
This is not a conclusion that the state of the investigation in 1986 could plausibly
have justified.
94
95
96
97
98
Exhibit P-120(c), p. 5 (entry for December 6, 1985: doc 526-3, p. 56).
Exhibit P-120(c), pp. 10-11 (entry for February 12, 1999: doc RCMP.SUPERTEXT.0001).
Exhibit P-101 CAA1099, p. 2. This position has been maintained by the Government to this day. In
its Final Submissions, the AG writes “The investigation into these allegations was pursued vigorously
both before and after June 23, 1985. Although analysis of telephone records showed that one
long distance call had been made to Reyat’s home by an unknown acquaintance of one of the
individuals, no evidence has been found to link this plot to the bombings”: Final Submissions of
the Attorney General of Canada, Vol. I, para. 157.
Exhibit P-120(c), p. 6 (entry for March 5, 1986: doc 526-3, p. 86).
Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4107.
�Chapter I: What Was Known About the Threat?
Observations
• In the pre-bombing period, the RCMP received information about
a plot to bomb an Air India plane from two independent sources.
Despite this corroboration, the RCMP viewed the intelligence with
extreme skepticism and was reluctant to follow up on the lead.
• There were important deficiencies in the manner in which the
RCMP reported the November Plot information internally as well as
in the manner in which it shared relevant information with other
agencies.
• These failures posed challenges for the agencies in terms of their
assessment of the significance of this threat.
• When the November Plot issue was eventually followed up postbombing, a number of important connections between the alleged
conspirators and the RCMP’s main suspects in the bombing of
Air India Flight 182 were recognized.
• Despite seemingly clear connections to presumed participants in
the bombing, the RCMP continued to deny, up to and including
its submissions to Bob Rae and its testimony at this Inquiry, that
there was any substance to the November bomb plot, and to
maintain that there was no link to the bombing of Flight 182.
1.2 June 1st Telex
In the spring of 1985, as the string of threats against Indian interests was
coming to a “crescendo”,99 officials had an impending sense that “…something
was going to happen.” But the answers to the questions: “...[w]here or when
or what [?]” were not known.100 The mishandling of the “June 1st Telex”, as it
came to be known during the hearings, demonstrates deficiencies in the threat
communication and response system that was in place in 1985. These failures
illustrate the dangers of compartmentalization of duties and the need for shared
responsibility in aviation security.
On June 1, 1985, Air India’s Chief Vigilance and Security Manager in Bombay
sent a telex to Air India offices worldwide indicating that the assessment
of threats received by its intelligence agencies revealed “...the likelihood of
sabotage attempts being undertaken by Sikh extremists by placing time/delay
devices etc. in the aircraft or registered baggage”, as well as the fact that “...Sikh
extremists are planning to set up suicide squads who may attempt to blow up
an aircraft by smuggling in of explosives in the registered or [carry-on baggage]
or any other means...”101
99 Testimony of James Bartleman, vol. 22, May 3, 2007, p. 2104.
100 Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3044.
101 Exhibit P-101 CAA0185, p. 1.
21
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Volume Two Part 1: Pre-Bombing
The telex directed all Air India stations to ensure the“...meticulous implementation
of counter-sabotage measures for flights at all airports.”102 It then went on to
suggest five counter-sabotage measures to be implemented in order “…to
prevent extremists [from] carrying out their designs.” These measures included
“explosive sniffers and bio-sensors (dogs)”, which may be used to “...check the
registered baggage” as well as “...physical random [sic] check of all registered
baggage at the time of check-in at least till [sic] June 30, 1985 ...”103 The telex
conveyed Air India’s position that airlines had the basic responsibility for
counter-sabotage measures.
When Air India’s Assistant Airport Manager arrived on Air India’s scheduled flight
at Gate 103 in Toronto’s Pearson Airport on June 1st, he provided a copy of the June
1st Telex to an RCMP member there.104 This telex was also received by Herbert
Vaney, the Toronto Area Sales Manager for Air India, who forwarded it on June
3, 1985 to RCMP Inspector William Dawson, the Officer in Charge at Toronto’s
Pearson Airport, and requested that “suitable action” be taken in relation to this
information.105 No one at Air India forwarded the June 1st Telex to any Transport
Canada officials at the airport or at headquarters, despite assurances made by
Air India’s Senior Security Officer that all threat reports would be forwarded to
both the RCMP and Transport Canada. 106
When Dawson received the June 1st Telex, he sent a telex to the RCMP Headquarters
Airport Policing Branch, quoting the June 1st Telex in full, but stating that, in his
opinion, there was no “…need for extra security by this Force on the strength
of information contained in the message.” From his point of view, the countersabotage measures suggested in the June 1st Telex were within the purview
of Air India and Burns Security. He requested instructions from Headquarters
about what action should be taken at the airport in response to this threat.107
Dawson also indicated that “…this matter has not yet been discussed with local
Transport Canada Safety and Security Manager but we expect his position will
be similar to that of last week when they refused to authorize extra manpower or
security.”108 It is unclear when, or indeed whether, this topic was ever discussed
with Dale Mattson, who was the Transport Canada Safety and Security Manager
at Pearson in 1985.
In response to Dawson’s request, Sgt. J.B. (“Joe”) MacDonald, the Acting Officer
in Charge of the Headquarters Airport Policing Branch, wrote to CSIS requesting
an updated threat assessment in relation to Air India. MacDonald noted that
the “...last threat assessment Oct 84 indicating threat level high but no specific
threat to Air India in Canada. Plse advise by telex ASAP if there is any change. We
102
103
104
105
106
107
108
Exhibit P-101 CAA0185, p. 1.
Exhibit P-101 CAA0185, p. 1.
Exhibit P-101 CAF0586, p. 5, CAF0784.
Exhibit P-101 CAA0184, p. 1.
Exhibit P-101 CAA0118, p. 5.
Exhibit P-101 CAA0208, p. 2.
Exhibit P-101 CAF0589, p. 2.
�Chapter I: What Was Known About the Threat?
have had a number of requests from the airline for extra security.”109 It should
be noted that, in fact, there had been CSIS threat assessments received by the
Airport Policing Branch subsequent to October 1984, including an April 12,
1985 assessment indicating that the possibility of action against Air India flights
could not be ruled out.110
CSIS replied to the RCMP that the “...threat potential” to Air India was “high”, but
that it was not aware of any “specific threats” at the time.111
The RCMP briefing to the Honourable Bob Rae stated that MacDonald had
forwarded the telex sent by Dawson, which contained the June 1st Telex
information, to CSIS.112 This was not the case. The request sent by MacDonald
contained no reference to the actual content of the June 1st Telex, and CSIS never
received the information. MacDonald testified that, in his view, “...there was no
need” to share that information with CSIS.113 The Attorney General of Canada
conceded in its Final Submissions that, in general, CSIS should have been given
all information pertaining to threats.114
The June 1st Telex was also not shared by Headquarters with other RCMP airport
detachments. It was not sent to the Vancouver airport, the point of origin for CP
Air Flight 060 onto which the luggage containing the bomb was boarded and
interlined to Air India Flight 182. There was no record of this telex having been
shared with local RCMP officials at the Mirabel detachment, nor does it seem
that the content was shared with Burns Security officials who provided security
screening services for Air India’s Toronto and Montreal flights.115
The June 1st Telex was not sent to National Criminal Intelligence Branch (NCIB),
the RCMP Branch in charge of analyzing threat information and producing threat
assessments. The first time Sgt. Warren Sweeney, who was in charge of the
terrorist/extremist desk at the National Security Enforcement (NSE) Section of
NCIB, saw the telex was in preparation for his testimony before this Inquiry.116
Nor was the June 1st Telex shared with Transport Canada officials, even though
one of the obligations of the RCMP under the RCMP/Transport Canada
Memorandum of Agreement was to disseminate intelligence information
concerning national and international threats to civil aviation.117
109
110
111
112
113
114
Exhibit P-101 CAA0198, p. 1.
Exhibit P-101 CAA0147, p. 1.
Exhibit P-101 CAA0199, p. 1.
Exhibit P-101 CAA0234, p. 8.
Testimony of Joe MacDonald, vol. 27, May 14, 2007, p. 2865.
Final Submissions of the Attorney General of Canada, Vol. II, para. 189 (citing the Testimony of Joe
MacDonald, vol. 27, May 14, 2007, p. 2818).
115 See generally Testimony of Daniel Lalonde, vol. 29, May 16, 2007, pp. 3115-3167. Also, Holger Kordts,
who was the Branch Manager for Burns Security, he stated that the only special directions given
to the guards on any occasion were in relation to a May 27th letter from Herbert Vaney (see Exhibit
P-101 CAA0159, p. 1), referring to some acts of terrorism in the Punjab, and where it was requested that
armed guards be placed at the aircraft and for them to pay extra attention and take measures to
protect property: Exhibit P-101 CAF0538, p. 7.
116 Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2732.
117 Exhibit P-101 CAA0335, p. 8.
23
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Volume Two Part 1: Pre-Bombing
In October 1987, John Cook, who was stationed at the Civil Aviation Security
Branch at Transport Canada Headquarters, learned of the existence of the June 1st
Telex for the first time. Cook recognized that it was a very important document,
but there was no record to indicate when the RCMP had finally provided a copy
to any Transport Canada personnel. 118
Cook wrote: “...the information contained in [the June 1st Telex] raised many
questions and suggested the lack of proper action and sound judgment by Air
India and the RCMP”, adding “...[i]t is unbelievable that Air India officials did not
distribute this document immediately to Transport Canada and other police
officials and request a meeting to discuss the necessary measures to meet the
perceived threat.”119 Transport Canada’s Headquarters had the ability to apply “...
additional procedures that were needed to address the relevant threat.”120
Cook’s reaction suggests that the content of the June 1st Telex may have
warranted implementing and coordinating additional procedures beyond
those that Transport Canada and the RCMP had in place on June 23, 1985. In
this vein, Mattson testified that if he had seen the June 1st Telex, he would have
immediately contacted the Civil Aviation Security section at Transport Canada’s
headquarters to see if they were aware of it, and he would have then ascertained
whether the airport should introduce further security measures.121
A briefing document provided by Transport Canada states that on June 22,
1985, “...the threat to Air India movement was considered ambient, as Transport
Canada had not received intelligence to indicate an imminent or specific threat
to Air India 182.”122 While the threat in the June 1st Telex may not have fit the
definition of “specific threat”, as it was understood by Transport Canada, the fact
that the threat applied only to the four remaining Saturday flights in June would
seem to have made it an “imminent”123 one. Cook’s reaction to the document
weighs in support of that conclusion, and it suggests he would have considered
it appropriate to take swift action and expand the security response for these
flights accordingly.
In the past, Transport Canada had taken steps to implement and ensure the
coordination of additional measures in response to an uncorroborated threat of
bombing directed at Air India. In June 1984, Transport Canada received threat
information through Air India that Sikhs in Canada were planning to become
118
119
120
121
122
123
Exhibit P-367, p. 1.
Exhibit P-367, p. 2.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3215.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3232.
Exhibit P-101 CAF0615, p. 2.
Whereas there were particular emergency protocols triggered at the airport in relation to a “specific
threat” which itself had a particular and restrictive meaning (see Section 4.3 (Pre-bombing), The Role
of the “Specific Threat” in the 1985 Threat-Response Regime), the term “imminent threat” does
not appear to have a particular meaning or to be a trigger for specific protocols in the 1985 threatresponse regime. However, the context in which this concept is discussed implies that Transport
Canada had the ability to take measures to address a perceived “imminent” threat. A colloquial
understanding of the term would seem to imply a perception that the threat would likely manifest
within a short time frame.
�Chapter I: What Was Known About the Threat?
martyrs by blowing up an Air India aircraft. Measures taken by Transport Canada
included contacting Air Canada and RCMP officials to confirm that effective
security safeguards were in place and, specifically, ensuring the availability of the
explosives detection dog “...for search duty to detect any explosives in lockers,
baggage, cargo and aircraft.” Further, after consulting with Transport Canada
about this 1984 threat, the Air India Station Manager at Mirabel implemented
hand-searching of all checked luggage. Transport Canada also undertook
to maintain close contact with RCMP, External Affairs, and airport officials to
ensure the “...rapid exchange” of intelligence and the “... adoption of any security
measures required to meet the alleged threat.”124 In June 1985, in spite of the
steps called for in the June 1st Telex, physical checks of registered baggage
were not conducted and, in fact, there was no RCMP explosives detection dog
available for the June 22nd flight at the Toronto Pearson airport.125
At the time that the June 1st Telex was being received by the RCMP, Headquarters
had already ordered that “level 4 security” be implemented for the Air India
flight in response to previous threat information which referred mostly to the
possibility of hijacking.126 When the RCMP Headquarters Airport Policing Branch
received the June 1st Telex, it did not order any adjustment to the nature of the
security that was already in effect.127 This was particularly problematic because
the anti-hijacking measures implemented as part of level 4 security did not
address the concerns set out in the June 1st Telex, including, importantly, the
threat of time-delay devices being placed in registered luggage. 128 In the opinion
of a leading expert in risk analysis, the unusual specificity of the information in
the June 1st Telex, combined with the already very high-risk situation in which it
was received, 129 “...would have justified almost any risk-control measure you can
imagine, including grounding those flights” until investigators had the chance
to consult with authorities in India about their source of information. 130
The June 1st Telex was an Air India document, and one possible explanation
for what looks like a half-hearted Canadian response and follow-up is that Air
India threats were generally viewed with skepticism by Government of Canada
officials. At a meeting held post-bombing, which included representatives from
Transport Canada and the RCMP, it was noted that almost every Air India flight
was preceded by a letter outlining a threat to Air India and that this was thought
to be an attempt by Air India to obtain increased security for its flights at no extra
cost.131 One RCMP official thought the June 1st Telex was a “floater”,132 meaning
124 Exhibit P-101 CAF0161, p. 2.
125 Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 2999.
126 Exhibit P-101 CAA0168, p. 1; Testimony of Joe MacDonald, vol. 27, May 14, 2007, p. 2798; Exhibit
P-101 CAC0349, p. 3.
127 Testimony of Joe MacDonald, vol. 27, May 14, 2007, p. 2862.
128 Exhibit P-101 CAA0025, p. 1.
129 See Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11982-11983. Leiss’s testimony with
respect to the June 1st Telex is discussed in detail in Section 4.3 (Pre-bombing), The Role of the “Specific
Threat” in the 1985 Threat-Response Regime.
130 Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11982-11983.
131 Exhibit P-101 CAC0517, p. 1.
132 Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2736-2737.
25
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Volume Two Part 1: Pre-Bombing
that it was information that was provided “...in the hopes that security would
be increased” or of “...gaining more security around the aircraft.”133 He came to
this conclusion, even though he had no knowledge of the intelligence Air India
relied on from its sources as the basis for the telex.134
In its Final Submissions, the Department of the Attorney General maintained
the view that it is “...not clear whether the June 1st Telex would have actually
enhanced CSIS’s knowledge of the dangers of Sikh extremism.”135 The testimony
of CSIS employees at this Inquiry was somewhat different. John Henry, who was
at the CSIS HQ Threat Assessment Unit, testified that the June 1st Telex would
probably have been useful to the individual writing the threat assessment,
and that it contained “...more detail than [he] had seen before.”136 In the CSIS
BC Region, the telex could have been an “extremely helpful” additional piece of
information that might have enabled investigators to obtain more resources for
the surveillance of Sikh extremist targets.137 Such additional coverage might have
avoided some of the CSIS surveillance errors at Duncan and elsewhere in British
Columbia.138 CSIS investigator Ray Kobzey testified that he would have taken
the June 1st Telex seriously “...[w]hen viewed in the context of the assassination
of Indira Gandhi” and that it would have led CSIS to treat the Duncan Blast “...
loud noise” a lot differently”139
In terms of the RCMP’s post-bombing investigation, while all threat information
received by P Directorate, which included the June 1st Telex, was filed in central
records at HQ,140 there is no evidence that anyone at Headquarters or at the E
Division Air India Task Force ever took steps to access this information in the
post-bombing period. 141 This failure, in turn, explains why there is no evidence
of any follow-up investigation of the June 1st Telex information.
Observations
• There were significant deficiencies in the manner in which Air India
and Canadian government agencies shared the June 1st Telex.
It is likely that, had Transport Canada received the telex, it would
have taken steps to implement additional safety measures for
Air India Flight 182. In addition, the telex would have been useful
for CSIS’s investigation into Sikh extremism and possible threats
to the security of Air India and other Indian interests in Canada.
133 Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2745. See also, pp. 2745-2746, where Sweeney
explains that such “floaters” were also received from other airlines and other countries and could relate
to attacks on missions or personnel.
134 Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2732.
135 Final Submissions of the Attorney General of Canada, Vol. II, para. 191.
136 Testimony of John Henry, vol. 25, May 8, 2007, pp. 2539, 2523.
137 Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3810-3811.
138 See Section 1.4 (Pre-bombing), Duncan Blast and Section 1.5 (Pre-bombing), Mr. X.
139 Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3810-3811.
140 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2653.
141 Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9672. See also Testimony of Warren Sweeney,
vol. 25, May 8, 2007, pp. 2653-2655.
�Chapter I: What Was Known About the Threat?
• The June 1st Telex, given its specificity and the nature of the threat it
described, made the situation inherently high-risk. That fact,
combined with the fact that it was received by the RCMP during
a very high-risk period, should have led authorities to take swift and
deliberate action to respond to the threat. The fact that there was
no investigative or security-related response to the June 1st Telex
was a clear deficiency.
• Because no known attempts were made to follow up on or to
corroborate the June 1st Telex information in the pre- or postbombing periods, the original source of the information and the
nature of the ultimate connection of the information to the Air India
bombing remain unknown to this day.
• Following the bombing, the relevance and importance of the June
1st Telex to the post-bombing investigation should have been selfevident. The failure to follow up on it is difficult to understand.
1.3 Parmar Warrant
When CSIS was created on July 16, 1984, there were in place 250 RCMP Security
Service warrants, issued under the Official Secrets Act (OSA) and authorized by
the Minister. Prior to a December 31, 1984 deadline for the “conversion process”,
110 of the RCMP Security Service warrants were selected and approved by the
Federal Court as CSIS warrants. There was, in fact, no real “conversion”, but rather
a fresh, time-consuming multi-step warrant approval process.
Before the creation of CSIS, warrants were generally simple, two to six pages in
length and approved only by the Solicitor General rather than any judicial officer.
After the creation of CSIS, the process changed substantially. Jacques Jodoin,
the Director General, Communication Intelligence and Warrants (CI&W), who
was responsible for developing the process to ensure that the warrants would
proceed to court the fastest way, said: “The process became very legalistic, very
bureaucratic and very cumbersome, but we went through it.” 142
In the new process, the affidavits ballooned in size to 50 or 60 pages and took
months to complete. By 1987, the warrant process consisted of 24 steps. Some
of these steps were of questionable value in light of the delay they introduced.
Nevertheless, the steps were developed during the conversion process, and
applied to the Parmar warrant. However, the system was still in flux as CSIS seemed
to muddle through trial and error as to what procedures were required.
Jodoin said that the field investigator would send a rough résumé of the case
through his chain of command. A justification was required for whatever power
142 The source for much of the information on the history of the CSIS warrant process comes from the
Testimony of Jacques Jodoin, vol. 23, May 4, 2007, pp. 2245-2269.
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Volume Two Part 1: Pre-Bombing
was wanted. For the Parmar case, the important questions involved the level
of resources required to implement the power, and whether they had the
capability to do it.
At HQ, warrant coordinators would choose, from their individual sections, the
analysts best capable of finishing the affidavit. The rough affidavit would come
back to CI&W. There, on the basis of having seen hundreds of warrants, its
sustainability in court would be assessed.
More work was seemingly always required, so the draft would go back through
the channels, which could sometimes take weeks. When the final copy was ready,
it had to go back through the chain of command, so that their senior officer
could sign it before going to the Warrant Review Committee (WRC). Finally, after
the WRC, the document would go to the Deputy Solicitor General for approval
before being presented in court.
In 1987, for the first time, CSIS agreed to have one of its warrants used in court
proceedings in R v. Atwal,143 a case dealing with Sikh extremists who were
allegedly involved with the shooting of Malkiat Singh Sidhu, an Indian cabinet
minister, on Vancouver Island. However, the prosecution had to withdraw the
Atwal warrant because of errors in the affidavit prepared by CSIS in 1985 with
respect to the warrant application. The case against four alleged conspirators
collapsed. This caused the resignation of the CSIS Director and brought the CSIS
warrant process under considerable scrutiny. A few additional steps, predictably
lengthening the process, were added to the warrant process to deal with the
perceived problems with the Atwal warrant. The warrant procedure for 1987 to
1992 is shown in the Addendum to this critical incident. Although there are a
few extra steps, it is basically the same as that followed for the Parmar warrant
and demonstrates its flaws for an agency dealing with national security where
time is invaluable.
Obtaining the Parmar Warrant
Talwinder Singh Parmar was incarcerated in West Germany in 1983, but was
released on July 6, 1984 and immediately returned to Canada.144
Parmar had been arrested on the strength of an International Warrant issued by
India for murder. It is believed that the German authorities felt that, due to the
recent events in the Punjab, Parmar would not receive a fair trial in India, and
thus discontinued extradition hearings.
CSIS HQ and, in particular, BC Region were concerned about the effects of
Parmar’s return to Canada. As soon as he arrived back he embarked on a crosscountry tour in an effort to establish himself as the leading pro-Khalistani Sikh
and holy leader in Canada.145 During that tour, at a stop in Calgary on July 15,
143 (1987), 36 C.C.C. (3d) 161 (F.C.A.).
144 Exhibit P-101 CAB0139, p. 2.
145 Exhibit P-101 CAB0114, p. 1, CAB0139, p. 2.
�Chapter I: What Was Known About the Threat?
1984, Parmar strongly urged Sikhs to “...unite, fight and kill” in order to revenge
the attack on the Golden Temple in Punjab.146
Because Parmar was seen as a leader in the escalating tension within the proKhalistani movement and was uttering threats of violence, BC Region wrote
to headquarters on July 13, 1984, to suggest that they might want to seek a
warrant on Parmar.147 On July 27, 1984, CSIS HQ concurred with the suggestion,
encouraging that warrant coverage be initiated against Parmar.148
It was not until September 17, 1984 that the BC Region was able to complete
all the detailed preparatory steps required and to apply for authorization
permitting a full investigation (level 4), a prerequisite for applying for a judicial
warrant.149
Urgency of the Warrant
On October 17, 1984, a request for a warrant to intercept Parmar prepared by
Ray Kobzey, investigator in BC Region, and supported by his Unit Head and Chief,
was submitted to the Director General of CI&W, 150 noting that the CT Section
and HQ CT desk considered this to be urgent.151
The word “urgent” was used throughout the warrant request which also
included information to support the belief that Parmar presented a threat and
was inciting violence in the Sikh community.152
Daryl Zelmer, the warrant coordinator for the Counter Terrorism (CT) branch, was
responsible for coordinating the preparation of the affidavits for the acquisition
of Section 21 warrants with the relevant Desk, Legal Affairs and CI&W. On
October 18, 1984, on receipt of the warrant request, despite the statement that
it was urgent, Zelmer responded, asking to know the urgency of the application.
Indeed, in testimony Zelmer commented that the use of the word “urgent” in
the original proposal was “...standard usage in terms of the lexicon of the day”.
Zelmer noted that a CSIS memo dated October 1, 1984, set out the category
of new warrants that would be allowed during the conversion process. The
memo surprisingly stated that all regions should refrain from submitting new
applications for warrants until all existing OSA warrants had been converted.
The only exceptions were “...applications of justifiably urgent nature involving
the potential threat or use of acts of serious violence against persons or
property.”153
146
147
148
149
150
151
152
Exhibit P-101 CAB0114, p.1, CAB0139, p. 3.
Exhibit P-101 CAF0719, p. 2.
Exhibit P-101 CAF0119, p. 1, para. 3.
Exhibit P-101 CAB0139, pp. 1-5.
Exhibit P-101 CAB0144, pp. 1-11.
Exhibit P-101 CAB0144, p. 1.
Exhibit P-101 CAB0144; Testimony of Daryl Zelmer, vol. 23, May 4, 2007, pp. 2328-2330. Much of the
following information comes from the same testimony, pp. 2312-2328.
153 Exhibit P-101 CAB0145, pp. 1-2.
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Volume Two Part 1: Pre-Bombing
On October 19, 1984, Zelmer wrote a memo to Glen Gartshore, Head of the HQ
CT Sikh Desk, commenting that, although the threat of terrorism and violence
regarding this warrant application was a definite possibility, an immediate
assessment of the probability of such acts occurring was important. He sought
Gartshore’s comments and the recommendation of the Chief, Europe and Far
East (E&FE) to determine whether to proceed or wait until completion of the
renewal process.154
Russell Upton, Chief of E&FE155 in his handwritten response on that same
document, replied that the warrant must proceed on a “Priority basis” and that
the application should be given “Top Priority”. He concluded by stating that, “We
should be able to table this for legal consideration early next week.” 156
This seems to have answered Zelmer’s concerns as to the urgency. He testified
that this signalled to him that this matter required urgent attention.157
On the same day, Gartshore sent another memo to Zelmer. He noted that Upton
and his superior, the Director General CT, Mel Deschenes, were completely in
agreement with moving urgently to have the warrant application for review the
following week. The memo also informed Zelmer that the separate request for
level 4 coverage of Parmar had been granted that morning.158 On the same date,
October 19th, a corrected copy of the warrant application was resubmitted.159
Warrant Application Delayed
The next correspondence referring to the Parmar warrant was dated nearly two
weeks later. In the interim, Prime Minister Indira Gandhi had been assassinated,
and tensions in the Indo-Canadian community were rising dramatically.
In his November 9, 1984 memorandum, Upton wrote to Deschenes noting that
Vancouver region had applied for technical coverage on October 19th and that
the warrant application had been with Zelmer for over a week an a half, “... no
doubt caught up in the pile of renewals”.160 Upton requested that the warrant
be expedited or the field would need some kind of explanation regarding the
delay.
In response, Deschenes wrote to Zelmer the same day, invoking the authority
of the Deputy Director National Requirements (DDR), Archie Barr. Deschenes
noted some urgency in moving the new warrant application through, and
154 Exhibit P-101 CAB0146, pp. 1-2.
155 Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3568-3569. The unit was also called Western
Europe and the Pacific Rim. The Sikh Desk (also known as the Far East unit) was part of Upton’s section.
156 Exhibit P-101 CAB0146, pp. 2-3.
157 Testimony of Daryl Zelmer, vol. 23, May 4, 2007, p. 2337.
158 Exhibit P-101 CAB0147, p. 1. However, Exhibit P-101 CAB0162, p. 1 notes that level 4 coverage was
granted by the Director on October 25, 1984, six days later. Level 4 coverage was a requirement before
a warrant could be obtained.
159 Exhibit P-101 CAF0144.
160 Exhibit P-101 CAB0162, p. 1.
�Chapter I: What Was Known About the Threat?
pointed out that the DDR had agreed to treat it as a priority. He asked for Barr’s
help in expediting the process.161
The memo contains a notation, likely by Zelmer, stating that on November 16th
the application was “... returned to Desk for rewrite”.162 No explanation was given
as to why the application was returned to the desk for a rewrite, considering its
urgent nature and the delay that had already occurred.
On November 27, 1984, Gartshore again wrote to his superiors concerning the
delay in the Parmar warrant. Upton replied that, “... there seems to be some
hesitancy to give this application priority attention”. In comments forwarded
to Zelmer, Deschenes also noted the priority and said he would appreciate “...
getting it through ASAP.”163
The next day, Dick Wallin, the Chief CI&W BC Region, made a request for a progress
report. In response, Upton noted that the file was subject to high priority tasking
from HQ and that the application was “of some urgency”. He also noted that the
desk was advised of the tremendous backlog due to the conversion process, but
would like to know when the application would be considered. Two handwritten
notes at the bottom of this document are of importance. The first was written by
Zelmer to Gartshore and reads:
The affidavit can possibly be ready to go in 2 days max. The
question to be resolved is when to proceed. In light of renewal
[illegible] is a decision that will require consultation between
Mr. Deschenes and Mr. Jodoin.164
The second handwritten note addressed to Zelmer from D. Burke, Warrant
Acquisition Control and Requirements (WAC & R, CSIS HQ) notes:
Can’t see how we can process same with current workload –
unless extremely important we won’t handle until early in new
year.165
A week later, on December 3, 1984, Gartshore wrote to Upton to pass on a
message from BC Region investigators regarding the delay in receiving judicial
authorization to start intercepting Parmar.166 He repeated and underscored BC
Region’s concern that there was “... almost non-existent source coverage on
Parmar and the Babbar Khalsa and this warrant is required in order to adequately
investigate their terrorist threat.”167 Upton responded on the face of this memo
161
162
163
164
165
166
167
Exhibit P-101 CAB0160, p. 1.
Exhibit P-101 CAB0160, p. 1.
Exhibit P-101 CAB0170, p. 1.
Exhibit P-101 CAB0166, p. 1.
Exhibit P-101 CAB0166, p. 1.
Exhibit P-101 CAB0171, pp. 1-2.
Exhibit P-101 CAB0171, p. 2.
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that Deschenes had asked for priority attention to be placed on obtaining
the warrant. All this information was duly passed to Zelmer who, on the face
of the same memo, noted a “... problem of timing in introduction through
Communication Intelligence [CI&W] brought to attention of Mr. Deschenes,
who will take matter up with Mr. Jodoin.”
In testimony, Jodoin had no recollection of the meeting or a discussion between
himself and Deschenes in regard to the Parmar warrant.168
On December 13, 1984, an executive summary in support of the warrant
application was prepared by Robert (“Bob”) Burgoyne, an analyst on the Sikh
desk, and signed by Deschenes. The underlying application, however, was not
approved by Barr until March 8, 1985.169
Meanwhile, on December 13th, Upton wrote to Wallin, advising that the affidavit
had been completed and reviewed by legal counsel and that it had received
tentative approval. He further stated that, “...with the completion of the renewal
warrant process, we expect this warrant will be given immediate consideration.”
The latter sentence, however, was bracketed, presumably by the recipient.
A handwritten note at the bottom of the document adds a comment about
the bracketed sentence, noting that someone had spoken with Upton, and
clarifying that the court process would not happen until about the 20th of that
month. The note goes on to state that the writer had phoned the Desk to correct
the “...wrong impression” and that “...he understands.”170 It is a shocking display
of ineptitude – that it took our security service approximately five months to
obtain a warrant on the known and dangerous Parmar.
Disagreement over Cause of Delays
In early 1997, the RCMP requested that CSIS provide them with a general
overview of the warrant approval procedures in place in 1985. In their response,
CSIS documented the procedures for obtaining the Parmar warrant based
almost entirely on employee statements. The memo states that, ”...[d]ue to the
fact that the application to obtain a warrant against Parmar was made during
the warrant conversion period following transition from the RCMP Security
Service to CSIS, a decision was made at Headquarters to hold the request until
the new system was in place.”171 This explanation for the delay is irresponsible.
Jodoin rejected the accuracy of that statement during testimony. He claimed
that while the process slowed down to ensure that it met the criteria they had
established for this type of urgency, the warrant application was processed. He
suggested that somebody might have misread or misinterpreted the file years
later. He maintained that the warrant was pushed through the system in spite of
the conversion process.172 If that is so, why was the elapsed period from the time
of the request to the time of obtaining the warrant five months?
168
169
170
171
172
Testimony of Jacques Jodoin, vol. 23, May 4, 2007, p. 2273.
Exhibit P-101 CAA0115, p. 1.
Exhibit P-101 CAB0174, p. 1.
Exhibit P-101 CAD0184, p. 21.
Testimony of Jacques Jodoin, vol. 23, May 4, 2007, p. 2277.
�Chapter I: What Was Known About the Threat?
Ray Kobzey certainly felt the conversion process was the reason for the delay in
obtaining the warrant and that a five-month waiting period was unacceptable.
He said that an investigator’s determination of “urgency” due to a serious
emerging situation should have been respected by the headquarters area and
treated accordingly.173
Warrant Portability Issue
The Warrant Review Committee (WRC) finally signed off on the Parmar warrant
on January 28, 1985.174 However, this only signalled the start of yet another
difficulty. The following day, concerns were raised by Patrick Ansell, on behalf
of the Ministry of the Solicitor General, about, among other things, portability
issues in the Parmar warrant.
On February 26, 1985, the Chief, WAC & R filed an aide-memoire which addressed
the inaction on the Parmar warrant during the month since the Warrant Review
Committee had signed off on the warrant. Essentially, it discussed withdrawing
the Parmar application from the ministerial consultation process until the entire
issue of portability could be fully discussed with the Minister and his officials.175
That discussion did not take place, but the aide-memoire noted that Jacques
Courteau, the CSIS Legal Counsel, would be prepared to discuss this issue at the
March 4th Solicitor General/Director meeting if it were decided to proceed.176
The aide-memoire had attached to it another document addressing the points
raised by the Ministry. The issues Ansell and the Ministry were concerned about
related to the provisions in the proposed warrant that would have allowed CSIS
to target Parmar’s work environment. Parmar described himself as a mechanic,
but at the time he was said to be unemployed. More worrying to the Ministry was
that the portability provision could lead to wire-taps at a gurdwara, as Parmar
was calling himself a priest. Ansell was advised that portability provisions were
intended to be used solely for unexpected situations where Parmar met with
individuals at a location away from his residence and for a short-term duration.
However, Ansell replied that the concerns of J. Michael Shoemaker, Senior
Assistant Deputy Solicitor General, Police and Security Branch, might not be
satisfied, and that some discussion might take place with the Minister on this
issue when this warrant application was considered.
Throughout the month of February 1985, the Sikh Desk (Gartshore and
Burgoyne) continued to be concerned. On February 12th, Zelmer inquired about
the warrant delay and was advised of the portability issue which had yet to be
discussed with the Solicitor General.177 On February 21st, Zelmer again wrote
to the WAC&R to inform them that fresh copies of the Parmar affidavit had
173 Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3780-3781.
174 Exhibit P-101 CAA0122, p. 1.
175 Exhibit P-101 CAB0188, p. 1: On January 30, 1985, the warrant application was put on hold due to the
concerns raised regarding portability.
176 Much of the following discussion on portability is from Exhibit P-101 CAA0138, pp. 1-3.
177 Exhibit P-101 CAB0191, p. 1.
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Volume Two Part 1: Pre-Bombing
been submitted, incorporating some requested changes. He noted pointedly,
though, that there had been no notable developments and that “Indeed, the
lack of this intercept represents the dominant deficiency to the advancement
of our investigation.”178
Eventually, the portability issue was resolved, with the Solicitor General
accepting the original proposed language on portability, and on February 26th
the affidavit was given to Barr. However, the required Ministerial consult, which
had been expected for March 4th, was postponed due to the illness of John Sims,
Legal Counsel for CSIS, who was away and unable to attest to the affidavit.179
Warrant Finally Approved – Over Five Months after Original Application
The affidavit in support of the warrant was finally signed on March 8, 1985
by Barr.180 Three days later, on March 11th, the Honourable Elmer MacKay, the
Solicitor General, signed the Minister’s approval required for the warrant.181 The
notice of application for warrant was signed by the Deputy Attorney General
on March 12th, scheduling the warrant to be heard before the Federal Court two
days later.182 On March 14th the warrant, including the portability provisions,
was approved by the Federal Court and deemed valid from that day until March
13, 1986.183 BC Region was notified of the success of the warrant on March 18,
1985.184 Interestingly, a handwritten note (author unknown) attached to the
notice to BC Region, completes the warrant portability story. It states:
At a meeting with the Solicitor General on Monday March
11, 1985 (Mr. Finn, Barr, Gibson, Shoemaker, Marbury, Ms.
Huntington and myself present) the question of restrictions
on portability being included in draft warrants and ministerial
approvals was raised. The Solicitor General agreed with my
submission to the effect that ministerial policies and guidelines
ought not to be incorporated into the documents; CSIS is
bound by such policies and guidelines and therefore can only
execute warrants subject to such polices and guidelines. The
judge always has the option of adding conditions re: matters
of public interest, pursuant to s. 21(3) (f ) CSIS Act.185
In short, the upshot of the debate that held back the warrant application for
about a month was a consensus that the debate was about a non-issue. This latter
pointless delay attributable to the Ministry of the Solicitor General extended the
needless earlier four-month delay at CSIS. A five-month delay in dealing with the
178
179
180
181
182
183
184
185
Exhibit P-101 CAB0194, p. 1.
Exhibit P-101 CAF0623, p. 1.
Exhibit P-101 CAA0333, p. 12.
Exhibit P-101 CAA0129, p. 1.
Exhibit P-101 CAA0130, p. 2.
Exhibit P-101 CAD0024, p. 2.
Exhibit P-101 CAA0133, p. 1.
Exhibit P-101 CAA0133, p. 3.
�Chapter I: What Was Known About the Threat?
activities of a terrorist is inconsistent with competence, providing time enough
to permit the terrorist to complete the act of terror he had planned.
Finally, on March 28, 1985, the BC Region Chief of CI&W wrote to the DG CI&W
to inform him that the intercept on Parmar had been installed on March 25,
1985 – over five months after BC Region submitted an urgent application for a
warrant.186
Kobzey told the Inquiry that this was frustrating and disappointing. He said that
“...what was lost in terms of information or knowledge and what could have been
done with that knowledge we’ll never know, but that’s one of the heartbreaks of
this entire investigation, is that time delay, from a personal perspective.”187
Wesley Wark, who appeared as an expert witness on security and intelligence,
agreed, noting that “...it’s an intelligence failure which is made that much more
regrettable by the fact that we were probably fairly close to an intelligence
success.”188
The “what ifs” are numerous:
• What if the translators had had the benefit of listening to Parmar for
a greater amount of time? Would they have developed a keener
sense of their target and been able to tell when code words were
being used or when secretive plans were being made?
• What if the warrant had been in place five months earlier? Would
it have resulted in information that could have been used to
support warrants on other key targets such as Ajaib Singh Bagri and
Surjan Singh Gill?
• What if the intelligence gleaned from the wiretaps had given CSIS
the ability to assess Parmar’s close colleagues and perhaps
approach one to be a human source to provide information even
more valuable than that from the wiretaps?
• What if additional intelligence had allowed Kobzey and Ayre to
make a stronger case for ongoing surveillance coverage of
Parmar?189
• Finally, what if there had been an additional five months of
intelligence? Would the combined impact of the above additional
insights have provided CSIS with sufficient intelligence to prevent
the bombing?
186
187
188
189
Exhibit P-101 CAB0206, p. 1.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3751.
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1495-1496.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3775.
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Volume Two Part 1: Pre-Bombing
Observations
Several important observations arise from the Parmar warrant application
process.
• The Parmar warrant delay was a key process and communications
failure at CSIS.
• Despite Jodoin’s testimony before this Inquiry, the documents
show that the Parmar warrant was delayed until the conversion
process was over. Whether this meant it was “put on hold” or
“delayed” is irrelevant and borders on irresponsibility
considering the stakes. In any event, the warrant did not go forward
until the conversion process was complete, despite BC Region and
HQ requesting urgent, priority and ASAP action on the warrant on
practically every piece of correspondence.
• The delay in processing the Parmar warrant resulted in a vital loss
of opportunity for CSIS to obtain intelligence and in an equal loss of
opportunity to obtain potential evidence that would be needed
by the RCMP.
• The frustration one feels by the delays caused by this Byzantine
process are exacerbated when one considers that a police warrant
to search a suspect’s residence, arguably a greater invasion of
privacy than a telephone intercept, can be obtained by a brief but
effective affidavit within hours.
Addendum: CSIS Warrant Procedure 1987 to 1992
Step 1:
The regional field investigator identifies a need for a warrant
and consults with Regional Communications Intelligence
Production (CIP), Special Operations Security (SOS) and
Scientific and Technical Service (STS).
Step 2:
The regional unit head reviews the application for completeness
and accuracy.
Step 3:
The regional chief reviews and considers existing coverage.
Step 4:
The regional DDG Ops or regional OPS chief reviews and considers
existing coverage, translation capabilities and position vacancies.
Step 5:
The regional warrant coordinator reviews the process and confirms
consultation with SOS, STS, and CIP.
�Chapter I: What Was Known About the Threat?
Step 6:
The regional DG reviews the application and recommendations
and forwards to HQ.
Step 7:
HQ Warrant Acquisition Control and Review (WAC&R) unit reviews
the application and the requested powers.
Step 8:
The branch warrant coordinator assists the analyst in preparation
of the affidavit.
Step 9:
The HQ desk analyst assesses the application, consults with legal,
prepares the affidavit, and certifies accuracy of the facts.
Step 10:
The HQ desk head reviews the affidavit and certifies that the facts
and the analysis are supported by the information.
Step 11:
The HQ Chief reviews the affidavit and certifies that the powers are
necessary and the resources are available.
Step 12:
The HQ DG reviews the affidavit and certifies it is consistent with
the intelligence requirements and the priorities of the branch.
Step 13:
The human source branch certifies that any source identity in
the affidavit is protected and reviews the reliability assessment of
human sources.
Step 14:
The ADR reviews the application and ensures that the request is
necessary and fits within priorities and plans for the service.
Step 15:
Independent counsel reviews the application and, as required,
meets with the affiant (i.e., who swore the affidavit) and with legal
to assess the reliability of facts.
Step 16:
The WAC&R reviews and prepares legal documents and affidavit
packages.
Step 17:
The Secretariat reviews and disseminates the packages and
schedules the Warrant Review Committee (WRC).
Step 18:
The WRC considers the application and rejects or approves it.
Step 19:
The affiant makes the attestation.
Step 20:
The Deputy Solicitor General (DSG) considers the application and
the Solicitor General’s Police and Security Branch (PSB) prepares
a memo to the Minister for the DSG.
Step 21:
The Solicitor General considers the application and approves or
rejects it.
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Volume Two Part 1: Pre-Bombing
Step 22:
The WAC&R prepares the court documents and establishes the
Federal Court date and time. They also file the documents with
the court.
Step 23:
The Federal Court considers the application and approves or
rejects it.
Step 24:
The WAC&R receives the signed court documents and ensures that
the affidavit and warrant and any conditions are disseminated.190
1.4 The Duncan Blast
The Duncan Blast incident occurred three weeks prior to the bombing of Air
India Flight 182. Two CSIS surveillants followed Talwinder Singh Parmar, Inderjit
Singh Reyat and a third unidentified person into the woods near Duncan, British
Columbia, where they heard a large explosion. The senior surveillant believed
it was the sound of a gun being discharged, although the younger surveillant
thought it to be a much greater noise that literally lifted her out of her car seat.
A cursory search of the area was fruitless. Parmar and Reyat were allowed to
continue on their way and the third person was never identified. The issue of
this person’s identity continues to be a major line of investigation today (see
Section 1.5 (Pre-bombing), Mr. X).
Surveillance Request
In April 1985, CSIS investigators Ray Kobzey and David Ayre requested ongoing surveillance of Parmar191 to complement the newly acquired warrant to
intercept Parmar’s conversations. Kobzey had previously been granted level 4
authorization which allowed him to obtain the warrant and ask for surveillance.
As well as complementing the warrant, Kobzey requested ongoing surveillance
due to the rising concerns over the attempted assassination of an official of the
Government of India in New Orleans and the impending June visit of Prime
Minister Rajiv Gandhi to the United Nations in New York.192
While there had been sporadic coverage of Parmar during April and May, ongoing
daily coverage only began June 1, 1985.193 On June, 4th, CSIS surveillance teams
were covering Parmar. On that date, CSIS surveillants, Larry Lowe194 and Lynne
Jarrett witnessed what has come to be known as the “Duncan Blast”.
190 See Exhibit P-101 CAF0725: Study of, Report on, and Recommendations Relating to Process for
Acquisition of Warrants by CSIS, April 1992, by the Honourable George Addy, pp. 102-109.
191 Exhibit P-101 CAB0209, p. 1.
192 Testimony of Ray Kobzey, vol.33, May 24, 2007, pp. 3793-3794.
193 Testimony of Ray Kobzey, vol.33, May 24, 2007, p. 3795.
194 Larry Lowe was not called to testify before the Commission due to health reasons. Instead, his
testimony at the Reyat trial in September 1990 is relied upon for his observations (Exhibit P-101
CAD0007).
�Chapter I: What Was Known About the Threat?
The Duncan Blast
On June 4th, the CSIS physical surveillance unit (PSU) set up in the vicinity of
Parmar’s house. However, at 9:48 AM, the surveillance team lost their targets
and did not pick them up again until 2 PM.195 In the early afternoon, Jarrett
and Lowe followed a maroon car driven by Surjan Singh Gill with Parmar and a
person they believed at the time was his son196 (later referred to as Mr. X), to the
Horseshoe Bay Ferry terminal. When they reached the terminal, only Parmar and
his “son” boarded the ferry. According to Jarrett:
[W]hen Parmar and the young man got out of the vehicle and
headed for the walk-on passenger area, I also got out and
headed into the ferry walk-on passenger area with them to
board the ferry...Parmar and the young man that he was with
and myself were essentially the last three people [on]. The
young man actually held the door for me as we went into the
walk-way to head to where you purchase the tickets.197
Only two of the surveillance cars were able to make it onto the ferry in time–just
half of the surveillance team’s usual complement.198
During the ferry trip, Jarrett observed Parmar attempting to make a phone call,
first trying to charge it to his home phone. He could not do so because there
was nobody home to approve it. Parmar told the operator that he just wanted
to leave a message with Mr. Singh at 746-4918. Parmar paid $2.90 and called
someone for about a minute.199
The ferry docked at Departure Bay in Nanaimo. Agent Lowe had also made it on
board with his car and met Jarrett at the passenger pick-up where they continued
to follow Parmar and his “son” who were picked up by another individual. Jarrett
and Lowe then followed them to the residence of Inderjit Singh Reyat. The driver
who took them there then left. At 6:30 PM, Reyat got into his car with Parmar
and his “son” and drove to Auto Marine Electric in Duncan.200 At 7 PM they left
Auto Marine Electric and drove out of town at a high rate of speed, reaching
speeds up to 120 km/hr.201
Reyat’s car stopped in a wooded area and then backed south off Highway 18
along a dirt road that ended in a cement barrier. The surveillance team of Lowe
and Jarrett parked their car a distance, north off Highway 18 on Hillcrest Road,
195 Exhibit P-101 CAB0250, p. 2.
196 It was later determined that the youth was not Parmar’s son. He has since been referred to as Mr. X. See
Exhibit P-101 CAB0803, p. 5; Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2188-2191.
197 Exhibit P-101 CAB0250, p. 3; Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2163-2164.
198 Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3833.
199 Exhibit P-101 CAB0250, pp. 3-4.
200 Exhibit P-101 CAB0250, pp. 4-5; Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2171-2175.
201 Exhibit P-101 CAB0250, pp. 5-6.
39
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Volume Two Part 1: Pre-Bombing
and out of sight.202 At that point, Lowe got out of the car and instructed Jarrett
to remain in the car. He then began walking back through the woods to have
a clear view of the car carrying Parmar. Jarrett remained in the car as Lowe had
instructed. Lowe got within 150 to 200 yards from the Reyat car.203
Lowe saw the “son” return to the car and sit in the back seat. Soon after, there
was a very loud bang. The sound was so loud that Lowe jumped behind a tree,
believing a shot had been fired at him.204
Jarrett told the Commission that the passenger window was down about six
inches. The “very sharp, very clear” bang was “extremely loud” and startled her
so much that she swore and jumped off the car seat.205
Lowe described the sounds as follows:
...a loud explosion or bang, or rifle shot or whatever, I’m not – I
couldn’t describe it at that time. I thought it was a rifle shot at
the time.... And it scared the hell out of me, to be honest with
you, and I was hiding behind a tree and climbed further down
behind the tree because I didn’t know what was going on.... It
was a matter of about a minute or two minutes after the sound
the two individuals appeared back to the car.... The young
fellow got out of the car and all three were around the back.
Mr. Reyat’s head disappeared as if he was putting something in
the back of the trunk .... All three got back into the car at that
particular time.206
Shortly thereafter, Lowe returned to the vehicle. He was an experienced hunter
and identified the sound as a “rifle report” (i.e., the sound of a rifle being fired).207
He requested that Jarrett radio that information, and then drove with her to the
area where Reyat’s car had been. Once they reached that site, Lowe instructed
Jarrett to search the area for gun casings, which they did for less than a minute.
They found nothing.208
Lowe and Jarrett then drove off to rejoin the surveillance team and to be relieved
by the afternoon shift.209 Parmar was followed by members of the CSIS afternoon
shift as he returned alone to Vancouver via ferry. Once there, he was picked up
by Surjan Singh Gill. CSIS BC Region had made plans to have the RCMP stop Gill’s
202
203
204
205
206
207
208
Exhibit P-101 CAB0250, p. 6; Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2179, 2181.
Exhibit P-101 CAD0007, p. 42.
Exhibit P-101 CAD0007, p. 29.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2181.
Exhibit P-101 CAB0250, p. 6, CAD0007, pp. 10-11.
Exhibit P-101 CAB0250, p. 6.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2182-2183; see also Exhibit P-101 CAB0250, p. 6
and CAD0007, p. 16.
209 Exhibit P-101 CAB0250, p. 7.
�Chapter I: What Was Known About the Threat?
vehicle and search it for a weapon, but CT Chief Robert Smith called off the plan
when the surveillants reported that Parmar was not carrying anything, such as a
bag, which could conceal a weapon.210
Meanwhile, Lowe’s team remained on Vancouver Island. Lowe explained in a willsay statement that they missed the ferry back to Vancouver, so they all stayed
overnight in Nanaimo. The team compiled surveillance notes and Lowe phoned
the Vancouver office to provide an update. They were advised that the “son” did
not return on the ferry, and the team began to arrange for rental vehicles to
look for the “son” on Vancouver Island. Lowe was called the next morning and
told that they should return to Vancouver without completing the surveillance
follow-up on the son that they had planned. Lowe commented, “I don’t know
whose decision that was but I guess that’s hindsight.”211
Had CSIS continued its operation on Vancouver Island they could have gathered
a great deal more information on the person they believed to be the son of
Parmar. The next day in Vancouver, other CSIS surveillants noted that both of
Parmar’s sons were dropped off at school.212 At a minimum, the surveillants
would have had to come to the conclusion that the person they were following
on Vancouver Island was not Jaswinder Parmar. The identity of the young
man who accompanied Parmar and Reyat to the test blast has remained a key
question and an active part of the police investigation.213
What Information Did CSIS Pass on to Law Enforcement?
There have been complaints through the years about the completeness of the
information that CSIS provided to the RCMP regarding the Duncan Blast and
the sufficiency of its cooperation. As the Honourable Bob Rae succinctly put it
in his report:
Messrs. Reyat, Parmar and others were involved in the building
of at least two bombs and they tested a device while under
surveillance by members of CSIS on June 4, 1985.... There are
differing accounts from the RCMP and CSIS as to the level of
co-operation between the two services with respect to the
surveillance of Parmar and his associates on that day.214
In addressing the issue of how much information actually reached the RCMP,
and when it began to come in, Deputy Commissioner Gary Bass told the Inquiry
that “...the issue is how much detail was provided, and for what purpose and
with what caveats.”215
210
211
212
213
214
Exhibit P-101 CAB0250, p. 7, CAB0902, p. 31, CAD0130, pp. 15-16.
Exhibit P-101 CAA1089(i), p. 6.
Exhibit P-101 CAF0343(i): The Watt MacKay Report, p. 83
See Section 1.5 (Pre-bombing), Mr. X.
Lessons to be Learned: The Report of the Honourable Bob Rae, Independent Advisor to the Minister of Public
Safety and Emergency Preparedness, on outstanding questions with respect to the bombing of Air
India Flight 182 (Ottawa: Air India Review Secretariat, 2005), p. 8.
215 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11241, 11243.
41
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Volume Two Part 1: Pre-Bombing
Indeed in the RCMP’s Submission to the Honourable Bob Rae, “Air India Flight
182 Disaster”, dated October 2005, the RCMP stated:
Corporal Henderson was not provided with any additional
details to indicate the seriousness of this information. In
particular, he did not know about the guarded manner that
Parmar spoke on the telephone intercepts.216
CSIS replied stating:
The Service’s report...the day after the Duncan test blast does
not support the notion that Cpl. Henderson was not provided
with any additional detail to indicate the seriousness of this
information. It is clear in the CSIS report that Sikh extremism
was discussed between the Service and the RCMP in respect
of the event, as evidenced by the information Cpl. Henderson
provided on Reyat’s involvement with the local gurdwara.
The RCMP paper notes that Parmar’s identity was revealed
to the RCMP later (“later identified as Talwinder Parmar”).
Parmar’s identity appears to have been provided at the time
of the initial Reyat inquiry made by the Service on June 4,
1985, given that the RCMP Occurrence Report [CAA0193]
states that CSIS requested “...we supply any local intelligence
on them.” In any event, the RCMP was made aware of Parmar’s
involvement in the Duncan incident, in the briefings made by
the Vancouver Police and CSIS to the RCMP on 11 June, 1985....
The RCMP were aware of Parmar’s history and the threat he
presented...given the ongoing Interpol interest around him,
the failed extradition attempt by India and his stay in a German
jail. To state that the significance of the event was not known
is further belied by the visit by US Secret Service and RCMP
members on 12 June 1985, in anticipation of the Rajiv Gandhi
visit to the United States.217
To this the RCMP replied:
CSIS states that the Service alerted the RCMP of this event on
the same date of the occurrence. This is misleading. Although
CSIS did state they heard a gunshot, they only requested
indices checks over the phone on Reyat. They provided no
background information on their investigation of Parmar.218
216 Exhibit P-101 CAA0335, p. 19; Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8301.
217 Exhibit P-101 CAA1088, p. 2. [Emphasis in original]
218 Exhibit P-101 CAF0814, pp. 1-2.
�Chapter I: What Was Known About the Threat?
The following is an attempt to trace exactly what information was shared with
the RCMP:
• Early on the morning of June 5th, the CSIS surveillance team
manager contacted RCMP Cpl. Henderson by phone to advise
him of what the team had witnessed in Duncan.219 He indicated
that CSIS was “...conducting surveillance of some of their targets
who met Reyat” the previous day. It was then stated that “...
Reyat and the target” went up a logging road and “...a gunshot was
heard.” The two parties were then followed back into Duncan. The
CSIS member requested that the RCMP “...supply any local
intelligence on them.” Henderson found information about
weapons registered to Reyat and advised accordingly.
• Later on the same morning, upon receipt of the surveillance report,
Kobzey contacted Henderson by phone to advise him further on
what CSIS had witnessed.220 Kobzey indicated that the CSIS inquiries
and surveillance at issue “...centres around radicals of the
East Indian community.”221 Henderson provided Kobzey with some
background information on Reyat and his involvement in Sikh
issues in Duncan.222
• The report prepared by Henderson states that when he was
first contacted by CSIS he was requested to provide “...any local
intelligence on them”.223 However, when Henderson was questioned
about the events in 1989, he indicated that “...the only request
made by CSIS for any action was for Detachment records checks
for Reyat”,224 and that his 1985 report, which did not mention
Parmar’s name,225 contained “...the complete information provided
to the Duncan Detachment by CSIS” on June 5, 1985.226 Indeed, it
appears from both Henderson’s report and the CSIS report
respecting this interaction, that Henderson only provided
information about Reyat, including his address, employment,
firearms and involvement with a new Sikh temple in Duncan.227
When Kobzey contacted Henderson, he requested that the information provided
by CSIS be classified as secret. Henderson also noted in his report that “If further
219 Exhibit P-101 CAA0193, p. 1. See also Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3797, 3801.
220 Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3801. See also Exhibit P-101 CAA0188, p. 2 and
CAA0193, p. 2.
221 Exhibit P-101 CAA0193, pp. 1-2.
222 Exhibit P-101 CAA0188, p. 2.
223 Exhibit P-101 CAA0193, p. 1. [Emphasis added]
224 Exhibit P-101 CAA0751, p. 1.
225 Exhibit P-101 CAA0193, pp. 1-3.
226 Exhibit P-101 CAA0751, p. 1.
227 See Exhibit P-101 CAA0188, p. 2, CAA0193, pp. 1-3.
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Volume Two Part 1: Pre-Bombing
assistance is required, they will advise.”228 Henderson later explained that his
understanding was that CSIS had requested that the file be classified, and that
the RCMP provide “...no follow-up assistance unless specifically requested to do
so by CSIS.”229
It seems the RCMP interpreted this to mean that they could not investigate
further. D/Comm Bass told the Commission that the RCMP were asked not to do
anything with information about the blast and to treat it as secret.230 However, in
cross-examination by the Attorney General of Canada, Bass conceded that this
did not preclude the force from investigating further and that there was likely
a presumption that this event was associated at the time with the potential
assassination of Rajiv Gandhi. 231
It was not only the RCMP Duncan Detachment that received information from
CSIS about the events of June 4, 1985. A CSIS report on the Duncan Blast, dated
June 5th, notes that the information was shared with RCMP VIP and E Division
NCIS. This report identified Parmar as the target of the surveillance and Surjan
Singh Gill as the person driving Parmar to the ferry terminal and picking him
up on his return. It also referred to the sound heard as “a single, loud explosion”
which was believed to have resulted from the discharge of “a large calibre
handgun.”232
At the time Kobzey and Ayre noted:
It is difficult [at] this point to determine exactly what happened
vis-à-vis the handgun. A number of scenarios come to mind,
none of which are appealing. Given this, BC region is providing
optimum coverage on Parmar and we are bearing in mind the
investigations taking place in the Toronto/Hamilton area.233
Aside from the reference in the CSIS report that the information was sent
to E Division VIP and NCIS, there appears to be no other record to confirm a
direct transfer of information from CSIS to NCIS. It is, however, clear that the
information was transmitted, at least indirectly, to NCIS in early June 1985.
CSIS provided complete details of the Duncan Blast surveillance to Vancouver
Police Department (VPD) members of the Vancouver Integrated Intelligence
Unit (VIIU) in the days following the incident, and a VIIU report was prepared on
June 6, 1985. The report contained a clear indication of Parmar’s identity as the
initial target of the surveillance and provided full details about his participation
in the events surrounding the Duncan Blast, as well as the involvement of Surjan
228
229
230
231
232
Exhibit P-101 CAA0193, p. 2.
Exhibit P-101 CAA0751, p. 1.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11249-11250.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11310.
Exhibit P-101 CAA0188, pp. 1-3. Kobzey noted that the information shared with the RCMP would have
included the surveillance of Parmar and the events observed at the Duncan blast itself: Testimony of
Ray Kobzey, vol. 33, May 24, 2007, p. 3801.
233 Exhibit P-101 CAA0188, p. 3, para. 6.
�Chapter I: What Was Known About the Threat?
Singh Gill in driving him to and from the ferry terminal. It stated that, during the
surveillance in the woods, “...the sound of a high-calibre handgun was heard (1
shot).”234 There was additional information provided by Kobzey, that a meeting
may have been held on June 3, 1985 at the house of Surjan Singh Gill.235 At the
meeting, a number of Sikhs were alleged to be plotting to assassinate Gandhi.236
This led Kobzey to conclude at the time that the meeting might relate to Parmar’s
trip to Duncan the next day and, based on the apparent test-firing, Parmar was
likely involved in buying or selling a weapon.237
The VIIU report provided no indication of any uncertainty surrounding the nature
of the sound heard by the CSIS surveillants, but did provide a clear indication
of the surrounding context and players involved. The report was accessible to
the RCMP E Division NCIS members who worked at VIIU, and the information
was most likely discussed with them in the days after the VPD received it.238 The
report was also received by the Criminal Intelligence Service BC (CISBC) on June
10, 1985 and was then available to the RCMP.239
A week after the Duncan Blast, the US Secret Service (USSS) and the RCMP began
conducting “diffusion interviews”240 of Sikh extremists in advance of the US visit
of PM Rajiv Gandhi to dissuade them from taking any action against him. The
USSS was paying close attention to Canadian Sikhs, due to a recent attempted
assassination in the US of a visiting Indian minister.241 The conspirators had
ties to Sikhs in Southern Ontario and Vancouver.242 Parmar and Gill were likely
included because of information passed to the USSS by CSIS.243 According to
CSIS, Parmar was a high-profile leader with links to the Sikh communities across
Canada. He travelled frequently, and had in the past entered (or attempted to
enter) the US.244
The USSS, together with the RCMP, interviewed both Parmar and Gill on June 11,
1985.245 Prior to that, the VPD members who authored the VIIU report briefed
Cpl. B. Montgomery, Cst. M. Sandhu and the USSS agents on the reported
discharge of a “high calibre handgun” in the Duncan area, and asked them
234
235
236
237
238
239
240
241
242
243
244
245
Exhibit P-101 CAA0200, p. 2.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3808; Exhibit P-101 CAA0200, p. 2.
Exhibit P-101 CAA0200, p. 2.
Exhibit P-101 CAA0200, p. 2, CAB0264, p. 2.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3907; Testimony of Wayne Douglas,
vol. 34, May 28, 2007 pp. 4033-4034. All VPD VIIU files were searchable and fully accessible to the
RCMP members of VIIU: Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3874; Testimony
of Wayne Douglas, vol. 34, May 28, 2007, p. 4030.
Exhibit P-101 CAA0862, p. 1; Remarks by Anil Kapoor, Transcripts, vol. 23, May 4, 2007,
pp. 2222-2223.
Diffusion interviews refers to a procedure by which persons of interest are interviewed by the police
in order to make them aware that they are on the police radar, so to speak, in the hopes that they will
not proceed with whatever action they had planned.
Exhibit P-101 CAA1099, p. 2.
Exhibit P-101 CAC0438, p. 2.
Exhibit P-101 CAB0286, p. 1.
Exhibit P-101 CAB0114, p. 2, CAB0139, p. 2.
Exhibit P-101 CAA0871, p. 1; Remarks by Anil Kapoor, Transcripts, vol. 23, May 4, 2007, p. 2228; Exhibit
P-101 CAA0214.
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not to jeopardize the ongoing CSIS investigation by revealing specifics of the
Duncan incident or other details from the report. The USSS investigation related
to the pending Rajiv Gandhi visit to Washington, DC, and there were questions
for Parmar and Gill relating to that subject as well as to weaponry. The specific
intent was to dissuade Parmar, Gill and their associates from any action against
Gandhi, who appeared to be their target at that time.246
CSIS also intended to brief the RCMP and USSS prior to the diffusion interviews,
but this did not occur.247 However, CSIS did do a post-briefing session on June
13, 1985, where it was determined that “…no information was used that would
place our own sources at risk”.248 Since CSIS had requested that the Duncan Blast
information remain secret, it is clear that the fact that CSIS had witnessed the
Duncan Blast and had surveillance on Parmar was not revealed to Parmar or
Surjan Singh Gill during the diffusion interviews.249
CSIS Secrecy May Have Limited Threat Assessment Information to the
RCMP
This CSIS concern for secrecy might explain why the Duncan Blast surveillance
information, though it related to an incident occurring shortly before the Golden
Temple attack anniversary and the Gandhi visit to the US and, though it involved
a Sikh extremist recognized as highly dangerous,250 was not mentioned in any of
the CSIS threat assessments sent to RCMP HQ VIP Security and Airport Policing
in June 1985.251
The Duncan Blast information was relevant from a threat assessment perspective,
whether it involved firearms or explosives testing. Exercising caution to ensure
the targets of surveillance are not made aware of the operations in order to be
able to continue the surveillance is often necessary. However, if the CSIS policy
of secrecy extended to sheltering the surveillance operations by not revealing
information relevant to protective operations in threat assessments to the
RCMP or other appropriate government agencies, the very purpose of the CSIS
surveillance and operations was defeated.
By the same token, the RCMP itself had the information about the Duncan
surveillance in its possession, through various channels, and had its own threat
assessment process, but could also not include the information in the threat
assessments sent to Airport Policing and VIP Security because it failed to report
it internally.252
246 Exhibit P-101 CAA0876, p. 1; Remarks by Anil Kapoor, Transcripts, vol. 23, May 4, 2007, p. 2226.
247 Exhibit P-101 CAB0290, pp. 1-2; Remarks by Anil Kapoor, Transcripts, vol. 23, May 4, 2007, p. 2228;
Exhibit P-101 CAA0214, p. 1.
248 Exhibit P-101 CAA0214, pp. 1-2; Remarks by Anil Kapoor, Transcripts, vol. 23, May 4, 2007, pp. 22302231.
249 Remarks by Anil Kapoor, Transcripts, vol. 23, May 4, 2007, p. 2231.
250 Exhibit P-101 CAA0110, p. 3.
251 See the following CSIS threat assessments: Exhibit P-101 CAB0249, CAA0190, CAA0199 and CAB0321,
sent respectively on June 4, June 5, June 6 and June 18, 1985.
252 See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
�Chapter I: What Was Known About the Threat?
Even though the information was passed from CSIS to the RCMP, it was not passed
appropriately through the RCMP CSIS liaison process. Sgt. Michael (“Mike”) Roth,
the head of the RCMP Liaison Unit, testified that he was not informed about
the Duncan Blast until after the bombing of Flight 182. He indicated that the
information in the CSIS report about the incident was precisely of the type that
ought to have been received by his Unit. Had Roth received a copy of the report,
he explained, he would have been able to check various RCMP intelligence files
on Parmar, Gill and the BK to enable the RCMP to contextualize the information
and better understand it.253
Bass said he understood why CSIS might not have recognized the significance of
the information about the Duncan Blast because the thinking at that time was
all about a potential assassination attempt on Gandhi. Given the environment
at that time, he generously does not fault CSIS for making the assumptions it
did. 254
Lack of Camera Leaves Mr. X a Mystery
Bass did wonder about what might have happened had Mr. X been properly
identified.
It was the surveillants’ task to identify those persons who interacted with Parmar
– that was part of the intelligence they were supposed to collect. In this case, the
third person was not identified nor photographed, and the mystery as to who
Mr. X was has remained ever since. Bass called this “...a real missed opportunity
here that we’re still chasing 22 years later that where we might have identified
him during that week, because the theory ... is that he helped, right or wrong,
that he helped Reyat build the bombs.” 255
The key question is why no photos were taken by the surveillance team on June
4, 1985. The general purpose of the surveillance was to ascertain “...the associates,
contacts, movements, and activities of Parmar to obtain photographs of Parmar
and all those he comes in contact with.”256 Despite the fact that one of the key
goals was to obtain photos of Parmar and his associates, Jarrett was not given a
camera and was only supplied with a two-way radio.257
MR. GOVER:
Now, I’ve touched on the general purpose or objective of the
surveillance, which included “obtaining photographs of Parmar
and all those he comes in contact with”, and I have quoted
that verbatim. What equipment were you given to allow you to
carry out your duties?
MS. JARRETT: A radio.
MR. GOVER: And in particular, were you given a camera?
253
254
255
256
257
Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5600-5606.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11248.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11248.
Exhibit P-101 CAB0250, p. 1.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2157.
47
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Volume Two Part 1: Pre-Bombing
MS. JARRETT: No, I was not.
MR. GOVER: When we speak, as we will, of your observations of June 4th,
1985, were you able to take any photographs of Mr. Parmar?
MS. JARRETT: No, I was not.
MR. GOVER: Do you recall whether there was a camera in the car that you
were in at times in the course of conducting your surveillance?
MS. JARRETT: I don’t believe there was.258
While the Attorney General rather optimistically speculated that it “…is entirely
possible that the PSU team would have had a camera in one of the cars”259, no
evidence was provided to support this defensive view. Indeed, the record shows
that it was unlikely that any of the surveillance units took photos that day.260
MR. GOVER:
Constable Jarrett, do you have any recollection of taking any
photographs while conducting mobile surveillance with CSIS?
MS. JARRETT: Mobile surveillance?
MR. GOVER: Yes.
MS. JARRETT: Me, personally, I don’t recall that happening.
MR. GOVER: And have you ever seen a photograph taken by any other
member of the physical surveillance unit on June 4, 1985?
MS. JARRETT: No.261
It is plausible, but not understandable, that the lack of cameras was the result of
the resource constraints affecting CSIS at the time.262 Jarrett stated that she did
not see a camera throughout the entire time she conducted mobile surveillance
until she moved to conducting stationary surveillance at the observation post
(OP) in July of 1985. 263 As Jarrett had been conducting mobile surveillance for
CSIS since July 16, 1984,264 this indicates that it was nearly a year before she was
provided with a camera. The lack of cameras for CSIS surveillance work dealing
with potential terrorists cannot adequately be excused by appealing to resource
constraints.
In its Final Submissions, the AGC also relies on a statement by Kobzey, suggesting
that taking photographs would not have been practical.265 However, this
statement is speculation on the part of Kobzey, who was not a member of the
surveillance team and was unaware of the fact that, at least according to the
evidence before the Commission, the team did not possess cameras.
Whatever the cause, the failure to obtain a photo of Mr. X was a significant
missed opportunity, with the result that, to this day, the identity of Mr. X remains
a key mystery in the Air India narrative.
258
259
260
261
262
263
264
265
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2157.
Final Submissions of the Attorney General of Canada, Vol. para. 162.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2210.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2210.
See CSIS-related portions of Section 3.3.3 (Pre-bombing), Failure to Allocate Resources.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2208.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2151-2153.
Testimony of Ray Kobzey, vol 33, May 24, 2007, pp. 3814-3817; Final Submissions of The Attorney
General of Canada, Vol. I., para. 162.
�Chapter I: What Was Known About the Threat?
The Taking of Notes
Aside from the lack of a camera, a second clear deficiency in the surveillance
operation involved the notes taken by the CSIS surveillants. At the time, the
general procedure was for the entire surveillance team to collectively write its
surveillance report at the end of the day.266 Jarrett stated that when she first
started, CSIS surveillants did not make handwritten notes because they were
not expecting to be in court, but shortly before the Duncan Blast they did
start taking notes, albeit without any guidelines or training. In her testimony,
Jarrett stated that the notes should have been more inclusive of the day from
beginning to end rather than of one specific time frame. She acknowledged
that the notes would have been much different had she expected to end up in
a court of law.267
The Phone Number Dialled on the Ferry: Compounding Errors Affect the
Investigation
Further error occurred with regard to the analysis of the phone number which
Jarrett noted Parmar attempting to dial on the ferry. Jarrett recorded the number
746-4918, but was not sure about the last four digits. The number Jarrett thought
she heard was recorded in the surveillance report.
However, a further note in the surveillance report states:
Note: the phone book was checked, it was found that the 746
exchange is for Duncanm [sic], B.C. and a call to the operator
revealed that it would cost $2.90 to call Duncan. Thge [sic]
Duncan phone book shows that there is a Mr. T. M. Singh listed.
As a lawayer [sic] and the phone number is 746-7121. Address:
170 Craig, Duncan, B.C.268
When Ayre and Kobzey received the surveillance report and wrote their report
on the incident for entry into NSR, the information they included simply noted
that they believed the number dialled belonged to a Mr. T. M. Singh. The report
stated:
During the trip to Nanaimo Parmar was noted making a
telephone call to a lawyer in Duncan. (Note: we believe he
called T.M. Singh (604) 746-7121, 110 Craig St. Duncan, BC).269
266 See Exhibit P-101 CAB0250 for the surveillance report written on June 4, 1985.
267 Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2157-2159.
268 Exhibit P-101 CAB0250, pp. 3-4.
269 Exhibit P-101 CAA0188, p. 1.
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Volume Two Part 1: Pre-Bombing
Significantly, later in the report, they note the information given to them by
Henderson, including Inderjit Singh Reyat’s telephone number (604) 746-4918.
270
It seems that nobody noticed that this was exactly the same number noted by Jarrett.
Unfortunately, original surveillance reports at the time were not entered into
NSR. Only the investigator’s report was entered, and in this case it omitted
Reyat’s phone number. This affected the analysts at CSIS HQ and any other CSIS
employees who relied on the report in NSR, since only the investigators in BC
Region would have had access to the original surveillance report. Additionally,
when the RCMP asked for information from CSIS, it was the reports, not the raw
data (e.g., surveillance reports) that were shared. This is a concrete illustration
of the pitfalls that can arise from a reliance on summaries and other modes of
indirect reporting without access to the original raw data.
The consequences of this specific error are largely unknown. Certainly it appears
that some CSIS employees still believe that Parmar called T. M. Singh. Was
valuable time wasted tracking down why Parmar may have called “Mr. Singh”
when in fact no such call took place?
Furthermore, the error shows a clear lack of knowledge about Sikhs in general.
There was only one “Mr. Singh” listed in the phone book, but had the surveillance
team known more about Sikhs, they would have realized that all male Sikhs
go by the name “Singh”, even though they may use other last names. Instead,
the surveillance team relied on their flawed search of the phone book rather
than the direct observations of one of their team members, an error which
was repeated and compounded by the CSIS investigators who received the
surveillance report.
With the most modest of hindsight, had it been known that the number Parmar
called was that of Reyat, the intercept logs could have been checked and the
discovery made that Parmar and Reyat had had previous contact. Parmar had
arranged for other visits to Duncan in the previous month. This information was,
in any event, unavailable to the investigators as the backlog of intercepts meant
that the May tapes were not translated until late June and September 1985 after
the destruction of Air India Flight 182.271
Finally, and most damaging, the phone call information was not known by the
RCMP until March 1986, when Jarrett was interviewed for the expected Duncan
Blast trial:
It will be noted that [redacted] recalls the details of a
telephone number and call made by Parmar from the B.C.
ferry to the telephone number of Inderjit Singh Reyat. This
information was previously unknown to us.272
270 Exhibit P-101 CAB0188, p. 2, para. 4.
271 Exhibit P-101 CAD0184, pp. 40-52.
272 Exhibit P-101 CAF0213.
�Chapter I: What Was Known About the Threat?
Whether or not this information could have been of use to the RCMP’s
investigation throughout the preceding year, it should have been available
to law enforcement, especially when criminal charges were being pursued in
connection with the Duncan Blast and a detailed review of the evidence was to
be expected.
This incident shows the errors that can be made when information is converted
into intelligence summaries, and the dangers that can therefore result
from subsequently relying on such summarized intelligence. That was the
consequence in this case, and it is a practice that more often than not will be
inadequate with disastrous results.
A Case of “Tunnel Vision”
The Duncan Blast is an example of how narrow thinking can affect an
investigation. Prior to the bombing, no one questioned the source of the loud
explosion heard by Lowe and Jarrett. Their interpretation of it as a gunshot, as
reported, was accepted as factual and no critical examination of the facts took
place until after the tragedy.
Jarrett testified that she had little experience with guns and accepted Lowe’s
assumption that it was a gun.273 Kobzey offered similar testimony:
Basically it stemmed from his language. He’s a trained observer.
He’s a man who is a hunter. He’s familiar with weapons. He was
of the opinion, at the time, that it was a weapon. Now, had
he phrased it differently, it would have triggered a different
response. However, we were looking at an assassination
attempt on Mr. Gandhi and the focus was on that kind of an
event and it was just perhaps a case of tunnel vision.274
Burgoyne, the analyst on the Sikh Desk at HQ, was similarly focused:
...over the year, we had seen a lot of Sikh activity with firearms.
We had the Uzi parts being transported out of Canada to
England. I was currently working on the Windsor project,
where they were trying to import Uzis into Canada that same
week ... so Parmar, Reyat, discharging a firearm perhaps with
plans of attacking during genocide week or during the Gandhi
visit to bring distraction to his visit. I think the possibility was
quite real.275
273 Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2200.
274 Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3806.
275 Testimony of Bob Burgoyne, vol. 31, May 22, 2007, p. 3483.
51
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Volume Two Part 1: Pre-Bombing
Though there was information available that bombs were being used in India
and that bomb threats had been made in Canada, the prevailing wisdom at the
time among Canadian authorities was that an assassination was the most likely
course of action for the Sikh extremists. The Duncan Blast, rather than forcing
CSIS to think more broadly, was merely taken as confirmation that they were on
the right track. This tunnel vision and lack of imagination may also have been
reinforced by a lack of information at the local level on current threats, including
those to Air India.
The June 1st Telex and Other Threat Information
The June 1st Telex276 was sent by Air India to its various operations worldwide,
warning of Sikh extremists placing time-delay devices in checked baggage.
It provided a series of security steps that should be taken in order to prevent
such an occurrence. This information was shared with the RCMP at Toronto
Pearson Airport and transmitted to HQ Airport Policing but the information was
never shared with CSIS (see Section 1.2 (Pre-bombing), June 1st Telex).277 If the
information had been shared with CSIS, it would likely have been transmitted to
the regions through the NSR. Kobzey and Ayre would likely have been alerted.
Kobzey commented on the significance of the lack of this information at CSIS
and how that related to the Duncan Blast:
A document like this would have broadened my options
with respect to discussing the need for surveillance with Mr.
Osborne. I believe that if I had seen this, I would have been a
little more emphatic. I would have had two types of threats
that we could deal with ... and it would have given me an
opportunity to ask for extended surveillance for the entire
month, and ... we would have treated that loud noise a lot
differently.278
Perhaps the June 1st Telex would have been enough to jolt CSIS out of its belief
that it was an assassination that was being planned. Or perhaps it would have
been enough to make someone think twice about what was heard in Duncan
prior to the bombing.
Had the RCMP been able to report the information in its possession centrally, it
would have been in a position to at least analyze the Duncan Blast surveillance
information in light of the threats against Air India and the possibility of bombing
raised by the June 1st Telex. Further, the RCMP had additional information which
could have provided useful context for the Duncan Blast surveillance. According
to intelligence received by the Duncan Detachment on June 10, 1985, following
276 Exhibit P-101 CAA0174.
277 Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3809. See also Section 3.6.2 (Pre-bombing), RCMP
Failures in Sharing with CSIS.
278 Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3810-3811.
�Chapter I: What Was Known About the Threat?
a split in the local Sikh temple, extremists started a new temple whose leader, an
associate of Inderjit Singh Reyat, was advocating “...selling homes and property
to buy guns and ‘get strong’, cut off all travel with Air India, cut off all business
with Vancouver, take revenge for any allegations.”279 Back in September 1984, an
RCMP source who provided information about a plot to bomb an Air India plane
(Person 1) had also referred to a man in Duncan who could manufacture “nitro”
for blowing up an Air India plane.280 As the information was not reported to the
RCMP unit in charge of gathering threat information, it was neither transmitted
to CSIS, nor included in an RCMP threat assessment.281 This information would
have provided further indication of the possible links between Reyat and the
Duncan Blast incident, on the one hand, and threats to Air India and the risk of
bombing, on the other hand.
As it was, the agencies did not appreciate the significance of the Duncan Blast
in time and, on June 23, 1985, Air India Flight 182 was blown out of the sky.
Once the plane went down, the critical thinking that should have occurred prior
to the blast began to take place. At that point, the first thing that jumped into
everyone’s mind was the series of events known as the Duncan Blast.
Advance Warning of Trip to Duncan
A number of witnesses throughout the hearings testified that CSIS had advance
warning of Parmar’s trip to Duncan. CSIS agent, Bill Turner, testified that CSIS
had advance notice of Parmar’s trip to Duncan on June 4, 1985, because the
agency was following his moves through wiretaps, which enabled them to see
the test blast. 282 Bass also confirmed in testimony that the wiretaps provided
forewarning of the Duncan Blast.283
Don McLean also testified that Kobzey contacted him in advance of the Duncan
Blast and asked if he was aware of where Parmar had been going and whether
he would be travelling to Vancouver Island.284
This was disputed, however, in a written response filed by Kobzey,285 in which
he stated that he and the PSU units were caught by surprise when Parmar went
to Vancouver Island and, had he known in advance, the PSU would have been
briefed and prepared. Instead, Jarrett was one of the last foot passengers to
board the ferry and Lowe was lucky to get his car on board.
Information from Wiretap Intercepts
The AGC also submits that “...CSIS had no forewarning about the trip to Duncan,
and the Parmar intercept provided no further information in respect of Parmar
279
280
281
282
283
284
285
Exhibit P-101 CAA0276, p. 2 [Emphasis added], CAA0307, p. 3.
Exhibit P-120(c), p. 6 (entry for 521-3). See Section 1.1 (Pre-bombing), November 1984 Plot.
See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8351.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11197.
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4138-4139.
Exhibit P-403: Response of Raymond Kobzey to Evidence of Don McLean, May 29, 2007.
53
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Volume Two Part 1: Pre-Bombing
and Reyat’s activities on that day.”286 The AGC states that the CSIS intercept for
June 4, 1985, was transcribed on June 11, 1985 and that there was nothing
significant reported from any days of the Parmar intercepts on or around the
time of the test blast.287
However, the wiretaps reveal ongoing contact between Reyat and Parmar
throughout the month of May, including plans for two other trips to Duncan
prior to the Duncan Blast trip. Had the tapes been transcribed in a timely fashion,
CSIS would have had much more information, such as:
• On May 6, 1985 (translated/reported on September 11, 1985)288 at
9:35 PM, CSIS intercepted a phone call between Parmar and Reyat.
Parmar told Reyat that Surjan Singh Gill would be coming to see
him tomorrow. Reyat was to meet Gill at the ferry terminal between
4:00 and 5:00 PM. Parmar also advised Reyat to come alone.289
• On May 7, 1985 (translated/reported on September 11, 1985)290 at
5:13 AM, Parmar called to inform Reyat that the ferry would be
docking at 4:30 PM. Later the same day, at 8:17 AM, Reyat spoke to
Parmar’s daughter who informed him that Talwinder was asleep, at
which point Reyat asked for Surjan Singh Gill’s telephone
number.291 At 8:54 AM another call was intercepted, this time
from Gill (presumably calling from Parmar’s house) to Reyat’s father.
During the conversation Gill requests that Reyat’s bows and arrows
be delivered to Gill as he was going to go to Duncan and needed to
take them along.292
• On May 19, 1985 (translated/reported June 21, 1985)293 at 6:42
PM, Reyat advised Parmar that their plan of coming to Vancouver
had changed. Parmar said that they would instead go to Duncan.
Reyat gave his phone number: “746-4918”.294 At 7:42 PM a second
call between Reyat and Parmar was intercepted in which Parmar
advised that he and Gill would meet Reyat in Nanaimo at 10:30
PM.295
286
287
288
289
290
291
292
293
294
295
Final Submissions of the Attorney General of Canada, Vol. I, para. 162.
Final Submissions of the Attorney General of Canada, Vol. I, p. 73, Footnote 193.
Exhibit P-101 CAD0013, pp. 150, 154.
Exhibit P-101 CAD0180, pp. 52-58.
Exhibit P-101 CAD0184, p. 44.
Exhibit P-101 CAD0180, pp. 59-60.
Exhibit P-101 CAD0180, pp. 61-64.
Exhibit P-101 CAD0159, p. 40.
Exhibit P-101 CAD0013, p. 184.
Exhibit P-101 CAD0180, p. 74.
�Chapter I: What Was Known About the Threat?
• On May 24, 1985 (translated/reported June 20, 1985)296 at 6:30 AM,
Reyat spoke to Surinder Kaur Parmar. He requested that Parmar call
him back soon.297
• On May 31, 1985 (translated/reported either June 14 or June 17,
1985)298 at 7:25 PM CSIS recorded another conversation between
Parmar and Reyat in which Reyat asked Parmar to call him the next
day at work.299
More timely translation and reporting of the wiretap intercepts would have
given CSIS a good idea about whom Parmar was going to visit in Duncan.300
Second, the CSIS investigators would have been aware of Reyat’s phone number
and would not have made the error they did make in thinking a lawyer named
Singh was being called. Finally, knowing this was a somewhat frequent contact
of Parmar, CSIS may have returned to Duncan the week following the blast, if
not to investigate the test site, at least to photograph Reyat and Mr. X, who was
staying with him.
Post-Bombing Investigation of the Duncan Blast
While CSIS was not able to appreciate the significance of the Duncan Blast
at the time, after the Air India bombing it was CSIS, not the RCMP, which first
realized the potential significance of the events observed on June 4th. Kobzey
explained:
One of the first things we discussed amongst ourselves was
the blast noise that was heard; the loud noise, the report,
the explosion, however it’s been phrased here. And it was
recommended by us investigators and our supervisors – unit
heads - that the Mounted Police should endeavour to get to
that site as soon as possible to look for any evidence of residue
or, material indicative of an explosion having taken place
there.301
An analyst in the Toronto Region who had been going over the files also came
to the same conclusion in a memo dated June 27, 1985:
296
297
298
299
300
Exhibit P-101 CAD0159, p. 45.
Exhibit P-101 CAD0180, p. 78.
Exhibit P-101 CAD0159, p. 51.
Exhibit P-101 CAD0180, p. 83.
Exhibit P-403, Response of Raymond Kobzey to Evidence of Don McLean, May 29, 2007, indicating that
Kobzey first became aware of the existence of Reyat on June 4, 1985.
301 Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3812-3813.
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Volume Two Part 1: Pre-Bombing
Although Reyat has a .357 Mag S&W revolver registered to his
name, it has not been established if the explosion heard by the
BCR PSU member was a large calibre handgun or a blasting
cap which would sound similar. There exists a probability that
the explosion may well have been a blasting cap on a timing
device being tested by Parmar and Reyat, hence the fast drive
to the country, Jaswinder returning to the vehicle, and the
single explosion. It would appear more probable that if Reyat
and Parmar were testing a firearm that they would fire multiple
rounds and not a single round or explosion as heard.302
That same day, CSIS recommended to the RCMP that they visit the Duncan Blast
site with one of the CSIS surveillants. The RCMP Explosives Detection Unit (EDU)
was requested to conduct a search303 and did so on June 28, 1985, with the CSIS
surveillant, but nothing was found.304 It was not until a later visit on July 2, 1985
that the RCMP first uncovered objects of interest:
Search resumed in Duncan Area. Robertson located one paper
tape bundle wrapper, commonly used to secure a blasting
cap, leg wires, ident., attended and photographed and
fingerprinted item. S/CST Townsend locates one aluminium foil
shunt. Both items indicate that a blasting cap was handled at
this location. Both items discovered in the exact location of the
suspect’s vehicle.305
On July 4, 1985, the RCMP returned to the site and located “...one blasting cap
shunt, approximately 7 m north, where the bundle wrapper was located.”306
The RCMP concluded that the paper tape bundle wrapper and the two “blasting
cap wire” shunts found307 pointed to the handling of “...at least two electric
blasting caps ... where suspect’s automobile was reported to have parked.” There
was a possibility, however, that while “...coincidently, suspects may have caused
a small explosion, perhaps to test a timer”, and then “...removed the evidence,
i.e. blasting cap, leg wires, etc”, that the explosion would not have been “...of
the magnitude reported” by the CSIS surveillants. The RCMP speculated that
the explosion described by the surveillants “...could have been from a blasting
operation in the area.”308
302 Exhibit P-101 CAB0363, p. 5; Remarks by Anil Kapoor, Transcripts, vol. 23, May 4, 2007, pp. 2235-2236.
303 Exhibit P-101 CAA0276, p. 2; Remarks by Anil Kapoor, Transcripts, vol. 23, May 4, 2007, p. 2238.
304 Exhibit P-101 CAA0261, p. 5, para. 41, CAA0276, p. 2, CAB0371, p. 1; Remarks by Anil Kapoor,
Transcripts, vol. 23, May 4, 2007, pp. 2237-2238.
305 Exhibit P-101 CAA0276, p. 3; Remarks by Anil Kapoor, Transcripts, vol. 23, May 4, 2007, p. 2238.
306 Exhibit P-101 CAA0276, p. 3; Remarks by Anil Kapoor, Transcripts, vol. 23, May 4, 2007, p. 2238.
307 See Exhibit P-101 CAA0324(i), p. 5, para. 19.
308 Exhibit P-101 CAA0276, p. 3; Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5699-5700.
�Chapter I: What Was Known About the Threat?
Court Proceedings Related to the Duncan Blast
In November 1985, charges were laid against Parmar and Reyat in relation to
the Duncan Blast events.309 Related to those charges, on March 17, 1986, nearly
a year after the bombing, Jarrett and Lowe visited the Duncan Blast test site
with an explosives expert and Jim Jardine (the BC Crown prosecutor for the
Duncan Blast trial and Reyat’s Narita bombing trial) to conduct a sound line up
test which would allow them to identify the sound actually heard during the
Duncan Blast.310 At the test, both Lowe and Jarrett identified the sound they
heard as similar to that of the detonation of a blasting cap and one dynamite
stick hanging from a tree.311
In the end, the blasting cap remnants found by the RCMP in the days following the
bombing were of little assistance to the Crown in making its case against either
Parmar or Reyat.312 Jardine indicated from the beginning that the testimony
of the CSIS surveillants would be necessary to go ahead with the prosecution,
regardless of the use which could be made of the physical evidence.313
Negotiations with CSIS were necessary to obtain authorization for the members
of the surveillance team to be interviewed by the RCMP and to testify in court.314
CSIS remained involved throughout the process in approving the testimony and
disclosure of will-says for individual members of the surveillance teams.315
The physical evidence uncovered by the RCMP in July 1985 was mentioned in
an “Information” to obtain a search warrant for the residence of Reyat.316 This
search, conducted four months later on November 5, 1985, discovered some of
the physical evidence ultimately used to convict Reyat of manslaughter in the
1991 Narita bombing trial. When he was arrested during the November search,
Reyat admitted to setting off an explosive device with Parmar on the day of
the Duncan Blast, explaining that Parmar wished to “...blow up something in
India”, though Reyat denied that dynamite was detonated, claiming it was only
gunpowder which was set off.317
In the end, Jardine was of the view that, even with the testimony of the CSIS
surveillants, there was no evidence admissible against Parmar to show that
he was in physical possession of explosives on the day of the Duncan Blast or
to show his purpose in jointly possessing explosives with Reyat, since Reyat’s
statement to police could not be used against Parmar.318 At trial, no evidence
was called to support the one count of possession of explosives against Parmar
309
310
311
312
313
314
315
316
317
318
See Exhibit P-202: Information sworn on November 7, 1985.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5695-5696.
Exhibit P-101 CAB0669, pp. 4-5.
See Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5699-5700.
Exhibit P-101 CAA0390, CAF0187.
See Exhibit P-101 CAA0375, CAA0390, p. 3, CAA0391, pp. 1-2, CAA0392, CAA0393.
Exhibit P-101 CAA0417, pp. 1-3, CAA0425(i), pp. 1-3, CAB0669(i), pp. 1-8, CAF0215, pp. 1-2.
Exhibit P-201, p. 23, para. 24.
R. v. Reyat, 1991 CanLII 1371 (BC S.C.), at 4-9, 11.
Exhibit P-101 CAF0168, p. 4.
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in connection with the Duncan Blast, and the charge was therefore dismissed.319
Reyat pled guilty to two of the four counts against him: possession of explosives
and possession of an unregistered weapon. He was ordered to pay a $2000
fine.320
In the Narita bombing trial, Justice Raymond Paris found that he could not be
certain, on the basis of the evidence, that it was dynamite which caused the
noise heard during the Duncan Blast surveillance. He concluded, however,
that Reyat’s admission that he was experimenting with explosive devices for
some illicit purpose was relevant evidence of conduct consistent with “...that
of a person interested in the fabrication of a bomb or explosive device”. This
evidence was taken into account, along with the forensic evidence, to reach
the final conclusion that Reyat fabricated or aided others to fabricate the bomb
which exploded in Narita.321
Neither CSIS nor the RCMP uncovered physical evidence of a blast in Duncan
prior to the Air India bombing. The items which were finally recovered at the
Duncan site by the RCMP after the plane went down could not tie the key
suspects to the Narita and/or Air India bombs, though they were still used to
further the police investigation.
The RCMP only officially requested permission to interview the CSIS surveillance
team in December 1985,322 though it is not known what other discussions took
place between the agencies on that issue. By the time the surveillants were
interviewed and participated in the sound identification test in March 1986,323
their memories of the event were undoubtedly not as fresh, and, without
detailed notes, it would be even more difficult for them to recall the events.
Observations
• The Duncan Blast was an intelligence failure that reinforced CSIS’s
misdirected actions, which arose from the belief that the threat
from radical Sikhs was the possibility of an assassination attempt.
• A continuation of the CSIS operation on Vancouver Island could
have yielded much more information on the person believed
to be the son of Parmar. Had the surveillants continued their
investigation on Vancouver Island, they would have had to come
to the conclusion that the person they were following (Mr. X) was
not Jaswinder Parmar.
319 Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5707-5708. See also Exhibit P-101
CAA0421, where the RCMP indicated its agreement with the prosecution’s decision not to call evidence
against Parmar.
320 Exhibit P-101 CAF0168, p. 7; Testimony of James Jardine, vol. 47, September 18, 2007, p. 5686; Exhibit
P-102; Dossier 2, “Terrorisn, Intelligence and Law Enforcement – Canada’s Response to Sikh Terrorism”, p.
11.
321 R. v. Reyat, 1991 CanLII 1371 (BC S.C.) at 9-15.
322 Exhibit P-101 CAA0391, pp. 1-2.
323 Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5696-5697.
�Chapter I: What Was Known About the Threat?
• While debate is ongoing as to whether CSIS passed on enough
information for the significance of the Duncan Blast to be
recognized by the various enforcement agencies, it is clear
that CSIS itself did not recognize the significance of the Duncan
Blast, especially after the assumption was made that it was a gun
that had been discharged. It is clear that, though CSIS was able to
witness the Duncan Blast, the impact of that observation was lost
on the intelligence service.
• Though it was clearly relevant, CSIS did not include information
about the Duncan Blast in any of the threat assessments sent to
Protective Policing. The RCMP was aware of the information
through various channels but did not include it in its threat
assessments. As a result, Protective Policing could not put any
security measures in place to respond to the threat.
• Had information about the June 1st Telex been shared with CSIS,
Kobzey and Ayre would have been alerted to the threat of
bombing, as it had to do with Sikh extremism. Had they seen the
document and been aware of such potential, there would have
been no justification to focus exclusively on the gun/assassination
theory.
• The Duncan Blast incident shows the potential for errors when
information is converted into intelligence summaries, as well as the
dangers that can result from reliance by law enforcement agencies
on summaries without direct access to raw data.
• An analysis of the wiretap evidence shows that CSIS did not have
advance warning of Parmar’s trip to Duncan because there was
a significant backlog in the translation of the tapes. The impact of
delayed availability of the wiretap information was significant and
its detrimental consequences are obvious.
• Had the intercepts been translated and reported promptly or even
within a few days, CSIS investigators would have been aware of
Reyat’s existence before June 4, 1985.
• The agencies did not appreciate the significance of the Duncan
Blast in time and the critical thinking that should have occurred
prior to the blast only began to take place after the Air India
bombing tragedy.
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• CSIS struggled with a lack of appropriate surveillance equipment,
a lack of timely intercept product, a lack of available information
suggesting that Air India was being targeted, and a slew of
erroneous assumptions made by both the surveillance team
and the investigators. The inability to look beyond the physical
clues resulted in a failure to recognize the seriousness of what the
agents witnessed, and was part of the lost opportunity to prevent
the Air India disaster.
1.5 Mr. X
On June 4, 1985, CSIS surveillants followed Parmar, Reyat and an unidentified
male to Duncan, BC where they witnessed what has now become known as
the Duncan Blast.324 At the time of the surveillance, CSIS believed that the
unidentified youth was Parmar’s eldest son, Jaswinder Parmar. It was many
months before both the RCMP and CSIS concluded that the third person they
had seen was not Jaswinder. Better attention to detail, more effective internal
and external communication and proper analysis should have enabled the
authorities to take advantage of the apparently numerous opportunities during
the days following the Duncan Blast to identify the third person correctly.
Instead, the identity of the third person, dubbed “Mr. X”,325 has never been
determined. It has been one of the most important areas of ongoing investigation
for more than 20 years. As noted in the Duncan Blast episode, senior RCMP
officers continue to wonder what the result might have been if there had been a
proper identification of the people and the event during the week following the
Duncan Blast, and properly regard this as a “real missed opportunity” because
the belief is that this person helped Reyat construct the bombs.326
The Initial Erroneous Assumption
It is unknown who first identified Mr. X as Jaswinder Parmar. Lynne Jarrett
believed it was the son on the basis of what she had been told. Ray Kobzey,
in his oral testimony, stated that a surveillant made the initial assumption. He
confirmed that the request for surveillance included authority to take photos of
Parmar and whomever he contacted. The surveillance began with an incorrect
assumption about the identity of one of Parmar’s associates and the surveillants
did not have a camera. 327
The Description of Mr. X
On June 4th, the surveillance team recorded the following description of the
unidentified youth:
324 See Section 1.4 (Pre-bombing), Duncan Blast.
325 No one knows who originally dubbed the unidentified person “Mr. X”, but it is a name widely used by
the RCMP from very early on and indeed, also used by Justice Josephson in the Bagri and Malik trial, in
the books written about the Air India disaster and at the Air India Inquiry.
326 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11247-11248.
327 Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3814.
�Chapter I: What Was Known About the Threat?
The son is at Parmar’s side ... still carrying the Adidas bag and
briefcase.... Parmar’s son wears black pin striped slacks, a white
jacket with a stripe down one arm, a rust coloured turban and
a curved knife by his side.328
In her testimony, Jarrett confirmed the above description of Mr. X, noting as well
that he had a beard that was “…very short, almost like peach fuzz, like it wasn’t
fully grown.” Her description was consistent with the descriptions provided by
other members of the surveillance team. The question was not one of differing
opinions regarding Mr. X’s appearance, but of misidentification of who he was
in the first place.
Discovering that Mr. X was not Parmar’s Son Jaswinder
The background to this episode can be found in the Duncan Blast event. Jarrett
and Lowe took the ferry from Vancouver to Nanaimo with Parmar and Mr. X
and followed the targets to a wooded area where the surveillants heard a loud
explosion. No photographs of Mr. X were taken.
In the weeks following the bombing of Air India Flight 182, RCMP investigators
went back to the blast site with Lowe to search for evidence of explosives. It took
several months before the RCMP had access to other members of the Duncan
surveillance team.
Jarrett, the surveillant who got closest to Mr. X, had applied to “bridge back” to
the RCMP prior to the Duncan Blast through a process, agreed upon when CSIS
was created, which gave CSIS employees two years to apply for a transfer back
to the RCMP if they so chose.329 After the bombing of Flight 182, knowing that
she would soon transfer back to a surveillance unit within the RCMP, Jarrett was
moved from mobile surveillance, her function during the events of the Duncan
Blast, to the observation post (OP) where static surveillance on Parmar’s house
took place. She stayed there from June 23rd until her transfer on August 16,
1985.
At the OP, Jarrett had ample opportunity to observe the comings and goings of
the Parmar family, including two young men. She began to question whether
she had misidentified the young man who went to Vancouver Island on June 4,
1985:
I thought perhaps there was more than just the two sons in
the residence, because by looking at them, I knew – or I was
suspecting that it wasn’t who had gone to the Island on June
the 4th. But initially, I thought I was misidentifying the people. I
didn’t realize that it was the two sons that I was actually seeing.
328 Exhibit P-101 CAB0250, p. 3.
329 The following section is based on the Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2187-2189.
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Notwithstanding Jarrett’s assumptions, documentary evidence shows that it
is likely that Jaswinder Parmar left Vancouver for a summer job in Ontario on
June 22, 1985 and did not return again until sometime between August 16 and
31, 1985.330 That would mean that Jarrett never did have the opportunity to
view him from the OP. Indeed, other CSIS surveillants admitted that they had
difficulty distinguishing the two sons and often confused them.331 Whomever
Jarett saw going in and out of the Parmar residence, whether it was a few young
men as she believed, or perhaps, as seems likely, only one, her initial conclusion
was correct: she never did see the person identified at the Duncan Blast as
Jaswinder. Nonetheless, Jarrett did not at that time communicate, either to CSIS
or to the RCMP, her correct concern that the man she saw in Duncan was not
Parmar’s son.
Following Jarrett’s return to the RCMP, she was again deployed in surveillance
of Sikh targets. Her focus continued to be on Sikh extremism, particularly in
relation to the Air India bombing. 332 Within the RCMP, except in the surveillance
unit, there was no knowledge of Jarrett’s previous CSIS experience in the Sikh
extremism context because that information was treated as confidential.
Incredibly, the RCMP Air India Task Force did not know that their new surveillant
had been one of the two CSIS employees who witnessed the Duncan Blast and
a person who could identify Mr. X.
In November 1985, while conducting surveillance for the RCMP, Jarrett came
close to Parmar’s two sons while following Jaswinder inside the Vancouver
International Airport. At that moment, she realized without question that
neither son had accompanied Parmar to the Duncan Blast and that the youth
who was there was an unidentified person. Jarrett testified to these events at
the Inquiry. At the airport, when she walked between Jaswinder Parmar and his
brother, it struck her “...at that moment I knew that it was not Jaswinder that was
in Duncan on June the 4th.”
Following her discovery, Jarrett returned to the vehicle immediately and
informed the team leader and Const. Brian MacDonald of the investigational
unit about what she had observed and offered her conclusion that Parmar’s son
was not in Duncan when the explosion took place. MacDonald made a phone
call immediately.
MacDonald told Jarrett that CSIS was still maintaining that it was the son who
went there, but that the RCMP had already checked the school records, and
knew that Jaswinder was in school.333
Jarrett made a formal statement to the RCMP in December and helped create a
composite drawing of the young man who accompanied Parmar on the ferry to
Duncan, on June 4, 1985.
330
331
332
333
Exhibit P-101 CAF0343(i): Watt MacKay Report, pp. 18, 76.
Exhibit P-101 CAF0343(i): Watt MacKay Report, p. 76.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2188.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2188-2191.
�Chapter I: What Was Known About the Threat?
In December 1985, the RCMP finally interviewed other members of the
surveillance team who had worked on June 4, 1985 and showed them photos
of Parmar’s sons. At least one other surveillant confirmed that neither son was
Mr. X.334
Delay to Interview Surveillance Team
It took five or six months following the bombing before the RCMP showed
photos to the surveillance team in order to identify Mr. X. Only a few days after
the bombing, the RCMP became aware of Lowe, who had accompanied the
Explosives Detection Unit that had searched the Duncan Blast site shortly after
the bombing. The Force was not aware of the identity of other members of the
CSIS surveillance team for many months.
The RCMP needed CSIS consent to interview the surveillants. The Force belatedly
made an official request from CSIS for this permission on December 5, 1985.335
Following discussions between RCMP and CSIS Headquarters, CSIS then quickly
authorized the interviews and instructed its BC Region accordingly.336
Some time before Jarrett made her comments on November 18th, the RCMP
had conducted its own checks of school records and had concluded that the
third person at the Duncan Blast was not Parmar’s son.337 The evidence provides
no indication of the time when the RCMP conducted these checks, but it was
before Jarrett observed Jaswinder Parmar on November 18th, as MacDonald
mentioned the school records to her at that time. Further, the RCMP eventually
did obtain the CSIS surveillance information, which indicated that Parmar’s
two sons were dropped off at school on the day following the test blast, as was
mentioned in the Watt MacKay Report, but there is no indication as to when the
RCMP received the information.338
After this information was uncovered, CSIS was approached and continued to
deny stubbornly that there had been a mistake in stating that it was Parmar’s
son who was present.339 At that time, the RCMP had no indication that the
members of the CSIS surveillance team had any uncertainty about the identity
of Jaswinder Parmar as the person present on June 4th. In fact, CSIS remained
“adamant” that the person was Jaswinder until one of the surveillants was shown
a picture by the RCMP on December 19, 1985.340
It is not known exactly why the RCMP waited until December 1985 to make
a formal request for permission to interview the surveillants after it found out
334
335
336
337
338
339
Exhibit P-101 CAF0343(i): Watt MacKay Report, p. 75.
Exhibit P-101 CAA0391, pp. 1-2.
Exhibit P-101 CAA0390, pp. 3-4, CAA0392, CAA0393.
Exhibit P-101 CAB0803, p. 5. See also Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2188-2191.
Exhibit P-101 CAF0343(i): Watt MacKay Report, p. 83.
See Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2188-2191, about her conversation with Cst.
MacDonald.
340 Exhibit P-101 CAF0343(i): Watt MacKay Report, p. 75.
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that the identification of Jaswinder may have been mistaken. It is possible that
the Force simply assumed that CSIS, once advised of the RCMP school records
checks, would consult with its own employees prior to denying that the third
person was not Jaswinder. Whatever the case, too much time elapsed before
the surveillants were interviewed and shown pictures.
CSIS Failures
CSIS failed to engage in reasonable follow up. CSIS did not question its Physical
Surveillance Unit (PSU) team in light of the RCMP’s concerns nor, it seems, did
it review its own records. Certain pieces of CSIS information should have called
into question the identification of Mr. X as Jaswinder Parmar. For example, while
observing Parmar on the ferry, Jarrett overheard Parmar attempting to make a
collect call charged to his home phone number with Mr. X standing at his side.
Jarrett overheard Parmar tell the operator that:
He was the owner of the house, the phone was in his name,
and that he was Talvinder [sic] Singh Parmar. His children were
at school and his wife was not at home.341 [Emphasis added.]
While it is possible that Parmar was not being truthful, what purpose would that
have served? The surveillants might have considered this information to be a
clue that the youth at his side was not his son.
Nor do the CSIS errors end here. At the end of the day on June 4th, CSIS continued
surveillance on Parmar back to Vancouver and noted that “Jaswinder” stayed
behind on Vancouver Island. A number of the CSIS operatives, including Lowe
and Jarrett, did not make it back to Vancouver, but rather stayed on the Island.
They initially made arrangements to continue following “Jaswinder Singh” the
following day, June 5th. For reasons that have not been explained, CSIS cancelled
these arrangements on the morning of June 5th.342 That same morning, CSIS
surveillants in Vancouver, still following Parmar, noted that his two sons were
dropped off at Burnaby North High School at 8:37 AM.
Someone in CSIS ought to have noticed that their own surveillance placed
“Jaswinder” in two places at once – on Vancouver Island and at school in
Vancouver! As the RCMP correctly stated in an internal review, “...[this] should
have convinced CSIS that Mr. X could not have been one of Parmar’s sons.”343
It is also clear that the CSIS PSU failed in its overall task which was“...to ascertain the
associates, contacts, movement and activities of Parmar, to obtain photographs
of Parmar and all those he comes in contact with.”344 Indeed, the record clearly
demonstrates CSIS’s inability to accurately distinguish between Parmar’s sons.
341
342
343
344
Exhibit P-101 CAB0250, p. 3.
Exhibit P-101 CAA1089(i), p. 6.
Exhibit P-101 CAF0343(i): Watt MacKay Report, p. 83.
Exhibit P-101 CAB209.
�Chapter I: What Was Known About the Threat?
The same RCMP 1989 internal review notes as follows:
NOTE: on 85-06-23 Parmar is under surveillance with Surjit
Singh Gill (and a priest from India, Bab Joginder Singh, Jetheda
of Nanded, his wife, Sadhu Singh, his assistant, Joginder
Singh, and his wife – see E Tip 2309). Reference is made to
both Parmar’s youngest and oldest son, with the oldest son
observed with Parmar at Gill’s residence. Jaswinder left for
Toronto for the summer the previous day....
On 85-07-10 CSIS surveillance is still referring to Parmar’s older
son, although he is in Toronto, and refer to the younger son the
next day....
ANALYST’S COMMENTS:
Previous E2255 information indicated that Jaswinder Parmar
was going to Toronto to work for the summer. It was then
reasonable to assume that Jaswinder Parmar left Vancouver
for Toronto on 85-06-22. [Redacted] of CSIS admits that they
were mixing up Narinder and Jaswinder Parmar when making
identification and with that in mind that is probably the case
on 85-06-23 and 85-07-10. Although the description of the
son at Vicki Manor is brief, it appears to match that of Narinder
noted earlier in the day.345
Observations (See also Section 1.4 (Pre-bombing), Duncan Blast)
• CSIS failed to identify accurately persons coming into contact with
Parmar, to the point that its surveillance teams were not even able
to distinguish family members whom they would presumably have
been seeing daily, if not more frequently.
• CSIS did not provide proper equipment to enable its surveillance
teams to take photos and hence to be able to identify the persons
at the Duncan Blast.
• CSIS did not analyze the information provided by the surveillants
on both June 4th and June 5th, which would have raised questions
as to the misidentification of Mr. X as Jaswinder Parmar. CSIS
also did not re-examine its information in light of RCMP questions
regarding the identification of Mr. X and Jaswinder Parmar.
345 Exhibit P-101 CAF0343(i): Watt MacKay Report, p. 76.
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• Except for Larry Lowe, the RCMP did not have access, and may not
have sought access, to the members of the surveillance team who
went to Duncan on June 4th until many months later. This lack of
access proved to be crucial in misidentifying Mr. X.
• CSIS did not allow its surveillants who bridged back to the RCMP to
inform the RCMP of their past experience as it related to the Air
India investigation. As a result, Lynne Jarrett’s surveillance
experience within the Sikh community and her involvement in the
Duncan incident were unknown beyond her surveillance unit at the
RCMP. Even the RCMP Air India Task Force was unaware that she had
witnessed the Duncan Blast and could possibly identify Mr. X.
• The PSU surveillance team was only interviewed by the RCMP five
or six months after the bombing. The time that had elapsed before
the surveillants were interviewed and shown pictures likely
hindered their ability to remember the events clearly and, in
particular, to recall the physical appearance of Mr. X.
• CSIS and the RCMP did not communicate effectively in order to
clarify ongoing confusion regarding the identity of Mr. X.
1.6 Khurana Information
Advance Indications of an Extremist Attack: The Benefits of Hindsight
When former Vancouver Police Department (VPD) Constable Don McLean found
out about the Air India bombing on June 23, 1985, he immediately thought
about information he had received approximately two weeks earlier from one
of his sources in the Vancouver Sikh community, Mr. Sarbjit Khurana. At the
time, Khurana had agreed to set up and allow the VPD to record a meeting with
Sikh extremists who were attempting to intimidate him. During the debriefing
immediately after the meeting, he advised that a Sikh extremist leader had stated
that “...something would be done in two weeks”, in response to a complaint by
another extremist about the lack of attacks against Indian officials. Now aware
of the bombing, McLean understood that the event that was referred to in the
“wait two weeks” comment was, in fact, the bombing of Air India Flight 182. He
realized “that’s what they meant” and regretted that he could not have found
out more information earlier, largely because he was unaware that numerous
threats against Air India existed at the time.346
When RCMP Sgt. Warren Sweeney, head of the terrorist desk at the Headquarters
NCIB NSE section, was first advised of the Khurana information, he also believed
that it could be connected to the Air India bombing, since the extremists were
discussing plans that were to be put into action within the time frame of the actual
346 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1985, 2017-2018.
�Chapter I: What Was Known About the Threat?
bombing.347 The CSIS Toronto Region was also of the view that the information
could be connected to the bombing, as it indicated in internal correspondence
a few days after the bombing that HQ’s attention should be drawn to a previous
message from the BC Region reporting the Khurana information.348
McLean subsequently learned that one of the participants in the Khurana
meeting had made statements after the bombing indicating that he had known
about the crash in advance and that “...he knew it was about to be blown up.”349
McLean then concluded that there was a clear connection between the Air India
bombing and the “wait two weeks” statement.350
The Taped Khurana Meeting
In 1984, McLean met Khurana in the course of his work with the VPD’s IndoCanadian Liaison Team (ICLT). Khurana was a Vancouver businessman, a turbaned
Sikh who did not support the creation of a separate Sikh state of Khalistan
and was opposed to any violence.351 Khurana had dealings with the ICLT as a
member of the Business Association for the Punjabi market.352 He then began
to provide information to the ICLT regularly about Sikh extremist organizations
and their relationship with the community, as well as about political debates in
the Sikh temples.353
Khurana was often the victim of threats and intimidation.354 He became a
complainant in a criminal matter355 as a result of a group of Sikhs coming into
his business and threatening him with a weapon because of his views about
Sikh extremism and about the Ross Street Sikh temple.356 Those charged were
associated with the International Sikh Youth Federation (ISYF), a Sikh extremist
organization with a significant membership which was heavily involved in
acts of violence and intimidation in the community.357 After the incident, ISYF
members attempted on numerous occasions to pressure Khurana to drop his
criminal complaint.358 On June 9, 1985, he was approached by Manmohan Singh,
the spokesperson for the ISYF, to set up a meeting to discuss the charges.359
Khurana advised McLean of the proposed meeting.360 Since the purpose of the
meeting was to attempt to convince Khurana to drop criminal charges, the ICLT
347
348
349
350
351
352
353
354
355
356
357
358
359
360
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2572, 2641-2642.
Exhibit P-101 CAB0363, pp. 5-6.
Exhibit P-101 CAA1108, p. 2; Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2018-2019.
Testimony of Don McLean, vol. 21, May 1, 2007, p. 2031.
Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1985, 1990.
Testimony of Don McLean, vol. 21, May 1, 2007, p. 1988. The ICLT liaised with business leaders in the
Vancouver Sikh community as part of its community policing approach: Testimony of Don McLean, vol.
21, May 1, 2007, vol 21, p. 2023.
Testimony of Don McLean, vol. 21, May 1, 2007, p. 1989.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3910.
Testimony of Don McLean, vol. 21, May 1, 2007, p. 1989; Testimony of Axel Hovbrender, vol. 33, May 24,
2007, p. 3910.
Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1989-1990.
Testimony of Don McLean, vol. 35, May 29, 2007, p. 4129; Testimony of Axel Hovbrender, vol. 33, May
24, 2007, p. 3887.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3911.
Exhibit P-101 CAC0487, p. 6; Testimony of Don McLean, vol. 21, May 1, 2007, p. 1989.
Testimony of Don McLean, vol. 21, May 1, 2007, p. 1989.
67
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and VPD members of the Vancouver Integrated Intelligence Unit (VIIU) liaised
with the VPD criminal enforcement section in order to investigate a potential
obstruction of justice charge.361 Khurana agreed to set up the meeting and
have the VPD record it to obtain evidence of any interference with the criminal
investigation into his original complaint.362
Khurana provided a one-party consent for the monitoring and recording of the
meeting to VPD Detective Ken McKinnon, the officer in charge of the criminal
investigation into the original charges.363 The meeting was to be both recorded
and live-monitored, which meant that VPD officers would be listening in on the
meeting and translating it as it was happening.364
ICLT members were participating in the operation to obtain information about
the projected actions of the Sikh extremists who would be attending, especially
the ISYF members. This was the first time the VPD had had the opportunity to
intercept the actual conversations of Sikh extremists and in some ways it was
viewed as the VPD’s “first look inside” a Sikh extremist organization.365
On the evening of June 12, 1985, the meeting took place at the Khurana
residence. Microphones had been installed and McKinnon and Cst. Jas Ram
were present in a secure room at the rear of the residence listening to the
meeting as it was being recorded. McLean and his ICLT partner were in their
vehicle, watching and identifying those arriving at the residence. VPD VIIU
members were also present in the area. The meeting lasted over one hour and
thirty minutes.366 Seventeen ISYF members participated, including suspected
terrorists Pushpinder Singh and Lakbir Singh Brar,367 ISYF “enforcer” Harjit Atwal,
ISYF spokesperson Manmohan Singh, as well as a “major orchestrator” for the
ISYF, Sukdev Sangha.368
Once it was ascertained that all participants had left, ICLT members and some of
their VPD colleagues went into the residence and held an immediate debriefing
session with Khurana to find out what had taken place during the meeting.369
Here the ICLT learned about the activities and plans of the ISYF in June 1985.
361 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3911.
362 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1991-1992; Testimony of Axel Hovbrender, vol. 33,
May 24, 2007, p. 3911.
363 Testimony of Don McLean, vol. 21, May 1, 2007, p. 1992; Exhibit P-101 CAC0487, p. 6.
364 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1993, 2024.
365 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1990, 1996.
366 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1996-1999.
367 Also known as Lakbir Singh Rode.
368 Exhibit P-101 CAC0487, pp. 4-5; Testimony of Don McLean, vol. 21, May 1, 2007, p. 1999.
369 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1999-2000.
�Chapter I: What Was Known About the Threat?
The Khurana Information
ISYF Plans and the “Wait Two Weeks” Comment
During the debriefing, Khurana reported that the participants in the meeting
first attempted to convince him to drop his criminal charges, including a promise
to have good articles about him published in the local media and to have “...their
ladies shop at his Sari stores so he could make more money”. The participants
then turned to discuss plans to further ISYF’s extremist goals. They agreed that
only one member at a time would fight those who opposed their pro-Khalistan
views, in order to ensure that, if caught, only one person would be charged.370
Manmohan Singh then pointed an accusing finger at Pushpinder Singh and
said:
No counsel have been killed, no Ambassadors have been
killed!! What are you doing? Nothing!!
Pushpinder Singh replied:
You will see! Something will be done in two weeks!371
The two men then agreed to meet later to discuss the matter. Pushpinder Singh
and the other ISYF members present also indicated that they intended to visit
the Sikh Temple of Akali Singh to “...teach the temple a lesson” for taking down
the picture of Sant Bhindranwale, the Khalistan movement leader who had died
in the storming of the Golden Temple and whose picture had then been put up
in Sikh temples across Canada.372
The Parmar/Pushpinder Singh Connection
The VPD learned from Khurana that during the meeting, Pushpinder Singh voiced
“…a great deal of praise” for Talwinder Singh Parmar. He indicated that he had
been to a meeting in Toronto with Parmar during the previous week. He claimed
that he was using Parmar to bring all Sikhs in the Lower Mainland together.373
Based on this information and information from other sources, McLean
concluded that the Babbar Khalsa (BK) led by Parmar and the ISYF intended
to make all Sikh temples in Vancouver, and eventually in Canada, support Sant
Bhindranwale and the quest for an independent state of Khalistan.374
Prior to the Khurana meeting, the ICLT suspected that there might have been
a connection between the BK and the ISYF and that Parmar and Pushpinder
Singh might have been meeting on occasion, but had no precise knowledge of
370
371
372
373
374
Exhibit P-101 CAC0487, p. 4; Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2003-2004.
Exhibit P-101 CAC0487, p. 4; Testimony of Don McLean, vol. 21, May 1, 2007, p. 2004.
Exhibit P-101 CAC0487, p. 4; Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2006-2007.
Exhibit P-101 CAC0487, p. 4.
Exhibit P-101 CAC0487, p. 3; Testimony of Don McLean, vol. 21, May 1, 2007, p. 2007.
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a connection between the organizations.375 Through Khurana, there was now
evidence of a direct connection between Pushpinder Singh and Parmar and the
alignment between the BK and the ISYF.376 The information was confirmed in
part by CSIS and RCMP surveillance which showed that Parmar was, in fact, in
Toronto shortly before the Khurana meeting, between June 8th and 10th, and
that Pushpinder Singh was believed to have been in Toronto at the time as well.
Further analysis showed, however, that the person who travelled back from
Toronto to Vancouver with Parmar on June 9, 1985 was not Pushpinder Singh,
but Bagri, as per Ms. E’s statements to police.377 On June 5th, the CSIS Toronto
Region indicated that ISYF types from BC were present in the Toronto area.378
The Khurana Tapes
The recording of the Khurana meeting was turned over to MacKinnon because a
direct translation had to be obtained to determine whether obstruction charges
could be brought.379 Immediately after the meeting, the VPD officers present
listened to a portion of the tape in Khurana’s absence to ascertain the quality
of the recording. According to McLean, the quality was average. Depending
on their location in the room, some participants could be heard better than
others.380 Some portions of the recording were unintelligible.381 McLean himself
did not review the recording of the meeting or the notes, if any, made by the livemonitor, to see whether he could discern the “wait two weeks” comment.382
McLean was advised that Cst. Ram, the Punjabi-speaking VPD member who
acted as a live-monitor and interpreter during the meeting, had not heard the
“wait two weeks” comment.383 However, Khurana was always adamant that the
conversation had occurred as he stated.384 Since he had proven to be a very
reliable source in the course of his dealings with the ICLT, McLean was fully
prepared to rely on Khurana’s word.385 The VPD members of VIIU also dealt with
Khurana and confirmed that he was a “...credible source, of known reliability.”
Supt. Axel Hovbrender (then a constable) had no doubt about the veracity of
the information reported by Khurana. There were many persons present and
talking at the same time during the meeting.386 Further, the initial conversations
375 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1997-1998. There was some information in a VIIU
report dated June 6, 1985 about a meeting at Surjan Singh Gill’s residence involving representatives of
the BK and the ISYF: Exhibit P-101 CAA0196, p. 2.
376 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2005-2006.
377 See Section 1.3 (Post-bombing), Ms. E.
378 Exhibit P-101 CAA0281, p. 1. See also Exhibit P-101 CAA0188, p. 3, CAA0383(i), p. 3 and CAA0528, pp.
1-2.
379 Exhibit P-101 CAC0487, p. 3; Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2007-2008.
380 Testimony of Don McLean, vol. 21, May 1, 2007, p. 2008.
381 Testimony of Don McLean, vol. 21, May 1, 2007, p. 2013. See also Exhibit P-101 CAD0180a, p. 1.
382 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2013, 2034.
383 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2024, 2035.
384 Testimony of Don McLean, vol. 21, May 1, 2007, p. 2014. Khurana also subsequently recounted the
same information in a police statement provided to an RCMP officer in connection with the Air India
investigation: Exhibit P-101 CAD0180a, p. 2.
385 Testimony of Don McLean, vol. 21, May 1, 2007, p. 2014.
386 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3910, 3921.
�Chapter I: What Was Known About the Threat?
were not recorded because the VPD members had not been aware of the
commencement of the meeting.387 As a result, it was entirely possible that the
“wait two weeks” comment could have been made exactly as stated by Khurana,
but simply could not be heard on the recording.
For the RCMP, however, despite Khurana’s known reliability, the exact
translation of the Khurana tapes was to become a major focus in the
subsequent investigation of the Air India bombing.388
The VPD Khurana Report
The day after the Khurana meeting, on June 13, 1985, McLean prepared a
report summarizing the information provided by Khurana, making reference
to the notes taken by MacKinnon during the debriefing.389 The report was
prepared solely on the basis of the statements made by Khurana and not on
any translation of the surveillance tapes. A copy of the report was provided to
MacKinnon and another copy was sent to Hovbrender, a VPD member of VIIU, so
that the information could be disseminated to the RCMP and CSIS.390
The same day, McLean also advised CSIS verbally of the information received from
Khurana.391 He did not communicate directly with the RCMP however, because
he assumed that the information would be transmitted to them through VIIU,392
given that RCMP E Division members worked in this integrated unit alongside
the VPD members.393 McLean believed that those who received his report would
be in a position to respond to the threat revealed by the Khurana information.394
However, neither the RCMP nor CSIS investigated the information and neither
of them reported it in a timely manner with sufficient detail.
The CSIS Threat Assessment: Too Little Too Late?
The CSIS BC Region received the Khurana information from McLean on June 13,
1985, and included it in an internal report sent to CSIS HQ the following day. The
report contained detailed information about the participants in the meeting
and about the possible connection between Pushpinder Singh and Parmar,
even specifying that Pushpinder Singh had returned to Vancouver with Parmar
after meeting with him in Toronto. The Pushpinder Singh exchange about future
plans was reported by McLean as follows:
387 Exhibit P-101 CAD0180a, p. 1.
388 See Section 2.3.4 (Post-bombing), The Khurana Tape. In fact, some of the early RCMP translations of the
Khurana tapes listed comments very similar to what was reported by Khurana.
389 See Exhibit P-101 CAC0487, pp. 3-6; Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2000-2001.
390 Exhibit P-101 CAC0487, p. 3; Testimony of Don McLean, vol. 21, May 1, pp. 2008-2009, 2026.
391 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2009-2010; Exhibit P-101 CAB0306, p. 1.
392 Testimony of Don McLean, vol. 21, May 1, 2007, p. 2011.
393 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4029, 4034; Testimony of Axel Hovbrender, vol.
33, May 24, 2007, pp. 3870-3872.
394 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2025-2026.
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Source reported that a minor confrontation occurred between
Pushpinder Singh and Manmohan Singh. Manmohan stated
to Pushpinder (source’s recall), “You haven’t done anything yet.
You have not killed any Ambassadors or Consulate officials”.
Pushpinder was reported to reply: “You must wait for 2 weeks
and then you’ll see something. We will show the community
we are serious.”395
This information demonstrated an expressed intent by a Sikh extremist leader
to take action within a short time to remedy the lack of killings of Indian officials.
At a minimum, it should have been assessed and investigated and conveyed to
those in charge of protecting Indian diplomats in order to allow them to take
necessary security precautions. At the time, CSIS was in charge of providing
threat assessments to the RCMP Protective Policing Directorate (P Directorate).
However, CSIS did not advise P Directorate of the Khurana information received
on June 13th until it was included in a general threat assessment dated June 18,
1985.396
The CSIS threat assessment was intended for broad dissemination to a number
of agencies, including Transport Canada, the Department of External Affairs and
the RCMP. As a result, it provided very little detail. The assessment reported the
“wait two weeks” conversation, indicating only that it occurred between two
Sikhs illegally in Canada, during a Vancouver meeting with several Sikhs in “early
June.”397 No information was provided about the identity of the Sikhs involved in
the conversation and, most importantly, nothing was said about their leadership
role in the ISYF.398 No information was provided about the possible connection
between the ISYF and the BK which had been revealed during the Khurana
meeting. In fact, the CSIS assessment did not even mention the actual date
of the meeting, making it impossible for those in charge of responding to the
threat to identify the “two weeks” time-period during which security might be
increased.
As with most CSIS threat assessments in the pre-bombing period, the June 18th
document was heavy on narrative and light on analysis. The lack of detail would
have made it difficult for either the RCMP members in charge of implementing
protective measures or for the NCIB members in charge of collecting “criminal
intelligence”, who also received a copy of the assessment, to draw conclusions
about the significance of the information and the seriousness of the threat.
RCMP Failure to Report or Respond to the Threat Prior to the Bombing
On June 13, 1985, the Khurana information was available to the RCMP E Division
members working at VIIU. Yet, it was not reported to RCMP Headquarters
395
396
397
398
Exhibit P-101 CAB0306, p. 2.
Exhibit P-101 CAB0321, pp. 1, 3.
Exhibit P-101 CAB0321, pp. 1, 3.
Testimony of Don McLean, vol. 35, May 29, 2007, p. 4129; Testimony of Axel Hovbrender, vol. 33, May
24, 2007, p. 3887.
�Chapter I: What Was Known About the Threat?
prior to the bombing.399 Sgt. Sweeney, who was in charge of reviewing RCMP
information and preparing threat assessments,400 did not learn about the
Khurana information until the day of the bombing from McLean.401 The RCMP
also did not investigate this matter until after the Air India bombing. On June
25th, E Division reported the Khurana information to HQ for the first time and
indicated that it was beginning to investigate local factions of the ISYF.402
Because the information was not reported, P Directorate was not advised
through the RCMP threat assessment process.403 When P Directorate received
the June 18th CSIS threat assessment referring to the information, albeit without
detail, no further precision was requested. On the basis of the CSIS assessment
that the threat to Indian interests was “only slightly less serious” than before the
anniversary of the attack on the Golden Temple and before the Gandhi visit to
the US,404 the RCMP concluded that it could not justify a decrease in the level
of protection afforded to Indian missions.405 For the Vancouver Consulate,
this meant that the heightened security level implemented on May 30, 1985
in response to the then upgraded threat assessment was simply maintained .
Pursuant to this security level, all Indian diplomats were provided with RCMP
escorts.406 Since May 17th, security guards had also been replaced with RCMP
members who guarded the Consulate 24 hours per day.407 As for the Khurana
information, the P Directorate made no attempt to determine the beginning
and end points of the announced two-week period. The general security
measures implemented were not tailored to the nature of this particular threat
which remained largely unknown to P Directorate.
No Pre-Bombing Connection Made to Air India
When the ICLT members found out about Pushpinder Singh’s “wait two weeks”
comment, they felt that the information was significant and required further
investigation.408 McLean canvassed his sources in the community to find out
more about the planned ISYF action. He was not, however, specifically tasked to
conduct this follow-up investigation, nor was he required to report the results
to the RCMP. In fact, he was never informed about any follow-up investigation
conducted by VIIU, CSIS or the RCMP and he remained unaware to the date of
his testimony of whether anyone was ever tasked to follow up on the Khurana
information.409
399 See Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces.
400 See, generally, Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and
Process.
401 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2641; Exhibit P-101 CAF0035, p. 28.
402 Exhibit P-101 CAA0249, p. 1.
403 See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
404 Exhibit P-101 CAB0321, pp. 3-4.
405 Exhibit P-101 CAC0449, pp. 1-2, CAC0455, pp. 1-2, CAE0223, p. 3.
406 Exhibit P-391, document 255 (Public Production # 3388), pp. 4-5.
407 Exhibit P-101 CAE0177, pp. 1-2.
408 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2004-2005, 2014, 2025. VPD VIIU member Cst.
Hovbrender viewed the “wait two weeks” comment as more akin to the general threats, intimidation
and boasting which were prevalent in the community at the time: Testimony of Axel Hovbrender, vol.
33, May 24, 2007, p. 3921.
409 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2027-2028.
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Volume Two Part 1: Pre-Bombing
When he initially received the Khurana information, McLean saw the “wait two
weeks” comment as a warning or signal that the ISYF would take violent action
within a short time. However, based on his experience and on the information
available to him about the ISYF, he believed that the comment related to an
intention to attack Indian missions or personnel.410 He had never been provided
with any information about threats to Air India at the time.411 Even the November
1984 Plot information from Person 2 was not transmitted to McLean by either
the RCMP or the VPD.412 Because McLean was not informed, it did not occur to
him that the intended violent action Pushpinder Singh was referring to could
relate to Air India.413 As a result, he did not think to explore a number of possible
avenues of investigation.
McLean testified that had he known about the existence of threats to Air India
in June 1985, he would have conducted his debriefing with Khurana and his
subsequent investigation differently. He would have asked different questions,
contacted different sources and involved Khurana more directly in attempts to
obtain more information.414 He did not think to take these steps because the
RCMP did not keep the VPD informed of the existence of numerous threats to
Air India in 1985.415
Observations
• No connection was made from the Khurana information to a
potential bombing of an Air India plane.
• The federal agencies in charge of investigating threats to national
security neglected to report and investigate the information in a
timely manner and were in no position to provide sufficient detail
to Protective Policing.
• The RCMP also failed to provide threat information to the VPD,
which prevented that police force from conducting necessary
follow-up investigation, particularly about the possible connection
to Air India.
• The information obtained through Khurana was significant because
it indicated that a Sikh extremist leader intended to take action
within a short time to remedy the lack of killings of Indian
officials. It also provided evidence of a direct connection between
Pushpinder Singh and Parmar and indicated that the BK and the
410 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2004-2005, 2017-2018, 2025, 2036-2038.
411 Testimony of Don McLean, vol. 21, May 1, 2007, p. 2012.
412 The information was included in a VPD analytical document reporting VIIU and ICLT information: See
Exhibit P-391, document 124 (Public Production # 3254), p. 64; Section 3.5.4 (Pre-bombing), RCMP
Failures in Sharing with Local Forces.
413 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2017-2018.
414 Testimony of Don McLean, vol. 21, May 1, 2007, p. 2017.
415 See, generally, Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces.
�Chapter I: What Was Known About the Threat?
ISYF were aligning themselves. At a minimum, this information
could have been assessed and investigated and those in charge
of protecting Indian diplomats could have been advised to take
necessary security precautions.
1.7 Testimony of James Bartleman
The Honourable James K. Bartleman testified that he saw a Communications
Security Establishment (CSE) document that indicated that “Air India was
being targeted the weekend of June 22nd, 23rd, 1985.”416 The Attorney General
of Canada, in its Final Submissions, called Bartleman’s testimony the most
inaccurate testimony at the Inquiry, and categorically stated that “…the fact is
the CSE document that Mr. Bartleman believes he saw never existed.”417
The Attorney General of Canada’s firm position against Bartleman’s testimony
is best understood in light of its long-standing claim that there was no “specific
threat” to Air India Flight 182. Bartleman’s testimony compels one to carefully
assess the Government’s claim. The lack of a “specific threat” has been an
important concept, relied upon by the Government, to justify the lack of
government response to the crescendo of threats against Indian interests in the
spring of 1985. Accepting Bartleman’s testimony would call into question the
sufficiency of the government response in a way that, prior to this Inquiry, had
never been done before.
The Testimony of the Honourable James K. Bartleman
At the time of his appearance before the Commission, Bartleman was nearing
the end of his term as the 27th Lieutenant Governor of Ontario. Prior to assuming
this position, Bartleman had had a 35-year diplomatic career in the Department
of External Affairs.418
As noted in his evidence, it was a chance meeting with Commission counsel that
ultimately led to Bartleman’s appearance to testify before the Commission.419
Initially, Bartleman was hesitant about testifying, as he felt that he might have
been in a conflict situation as a result of his position as Lieutenant Governor of
Ontario. After the Commission was underway, and in light of evidence heard of
there being “no specific threat” to Flight 182, Bartleman decided it was his moral
duty as a citizen to testify.
Lead Role in Canada’s Foreign Intelligence Mandate
At the time of the Air India bombing, Bartleman held a key position within
Canada’s foreign intelligence and security community as the Director General
416
417
418
419
Testimony of James Bartleman, vol. 22, May 3, 2007, p. 2108.
Final Submissions of the Attorney General of Canada, Volume I, paras. 184, 205.
Testimony of James Bartleman, vol. 22, May 3, 2007, pp. 2091-2092.
Testimony of James Bartleman, vol. 22, May 3, 2007, p. 2094.
75
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Volume Two Part 1: Pre-Bombing
(DG) of the Intelligence Analysis and Security Bureau in the Department of
External Affairs,420 a position he had held since September 1983. He came to
that position with extensive experience in security and intelligence matters,
particularly in relation to terrorism. Previously, he had been a desk officer analyst
for international terrorism in the Intelligence Analysis Division of External
Affairs and an Arms Control Negotiator at NATO. He spent four years following
international terrorist trends, particularly in relation to Nicaragua and Grenada,
as the Director of the Caribbean and Central American Division and subsequently
as the Ambassador to Cuba. In his role as DG of the Intelligence Analysis and
Security Bureau, he had worked to create legislation and procedures for the
new civilian intelligence agency, CSIS, and prepared the Minister (Secretary of
State for External Affairs) for Senate appearances on the issue of intelligence
activities overall.421
External Affairs was the lead agency responsible for ensuring that Canada
fulfill its obligations to provide adequate protection to foreign missions and
personnel in Canada.422 Bartleman’s Bureau was the organization within External
Affairs responsible for the implementation of this lead role.423 The Bureau was
the primary unit responsible for the collection, analysis and dissemination of
foreign intelligence within the Government of Canada.424 As DG of the Bureau,
Bartleman necessarily received a broad range of intelligence items each day. His
daily intelligence package would include 100 to 200 telegrams from missions
abroad, copies of memoranda being sent to the Minister on various subjects,
copies of intelligence reports and a pack of intercepted communications from
the CSE.425 Bartleman, with his extensive experience in intelligence issues,
was uniquely equipped to evaluate the significance of this large quantity of
information effectively.
The central role of Bartleman’s Bureau in the foreign intelligence community
was apparent by the fact that it housed the only CSE registry at External
Affairs. Notably, neither the RCMP nor CSIS had an on-site CSE registry at
the time.426 Bartleman was one of the few government officials that received
CSE materials from daily “bulk pull”427 printouts directly from a CSE registry.
420 Testimony of Pierre LaCompte, vol. 90, December 6, 2007, p. 11925.
421 Testimony of James Bartleman, vol. 22, May 3, 2007, pp. 2098-2099.
422 This obligation originates from the Vienna Convention on Diplomatic Relations. See Exhibit P-101
CAF0063, p. 5.
423 The Intelligence Analysis and Security Bureau was divided into three divisions: Political Analysis,
Security and Emergency Planning. The Political Analysis division had the primary responsibility
for analysis of foreign political intelligence. It also collected intelligence from persons entering Canada
from Communist countries. The Security division was responsible for the security of posts abroad
and headquarters, as well as security clearances. The Emergency Planning division operated the
Operations Centre and tracked transient international terrorism in cooperation with the Political
Analysis division. See Testimony of James Bartleman, vol. 22, May 3, 2007, pp. 2094-2096.
424 Exhibit P-101 CAF0063, p. 3.
425 Testimony of James Bartleman, vol. 22, May 3, 2007, pp. 2094-2096, 2101.
426 Exhibit P-101 CAF0063, p. 4.
427 A “bulk pull” was a keyword query run on the CSE database. William Sheahan testified that these
queries “...would produce quite big piles of material, huge piles of paper.” See Testimony of William
Sheahan, vol. 90, December 6, 2007, p. 11904.
�Chapter I: What Was Known About the Threat?
Senior government officials, including Deputy Ministers and Assistant Deputy
Ministers in Bartleman’s own department, relied on a Customer Relations Officer
(CRO) to deliver only material that was “terribly relevant”428 to their specified
information requirements. Lower-level personnel in agencies without CSE
registries (including CSIS and the RCMP) were serviced by CSE liaison officers,
who brought relevant materials from CSE headquarters to their offices for
review and immediate destruction.429 In contrast, Bartleman’s package of CSE
materials from the registry was not filtered or vetted by CSE personnel. He had
specifically requested that he receive raw, unevaluated, background information
from the CSE, and noted that few higher-level officials would have asked for
this kind of material, as they would not have had the time to review it all.430
By May of 1985, Bartleman’s daily intelligence package revealed a “crescendo”
of threats against Indian diplomatic and commercial interests apparent in his
daily intelligence package. He took steps to prevent a repetition of the Turkish
Embassy attack431 by establishing an ad hoc interdepartmental working group
in his Bureau to deal with the flood of threats to Indian interests. He wanted to
ensure that everything possible was done, at least at External Affairs, to make sure
critical intelligence information was passed on in a timely fashion to operational
personnel in the RCMP. As a result of a review of the Government’s response
to the Turkish Embassy incident, in early June 1985 the lead responsibility
for maintaining contact with the RCMP and CSIS in relation to protection of
foreign assets and persons shifted from the Protocol Division to the Emergency
Preparedness Division within Bartleman’s Bureau.432 This shift further solidified
Bartleman’s Bureau as the foreign intelligence centre within External Affairs,
responsible for the analysis and dissemination of foreign intelligence to the
appropriate responding agencies.
Evidence of a Threat to Air India Flight 182
Bartleman testified that, during the week before the bombings, when going
through his daily intelligence intercept package from CSE, he saw an intercept
which indicated that Air India was being targeted the weekend of the 22nd and
23rd. He stated that the document was raw, unevaluated information. He took it
seriously, despite the many previous alarms that might have caused others to
diminish the seriousness of the threats and to view each threat as another “cry
wolf” incident.
428 Testimony of William Sheahan, vol. 90, December 6, 2007, p. 11905.
429 Testimony of William Sheahan, vol. 90, December 6, 2007, pp. 11900, 11902; Testimony of Pierre
LaCompte, vol. 90, December 6, 2007, pp. 11913-11914.
430 Testimony of James Bartleman, vol. 22, May 3, 2007, pp. 2101-2102.
431 Bartleman testified that he was particularly concerned about the adequacy of the Government of
Canada’s counterterrorism measures in the spring of 1985 because of the experience of the attack
on the Turkish Embassy in Ottawa by Armenian terrorists on March 12, 1985. The event was of
particular significance to him as he had learned that the Turkish Embassy had sent a diplomatic
note to the DEA Protocol Division in advance of the attack warning of a possible attack and no action
had been taken on it. He noted that even though his department was not responsible for receiving and
transmitting diplomatic notes, he made efforts to ensure that his department did not allow a repetition
of the intelligence failure that happened in the Turkish Embassy incident. See Testimony of James
Bartleman, vol. 22, May 3, 2007, pp. 2102-2104.
432 Testimony of James Bartleman, vol. 22, May 3, 2007, pp. 2105-2106.
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He brought the document to an interdepartmental meeting taking place in the
Operations Centre. He carried the document in a secure folder, walked down
to the meeting and asked the senior RCMP officer present if they could speak
privately. Bartleman recalled that the RCMP officer was either a superintendent
or inspector, but he could not remember the officer’s name.433
Bartleman pulled out the document and asked the RCMP officer whether he had
seen it and whether the RCMP was taking any action. Bartleman testified that he
distinctly remembers the response of the RCMP officer because it startled him.
The RCMP member flushed and “hissed” at him, telling him that of course he had
seen it and he did not need Bartleman to tell him how to do his job.434
Bartleman testified that he took no further action on this information up to the
time he discussed the matter with Commission counsel in 2006. He testified
that he had had full confidence that CSIS and the RCMP had done their job and
that the tragedy had occurred despite their best efforts. Bartleman testified that
he had the highest respect for CSIS and the RCMP and that he did not doubt for
a minute that they had taken the necessary action beforehand. In terms of the
police investigation after the tragedy, Bartleman said he felt that there was no
point in going to the RCMP because he had nothing new to add.
It was not until he approached the Commission that he learned that the
Government’s position had been, throughout the years and at this Inquiry, that
it had no knowledge of a specific threat targeting the Air India flight on June 22,
1985. As there was only one Air India flight each week from Canada, specifically
via Toronto and Montreal, the threat seen by Bartleman would have to have
been directed at Flight 182.435
The Attorney General of Canada’s Response
The Attorney General of Canada urges a rejection of Bartleman’s evidence. CSE
searched its database, both immediately after the bombing and in the aftermath
of Bartleman’s testimony, and reported that in neither instance was it able to
locate a specific threat such as that described by Bartleman. William (“Bill”)
Sheahan and Pierre LaCompte, both formerly with the CSE, testified that the
“specific threat” document described by Bartleman did not exist and could not
have existed. Several witnesses testified that had they seen such a document,
they would have treated the information very seriously and would have been “...
running all over the place with it”436 to bring it to the attention of others.
The claims by Bartleman, on the one hand, and that of Messrs. Sheahan and
LaCompte, on the other, about whether the document described by Bartleman
could have existed are incompatible. The conflict on this issue necessitates
a determination of the credibility of the witnesses and an assessment of the
433
434
435
436
Testimony of James Bartleman, vol. 22, May 3, 2007, pp. 2108-2109.
Testimony of James Bartleman, vol. 22, May 3, 2007, pp. 2109-2110.
Testimony of James Bartleman, vol. 22, May 3, 2007, pp. 2111-2112.
Testimony of William Warden, vol. 24, May 7, 2007, p. 2429.
�Chapter I: What Was Known About the Threat?
reasonableness of the evidence. The Commission was impressed by Bartleman’s
calm and consistent demeanour, even in the face of an aggressive crossexamination by the Attorney General of Canada. Bartleman never prevaricated.
There was no doubt that he was testifying truthfully to the best of his
recollection.
However, while demeanour is an important factor to take into account
in assessing witness credibility, demeanour alone is not determinative. It
is also necessary to consider whether the testimony is in harmony with
the preponderance of the probabilities which a practical and informed
person would readily recognize as reasonable in light of all the surrounding
circumstances and evidence.437 As such, what is necessary is not simply to
declare an outright preference for one claim over the other, based solely
on credibility, but rather to review the totality of the evidence to assess the
probability and reasonableness of each purported claim.
After reviewing the evidence with these considerations in mind, the Commission
concludes that there is nothing improbable or unreasonable in Bartleman’s
testimony, while the argument of the Attorney General of Canada is based on a
number of flawed assumptions.
The Attorney General of Canada’s position, and the assumptions on which it is
based, can be tested by asking the following questions:
• Is the fact that CSE has not been able to locate a copy of the
document described by Bartleman proof that no such document
ever existed?
• Is the fact that the intelligence and security communities did not
raise a general alarm proof that no information, such as that
described by Bartleman, was available to them prior to the
bombing? To put this latter question somewhat differently, in
terms of the Attorney General of Canada’s assumptions, is
Bartleman’s testimony, in fact, the only evidence of a “specific
threat” to an Air India flight in Canada in June 1985?
The Inquiry evidence shows these questions can be answered in the negative.
The Failure to Find the Bartleman Document
Is Bartleman’s evidence undermined by the inability of CSE to locate the
document that he saw within their database? In the Commission’s opinion,
the fact that the document was not found does not undermine Bartleman’s
evidence because the Commission’s investigation has shown that searching the
CSE database is not a reliable measure of the entirety of its contents.
437 Faryna v. Chomy (1952), 2 D.L.R. 354 (B.C.C.A.).
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Searching the CSE Database
The document described by Bartleman would not necessarily turn up in a
response to a keyword search for reasons relating not only to the potential
content of the document, but also to the background, knowledge and contextual
understanding of those conducting the search.
The difficulty of searching the CSE database is illustrated by that fact that
LaCompte had difficulty locating a known document that he believed Bartleman
(mistakenly) had in mind. LaCompte searched for a specific document that
referred to a possible bombing of an Air India flight, namely an intercept
concerning the November 1984 bomb plot. Like Bartleman, he had a distinct
recollection of the document, as he had raised an alarm at the Department of
Transport upon reading the intercept. Yet, he had difficulty finding the document
during his search immediately after the bombing despite the known “specificity”
of the document. The document mentioned an Air India plane, a Canadian point
of departure, a plan to bomb and a time frame. LaCompte searched during an
entire afternoon, but was unable to locate the document until the following
morning, because he initially searched within the wrong time frame. It was only
after several attempts that he finally located the document he was looking for
(though not, evidently, any other documents relevant to threats to Air India
that did not fit the narrow parameters he used in his search).This establishes
the unremarkable proposition that the retrieval system is only as good as the
inputted search parameters.
The same difficulty arose recently when, in response to Bartleman’s testimony,
the CSE attempted, but was also initially unable, to locate the November
1984 Plot document until LaCompte himself suggested more specific search
terms.438
Commission counsel reported a similar result for a controlled CSE search
conducted at their request. Commission counsel requested that CSE search its
database in order to find three CSE intercepts referred to in the documentation
produced for the Inquiry (though the references were redacted in the public
documents). Two members of the Commission team obtained the requisite
additional security clearance and attended several times at CSE to review
the results. The first search attempts by CSE personnel turned up results that
Commission counsel believed failed to correspond to the descriptions in the
Commission documents. Only on subsequent attempts, using additional
keywords in the search parameters provided by Commission counsel based on
their own background knowledge of the Air India narrative, was the CSE able to
locate the last of the documents.
These experiences demonstrate the sensitivity of CSE searches to the relevancy
of the search terms chosen. It is easy to understand why it would be difficult for
those unfamiliar with the document described by Bartleman to locate it within
the CSE database.
438 Testimony of Pierre LaCompte, vol. 90, December 6, 2007, p. 11949.
�Chapter I: What Was Known About the Threat?
Completeness of CSE Documentary Record
Other complexities present themselves in terms of reconstructing the CSE
documentary record as of June 1985. While CSE document retention protocols
have been clarified over the years, those in place in 1985 were unclear and did
not appear to be rigorously followed.439
The CSE claims that all CSE reports have been retained since prior to 1985.
However, a test of the database initiated by Commission counsel indicates
otherwise. Commission counsel reviewed a 1997 index of CSE documents on
which two documents were listed as “cannot locate.” The CSE admitted that the
two documents could not be found in 1997, but were now available through its
efforts to reconstitute all relevant files from allied agencies.440 However, the need
for the reconstitution effort, on its own, indicates that the CSE documentary
record is less than complete.
The issue is further complicated by the nature of the document as described
by Bartleman. Bartleman testified that the material he saw was “...raw and
unevaluated”.441 This description suggests a document different from the
summary reports that Messrs. Sheahan and LaCompte delivered to their clients
and different from the reporting that CSE claims to have retained from that
period. Sheahan testified that raw traffic intercepted by CSE in 1985 would most
likely have been destroyed; only final reports were retained.442 As such, if the
material viewed by Bartleman had been raw traffic, no record of the document
would be expected to exist to this day.
Regardless of whether the material viewed by Bartleman was a summary report
or raw intercept traffic, the Inquiry evidence shows that retention for both
types of documents is not complete. Thus, the inability to locate the Bartleman
document within the CSE records fails to serve as proof that it did not exist.
The Lack of an Intelligence and Security Response
The Attorney General of Canada contends that, had the Canadian security and
intelligence community seen information of the sort described by Bartleman, it
would have reacted in a determined and forceful way to raise a general alarm
and would have taken protective measures appropriate to the threat. It follows
from the Attorney General of Canada’s argument that, since there was no
general alarm and no special protective steps proposed or instituted, no such
information was available and Bartleman’s evidence must be mistaken.
This argument does not stand up to scrutiny. Once one gets beyond the
confusion caused by the continuous insistence on the terminology of “specific
439 Testimony of William Sheahan, vol. 90, December 6, 2007, p. 11944.
440 In an attempt to ensure CSE had all files potentially relevant to Bartleman’s testimony, the CSE
reconstituted its database by requesting all relevant reports from its allied agencies and reloading
them onto the CSE database. See Testimony of Pierre LaCompte, vol. 90, December 6, 2007, p. 11945.
441 Testimony of James Bartleman, vol. 22, May 3, 3007, p. 2108.
442 Testimony of William Sheahan, vol. 90, December 6, 2007, p. 11944.
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threat”, it becomes clear that the Bartleman information is not the only example
of what might less confusingly be termed a “direct threat” to an Air India flight
in Canada in June 1985. The response or, more accurately, lack of response, to
these other threats demonstrates that the lack of general alarm or anti-bombing
security precautions prior to the June 22/23 Air India flight is no proof at all that
the Bartleman document did not exist.
The Concept of “Specific Threat”
The Attorney General of Canada’s response assumes that the information seen
by Bartleman was obvious on its face as a “specific threat” to Air India and
thus, by virtue of its content, would have triggered a widespread government
response. The concept of a “specific threat” occupies a central, organizing and
crucial place in the position urged by the Government of Canada. However,
the evidence called at the Inquiry has shown that the Government has had no
consistent definition of what constitutes a “specific threat.”443 Witnesses offered
various understandings of the concept, resulting in a situation where, in the
final analysis, it is unclear what is meant by the Government’s claim of “no
specific threat.”
The “specific threat” concept was a term of art in the aviation security context
in 1985 that was solely relevant as an all-or-nothing threshold for the
implementation of emergency protocols at airports. The concept was relevant
for threats received on the day of the flight, generally by phone, sometimes
when the aircraft was already loaded with passengers and luggage. If it was
determined that such a threat was “specific,” an emergency protocol was put
into action. This involved moving the threatened aircraft to a place of safety,
offloading the passengers and the luggage already onboard, conducting a
search of the aircraft and luggage using the RCMP dogmaster and undertaking
a process of passenger-baggage matching. The assessment of whether or not
a call-in threat was “specific” depended on the degree of detail about the threat
that was provided by the caller – for example, the timing, intended target, and
means of attack. This assessment normally had to be made on the spot, without
the benefit of thorough intelligence analysis, so that an immediate decision
could be made about whether or not to implement the emergency measures.
As would be expected, when information was received through channels, in
circumstances that allowed enough time for the engagement of the intelligence
analysis process, an entirely different protocol (though one ultimately
ineffective for the prevention of the loading and detonation of time/delay
devices in registered baggage) was to be engaged. Those assessing the threat
would examine it in the light of other relevant intelligence on file and attempt
to corroborate it in order to assess its veracity and the consequent need for a
response. While CSIS utilized the “specific threat” term in its threat assessments
443 For a detailed discussion of the “specific threat” concept, refer to Section 4.3 (Pre-bombing), The Role of
the “Specific Threat” in the 1985 Threat-Response Regime.
�Chapter I: What Was Known About the Threat?
(TAs), there appeared to be no consistent understanding of the term.444 CSIS would
call a threat “specific” only if the “...information [indicated] that something was
going to happen, period, no ifs, ands, or buts”445 and independent corroboration
was available. This high threshold failed to correspond to a particular risk level,
or responsive action, and was rarely met, if ever, in the year before the bombing,
making the “specific threat” term of limited utility in the CSIS TAs.446
After the bombing, government officials immediately claimed there had been
no “specific threat”447, borrowing a term that was of limited relevance in a threat
assessment context and most applicable to the narrow circumstance of an
emergency call-in threat situation at an airport. As such, the Government and
its agencies have excused their lack of responsive action by taking the “all-ornothing” position that:
• unless the threat was “specific,” there was no need to take
heightened security measures beyond those already in force at
Pearson and Mirabel Airports; and,
• that a threat was not to be understood as “specific” unless it
contained details of the time, place and means of the alleged plots
as well as of the identity of the alleged perpetrators.
The Commission has found numerous flaws in this approach, outlined in detail
in Section 4.3 (Pre-bombing), The Role of the “Specific Threat” in the 1985 Threat
Response Regime. For present purposes, it is sufficient to note that employing
this overly technical approach obscures the most important questions about
the adequacy of the assessment of, and response to, the known threats in the
period leading up to the bombing.
The Bartleman Document: A Specific Threat Recognized
Would the threat seen by Bartleman have been considered “specific,” according
to the Government’s restricted definition? The Attorney General of Canada’s
argument is based on the assumption that the document to be found is one
that even a lay person would explicitly interpret to be a “specific threat.”
Bartleman testified that the document was raw, unevaluated information that
indicated that Air India was being targeted the weekend of June 22 and 23,
1985. Bartleman knew that there had been many alarms raised in the previous
year about potential attacks and so others might view the threat as another “cry
wolf” incident. Given his position, his experience and his unique familiarity with
Sikh extremism, it would hardly have been necessary for all the “i”s to be dotted
or the “t”s to be crossed in the CSE intercept.
444
445
446
447
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2515-2516, 2537.
Testimony of John Henry, vol. 25, May 8, 2007, p. 2538.
Testimony of John Henry, vol. 25, May 8, 2007, p. 2538.
Exhibit P-101 CAF0825, pp. 2-3, which documents the statements of Transport Minister Don
Mazankowski in reply to questions during the House of Commons Question Period on June 25, 1985.
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However, the information in the Bartleman document would not have satisfied
the strict definition of a “specific threat” established by the Government.
Although the document contains information regarding the time and place, it
did not reveal details about the means of the alleged attack nor the identity of
the alleged perpetrators. As such, it does not appear that other government
officials, relying on the “specific threat” concept, would have considered the
threat to be specific.
The Attorney General of Canada, in its Final Submissions to the Commission,
admits that “...[t]here were a number of non-specific threats to Air India flights
from Toronto and Montreal in the spring of 1985”, and posits that, over time,
Bartleman may have confused one of these documents for something else;
something more specific.448 Rather it appears that Bartleman’s document may
have been one of a number of direct threats to Air India flights in the spring of
1985 that the government agencies mischaracterized as being non-specific.
This possibility is made apparent when one considers the reaction of key
government agencies to a threat considered to be “non-specific,” the June 1st
Telex.449
The June 1st Telex: A Specific Threat Ignored
As discussed in Section 1.2 (Pre-bombing), the June 1st Telex, the Chief Vigilance
and Security Manager in Bombay sent the June 1st Telex450 to Air India offices
worldwide, including offices in Canada. Air India advised that it had received
intelligence revealing “...the likelihood of sabotage attempts being undertaken
by Sikh extremists by placing time/delay devices etc. in the aircraft or registered
baggage,” as well as the fact that “...Sikh extremists are planning to set up suicide
squads who may attempt to blow up an aircraft by smuggling in of explosives
in the registered or [carry-on-baggage] or any other means ....”451 Air India went
on to suggest five counter-sabotage measures that should be undertaken
to ensure passenger safety in light of the threat. Specifically, it called for the
continued use of explosives sniffers and explosives-sniffing dogs until at least
June 30, 1985.452
From an abstract, definitional point of view, the June 1st Telex might appear
to be lacking all the elements of specificity that Sgt. Sweeney testified were
required to make a threat “specific,” including date, location, particular target,
particular means and identity of perpetrators.453 Yet from a functional point of
view, and on any reasonable reading, the telex was “sufficiently specific” that a
448
449
450
451
452
Final Submissions of the Attorney General of Canada, Vol. I, para. 205.
See Section 1.2 (Pre-bombing), June 1st Telex.
Exhibit P-101 CAA0185.
Exhibit P-101 CAA0185.
Exhibit P-101 CAA0185. A subsequent telex sent from Air India to its worldwide offices revealed that
the measures indicated in recent correspondence to deal with the heightened threat of hijacking and
sabotage were to continue until the end of June 1985: Exhibit P-101 CAC0419, p. 3.
453 Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2716.
�Chapter I: What Was Known About the Threat?
trained intelligence professional would be able to understand the nature of the
threat, as well as the need to assess the risk involved and to take appropriate
measures in response.
Elements of Specificity
Some elements of specificity in the telex are beyond dispute. The information
is specific in terms of the means, namely “time-delayed explosives” hidden in
checked baggage. It is also specific as to the target, namely “an Air India plane”.
What about the parameter of date?
The June 1st Telex did not indicate a particular date for the attack, but did clearly
set out the month of June as the heightened period of alert. This narrowed the
focus for a potential response to definite dates and times within a quite narrow
time frame, namely the four days in the month of June 1985 on which Air India
had its weekly flights between Canada and India. An intelligence professional,
whether at CSIS, the RCMP or External Affairs, would have known that June
1985, in particular, was considered by Canadian and American officials to be a
period of extremely high risk for an attack on Indian interests by Sikh extremists
because of the US visit of Indian Prime Minister Rajiv Gandhi and the anniversary
of the Golden Temple storming that month.
In early May 1985, a senior-level ad hoc interdepartmental committee on Sikh
extremism was formed with representation from the RCMP, CSIS, DEA and the
Solicitor General.454 In mid-May, the Security and Intelligence Bureau at DEA
held consultations with Canada’s mission in Delhi about the Sikh terrorist
threat in Canada and India.455 As a result of upgraded threat assessments, by
the first of June, the RCMP was affording a high level of protective security for
all Indian diplomatic missions and personnel in Canada.456 On May 31st, as a
result of concerns expressed by the interdepartmental committee, External
Affairs contacted RCMP Protective Policing to request that the level of security
for Air India in Toronto be made consistent with that provided in Montreal.457
In the month of June, officials involved in protective policing received “highly
classified” intelligence that left them with no doubt that “...something was going
to happen,” though what, when and where were not known.458 All of these facts
combined would lead any well-informed recipient to pay particular notice to a
threat to Indian interests targeted for the month of June 1985.
What about the parameter of “identity of perpetrators”?
454 Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement – Canada’s Response to Sikh
Terrorism”, p. 9.
455 Exhibit D-1: Dossier 1, “Background and Summary of the Facts”, pp. 2-3.
456 Exhibit P-101 CAC0334, p. 2, CAE0177, p. 1, CAE0223, p. 2.
457 Exhibit P-101 CAA0166.
458 Exhibit P-101 CAA0240, p. 2, CAC0445, p. 5; Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3040,
3044-3046, 3085-3086.
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The June 1st Telex does not identify any specific person or persons as being
involved in the plot. It does, however, refer to Sikh extremists as the source of
the threat. Canadian government officials were aware of the identities of the
prominent Sikh extremists domiciled in Canada. Just days prior to the June 1st
Telex, CSIS had issued a threat assessment which was distributed widely across
government agencies,459 warning about the threat potential of the Babbar Khalsa
(BK) and the International Sikh Youth Federation in Canada. CSIS reported that
BK individuals in Vancouver had recently hosted a prominent UK Sikh extremist,
who had warned in May 1985 that the names of Sikhs who refused to boycott Air
Indian flights would be put on a hit list. BK members in Canada were connected
to several threats against Air India. Parmar was assessed as the single most
dangerous Sikh extremist at large,460 and had publicly pledged in the past that
Air India planes would “...fall from the sky”.461 Bagri, who had been implicated
in an earlier plan to hijack an Air India plane, was assessed as easily capable
of being manipulated to commit a violent terrorist act.462 There is no doubt
that the leaders of the Sikh extremist movement in Canada were well known to
Canadian authorities.
What about the parameter of “place”?
The June 1st Telex did not specify “Canada” as the intended target of would-be
extremists. Indeed, when pressed about the “specificity” of the June 1st Telex
during his testimony, Sgt. Sweeney based his conclusion – that the telex was not
“specific” – on the fact that it did not indicate a particular location.463 Again, this
observation makes little sense when applied to the broader threat assessment
context in which there is time to develop a broader threat response strategy.
Canadian intelligence professionals would have known that Canada contained
the second largest Sikh population outside of India, many of whom had
demonstrated their agitation over the events in the Punjab over the previous
year. It was also well known that within the Sikh population there existed
extremist elements who had threatened bloody revenge against India and
Indian interests. Moreover, Canadian officials were aware of concerns at the
time that the foiling of an assassination attempt464 on the visiting Indian Prime
Minister in June could result in extremists redirecting their efforts to a less highprofile target in Canada,465 and that, in the past, Air India in Canada had been
flagged by CSIS as a “softer target.”466
459
460
461
462
463
464
Exhibit P-101 CAB0236(i), pp. 1-6.
Exhibit P-101 CAB0114, p. 2, CAF0132, p. 5.
Exhibit P-101 CAF0160, p. 33.
Exhibit P-101 CAA0110, pp. 2-3.
Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2752-2753.
And unsuccessful weapons raids by the RCMP on the homes of two Sikhs in the Windsor/Detroit area,
in connection with the upcoming Gandhi visit: Exhibit P-101 CAB0312, pp. 1-2.
465 Exhibit P-101 CAB0312, p. 2, CAC0459, p. 2. See also Exhibit P-101 CAC0356, p. 3, where in late May
there were concerns expressed by RCMP Protective Policing that the Sikh extremists in the Windsor/
Detroit area who were purchasing weapons might not be targeting the upcoming Gandhi visit,
but could be targeting other Indian interests in Canada.
466 Exhibit P-101 CAC0133, p. 2.
�Chapter I: What Was Known About the Threat?
In this context, it is difficult to see how an intelligence officer would not
understand a threat to bomb an Air India plane in June 1985 as being at least
as likely to refer to the weekly Air India flight from Toronto and Montreal as to
any flight from any other location in the world. Regardless of the probability
of the attack happening in Canada, in the context of the tense climate among
Canadian-domiciled Sikh extremists, the threat ought to have caused a more
refined operational response from the Canadian government.
Indeed, this common sense view was supported by world-class aviation security
and risk management experts who testified at the Inquiry hearings. Dr. Rodney
Wallis, an international civil aviation security expert,467 argued that, given the
circumstances, the June 1st Telex was specific enough to warrant extreme
concern and response, in line with what would have been afforded in the case
of a “specific threat” as understood by the regime in 1985:
[I]n the case of Air India, which was operating under a high
threat situation, operating with a once-a-week service out of
Canada where there was a known element at war with the
Indian government and anything that represented the Indian
government and I have mentioned before the symbol on the
tail of the airplane. We will say that’s an Indian government.
So they were operating under this high risk situation with a
once-a-week flight and the difference between that operation
and specific threat becomes blurred. It becomes merged. You
could argue it becomes one and the same thing.
…
Specific threat or high risk, I would expect it to be the same
response under those circumstances.468
Dr. William Leiss, an expert in risk communication, risk perception and risk
management,469 stated that the June 1st Telex was as specific a warning as is
possible in civil aviation security. He felt that the information should have “...
leapt off the page”. In light of the specificity of the information and the highrisk situation at the time, Dr. Leiss wondered “...why didn’t the alarm bells go off
everywhere?”470
From the perspective of protecting Canadians, it is clear that the information in
the June 1st Telex should have satisfied all the parameters of specificity: means,
target, date, identity of perpetrators and place. Contrary to the submissions of
467
468
469
470
See Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4204-4205.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4426-4427.
See Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11955-11956.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11982; P-433: Affidavit of William Leiss and Two
Supporting Tabs (Tabs: 3 and 7).
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the Government of Canada, any reasonable and responsible reading of the June
1st Telex should have resulted in an operational response to better safeguard the
weekly Air India flights emanating out of Canada for the month of June 1985.
Instead, the information was immediately discounted, not shared beyond the
RCMP and subsequently forgotten after the bombing.
The CSE Information: Threat of Bombing Inside and Outside India
The lack of reaction to the June 1st Telex is made even more relevant by the
fact that subsequent searches of the CSE database requested by Commission
counsel disclosed CSE information from essentially the same time period as
the June 1st Telex warning of the threat of sabotage to Air India aircraft by Sikh
extremists and indicating specific security measures to be taken at all Air India
stations in light of the threat. This establishes that the type of information in the
June 1st Telex was known (and discounted) by at least two separate government
agencies, the RCMP and the CSE.
There are strict limitations as to what may be revealed about CSE intercepts.
The information is highly classified, and only a very narrow range of individuals
with a need to know are given the relevant clearance. This makes discussion of
the content of CSE intercepts a very delicate and sensitive issue. Accordingly, it
is not possible to describe the material in much detail in this public report.
Witnesses from various government agencies testified at this Inquiry that they
never saw the information in the June 1st Telex. It follows that these witnesses also
never saw the CSE information. There is no indication that the CSE information
was ever identified by CSE officers to be passed to any of the key personnel
working on the assessment and response to Sikh extremist threats. It appears
that CSE personnel, like the RCMP, also failed to recognize the significance
of the nature of the warning in the June 1st Telex. After the bombings, when
Pierre LaCompte was asked whether there had been any advance warning of
a possible bombing in the CSE holdings, he recalled a November 1984 bomb
threat but not the more recent CSE information.471
It is regrettable that two separate government agencies, the CSE and the RCMP,
received critical pre-bombing information about the threat of sabotage and
security measures to be implemented in response and, yet, this important
information apparently went nowhere because it was reviewed by personnel
without the requisite expertise to properly assess its significance. No alarms
were raised. In fact, it appears that no one outside the CSE and the RCMP was
notified about the receipt of this critical threat information, either before or after
the bombing. For the 21 years between the bombings and the commencement
of this Inquiry, the full significance of the June 1st Telex and the CSE information
has gone unappreciated.
This conclusion is made even more acute when one considers that, as discussed
in greater detail in Section 3.6 (Pre-bombing), Lack of Government-Wide
471 Testimony of Pierre LaCompte, vol. 90, December 6, 2007, p. 11921.
�Chapter I: What Was Known About the Threat?
Coordination in the Threat Assessment, the CSE information from the same
period uncovered by Commission counsel provided corroboration of the
seriousness of the threat. While each piece of information may have seemed
relatively inconclusive or ambiguous on its own, when pieced together by a
trained analyst, a much clearer and undoubtedly alarming pattern might have
been discerned. That, in fact, appears to be exactly what Bartleman did when
he saw the CSE information that so concerned him, which may well have been a
variant of the CSE information discussed above.
A Multitude of Direct Threats
In light of the treatment of the June 1st Telex and of the CSE information,
Bartleman’s testimony that he saw a document relating a threat to an Air India
flight that was largely ignored is hardly surprising. It is, rather, compatible with
the general government reaction to direct threats of this nature at the time. The
Attorney General of Canada’s argument is flawed in that it denies the existence
of the Bartleman document on the basis that there was no “specific threat” to
Air India Flight 182, while admitting that members of all government agencies
were aware of a multitude of direct threats against Air India flights in Canada in
June of 1985.
Gary Clarke, the Officer-in-Charge of Protective Policing at the
Toronto RCMP Division in 1985, testified that, in June of that
year, the RCMP had “highly classified” information in the form
of a communiqué from the Department of External Affairs that
indicated special security precautions should be taken on all
Air India flights to and from Canada.472
Mel Deschenes, the Director General of Counter Terrorism at
CSIS headquarters, on June 19, 1985, days before the bombing,
expressed his fear that rogue elements of the Indian Secret
Service would take a plane out of the sky.473
Warren Sweeney, a Sergeant in the National Criminal
Intelligence Branch of the RCMP in 1985, testified that he was
aware of a threat of a general nature for nearly every Air India
flight leaving Canada, including the ill-fated flight on June 22,
1985.474
Sgt. Sweeney’s testimony that the RCMP was in receipt of threats to Air India
before every flight,475 coupled with the fact that no record of these threats
has been included in the documents produced to the Commission, may also
472 Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3044-3047; Exhibit P-101 CAA0240, p. 2, Exhibit
P-101 CAC0445, p. 5.
473 See Section 1.8 (Pre-bombing), Rogue Agents (Deschenes).
474 Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2754, 2757.
475 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2585; Exhibit P-101 CAC0517, p. 2.
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be relevant. Bartleman testified that, based on his extensive experience in
intelligence matters, he took the threat information that he saw seriously, but
was unable to evaluate whether the threat was in fact credible. The threat he
saw could have been one of the many undocumented threats before every
flight.
The Inquiry evidence does not support the Attorney General of Canada’s assertion
that government officials at the time would have treated the information very
seriously and been “...running all over the place with it”. Rather, it appears that
direct threats that were sufficiently specific to indicate that Air India would be
targeted in Canada were routinely discounted and subsequently forgotten.
Conclusion
Bartleman testified that, shortly before the bombing, he saw an intercept that
he interpreted as intelligence indicating that the Air India flight departing
Toronto and then Montreal was targeted. He showed the document to an RCMP
officer, who indicated that the RCMP was aware of the underlying information.
Bartleman recalled that the RCMP officer made it clear that he did not welcome
Bartleman telling the RCMP how to do its job.
There is nothing inherently unlikely in any of Bartleman’s testimony. To the
contrary, there is a measure of confirmation on all points. The June 1st Telex
and the CSE information demonstrate that information “sufficiently specific” to
indicate that an Air India flight in June was being targeted for sabotage was in
circulation, but that its significance was not appreciated by those who saw it. The
fact that this key information disappeared from the post-bombing investigation
(except for a brief mention in a document being considered for production to
the families in the civil litigation476), not to re-emerge until its circulation was
inaccurately described to the Honourable Bob Rae,477 gives credence to the
notion that the significance of such information was seemingly no clearer in the
post-bombing period than it had been in the pre-bombing period.
The fact that none of the recipients of the information in the June 1st Telex
actively pursued the information post-bombing shows that Bartleman was
not alone in his belief that there was no use in repeating information that the
relevant authorities already had and, presumably, had acted on.
Finally, the May 24, 1985 RCMP memorandum,478 reflecting the RCMP’s
displeasure at being “second guessed” by External Affairs in terms of its
security levels, appears to corroborate the tone and content of the subsequent
confrontation described by Bartleman.
476 Exhibit P-101 CAC0528, p. 40.
477 Exhibit P-101 CAA0234, p. 8, where the document implies in error that the content of the June 1st Telex
was passed to CSIS.
478 Exhibit P-101 CAC0355, pp. 2-4.
�Chapter I: What Was Known About the Threat?
On balance, the evidence cited by the Attorney General of Canada to discredit
James Bartleman was not persuasive. Bartleman was a unique consumer of
intelligence who had exceptional access to CSE materials. It was a well-accepted
fact that there were many threats to Air India flights from Canada and these
threats were generally discounted. In light of these surrounding circumstances,
it is reasonable to conclude that James Bartleman saw a document with a direct
threat to Air India Flight 182 on June 22, 1985 that other witnesses do not
recollect seeing.
The Commission accepts the evidence of Bartleman, and finds that he delivered
a message to the RCMP identifying a direct threat to Air India 182 the weekend
of the June 22, 1985 flight. In accepting Bartleman’s testimony, it is significant
to note that he had nothing to gain by coming forward with his testimony, and
stood only to suffer a loss to his reputation in facing government-wide efforts
to impugn his credibility.
Contrary to the argument advanced by the Attorney General of Canada, the
importance of Bartleman’s evidence is not that it, and it alone, points to a
“specific threat” to Air India Flight 182. Rather, Bartleman’s evidence is important
because it reveals one more direct threat in a crescendo of threats that, like the
others, was neither noticed nor understood as information that should be taken
seriously. The threat seen by Bartleman – like the other direct threats before
it – could, and should, have led the intelligence and security communities to
anticipate the outcome and to adopt appropriate anti-sabotage measures to
respond to precisely the events that occurred on June 23, 1985. Clearly, they did
not do so.
1.8 Rogue Agents (Deschenes)
Did CSIS Have Advance Knowledge of a Specific Threat to Air India?
To determine whether CSIS appropriately assessed the threat to Air India prior to
the bombings and whether their actions after the bombings were reasonable,
particularly in relation to the Parmar tape erasures, it is important to know if
they had advance knowledge of a specific threat to Air India for the weekend of
June 22, 1985. Michael Anne MacDonald and Graham Pinos testified before the
Commission that CSIS did have such advance knowledge.
Separate Statements by CSIS DG of Counter Terrorism
During the week of June 17, 1985, Ms. MacDonald and Mr. Pinos were in the
Los Angeles area in connection with a rogatory commission set up to take
evidence in a case related to the shooting of the Commercial Attaché of the
Turkish Embassy in Ottawa. Mel Deschenes, then the Director General of the
Counter Terrorism Unit at CSIS, was also in attendance at the commission.479
479 Testimony of Michael Anne MacDonald, vol. 30, May 17, 2007, pp. 3270, 3278.
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Both MacDonald and Pinos testified that Deschenes made separate statements
to each of them, indicating that he had advance notice of a serious threat to
Indian interests in Canada. After the bombing, the gravity of these statements
shocked MacDonald and Pinos,480 who believed that CSIS had advance warning
of, but was unable to prevent, the Air India and Narita bombings.
Statement #1: Urgent Problem in Vancouver with Sikh Extremists
MacDonald was at the rogatory commission as Counsel for the Ontario Ministry
of the Attorney General. Her responsibilities included setting up and facilitating
the taking of evidence in the commission. The evidence was taken before two
Commissioners, Ontario Supreme Court Justice Eugene Ewaschuk and District
Justice Fred Lacey, District of New Jersey. The commission commenced on June
13, 1985 dealing with preliminary matters, and evidence was taken starting the
week of June 17th. On Wednesday, June 19th, Justice Ewaschuk called counsel
into chambers to inform them that Justice Lacey was ill and that, accordingly,
the hearings would be postponed until the following day.481
Some time before she returned to court on June 20th, MacDonald had a hurried
conversation with Deschenes in the hotel lobby – one she has never forgotten.
MacDonald recalls that Deschenes advised her that he had to leave and gave the
following reason for his departure “...all of a sudden, in the middle of things.”482
He had received a call from Canada. There was an urgent
problem with Sikh extremists in Vancouver, and he had to
leave to go to Vancouver, immediately. And he gave his
apologies.483
At the time, MacDonald felt it was a fairly innocuous conversation. Since she
was the commission facilitator, it made sense that attendees who had to leave
would tell her about their departure.484
On June 20th, the commission hearings reconvened. Justice Ewaschuk
announced that Justice Lacey had returned to New Jersey and the hearings
would be adjourned sine die (without a specified date to reconvene). 485
When MacDonald learned about the Narita and Air India explosions later
that weekend, she immediately reflected back on her last conversation with
480
481
482
483
Testimony of Graham Pinos, vol. 66, October 25, 2007, p. 8182.
Testimony of Michael Anne MacDonald, vol. 30, May 17, 2007, pp. 3273-3281.
Testimony of Michael Anne MacDonald, vol. 30, May 17, 2007, p. 3283.
Testimony of Michael Anne MacDonald, vol. 30, May 17, 2007, p. 3282. See also Exhibit P-101
CAF0114, p. 2 in which a consistent recollection of Deschenes’s explanation for his departure is
reported by MacDonald in Jardine’s minutes of an October 3, 1988 meeting.
484 Testimony of Michael Anne MacDonald, vol. 30, May 17, 2007 pp. 3282-3283; Exhibit P-101 CAF0114, p.
2
485 Testimony of Michael Anne MacDonald, vol. 30, May 17, 2007, p. 3284; Exhibit P-137, p. 6.
�Chapter I: What Was Known About the Threat?
Deschenes. She remembers thinking “...even when they know something is
going to happen, they can’t stop it.”486 To her, it was clear that CSIS had advance
knowledge of the threat to Air India on the weekend of June 22, 1985.
Statement #2: “Rogue Elements” to Bring Down a Plane
Pinos was at the rogatory commission acting as Counsel for CSIS. He was
responsible for overseeing CSIS witnesses and raising objections where
necessary to protect the interests of the Service. He did not attend the
proceedings regularly, but rather was given a pager and would be called to
attend court if issues arose or a witness testified on matters related to Canadian
national security.487
Pinos befriended Deschenes, who was also on a similar “watching brief”. On
June 19th, Pinos and Deschenes were having a casual chat over drinks at the
hotel pool.488 Pinos recalls Deschenes speaking in a way that was totally out of
character for an intelligence officer. Pinos had been a Crown criminal prosecutor
for 10 years and had learned that intelligence officers only told you what you
needed to know. Deschenes was telling Pinos things that he had no need to
know.489
Deschenes spoke about the nature of the Armenian terrorist threat. He then
said, “They aren’t our real problem, our real problem is something else.”490 The
“real problem” according to Deschenes was:
[T]here are rogue elements of the Indian Security Service
operating in Canada in the ... Sikh community.... they were
non-responsive; they were out of control.... and [Deschenes]
perceived them as being dangerous, you know, likely they’d ...
take a plane out of the sky.491
The next morning, June 20th, Pinos knocked on Deschenes’s room door for their
regular breakfast meeting, but discovered that Deschenes had checked out
unexpectedly. Later that day, Pinos learned that the commission hearings had
been adjourned sine die that morning due to Justice Lacey’s illness.492
When Pinos learned about the Air India and Narita bombings later that weekend,
he was greatly upset. He recalls saying, “Holy expletive, they knew, they knew.”
He had no doubt in his mind that Deschenes had prior knowledge of the Air
India and Narita tragedies.493
486
487
488
489
490
491
492
493
Testimony of Michael Anne MacDonald, vol. 30, May 17, 2007, p. 3286.
Testimony of Graham Pinos, vol. 30, May 17, 2007 pp. 3343-3353.
Testimony of Graham Pinos, vol. 30, May 17, 2007, pp. 3347-3354.
Testimony of Graham Pinos, vol. 66, October 25, 2007 p. 8182.
Testimony of Graham Pinos, vol. 30, May 17, 2007 pp. 3347-3348.
Testimony of Graham Pinos, vol. 66, October 25, 2007, pp. 8181-8182.
Testimony of Graham Pinos, vol. 30, May 17, 2007, p. 3349.
Testimony of Graham Pinos, vol. 30, May 17, 2007, pp. 3350-3351, 3362.
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Response by Mel Deschenes
Mel Deschenes did not testify at the Air India Inquiry. However, the allegations
of advance knowledge were raised with Deschenes several times over the
course of the Air India investigation. Deschenes’s responses to these allegations
are recorded in several documents, which were reviewed and entered into
evidence during the Inquiry hearings. 494
Deschenes is recorded as stating that he was not feeling well and left Los Angeles
as soon as his attendance at the commission was no longer required. He claimed
that the commission had suspended the hearing of witnesses on June 19th and
he returned to Ottawa via Toronto on June 20th. He admitted that he may have
made up a work-related excuse for his departure so that the prosecution team
would not feel abandoned. 495 At another interview, he claimed that he made up
the excuse to get out of a social event. 496 He insisted that his return to Ottawa
was not sudden and claimed that he would have checked with Pinos before
leaving.497 He maintained that he was not aware of any advance specific or
immediate threat to Air India.498
Timing of the Deschenes Departure
The Attorney General of Canada sought to bolster the credibility of Deschenes’s
narrative by attempting to undermine conflicting evidence as to the timing of
Deschenes’s departure offered by MacDonald and Pinos.499 It is therefore useful
to pinpoint whether Deschenes’s comments to MacDonald and Pinos occurred
before or after the proceedings were officially adjourned.
The most reliable record of the proceedings are the contemporaneous notes
of Mac Lindsay, who was Lead Counsel representing the Attorney General of
Ontario at the rogatory commission.500 Notably, Lindsay’s notes contradict
Deschenes’s claims and confirm the recollections of MacDonald and Pinos.
Deschenes stated that the commission suspended the hearing of witnesses
on June 19th and he returned to Ottawa via Toronto on June 20th. 501 Lindsay’s
notes show that the proceedings on June 19th were simply adjourned until the
494 Exhibit P-101 CAF0115, p. 1.: Letter from Deschenes dated November 25, 1988 to the Director General
of Counter Terrorism at CSIS Headquarters in response to a letter from Jardine; Exhibit P-101 CAD0003,
p.10: Notes of RCMP interview with Deschenes on December 17, 1990; Exhibit P-136, pp. 2-4: Notes by
Corporal Best on April 24, 2002 phone interview with Deschenes.
495 Exhibit P-136, pp. 3-4
496 Exhibit P-101 CAD0003, p. 10.
497 Exhibit P-136, pp. 3-4.
498 Exhibit P-101 CAF0115, p.1.
499 See the Final Submissions of the Attorney General of Canada, Volume I, paras. 208-209. The Attorney
General of Canada entered Corporal Douglas Best’s notes on a 2002 interview of Pinos that stated
“Pinos was never told by Deschenes that there was going to be a bomb”, calling this a critical omission.
In fact, Pinos testified about “planes being taken from the sky” not “bombs.” Best admitted that
he could not attest to whether the questions asked would have elicited a response about “planes taken
from the sky.” Another inconsistency about the timing of a subsequent conversation between Pinos
and Deschenes is immaterial to the substantive statement made by Deschenes in Los Angeles.
500 Exhibit P-137, pp. 1-6.
501 Exhibit P-101 CAF0115, p. 1.
�Chapter I: What Was Known About the Threat?
next day. Contrary to Deschenes’s claim that the hearing of witnesses had been
suspended, MacDonald testified that the hearings would have continued with
evidence for the following week if Justice Lacey had been well enough.502 In fact,
MacDonald testified that Lindsay spent the remainder of the day on June 19th
preparing witnesses. Furthermore, Lindsay’s notes show that the commission
reconvened on June 20th at 10:05 AM. Only then did Justice Ewaschuk announce
that Justice Lacey had returned to New Jersey and the official adjournment. 503
Both MacDonald and Pinos testified that they did not learn this news until June
20th. Meanwhile, Deschenes claimed that he knew this information on June 19th
and left Los Angeles on June 20th. The flight from Los Angeles to Toronto left
daily at 12:30 PM.504
It is difficult to conceive how Deschenes could have learned about the
adjournment on June 20th, sometime after 10:05 AM, and have had sufficient
opportunity to speak to MacDonald in the hotel lobby about his intention to
leave (particularly as she was in attendance at the proceedings downtown),
change his airline ticket and travel to the airport in time for the flight to Toronto
departing at 12:30 PM. This sequence of events is even more implausible
considering Deschenes’s insistence that his departure was not sudden.
The reasonable conclusion from the evidence is that Deschenes made his
comments to MacDonald and Pinos before the announcement of Justice
Lacey’s departure and the official adjournment of the proceedings and that
both MacDonald and Pinos are correct in their recall.
Observations
• Two witnesses testified that they believed that the Director General
of Counter Terrorism for CSIS had advance notice of a serious threat
to Indian interests in Canada on the basis of statements made
to them separately.
• The Inquiry evidence does not support Deschenes’s documented
explanation for his early departure from Los Angeles: that
it was known the hearings would not continue on June 19th and
his attendance was no longer required. Nevertheless, the
Attorney General of Canada continues to rely on this explanation.
Its Final Submissions even incorrectly contend that MacDonald
herself supports this point.505
• It seems bizarre that Deschenes would concoct an excuse to
leave if he had a valid reason for his departure. Even more difficult
to comprehend is the fact that the “excuse” he gave foreshadowed
502
503
504
505
Testimony of Michael Anne MacDonald, vol. 30, May 17, 2007, p. 3337.
Exhibit P-137, pp. 2-3, 6.
Testimony of Michael Anne MacDonald, vol. 30, May 17, 2007, pp. 3335-3336.
Final Submissions of the Attorney General of Canada, Volume I, para 209.
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tragedies that actually occurred days later. The improbability of
such a coincidence suggests that there must have been some truth
to Deschenes’s excuse; it is likely that concerns about the threat
of Sikh extremists were prominent in his mind. Did he leave
because of these concerns or did these concerns simply provide a
needed alibi?
• It is not essential to determine whether Deschenes went back to
deal with a “specific threat” to Air India. At a minimum, Deschenes
was troubled by a threat to Air India, a threat he attributed
to renegade elements of the Indian secret police who were “nonresponsive” and “out of control.”506 Deschenes, the head of CSIS’s
Counter Terrorism Unit at the time, indicated that this threat was
the “real problem” and accordingly, addressing this threat should
also have been the top priority for the CSIS Counter Terrorism Unit.
If the sudden departure of Deschenes was to respond to a “real problem,” the
safety of Air India Flight 182, the overall result was a failure. We can speculate
but cannot reach a conclusion about the reason for his departure. The question
still remains: Did CSIS commit sufficient resources and significance to the “real
problem”? It is obvious that CSIS did not.
1.9 Mr. Simpson’s Visit to the Air India Aircraft
Brian Simpson testified about the security culture at Pearson International
Airport in June 1985.507 He worked at the airport at that time and witnessed
a number of significant shortcomings in the airport security regime. Simpson
said he came forward to the Commission in 2007 because he was frustrated
about the lack of attention paid to the extremely lax security of the 1970s and
1980s.508
Simpson’s testimony and other evidence supports the conclusion that
carelessness and complacency at the Toronto airport were widespread, this in
spite of the fact that RCMP special constables and private security officers were
deployed to protect aircraft, screen passengers, and search baggage prior to
boarding.
Increased Security for Air India Flights
At the request of Air India, the RCMP provided increased security for Air India
flights in June 1985 because of the high threat level.509 On June 22, 1985, one
RCMP officer was in a marked patrol car and monitored the apron area where
aircraft were stationed. Another RCMP officer in a marked patrol car was
506
507
508
509
Testimony of Graham Pinos, vol. 66, October 25, 2007, p. 8181; Exhibit P-101 P-136, pp. 3-5.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3638-3714.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3651-3652.
Exhibit P-101 CAC0528, p. 46.
�Chapter I: What Was Known About the Threat?
stationed under the starboard wing of the aircraft.510 A further RCMP officer,
Special Constable Jurma Tulikorpi, was at the passenger check-in counter. At
3:45 PM, RCMP Special Constable Leo Anderson began to monitor the gate and
the secondary screening of carry-on baggage. Between 5:00 PM and 6:00 PM,
Anderson covered for Tulikorpi, monitoring two positions 30 feet apart.511
Air India had also contracted with Burns International Security to provide security
guards on a regular basis. Five Burns security guards were assigned to search
passengers and carry-on baggage,512 and six others were deployed around the
airport to provide other security functions. One guard was supposed to be
stationed at the inside of the aircraft door and another was assigned to watch
the door to the bridge leading to the aircraft.513 Three other security guards
were in the international baggage make-up room, using the X-ray scanner to
examine the checked baggage destined for the flight. A final Burns guard was
posted at a baggage conveyor belt to ensure that only approved baggage was
placed onto it.
Simpson Boards the Air India Aircraft Unchallenged
Perhaps in an attempt to minimize his testimony, the Final Submission of the
Attorney General of Canada (AGC) referred to Simpson as a “part-time janitor”.514
This is an error that must be addressed. Simpson was, in fact, an aircraft groomer
in 1985. He cleaned and serviced aircraft cabins as a student member of the
Cabin Services Department for Air Canada while he worked on his MBA at the
University of Toronto. After obtaining his Master’s Degree, he practiced law as
a barrister and solicitor in Ontario for fourteen years,515 and is presently VicePresident and CEO of a digital media company.
During the spring of 1985, Simpson and other members of the student team
would assist the regular cleaning crews in servicing the flights as they arrived.
At the start of each shift, Simpson would find out which flight he was supposed
to work on, and then walk through the terminal along the airside corridor to the
gate where the aircraft in question was located.516 The airside corridor ran the
full length of the airport and passed between the entrances to the bridges, on
the one side, and the departure lounge on the other.
Simpson was working at Pearson on June 22, 1985. He initially testified that he
might have started work at 1:30 PM, but subsequently conceded he more likely
started at 3:30 PM. On starting his shift, he determined that he was assigned to
an international flight and that he would have some time before the flight was
unloaded and he could go on board.
510
511
512
513
514
515
516
Exhibit P-101 CAF0143, p. 1.
Exhibit P-101 CAC0528, p. 45.
Exhibit P-101 CAF0143, p. 2.
Exhibit P-101 CAF0143, p. 2.
Final Submissions of the Attorney General of Canada, Vol. II, para. 214.
Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3638.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3640-3641.
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Simpson set out for the international terminal in no particular rush. He testified
that he invariably travelled on foot at the airport. Along his way from the
domestic terminal, Simpson saw the tailfin of an Air India aircraft through a
window in the airside corridor, which aroused his curiousity. He had never been
aboard an Air India flight, and he knew that the aircraft had come to the airport
after a flight halfway around the world.517 Simpson was interested in taking a
look at the cabin of the Air India 747, and since he had time to spare, he decided
to go aboard. He had a general interest in airplanes and airports, as his father
worked for Air Canada, and his family had travelled extensively.
Additionally, Simpson pointed out that the student groomers were generally
interested in knowing which flights and planes would be the dirtiest and the
most unpleasant to work on, in order to avoid them.518
Simpson walked to the international area where the Air India 747 was located.
He walked to the bridge door from the airside corridor. He testified that the
secure area doors, such as bridge doors, were subject to some alarming security
lapses. For example, although the bridge doors were supposed to be kept locked,
they were in fact frequently left open.519 Worse, the doors were supposed to be
secured by coded locks, but these access codes were often written down on the
wall near the lock. The door codes themselves were easy to guess: the common
practice was to use the three-digit gate number and add the prefix “four” to it.
Thus, the combination to the bridge door for gate 101 would be 4101. The codes
were also widely known.520 Finally, the door codes were not changed frequently.
In fact, they had apparently not been changed since at least 1979.521
Simpson’s observations are confirmed by an August 1985 letter written by
Ed Warrick, the Airport General Manager at Pearson. In his letter, Warrick
cautioned that these deficiencies were “...totally unacceptable from a security
viewpoint.”522
Simpson encountered no difficulty going through the bridge door and onto the
aircraft even though he had no business being on board. The Kanishka was a
jet belonging to Air India, an airline that operated under very high threat levels.
Accordingly its aircraft were to be protected by enhanced security measures. He
testified that he entered and descended the bridge and boarded the aircraft. He
found it dark, quiet, and empty. It had already been groomed. Simpson testified
that he spent approximately ten minutes aboard.523 He went to the galley and
looked into the washrooms. He ascended the stairs on the right-hand side of
the aircraft into the first class section. Finally, he went to the cockpit and sat in
the captain’s chair for a few moments to enjoy the view. He had access to the
entire plane.
517
518
519
520
521
522
523
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3641-3642.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3641-3642.
Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3676; Exhibit P-101 CAF0141, p. 1.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3643, 3676-3677, 3691.
Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3682; Exhibit P-101 CAF0555, p. 5.
Exhibit P-101 CAF0141, p. 1.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3643, 3645.
�Chapter I: What Was Known About the Threat?
Simpson testified that he saw no one aboard the aircraft, and was not challenged
at any point as he entered or exited the Air India jumbo jet. He saw no one near
the aircraft or at the door of the aircraft where it met the bridge, though there
may have been personnel in the departure lounge. He testified that posting
someone to monitor the aircraft at the head of the bridge would not cover any
traffic coming up from the ramp, halfway down the bridge. For the best security,
there would have had to have been someone at the aircraft door.524
Simpson emphasized that he would have avoided the aircraft altogether had
he seen police or security guards nearby. He described his entry as a matter of
acting on a whim – had he been challenged, he would not have gone aboard
the plane. Nevertheless, such forays were a relatively common occurrence
for airport personnel. There was little to deter someone from boarding any
aircraft, whether motivated by curiosity, mischief, or criminal intent. There was
no systematic record-keeping of who boarded or left an aircraft or why they
were going aboard in the first place. As Simpson put it, “...[t]here was nothing
stopping you.”525
Lack of a Security Culture at Pearson
As discussed in detail in Section 2.4 (Pre-bombing), Security Culture at Canada’s
Airports, the culture of security at Pearson airport was lacking in many respects.
Aircraft groomers and other airport staff were not briefed on security issues or
otherwise encouraged to see themselves as a distinct line of security in and
of themselves. Simpson, by admission, was frequently “delinquent” when it
came to displaying his identification pass at the airport. He invariably put it
in his pocket because it could easily be lost during work if it were clipped to
his uniform.526 He recalled that, in the period of time between his first summer
working part-time at the airport while still in high school in 1974, and 1993,
when he finished working at the airport, he had only been asked for his pass
twice. The Air Canada personnel with whom he worked did not hold airport
security in very high esteem. They saw it “as a joke”527 and gave little respect to
private security guards and RCMP special constables.
The Attorney General of Canada Challenges Simpson’s Story
Simpson was subjected to an aggressive cross-examination, which challenged
both his recollection of the events he described and his credibility. The AGC
also forcefully asserted that Simpson was mistaken when he testified that he
boarded Air India Flight 182 on June 22, 1985, and challenged the credibility of
Simpson’s testimony in four major areas:
Challenge 1:
524
525
526
527
Simpson was uncertain as to the time he was on board the
aircraft;
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3644, 3648.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3645-3649, 3684.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3650, 3681.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3684, 3697.
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Challenge 2:
Challenge 3:
Challenge 4:
Simpson would have been seen by the duty guards if he had
been present;
Simpson’s memory of the events was unclear after so many
years; and
Simpson did not tell anyone about his experience.
Simpson’s Time on Board the Plane
The AGC Final Submissions maintain vigorously that Simpson’s story lacks
credibility”528 including claims of inconsistencies in his evidence as to when his
shift started and a negative inference drawn from his inability to say precisely
when he boarded the aircraft, as well as a claim that it was a chronological
impossibility that Simpson could have visited the aircraft when he did based
on the timing in his testimony. Counsel for the RCMP suggested on crossexamination that Simpson was mistaken about his observations, putting it to
him that the Burns personnel were present during the cleaning of the aircraft
cabin and that the cleaning took place for two hours, from approximately 2:30
to 4:30 PM.
There is a great deal of ambiguity as to how long the cleaners were aboard
the aircraft, or even as to when they started. The lead station attendant for Air
Canada stated that he came aboard the Air India flight at approximately 2:30
PM.529 Others stated they came aboard at 3:00 PM,530 and others at “about” or
“approximately” 3:30 PM.531 In all, 26 individuals gave statements to the RCMP
about their presence that day.532 Neither Simpson nor Commission counsel
had access to all of these statements prior to his testimony. Only three out of
the 26 individuals cleaning the aircraft stated they finished at 4:30 or 4:40 PM,
and stated these times only in approximate terms.533 Furthermore, a review by
Commission counsel indicated that of the 26 interviews, 20 made no mention
at all of how long they were aboard the aircraft or at what time. Given the size of
the cleaning crew and the inconsistent estimates of the times involved that day,
these written statements do little to rebut Simpson’s evidence that he was able
to board the aircraft sometime around 4:00 PM and that he found it empty.
Simpson maintained that two hours would be an unusually long time to clean
an aircraft, and that one and a half hours (ending at 4:00 PM) was more likely
528
529
530
531
532
Final Submissions of the Attorney General of Canada, Vol. II, para. 215.
Exhibit P-101 CAF0153, p. 1.
Exhibit P-101 CAF0154, p. 1.
Exhibit P-101 CAF0145, p. 1 and CAF0147, p. 1.
All 26 statements were disclosed and entered into evidence. Many of these statements were entered
on December 13, 2007 as a compendium of documents on DVD as Exhibit P-391. A list of the 26 Air
Canada groomers interviewed by the RCMP is available at Exhibit P-391 document 158
(Public Production # 3291). Their statements can be found at Exhibit P-101 CAF0144, CAF0145,
CAF0146, CAF0147, CAF0148, CAF0153, CAF0154 and Exhibit P-391 (Public Production # 3292, 3293,
3294, 3295, 3296, 3297, 3298, 3299, 3300, 3308, 3309, 3310, 3311, 3312, 3313, 3314, 3315, 3316, 3325,
3326). These are part of an omnibus disclosure on DVD in P-391 and were assigned no CAF Tab
Numbers.
533 Exhibit P-101 CAF0144, p. 1, CAF0147, p. 1, CAF0153, p. 1.
�Chapter I: What Was Known About the Threat?
for the usual deployment of 12 to 16 people.534 The fact that there were actually
26 cleaners aboard the aircraft on June 22, 1985 potentially reduces that time
requirement. Among the widely varying estimates of time provided by the
cleaning crew were statements from Air Canada supervisors that their duties
required only one hour − or even just half an hour.535
Paul Gawronski worked at Pearson on the day of the bombing as an Air Canada
station attendant foreman for cabin services. He indicated in a statement that
he is “...normally on flight for one hour but it only took one-half hour to do flight
181. Notice[d] one male and one female security guard.”536
The evidence about time aboard the aircraft is taken from witness statements
from the cabin cleaners and other personnel who were present at Pearson that
day. As noted, some of the 26 witness statements were not produced prior to
the hearings. The AGC cross-examined Simpson on the basis of documents he
had never seen.
Although the AGC Final Submissions repeated the assertion that Simpson’s
testimony was contradicted by statements made following the bombing, no
reference was ever made to a document that corroborated Simpson’s testimony.
Among 11 of the 37 documents submitted as evidence on December 13, 2007537
was a witness statement given by Vincent Ezoua to the RCMP in October 1985
in the course of their investigation of the bombing. Ezoua was a checker for CP
Air Flight Kitchens, and was responsible for stocking the aircraft galley.538 He
worked at Pearson on June 22, 1985, and arrived at the aircraft at approximately
3:30 PM.539 He stated that when he arrived, he was told there was no room in
the galley for the wet bar. He decided to check for himself, and found that there
was no space. Instead, he loaded the sandwiches and juice and left the wet bar
behind.
When asked if he observed anything out of the ordinary, Ezoua stated that
he saw a stranger coming down from the first class section of the aircraft. He
described the stranger as a young man who appeared to be about 20 years old
and someone he had never seen before. Significantly, Simpson testified that
he had gone up to first class during his visit to the aircraft.540 Ezoua frequently
serviced Air India flights and he was sure the stranger was not an Air India
agent.541
534
535
536
537
538
539
540
541
Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3707.
Exhibit P-101 CAF0148, p. 1, CAF0154, p. 1.
Exhibit P-101 CAF0148, p. 1.
Exhibit P-395. Commission counsel subsequently requested that the outstanding 26 documents be
produced in redacted format for public disclosure in order to complete the evidentiary record.
Exhibit P-395, p. 74.
Exhibit P-395, p. 74. It should be noted that the CP Air Flight Kitchens drivers, Ralton and Dalton
Lawrence, indicated in their statements that they were at the aircraft starting at 3:30 PM (see
Exhibit P-395, p. 72) or 4:00 PM (see Exhibit P-395, p. 61). Ezoua noted seeing the drivers in his
statement and they stated they did not see him, so he probably arrived at the aircraft somewhat
later than 3:30 PM. The statements of all three were taken several months after the bombing, so these
times should be considered approximate.
Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3644.
Exhibit P-395, p. 75.
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Ezoua did not get a good look at the young man. Given that he did not recognize
the stranger, however, it is unlikely he was someone Ezoua would expect to
see on the aircraft, such as a member of the regular cleaning crew or a security
guard. It would appear almost obvious that the stranger was Simpson. It is
certainly significant that Ezoua saw an unfamiliar young man aboard the aircraft
during the afternoon of June 22, 1985, the time when Simpson testified he was
aboard. In any event, Ezoua did not challenge the stranger, and carried on with
his work.
Moreover, the AGC submits that had Simpson attempted to board after 4:40
PM, he would have encountered “...several Burns guards and RCMP officers.”542
Although the AGC insisted during cross-examination that there was an RCMP
officer in the departure lounge, Simpson replied that while this may have been
the case, he did not recall this. He testified that there was no single lounge for
the Air India gate. There was a very large lounge for all international flights, and
there could very well have been Burns personnel and RCMP present.543 It does
not necessarily follow that Simpson noticed them, or that they took any notice
of him.
The written statements do not contradict Simpson’s evidence. Special Constable
Anderson provided a statement on June 30, 1985, indicating that on June
22, 1985, he was posted in the lounge area watching gate 107, which led to
the bridge to the aircraft, and stated he checked the identification of anyone
entering.544 One cleaner out of the 26 who provided statements indicated that
his identification pass was checked by an RCMP officer.545 Simpson testified that,
although posting someone at the bridge between the lounge and the aircraft
would be effective, that person would miss anyone coming up the ramp which
is halfway down the bridge.546
The statement of Special Constable Tulikorpi indicated that he joined Anderson
at 3:45 PM, and until 6:50 PM they watched Burns security personnel hand
search carry-on baggage while guarding the bridge.547 This means that, for a
time, the attention of the officers would have been away from the aircraft and
the interior of the bridge where Simpson would have been. As stated earlier, in
the hour between 5:00 PM and 6:00 PM, Anderson was covering for Tulikorpi,
working alone and monitoring two positions 30 feet apart.
According to Burns guard Peter Zammit’s statement, prior to the arrival of the
cleaning crews, he and Rae Ann Belasco had completed their checks and were
positioned at the aircraft door and the L-shaped area on the bridge to the
plane. He stated that they would switch back and forth, relieving one another.
Subsequently, the cleaning crew would be allowed on. Zammit stated the
guards were flexible in their deployment and sometimes both he and Belasco
542
543
544
545
546
547
Final Submissions of the Attorney General of Canada, Vol. II, para. 221.
Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3708.
Exhibit P-101 CAF0140, p. 2.
Exhibit P-101 CAF0145, p. 1.
Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3648.
Exhibit P-101 CAF0152, p. 1.
�Chapter I: What Was Known About the Threat?
were on the aircraft monitoring the cleaners.548 It is therefore entirely possible
that they were away from the aircraft at some point during these movements,
whether before the cleaning crew arrived or after they left, even if only for a
brief time. Simpson could well have accessed the aircraft from airside during
such a window.
Counsel for both the AGC and Air India suggested during cross-examination that
Simpson was able to go aboard the Air India aircraft because he was wearing an
Air Canada uniform. As such, Simpson did not draw attention to himself because
he “...looked like everybody else working in the airside of the airport.”549
This line of reasoning reinforces, rather than undermines, the issues raised in
Simpson’s testimony. The key points were that he went aboard Air India Flight
181/182 on the afternoon of June 22, 1985, that he did so without being
challenged and saw no one aboard the plane. Had he been challenged or had
there been a visible police or security presence, he would not have gone aboard.
Simpson testified that he often put his security pass in his pocket and had
only been asked for it twice in all his time working at the airport. He evidently
blended into the background and people took no notice of him, including those
charged with maintaining security. Despite this, he had no business boarding
the Air India aircraft, and yet there is no evidence to suggest that he was ever
challenged.
Memory of the Event
The Attorney General of Canada also stated that Simpson had no documents to
refresh his memory 22 years after the fact.550 It should be noted, however, that
Simpson has an independent recollection of the event, and that he provided
testimony as to why the day stayed firm in his memory. Conversely, it is unrealistic
to expect Simpson to have precision about these time periods after 22 years,
particularly without any notes or written statement.
Simpson firmly rejected the assertions that he was mistaken and that there was
no period of time when the plane would have been empty. He insisted that he
had a strong recollection of the day for a number of reasons. He explained that
his family had a strong connection to aviation because of his father’s work, and
they had lived through the aftermath of prior accidents. These disasters stayed
with them. They were among the last people to see the victims alive. Simpson
also testified that as soon as he got out of bed on the morning of June 23, 1985,
his father told him the flight had been lost.551
There is another aspect of Simpson’s testimony that stands out. He testified that
later in his shift on June 22, 1985, he ran into a passenger agent with whom
he used to work. She had in her care a number of unaccompanied minors and
was escorting them to connecting flights. He had some free time, so he walked
548
549
550
551
Exhibit P-395, p. 49.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3689, 3698, 3705.
Final Submissions of the Attorney General of Canada, Vol. II, para. 224.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3685, 3709.
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with them to the international departures area. One girl in that group, about 12
years old, was going to fly to India aboard the Air India flight. Simpson recalled
talking to her about her flight, and about how brave she was for flying such a
long distance on her own. He was struck by how mature and polite she seemed.
They eventually parted ways, and the next day he learned that Air India Flight
182 had been lost. He met his friend the passenger agent the next day, and she
confirmed that the girl had been on the flight. The image of the little girl’s face
would haunt him forever.552
Simpson’s Alleged “Silence”
Another challenge made to Simpson’s credibility is the Attorney General of
Canada”s submission that Simpson did not recall sharing his experiences with
anyone in the aftermath of the bombing.553 When asked why he did not think
to call the RCMP after the bombing to report what he saw, Simpson replied that
the fact that he got on board the aircraft was a non-event. He had not seen
anything or anyone that struck him as suspicious.554 If he had seen anything out
of the ordinary, or even a suspicious package, he would have taken this action.
From his perspective, the ease of getting aboard an aircraft was absolutely normal;
he felt he could have stepped aboard any given aircraft that day without anyone
batting an eye.555 Simpson testified that, in the security climate of the time, there
was no stigma or sanction for going aboard an aircraft without authorization,
and such forays were commonplace. This evidence was uncontradicted.
In any case, there is evidence that Simpson did not remain silent. He testified
that he contacted the Toronto Sun about his story during 1986 or 1987, and he
contacted defence counsel in Vancouver during the Malik and Bagri trial. Nothing
came of these efforts. He also testified, on cross-examination, that he “must
have” told one of his supervisors the day after the bombing.556 He finally came
forward, in 2007, to Jacques Shore, Counsel for the Air India Victims Families
Association, and was put in contact with Commission counsel.
Observations
• The Commission accepts Brian Simpson’s evidence that he boarded
Air India Flight 181/182 without permission on June 22, 1985,
explored the interior, and was not challenged at any point in doing
so, in spite of the futile and misdirected cross-examination or
maybe because of the cross-examination of the Attorney General
of Canada that focused on Simpson’s credibility, wanting to
leave the impression that the incidents Simpson described had not
happened at all, that he intended to mislead the Commission. The
Commission does not accept any of this.
552
553
554
555
556
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3646-3647, 3685.
Final Submissions of the Attorney General of Canada, Vol. II, para. 224.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3693-3694, 3710.
Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3694.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3651, 3701.
�Chapter I: What Was Known About the Threat?
• Simpson was a candid and credible witness who presented himself
as an intelligent, articulate, and highly educated individual. He
was honest and frank in his testimony, even when discussing his
own lapses in security as an airport worker. As a lawyer who
practiced law for fourteen years, and who remains a Member in
good standing of the Law Society of Upper Canada, Simpson
was well aware of the need to be truthful and accurate when
testifying under oath.
• Although he did not have written notes to aid his memory with
respect to specific times and observations (and who in his position
would have made notes of what until the subsequent event was
a murder event?), there are good reasons for him to have a reliable
recollection of the events of June 22, 1985. The destruction of the
aircraft was a shocking and saddening event, and would have been
close to the hearts of those who worked at airports and aboard
aircraft on a daily basis. Simpson spoke with a young woman just
before she boarded that fateful flight, and found out the next day
that she had died in an act of terrible and senseless violence. He
also remembers lying in bed, thinking about the aircraft’s voyage
and his exploration aboard, only to hear of its destruction hours
later.
• Simpson evidently blended into the background and people took
no notice of him, including those charged with maintaining
security. Nevertheless, he had no business aboard the Air India
aircraft: but there is no evidence that he was ever challenged.
• Even if Simpson had general access to aircraft, the evidence he gave
was that aircraft access was frequently abused by airport personnel.
While such unsanctioned activities did not contribute to the
bombing of Air India Flight 182, it is clear that such free access to
aircraft could result in numerous opportunities – terrorist
or otherwise – by airport employees who were not highly paid, nor
routinely subject to criminal record checks, and not integrated into
the security culture of the airport.
• Although it was the duty of the RCMP Special Constables and Burns
Security officers to challenge individuals seeking to access the
aircraft, and check their identification, they kept no records of who
boarded the Air India flight or for what reason.
• Despite the fact that Air India’s operations were under heightened
security in June 1985, there were apparently no measures in place
to ensure that only those with legitimate business aboard the
aircraft actually came aboard.
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• On the basis of testimony from Simpson and other evidence, the
inevitable conclusion must be that there was widespread
carelessness and complacency at the Pearson airport in June 1985.
1.10 Serge Carignan and Arko the Explosives Detection Dog
Elsewhere in this report is a detailed discussion of the handling of the “three
suspect bags” incident at Mirabel International Airport (Mirabel).557 An important
factor in this story is the immense value of “bomb-sniffing” explosives detection
dogs and the tragic failure to use these resources effectively on June 22,
1985. This failure resulted from poor communications and from neglecting to
implement measures that were called for in light of the malfunctioning of the
checked baggage X-ray scanner and the unreliability of the baggage screening
equipment at Lester B. Pearson International Airport (Pearson).
Three Suspicious Checked Bags Removed from Air India 182
Three suspicious checked bags were located at Mirabel on the evening of June
22, 1985. The first bag was found between 7:00 and 7:30 PM, and the remaining
two were found shortly afterwards.558 Although the Burns supervisor notified an
Air India representative of the discovery shortly after the first bag was flagged,
the RCMP was not alerted to this fact until 10:00 PM. Air Canada’s operations
supervisor had contacted Air India at 9:10 PM and again at 9:45 PM regarding
the bags.559 At approximately 10:00 PM, he contacted the RCMP directly, as Air
India had not done so.560 The RCMP was barely aware of the situation when Air
India Flight 182 departed at 10:13 PM.561
When two RCMP officers arrived at the baggage area at approximately 10:00 PM,
they found to their surprise that the suspect bags had been left unattended on
the floor.562 The bags were X-rayed again and isolated.563 The RCMP explosives
detection dogs were not available at either Montreal or Toronto as they were
away with their masters at a training session. As discussed in Section 5.0 (Prebombing), The Day of the Bombing, serious consideration must be given to the
question of why all of the RCMP dogs were away at the same time during a
period of high threat to Air India.
SQ Explosives Detection Team Called after Flight Departure
The RCMP had an agreement with the Sûreté du Québec (SQ) specifying that
the SQ would provide explosives detection dog services at Mirabel in the event
that the RCMP coverage was not available. It was SQ Sgt. Serge Carignan’s
557
558
559
560
561
562
563
See Section 1.11 (Pre-bombing), The Cost of Delay – Testimony of Daniel Lalonde.
Exhibit P-101 CAF0089, p. 11.
Exhibit P-101 CAE0249, p. 8.
Exhibit P-101 CAE0249, p. 8, CAF0087, p. 14.
Exhibit P-101 CAF0091, p. 2.
Exhibit P-101 CAA0226, p. 1, CAF0095, p. 3.
Exhibit P-101 CAF0095, pp. 3-4.
�Chapter I: What Was Known About the Threat?
responsibility to assist at Mirabel in the event that the RCMP team could not.564
Carignan and his trained explosives detection dog, Arko, were the SQ explosives
detection dog team at Montreal.
Carignan and Arko had trained together to detect explosives since 1980 when
Arko was ten months old. Arko was trained to detect a wide variety of explosives,
such as dynamite, TNT, black powder, C-4, Detasheets, and RDX. The dog had
been trained to give a passive response when he smelled explosives – he would
sit down in front of the item containing the explosives. Carignan and Arko
had been deployed on a number of occasions, for example, during the 1984
Papal visit to Montreal, and were even sent to Toronto in April 1985 because
of a subway bombing scare. Carignan, now retired, clearly had a high opinion
of Arko. He described Arko as extremely adept at detecting explosives, to the
point of being capable of detecting very minute quantities.565
Carignan had experience searching aircraft, including Boeing 747s. It would
take approximately one hour to search the baggage of a 747, and two hours to
search the cabin. However, an explosives detection dog required a five to ten
minute break for every 30 minutes of searching.566
Carignan was contacted at his home by his supervisor in the late evening of June
22nd and was asked to report to Mirabel to assist in searching an aircraft and some
luggage. Preparation and travel to Mirabel took approximately 65 minutes. He
arrived at the Mirabel RCMP office, expecting that, once there, he would find
the baggage and cargo from the aircraft spread out on the tarmac for Arko to
sniff. This had been his experience in prior aircraft searches. He also expected
that he and Arko would inspect the aircraft’s passenger compartment. Instead,
Carignan was surprised to learn that the plane had already departed, and that
he and Arko would only be required to search the three suspect bags.567
The dog handler and the explosives detection dog went to the bunker area and
conducted the inspection at approximately midnight.568 No explosives were
detected, and after spending approximately 45 minutes at the airport, Carignan
drove home.569
Lack of Adherence to Security Policies
In 1985, the RCMP employed a threat response system which designated a set
of security responses for a given alert level. There were five threat levels in all,
with level 1 always being in effect.570 As the threat level increased, the required
security responses increased as well. The RCMP had imposed level 4 security
564
565
566
567
568
569
570
Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2662, 2664.
Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2662, 2669, 2673-2674.
Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2666, 2673-2674.
Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2665-2667; 2682.
Exhibit P-101 CAF0091, p. 2, CAF0094, p.3.
Testimony of Serge Carignan, vol. 26, May 9, 2007, p. 2669.
Exhibit P-101 CAA0025, p. 1.
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measures at Pearson and Mirabel airports for the month of June 1985.571 Level
4 was the second-highest threat level, and mandated the use of a dogmaster at
the airport.
The evidence points to RCMP policies that assigned a more active role to the
explosives detection dog team than was actually in practice at Mirabel on June
22, 1985. A document prepared by the RCMP Airport Policing Division in April
1986 entitled “Airport Security Measures in Relation to Air India Operations in
Canada” stated that level 4 security procedures included the requirement that
the “RCMP dogmaster will check any suspect luggage or package and will search
the passenger section of the aircraft before departure.”572 Moreover, a June 1985
Transport Canada Operations Centre briefing paper on the incident stated that
in accordance with the security arrangements provided by the RCMP, there
would normally be an RCMP dogmaster in the baggage area.573
The active presence and use of the explosives detection dog was called for at
this security level, especially given that the dog would be called upon to inspect
baggage and identify suspicious baggage no matter what security level was
in place. The RCMP should have been contacted upon discovery of the first
suspicious bag. With both its own and the Pearson-based explosives detection
team away, the RCMP should have called in the SQ explosives detection team to
inspect the baggage and the aircraft interior immediately. The aircraft should not
have been permitted to leave before these checks were completed, particularly
given the unusual break down of the X-ray machine and the inadequate PD4
used as a substitute. Collectively, these events, coupled with the incident at
Mirabel, mandated greater scrutiny of all checked luggage while the plane
was at Mirabel. The only explanation for the urge by Air India to depart Mirabel
quickly was the cost of keeping the plane longer.
Communications and Planning Failures Lead to Tragedy
Carignan has been haunted by this tragedy and by the decision made by others
to release the aircraft. He believes that, had he and Arko been able to search the
unaccompanied baggage on the flight as he had wanted to on the night of June
22, 1985, they would have found the explosives.574
When shown a briefing document575 provided by the RCMP to the Honourable
Bob Rae which claimed that an RCMP dogmaster checked any suspect baggage
and searched the passenger section of the Air India aircraft before departure,
Carignan stated that this was incorrect. He had not been given the opportunity
to search any part of the aircraft.576 On its face, however, this document
provides a good indication of what the RCMP evidently considered to be the
571
572
573
574
575
576
See Exhibit P-101 CAA0335, p. 8.
Exhibit P-101 CAC0528, p. 11.
Exhibit P-101 CAE0249, p. 6.
Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2671, 2678.
Exhibit P-101 CAF0335, pp. 8-9.
Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2671-2672.
�Chapter I: What Was Known About the Threat?
correct response to the situation at Mirabel. Similarly, Carignan described a
document provided by Transport Canada577 as incorrect because it too stated
that the flight had been screened by an explosives detection dog prior to its
departure.578 A further Transport Canada briefing document shown to him by
Commission counsel stated that there was generally an RCMP dogmaster in
the Air India baggage area, but that the RCMP dog unit was away on June 22nd
and had been replaced by a dog unit from the Quebec Police Force (QPF).579
Carignan testified that this statement was also inaccurate, as he had not been
posted to the baggage area and had only searched three bags. The plane had
departed before he had even arrived at the airport.
Sgt. J.N. Leblanc, an RCMP member who was on duty at Mirabel that evening,
directed a special constable to contact Carignan after learning that Flight 182 was
airborne.580 Although the RCMP did have the authority to recall or deny takeoff
to an aircraft if they determined a threat existed,581 Leblanc decided not to call
the aircraft back given that the three suspicious bags were not aboard.582
Could the Bombing Have Been Prevented?
The obvious question is whether there was anything more that could have been
done at Mirabel to prevent the bombing of Air India Flight 182, even allowing
for hindsight. The Commission believes the answer is yes.
When the Kanishka departed from Pearson airport for Mirabel, the bomb was
already on the plane. It was concealed within a piece of checked baggage and
loaded onto a CP Air Flight at Vancouver International Airport flying to Toronto,
where it was delivered to Air India. Air India scanned checked baggage for
explosives using a large X-ray machine, but the machine malfunctioned on June
22, 1985, and only 50 to 75 per cent of the bags had been inspected when it ceased
to operate. John D’Souza, an Air India security officer overseeing the security for
the flight at Pearson and then at Mirabel, was advised of the malfunction. He
instructed the Burns Security guards at the baggage handling area to use an
electronic explosives detection device, the PD4, to screen the remaining bags.
As discussed elsewhere in this report, the PD4 was a singularly flawed device.
Tests conducted by the RCMP in January 1985 revealed that the device was so
unreliable that the RCMP and Peel Regional Police Force members present at
the tests concluded that they had no faith in its effectiveness whatsoever. Air
India officials were aware of one of the test failures,583 but continued to use it as
a backup for the X-ray machine.
577 Exhibit P-101 CAF0070, p. 2.
578 Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2672-2673.
579 Exhibit P-101 CAF0071, p. 5. It should be noted that the document refers to a QPF dog unit, when in
fact Carignan was a member of the SQ.
580 Exhibit P-101 CAF0095, p. 4.
581 See Testimony of Chern Heed, vol. 36, May 30, 2007, p. 4384. The Transport Canada management at the
Airport also had the ability to prevent an aircraft from departing.
582 Exhibit P-101 CAF0095, p. 4.
583 Air India was not informed of a second test failure conducted with a sample of plastic explosives by
either Transport Canada or the RCMP.
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Both Pearson and Mirabel airports had dedicated RCMP explosives detection
dog teams, but they were unavailable. Carignan provided backup explosives
detection dog services to Mirabel, but Pearson had no other team to call on.
The RCMP emergency procedures manual for Pearson airport indicated that
normally the RCMP explosives detection dog team at Mirabel would be used if
the Pearson dog was unavailable.584
Dr. Reg Whitaker of the CATSA Act Review Panel said it would have been
reasonable to hold back the flight’s departure from Mirabel until security issues
had been resolved, considering the failure of the X-ray scanner at Pearson
and the quantity of baggage that had been scanned by the ineffective PD4
explosives detection device, and given the absence of any explosives detection
dogs at Pearson. Such measures were especially prudent in light of the high
state of alert in June 1985 and the specific measures Air India had been directed
to implement meticulously in the June 1st Telex.585 According to Whitaker,
it was within D’Souza’s authority to insist on checking the baggage again or
implementing full passenger-baggage reconciliation. It was within his power
to prevent the flight’s departure. The RCMP and the Transport Canada airport
management also had similar authority.586
On the other hand, although the use of an explosives detection dog at Mirabel
would have been an effective means of addressing the security gaps that had
been encountered at Pearson, Rodney Wallis, an international civil aviation
security consultant to many governments, airlines and legal entities, and who
was Director of Security for the International Air Transport Association (IATA) in
1985, testified that he did not believe that the use of the SQ explosives detection
dog team to inspect all the checked baggage would have been called for, based
on the information available to airport officials. More information would have
been required to prompt officials to deplane all the passengers, unload the
baggage from its containers, and place it on the ground for the dog to inspect.
Once the plane departed Pearson, there was nothing more to be done. By the
time it arrived at Mirabel, it was too late.587
Wallis felt that the best and most realistic solution would have been to ensure at
Pearson that every bag was matched to a passenger aboard the flight through
proper reconciliation. Had thorough passenger-baggage reconciliation been
conducted at Pearson (meaning that every bag was linked back to a verified
boarding passenger before it was loaded onto the aircraft), the suitcase bearing
the bomb would have been identified because it would not have been matched
to a passenger and would have sat alone. Air India’s practice, however, was only to
match the number of boarding passes issued to the number of passengers who
boarded.588 At Mirabel, once the three bags had been isolated and the decision
584
585
586
587
588
Exhibit P-101 CAC0310, p. 16.
See Exhibit P-101 CAA0185, p. 1.
Testimony of Dr. Reg Whitaker, vol. 36, May 30, 2007, pp. 4370, 4383-84.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4420, 4423-4424.
Testimony of Rajesh Chopra, vol. 37, May 31, 2007, p. 4405.
�Chapter I: What Was Known About the Threat?
had been made not to load them aboard, there was no passenger-baggage
reconciliation, but instead there was a check on the number of passengers
boarding the aircraft against the tally of boarding passes issued.589
Even with hindsight, it is incomprehensible that Air India officials at Mirabel were
aware of the problems at Pearson and yet declined to call in the RCMP and the
available explosives detection dog team at the first opportunity to ensure that
no explosives had slipped past the malfunctioning X-ray machine or the useless
PD4. The June 1st Telex pointed to a special threat to Air India flights during the
month of June, and Air India had been directed to implement anti-sabotage
measures meticulously for the entire month. The RCMP too had implemented
heightened security for all Air India flights at Pearson and Mirabel in the month
of June, based in part on the airline’s urging. They too could have recalled the
aircraft based on the threat it faced. At a time when no security measure should
have been overlooked, few of the authorities responsible for the safety of Air
India Flight 182 responded with any sense of purpose to the numerous failures
and warning signs that day. Had the officials on the ground at Mirabel been
alert to the threat level and the security failures of the day, they might have
been motivated to take the additional precautions referred to by Wallis. Such
information could have led to actions that the RCMP told the Hon. Bob Rae had
been taken.
Observations
• In January 1985, Air India had revised its security program to
include additional measures which provided whenever a suspicious
bag was located, the passenger to whom it belonged would be
contacted and asked to open the bag. If the passenger could not
be located, the bag would be isolated, and the RCMP and an
explosives detection dog would be brought in to examine the bag
in question.590 No Air India representative at Mirabel took any
of these steps once the suspicious checked bags were identified.
The aircraft was allowed to depart with those passengers on board
and without any attempt to alert the RCMP.
• The RCMP had imposed level 4 security measures at Pearson and
Mirabel airports. In 1985, the RCMP employed a five-level threat
response system which designated a set of security responses for
a given level of alert. Level 4 was the second-highest threat level,
and mandated the use of a dogmaster at the airport.
• The RCMP should have been contacted upon discovery of the first
suspicious bag. With its own explosives detection dog units away,
the RCMP should have called in the SQ explosives detection dog
unit to inspect the baggage and the aircraft interior.
589 Testimony of Jainul Abid, vol. 89, December 5, 2007, p. 11699.
590 Exhibit P-101 CAA0118, p. 2.
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• Compounding failures at Pearson and Mirabel resulted in a
decision to allow the flight to depart without the use of an
explosives detection dog. In light of the failure of the X-ray scanner
at Pearson, the ineffective PD4 sniffer device, and the absence of
an explosives detection dog at Pearson, Air India should have taken
swifter and more decisive action at Mirabel both in contacting the
authorities and following the prescribed procedures.
• Air India failed to take decisive action and contact the RCMP once
the suspicious checked bags were identified. Concern about
further delaying the already off-schedule flight and incurring
further expense immediately closed the minds of the Air India
personnel at Mirabel to the possibility of seriously contemplating
any extra security measures.
• With knowledge that shortcuts had been taken at Pearson airport
and that security may have been compromised through a failure to
conduct proper passenger-baggage reconciliation, the
identification of three suspect bags gave the authorities at Mirabel
a second chance to do the right thing. Had they followed the
required procedures, it is probable that Carignan and Arko would
have detected the bomb. By ignoring procedure and delaying
contact with Carignan, the aircraft was allowed to depart, and with
it the last opportunity to thwart the bombing.
1.11 The Cost of Delay – Testimony of Daniel Lalonde
A Burns Security Officer Comes Forward
Daniel Lalonde approached the Commission to offer his perspective on the
level of security readiness on the ground at Mirabel in June 1985. He worked for
Burns International Security at Mirabel that summer. He was 18 years old, and
it was his first job. Lalonde became an Ontario Provincial Police officer in 1991,
and at the time of testifying held the rank of sergeant.591
As a security officer charged with the responsibility of protecting the travelling
public and using an X-ray scanner to search carry-on baggage for weapons and
other dangerous objects, Lalonde was paid the minimum wage of $4.00 an
hour. He had no prior work experience, let alone security experience. His formal
training for that role consisted of watching a one hour video on the operation
of the X-ray scanner showing images of the types of dangerous articles to watch
for, specifically a handgun and a stick of dynamite. Lalonde was then put to
work and learned on the job. To his knowledge, there was no follow-up on this
training, and no evaluation or testing of skills.592
591 Testimony of Daniel Lalonde, vol. 29, May 16, 2007, p. 3117.
592 Testimony of Daniel Lalonde, vol. 29, May 16, 2007, pp. 3116-3117, 3131.
�Chapter I: What Was Known About the Threat?
Lalonde testified that he paid attention to the trials and reports connected to
the bombing of Air India Flight 182, knowing that he had made a statement and
might be called to give evidence. Having followed testimony about the events
at Mirabel, particularly that of Serge Carignan, Lalonde came forward to the
Commission.593 Carignan, as noted, was the Sûreté du Québec dogmaster who
ultimately inspected the three suspicious bags found at Mirabel with his bombsniffing dog, Arko, and determined they did not contain explosives. Lalonde felt
that his evidence would help complete the picture of events at Mirabel on June
22, 1985.
Suspicious Bags Found During Lalonde’s Shift
There was a great deal of security and police activity at Mirabel when Lalonde
began his shift that day.594 He had never before seen so many security guards
posted for a single flight. Lalonde was assigned to work at a security checkpoint.
He and the other guards knew there was a high alert level for the Air India flight,
but he was surprised to be asked to hand-search carry-on bags even after they
had been run through the X-ray scanner.595
Sometime before the check-in screenings were completed, Lalonde’s supervisor,
Réal Gagnon, directed him to assist a number of other security officers in the
X-ray scanning of checked baggage.596 Lalonde had never done this before. In
fact, he had never before seen nor operated the type of X-ray machine that was
in the baggage room. He had no training in screening large items like checked
baggage and did not know how the images of their contents might differ from
smaller bags, or what to do in the event he noticed something unusual. In
responding to the events that unfolded next, he had to improvise without any
instructions.597
During the examination of checked baggage, several bags caught the attention
of the security officers. When these bags were scanned, the machine’s display
indicated dark, opaque areas which could not be penetrated by X-rays.598 Such
opaque areas were suspicious because they could indicate the presence of dense
materials such as the metal, wiring, and explosives that make up a bomb. X-ray
technology used to screen baggage in 1985 was described as primitive and “...
cosmetic more than effective” by the experts who testified at this Inquiry.599
One suspicious bag was found between 7:00 and 7:30 PM600, and two others
were found shortly afterward. Each time such a bag emerged, Lalonde and the
other Burns personnel would gather around the image on the X-ray machine’s
display screen and discuss their opinion of what the image indicated. Lalonde
593
594
595
596
597
598
599
600
Testimony of Daniel Lalonde, vol. 29. May 16, 2007, pp. 3128-3129.
Testimony of Daniel Lalonde, vol. 29, May 16, 2007, p. 3118.
Testimony of Daniel Lalonde, vol. 29, May 16, 2007, pp. 3118-3119.
Exhibit P-101 CAF0090, p. 1. See also Testimony of Daniel Lalonde, vol. 29, May 16, 2007, p. 3119.
Testimony of Daniel Lalonde, vol. 29, May 16, 2007, pp. 3120, 3136, 3139.
Testimony of Daniel Lalonde, vol. 29, May 16, 2007, p. 3120.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4256-4257.
Exhibt P-101 CAF0089, p. 11.
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testified that he concurred with the opinion that the bags were suspicious.601
Once flagged, these suspicious bags were held aside and not loaded into
baggage containers. They were placed on the floor next to the X-ray machine.
The Cost of Delay
The aviation security regime in place in 1985 placed considerable responsibility
upon airlines such as Air India to ensure that commercial air travel was safe. They
bore the costs of measures such as employing private security guards and any
screening of checked baggage, including the cost of the X-ray scanner used for
such screening. This meant that the airlines would weigh their security expenses
against the need to remain profitable. Any delay was expensive. Rodney Wallis
testified that, in 1985, the cost of delaying the takeoff of a wide-bodied jumbo
jet like the Kanishka was between $10,000 and $18,000 an hour.602
The Kanishka was significantly delayed at Pearson because of difficulties
encountered in loading its unusual payload, a fifth engine pod mounted to its
wing. The engine had failed on a previous Air India flight and had been stored
in a hangar until it could be returned to India for servicing. On June 22, 1985, Air
Canada mechanics at Pearson began the installation of the engine pod onto the
aircraft’s left wing next to its own two engines. Several crates of engine parts
were also to be loaded into the aircraft’s rear cargo bay, but owing to the size
of the parts, it took longer than expected to load all the components and to
complete the installation of the engine pod.603
When Air India Flight 181/182 arrived at Mirabel at 9:10 PM on June 22, 1985, it
was already one hour and twenty-five minutes behind schedule.604
Air India Advised of Presence of Suspicious Bags
Gagnon advised Air India’s Traffic and Sales Representative, Jainul Abid, after the
first bag was found.605 Abid told Gagnon to wait for Air India’s security officer,
John D’Souza, who would be on the Air India flight from Toronto. D’Souza arrived
at Mirabel at 9:10 PM and was met by Abid at the Air Canada counter at 9:30 PM.
Abid then informed D’Souza that three suspicious bags were being held.606
In January 1985, Air India had revamped its security program and had included
additional measures, which provided whenever a suspicious bag was located,
the passenger to whom it belonged would be contacted and asked to open
the bag.607 Neither Abid nor D’Souza took this step. The plan also provided that
if the passenger could not be found or did not respond after being paged, the
601 Testimony of Daniel Lalonde, vol. 29, May 16, 2007, p. 3137.
602 Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4481-4482. See also Exhibit P 101 CAF0441, p. 6.
Wallis explained that this figure was for opportunity costs alone. It did not include additional costs
such as putting passengers up in hotels if the plane were delayed overnight.
603 Exhibit P-101 CAF0089, p. 7.
604 Exhibit P-101 CAB0434, p. 4.
605 Exhibit P-101 CAF0088, p. 1 and CAF0089, p. 12.
606 Exhibit P-101 CAF0093, p. 4.
607 The Air India security procedures, as well as those of the RCMP, are described in more detail in Section
1.10 (Pre-bombing), Serge Carignan and Arko the Explosives Detection Dog.
�Chapter I: What Was Known About the Threat?
bag would be isolated, the RCMP would be advised, and an explosives detection
dog would be brought in to examine the checked baggage in question. Again,
neither Abid nor D’Souza took these steps.
D’Souza proceeded into the baggage area once he learned of the three bags.
Lalonde testified that he was alone in the baggage room when D’Souza entered,
as the other security officers had gone on to perform other duties and he had
agreed to stay behind with the bags. 608
D’Souza asked Lalonde to operate the X-ray scanner and run the three bags
through it. He showed D’Souza the images of the bags and ran the bags at
different angles in an attempt to obtain a clearer image of their contents.609 As
the possibility that the bags contained explosives could not be ruled out by this
examination, D’Souza confirmed that the bags should not be loaded onto the
aircraft.
Cost Becomes a Factor in Air India 182 Takeoff
According to a written statement provided by Lalonde after the bombing,
D’Souza then wanted to speak to someone at the Air Canada office.610 Lalonde
showed him the way, leaving the baggage room unattended. At the Air Canada
office, D’Souza discussed the situation with an Air Canada representative.
Although D’Souza would subsequently attempt to minimize his role in the
security decisions made respecting Air India Flight 182, Lalonde’s impression
was that he was an imposing man with a military demeanour who appeared
to be firmly in charge. Lalonde remained nearby to assist D’Souza, but did not
participate in the discussion, as he was young, inexperienced, and not in a
position of any authority.611
Lalonde did overhear their discussion. He testified that it concerned time,
money, and the cost of keeping an airplane on the ground. At the end of that
discussion, D’Souza made the decision to clear Air India Flight 182 for takeoff.
Lalonde testified that the high cost of keeping the aircraft on the ground was
the deciding factor.612
In a statement to the RCMP three days after the bombing, Lalonde did
not mention the details of the D’Souza conversation with the Air Canada
representative. 613 Instead, he indicated that he had not paid attention, explaining
that due to his youth, inexperience, and his inability to recall what was said in
the conversation word for word, he felt nervous about giving the RCMP officers
imprecise information. The officer taking his statement had grown impatient,
608
609
610
611
612
613
Testimony of Daniel Lalonde, vol. 29, May 16, 2007, p. 3120. See also Exhibit P-101 CAF0090, p. 1.
Testimony of Daniel Lalonde, vol. 29, May 16, 2007, p. 3121.
Exhibit P-101 CAF0090, p. 2.
Testimony of Daniel Lalonde, vol. 29, May 16, 2007, pp. 3121-3122, 3129.
Testimony of Daniel Lalonde, vol. 29, May 16, 2007, pp. 3122, 3129.
Exhibit P-101 CAF0090, pp. 1-4.
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having being forced to rewrite a half a page of notes due to Lalonde’s inability to
provide exact times. Consequently, Lalonde decided that he would speak only
on matters about which he could give precise details.614
Lalonde testified that he was absolutely certain about the subject matter of the
conversation. He explained that the impact of such a large tragedy cemented
the events of June 22, 1985 in his memory. Lalonde’s shift ended at 1:00 AM on
the morning of the bombing, and he remembered his parents waking him up
only a few hours later and telling him about the crash. He can still replay the
day’s events in his head.615
Other evidence also indicates that Air India personnel, including D’Souza, were
concerned with the costs of delay. Michael Ciuffreda, the Burns International
Security supervisor for the guards providing security for Air India at Pearson in
Toronto, made a statement to the RCMP on June 25, 1985.616 He was clear that
D’Souza wanted him to commence passenger and carry-on bag screening as
quickly as possible. According to Ciuffreda’s statement, the Air India Security
Supervisor named “John” had authorized the use of the PD4 sniffer device when
the X-ray scanner used by Air India to examine checked baggage at Pearson had
failed. There is no doubt that the individual named “John” is John D’Souza.
Ciuffreda’s statement indicates that D’Souza “...was concerned about not having
the flight delayed by security.” He wanted to know whether it would be possible
to have the baggage examined more quickly. Ciuffreda refused to instruct
the Burns guards to speed up their searches.617 Ciuffreda reported this in a
subsequent RCMP interview, stating that D’Souza had asked him to hurry up
hand-searching of carry-on bags and that “...[D’Souza] didn’t want a delay.”618
For his part, D’Souza indicated in his statement to the RCMP that it was, in fact,
a different Air India employee who was concerned about delays. D’Souza stated
that Abid (the first Air India official to learn about the three bags) had made up
his mind in advance not to delay the flight any further by taking any additional
measures such as searching the flight.619
Air India itself had a strict policy concerning delays. In a letter dated March
15, 1985 to Air Canada’s general manager at Pearson, Air India’s acting airport
manager for Mirabel and Pearson airports wrote about a number of problems
concerning the flights to and from Toronto. He indicated that “Our Headquarters
in Bombay are very perturbed ... that we are getting numerous complaints from
our inbound passengers into Toronto for the lack of service received on arrival,
and no flights from Toronto are departing on schedule.” Following a meeting held
614
615
616
617
618
619
Testimony of Daniel Lalonde, vol. 29, May 16, 2007, p. 3127.
Testimony of Daniel Lalonde, vol. 29, May 16, 2007 pp. 3217-3218.
Exhibit P-101 CAF0139, pp. 2-4.
Exhibit P-101 CAF0139, p.3.
Exhibit P-101 CAF0142, p. 3.
Exhibit P-101 CAF0093, p. 14.
�Chapter I: What Was Known About the Threat?
at Pearson to “iron out” the problems leading to delays, Air India was pleased to
note that the most recent flight had been trouble-free and on schedule. The Air
India manager emphasized that all flights arriving on schedule would depart
on schedule, and all delayed flights would depart within two hours of the time
from which the aircraft checked in at the airport. He wrote: “This 2 hours ground
time for delayed flight is set by our Headquarters and is strictly followed by our
network world-wide.”620
When Air India commenced its operations from Pearson in January 1985, it
immediately began to complain about the rate of pay charged by Burns for
security personnel, stating it was too high. The airline sought to renegotiate,
threatening to investigate what was being paid to outside security agencies.621
Burns replied that Air India was being treated exactly the same as any other
carrier.
Air India’s contract with Burns also included a “no charge” policy if Burns was
given three hours’ advance notice of a delayed or cancelled flight.622 In the
absence of such notice, however, Burns would charge Air India a minimum of
four hours for each security officer who reported for duty. This meant that if a
flight was delayed without considerable advance warning, Air India would be
required to pay the four-hour minimum plus any additional hours of work caused
by the delay. Knowing Air India’s schedule changes, Burns seemed sensitive to
the carrier’s monetary concerns, and assured Air India that “...all efforts will be
made to cancel Security Officers in case of a delay or cancellation so as to avoid
any undue financial burden on Air India.”623
In May 1985, Air India’s strict policy against delays caused some embarrassment.
Some passengers complained that five pieces of their baggage had been left
behind during a recent flight. Air India expressed its concerns to the Burns branch
manager, who explained to Air India that the delay was a direct consequence
of Air India’s strict budgeting and scheduling for security matters. The security
officer examining checked baggage with the X-ray machine at Pearson before
the flight’s departure encountered a ten-minute period when no baggage had
come down the conveyor belt to the X-ray. He attempted to call Air India to see
if the flight had been closed and was ready to depart, but received no answer.
He contacted a second Air India representative, who said that the flight had
departed. Nonetheless, the security officer waited a further ten minutes. The
Burns manager explained that “...[b]eing quite aware of the client’s close scrutiny
and questions [concerning] unwarranted extra hours, Security Officer Noble
then packed up the X-ray machine and left the baggage area .... ” Sometime
later, the remaining bags arrived and there was no one to inspect them or have
them loaded aboard the plane. Intent on avoiding further incidents, Air India
subsequently agreed to allot additional funds to pay the security officers to
620
621
622
623
Exhibit P-283, Tab 29, pp. 1-2.
Exhibit P-283, Tab 27, p. 3.
Exhibit P-284, Tab 39, p. 1.
Exhibit P-284, Tab 39, p. 1.
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remain at their posts until the estimated time of the aircraft’s departure.624 That
this was an issue at all is certainly indicative of the budget-conscious mentality
of the airline and the times.625
The June 22nd evidence supports the conclusion that D’Souza was very concerned
about further delay to the flight, pushed behind schedule as it was by the
installation of the fifth engine pod. He asked Ciuffreda, the Burns International
Security supervisor, to have his employees rush through the hand-searching
of carry-on bags. Also worth considering is the question of whether D’Souza’s
decision at Pearson Airport to authorize the use of the PD4 sniffer device to
examine checked baggage when the X-ray scanner failed may also have been
influenced by his desire to eliminate further delays, especially in light of the
very cursory manner626 in which he demonstrated the scanners’ use to security
officers who had not operated them before.627
Balancing Security against Efficiency and Profitability
The balancing of security concerns against efficiency and profitability was not
unique to any one airline or agency.
As the CATSA Act Advisory Panel noted in their report, the 1980s were a period
of deregulation, downsizing, and privatization. Resources for airport security
were scarce, an example being the “thinly stretched” 11 regional inspectors
responsible for inspecting the approximately 70 air carriers operating at dozens
of airports across Canada, and for enforcing the regulations governing both
aviation security and the transportation of dangerous goods. As the report
stated, “All planning for security measures was taken within this framework of
cost limitation and reduction.”628
The cost-cutting mentality prevalent in aviation security circles in the 1980s
included a 1985 proposal by the Office of the Auditor General to reduce the
RCMP presence at Canada’s 10 major airports by up to 50 per cent and to
replace them with commissionaires and private security guards, for a savings
of approximately $4.5 million per year. The Auditor General’s Office urged this
624 Exhibit P-284, Tab 60, pp. 1-2.
625 An Air Canada “Memogram” dated May 26, 1985 recounts a slightly different version of this chain of
events. According to the handwritten document, the five Air India bags were refused by security when
they arrived at 6:15 PM, some 20 minutes prior to the departure of the flight. The document indicated
that the guards “only get paid until 1800.” The guards, who by that time were no longer being paid,
evidently failed or refused to examine the bags by X-ray, and Air India refused to load unscreened
baggage. The flight departed without them, causing some consternation on the part of Air Canada,
and the author of the note expressed the concern that “…to-day we have five bags next time it could
be 25.” See Exhibit P-283, Tab 30, p. 1.
626 Exhibit P-283, Tab 35, p. 1. The statement of A.D. Coutinho of Burns Security indicates that D’Souza
explained how the hand scanner worked and demonstrated its use with a match.
627 Exhibit P-101 CAF0142, p. 6. Ciuffreda indicated in his statement that to his knowledge James Post,
the Burns employee who used the PD4 sniffer to examine checked baggage for the Air India flight
when the X-ray scanner failed, had never used the device before. He did not train Post in its use.
628 Exhibit P-157, pp. 21, 54.
�Chapter I: What Was Known About the Threat?
measure, arguing that “...these challenges have to be met to reduce security
costs to a level closer to aviation industry’s standards and maintain them in
balance with security risks to civil aviation.” 629
A 1983 draft report prepared by Transport Canada’s Management Systems
Branch, reporting on the findings of the Aircraft Cargo/Baggage Security
Measures Study, made the following observations concerning the relationship
between the air carriers and other parties along with their security procedures
and methods of enforcement:
Security costs money and delays service. As a result, profitconscious carriers are tempted to reduce the level of effort
involved in maintaining preventative security measures, the
effect of which would be a general lowering of one’s guard.
This would be a very dangerous policy to follow, for the ability
to cope with an extreme condition if and when it should arise
would be eroded to such a degree that overkill decisions
would be made when an emergency arose which would
cost more, cause more disruption, delays to services and bad
publicity than the emergency warrants.630
In July 1984, Transport Canada prepared a position paper on security baggage
checks at airports. In the discussion of current challenges, the paper noted
problems associated with the use of private security officers to carry out
the carriers’ security responsibilities. In particular, the reduced incidence of
hijackings, the small number of weapons found by private security guards
during baggage searches, “...plus poor pay, frequent turnover of staff and lack
of support or recognition by air carrier personnel, make it difficult to maintain a
well-trained, motivated and competent group.” The paper emphasized the need
for continuous training and noted that carriers were “...being reminded of their
responsibilities in this area.”631
Lalonde testified about his general observations of security at Mirabel
International Airport in the summer of 1985. He pointed out that security was
in the hands of inexperienced employees who earned minimum wage and who
were not necessarily focused on their jobs, or who likely did not fully understand
how critical their job was to the safety of passengers. This was despite the fact
that tasks such as screening passengers and baggage and properly operating
X-ray scanning equipment required attention, skill, and diligence. He testified
that:
629 Exhibit P-101 CAF0655, pp. 5, 23. This followed the decision by Transport Canada to phase out the
RCMP presence at eight major “Class II” domestic airports. For its part, however, the response
by Transport Canada’s Director of Civil Aviation Security to the recommendations of the audit report
was unequivocal: “Had you checked with the security and intelligence community, I am sure
you would have been convinced that now is not the time for such a move as Canada is seen as a ‘weak
link’ internationally and recent reports to Cabinet say that we must be increasing the visibility of
the police presence.” See Exhibit P-101 CAF0660, p. 1.
630 Exhibit P-101 CAF0565, p. 20.
631 Exhibit P-101 CAF0644, p. 5.
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Certainly it could have been done by more experienced, better
trained, more focused people who paid more attention to
what they were doing no doubt, and I include myself in this.632
The investigation of the bombing of Air India Flight 182 revealed that many
Burns Security personnel were unqualified to do their jobs. Low pay, minimal
training, and high staff turnover evidently created a situation where employees
were poorly motivated and failed to perform well.633 The Canadian Air Safety
Board submissions to the Kirpal Inquiry stated that “...[t]he statements taken
from Burns Security personnel in Toronto indicated that a significant number
of personnel, including those handling passenger screening, had never had the
Transport Canada passenger inspection training program or, if they had, had
not undergone refresher training within 12 months of the previous training.”634
Where tight budgets and increasing expenses collide, tradeoffs result. Lalonde’s
testimony was candid and credible. He strongly suggested that the expense of
further delaying the flight’s departure was a significant factor in the decision to
clear Air India Flight 182 to depart Mirabel.
Observations
• Neither Air India nor Burns Security officials at Mirabel Airport
followed the steps required by Air India’s updated security program
with respect to suspicious bags.
• It is possible that monetary considerations, such as the expense
caused by delay, along with related concerns such as “strict” ground
time policies, were being balanced against the diligent provision of
security to the passengers of Air India Flight 182.
• It is troubling that an aviation security regime would have entrusted
the implementation of many security measures to profit-minded
entities operating in an environment with limited regulation and
severely constrained inspection and enforcement.
• Many Burns Security personnel were not qualified to do their jobs.
They were both poorly trained and poorly motivated, and provided
security of dubious quality.
• The lesson to be learned is that when corners are cut in the interests
of expediency and cost-effectiveness, the consequences can be
devastating.
632 Testimony of Daniel Lalonde, vol. 29, May 16, 2007, p. 3129.
633 Exhibit P-157, p. 24.
634 Exhibit P-101 CAF0089, p. 9.
�Chapter I: What Was Known About the Threat?
1.12 A “Crescendo” of Threats
Numerous Warnings of Impending Violence
The evidence heard at the Inquiry demonstrates that CSIS, the RCMP, the
Department of External Affairs (DEA), local police forces and Transport Canada
were collectively in possession of the following information about threats to Air
India and Sikh extremism:
• A plot to bomb one and possibly two Air India planes was
being hatched by Sikh extremists in the fall of 1984 (see Section 1.1
(Pre-bombing), November 1984 Plot). One conspirator was arrested
for other reasons, but there was information suggesting the plot
was not abandoned;
• In the fall of 1984, Ajaib Singh Bagri, a member of the Babbar Khalsa
(BK), a radical Sikh extremist organization, was allegedly nominated
to a committee to plan the hijacking of an Air India plane;635
• In January 1985, a prominent UK Sikh activist visited the BK in
Vancouver. In the past, this person had said that the names of Sikhs
who did not boycott Air India would be put on a “hit list”;636
• In February 1985, outspoken moderate lawyer Ujjal Dosanjh was
beaten with a pipe and nearly killed. He subsequently wrote to the
Prime Minister to warn him of the potential for violence in the Sikh
community; 637
• In March 1985, a member of the International Sikh Student
Federation (ISYF), another Sikh extremist organization with
significant membership and involvement in acts of violence, was
arrested at the Vancouver airport with part of an Uzi machine
gun;638
• In the spring of 1985, it was reported that Talwinder Singh Parmar’s
group, the BK, was working on a “...highly secret project.”639 Parmar
was considered by CSIS to be “...the greatest threat in Canada to
Indian diplomatic missions and personnel”;640
635
636
637
638
Exhibit P-101 CAA0099, CAA0103. See also, Exhibit P-101 CAA0101, p. 2 and CAA0110, p. 3.
Exhibit P-101 CAB0851, p. 6.
Exhibit P-101 CAA1099, p. 1; Testimony of Ujjal Dosanjh, vol. 80, November 21, 2007, p. 10173.
Exhibit P-101 CAB0207, p. 2, CAB0851, p. 6, CAC0290, p. 3. Note that the Sikh Student Federation was
the same organization as the ISYF: Testimony of Don McLean, vol. 21, May 1, 2007, p. 1992.
639 Exhibit P-101 CAC0290, p. 3.
640 Exhibit P-101 CAB0221, p. 2.
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• On June 1, 1985, Air India warned of the likelihood of sabotage
attempts against Air India planes by Sikh extremists using timedelayed devices, which could be placed in registered baggage (See
Section 1.2 (Pre-bombing), June 1st Telex );641
• In early June 1985, Vancouver area Sikh extremists, Parmar and
Inderjit Singh Reyat, conducted suspicious explosives experiments
in the forest, resulting in a loud blast, at the time (mistakenly)
believed to involve firearms (See Section 1.4 (Pre-bombing),
Duncan Blast);
• During the same period, Reyat was involved in a new temple in
Duncan whose leader was advocating cutting off all travel on Air
India;642
• In early June 1985, an unknown number of Sikhs from Vancouver
and Toronto were planning to attend a meeting in New York to
establish policy for the violent resolution of problems;643
• During a June 12, 1985 meeting involving ISYF members, a
prominent Sikh extremist stated, in response to questions about
the lack of attacks on Indian officials, that something would
happen “in two weeks” (See Section 1.6 (Pre-bombing), Khurana
Information);
• Throughout the month of June 1985, Parmar was involved in
suspicious conversations with his associates about “mailing letters.”
He specifically instructed an associate to obtain cash a few days
before the tickets for the June 22nd Air India flight 181/182 and
the C.P. Air Flight to Narita were picked up and paid for in cash;644
• In June 1985, the RCMP received “highly classified” intelligence that
left officials with no doubt that “...something was going to happen”,
and led to the conclusion that special security precautions for all Air
India flights to and from Canada were necessary;645
• Three days before the bombing, CSIS Counter Terrorism Director
General Mel Deschenes indicated that his biggest fear was that
rogue Indian agents would take a plane out of the sky (See Section
1.8 (Pre-bombing),Rogue Agents (Deschenes)); and
641
642
643
644
Exhibit P-101 CAA0185.
Exhibit P-101 CAA0276, p. 2.
Exhibit P-101 CAB0269(i); Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3893-3894.
See, generally, Exhibit P-101 CAD0180 and Exhibit P-102: Dossier 2,” Terrorism, Intelligence and Law
Enforcement – Canada’s Response to Sikh Terrorism”, pp. 38-41.
645 See Exhibit P-101 CAA0240, p. 2, CAC0445, p. 5; Testimony of Gary Clarke, vol. 28, May 15, 2007, pp.
3040, 3044-3046, 3085-3086.
�Chapter I: What Was Known About the Threat?
• Shortly before the bombing, DEA received highly classified
information about a threat to target an Air India flight (See Section
1.7 (Pre-bombing), Testimony of James Bartleman).
Continuous Threats to Indian Interests in Canada
In addition to this information, government agencies received numerous
warnings and significant information about threats to Indian interests in Canada,
including threats to Air India, throughout the lengthy period preceding the
bombing. The threat information came from all sources, including individuals in
the community,646 official warnings from the Government of India,647 warnings
issued by Air India Headquarters,648 and ongoing police and intelligence
investigations.649
The situation became increasingly alarming, especially after the June 1984
attack on the Golden Temple by the Government of India. For RCMP officers
involved in protecting foreign missions and airports, there was a sharp increase
in concern, and a “flurry” of reports from various sources about the threat of
Sikh extremism, in the year after the invasion of the Golden Temple.650 Between
June 1984 and June 1985, Air India was the subject of more threats than any
other airline.651 For the Terrorist/Extremist unit of the RCMP National Criminal
Intelligence Section (NCIS) in British Columbia, dealing with Sikh extremism
became the “...predominance of the workload”652 after June 1984. The level of
concern at CSIS had already risen, and authorization was sought for the highest
level of investigation.653 CSIS ultimately was to give “Top Priority attention” to Sikh
extremism in the spring of 1985.654 The intelligence agency prepared numerous
threat assessments about Indian interests and Sikh extremism during the year
preceding the bombing.655 Of the 70 threat assessments issued between July
14, 1984 and June 1, 1985, 13 either mentioned, or were devoted entirely to, the
threat to Air India.656
646 See, for example, Exhibit P-101 CAC0164, CAC0168, CAC0359, CAC0364, CAC0383, CAC0397. See also
Section 1.6 (Pre-bombing), Khurana Information.
647 See, for example, Exhibit P-101 CAA0211, CAB0097, CAB0244, CAC0262, CAC0279, CAC0293, CAC0316,
CAC0325, CAC0337, CAC0401,
648 See, for example, Exhibit P-101 CAA0083, CAA0084, CAA0161, CAA0164, CAA0185.
649 See, for example, Exhibit P-101 CAB0169, CAC0220, CAC0312, CAC0405 (RCMP investigations), Exhibit
P-101 CAC0269, p. 3 (Metro Toronto Police investigation), Exhibit P-101 CAA0147, CAB0205, CAB0243
(CSIS investigations).
650 Testimony of R.E. Muir, vol. 27, May 14, 2007, pp. 2909-2910, Testimony of Gary Clarke, vol. 28, May 15,
2007, pp. 3033-3034.
651 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2833; Testimony of Dale Mattson, vol. 29, May 16,
2007, pp. 3248-3249.
652 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4028-4029.
653 Testimony of Glen Gartshore, vol. 31, May 22, 2007, p. 3521.
654 Exhibit P-101 CAF0124(i), p. 1.
655 See, for example, Exhibit P-101 CAA0110 (October 26, 1984), CAC0235, Exhibit P-101 CAA0113
(December 6, 1984), Exhibit P-101 CAC0267 (January 18, 1985), Exhibit P-101 CAC0276 (February
21, 1985), Exhibit P-101 CAB0197 (February 27, 1985), Exhibit P-101 CAB0205 (March 28, 1985), Exhibit
P-101 CAB0207 (April 1, 1985), Exhibit P-101 CAA0147 (April 12, 1985), Exhibit P-101 CAB0221 (April 25,
1985), Exhibit P-101 CAB0851, pp. 3-8 (May 24, 1985), Exhibit P-101 CAA0165 (May 30, 1985), Exhibit
P-101 CAB0249 (June 4, 1985), Exhibit P-101 CAA0190 (June 5, 1985), Exhibit P-101 CAA0199 (June 6,
1985), Exhibit P-101 CAB0321 (June 18, 1985).
656 Exhibit P-101 CAB0902, p. 36. Already in March 1984, the Security Service wrote about the threat to Air
India: Exhibit P-101 CAC0105, pp. 3-5.
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The information received by Canadian agencies warned of possible attacks on
Indian missions,657 assaults against Indian diplomats and kidnappings of Indian
officials,658 as well as threats against Hindus or moderate Sikhs in general.659
Information was provided about the threat posed by particular individuals,
including Talwinder Singh Parmar, and about possible plots hatched in Canada
to attack Indian high officials outside of Canada.660 There were indications that
extremists were arming themselves or formulating plots to acquire weapons.661
Government agencies were informed about numerous threatening letters sent
from Canada to Indian officials in Canada and abroad.662 Canadian agencies
were also advised of the threats issued by Sikh extremists, such as the BK threat
to kidnap or kill the Vancouver Indian Consul General in June 1984,663 Parmar’s
public warning to the Indian Government that “...they’ll pay a price for attacking
the temple,”664 his invitation to “...unite, fight and kill” and his resolution that
Sikhs would “...kill 50,000 Hindus.”665
Possibility of Bombing
The Government was informed early on of the possibility that Sikh extremists
might resort to bombing. In 1984, Sikh extremists were reported to be
organizing “suicide squads” in Canada and the UK.666 There were frequent
threats of bombing aimed at Indian missions in Canada.667 Parmar vowed that
657 See, for example, Exhibit P-101 CAC0364, pp. 1-2, CAB0243 (May 31, 1985: plot to bomb Indian High
Commission in Ottawa and Indian Consulate in Vancouver on June 6, 1985); Exhibit P-129, p. 2 (May 17,
1985: possible attack on Indian mission during Gandhi visit).
658 See, for example, Exhibit P-101 CAC0205, p. 3 (August 1984: threat that car of armed Sikhs was coming
to make trouble for the flag-raising ceremony at the Indian Consul residence), CAC0290, pp. 3-4 (April
3, 1985: possible attacks on Vancouver Consul General), CAC0293, p. 3 (April 4, 1985: possible assault
on Vancouver Consul General), CAC0316, p. 3 (May 1, 1985: plot to attack Vancouver Consul General).
659 See, for example, Exhibit P-101 CAB0048, pp. 1-2, CAC0104, p. 3 (March 1985: threats to moderate Sikhs
and Hindus), CAC0312, p. 3 (April 23, 1985: possibility that “hit groups” will be sent to
Canada), CAC0359, p. 3 (May 29, 1985: broadcast that hit squad already in Canada to kill Sikhs).
660 In 1982, the Security Service warned that Parmar was connected with terrorist groups: Exhibit P-101
CAB0024, p. 1. The threat posed by Parmar was discussed in numerous subsequent threat
assessments: See, for example, Exhibit P-101 CAA0110, pp. 2-3, CAB0221, p. 2, CAC0235, p. 3. In June
1985, information was received about meetings held to plan the assassination of Gandhi: See Exhibit
P-101 CAA0196, p. 2, CAC0401, p. 2
661 See, for example, Exhibit P-101 CAB0081, p. 1 (June 1984: seizure in Bombay of weapons that
originated in Canada), CAC0220, pp. 2-3 (September 21, 1984: identity of Winnipeg Sikhs believed
capable of killing and possibly arming themselves), CAC0356, p. 3 (May 28, 1985: Sikh extremists
in Windsor/Detroit buying weapons to target Gandhi visit or Indian interests in Canada).
662 See, for example, Exhibit P-101 CAB0221, pp. 1-2, CAB0851, p. 6 (in 1981 and 1984, threatening letters
from the BK, postmarked in Vancouver, received by officials in India; in April 1985, threatening
letter signed by the BK received by the Indian High Commission in Canada), Exhibit P-101 CAC0262,
pp. 2-3 (January 9, 1985: letter sent from Toronto threatening to assassinate Gandhi), Exhibit P-101
CAC0279, pp. 2-4 (March 1, 1985: letter sent from Ottawa to High Commission of India with Gandhi
photo and “target next” note), Exhibit P-101 CAC0312, p. 3 (April 23, 1985: letter sent to the Indian
High Commission in Canada).
663 Exhibit P-101 CAC0112, p. 2 (June 5, 1984: telephone threat indicating that the Acting Consul General
in Vancouver or his family would be kidnapped by the BK and that the ACG would be “liquidate[d]”).
See also Exhibit P-101 CAB0221, p. 2.
664 Exhibit P-101 CAB0103.
665 Exhibit P-101 CAA0110, p. 2.
666 Exhibit P-101 CAA0110, p. 2.
667 See, for example, Exhibit P-101 CAB0243, CAC0187, p. 2, CAC0364, p. 2, CAC0397, pp. 2-3.
�Chapter I: What Was Known About the Threat?
Sikhs would, among other things, “...blow up embassies.”668 CSIS investigator Ray
Kobzey was concerned that Parmar, because of his contacts, could “...have had
access to people within the Sikh community elsewhere who had the expertise
to put together the technical drawings, manual, what have you, to enable these
explosive devices ... that could be used.”669
Direct Threats to Air India
Canadian agencies also received information about threats to Air India. The
Government of India issued numerous warnings of threats to Air India flights
in Canada.670 Air India also regularly reported threats to its flights.671 In 1984,
Air India offices received bomb threats by telephone.672 Throughout the period
preceding the bombing, the threat information about Air India included
numerous references, not only to possible hijackings,673 but to the possibility that
Sikh extremists or other terrorists would attempt to bomb Air India planes.674
There was specific mention of “suicide squads”675 and explosives concealed
in luggage.676 Air India regularly requested that anti-sabotage measures be
668 Exhibit P-101 CAA0110, p. 3.
669 Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3754.
670 See, for example, Exhibit P-101 CAA0149 (April 12, 1985: plan to hijack Air India Flight 181 to Toronto
on April 13, 1985), CAA0152, (April 16, 1985: possible hijacking of any major airlines to pressure Kuwait
to release prisoners), CAC0263, p. 3 (January 9, 1985: threats of hijacking of Air India flights out of
Montreal and Toronto), CAC0339, p. 2 (May 17, 1985: possible hijacking of Air India aircraft during
Gandhi visit).
671 See, generally, Exhibit P-101 CAC0517, p. 2, which reports that almost every flight was preceded by a
threat information letter from Air India. According to RCMP Sgt. Sweeney, this would have included
the June 22, 1985 flight: Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2591-2592, Testimony
of Warren Sweeney, vol. 26, May 9, 2007, p. 2757. However, such a threat was not mentioned in
the airport policing chronology prepared by the RCMP for the Rae review: See Exhibit P-101 CAA0234,
pp. 8-9.
672 See Exhibit P-101 CAA0050 (June 1984: phone threat indicating that the Saturday, June 16th flight
would be sabotaged), CAA0147, para. 5 (referring to threats received in summer 1984).
673 See, for example, Exhibit P-101 CAA0042, CAA0043 (April 1984), Exhibit P-101 CAA0088, CAA0089
(late August 1984), Exhibit P-101 CAB0902, pp. 21-22 (September 1984), Exhibit P-101 CAA0096,
CAA0097 (October 1984: information that there would be one hijacking of an Indian aircraft every
month), Exhibit P-101 CAC0263, p. 3 (January 9, 1985), Exhibit P-101 CAA0146, CAA0149 (April
12, 1985: possible hijackings), Exhibit P-101 CAA0152 (April 16, 1985: any major airline). Exhibit P-101
CAC0419, pp. 4-5 (April 25, 1985); Exhibit P-129, p. 2; Exhibit P-101 CAA0159, p. 1 (late May 1985).
674 See, for example, Exhibit P-101 CAC0129, p. 2, CAB0076, p. 1 (June 12, 1984: information that 20 Sikhs
were planning to launch a “suicide attack” against Air India); CAA0083, CAA0084 (July 1984:
information that Sikh terrorist volunteered to carry a bomb in his baggage with the intent of blowing
up an Air India aircraft), CAC0143, p. 3 (July 1984: threat letter to Indian consulate with threat
of “blowing of Boeing”), CAC0193, pp. 2-3 (July 1984: threat letter listing threats to Gandhi and plan
to explode a plane leaving Montreal, London and the USA), CAA0088, CAA0087 (August 1984:
Syrian and Lebanese terrorists planning to place an explosive device on board an international aircraft),
CAA0101, p. 1 (October 10, 1984: Sikh extremists planning spectacular violent activity, including
blowing up an Air India plane), Exhibit P-101 CAA0035, CAA0045 (terrorist group in Europe intended
to place an exploding device in a suitcase on board an international aircraft to detonate in flight). See
also Section 1.1 (Pre-bombing), November 1984 Plot.
675 See, for example, Exhibit P-101 CAB0076, p. 1, CAC0129, p. 2.
676 See, for example, Exhibit P-101 CAA0035, CAA0045, CAA0083, CAA0084,.
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implemented.677 The airline warned specifically of the need to exercise special
care in checking registered baggage678 and electronic items like transistors, tape
recorders and two-in-one cameras.679
Canadian agencies were otherwise aware of both the increased likelihood of
sabotage of airplanes and of the possibility that Air India might increasingly
attract the attention of extremists as a target. In 1983, the RCMP Security
Service had warned that hijackings were less of a threat to civil aviation than
bombings.680 In 1984, the Security Service indicated that Air India could be
perceived by extremists as a “softer target,” than more high-profile and wellprotected diplomatic targets.681
Escalating Violence in Canada
Not only was a vast amount of information received about the Sikh extremist
threat, but violence could be observed on the ground in Canada.682 Violent
demonstrations were held regularly. Indian missions were attacked and the
safety of Indian officials was threatened many times.683 In some cases, the
protests resulted in events being disrupted or cancelled,684 in property damage
being caused,685 in police officers being assaulted686 and even shot,687 and in
Indian diplomats being physically assaulted.688 After the Golden Temple attack,
members of the BK began “...to speak very vocally about the need for revenge.”689
677 See, for example, Exhibit P-101 CAA0053, CAA0054 (June 1984: unspecified threat requiring antihijacking and anti-sabotage measures), Exhibit P-101 CAA0161 (May 1985: vigilance on electronic
items and registered baggage), Exhibit P-101 CAA0185 (June 1, 1985: special measures for registered
baggage in light of time-delayed explosive devices threat), Exhibit P-101 CAC0419, pp. 2-3, CAA0205
(June 7, 1985: anti-sabotage measures to continue to the end of June 1985).
678 See Exhibit P-101 CAA0161, CAA0185.
679 See Exhibit P-101 CAA0024, pp. 1-2, CAA0028, CAA0037, CAA0161, CAA1093.
680 Exhibit P-101 CAB0902, p. 36.
681 Exhibit P-101 CAB0071, pp. 1-2.
682 Exhibit P-101 CAA1099, p. 4.
683 See, for example, Exhibit P-101 CAB0207, p. 2 (1984 attacks by the ISYF on Vancouver Consulate and
Consul General residence), Exhibit P-101 CAC0271, pp. 2-4 (January 29, 1985: security increased to level
5 for Dhar visit – the situation would have become physical and dangerous without the increase
and help of local police).
684 See Exhibit P-101 CAB0197, p. 2, CAC0208, p. 4.
685 See, for example, Exhibit P-101 CAC0111, pp. 1-2 (June 4, 1984: two Sikhs entered the Vancouver
Consulate with swords and caused damage to property), Exhibit P-101 CAB0067, p. 1 (June 9,
1984: Sikh extremists removed a flag from the window of the Indian Consulate in Vancouver
and attempted to burn it), Exhibit P-101 CAC0205, pp. 2-3 (in August 1984: demonstrators entered into
the Vancouver Consul General’s residence and ultimately broke windows on his vehicle).
See also Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3885-3886.
686 Exhibit P-101 CAC0205, p. 3, CAC0208, p. 4.
687 Exhibit P-101 CAA1099, p. 1 (in November 1982: officer shot when violence broke out at a
demonstration at the Indian Consulate in Toronto).
688 The Indian Acting High Commissioner was assaulted during a demonstration in Winnipeg: Exhibit
P-101 CAC0285, p. 2, CAE0065, p. 1. The Toronto Indian Consul General complained that a member
of his staff was assaulted during a demonstration when his turban was knocked off, but the Toronto
police decided not to pursue the matter further: See Exhibit P-101 CAC0203, p. 2, CAC0205.
689 Testimony of Ray Kobzey, vol. 33, May 23, 2007, p. 3730.
�Chapter I: What Was Known About the Threat?
There was an “...increase in weapon-related activity” among Sikh extremists.690
In the Vancouver Sikh community, extremist groups engaged in “...vicious
attacks against moderate Sikh leaders.”691 “Violence at the temples and assaults
on people who spoke out against extremists” were increasingly frequent.692
Threat of Violence Reaches a Peak in June 1985
The situation escalated as June 1985 approached. In the months preceding the
bombing, Sikh extremist groups in Canada were “...continuing to organize and ...
enjoying success and increased membership.”693 In April 1985, prominent Sikh
extremists were making plans for the anniversary of the storming of the Golden
Temple and were discussing the strategy to be followed during Prime Minister
Rajiv Gandhi’s visit to the USA in June.694 In the Vancouver Sikh community,
acts of violence and intimidation became even more frequent, and more threat
information was received.695 In May 1985, a radical Sikh extremist faction in the
US was discovered to have been planning the assassination of Prime Minister
Gandhi, a fate suffered by his predecessor and mother, Indira Gandhi, and then
falling back to a plan to attack an Indian Minister of State convalescing in New
Orleans.696 The FBI was still searching for two of the Sikhs involved.697 Vancouver,
Toronto and Windsor Sikhs were discovered to be involved in the plot.698
Windsor/Detroit Sikh extremists were trying to smuggle Uzi machine guns into
Canada and there was concern they could be targeting Indian interests here.699
On June 17th, CSIS expressed concern that despite recent disruption efforts, the
BK would simply regroup and strike at a “...less high-profile target.”700
In the spring of 1985, Canadian agencies received information about a “...wave
of terrorist bombings” by Sikh extremists in India.701 The incidents involved
explosions in public transportation facilities or on street corners, often caused
by the detonation of “...crude radio bombs”.702 As of late May, CSIS was greatly
concerned about “...the terrorist potential” of Sikh extremists.703 CSIS and police
investigators in Canadian communities had reason to believe that local Sikh
690
691
692
693
694
695
696
697
698
699
700
701
Exhibit P-101 CAA1099, p. 4.
Exhibit P-101 CAB0207, p. 2.
Exhibit P-101 CAA1099, p. 4.
Exhibit P-101 CAB0207, p. 1.
Exhibit P-101 CAB0902, p. 27.
Testimony of Axel Hovbrender, vol. 32, May 24, 2007, p. 3914.
Exhibit P-101 CAB0851, p. 8, CAB0902, p. 28.
Exhibit P-101 CAB0851, p. 8.
Exhibit P-101 CAC0438, p. 2.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3434; Exhibit P-101 CAC0356, p. 3.
Exhibit P-101 CAB0312, pp. 1-2.
See Exhibit P-101 CAB0230, p. 1, CAB0321, p. 2, CAB0851, p. 8, CAC0325, p. 2, CAC0328, p. 2, CAC0364,
p. 4. See also Exhibit P-101 CAC0327, p. 2, for the RCMP assessment that those bombings and
other events in India caused the personnel in Indian missions to be concerned about the current
security measures in place to protect them.
702 Exhibit P-101 CAB0851, p. 13, CAC0325, p. 2.
703 Exhibit P-101 CAF0124(i), p. 1.
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radicals were planning violent actions.704 “[T]he possibility of violence within
the international Sikh community appeared imminent.”705
Air India indicated that the threat to its flights would be heightened during the
month of June 1985.706 The airline specifically warned of the threat of bombing
using time-delayed devices,707 and requested that anti-sabotage measures be
applied throughout the month of June.708 At that time, Air India was the object
of a boycott by most Sikh temples in Canada.709
As of June 18, 1985, when CSIS wrote its last threat assessment prior to the
bombing of Air India Flight 182, Sikh factions were “...quietly arming themselves”;
the “...incidence of terrorist attacks in India had not abated” and the “...extremists
/ terrorists [were] no less determined to realize their ambitions.”710 On June
17th, the RCMP requested that the “bomb squad” conduct an explosives vapour
detector sweep at the Indian High Commission.711 By late June 1985, RCMP
officials involved in Protective Policing had concluded, based on the intelligence
at the time, the situation in India and Canada, and the general “vibes”712, that the
threat was “...reaching a peak,”713 and that they had “...better be careful.”714
Findings
All this information was available, but the Government of Canada failed to
prevent the Air India tragedy. The evidence heard at the Inquiry reinforces
the view that information was not adequately reported, analyzed or shared
among the agencies involved. As a result, a proper security response was not
implemented. Whether the bombing would have been prevented, had this not
been the case, is a matter for speculation. The deficiencies in the threat response
are clear and not subject to any speculation.
Individually, the various critical incidents and threats to Indian interests in
Canada, including Air India, present an array of clues leading up to the deadly
attack on Air India Flight 182. When taken together, these clues would lead even
the most casual observer to conclude that the Government of Canada, Air India,
704 See Exhibit P-101 CAB0902, p. 32 (the CSIS Edmonton office reported local radicals to be planning
something, probably violent); Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2017-2018,
2036 (McLean knew the ISYF was planning violent action and that this was confirmed when he
received the Khurana information: See Exhibit P-101 CAC0487, p. 4).
705 Exhibit P-101 CAB0321, p. 2.
706 See Exhibit P-129, pp. 1-2; Exhibit P-101 CAA0159, p. 1, CAA0161, CAA0164.
707 Exhibit P-101 CAA0185. See Section 1.2 (Pre-bombing), June 1st Telex.
708 Exhibit P-101 CAC0419, pp. 2-3.
709 Exhibit P-404, p. 3.
710 Exhibit P-101 CAB0321, pp. 3-4. Similarly, on that same day NCIB issued a threat assessment indicating
that the threat to Indian missions remained high and that a “…lesser figure could possibly be targeted”:
Exhibit P-101 CAC0459, p. 2. See also Exhibit P-101 CAC0444, p. 2.
711 Exhibit P-101 CAC0441, p. 2; Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2717-2719.
712 Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3047.
713 Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3047-3048.
714 Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3048.
�Chapter I: What Was Known About the Threat?
and others had a wealth of knowledge and a myriad of opportunities to discover
and prevent the bombing. Clearly, crucial policies, systems and organizations
must have failed. The questions that need to be answered are:
• Who was responsible for threat assessment and response?
• Were they prepared to handle the threat? and
• What went wrong?
These questions will be analyzed in the sections that follow and, where possible,
answers will be provided or observations will be made on those incidents that
may cause doubt to linger.
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�VOLUME TWO
PART 1: PRE-BOMBING
CHAPTER II: THREAT ASSESSMENT AND RESPONSE
2.0 The Intelligence Cycle and Intelligence Community
Was the bombing of Air India Flight 182 the result of a failure by the Government
of Canada to properly assess and respond to the threat of Sikh extremism in
Canada? This question has never been satisfactorily answered by the reviews
undertaken to date.1
This chapter addresses the results of the Commission’s investigation into the
adequacy of the Government of Canada’s assessment of, and response to, the
Sikh extremist threat leading up to the Air India bombing. It begins with a
description of the “intelligence cycle,” which will be useful as a conceptual tool
to probe the adequacy of intelligence analysis systems. Next is a description
of the threat assessment community within the Government of Canada, the
agencies involved and their respective roles, in particular CSIS and the RCMP.
Subsequent sections will analyze the actions of each department and agency
involved, along with the Government of Canada as a whole, and ask whether
these actions led to intelligence failure(s) that contributed to the Air India
tragedy, and, if so, where and why?
The Seaborn Report, issued in September 1985, concluded that intelligence
cannot be relied on to predict, and thus forestall, specific acts of terrorism, and
placed reliance instead on “…a regime of sufficient rigorous security” to deter
terrorists.2
Generally speaking, information respecting specific projected
terrorist targets is rarely forthcoming. Thus efforts to improve
sources of information will likely at best achieve results only
in the long term and even then the degree of uncertainty will
1
2
See Exhibit P-105, Wesley Wark, “The Intelligence-Law Enforcement Nexus: A study of co-operation
between the Canadian Security Intelligence Service and the Royal Canadian Mounted Police, 19842006, in the Context of the Air India terrorist attack” in Vol 1 of Research Studies: Threat Assessment
RCMP/CSIS Co-operation [Wark Paper on Intelligence Law Enforcement Nexus], Professor Wark
reviewed the Seaborn report and the 1992 SIRC Study of Air India. The Seaborn Report avoided dealing
with whether Air India was an intelligence failure by emphasizing minimalist expectations on the role
of intelligence to counterterrorism threats. The 1992 SIRC study called attention to weaknesses in the
CSIS intelligence, but refrained from calling the incident an intelligence failure.
Exhibit P-101 CAF0039, p. 3. The Seaborn Report was the first Government of Canada review of the Air
India disaster. Blair Seaborn, who was the Intelligence and Security Co-ordinator, was commissioned
by the Solicitor General to investigate the role of intelligence, inter alia, in aviation security matters.
Seaborn issued his report on September 24, 1985.
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necessarily remain high. It is not, therefore, practical to rely
on intelligence as the principal, let along the sole, means of
countering terrorism …. The principal value in intelligence
lies in assisting authorities to determine levels of security
appropriate to the perceived threat. 3
The SIRC report, issued in November 1992, assessed the adequacy of CSIS
intelligence production and dissemination, concluding that CSIS intelligence
assessments lacked analysis and detail. However, they found that “…no
assessment contained any specific information concerning a threat to Air India
Flight 182”4 and that CSIS had disseminated all relevant assessments to the
RCMP.
In March of 1985, the Government of Canada assessed the adequacy of federal
counterterrorism measures in light of the seizure of the Turkish embassy by
Armenian extremists.5 The Government found that aspects of the government
counterterrorism measures were handled in an ad hoc manner. The review
identified several areas for improvement in the Government’s threat assessment
and response, but these improvements were not effectively implemented before
the Air India bombing.
The Commission has undertaken a review of whether there were deficiencies
in the Government’s threat assessment and response regime that resulted in a
failure to prevent the bombing of Air India Flight 182.
The concept of “intelligence failure” is not without its own complexities and
controversies. The challenge in studying intelligence failures is to distinguish
between unrealistic expectations about the performance of the intelligence
community and reasonably avoidable weaknesses in the intelligence process.6
Richard Betts wrote, in his seminal paper on intelligence, that “…intelligence
failures are not only inevitable, they are natural.”7 By this, he meant that
intelligence cannot be expected to detect any and all threats or to prevent them
from coming to fruition. By contrast, Professor Wesley Wark warned against
accepting this “tolerance for disaster” concept.8
3
4
5
6
7
8
Exhibit P-101 CAF0039, p. 2.
Exhibit P-101 CAB0902, p. 28.
Exhibit P-101 CAF0063. This document, entitled “A Review of Federal Counter-Terrorism Arrangements,”
is an interdepartmental review of the Government’s response to the Turkish Embassy seizure by
Armenian extremists on March 12, 1985 and to the subsequent bomb threat to the Toronto transit
system received on March 26, 1985, presumably by Armenian terrorists. See also Exhibit P-101
CAF0004.
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1445-1446.
Richard Betts, “Analysis, War and Decision: Why Intelligence Failures are Inevitable,” World Politics, 31,
no. 1 (October 1978), p. 89.
Wark Paper on Intelligence-Law Enforcement Nexus, p. 153.
�Chapter II: Threat Assessment and Response
The idea behind studying intelligence failure is to try and
understand the weaknesses of the intelligence process, as
well as to put into some kind of realistic perspective our
expectations of what intelligence services can deliver on.
The difficulty with intelligence services is that they operate
in a world of theoretical perfection. Intelligence services are
meant always to find the truth, and always to find the truth
in advance, to be able to make predictions about how very
complex domestic and international systems might work out.
That is our expectation of intelligence. That is the expectation
of the standard that intelligence services have to live up to.
Intelligence failures occur when intelligence services don’t live
up to those expectations. One of the challenges of studying
intelligence failures is really to know when you are in the
presence of a failure and when you’re in the presence of an
unrealistic expectation.9
In terms of the Air India bombing, the issue of “intelligence failures” is tied to
questions of whether the failure to detect and/or prevent the bombing through
intelligence was “inevitable” or “avoidable”, and whether the failures were due
to systemic errors in the intelligence process or to the incorrect handling of
intelligence information within that process. In either case, the study of the
“intelligence failures” should lead to a review of the overall system to determine
possible improvements that would reduce the likelihood of a recurrence. It is
also necessary to keep in mind the benefit of hindsight, and refrain from easy
criticism that does not account for the context under which failures occurred.
The relevant questions to be asked are:
• Who was responsible for the assessment of, and response to, the
threat of Sikh extremism?
• What was the historical context and what were the major influences
affecting the Government’s assessment and response to the threat
of Sikh extremism?
• What went wrong with the threat assessment and response system?
Were these systemic or local deficiencies? Were they inevitable or
avoidable?
The Intelligence Cycle: A Framework for Review of Intelligence Failures
Professor Wesley Wark introduced the concept of the intelligence cycle as a
useful conceptual tool to identify and assess intelligence failures. This model can
help in an assessment of the component parts of a threat assessment system.
9
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1445-1446.
133
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This permits the identification of any breakdown or failure within the system.10
The intelligence cycle consists of the four principal tasks, as described by
Professor Wark.11
Figure 1: Intelligence Cycle
The cycle begins with tasking. This includes the setting of investigative priorities
for the intelligence community as a whole by the government, as well as internal
directives that reflect the priorities of individual agencies. Tasking depends on
guidance from public officials to set collection requirements, and to review and
revise these requirements as the nature of the threat changes with time. Tasking
priorities guide the choice of investigative techniques and the allotment of
resources. Proper tasking is critical in the face of the reality of limited resources,
to ensure that resources are directed at the most serious and emerging threats
to security.
The second component is collection, which refers to the gathering of raw
information through various sources in response to a tasking order. These
sources include:
10
11
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1443-1444.
The description of the intelligence cycle is based on the Testimony of Wesley Wark, vol. 16, March 5,
2007, pp. 1442-1443. Open source documents were also consulted: See, for example, The Central
Intelligence Agency, “The Intelligence Cycle”, online: Federation of American Scientists <http://www.
fas.org/irp/cia/product/facttell/intcycle.htm> (accessed October 16, 2009).
�Chapter II: Threat Assessment and Response
• Open sources, which include print and broadcast media, official
government documents, research publications, and other
published material;
• Investigative techniques, which include community interviews,
human sources, physical surveillance and technical interception of
communications;
• Information sharing with other government departments and
foreign partner agencies.
Collection efforts are conducted to further inform and clarify the investigative
priorities identified by the government.
The cycle then moves to analysis, which is the stage at which the collected raw
information is converted into finished intelligence. This involves assessment of
the information’s reliability and relevance, and consideration of the information
in its overall global context. The finished intelligence provides judgments about
the implications of threats of concern to the government. This intelligence
product can be used to advise the government on the threat posed, for purposes
of devising policy or operational measures to combat the threat.
The fourth component in the intelligence cycle is dissemination. This involves
the distribution of finished intelligence product to relevant decision-makers in
government, who can use it to develop informed policies and direct appropriate
operational responses. This final step also informs the first step of the next cycle
– the government uses the finished intelligence to assess and redefine the
tasking priorities for the intelligence community.
The National Counterterrorism Community: Roles and Responsibilities
In 1985, Canada’s national counterterrorism strategy was implemented through
the cooperation of various government agencies.12 The Solicitor General was
the lead Minister responsible for the national counterterrorism strategy. CSIS
had primary responsibility for the collection, assessment and production of
domestic security intelligence. The RCMP was responsible for determining the
appropriate level of protection, based on the CSIS threat assessments, and for
coordinating the threat response with other government agencies. The DEA
had primary responsibility for the collection, assessment and production of
foreign security intelligence and for the response to terrorist threats abroad.
Other agencies, including the Communications Security Establishment (CSE),
Department of National Defence (DND), Transport Canada (TC), Canada
Employment and Immigration Commission (CEIC), Revenue Canada and local
police forces provided specialized intelligence and assisted in threat responses.
12
Exhibit P-101 CAF0875.
135
�Volume Two Part 1: Pre-Bombing
In 1985, there was a recognized need for greater interdepartmental assessment
of security threats and coordination of threat responses.13 The Interdepartmental
Committee on Security and Intelligence (ICSI) was formed in 1972 to provide
a forum for interdepartmental assessments for strategic intelligence. The
Intelligence and Security Coordinator position was created within the Privy
Council Office (PCO) in February 1985.
Foreign Intelligence
COLLECTION
TASKING
Domestic Intelligence
Solicitor General
CSIC*
RCMP
security
intelligence
criminal
intelligence
CSIC*
DEA
foreign political
and economic
intelligence
determination
of level of
protection
Minister of
National Defence
DND
CSE
foreign
military
intelligence
SIGINT
RCMP
dissemination
of TAs
Transport
Canada
airline and
airport threats
production of
operational TAs
on criminal
matter
CSIC*
Secretary of State
for External Affairs
RCMP
production of
operational &
strategic TAs
Minister of
Transport
DISSEMINATION
ASSESSMENT
Information sharing between agencies
RESPONSE
136
RCMP
Security
enforcement
& protective
policing
Note: other organizations collect and share
specialized information. These groups include
local police, Canada Employment and Immigration Commission, Revenue Canada (Customs
and Excise).
* Bolded box identifies agency with lead role in
each stage of the intelligence cycle.
Transport
Canada
airport
security
DEA
protective
policing
Coordination of threat response
Figure 2: National Counterterrorism Community (1985)
13
Exhibit P-101 CAF0063, p. 2.
�Chapter II: Threat Assessment and Response
The following section provides a general outline of the organizational structure
within the Government of Canada, set up to undertake the assessment of, and
response to, terrorist threats within Canada.14 The internal structure of each
respective government department and agency is described elsewhere in this
report. Chapter III (Pre-bombing), What Went Wrong?, addresses the adequacy
of these structures, policies and practices, and in particular, the question of
whether failures occurred in the Government’s assessment of, and response to,
the threat to Air India in the pre-bombing stage.
Solicitor General and other Ministers
The Prime Minister of Canada is ultimately accountable to Parliament for the
security and integrity of Canada. In 1985, this function was delegated to the
Solicitor General. The Solicitor General had the lead role for the planning and
coordination of Canada’s federal counterterrorism program. The Solicitor General
oversaw the activities of CSIS and the RCMP, the lead agencies responsible
respectively for the assessment and response to threats to the security of
Canada. Upon the creation of CSIS, the RCMP and CSIS were purposely placed
under the common direction of the Solicitor General, in an effort to mitigate
the effects of the separation of security intelligence investigations from law
enforcement. The Solicitor General was responsible for resolving disagreements
between CSIS and the RCMP about the sharing of information.
The Solicitor General was assigned a key role in the control and management
of the new civilian service. The MacKenzie and McDonald Commissions15 had
recommended political direction over security intelligence operations, in
contrast to law enforcement, which, in conformity with the principles of police
and prosecutorial independence, was to continue without political direction.
Ministerial approval was required for all CSIS warrant requests for investigations
targeting organizations or individuals.16
Ministers of other involved agencies, including the Secretary of State for
External Affairs, the Minister of National Defence, the Minister of Transport
and the Minister of Employment and Immigration, set their own departmental
intelligence priorities and were accountable for the activities of the organizations
that reported to each of them. Ministers were responsible for participating in
interdepartmental efforts to coordinate threat assessment and response, such
as the Interdepartmental Committee on Security and Intelligence (ICSI).
The Royal Canadian Mounted Police
The RCMP had primary responsibility to perform peace officer duties in relation
to offences arising from conduct constituting threats to the security of Canada
14
15
16
The description of each agency’s role and responsibilities are based on Exhibit P-101 CAA0076,
CAF0002, CAF0004, CAF0039, CAF0063 and various provisions of the Canadian Security Intelligence
Service Act, R.S.C. 1985, c. C-23 [CSIS Act].
See Section 2.1 (Pre-bombing), The Civilianization of Security Services, for detail regarding the
MacKenzie and McDonald Commissions.
CSIS Act, s. 21.
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(security enforcement) or offences against internationally protected persons
(protective policing). Part IV of the CSIS Act, which became the Security Offences
Act, clarified the RCMP’s lead role in these two areas.
The RCMP collected and assessed information relevant to its security
enforcement and protective policing mandates, as well as to its general criminal
investigations. The CSIS Act transferred the responsibility to collect, assess, report
and advise on threats to the security of Canada (security intelligence) from the
RCMP Security Service to the newly-formed CSIS. When CSIS was created, the
RCMP was directed to rely on CSIS for intelligence relevant to its investigations
of national security offences. In turn, the RCMP was responsible for passing to
CSIS any information relevant to national security threats.17
The RCMP had the lead role in determining the appropriate level of protection to
afford in response to threats within Canada, and in coordinating these responses.
These decisions were to be based on all information and intelligence available,
particularly CSIS threat assessments. Threat response was often a multi-agency
operation. The RCMP provided security to diplomatic personnel and premises in
consultation with DEA and provided airport security and policing at designated
Canadian airports in collaboration with Transport Canada.
Canadian Security Intelligence Service
The primary mandate of CSIS is to collect, analyze, produce and disseminate
intelligence on threats to national security and to advise the Government of
Canada on such threats (security intelligence). While CSIS was assigned primary
responsibility for threat assessment, it had to rely on other agencies and
departments to take appropriate responsive action. The system was premised
on CSIS disseminating meaningful intelligence product to the appropriate
responding agencies, to allow for a timely and informed response.
CSIS collected security intelligence through a broad range of investigative
techniques, including human and technical sources as well as open sources.
CSIS relied on information from liaison officers stationed abroad, as well as on
partnerships with foreign agencies and other government departments. The
CSIS Act recognized that other domestic and foreign organizations would acquire
information relevant to threats to the security of Canada and allowed CSIS to
enter into “cooperative arrangements” to facilitate sharing of information.18
CSIS relied on DEA for foreign political and economic intelligence, on CSE for
signals intelligence, on DND for military intelligence and on the RCMP and other
police forces for intelligence on domestic threats. Several agreements were
entered into around the time the agency was created, to clarify the primacy of
CSIS in intelligence collection and the need for close cooperation with other
agencies. CSIS was intended to be a repository for intelligence from all sources,
from which it could produce comprehensive threat assessments relevant to the
needs of the Government.
17
18
The respective roles of the RCMP and CSIS after July 16, 1984 (Creation of CSIS) are discussed in Exhibit
P-101 CAA0076 (1984 MOU: Transfer and Sharing of Information), CAA0081 and CAF0030.
CSIS Act, s. 17
�Chapter II: Threat Assessment and Response
External Affairs
The Department of External Affairs (DEA) collected and disseminated foreign
political and economic intelligence obtained from its diplomatic missions and
contacts.19 The foreign intelligence collected by the DEA would be used to
inform the domestic threat assessments produced by CSIS.
The DEA was responsible for ensuring that Canada fulfilled its obligations under
the Vienna Convention on Diplomatic Relations to provide adequate protection
to diplomatic personnel and premises in Canada. It played a liaison role, passing
threat warnings received from foreign diplomatic missions and governments
to the Canadian intelligence and security community and advocating for
an appropriate threat response. DEA would advise the RCMP on the degree
of protection it believed should be accorded to a particular mission, based
on its specialized knowledge of international affairs. The RCMP retained the
responsibility, ultimately, for determining the actual level of protection to be
afforded. In cases where the DEA felt that the appropriate response was not
being provided, it could make representations at higher levels.
Communications Security Establishment
The Communications Security Establishment (CSE) was responsible for the
collection and dissemination of foreign signals intelligence (SIGINT).20 SIGINT
was gathered through the interception of foreign radio, radar and other
electromagnetic transmissions. SIGINT was an important source of timely
information on the diplomatic, military, economic, security and commercial
activities, intentions and capabilities of foreign governments, individuals and
corporations. The Government of Canada had partnerships with allied agencies
for the sharing of SIGINT information. Due to the highly sensitive nature of the
SIGINT product, the CSE maintained exclusive control over the collection and
dissemination of SIGINT within the Government of Canada.
Transport Canada
Transport Canada had the lead role in planning and directing the development
and implementation of policies, procedures and legislation pertaining to the
security of the Canadian transportation system, including airports and airlines.
The Minister of Transport was responsible for leading the management of a
terrorist incident involving an aircraft in flight.
Aviation security in Canada was governed by Regulations imposed under the
Aeronautics Act, which obligated federal aviation authorities and air carriers
to observe specified security standards. Transport Canada was responsible
for establishing the overall security standards for airports and airlines, and
19
20
Additional information on the roles and responsibility of the DEA was found in Exhibit P-101 CAF0060,
CAF0062, CAF0068 and Testimony of Gordon Smith, vol. 24, May 7, 2007, p. 2448.
Additional information on the roles and responsibility of the CSE was found in “The Communications
Security Establishment – Canada’s Most Secret Intelligence Agency” prepared by Philip Rosen, Senior
Analyst, September 1993, online: Depository Services Program <http://dsp-psd.tpsgc.gc.ca/
Collection-R/LoPBdP/BP/bp343-e.htm> (accessed November 27, 2009)..
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for providing some physical security equipment at airports. Air carriers were
responsible for applying the security standards for passengers, baggage and
cargo, and for ensuring security within individual aircraft. Threat information
could also be provided by individual air carriers, or by their respective
governments, to the RCMP, Transport Canada or DEA.
Interdepartmental Committee on Security and Intelligence
The Interdepartmental Committee on Security and Intelligence (ICSI) was
established in 1972 to review intelligence and proposals to be delivered to the
Cabinet Committee on Security and Intelligence (CCSI), and to exercise general
oversight of the federal counterterrorism establishment.21 ICSI furnished general
policy guidance to ensure that ministers received the required information and
advice from the intelligence community. Membership of ICSI was at the deputy
minister level, and included the RCMP Commissioner and CSIS Director, as
well as deputy level representatives from CSIS, RCMP, DEA, DND, DOJ, Solicitor
General, Treasury Board, CEIC and PCO.
ICSI oversaw the activities of two committees: the Security Advisory Committee
(SAC) and the Intelligence Advisory Committee (IAC). The SAC considered and
provided coordinated advice to ICSI on proposals for security policies and
procedures. It provided ICSI with joint assessments of the internal security
situation in Canada. The SAC was chaired by the Deputy Solicitor General and
the committee comprised senior officials from PCO, Treasury Board, DOJ, DEA,
DND, CEIC, CSIS, RCMP and CSE. The IAC, on the other hand, pooled and reviewed
intelligence and threat analyses from various sources within government, and
ensured that intelligence was properly disseminated. The IAC was chaired by
the PCO Intelligence and Security (I & S) Coordinator and membership was also
at the deputy minister level.
In 1985, these groups were responsible for coordinating the interdepartmental
assessment of strategic intelligence intended for providing advice to
Government. The groups met infrequently and thus did not play a major role
in the management of operational intelligence, which remained the primary
responsibility of CSIS.
Privy Council Office
The PCO Intelligence and Security Coordinator, Blair Seaborn, was appointed
in February 1985, and had principal responsibility for all security and
intelligence matters. The Coordinator played an increasingly important role
in the Government’s efforts to improve the federal counterterrorism program.
On behalf of the Prime Minister, Seaborn was responsible for monitoring the
measures of individual government departments to counter terrorism and for
providing recommendations to improve these measures. He completed post21
Additional information on the roles and responsibility of the ICSI was found in Exhibit P-101 CAF0874
and CAF0877.
�Chapter II: Threat Assessment and Response
mortem analyses of the Turkish embassy storming in March 198522 and the Air
India and Narita bombings,23 producing reports that recommended several
changes to the Government’s CT program.
2.1 The Civilianization of Security Services
The MacKenzie Commission
The civilianization of the RCMP Intelligence Service began long before the
creation of CSIS. In 1966, Maxwell MacKenzie was named head of the Royal
Commission on Security (the “MacKenzie Commission”), and was charged with
analyzing the RCMP Special Branch following a lapse of security at a federal
institution. The Commission’s mandate was to investigate security procedures
in government as well as to inquire generally into the question of Canada’s
national security.24
The MacKenzie Commission report, produced in 1969, included the controversial
recommendation that the RCMP’s security function be separated from the
police force – stemming from the finding that its security intelligence functions
were incompatible with law enforcement. This problem existed, according to
MacKenzie, because of the Special Branch’s sole reliance on members of the
RCMP, who lacked sufficient sophistication and powers of analysis to discharge
fully its security intelligence role.25 A police service, with its distinctive mandate
and culture, was not suited to these functions.
The government of the day rejected civilianization as a whole but settled on a
compromise.26 In 1970, the newly renamed RCMP Security Service (SS) remained
part of the RCMP, but John Starnes, a career diplomat and, more importantly, a
civilian, was named Director General. However, this compromise did not achieve
the desired results. Many years later, John Starnes wrote in his memoirs, “In my
view, the MacKenzie Commission should have received much more attention.
The government should have been much firmer in dealing with the RCMP’s
largely emotional and sometimes unrealistic objections to the idea of having a
security service divorced from the RCMP.”27
The MacKenzie Commission also recommended that legislation be introduced
to guide the use of intrusive investigative techniques. In response to this
recommendation, the Government included it in the passing of section 16 of
the Official Secrets Act in 1974. This section mandated that the Solicitor General
was to authorize the interception of communication when an investigation fell
within the field of national security.28
22
23
24
25
26
27
28
Exhibit P-101 CAF0063.
Exhibit P-101 CAF0039.
Philip Rosen, “The Canadian Security Intelligence Service,” Parliamentary Research Branch, revised
January 24, 2000, Library of Parliament, pp. 2-3 [Rosen, “The Canadian Security Intelligence Service”].
Rosen, “The Canadian Security Intelligence Service” p. 3.
“Looking Back: The case for security intelligence review in Canada” :online: Security Intelligence Review
Committee <http://www.sirc-csars.gc.ca/opbapb/rfcrfx/sc02a-eng.html#9> (accessed August 26,
2008).
John Starnes, ”Closely Guarded: A Life in Canadian Security and Intelligence” (Toronto: University of
Toronto Press, 1998,) p. 135.
Rosen, “The Canadian Security Intelligence Service” p. 3.
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The McDonald Commission
According to the McDonald Commission report,29 during the 1970s the RCMP
Security Service engaged in numerous illegal acts and practices in its attempt to
disrupt potential threats arising from the FLQ crisis. In 1977, in response to these
actions, the Royal Commission of Inquiry into Certain Activities of the Royal
Canadian Mounted Police (“the McDonald Commission”) was formed. The final
report of the Commission was issued in 1981 and it recommended numerous
sweeping changes.
Key among the findings was that there had been abuses of the law and that a
new institutional setup was required to prevent those abuses from occurring
again.30 One of the fears was that there was a danger in allowing a security
service to enforce security and, potentially, to become a law unto itself.31 As
James (“Jim”) Warren (who was the Director General of Counter Terrorism at CSIS
in July 1986) stated, “…it was a lot easier for a security service, if you will, to
trample on the rights of Canadians.” The police, if they act inappropriately, will
be exposed by the court system, whereas a security service rarely, if ever, will
bring matters before a court. Therefore, “…things could go on as they had in the
days that McDonald was looking at indefinitely without anyone knowing.”32
McDonald found, like the MacKenzie Commission before him, that a police force
was not the most suitable type of organization to be carrying out the duties
of an intelligence service that has unique needs with regard to understanding
domestic and global politics. Commissioner McDonald strongly believed that
Canada’s interests would be better served by a more sophisticated intelligence
service, one which could develop the expertise to recognize genuine threats to
the security of Canada.33 The security service would collect information broadly
and inform government, who would then take action if required.34
The McDonald Commission recommended that the Security Service be severed
from the RCMP and, in its place, a new civilian security intelligence agency be
created. The new agency, lacking enforcement powers, could be more responsive
to political will and subject to oversight. Its main role would be intelligence
collection and assessment. As well, new regimes of accountability and review
would further ensure that the problems of the past were not repeated.
The McDonald Commission defined the government’s need for intelligence
in order to prevent acts of terrorism and espionage and in order to keep
the government informed of “…situations which may develop into serious
threats.”35 It also talked about the need for the new intelligence agency to meet
twin requirements: the requirements of national security and the requirements
29
30
31
32
33
34
35
Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom
and Security under the Law, Secind Report-vol. 2 (Ottawa: Supply and Services Canada, 1981)
[McDonald Commission, Freedom and Secuirty under the Law].
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1434.
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1545.
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5827-5829.
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1434-1435.
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1545.
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1540.
�Chapter II: Threat Assessment and Response
of democracy.36 According to Geoffrey O’Brian, all intelligence agencies have
four components: mandate, powers, controls and review.37 The McDonald
Commission suggested that mandate and powers, which go towards fulfilling
the security mandate, be balanced with controls and review, which fulfill the
democratic mandate.38
The RCMP Security Service received a written mandate only in 1975. Building on
that, McDonald felt it was very important to provide a legal framework for the
intelligence function, and a new legal framework for the yet-to-be created CSIS
was envisaged. It is important to note that, at the time, there was “…virtually no
legislation in the world” for intelligence services. Many countries did not even
acknowledge the existence of their intelligence services, let alone provide for
them in law.39
In separating the security service from the RCMP, the McDonald Commission
sought “…a surgical division of mandates.” It was felt that, in creating a civilian
intelligence service, it was important to invest that intelligence service with
a monopoly of responsibility over intelligence collection and assessment.
Therefore, the Commission recommended stripping the RCMP of any intelligence
role. Collection, assessment and dissemination would all be CSIS duties. The
RCMP would have to rely on CSIS for intelligence, which would come in the form
of “investigative leads” that the RCMP would need to transform into evidence
that could be presented in a court of law.40 While the two organizations were
mandated to work together, the purpose of creating the new organization was
not to allow “…the police to do indirectly, what they could not do directly.”41
Crucially, however, the McDonald Commission did not recommend the complete
removal of the RCMP from national security work. Instead, the Commissioner
recommended that the RCMP retain responsibility for the prevention and
investigation of crimes against the security of Canada.42 However, the McDonald
Commission did not discuss an intelligence-gathering role for the RCMP arising
out of everyday crime prevention and the apprehension of criminals.43
In summary, the key findings by the McDonald Commission were that:
1.
36
37
38
39
40
41
42
43
Police deal with facts and evidence, usually after an event, in order to
prosecute offenders in court, whereas security intelligence agencies
try to anticipate and prevent events;
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1542.
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1542.
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1542.
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, p. 1533.
Testimony of Wesley Wark, vol. 17, March 6, 2007, pp. 1436-1437.
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, p. 1576.
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Policy Review:
The RCMP and National Security – A Background Paper to the Commission’s Consultation Paper
(Ottawa: Public Works and Government Services Canada, 2004), p. 21 [Policy Review:
The RCMP and National Security].
Policy Review: The RCMP and National Security, p. 21.
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2.
A police force should maintain a degree of independence from
government control, whereas security intelligence agencies should
be under tight control in order to ensure they maintain respect for
individual rights, and to ensure that political accountability exists;
3.
The activities of a police force are subject to extensive rules through
the Criminal Code and jurisprudence, whereas security intelligences
must employ greater judgement in regards to their activities and to
their relation to the mandate;
4.
A security intelligence service must keep its government informed of
threats to national security, while police work will normally culminate
in evidence being presented in court.44
The McDonald Commission’s key recommendation was the removal of the
RCMP SS from the RCMP based on the following factors:
Appropriate Management and Personnel Policies
In order for a civilian intelligence service to be successful it must recruit “…
more mature, more experienced, better-educated personnel with a variety of
backgrounds.”45 A less authoritarian style of management would be beneficial
to a new security intelligence service. Furthermore, past attempts to implement
a separate and civilian programme within the RCMP had ended in dramatic
failure. Therefore it was considered unlikely that the RCMP could adapt to such
a change.
Direction and Control of Government
The separation of a national security intelligence service from the RCMP
would allow improved and closer relations between security intelligence and
the government, which would facilitate oversight by Parliament, the Solicitor
General, and other senior government officials. The Minister responsible for
national security intelligence should be actively involved in the service to allow
the use of intrusive techniques to be monitored in light of the “…ramifications
these decisions can have on Canada’s system of government and on its
relationship with other countries.”46 In the case of a police force, though, the
Minister in charge and the government should only be involved in matters with
significant policy implications.
A separate security service would have a better relationship with the government,
as compared to the difficulties envisioned in instilling in the RCMP a culture of
44
45
46
Independent Advisory Team in the Canadian Security Intelligence Service People and Process in
Transition: Report to the Solicitor General by the Independent Advisory Team in the Canadian Security
Intelligence Service. Gordon F. Osbaldeston, ed. Canadian Security Intelligence Service (Ottawa:
Solicitor General Canada, 1987), p. 5.
McDonald Commission, Freedom and Security Under the Law, pp. 754-755.
McDonald Commission, Freedom and Security Under the Law, pp. 756-757.
�Chapter II: Threat Assessment and Response
accountability respecting intelligence. As a separate service, the new agency
would more quickly and easily be able to develop a relationship outside of the
ingrained traditions that had in the past prevented or delayed changes within
the RCMP.
Trust in the RCMP
Due to the low level of public trust in the RCMP following the investigation and
revelations revealed by the McDonald Commission, a new and separate security
intelligence service would benefit from a fresh start.47
Ancillary Benefit
Two separate entities, the RCMP on the one hand and the new security
intelligence service on the other, would allow a system of checks and balances
to develop between the two organizations. This relationship would be required
because the intelligence service would be dependant upon the police force,
which alone possesses traditional police powers such as powers of arrest, of
warrant execution, and of search and seizure.
Furthermore, at both the operational and the policy level, the Minister in charge
would be able to assess one agency by comparing it to the other, in particular
with regard to requests for more power.48
An Invalid Reason for Separation
A reason sometimes raised for separation of the security intelligence service
from the RCMP was based on the argument that, in order to obtain information,
intelligence-gatherers must act illegally, and therefore should not be a part
of the police force. This argument was soundly rejected as a reason for the
separation.49
The Security Intelligence Transition Group (SIT Group)
Soon after the tabling of the McDonald Commission report, the government
announced that it was accepting the central recommendation, which was to
create a separate civilian intelligence service. The Security Intelligence Transition
Group (SIT Group) was formed in September 1981 with a mandate to develop
a new security intelligence agency and to help transition the RCMP SS into this
new agency. A great deal of its time was spent developing the legal parameters
which would eventually form the basis of the CSIS Act.50 The SIT Group consisted
of a small group of people all reporting to the Solicitor General, the Honourable
Robert Kaplan. It was led by Superintendent Archie Barr, a 25-year veteran of the
47
48
49
50
McDonald Commission, Freedom and Security under the Law, pp. 758-759.
McDonald Commission, Freedom and Security under the Law, p. 759.
McDonald Commission, Freedom and Security under the Law, p. 760.
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, pp. 1531-1532.
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RCMP Security Service.51 Barr was one of the most senior officers of the RCMP
Security Service. Prior to the establishment of the McDonald Commission, he
was one of a number of senior officers who had written to the Commissioner
asking for a Royal Commission to look into the allegations of misconduct that
were emerging and to investigate the appropriate role of the Security Service.52
A number of the members of the SIT Group also went on to play key roles in the
early days of CSIS, including Ted Finn, who became the first Director, Archie Barr,
who became the Deputy Director National Requirements, and others, including
Jim Warren, Geoffrey O’Brian and Chris Scowen.
The job of the SIT Group was to use the McDonald Commission report as a guide
and to analyze the recommendations. The SIT Group advised Cabinet and sought
its direction on which recommendations to implement and how to implement
them. The SIT Group wrote a report, informally called “the red book,” which was
roughly 300 pages long and which focused their discussions.53
Within 18 months of its creation, the SIT Group drafted what would become Bill
C-157, the first piece of legislation tabled in May of 1983.54
The Pitfield Committee
In the spring of 1982, the Clerk of the Privy Council, Michael Pitfield, began a
Special Senate Committee (the “Pitfield Committee”) with a number of senior
deputies. Over approximately 20 meetings, they debated the “…appropriate
set-up for CSIS, what its relationship to government should be, what its mandate
should be, what controls should be on it, how it should be reviewed.”55 They
spent ten of the meetings solely on the issue of mandate, the relationship of
the new service to government and the relationship of the new service to law
enforcement. The Pitfield Committee’s observations resulted in a bright line
approach to the difference between law enforcement, defined as reactive and
resulting in an open hearing of the facts in court, and intelligence, defined as
proactive and secret.56
In 1983, the Pitfield Committee produced a report that scrutinized the
McDonald Commission’s findings and the distinction it drew between
intelligence and evidence.57 The Pitfield Committee “…put the final pieces
51
52
53
54
55
56
57
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, p. 1527.
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, p. 1527.
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, pp. 1531-1532.
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, p. 1524-1525.
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, pp. 1531-1532.
See Exhibit P-309, pp. 11-12: Kent Roach, “The Unique Challenges of Terrorism Prosecutions: Towards
a Workable Relation Between Intelligence and Evidence” [Exhibit P-309: Roach Paper on Terrorism
Prosecutions].
Report of the Special Committee of the Senate on the Canadian Security Intelligence Service, Delicate
Balance: A Security Intelligence Service in a Democratic Society (Ottawa: Supply and Services
Canada 1983). See also Exhibit P-309: Roach Paper on Terrorism Prosecutions, for the stark distinction
drawn between intelligence and evidence, first espoused by the Pitfield report and seemingly adopted
by CSIS and the government from then on.
�Chapter II: Threat Assessment and Response
of the CSIS Act into shape.” 58 Following the report of this Committee, most
of the McDonald Commission’s recommendations were accepted. However,
one of the recommendations not followed was the McDonald Commission
recommendation of a joint Parliamentary committee to review the actions of the
intelligence service.59 To this day that recommendation has not been enacted.
However, the Pitfield description of law enforcement as generally reactive and
the intelligence service as secretive and information-oriented, with a goal of
investigating, analyzing and formulating intelligence, remains influential
today,60 even though it does not seem to correspond to the changed landscape
created by terrorism and the legislative means enacted to counter it.61
2.2 Failure to Appreciate the Nature and Seriousness of the Threat
The Emerging Threat of Sikh Extremism
In the year preceding the Air India bombing, Canadian government agencies
received a mass of information about the emerging threat of Sikh extremism
in Canada. There was nevertheless a pervading perception across government
agencies that much of the threat information about Sikh extremism was
exaggerated. The threats to Indian interests that were circulating through the
system were often perceived as merely noise, or “crying wolf”, as opposed to any
meaningful or menacing signal.
The early 1980s saw the rise of Sikh extremist violence in India. Violence
against Hindus in the Punjab was increasing with the growing popularity of the
charismatic Sikh fundamentalist, Sant Bhindranwale, whose rise to power was,
ironically, largely attributable to political manipulation by Indira Gandhi, the
Indian Prime Minister at the time. Bhindranwale initiated a violent campaign for
the establishment of the state of Khalistan, and moved armed followers into the
Golden Temple in Amritsar, which he proceeded to fortify. Communal violence,
including acts of terrorism by Sikh extremists, was an almost daily occurrence.62
The situation in India in early June 1984 was extremely tense, as an invasion
by the Indian army to oust Bhindranwale and his Khalistani followers from the
Golden Temple, Sikhism’s holiest shrine, seemed inevitable.63
During this time, incidents began occurring within the Sikh community in
Canada that indicated that the Sikh extremist threat was not just a foreign
issue. Republic of Khalistan “Consulates” were established in Vancouver,
Winnipeg and Toronto, with “Consul Generals” distributing Khalistani passports,
postage stamps and currency to propagandize their cause. In 1981 and 1982,
claims surfaced that Sikh extremists were undertaking military training and
58
59
60
61
62
63
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1440.
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1435.
Exhibit P-309: Roach Paper on Terrorism Prosecutions, p. 12.
See Volume Three of this Report: The Relationship between Intelligence and Evidence and the
Challenges of Terrorist Prosecutions.
Exhibit P-101 CAB0055.
Testimony of William Warden, vol. 24, May 7, 2007, p. 2379.
147
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establishing links with international terrorists.64 In May 1982, the Indian High
Commissioner, upon his arrival at the Vancouver International Airport, was met
by a crowd of Sikhs who threw eggs at him.65 In November 1982, shootings
occurred at a demonstration attended by Sikh groups at the Indian Consulate
in Toronto.66 On June 4, 1984, two Sikh men, brandishing swords, stormed the
Indian Consulate in Vancouver.67
In June 1984, the Indian army stormed the Golden Temple, killing hundreds
of Bhindranwale’s followers and Bhindranwale himself. Hindu and Sikh
communities in the Punjab region reacted in a fit of intercommunal violence
that took thousands of lives. The reaction in Sikh communities to the storming
of the Golden Temple became an issue that could not be ignored around the
world. In Canada, the reaction was unprecedented. The storming of the Golden
Temple united Sikhs in grief and anger at the desecration of their holiest shrine.68
Demonstrations against the Indian government were staged across the country,
with protestors burning Indian flags69 and firing shots in the Indian Consulate in
Toronto.70 Indian diplomatic personnel were subject to harassment and received
death threats by telephone.71 In July 1984, the Acting High Commissioner was
assaulted by five Sikh men in Winnipeg.72
Government of India Concern with Canadian Response
The Government of India (GOI) considered the Canadian response to the threat
of Sikh extremism to be “very inadequate”, and maintained that it compared
unfavourably to the responses of the US and the UK.73 The Canadian High
Commissioner, William Warden, received the brunt of the Indian Government’s
frustration and sympathized with it. Between June and October 1984, Warden
recalled being summoned to the Indian Foreign Ministry approximately 18 times
to receive strong protests about Canada’s lack of response.74 From his post in
New Delhi, Warden provided insight into the situation in India, warning against
the “naïve” expectation that Bhindranwale’s death would resolve the conflict in
the Punjab, and instead, presciently predicting that as a “Sikh martyr”, he would
remain “…a thorn in the side of Mrs. Gandhi and her successors for many years
to come.”75
External Affairs relayed Warden’s concerns to the RCMP, to emphasize the need to
ensure, not only that all necessary measures be taken to protect Indian diplomats,
but also that the protection be “…sufficiently visible to allay the concerns of the
64
65
66
67
68
69
70
71
72
73
74
75
Exhibit P-101 CAB0031.
Exhibit P-101 CAB0026.
Exhibit P-101 CAB0035.
Exhibit P-101 CAB0060.
Exhibit P-101 CAB0063.
Exhibit P-101 CAB0067.
Exhibit P-101 CAE0026.
See, for example, Exhibit P-101 CAB0068.
Exhibit P-101 CAC0222, p. 3.
Exhibit P-101 CAC0131, p. 3.
Testimony of William Warden, vol. 24, May 7, 2007, p. 2424.
Exhibit P-101 CAF0065.
�Chapter II: Threat Assessment and Response
Indian Government.” DEA indicated that the situation was disturbing “…from
a bilateral relations standpoint,” given the important objectives Canada was
pursuing with India.76
The GOI expressed its view that “Canada is perceived as a dangerous place for
official Indians where law is enforced only occasionally and with reluctance.”77
In June 1984, at the same time that Warden was assuring the Indian Foreign
Secretary that security was being upgraded for Indian interests in Canada, an
armed Sikh walked into the Toronto Consulate, fired shots and slipped away.78
RCMP Deputy Commissioner Henry Jensen instructed the VIP Security Branch
to provide additional protection to Indian diplomats.79 In August 1984, just
days after the Secretary of State for External Affairs (SSEA), the Honourable Jean
Chrétien, issued a strongly-worded statement denouncing the “…deplorable
incidents against Indian diplomatic personnel and property in Canada”80,
organizers cancelled an event in Montreal to be attended by Indian diplomats,
due to the presence of hundreds of Sikh demonstrators.81 While arrests were
made for several attacks on Indian premises and personnel, the prosecutions
generally failed82 or were delayed.83 External Affairs advocated for prosecution
of these matters, but also informed the Indian government that the Canadian
government’s ability to act was limited by statutory and constitutional realities,
including the Privacy Act and the federal – provincial division of powers.84
Eventually, the GOI sent an aide-memoire to External Affairs that made the point
that it was “…to say the least … not impressed” with the Canadian government’s
perceived failures to adequately protect Indian personnel and property from
violent acts and threats.85 At the Inquiry hearings, Warden speculated that
the Canadian government was treating the situation as “…just another ethnic
thing,” in the sense that it believed the issue concerned foreign, not Canadian
problems, and therefore tended to take them less seriously.86
Prime Minister John Turner sent a letter to Prime Minister Indira Gandhi in
August 1984, assuring her that Canada had accorded the highest possible level
of security to Indian interests.87 Prime Minister Brian Mulroney sent a similarlythemed letter to Prime Minister Rajiv Gandhi in May 1985, declaring that Canada
remained firm in its resolve to preclude illegal anti-Indian activities.88 By the
76
77
78
79
80
81
82
83
84
85
86
87
88
Exhibit P-101 CAC0131, p. 2.
Exhibit P-101 CAE0074.
Exhibit P-101 CAE0026.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5408; Exhibit P-101 CAC0138.
Exhibit P-101 CAE0083.
Exhibit P-101 CAE0092.
Exhibit P-101 CAE0096. The Toronto Provincial Crown dropped charges against the accused, who
entered the Toronto Consulate and fired shots, due to the lack of Crown witnesses, after Indian
diplomats refused to testify.
See Exhibit P-101 CAE0106 for a chronology of Sikh protests and the Government of Canada response
from April to September 1984. See Exhibit P-101 CAE0149 for a description of the delay in the Uzi
machine gun case due to technicalities in the offence, that is, the two accused were each carrying parts
of the gun rather than the whole gun as required under Canadian criminal law.
Exhibit P-391, document 44 (Public Production # 3066).
Exhibit P-101 CAC0186, p. 2.
Testimony of William Warden, vol. 24, May 7, 2007, p. 2412.
Exhibit P-101 CAE0095.
Exhibit P-101 CAE0170.
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end of the summer of 1984, the issue of the adequate level of protection for
Indian interests in Canada was receiving attention at the highest levels of the
Canadian government.89 Beyond these high-level representations however,
External Affairs found limited success in translating its concerns into responsive
action by other government agencies.
Slow Recognition of Threat by Security Agencies
The RCMP Security Service – and, after July 1984, the Canadian Security
Intelligence Service (CSIS) – was responsible for assessing threats to national
security for the Government of Canada, but was slow to recognize the
significance of the Sikh extremism threat in Canada. The general belief was
that Sikh extremism was a foreign problem. The Security Service believed that
any violence in Canada would be linked to events in the Punjab,90 and would
be due to “uncontrolled outbursts” by persons overtaken by emotion.91 While
the Security Service was aware that Sikhs in Canada were sending money to
support action in the Punjab92, it expressed doubt that they would resort to
violence within Canada.93
Despite the Security Service’s recognition of the sudden growth in Sikh
extremism in Canada following Operation Bluestar, few resources were
assigned to its investigation into the emerging movement. The lack of resources
continued in the newly-created CSIS. The limited resources were mainly utilized
for substantiating threat warnings and obtaining information about anticipated
demonstrations on a piecemeal, reactive basis, rather than for developing a
comprehensive understanding of the radical Sikh movement in Canada. CSIS
received the flood of threats to Indian interests and attempted to corroborate
the information. However, CSIS’s investigation in the critical BC Region suffered
from a lack of human sources, physical surveillance units and technical sources,
as well as from a dearth of investigators and intelligence monitors to process
the collected information. With few investigative resources assigned to the Sikh
extremist investigation, investigators were regularly unable to find corroboration
(or denial) of the threat information.
From the time of the Golden Temple storming, the threat level against Indian
interests was assessed as continuously “high.” The TAs warned that there was
a “…real and present danger” to Indian interests in Canada.94 However, these
“high threat” warnings appeared to be based on a common sense expectation
of consequences, in light of the tense climate in the Sikh community in Canada
89
90
91
92
93
94
Exhibit P-101 CAC0207.
Exhibit P-101 CAB0080 (June 18, 1984 TA notes that the propensity for problems are directly linked to
the Canadian Sikh community’s perception of the events in the Punjab. Warns that threat will
moderate only if differences in the Punjab resolved). See also Exhibit P-101 CAB0083 (June 20, 1984).
Exhibit P-101 CAB0120, CAB0148 (October 22, 1984 TA warns against overlooking the “emotional
characteristics of Sikhs”), CAB0197 (February 27, 1985 TA warns emotions still running high within
the Canadian Sikh community).
Exhibit P-101 CAE0056.
Exhibit P-101 CAB0076 (June 14, 1984 in which CSIS tends to question the veracity of a warning of a
suicide attack against Air India as relevant to Canada).
Exhibit P-101 CAB0092.
�Chapter II: Threat Assessment and Response
and India, rather than on independent investigative support. The “high general
threat”warnings were commonly qualified with expressions that the threats could
not be entirely discounted,95 but that there was no independent information
to corroborate the high general threat96 or to indicate a more specific threat.97
Analysts often tended to view the threats with scepticism, opining that threats
made by Sikh extremists were exaggerated, issued more for tactical reasons
than as an expression of an actual willingness to carry out violent acts.98
By September 1984, CSIS warned that the real threat to Indian interests would
come from radical groups within the Sikh community who could take actions
not sanctioned by the moderate leadership.99 CSIS investigators increasingly
focused on specific individuals as the source of the threat to Indian interests,
notably Parmar, Bagri and Gill.100 However, CSIS investigators faced challenges
in obtaining technical sources and physical surveillance coverage on these
targets, as they competed for these scarce resources within an organization
focused on transition issues, counter-intelligence targets from the Cold War era
and Armenian terrorist targets. CSIS admitted its lack of knowledge about the
Sikh extremist movement in Canada, warning in June 1985 that should radical
elements “…plan any action, there [was] a good possibility that CSIS will not
have any foreknowledge.”101 Throughout this period, CSIS continued to warn of
the high, but uncorroborated, general threat to Indian interests, including Air
India. Thus, as the time of the Air India and Narita bombings approached, CSIS
was an organization that was cognizant of the potentially lethal and serious
threat of Sikh extremism and warning others of it, but remained ill-equipped
to verify the nature of the threat, or to provide independent insight that the
RCMP and other agencies responsible for threat response could use to tailor
their actions.
Widespread Skepticism about the Seriousness of the Threat
Despite the “high threat” alarm that was being raised by CSIS, at the upper levels
of the bureaucracy, and among some members of RCMP senior management,
skepticism about the actual threat posed to Indian missions and personnel was
still common within the RCMP and among some Transport Canada officials.
95
96
97
98
Exhibit P-101 CAB0061 (June 7, 1984), CAB0093 (July 5, 1984), CAB0148 (October 22, 1984).
Exhibit P-101 CAB0148 (October 22, 1984).
Exhibit P-101 CAB0071 (June 12, 1984), CAB0192 (February 15, 1984), CAB0218 (April 12 , 1985).
Exhibit P-101 CAB0061 (June 6 , 1984 TA notes that the BK is a group of malcontents using threats to
get attention and some support), CAB0105 (July 10, 1984 TA notes some speculation exists that
the hit list is but an idea being used by a small militant group to increase the climate of tension
in the Sikh community and to induce moderates to adopt a more extreme stance), CAB0218
(April 12, 1985 TA notes CSIS believes that telephone bomb threats made to Air India offices are
probably communicated to continue to cause problems and perpetuate terrorist threats in hopes
of causing unrest/retaliatory measures by the Indian Government so as to keep Khalistan alive in
the minds of all Sikhs).
99 Exhibit P-101 CAB0137.
100 Exhibit P-101 CAA0105.
101 Exhibit P-101 CAB0249.
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The threat warnings and accompanying requests for additional security, sent
regularly by Air India, were not always viewed as indicating the existence of a
real threat. The agencies developed a perception of an exaggerated volume of
threat information being passed on by the GOI. After the bombing, RCMP and
Transport Canada officials affirmed that “…almost every flight was preceded
by a letter outlining a threat to Air India”102 originating from either Air India or
the GOI. Whether or not this was the case,103 it seems that the perception that
the warnings were numerous and constant was the motivation behind their
being questioned. In its report to the Honourable Bob Rae, CSIS indicated that
“…the fact that the Government of India issued so many warnings to so many
departments and agencies in Canada generated the sense among recipients
that they were exaggerating the threat.”104
Even after the bombing, RCMP and Transport Canada officials continued to
believe that the threat information sent by Air India on a regular basis was
aimed at obtaining additional security for free.105 Apparently, the bombing itself
was not enough to bring home the fact that the threats to Air India were real.
The June 1st Telex, outlining threats to bomb Air India airplanes using timedelayed devices,106 continued to be perceived simply as a “floater”107, a piece of
information provided “…every time in hopes that security would be increased”
and for the purpose of “…gaining more security around the aircraft.”108 Little
thought seems to have been given to the question of why Air India would want
the additional security if the threat were not real.
Members of the RCMP VIP Security Branch, charged with the protection of
foreign missions in Canada,109 denied being sceptical about the need to provide
protection for Indian diplomats.
By mid-1984, a number of violent incidents involving Indian property and
personnel had occurred in Canada. These included, inter alia, the June 1984
attacks on the Vancouver and Toronto Indian consulates, the July 1984 assault
on K.P. Fabian, the Acting High Commissioner of India, and demonstrations in
Vancouver that resulted in damage to the Consul General’s vehicle.110 At the
hearings, Jensen testified that his impression was that the RCMP members in
charge of protection were still not taking sufficiently seriously management’s
previous directive to increase protection.111 He concluded, in August 1984, that
the RCMP was “…under resourcing in [its] planning for the various public events
at which Indian diplomats are present.” He was not sure that the RCMP Divisions
102 Exhibit P-101 CAC0517, p. 2. Sweeney was still of that view when he testified before the Commission:
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2585; Testimony of Warren Sweeney, vol. 26, May
9, 2007, p. 2757.
103 See Exhibit P-101 CAA0234, which provides a chronology of the warnings received and does not record
a warning before each flight.
104 Exhibit P-101 CAA1086, p. 3.
105 Exhibit P-101 CAC0517, p. 2; Testimony of Warren Sweeney, vol.25, May 8, 2007, pp. 2584-2585.
106 See Section 1.2 (Pre-bombing), June 1st Telex.
107 Testimony of Warren Sweeney, vol.26, May 9, 2007, pp. 2736-2737.
108 Testimony of Warren Sweeney, vol.26, May 9, 2007, p. 2745.
109 Testimony of R.E. Muir, vol. 28, May 15, 2007, p. 2905.
110 Exhibit P-101 CAC0222. See also Exhibit P-101 CAA1099 for a list of “Major Sikh Extremist Events”
compiled by the RCMP.
111 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5419.
�Chapter II: Threat Assessment and Response
were “…sufficiently sensitized in this regard,”112 and he felt that they needed to
be advised of the possible implications of not providing adequate protection for
Indian diplomats. The Director of Protective Policing noted that “…the message
is clear – PROTECT.”113
The RCMP VIP Security branch made repeated attempts to convince DEA to agree
to decrease the level of protection provided for Indian missions and personnel
in Canada, as it was viewed as a significant and unnecessary drain on RCMP
resources. VIP Security management was far more focused on the threat posed
to Turkish diplomatic personnel by Armenian terrorists. Armenian extremist
groups were described as “…organized worldwide” and as having “…clearly
demonstrated their ability to carry out assassinations and murder.” By contrast,
the threat to Indian diplomatic personnel was described in October 1984 as “…
the work of individual Sikh extremists”, not “…organized terrorist groups,” and
as having resulted only in “…minor property damage with the exception of the
assault on Mr. Fabian.”114
VIP Security also appeared to dismiss the September 1984 CSIS warning that
“…more radical and younger segments” of the Sikh community often took “…
independent and precipitous actions not sanctioned by and outside the control
of the moderate leadership”, and as such were a “…real threat to Indian interests
in Canada.”115 Instead, VIP Security management seized on a CSIS statement that
some of the emotion following the assault on the Golden Temple had “…largely
subsided” and that “…moderate leadership is expected to increasingly focus
their efforts on the political level”116 to argue for less protection; this despite the
fact that CSIS continued to maintain that “…the move towards quiescence in
the Sikh community here should not be judged as lessening the potential for
problems”, and concluded that the threat remained high.117
The RCMP also, at times, expressed scepticism about the use made by
Indian diplomats of RCMP protective services, and took this as yet another
demonstration that the threat was not as serious as was claimed. The fact that
RCMP escorts were not consistently used by some of the Indian officials, even
when available, was viewed as evidence that RCMP protection was being used
as a “convenience” rather than for free security.118 RCMP officers were of the view
that the Indian diplomats sometimes used their police escort as a “chauffeur”,
and that they showed “…disregard for [their] own security” and appeared “…
to enjoy the readily available and expensive services” provided by the RCMP, “…
but seemingly for the wrong reasons.”119
112
113
114
115
116
117
118
119
Exhibit P-101 CAC0214, p. 2.
Exhibit P-101 CAC0214, pp. 2-3; Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5418.
Exhibit P-101 CAC0222, p. 2.
Exhibit P-101 CAA0093, p. 2.
Exhibit P-101 CAC0222, p. 3.
Exhibit P-101 CAA0093, p. 2.
Exhibit P-101 CAC0222, p. 3.
Exhibit P-101 CAC0233, pp. 3-4. On October 30, 1984, VIP Security Branch once again wrote to
DEA requesting permission to replace RCMP officers with private security guards in Ottawa,
Toronto and Vancouver (it would seem the early October request was turned down at the time).
This request is referenced in Exhibit P-101 CAC0255. However, due to the assassination of Indira Gandhi
on October 31, 1984, it was decided that no lessening of security should occur at that time: Exhibit
P-101 CAC0241, CAC0243.
153
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Heightened Attention to Sikh Extremism in May 1985
In the month before the Air India and Narita bombings, the threat of Sikh
extremism was given more attention, in light of the enhanced risk surrounding
the anniversary of the Golden Temple storming and the US visit by Rajiv Gandhi,
the successor to the assassinated Indira Gandhi. The Secretary of State for External
Affairs (SSEA), the Rt. Honourable Joe Clark, expressed his personal concern that
Canadian authorities accord the highest priority to the Sikh extremist threat.
External Affairs formed a senior level interdepartmental working group, to
coordinate activities within Canada related to the threat to Indian interests, and
participated in a US/UK/Canada tripartite group to share intelligence on Sikh
extremism.120 CSIS issued a comprehensive threat assessment (TA) on the Sikh
extremist movement in Canada, and distributed it widely across government
agencies in Canada.121 CSIS HQ tasked the major regions and districts to submit
daily situation reports on the threat of Sikh extremism in their areas.122 As of
mid-May, the RCMP was providing enhanced protection for Indian missions and
personnel as a result of an upgraded threat assessment.123 The protection was
increased for some of the consulates at the end of the month, at the request
of the interdepartmental working group on Sikh terrorism.124 The RCMP noted
that it was aware that “…the next few weeks are crucial vis-à-vis the protection
of Indian Missions in this country and we are continually reviewing all new
intelligence, and, should the necessity arise, the protective measures will be
upgraded as required.”125 In fact, additional protection for the High Commission
in Ottawa was implemented on June 3, 1985, to respond to the high threat.126
Airport officials at Pearson airport initially refused to implement additional
security for Air India’s operations without cost to the airline.127 However, the
intervention of the Department of External Affairs128 resulted in a direction from
RCMP Headquarters that the level of security at Pearson be raised to the level
being provided at Mirabel.129
This prioritization of the response to the Sikh extremism threat by some agencies
in May and June of 1985 appears to have been a temporary measure, in response
to a perceived temporary heightening of the threat due to the anniversary of
the Golden Temple storming and the US visit of Rajiv Gandhi, rather than the
demonstration of a true appreciation of the long-term significance of the threat.
Immediately after Gandhi’s departure, the RCMP requested an updated TA from
CSIS, noting its assumption that, should the events pass without serious incident,
120
121
122
123
124
125
126
127
128
129
Exhibit P-101 CAE0174, CAE0178.
Exhibit P-101 CAB0236(i).
Exhibit P-101 CAB0256.
This appears to be referring to a May 16, 1985 NCIB threat assessment (Exhibit P-101 CAC0334)
indicating that the assessment of the threat to Indian missions is high due to the situation in the
Punjab as well as recent events in E Division and the recent arrest of Sikhs in the United States:
Exhibit P-391, document 255 (Public Production # 3388), p. 4.
Exhibit P-101 CAE0223, p. 2; Exhibit P-391, document 255 (Public Production # 3388), pp. 4-5.
Exhibit P-101 CAE0177.
Exhibit P-391, document 255 (Public Production # 3388), p. 5.
Exhibit P-101 CAF0041.
Exhibit P-101 CAE0181.
Exhibit P-101 CAE0181, CAF0010, p. 3.
�Chapter II: Threat Assessment and Response
the threat level (and hence required protection) would diminish.130 The final
CSIS TA before the bombings warned that it would be naïve to think that Sikh
extremists had abandoned their cause, and assessed the threat as only slightly
less serious.131 In response, the RCMP maintained the same level of protection
at Indian missions and for Air India flights.132 Despite these late efforts, the Air
India and Narita bombings took place on June 23, 1985.
Conclusion
Overall, in spite of some concern expressed by the SSEA, External Affairs, CSIS
and senior RCMP officers, the phenomenon of “threat fatigue”133 and pervasive
scepticism about the motivations of Air India and Indian diplomats made it
difficult for Canadian officials to appreciate the true seriousness of the threat
of Sikh extremism. From his vantage point in India, Warden felt that, had the
actions of the Sikh extremists been pursued vigorously by the government
early on, by prosecution as well as by investigation, regardless of whether
convictions actually ensued, these government responses might have “…taken
the wind out of their sails” and thwarted further development of plots like the
Air India bombing.134 Some of the implications of the mistaken perception that
the threat was not truly serious would become evident in the failures of the
various agencies and departments of the Government of Canada leading up to
the events of June 23, 1985.
2.3 Inadequate Preparation for Nature of Threat
2.3.1 Recognition of the Threat of Sabotage and Weaknesses in the
Ability to Respond
The Chicago Convention
In 1944, the International Civil Aviation Association (ICAO) was established by
the Convention on International Civil Aviation (“Chicago Convention”),135 under the
auspices of the United Nations.136 The ICAO became the supreme law-making
body with respect to international civil aviation, and provided governments, air
carriers, and airport operators with comprehensive sets of best practices and
security measures for normal and high risk situations.137 There are currently 189
contracting states within the ICAO, all of which are signatories to the Chicago
Convention.138
130
131
132
133
134
135
136
137
138
Exhibit P-101 CAE0195.
Exhibit P-101 CAB0321.
Exhibit P-101 CAE0199, CAE0201.
See Section 2.4 (Pre-bombing), Security Culture at Canada’s Airports and Section 3.3.4 (Pre-bombing),
CSIS Failures in Assessing the Threat.
Testimony of William Warden, vol. 24, May 7, 2007, p. 2384.
Convention on International Civil Aviation, December 7, 1944, 15 U.N.T.S 295 (entered into force on April
4, 1947) .[Chicago Convention]
Exhibit P-157, p. 15.
Exhibit P-157, p. 18.
Testimony of Moses Aleman, vol. 35, May 29, 2007, p. 4215.
155
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Flowing from a rash of increasingly sophisticated incidents in the 1960s and
1970s, the hijacking of aircraft was, for a time, perceived as the predominant
threat to civil aviation. While the first aircraft hijacking took place in 1931,139
acts of terrorism against aviation security only became a significant concern
after World War II, with the advent of the Cold War.140 Individuals who found
themselves trapped behind the Iron Curtain resorted to hijacking aircraft in
desperate attempts to flee to freedom in the West. They were followed, in due
course, by Cubans fleeing to the United States following the Revolution.141
Although these early asylum-seeking hijackers were welcomed to the West as
valuable political symbols, other groups began to consider using hijacking for
overtly political purposes of their own. This was exemplified by the coordinated
and sensational hijackings conducted by Palestinian and Iranian fundamentalist
groups in the 1960s and 1970s.142
In 1974, the ICAO member nations responded to the hijacking crisis by adopting
Annex 17 to the Chicago Convention, Safeguarding International Civil Aviation
Against Acts of Unlawful Interference.143 Each of the Annexes adopted by the ICAO
Council contains standards and recommendations.144 Signatories are obliged
to comply with the international standards. The recommendations are best
practices or “desirable” measures, meaning that, while the contracting states
were not obliged to implement these measures, the measures were appropriate
goals for more advanced and prosperous nations concerned with ensuring that
their aviation security regimes were as effective as possible.
Canadian Security Response
It is worth emphasizing that ICAO standards were, and continue to be, minimum
standards, aimed at “the lowest common denominator” in order to obtain
approval from all contracting states. Rodney Wallis, in his testimony, gave the
example of a poor country having to choose between having an X-ray machine
at an airport and having one at a hospital.145 As a result, the international
standards will necessarily fall below those deemed appropriate, or even
necessary, by advanced, prosperous nations. Such nations also have access to
up-to-date intelligence about new threats and tactics, and must be expected to
respond accordingly. Canada’s efforts to satisfy the ICAO standards and to create
a comprehensive, safe and responsive civil aviation security program have been
examined with these facts in mind.
139 Testimony of Moses Aleman, vol. 35, May 29, 2007, p. 4211.
140 In terms of sabotage, the first incident of a bomb being placed aboard an aircraft occurred in the
United States in 1932. See Testimony of Moses Aleman, vol. 35, May 29, 2007, p. 4252. The first
two mid-air bombings of commercial aircraft took place in 1949. The first took place in the Philippines.
The second mid-air bombing of a commercial aircraft occurred on September 9, 1949 in Canada, killing
23. See Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4207; Exhibit P-147, p. 28.
141 Exhibit P-147: p. 5. Note that following the exodus of 1959-1961, the pattern of asylum-seeking
hijackings continued along a different trend, with US aircraft now being hijacked by homesick Cubans
seeking to return to Communist Cuba.
142 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4207.
143 Exhibit P-151: International Standards and Recommended Practices – Security: Safeguarding International
Civil Aviation Against Acts of Unlawful Interference – Annex 17 to the Convention on International Civil
Aviation – First Edition – August 1974 [Exhibit P-151:Annex 17, 1st ed.).
144 Testimony of Moses Aleman, vol. 35, May 29, 2007, p. 4216.
145 Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4218-4219; Testimony of Rodney Wallis, Vol. 36,
May 30, 2007, p. 4285.
�Chapter II: Threat Assessment and Response
Annex 17 directed each contracting state to implement a national civil aviation
security program, and to designate an authority in charge of that program.
Transport Canada was Canada’s representative at the ICAO, and was designated
as the authority responsible for Canada’s civil aviation security program.
Transport Canada continues to hold these roles today.
Pursuant to the first edition of Annex 17, Transport Canada was responsible for
developing a program to prevent criminal acts against civil aviation. Annex 17
also included a recommendation that each authority should work to coordinate
activities between the agencies, departments, and other organizations
responsible for different aspects of that program.146
The security measures implemented during the 1970s and early 1980s were
clearly intended to minimize the risk of hijacking incidents, with a focus upon
preventing potential hijackers from bringing weapons aboard an aircraft, either
on their persons or in their carry-on baggage. The Aeronautics Act in place at
the time of the Air India bombing had been amended in 1973 to enable the
development of aviation security regulations that would require operators of
aircraft registered in Canada to search people, baggage, and cargo as a condition
of flying.
The Act included a “no search, no fly” rule, which prohibited anyone from
boarding an aircraft, or placing baggage aboard the aircraft, unless authorized
searches had been conducted of their persons and their belongings.147 Prior to
these amendments, no legal authority existed to search passengers and their
baggage at airports prior to boarding;148 initially the carriers voluntarily agreed to
screen passengers under the authority of tariff regulations and by virtue of their
power to accept or reject passengers and their baggage for transportation.149
This was the foundation for the system of voluntary compliance with security
regulations by air carriers. The Aeronautics Act was amended again in 1976 to
expand these search requirements to operators of foreign aircraft.
To facilitate passenger screening, Transport Canada established checkpoints and
sterile concourse areas at all international airports, and provided and maintained
X-ray scanners and metal detectors for inspecting passengers and their carry-on
baggage.150 Despite the progress made, however, a key vulnerability remained.
The aviation security measures were not designed for the eventuality that
terrorists might instead engage in acts of sabotage, including bombing, which
did not require them to board an aircraft at all.151
146 Testimony of Moses Aleman, vol. 36, May 30, 2007, pp. 4271-4272.
147 Aeronautics Act, R.S.C. 1970, c. A-3, as am. by An Act to Amend the Aeronautics Act, S.C. 1973-1974, c.20, s.
1 [Aeronautics Act, R.S.C. 1970, am. S.C. 1973-74], introducing ss. 5.1(3), 5.1(4).
148 Exhibit P-101 CAF0774, p. 19.
149 Exhibit P-101 CAF0643, pp. 1-2: “During 1971-1972 Air Canada and CP Air voluntarily carried out
a number of security procedures on international and trans-border flights which included the selective
searching of passengers and carry-on baggage under their tariff rules. The screening was carried out by
airline employees and CP Air also used the services of the CP Police.”
150 Exhibit P-101 CAF0643, p. 3.
151 Exhibit P-157, p. 19.
157
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Beyond these legislated measures, Canada’s aviation security program depended
greatly on the voluntary cooperation of air carriers and on their compliance with
the security requirements in place.152 The Air Carrier Security Regulations and the
Foreign Aircraft Security Measures Regulations, created under the authority of
the Aeronautics Act, 153 placed responsibility on foreign and domestic air carriers
operating in Canada to develop and maintain their own security procedures.
Carriers such as Air India were required to establish systems for surveillance and
for searching persons, belongings, baggage and cargo by manual, technical or
electronic means.154 The carriers were required to file a written description of
their security measures with the Minister.155
Neither the Aeronautics Act, nor the regulations and orders issued under its
authority, provided details concerning the measures to be implemented. They
did not direct the Minister to assess, approve or reject the security plans created
by the carriers.
In addition to the measures outlined in the aviation security regulations and
orders, the carriers were also broadly required to provide a system of identification
to prevent unauthorized baggage, goods and cargo from being loaded onto an
aircraft. They were, additionally, required to restrict access to their premises at
airside, and protect against unauthorized access to the aircraft itself. As well,
there was to be no unauthorized access to checked baggage prior to it being
loaded aboard the aircraft, and it was only to be accepted by designated agents
or representatives of the airline.156
International Convention Updated in 1981
Annex 17 was updated in 1981, resulting in some recommendations being
elevated to the level of standards. The amendments also incorporated new
and more detailed security requirements. For example, as a contracting state,
Canada was obliged to “…take the necessary measures to prevent weapons or
any other dangerous devices, the carriage or bearing of which is not authorized,
from being introduced by any means whatsoever, on board an aircraft engaged
in the carriage of passengers.”157
Significantly, the second edition of Annex 17 specifically recommended that
contracting states “…should establish the procedures required to prevent
explosives or incendiary devices from being placed aboard an aircraft through
baggage, cargo, mail and stores.”158
152 Exhibit P-263, p. 40.
153 Aeronautics Act, R.S.C. 1970 am. S.C. 1973-74, introducing ss. 5.1(1), 5.1(1.2). .
154 Foreign Aircraft Security Measures Regulations, S.O.R/76-593, s. 3(1)(a) [Foreign Aircraft Security Measures
Regulations].
155 Civil Aviation Security Measures Order, S.O.R./ 74-227, s. 3 [Civil Aviation Security Measures Order].
156 Civil Aviation Security Measures Regulations, S.O.R./ 74-226 [Civil Aviation Security Measures Regulations];
Foreign Aircraft Security Measures Regulations.
157 Exhibit P-152: International Standards and Recommended Practices – Security: Safeguarding International
Civil Aviation Against Acts of Unlawful Interference – Annex 17 to the Convention on International Civil
Aviation – Second Edition – October 1981, s. 4.1.5 [Exhibit P-152: Annex 17, 2nd ed.].
158 Exhibit P-152: Annex 17, 2nd ed., s. 4.1.14.
�Chapter II: Threat Assessment and Response
As of June 22, 1985, the standard security procedures in place at Canadian
airports were limited to metal detection screening of passengers and the
X-ray screening of carry-on baggage.159 There was no mandatory screening
requirement for checked baggage. In fact, it was up to individual airlines like
Air India to voluntarily include the screening of checked baggage in their own
security plans.160
Threat of Hijacking Diminishes and the Threat of Sabotage and Bombing
Increases
Hijackings in the early 1970s became increasingly violent and lethal,161 but the
anti-hijacking measures appear to have proved effective in controlling and
reducing their incidence. In 1979, for example, there were no attempts to hijack
any scheduled passenger aircraft in Canada. 162 Transport Canada noted in 1980
that there had not been a single successful hijacking of a scheduled Canadian
flight since 1971, and no attempts since 1974.163 Incidents of hijacking continued
around the world, but were on the decline. Of 11 hijacking incidents in the
United States in 1979, 10 did not involve real handguns or explosives.164 By 1982,
worldwide hijacking attempts had “decreased dramatically” from the spate of
incidents in the 1970s. There were 87 hijacking attempts (both successful and
unsuccessful) around the world in 1969, and 83 in 1970. In 1982, that number
had fallen to 31 hijacking incidents worldwide.165
As the threat from hijacking diminished in the face of tightened security, terrorists
naturally began to change their tactics in order to exploit weaker points in the
security measures of the day. This was clear not only in hindsight. The Inquiry
heard expert testimony that, by 1974, several bombings had firmly established
the threat of sabotage.166 The evidence also clearly shows that Transport Canada
formally recognized, as early as 1979, that sabotage would supplant hijacking as
the predominant threat to civil aviation security.
In the spring of 1979, senior representatives from Transport Canada, the RCMP,
the Air Transport Association of Canada (ATAC) and Canada’s major air carriers
met to discuss the Review of the National Civil Aviation Security Program.167
Based on intelligence provided by the RCMP Security Service, the parties agreed
that the threat was changing internationally, and that sabotage and bomb
threats were a greater concern than hijackings.168
In early 1980, Transport Canada’s Civil Aviation Security Branch prepared a report
entitled the Evolution of the Canadian Civil Aviation Security Program. The report
159
160
161
162
163
164
165
166
167
168
Exhibit P-101 CAF0089, p. 19, CAF0151, pp. 13-14.
Exhibit P-101 CAF0089, p. 19.
Testimony of Peter St. John, vol.35, May 29, 2007, pp. 4221-4222.
Exhibit P-101 CAF0163, p. 5.
Exhibit P-101 CAF0766, p. 5.
Exhibit P-101 CAF0163, p. 5.
Exhibit P-101 CAF0563, pp. 5-6, 8.
Testimony of Peter St. John, vol. 35, May 29, 2007, p. 4222.
Exhibit P-101 CAF0765.
Exhibit P-101 CAF0765, p. 2.
159
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examined recent acts against civil aviation around the world, noting a large
decline in hijacking attempts and a new rash of incidents involving sabotage. In
one instance in 1979, a bomb concealed in checked baggage exploded on the
ramp at John F. Kennedy International Airport in New York (Kennedy) just before
it was to be placed aboard an aircraft.169 Another bomb exploded in the hold of
an aircraft during an unscheduled landing at Kennedy. Active bombs were also
found at several U.S. airports that year.
Among the report’s conclusions was:
The recent explosions aboard U.S. aircraft and discovery
of active bombs at U.S. airports would suggest that events
would indicate that acts of sabotage rather than hijacking
now post the greatest threat to civil aviation in Canada.
It is hypothesized that this changing threat is due to the
deterrent value and effectiveness of the passenger screening
system forcing the mentally disturbed and criminally minded
individuals to look elsewhere for ways and means to commit
unlawful acts.170
In February 1980, the Joint Study Committee on Civil Aviation Security met
and discussed the current intelligence provided by the RCMP Security Service,
the RCMP Airport Policing Branch, and the ATAC Security Committee.171 The
Committee members included senior representatives from Transport Canada,
ATAC and the RCMP. The Committee continued to accept the conclusion,
reached at its meeting the year before, that a review of the intelligence indicated
that there was no apparent special risk to civil aviation in Canada at that time,
and that there had been no attempted attacks against Canadian airport or
aircraft since 1974. Nevertheless, the Committee concluded that terrorist tactics
were changing, and that continuing acts of terrorism on the international
scene warranted alertness, particularly with regard to Canada’s international
airports.172
Having reviewed the intelligence for that year,173 the decision record of the Joint
Study Committee reflects the following remarkable conclusion:
The Committee agreed that the nature of the threat was
changing and acts of sabotage rather than hijacking
were perceived as the main threat to the safety of the air
transportation system in the future. As passenger screening
procedures have proven to be an effective deterrent to prevent
the carriage of unauthorized weapons and explosives in the
169
170
171
172
173
Exhibit P-101 CAF0766, p. 40.
Exhibit P-101 CAF0766, p. 8.
Exhibit P-101 CAF0163.
Exhibit P-101 CAF0163, p. 2.
The RCMP Security Service briefing can be found at Exhibit P-101 CAF0767.
�Chapter II: Threat Assessment and Response
aircraft cabin there is concern that persons are now attempting
to exploit the weaknesses in the security system to place
explosives in checked baggage, express parcel shipments,
cargo, and mail.174
As the evidence amply demonstrates, Transport Canada was aware of the risks
of terrorism and sabotage against civil aviation in Canada long before the
bombing of Air India Flight 182. The concern was so great that, in the summer
of 1980, ATAC requested that Transport Canada begin developing screening
techniques and equipment to detect the components of explosives in order to
meet the changing threat:
Further to our recent conversations you will recognize that the
serious threat to civil aviation is now perceived to be detection
of components of explosives or other incendiary devices
as opposed to the metal detection of guns or other similar
weapons. We are most concerned that the development and
provision of detection equipment in support of the National
Civil Aviation Security Programme must meet the changing
threat.
We therefore request that the Department of Transport initiate
research and development on x-rays and/or other equipment,
possibly with “double image” coupled with vapour detector
for use in bomb scare or alert conditions. We believe the
early development of such equipment is vital to the National
Security Programme and the safety of aircraft, crew and
passengers.175
Aviation Security Concerns in Canada
In 1982, Transport Canada released a report for the National Air Transportation
Security Plan. This was a strategic planning framework, describing the existing
security situation and outlining the issues that would be facing civil aviation
security.176 The goal of the plan was to develop major policies and strategies
for Transport Canada’s Air Administration that would foster effective measures
to deter and prevent acts of unlawful interference. The issues highlighted
included: the lack of regulatory authority to approve air carrier security
programs; inadequate supervision of the private security companies at airports;
and the absence of penalties against air carriers that violated the Aeronautics
Act.177 In terms of the state of aviation security in Canada, the report noted that
the anti-hijacking focus of the security regime had yielded good results, and
174
175
176
177
Exhibit P-101 CAF0163, p. 5.
Exhibit P-101 CAF0769.
Exhibit P-101 CAF0774.
Exhibit P-101 CAF0774, p. 19.
161
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that passenger screening was a visible and effective measure.178 Nevertheless,
the report was frank in its assessment of the ability of the system to withstand
acts of terrorism:
The issue of the ‘cosmetic’ nature of the security program is
evident as is the fact that it provides visible reassurance to the
traveling public. While it appears that the deterrent value of
the present system is high, it is clear that it is not capable of
resisting a serious well-organized terrorist strike.179
In October 1982, Paul Sheppard, Director of Civil Aviation Security for Transport
Canada, wrote to the RCMP requesting a threat assessment concerning the
political threat to Canadian civil aviation targets in light of recent instances of
terrorist activities.180
The RCMP Security Service provided its threat assessment in December 1982, and
a cleared version was distributed to ATAC in March 1983. The threat assessment
pointed to recent acts of terrorism in Canada by Armenian extremists, which
demonstrated the impact that various political events could have on Canada.181
It was the opinion of the RCMP Security Service that Canada’s international
airports were high-risk targets, as were foreign targets within Canada, such as
Israel’s El Al airlines and offices.182 The main tactics employed by terrorists were
bombings and assassination attempts; hijackings had decreased “dramatically”
since the mid-1970s.183
The increase in acts of sabotage caused considerable concern regarding the
measures in place to ensure baggage and cargo were safe and secure.184 In light
of the changing threat environment, Transport Canada’s Management Systems
Branch conducted a study in 1982 concerning aircraft cargo and baggage
security measures.185 Its purpose was to determine the adequacy of the existing
cargo and baggage security policies and, if these were found to be inadequate,
to recommend remedial measures.186
Proposed Regulations and Recommendations to Strengthen Aviation
Security
A draft report was printed and circulated in June 1983. The report considered
the state of the current cargo and baggage security measures, along with the
newly drafted Air Carrier Security Regulations which were being circulated to
178
179
180
181
182
183
Exhibit P-101 CAF0774, p. 9.
Exhibit P-101 CAF0774, p. 22.
Exhibit P-101 CAF0561, p. 1.
Exhibit P-101 CAF0563, p. 2.
Exhibit P-101 CAF0563, p. 3.
Exhibit P-101 CAF0563, pp. 5-6. This was echoed in the Report of the CATSA Act Review Advisory Panel,
which noted that “…[a]s early as 1983, the RCMP Security Service had identified bombs as a bigger
threat to aircraft than hijackings.” See also Exhibit P-157, p. 49.
184 Exhibit P-101 CAF0776, p. 1.
185 Exhibit P-101 CAF0565.
186 Exhibit P-101 CAF0776, p. 1.
�Chapter II: Threat Assessment and Response
various stakeholders for comment. The regulations were drafted in 1982 to
address the weaknesses in the system, but had not yet been implemented.187
The regulations were included as an appendix to the report.188
The 1983 study made a number of important and, as is now readily apparent,
prescient recommendations based on the deficiencies identified. Most notably,
the draft report indicated that, while the aviation security measures in force
were adequate in the low-level state of threat then in existence, in high-threat
periods, all checked baggage should be manually searched or checked by
X-ray.189 Additionally, at a time when most airlines did not search any checked
or interlined baggage, the report recommended that all interlined baggage be
searched or scanned by X-ray when the threat was high.
Other recommended measures to be implemented in times of high threat
included taking the precautions of sealing all bags once accepted or searched,
and refusing unaccompanied baggage unless searched, sealed, and held for a
minimum of 24 hours prior to loading.190 The 1983 report also recommended
placing guards in the baggage handling and plane staging areas, and exercising
caution when accepting last-minute passengers and their baggage.
The study authors recognized that the aviation security regime at that time
placed the largest part of the responsibility for protecting baggage and cargo
upon the air carriers, and that these responsibilities would greatly increase under
the draft regulations. The report also noted that the lack of terrorism incidents,
combined with tight funding, made it “tempting” to relax all forms of security,
but emphasized that security measures were required which would ensure that
aircraft were protected from bombings and hijackings.191
As noted in the report, the problem with making the air carriers responsible
for the security and “cleanliness” of checked baggage was that measures for
checked baggage varied widely from carrier to carrier.192 Additionally, air
carrier security plans were typically general in nature. They did not contain sitespecific measures, but instead contained policies and guidelines for the local
site managers to follow. The air carrier security plans themselves were reviewed
by regulatory authorities at the regional Transport Canada headquarters.
Meanwhile, airport security plans were prepared locally and on-site by airport
managers and their security officers, resulting in “…a headless plan lacking any
single point accountability for ensuring that the plan is efficient and effective
and that the facilities and services provided by [Transport Canada] (which are
shared by more than one carrier) are properly used and become a fully integral
part of the overall airport security plan.”193
To increase the security of baggage and cargo under normal alert conditions,
the report recommended that security awareness be improved at airports
187
188
189
190
191
192
193
Exhibit P-101 CAF0565, p. 17.
Exhibit P-101 CAF0565, p. 41.
Exhibit P-101 CAF0565, p. 22.
Exhibit P-101 CAF0565, p. 22.
Exhibit P-101 CAF0565, p. 7.
Exhibit P-101 CAF0565, pp. 16, 18.
Exhibit P-101 CAF0565, p. 17.
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through mandatory security training programs. This was in recognition of the
fact that the training requirements of the time focused only on the necessity of
training passenger screening officers.194 Given that the only regulated measures
concerning checked baggage depended on the alertness and knowledge of
personnel, including the air carrier ticket personnel, a lack of proper training
meant that the risk from checked baggage increased.195
The report called for security training programs for anyone involved with
patrolling check-in areas, baggage handling areas, and loading areas, as well
as all air carrier personnel who processed passenger tickets. Those who were
involved in the weighing, tagging, sorting, handling or loading of baggage
would be required to take such training courses.196 As called for in the draft
regulations, no personnel would be allowed to perform such duties unless they
had completed approved security training courses.197
Many of the frontline workers at airports lacked even basic security awareness,
and they were frequently under pressure to be very efficient and please
customers.198 It was a harried ticket agent for CP Air who relented to the
demands of “M. Singh”, that his checked bag be tagged for interlining to Air
India Flight 182 without a reservation, in contravention of CP Air’s own security
plan.199,200 The CATSA Act Review Advisory Panel wrote about the incident in its
report, noting that:
The passenger M. Singh who presented himself at the CP Air
counter in Vancouver exhibited atypical behaviour that might
have alerted staff that something was very wrong. Someone
paid cash for two international tickets at the last minute;
the names on the tickets had been changed; he demanded
interlining of his bag to a flight for which he had no confirmed
reservation; his manner was extremely aggressive and bullying.
These factors should have flagged Mr. “Singh” as a potential
risk – if staff had been trained for such signs and to make
preliminary decisions based on such indicators. But of course,
they had not.201
It was revealed during the investigation of the bombing, moreover, that many
Burns security personnel performing vital screening duties at Toronto’s Lester
194
195
196
197
198
199
200
201
Exhibit P-101 CAF0565, p. 19.
Exhibit P-101 CAF0565, p. 19.
Exhibit P-101 CAF0565, p. 9.
Exhibit P-101 CAF0565, p. 9. See also s. 400(a)(2)(iii) of the Draft Air Carrier Security Regulations: Exhibit
P-101 CAF0565, p. 67.
This is discussed in Section 2.4 (Pre-bombing), Security Culture at Canada’s Airports.
Exhibit P-157, p. 35. See especially p. 69: “Airline employees were expected to deliver customer service,
while security considerations might have figured less prominently in the training of a check-in agent….
In today’s environment, we believe that the employee would be more aware of security issues, likely to
be better supervised and supported ….”
Exhibit P-101 CAF0667. This is a compilation of statements given to the RCMP by Jeanne Adams, the
CP Air agent who interline tagged Singh’s bag.
Exhibit P-157, p. 67.
�Chapter II: Threat Assessment and Response
B. Pearson International Airport (Pearson), including those at work on the day
of the bombing, had not undergone a training program required by Transport
Canada, and that many of those who had taken the program had not received
any of the mandatory refresher training.
Despite its knowledge of the looming threat of bombings on airplanes and at
airports, Transport Canada failed to take meaningful action to meet this threat.
No remedial measures discussed in the 1983 report were in place on June 22,
1985. It is disturbing to see that the weaknesses in the aviation security measures,
as well as the risks of sabotage and concealed explosives as a means of attacking
civil aviation, were so well-known at least two years before the bombing of Air
India Flight 182. These were not speculative risks, but well-understood dangers.
In order to address these dangers, new, updated, and considerably stronger
security regulations had even been drafted – though nothing had been done
to enact them.
Growing Threat of Bombing to Air India in 1984
A year before the bombing of Flight 182, Transport Canada, Air India and the
RCMP were again made aware of the threat posed by a bomb concealed in
checked baggage. In June 1984, Sikh protests surrounding the attack on the
Golden Temple prompted Transport Canada to consult with Air India and the
intelligence community to determine whether a threat existed to Air India’s
operations in Canada, and whether extra security would be required for the Air
India 747 at Mirabel International Airport (Mirabel).202
On June 11, 1984, the RCMP advised the Civil Aviation Security section of
Transport Canada that Sikh extremists might target Air India, due to it being an
“easier target” than the Indian diplomatic missions in Canada.203 On June 12th,
the assistant manager for Air India advised Transport Canada of intelligence
that 20 to 25 Sikhs in Canada were prepared to become martyrs by blowing up
an Air India aircraft. The alleged plot involved an individual boarding the flight
and checking a piece of luggage aboard the aircraft with an explosive device
inside which would explode in-flight.204 Neither the RCMP Security Service nor
the Department of External Affairs could corroborate that such a plot was in the
works, but they agreed that there were “…fanatics within the Sikh community
capable of performing such an act.”205
In response, the Air India station manager implemented a number of measures
for the flights on June 16, June 23, and June 30, 1984. These included handsearching all checked baggage, including interlined baggage, subjecting
all passengers and carry-on baggage to secondary searches, and imposing
a 24-hour hold on cargo, along with the requirement that all cargo accepted
must come from bona fide shippers. Air India also brought in extra security
staff to Mirabel and met with the airport general manager, the RCMP, and
202
203
204
205
Exhibit P-101 CAF0161.
Exhibit P-101 CAF0639.
Exhibit P-101 CAF0161, p. 1.
Exhibit P-101 CAF0161, p. 1.
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Air Canada security to finalize local arrangements. Transport Canada and the
RCMP arranged to make the RCMP explosives detection dog team at Mirabel
available during Air India’s weekly flights, to search baggage, cargo, the aircraft,
and airport lockers for explosives.206 Air India did not have an X-ray machine to
examine checked baggage at this time, though it made arrangements, with the
approval of Transport Canada, to purchase such a device not long after these
events occurred.207
Paul Sheppard noted that Air India was pleased with Transport Canada’s
cooperation and assistance, and had also requested increased security for the
next three flights. Sheppard wrote in a memorandum that close ties were being
maintained with Air India, the RCMP, the Department of External Affairs, the
Federal Aviation Administration, and airport officials in order to ensure rapid
exchange of intelligence and adoption of any security measures required to
meet the threat.208
It is striking that the measures employed during this threat were so stringent,
and the coordination between the different parties so purposeful and effective,
when compared with the response to a very similar threat just one year later.
Another similar threat emerged in July 1984, when Air India’s assistant manager
at Mirabel forwarded another telex to the RCMP and Transport Canada
warning of a threat to carry a bomb aboard an Air India flight and to blow it
up to draw attention to the extremist group’s demands.209 The telex requested
that all Air India stations thoroughly implement anti-sabotage measures,
including inspecting checked baggage with X-ray scanners or explosivesdetecting equipment, adding that baggage should be thoroughly examined
on the slightest suspicion. Air India again requested the assistance of police in
providing strict security coverage and implementing appropriate measures to
protect their aircraft, passengers and cargo. It is clear from these warnings that
the threat of sabotage and the measures needed to respond appropriately were
well understood.
Transport Canada Awareness of Aviation Security Weaknesses
Transport Canada was evidently aware of many of the weaknesses in the civil
aviation security regime, even before the bombing of Air India Flight 182.
Not only was it apparent to Transport Canada that sabotage and the risk of
explosives being placed aboard aircraft through unscreened checked baggage
were pervasive risks, but Transport Canada’s own threat assessment system,
alert levels, and response measures were poorly implemented and inadequately
defined.
In a March 19, 1985, memorandum, Sheppard reported on plans to increase
civil aviation security as needed during a given situation. He indicated that
206
207
208
209
Exhibit P-101 CAF0161, p. 2, CAF0641, p. 1.
Exhibit P-101 CAF0645.
Exhibit P-101 CAF0645, p. 2.
Exhibit P-101 CAA0083, CAA0084.
�Chapter II: Threat Assessment and Response
a significant problem was posed by the need to disseminate any classified
intelligence Transport Canada received, as it lacked any secure lines of its own.
The only secure line available was through the RCMP network which linked
RCMP airport detachments to headquarters. Sending intelligence reports in
an emergency was a clumsy affair; Transport Canada had to telephone their
security supervisors at the airports and direct them to obtain the needed
information through the RCMP network. In light of these difficulties, Transport
Canada had asked the air carriers, through ATAC, whether they wanted to reestablish security clearances in order to obtain material directly from Transport
Canada, but this proposal was declined.210
In addition to the need for a secure communications network, Sheppard
identified other weaknesses and concerns, including the need for complete
reviews of all airport security plans and air carrier security programs, and
the necessity to find a way to force the carriers to regularly update these
programs.211
Sheppard was very concerned about the limitations of the system in place at
the time. Theats had been recently made to Air India, and threats had even
been received about specific suitcases containing bombs.212 The threat required
flexible measures far beyond what was then in place. Sheppard wrote:
Our existing system was never established to prevent
determined terrorist groups. What we have is basically an antihijack program, as opposed to anti-sabotage. The primary
control in the anti-hijack program is handled by poorly-paid
private security guards who are there to check for weapons on
passengers or carry-on baggage. They are not there to prevent
a terrorist attack or even take a weapon away from people.
Their role is to use the silent alarm system to call the police.213
Most significantly, Sheppard was emphatic about the need to implement the
draft regulations. He put it bluntly: “The New Air Carrier and Airport Security
Regulations are required and should proceed with or without the new Act.”214 This
is a remarkable statement. It makes it clear that, in the opinion of the Director of
Civil Aviation Security, the threat of terrorism, as it was then understood, simply
could not be met with the regulatory framework that was in place. Putting these
new regulations in place ought to have been the highest priority for Transport
Canada.
Sheppard reiterated his concerns about the limitations of the aviation security
regime in a memorandum dated April 9, 1985. There, he expressed the opinion
that aircraft and facilities in Canada could be targeted by terrorists “…with
210
211
212
213
214
Exhibit P-101 CAF0083, p. 1.
Exhibit P-101 CAF0083, p. 2.
Exhibit P-101 CAF0083, p. 3.
Exhibit P-101 CAF0083, p. 2.
Exhibit P-101 CAF0083, p. 2.
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very little if any advance warning,”215 and emphasized the need for the speedy
collection, analysis and dissemination of intelligence-based threat information.
Such intelligence-based threats were incompatible with the “specific” and “nonspecific” threat categories employed by Transport Canada. The “specific threat”
paradigm relied on the premise of a detailed threat being received against
a specific airline naming a specific flight and a specific day and time. A very
real and imminent threat discerned through intelligence gathering would be
unlikely to contain exhaustive and precise details. Instead, intelligence-based
threats would reveal a threat of bombing, with an airline such as Air India as a
possible target, and would allow those providing security to devote their limited
resources to respond to the danger.
Contributing to this deficiency was the problem that the alert levels system,
which defined the response to a given threat, was old and had not been updated.
It had been developed for the 1976 Olympic Games in Montreal. However, due
to the historical lack of specific threats and failures to reference the levels in
subsequent planning documents over the years, there was no consistent
terminology being applied by Transport Canada or by the air carriers to define
threats or alerts. Sheppard observed that there were “…no standard terms or
definitions for a government alert system,”216 so different agencies and parties
were instead applying their own definitions and levels.
The alert levels system imposed three alert conditions: normal, standby, and
maximum alert. Some airport security plans, such as the plan at Vancouver
International Airport, included these government alert levels.217 Other security
plans and emergency procedures, such as those developed at Pearson, made
no mention of any security levels at all.218 This resulted in inconsistent standards
and measures across the country.
Weaknesses in Ability to Respond to a Threat
An internal Transport Canada security debriefing at Pearson in April 1985
indicated a number of serious flaws that created confusion and limited the
response to a given threat situation. In particular, there was “…no consistent
direction from Headquarters to determine the level of threat and procedures
to be put in place.”219 This was demonstrated by inadequate and confusing
instructions, and directives that conflicted with the judgment of the on-site
personnel.
During the Armenian terrorism threat (discussed in the debriefing), Transport
Canada Headquarters was unable to send any classified information about the
threat to Pearson, as there was no secure phone or telex system in place.220
This handicap was already known to Transport Canada, and airports like
215
216
217
218
219
220
Exhibit P-101 CAF0084, p. 1.
Exhibit P-101 CAF0084, p. 1.
Exhibit P-101 CAF0083, p. 1.
Exhibit P-101 CAF0585, pp. 2, 7.
Exhibit P-101 CAF0585, p. 4.
Exhibit P-101 CAF0585, p. 5.
�Chapter II: Threat Assessment and Response
Pearson were forced to rely on the RCMP’s system to disseminate intelligence
about threats. The problem was that the RCMP often received this information
through their own channels well in advance of Transport Canada or the airports
and, worse, the RCMP were actually reluctant to pass on such information.221 An
observation repeated throughout this report is that excessive secrecy can often
harm security.
At a meeting of the Vancouver Airport Security Committee, held April 30, 1985, it
was noted that, although several bomb threats had recently been received, the
reporting procedure, as set out in the emergency procedures manual, had not
been followed. 222 The result was that Transport Canada officials at the airports
were not advised that the bomb threats had been received. Additionally,
there was considerable confusion about the procedures for searching aircraft
for explosives, even as more bomb threats were anticipated due to labour
unrest.223
The inability to coordinate a comprehensive response, distribute vital
information, and obtain clear instructions were all serious flaws in the aviation
security regime in place in June 1985. The reality is that the threat of bombing
through checked baggage was anticipated well before the bombing of Air
India Flight 182, yet not acted upon. The evidentiary record is replete with
pointed and pressing calls to correct many obvious deficiencies in the plans
and procedures designed to protect civil aviation from terrorist attacks. What is
notably lacking, however, is evidence that these severe deficiencies were being
systematically corrected, before the bombing snapped the parties out of a state
of complacency and provided a renewed sense of urgency.
Draft regulations which would have remedied many problems (particularly
with regard to enforcement) had been circulating since 1982, but were not put
into place until after the bombing. The Aeronautics Act itself was amended on
June 28, 1985. Previous attempts to amend the Act had been unsuccessful, but,
considering the nature and extent of the threat, it is striking that more decisive
action was not taken sooner. Undue faith was instead placed in technological
measures, such as X-ray and electronic explosive detectors, and on the voluntary
compliance of the air carriers with security plans which Transport Canada was
not legislatively empowered to approve, monitor, or enforce.
After the bombing, the government was put on the defensive when media
reports made it known that it had been warned of the threat of sabotage since
at least 1982.224 Talking points were prepared for the Prime Minister’s response,
including the claim that the threat of hijacking “in the late 1970s and early 1980s”
had been evolving, and that security measures had evolved with them. This was
simply not the case. The threat of sabotage or bombing was well understood
by Transport Canada since at least 1979, as the evidence shows. Nevertheless,
there had been no substantive changes to the aviation security regime since the
regulatory and legislative updates of the 1970s.
221
222
223
224
Exhibit P-101 CAF0585, p. 5.
Exhibit P-101 CAF0086, p. 6.
Exhibit P-101 CAF0086, p. 6.
Exhibit P-101 CAF0613.
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2.3.2 Failure to Push Through Responsive Regulations
The Aeronautics Act
The Aeronautics Act was, and remains, the principal Canadian legal instrument
governing national civil aviation. In response to increasingly violent and
numerous hijacking attempts around the world, amendments were introduced
in 1973 which established aviation security provisions for the first time. The
amended Act enabled the Minister of Transport to adopt regulations that would
require the operators of aircraft registered in Canada (and, in 1976, foreign
aircraft operating at Canadian airports) to conduct searches of passengers,
belongings, baggage, goods, and cargo before they would be permitted to
board an aircraft.225
One of the most important 1973 amendments was the “no search – no fly”
principle. Under the amended Act, passengers who refused an authorized
search by security officers would not be permitted onboard an aircraft.226 In
addition, their bags would not be permitted aboard an aircraft if they refused a
search of their person227 or their baggage and belongings.228
The ICAO and the Chicago Convention
Since 1944, the International Civil Aviation Association (ICAO) has been the
supreme law-making body with respect to international civil aviation.229 Each of
the 189 member states is a signatory to the ICAO Convention on International Civil
Aviation, also known as the Chicago Convention. In 1974, the ICAO responded
to the hijacking crisis of the late 1960s and early 1970s by adopting Annex 17 to
the Chicago Convention, Safeguarding International Civil Aviation Against Acts of
Unlawful Interference.230 The aim of Annex 17 was to introduce consistent goals
and measures to enhance international civil aviation security and prevent acts
of terrorism. There are currently 18 Annexes to the Chicago Convention, each
relating to a specific subject area, such as pilot licences, aircraft operation,
air worthiness, meteorology, and so on.231 The Annexes are intended for and
directed to the member states exclusively. The ICAO does not provide aviation
security guidance directly to airlines.232 Instead, it lays down the standards by
which member states are to require their airlines to operate.
Annex 17 contains standards and recommendations that specify security
objectives for the ICAO member states.233 Annex 17 standards are mandatory.
Signatory states such as Canada are obliged to comply with the international
225
226
227
228
229
230
231
232
233
Exhibit P-157, p. 19.
Aeronautics Act, R.S.C. 1970, am. S.C. 1973-74, introducing s. 5.1(3)(a).
Aeronautics Act, R..S.C. 1970, am. S.C. 1973-74, introducing s. 5.1(5).
Aeronautics Act, .R.S.C. 1970, am. S.C. 1973-74, introducing s. 5.1(3)(b).
Testimony of Moses Aleman, vol. 35, May 29, 2007, p. 4215.
Exhibit P-151: Annex 17, 1st ed.
Testimony of Moses Aleman, vol. 35, May 29, 2007, p. 4216.
Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4276.
Testimony of Moses Aleman, vol. 35, May 29, 2007, p. 4216.
�Chapter II: Threat Assessment and Response
standards established by the ICAO in each Annex. If a state was unable or
unwilling to comply with one of the ICAO standards under Annex 17, it was
required to provide formal notification to the ICAO Council, which would share
that notice with the other states. Failing to comply with a standard could result
in that state losing access to air services by being blacklisted by other countries
or in a loss of insurance coverage.234
As noted by experts such as Rodney Wallis, the ICAO standards were designed
to ensure that even the smaller and less prosperous contracting states could
comply. This minimized the number of states which would have to file a
notice with the ICAO that they were not meeting a given standard. Prosperous
nations such as Canada were expected to regulate well beyond the minimum
standards set by Annex 17. Yves Duguay, the Senior Director of Air Canada
Security and Chairman of the International Air Transport Association (IATA)
Security Committee, concurred that it was essential for both states and air
carriers to surpass the ICAO standards, and for an air carrier to exceed even the
requirements of the local jurisdiction in which it was operating.235
The ICAO recommendations, on the other hand, were “desirable” measures
to which the contracting states “…will endeavour to conform.”236 Contracting
states were not strictly obliged to implement the recommended measures, but
they were appropriate and desirable goals for the aviation security program
for an advanced, prosperous nation like Canada. The first edition of Annex 17
was published in 1974, and contained only a limited number of standards. Key
among the first standards was the obligation to designate an authority to be in
charge of that state’s civil aviation security program.237 Transport Canada was,
and continues to be, Canada’s representative at the ICAO, and the authority
responsible for Canada’s civil aviation security regime under Annex 17. Other
early standards from Annex 17 included the requirement to establish an airport
security program at each international airport,238 and the requirement to ensure
that any required “supporting security facilities,” such as law enforcement, were
provided.239 Annex 17 also obliged states to “…require operators of aircraft
… to adopt a security programme and to apply it in proportion to the threat
to international civil aviation and its facilities … and shall ensure that such a
program is compatible with the prescribed aerodrome security program.”240
A second edition of Annex 17, published in October 1981 and in force at the
time of the Air India bombing, incorporated a number of amendments and new
standards. Some recommendations were upgraded to the level of standards,
including the requirement that states establish a civil aviation security program
234 Exhibit P-157, p. 16.
235 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5239-5240.
236 Exhibit P-151: Annex 17, 1st ed., p. 5 : “General Information, 1. Material comprising the Annex proper: a)
Standards and Recommended Practices adopted by the Council under the provisions
of the Convention”).
237 Exhibit P-151: Annex 17, 1st ed., s. 3.2.1.
238 Exhibit P-151: Annex 17, 1st ed., s. 5.1.1).
239 Exhibit P-151: Annex 17, 1st ed., s. 5.1.3).
240 Exhibit P-151: Annex 17, 1st ed., s. 6.1.1).
171
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to protect “…the safety, regularity and efficiency of international civil aviation
by providing, through regulations, practices and procedures, safeguards against
acts of unlawful interference.”241 As Canada’s aviation authority, Transport
Canada was charged with this responsibility.
Another important new standard in this edition of Annex 17 was section 4.1.5:
Contracting states shall take the necessary measures to
prevent weapons or any other dangerous devices, the carriage
of which is not authorized, from being introduced by any
means whatsoever, on board an aircraft engaged in the
carriage of passengers.242
Building on the more general requirement to prevent weapons and dangerous
devices from being placed aboard passenger aircraft, this edition of Annex
17 also recommended more specifically that the contracting states “…should
establish the necessary procedures to prevent the unauthorized introduction of
explosives or incendiary devices in baggage, cargo, mail and stores to be carried
on board aircraft.”243
In summary, the Annex 17 standards in force in 1985 obliged Canada to
implement:
• Measures to prevent weapons and dangerous devices from
being taken aboard aircraft (and recommended that Canada
adopt procedures designed to prevent the sabotage of aircraft by
the detonation of explosives concealed in baggage, cargo, mail and
stores);
• A national civil aviation security program to protect civil aviation
against acts of unlawful interference;
• An airport security program at each international airport;
• An airport security committee at each airport;
• The provision of “supporting security facilities” to each airport by
Transport Canada; and
• The development of air carrier security programs.
241 Exhibit P-152: Annex 17, 2nd ed., s. 2.1.4.
242 Exhibit P-152: Annex 17, 2nd ed., s. 4.1.5.
243 Exhibit P-152: Annex 17, 2nd ed., s. 4.1.14 .
�Chapter II: Threat Assessment and Response
Canadian Aviation Security Regulations for Air Carriers
Although aviation security had finally become a legislative priority in Canada
with the 1973 amendments to the Aeronautics Act, the security focus was on
inspecting and screening passengers and their cabin baggage. The onus for
providing this security, particularly in terms of passenger and baggage screening,
fell primarily upon the air carriers themselves. The regulations governing air
carrier security were nevertheless quite minimal and featured little government
oversight. Principally, both domestic and foreign carriers operating at Canadian
airports were merely required to establish, develop and maintain a number of
“systems” for accomplishing certain security objectives, such as:
(a) systems of surveillance of persons, personal belongings,
baggage, goods and cargo by persons or by mechanical or
electronic devices;
(b) systems of searching persons, personal belongings,
baggage, goods and cargo by persons or by mechanical or
electronic devices;
(c) at aerodromes where facilities were available, a system
that provided for locked, closed or restricted areas that were
inaccessible to any person other than a person who had been
searched and the personnel of the owner or operator;
(d) at aerodromes where facilities were available, a system that
provided for check points at which persons intending to board
the aircraft of an owner or operator could be searched;
(e) at aerodromes where facilities were available, a system
that provided for locked, closed or restricted areas in which
cargo, goods and baggage that had been checked for loading
on aircraft were inaccessible to persons other than persons
authorized by the owner or operator to have access to those
areas;
(f ) a system of identification that prevented baggage, goods
and cargo from being placed on board the aircraft if it was not
authorized to be placed on board by the owner or operator;
and
(g) a system of identification of surveillance and search
personnel and the personnel of the owner or operator.244
244 Civil Aviation Security Measures Regulations. Foreign carriers like Air India were subsequently required
to “establish, maintain and carry out” these security regulations under section 3(1) of the Foreign
Aircraft Security Measures Regulations.
173
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According to Transport Canada’s Civil Aviation Security Manual of Policies,
Standards and Recommended Practices, the regulatory requirements were
designed to prevent or deter individuals from carrying weapons, explosives,
and other dangerous articles aboard aircraft.245 In furtherance of the Act’s antihijacking focus, Transport Canada provided detection devices for passenger
screening check points. These devices included walk-through and hand-held
metal detectors to frisk passengers, and X-ray machines for examining carry-on
baggage.246 Transport Canada did not provide any equipment for examining
checked baggage.
The carriers had very little guidance in developing their security programs. The
Canadian Air Transport Security Authority Act (CATSA) Review Advisory Panel found
that these regulatory requirements were not defined, and that the wording of
these requirements was vague and open to interpretation.247 Although the
Panel suggested that the ICAO Security Manual was available to assist them in
developing their security systems,248 it was, and remains, a restricted document
made available only to contracting states. The states themselves are responsible
for ensuring implementation of the recommended practices in the Security
Manual and the international requirements and recommendations passed by
the ICAO Council in the Annexes.
In 1973, Transport Canada issued an Aviation Notice that included “…guidance
material … provided as assistance to Air Carriers asked to produce a detailed
Security program in writing for the approval of the Minister,” but these guidelines
were limited to a list of topics the plan should address, and were little more
than subject headings and restatements of the regulations. The topics to be
addressed in air carrier security plans included “…verification of bona fide
passengers, handling of passengers refusing inspection and search, inspection
of passengers and carry-on baggage,” and “…procedures intended to protect
against unauthorized access to checked baggage between baggage check-in
point and aircraft.”249 No further details or requirements were provided.
The air carriers were required by law to submit their security plans in writing
to the Minister of Transport, 250 but the Minister actually had no legal authority
or obligation to approve or reject an air carrier security plan on its substantive
merits. An acceptable security plan merely needed to describe the carrier’s
program for carrying out the “systems” of monitoring and surveillance. There
was no formal approval or review process set out in the regulations, and even
though Transport Canada set a policy of conducting semi-annual inspections of
the air carriers’ compliance with their security plans,251 these were not regularly
conducted.
245
246
247
248
249
250
Exhibit P-101 CAF0151, p. 13.
Exhibit P-165, Tab 10: “A Summary of the National Airport Policing and Security Program.”
Exhibit P-157, pp. 19-20.
Exhibit P-157, p. 20.
Exhibit P-165, Tab 8: “Aviation Notice: Air Carrier Security Program,” August 10, 1973.
Under s. 3 of the Foreign Aircraft Security Measures Order, Air India was required to submit “a written
description of the security measures it has established, is maintaining and is carrying out or that
it intends to establish, maintain and carry out” to the Minister. Domestic air carriers were obliged
to submit their written descriptions of security measures by s. 3 of the Civil Aviation Security Measures
Order.
251 Exhibit P-101 CAF0151, p. 26.
�Chapter II: Threat Assessment and Response
Under this aviation security regime, the standard security measures in place at
Canadian airports in 1985 were the metal detection screening of passengers and
X-ray scanning of carry-on baggage.252 Passengers arriving at major airports in
Canada were screened, along with their carry-on baggage, by private security
officers before they could enter the “sterile” areas of the airport, which included
the departure lounges and aircraft gates.
Despite the recognition of the threat to civil aviation posed by sabotage, no
legislative mandate existed in June 1985 to subject checked baggage or cargo
to any security screening prior to being loaded aboard a passenger aircraft.
Checked baggage was moved to a secure holding area within the airport by
authorized employees prior to being loaded aboard an aircraft, but unless
an airline voluntarily decided that its security plan would include searches of
checked baggage (as Air India did), the bags would be loaded without any
screening at all.
The Attorney General of Canada emphasized in its final submissions that
Canada’s civil aviation security program “met or exceeded” the international
requirements in place in 1985.253 This was the opinion of the Canadian Aviation
Safety Board in its submissions to the Kirpal Inquiry.254 Jean Barrette, the
Director of Security Operations for Transport Canada, also testified that Canada
met or exceeded the standards set by ICAO Annex 17.255 The Attorney General
of Canada conceded that complying with these standards was not enough
to prevent the bombing of Air India and that the legacy of the bombing was
“…change in Canada’s standards and practices and change in standards and
practices internationally.”256
Failure to Respond to the Threat of Sabotage
It is the Commission’s view that the Canadian government’s response to
the threat of sabotage to Air India flights was inadequate. In fact, Canada’s
government had recognized long before the bombing that although the aviation
security regime was consistent with international standards, it was nevertheless
outdated, simplistic, and lacking in meaningful measures to respond to a wellunderstood threat.
It is particularly important to ensure that the system on the ground not only
works effectively but is capable of quickly responding to changing threats.
Both international and domestic legislative standards will generally lag behind
intelligence and tend to focus on threats of the past. Nevertheless, as outlined
earlier, Canada had recognized the potential threat of sabotage of aircraft,
including the use of explosives concealed in checked baggage, as early as 1979.
It was also well understood that in the face of this looming threat, Canada’s
252
253
254
255
256
Exhibit P-167, p. 18.
Final Submissions of the Attorney General of Canada, Vol. II, para. 43..
Exhibit P-167, p. 55.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4501.
Final Submissions of the Attorney General of Canada, Vol. II, para. 45.
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aviation security regime, developed in the 1970s to address the rash of political
hijackings of the time, had become grossly inadequate.
The ICAO Annex 17 standards and recommendations in place in 1985 tended
to focus on hijacking rather than sabotage. The Commission heard evidence,
however, that the ICAO expressed growing concern over the dangers of sabotage
and that, by the spring of 1985, it was pushing for measures such as passengerbaggage reconciliation in response.257 The ICAO had also recommended that
its member states develop procedures to prevent explosives from being loaded
aboard aircraft through baggage, cargo, mail, and stores. Given Canada’s
recognition of the threat of terrorist acts of sabotage, there was good reason
to move quickly and exceed the ICAO’s standards by implementing a more
responsive security regime.
Proposed Amendments to the Aeronautics Act
As the CATSA Act Review Panel noted, a number of bills to amend the Aeronautics
Act had been introduced in Parliament during the 1970s, but all had died on
the order paper. No further security amendments would be passed until after
the bombing of Air India Flight 182. At the time of the bombing, however, a
bill was before Parliament which would have significantly amended the Act
and given the Minister of Transport broader powers to regulate with respect to
aviation security. The bill, which stemmed from recommendations made by an
Aeronautics Task Force in 1978 and a Commission of Inquiry on Aviation Safety
in 1979, would have made some security practices mandatory and brought
Canadian legislation in line with that of other countries.258
Among the most important innovations contained in the bill was a provision
to impose fines on corporations convicted of violating a provision of the Act, a
regulation or order respecting aviation security.259 This would have allowed for
enforcement measures to be taken against air carriers that did not comply with
Canada’s aviation security requirements or their own security plans.
The bill, which ironically became law just days after the bombing of Air India
Flight 182, had been in the works for some time. The amendments were, in
fact, the culmination of a multi-year modernization process, and not directly in
response to the bombing.260 Indeed, a Transport Canada planning document
looking ahead to operations in 1985 and 1986 expected that the legislative
amendments would be in place sometime in 1984.261
257 Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4254-4255. Wallis gave a presentation to the
ICAO in April 1985 emphasizing that: “Sabotage has to remain in the forefront of our thoughts.…
Aircraft sabotage poses a greater menace as the loss of the UTA DC8 in N’Djamena last year
demonstrates. Use of sophisticated timing and other devices by terrorists or other criminals capable of
evading discovery during screening processes will demand responsive action by aviation security
specialists and those involved in high-tech detection device development.”: See Exhibit P-149, p. 8.
258 Exhibit P-157, p. 20.
259 Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.3(5). A corporation convicted of violating a provision of the Act,
a regulation or an order respecting aviation security was liable to a fine of not more than $25,000.
260 Exhibit P-263, p. 66.
261 Exhibit P-101 CAF0593, p. 10.
�Chapter II: Threat Assessment and Response
1982 Draft Air Carrier Security and Airport Security Regulations
In anticipation of the amendments to the Act, new Air Carrier Security
Regulations and Airport Security Regulations were drafted in 1982. The draft
regulations were circulated by Transport Canada to the airports and the air
carriers for review and comment but unfortunately remained in draft form
for the next three years. Even when the Aeronautics Act gained Royal Assent
on June 28, 1985, the draft regulations were not put into force. Instead, they
remained in draft form, leaving Canada’s aviation security in precisely the same
anemic regulatory position it had been in prior to the bombing. Transport
Canada decided to wait until the publication of the Seaborn Report and its
recommendations before further work would be done on the draft regulations.
This inaction led to various enforcement failures.262
The draft Air Carrier Security Regulations were detailed, and incorporated a
number of ICAO standards and recommendations. They applied to both domestic
and foreign air carriers operating in Canada, and provided far more guidance to
the air carriers in designing and maintaining effective security plans. In fact, the
draft regulations specified that air carrier security plans required the review and
approval of the Minister of Transport, who would also be able to direct a carrier
to modify its plan if it did not sufficiently comply with the security regulations.263
Had the draft regulations been implemented before the bombing of Air India
Flight 182, they would have profoundly improved the weak and inadequate
security regulations in place at the time.
Among the most significant changes, the regulations addressed checked
baggage security for the first time. For example, section 400(c)(1) stated:
Air carriers shall prevent the unauthorized carriage on board
aircraft of weapons, explosives or incendiary devices aboard
checked baggage.264
Section 400(c)(2) added a number of minimum requirements for checked
baggage. These included accepting checked baggage only from ticketed
passengers, providing for personal identification of all pieces of checked
baggage, and preventing unauthorized baggage from being placed aboard
aircraft.265 The regulations also included special provisions for either high
threat or specific threat situations,266 and suggested ways in which air carriers
could screen checked baggage.267 In particular, section 400(c)(2)(iv) of the draft
regulations stated that carriers should:
262
263
264
265
266
See Exhibit P-101 CAF0607, pp. 2-3.
Exhibit P-101 CAF0565, pp. 75-76.
Exhibit P-101 CAF0565, p. 69.
Exhibit P-101 CAF0565, p. 70.
See Section 4.3 (Pre-bombing), The Role of the “Specific Threat” in the 1985 Threat-Response Regime
for a discussion of the term “specific threat” as it was used in Canada at the time.
267 Exhibit P-157, pp. 57-58.
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…take additional security measures during a specific or high
threat situation such as matching all checked baggage to the
passenger prior to departure, x-raying or providing a manual
search of all baggage using an explosive detection device or
delaying transportation of baggage.268
Other important new measures contained within the draft Air Carrier Security
Regulations included:
• Specific screening instructions concerning the inspection
of passengers and carry-on baggage, including the regulatory
requirement that law enforcement be notified whenever any
weapon, explosive or incendiary device was found,
• An explicit requirement that private security guards inspecting
checked baggage and cargo complete the training program
developed by Transport Canada, or a program the Minister deemed
to be equivalent;
• Increased screening measures during a high threat or specific
threat situation, such as hand searching all items, using an
explosives detector, or refusing personal possessions to accompany
passengers;
• The requirement that air carriers screening cargo must prevent or
deter unauthorized carriage aboard aircraft of weapons, explosives
or incendiary devices within cargo. This included special measures
during periods of high or specific threat such as 24-hour delays in
shipping cargo, or searching all cargo by hand or electronic means;
• A requirement that air carriers include specific details in their
security plans, such as a listing of the designated security officers
providing services for the air carrier and a description of their
training, as well as the procedures and guidelines used by the
carrier for screening persons, personal belongings, carry-on
baggage, checked baggage and cargo;
• Authority for the Minister of Transport to independently request
changes to air carrier security plans where such changes were
deemed necessary to civil aviation security; and
• A provision that facilitated the monitoring of air carrier security
programs by requiring carriers to provide information concerning
civil aviation security to the Minister as required.269
268 Exhibit P-101 CAF0565, p. 71.
269 Exhibit P-101 CAF0565, pp. 66-76.
�Chapter II: Threat Assessment and Response
Beginning in 1982, the Airport Security Regulations were also circulated
in draft form. Prior to the bombing of Air India Flight 182, Canada did not
employ regulations to control security at airports, as airport security could
be governed on an operational basis by Transport Canada which owned and
operated Canada’s major airports. The draft Airport Security Regulations came
about as a result of the problems that ensued under this system: first, that the
Airports Directorate for Transport Canada regulated itself and weaknesses were
not always remedied; and second, that the airports that were not operated by
Transport Canada only complied voluntarily with the airport security measures
of the time.270 The draft regulations included a schedule which designated the
airports that would be bound by the regulations.
Many of the provisions incorporated in the draft Airport Security Regulations
were already in practice at Canada’s major airports in 1985. The draft regulations
would merely have codified these policies and operational practices into binding
regulations for all designated airports and placed them under the control of the
Minister of Transport.
Among these requirements was the obligation to create airport security
committees, as were already in place at airports such as Pearson, Mirabel,
and Vancouver, and conduct regular meetings.271 The committees were to be
composed of members of law enforcement, the air carriers, the airport operator,
and representatives of the air navigation services of the airport. The airport
security committees would be responsible for developing, implementing and
reviewing airport security measures, and would be required to meet at least
four times a year.272 The regulations would also have required airports to take
various measures to prevent unauthorized access to restricted airport areas,
including signs, fences, barriers, and access control systems such as coded door
locks and security passes.
The draft regulations also obliged airport operators to:
• Adopt and maintain procedures and provide and maintain facilities
for use in security situations such as bomb threats, hijackings, and
bomb disposal actions;273
• Submit detailed airport security programs in writing to the
Minister of Transport, who would have the power to accept
the plans or advise that modifications would be necessary in order
to comply with the security regulations;274 (As with the draft Air
Carrier Security Regulations, the Minister also had the ability to
request changes to the airport security measures where necessary);
270
271
272
273
274
Exhibit P-101 CAF0774, p. 21.
Exhibit P-101 CAF0565, p. 47.
Exhibit P-101 CAF0565, p. 47.
Exhibit P-101 CAF0565, p. 50.
Exhibit P-101 CAF0565, p. 55.
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• Provide and maintain security checkpoints at which passengers and
their belongings could be screened and provide and maintain
security equipment such as metal detectors and X-ray scanners;275
• Provide covert alert systems such as silent alarms at the security
screening checkpoints in order to summon police when their
assistance is required;
• Establish sterile areas with restricted access in order to isolate
screened passengers prior to boarding aircraft;276
• Designate and maintain areas of the airport where checked
baggage and cargo could be received for transport by the air
carriers and their authorized representatives, and provide restricted
areas where this baggage and cargo could be held securely prior to
loading aboard aircraft;277
• Arrange for a law enforcement response capacity at the airport; and
• Keep a detailed record of all law enforcement actions taken at the
airport for at least 90 days.278
In light of the frequent security breaches that plagued many airports, a number
of remedial security provisions were also included in the draft Airport Security
Regulations.279 The regulations would have authorized airport operators
to close, lock or control doors and other access points that were left open
or unsupervised, and directed airport tenants to take all practicable steps to
prevent unauthorized access to the restricted areas of the airports. The draft
regulations also called on airport operators and tenants to keep records of all
keys in their possession and record the names of the individuals who were
issued airport keys. Anyone to whom keys had been issued would be required
to surrender those keys on demand, and would be prohibited from lending
those keys to any other person. The draft regulations also made it a duty to
close, secure and lock all unmanned doors, gates and other access points when
not in use. Finally, the draft regulations prohibited anyone from entering or
remaining in a restricted area without possessing and visibly displaying their
identification card, unless authorized by the airport operator, and all passes had
to be displayed or surrendered upon demand.
Lengthy Delay in Approving Regulations
The security enhancements laid out in these draft regulations were obviously
intended to address a number of known security weaknesses, particularly
275
276
277
278
279
Exhibit P-101 CAF0565, p. 51.
Exhibit P-101 CAF0565, p. 51.
Exhibit P-101 CAF0565, p. 51.
Exhibit P-101 CAF0565, p. 58.
Exhibit P-101 CAF0565, p. 59.
�Chapter II: Threat Assessment and Response
the threat of sabotage and the vulnerability of checked baggage and cargo.
Unfortunately, as the years passed, the draft regulations were no closer to
being put into force. The CATSA Act Review Advisory Panel made the same
observation, noting that, “Clearly, at the time of the tragedy, Transport Canada
had already identified gaps and weaknesses in aviation security and was in
the process of making legislative and regulatory changes – a process that was
taking considerable time.”280
Even within Transport Canada, signs of frustration at the failure to amend the
Act and implement the new Air Carrier and Airport Security Regulations were
apparent. As noted earlier, Paul Sheppard, the Director of Civil Aviation Security
at Transport Canada, expressed the sense of urgency in a memorandum written
in March 1985. He put it bluntly, writing: “The New Air Carrier and Airport
Security Regulations are required and should proceed with or without the new
Act.”281 The statement makes it clear that Transport Canada officials understood
that the regulations in place were not only insufficient, but also that new ones
were urgently needed.
Professor Reg Whitaker, a member of the CATSA Act Review Advisory Panel,
testified that the amendments were tragically overdue:
It is a great irony that the amendments to the Aeronautics Act
were brought – into being just in the immediate aftermath of
Air India, but that was not in fact because they put it together
as a result of that. It had been in the pipeline for some time,
along with all the regulations that followed from the changes
to the Aeronautics Act and it’s quite clear that if those new
regulations had been in effect that things might have turned
out very differently, but they were not and it’s unfortunate that
it simply took so long to actually reach that point. The Air India
tragedy just happened just before.282
While it is apparent that the draft regulations were intended to accompany the
amended Aeronautics Act when it was enacted, the bulk of the new aviation
security requirements could have been implemented under the existing statute.
The Act, as it read in June 1985, already authorized regulations governing the
observation, inspection and search of persons, personal belongings, baggage,
goods and cargo,283 airport security measures,284 and the designation of security
officers and their training requirements.285 The amended Act that came into
force on June 28, 1985 greatly expanded the Minister’s regulatory authority
by requiring carriers and airports to adopt “…such security measures as may
280
281
282
283
284
285
Exhibit P-157, p. 21.
Exhibit P-101 CAF0083, p. 2.
Testimony of Reg Whitaker, vol. 36, May 30, 2007, p. 4314.
Aeronautics Act, R.S.C. 1970, am. S.C. 1973-74, introducing ss. 5.1(1), 5.1(1.1), 5.1(1.2), 5.1(2).
Aeronautics Act, R.S.C. 1970, am. S.C. 1973-74, introducing s. 5.1(2).
Aeronautics Act, R.S.C. 1970, am. S.C. 1973-74, introducing s. 5.1(10).
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be prescribed by the regulations or such security measures necessary for
those purposes as may be approved by the Minister in accordance with the
regulations.”286 Nevertheless, given the longstanding recognition of the existing
aviation security regime’s inadequacy, and the impatience expressed at the fact
that the amendments were overdue, there is no reason that the aviation security
regulations should not have been pushed through on their own.
The security measures respecting air carrier security plans and pre-board security
screening, including provisions regarding the screening of checked baggage in
high threat situations, could have been implemented ahead of any statutory
amendments. The security regulations respecting cargo holds and inspections
could also have been implemented at any time, as could the regulations setting
out security guard qualification and training requirements. While no regulatory
enforcement would have been possible against a carrier that did not comply with
the security measures until the Act was amended, the evidence demonstrates
that, on the whole, air carriers made meaningful efforts to comply with and to
exceed the regulations already in place. Transport Canada had made a policy of
supplying and maintaining the security equipment and airport facilities needed
to comply with its screening requirements, and the regulations would have
given the air carriers much-needed guidance as to their obligations.
Transport Canada and the Government of Canada failed to push through more
responsive regulations designed to ensure that the level of security at Canada’s
airports was appropriate for the threat of organized terrorism. At the heart of
this is the failure to amend the Act quickly in recognition of the increasing threat
of sabotage as the main threat to civil aviation in Canada and internationally.
Would Implementation of the Draft Regulations Have Prevented the
Bombing?
It is impossible to say with certainty that the draft regulations would have
prevented the bombing of Air India Flight 182 had they been in place in June
1985. The CATSA Act Review Advisory Panel concluded that Air India met the
requirements of the draft regulations for checked baggage in high threat
situations, since Air India already examined checked baggage by X-ray scanner
and by explosives detection equipment.287 The Panel also concluded that draft
regulations “…left considerable room for air carriers to use measures other
than passenger-baggage reconciliation in a ‘specific or high threat’ situation.”288
Nevertheless, a number of considerations point to the conclusion that the draft
regulations were greatly needed well before the bombing and likely could have
thwarted it.
There is no dispute that Air India was under a high threat in June 1985. Had
the regulations been in force, section 400(c)(2)(iv) would have directed Air India
286 Aeronautics Act, R.S.C. 1970, am. S.C. 1973-74, introducing ss. 4.7(2)(a), 4.7(2)(b), 4.7(2)(c), 4.7(4).
287 Exhibit P-157, p. 21.
288 Exhibit P-157, p. 58.
�Chapter II: Threat Assessment and Response
to take additional security measures, including matching checked baggage
to passengers prior to departure, X-raying or manually searching all checked
baggage, or using an explosives detection device. While it is true that Air India
was already X-raying checked baggage and using the PD4 explosives detection
device in the event the checked baggage X-ray scanner was unavailable, the
regulatory requirements would have placed Transport Canada in a much
different position with regard to these measures and their implementation by
air carriers such as Air India.
First, as the owner and operator of Canada’s major airports, Transport Canada
provided and maintained the X-ray scanners and metal detectors employed
by the air carriers in conducting passenger and baggage screening.289 Had the
draft regulations been in place, it is very likely that Transport Canada would have
undertaken to provide additional security equipment, such as checked baggage
X-ray scanners, to be used as needed under the regulations. By November 1984
– seven months before the bombing – Transport Canada had been seriously
considering the purchase of large, mobile checked baggage X-ray units for
use as needed.290 By April 1985, Transport Canada had concluded that it was
“evident” that checked baggage X-ray scanners were required at Pearson.291
Transport Canada would have been responsible for the maintenance of these
machines and, presumably, would have taken a less casual attitude towards
their movement and calibration than Air India had. Alternatively, Transport
Canada might have prescribed basic standards for screening equipment, as it
did in 1986.292 Even if Air India had continued to use its own X-ray scanners,
the failure of its X-ray machine at Pearson on June 22, 1985 could have been
remedied by the provision of a Transport Canada replacement.
Second, under the proposed Air Carrier Security Regulations, the Burns personnel
operating the checked baggage X-ray machine would have been required to
be trained and qualified security officers. The evidence presented showed that
many of the Burns personnel were untrained and inexperienced; indeed, one
guard candidly stated to investigators: “I don’t believe I could tell what a bomb
looked like if I saw one.”293 Transport Canada designed the training program for
security officers conducting passenger screening, and would have been in the
position of creating appropriate training programs for security officers screening
checked baggage. Had these personnel been trained and qualified officers, they
would, in all likelihood, have been more attentive, professional, and capable.
289 Exhibit P-165, Tab 10, p. 3. Under the National Airport Policing and Security Program, Transport Canada
would “…provide detection devices and facilities for passenger security inspection check-points.
Provision will also be made for law enforcement response to emergencies at the passenger screening
points.”
290 Exhibit P-101 CAF0581, p. 2.
291 Exhibit P-101 CAF0585, p. 5.
292 Exhibit P-157, p. 79: “In February 1986, Transport Canada issued the first edition of approved security
procedures that were applicable to Canadian and foreign air carriers. They addressed the security
of passengers, personal belongings, carry-on baggage, checked baggage, cargo, security equipment
and security officers.… As of February 1986, security screening equipment used by the air carries had
to meet a basic standard prescribed by Transport Canada.”
293 Exhibit P-101 CAF0157.
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Additionally, although the draft security measures refer to the use of an explosives
detection device to examine checked baggage in a high threat situation, the
PD4 device used by Air India had failed two tests conducted by the RCMP in
January 1985. The failures of the PD4, which are explored in the next chapter,
made it an unacceptable device. Dale Mattson, Transport Canada’s Manager of
Safety and Security at Pearson Airport, testified that he took no further steps to
prevent Air India from using the PD4 to inspect checked baggage because such
measures exceeded the basic aviation security measures required by Transport
Canada at the time:
Examining, for example, the checked baggage using the
X-ray and the PD4 sniffer was a requirement that Air India had
determined they needed to undertake. We did not feel that
it was our role – to challenge their requirement there or to
monitor their requirement there.294
Entirely aside from whether entrusting the safety of Air India’s passengers to a
device which had proven inadequate to the purpose for which it was being used
was an appropriate response to such a tremendous security flaw, it remains that
no one took any action after January 1985 concerning the PD4 device. However,
if it had had the regulatory authority to monitor Air India’s security measures and
to request changes to its security plan when a gap was identified, this posture
would have changed dramatically. Transport Canada could have directed Air
India not to use the PD4 explosives detection device when examining checked
baggage and directed it to use other methods instead, such as passengerbaggage reconciliation or X-ray.
Moreover, Transport Canada conducted a study in 1983 concerning baggage,
mail and cargo security which made extensive reference to the draft regulations
in formulating its security recommendations.295 For a high threat level, the
report recommended that:
• All checked baggage should be searched by hand or inspected by
X-ray where equipment was available;
• All bags should be sealed at time of acceptance or search;
• Crew baggage, company mail and flight document bags should be
inspected;
• Hand searches or X-ray searches should be conducted of all
interlined bags; alternatively, the reconciliation of bags to
passenger name, flight number and date should be considered; and
294 Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3200.
295 Exhibit P-101 CAF0565.
�Chapter II: Threat Assessment and Response
• Unaccompanied baggage and expedite baggage should be refused
unless searched, sealed, banded and held for a minimum of 24
hours before carriage.296
It is unknown whether Transport Canada decided to incorporate any of these
recommendations into the draft Air Carrier Security Regulations but it is notable
that these measures were even more specific in recognizing the weaknesses
of baggage and cargo security. It is also unclear whether the other air carriers
would have been made aware of the threat to Air India, a circumstance which
might have prompted airlines such as CP Air (which interlined the bag left by “M.
Singh” to Toronto for loading aboard the Kanishka) to take greater care to search
the bag or reconcile it to an actual passenger prior to loading it aboard its flight.
In any event, had the regulations been pushed through with such amendments,
there is no doubt that the aviation security regime in place in June 1985 would
have been far more robust in a high threat situation.
Other important factors in the draft regulations include the direction to the
air carriers to screen checked baggage to prevent “…unauthorized baggage
from being placed aboard aircraft.”297 The additional requirement in high
threat situations to consider options such as matching all checked baggage to
passengers prior to departure is much stronger than the direction contained in
the regulations that were in force. The existing regulations merely required air
carriers to develop “…a system of identification that prevents baggage … from
being placed on board aircraft if it is not authorized to be placed on board by the
owner or operator.”298 Air India complied with the existing regulation via section
4.1.1 of its security plan, which stated that “…unaccompanied baggage must be
associated with a bona fide passenger and his documents before it is boarded.”299
Air India did so by comparing the number of boarding passes issued against
the passengers who boarded, and off-loaded the “unaccompanied baggage” of
those who did not board the flight.
T.N. Kumar of Air India testified that the bag checked aboard CP Air Flight 060
by “M. Singh” and interlined directly to Air India Flight 181 in Toronto was an
“unauthorized bag” because Air India had no information concerning this
passenger and had never confirmed a ticket or issued a boarding pass for him.
The bag, which infiltrated the system because it carried an interline tag from CP
Air to Air India’s final destination in Delhi, was screened by Burns International
Security personnel working on behalf of Air India, and loaded aboard the
aircraft by the Air Canada ground handling crew, but Air India never knew it was
aboard. Actual passenger-baggage reconciliation, in which a bag is matched to
a passenger before it is placed aboard the aircraft, was not widely in practice
in 1985. This practice was, however, recommended by experts such as Rodney
Wallis at the time, and was later emphasized as the “…cornerstone of defence
against the baggage bomber” by the president of the ICAO.300
296 Exhibit P-101 CAF0565, p. 22.
297 Exhibit P-101 CAF0565, p. 70.
298 Civil Aviation Security Measures Regulations, s. 3(1)(f ) and Foreign Aircraft Security Measures Regulations,
s. 3(1)(f ).
299 Exhibit P-284, Tab 68, p. 16.
300 Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4236-4237, 4255-4256.
185
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The above discussion may help to understand the wide gaps in aviation security
in 1985, and the extent to which the legislation had become outdated. The more
robust security requirements within the draft regulations might well have made
a difference had they been in force. The Commission can only speculate that, if
the statutory amendments and the draft regulations had been in place in June
1985, the bombing could have been prevented.
Weaknesses Continue after the Bombing
Even after the Air India disaster, the weaknesses in Canada’s aviation security
laws continued to hinder efforts to enhance civil aviation security. Immediately
following the bombing, Transport Canada issued a directive imposing strict
emergency security measures upon all flights departing Canadian airports to
Europe and Asia.301 All checked baggage was to be physically inspected or
X-rayed, all cargo was to be held for 24 hours except for perishables sent by
known shippers, and all passengers and carry-on baggage were to be fully
screened.
One airline decided not to comply with these measures. The minutes of a meeting
of the Airport Security Committee at Mirabel held in October 1985 revealed
that Lufthansa Air was refusing to conduct searches of checked baggage.302
The airport manager refused to allow the aircraft to take off. Transport Canada
examined the question of whether any enforcement actions could be taken
against Lufthansa, but concluded that no action was possible because the
emergency measures had no legal effect. They were not part of a regulation
or an order made under the authority of the Act, although the Act itself had
been amended by this point to allow for fines against corporations convicted
of such breaches. Had the security regulations been pushed through prior to, or
with, the June amendments to the Act, Transport Canada would have been in a
position to exert far more authority over errant airlines.
The enforcement investigations following the bombing of Air India Flight 182
resulted in similar conclusions. CP Air had failed to follow its own security plan
when it interlined the bag belonging to “M. Singh” past Toronto and directly to
Air India’s destination at Delhi, despite the fact that he did not have a reservation
for that flight.303 Nevertheless, Transport Canada had no choice but to conclude
that:
Although C.P. Air violated its own security program, as did Air
India, neither carrier is subject to enforcement action because
the applicable security regulations did not require Ministerial
approval of the Air Carrier’s Security programs. In effect, since
their promulgation in the mid-1970s, the Security Regulations
created a security system based on the Air Carrier’s voluntary
compliance with its own standards.304
301
302
303
304
Exhibit P-101 CAF0594.
Exhibit P-101 CAF0608, p. 5.
Exhibit P-101 CAF0554, p. 3.
Exhibit P-101 CAF0554, p. 3.
�Chapter II: Threat Assessment and Response
It was recommended, as a consequence, that all air carrier security plans should
require the express approval of the Minister, and that compliance with the
plans be mandatory, but it was noted that this step would require regulatory
amendments.305 The regulations would not be updated until December 1985,
owing to delays resulting from the consultation process and the decision to
await receipt of the Seaborn Report recommendations.
Conclusion
By neglecting to update the regulations before the bombing, and delaying
these amendments for months after it had occurred, Transport Canada failed
to take timely steps to ensure that the appropriate aviation security measures
were in force. Transport Canada had no meaningful enforcement mechanism
to hold air carriers responsible for the security breaches that contributed to the
disaster and the breaches that followed.
Even best practices and legislated standards will eventually become inadequate
because the nature of the threat will constantly change. The advent of suicide
bombers who could not be detected by otherwise highly effective measures
such as baggage reconciliation bears out this important point. What is required
for the future is a supple system that is informed by intelligence and also
prepared to go beyond minimum existing standards, which lag behind current
threat assessments and suffice merely to “fight the last war”.
2.3.3 Over-Reliance on Technology
Good security requires an amalgam of ideas – an amalgam of approaches
if you’re going to be truly effective. There is no one way to stop the
terrorist.
- Rodney Wallis, May 29, 2007.306
Introduction
Due to the threat posed by hijacking and sabotage to its flights, Air India
instituted additional security measures, designed to prevent weapons or
explosives from being brought aboard its aircraft. In 1985, Air India’s security
plan required the use of X-ray scanners and PD4 electronic explosives detection
devices to inspect checked baggage for concealed explosives.307 In doing so,
however, Air India unduly relied on inadequate technological tools to protect its
passengers, rather than using proven methods that had been highly effective in
the past, such as passenger-baggage reconciliation.
Air India began operating a scheduled commercial air service between
Canada and India in 1982. From October 1982 until the end of 1984, Air India’s
305 Exhibit P-101 CAF0554, p. 3.
306 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4258.
307 Exhibit P-101 CAF0119.
187
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operations in Canada were limited to a weekly flight to Delhi from Mirabel. Prior
to commencing operations, Air India filed a security plan with the Minister of
Transport.308 Pending some very minor revisions, Air India’s standard security
measures complied with Canada’s regulatory requirements of the time, and
included the requirement that all passengers and their carry-on baggage
be security screened prior to boarding an aircraft.309 The screening was
accomplished with the assistance of X-ray scanners, as well as with walk-through
and hand-held metal detectors, which were purchased, installed and maintained
by Transport Canada. Burns International Security personnel were contracted to
search passengers and their baggage using this equipment at the passenger
screening checkpoints at major airports such as Mirabel and Pearson.
Airport Security Technology in 1985
The passenger screening process at a major Canadian airport in June 1985
was not dissimilar to what the travelling public experiences today, although
the equipment used was comparatively primitive. A passenger at a security
checkpoint would be directed to walk through a metal detector archway while
his or her baggage was examined by a security officer using an X-ray scanner.310
If the metal detector sounded an alert, a security officer would scan the
passenger with a hand-held metal detector unit to ascertain the location of the
metal object and to identify it. The carry-on baggage, meanwhile, proceeded
down a conveyer belt through the X-ray scanner, typically a Linescan System
One fluoroscope, which displayed a black and white image of the bag’s contents
on a small monitor.
Such equipment works by using an X-ray source to send a beam of X-rays.
Depending on the density of the object, X-rays will either pass through the
object or be absorbed to a varying extent. X-ray detectors receive the X-rays
that have passed through the item and produce an image on a monitor based
on the varying penetration of the X-rays. Metal items such as a gun or knife
would appear as opaque, dark shapes, but given the resolution of the image and
the overlapping objects within a typical bag, the images often required careful
attention and some interpretation.311 The CATSA Act Review Panel noted that:
…for both systems, detection was dependent upon the
mass of the object and the skill of the operator. The X-ray
equipment would not have been able to identify most
explosives, but a trained and skilled operator may have been
308 Exhibit P-284, Tab 68. Air India wrote and filed a security plan with the Minister of Transport in
December 1982 following a written request from Paul Sheppard, Director of Civil Aviation Security. Air
India did so voluntarily, as it was not yet named in the schedule to the Foreign Aircraft Security
Measures Regulations and was thus not an “owner or operator” of a foreign aircraft within the meaning
of the Regulations. See Exhibit P-101 CAF0778.
309 Exhibit P-284, Tab 68, pp. 5-6.
310 Exhibit P-157, p. 24.
311 Examples of X-ray images of carry-on baggage items can be found at p. 7 of Exhibit P-101 CAF0806,
produced during an RCMP assessment of the effectiveness of different X-ray fluoroscopes at Ottawa
International Airport in 1985.
�Chapter II: Threat Assessment and Response
able to detect metallic wiring and timing hardware associated
with a detonation device. This X-ray equipment was very
different from the type in use today, which can detect different
materials, is far more sophisticated, and can produce colour
and enhanced images, as well as greater image resolution.312
The detection equipment used for passenger and baggage screening enabled
relatively quick and non-intrusive searches, saving time and money. It also had
the value of being a highly visible security measure, deterring those who might
attempt to bring weapons and other dangerous articles aboard an aircraft, while
reassuring the travelling public. However, this equipment was only as effective
as the individuals operating it, and there are many examples in evidence of
poorly trained and unmotivated security officers conducting rushed, improper
scans and failing to take appropriate action when a suspicious result was
obtained. Nevertheless, the travelling public widely accepted the security
screening process, even in its early days, and pre-board screening was credited
with virtually eliminating hijacking attempts in Canada.313
Growing Threats to Air India
Air India’s initial flights in Canada proceeded without incident but, as political
tensions in India escalated, so too did the threat to Air India. Civil aviation is
a singularly tempting target for terror, and, as a state-owned airline, Air India
was closely connected to the Government of India in a time of internecine fury.
The threats increased in frequency and intensity as extremists fomented violent
sentiments in Sikh communities in Canada and around the world. In February
1983, for example, Air India advised the RCMP of a general threat of hijacking
or sabotage to its flights, followed by a further threat report, in October 1983,
that Sikh extremists were threatening to hijack an Air India aircraft.314 Air India
reported another hijacking threat to the RCMP on April 7, 1984.
On June 5, 1984, the threat erupted. Political turmoil in the province of Punjab
had culminated in a tense standoff between Sikh militants and the Government
of India. Seeking to eliminate the militants, the Indian army assaulted the Golden
Temple in Amritsar, regarded by many Sikhs as their holiest shrine. Hundreds of
civilians were killed in the process. Sikhs all over the world were outraged by the
violence of Operation Blue Star, as it was known, and the attack incited violent
rhetoric and waves of bloody retaliation.
On June 12, 1984, Air India reported another hijacking threat. The RCMP at
Mirabel instituted its highest security measures for Air India for that month as
a consequence. On June 15, 1984, a caller to Air India’s sales office in Toronto
reported that the June 16th flight would be bombed. As noted below, Air India
312 Exhibit P-157, p. 25.
313 Exhibit P-101 CAF0774, p. 9.
314 Exhibit P-101 CAA0234, p. 1. The threat was considered serious enough that the RCMP raised the
security level for Air India at Mirabel to level three, based on its threat-response grid.
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responded by implementing a number of effective “low-tech” security measures
to respond to the threat in this instance. Another plan to bomb an Air India
aircraft in flight was reported on June 30, 1984. Air India reported at least seven
more threats of bombing and hijacking to the RCMP before the end of 1984.315
By the summer of 1984, Air India was concerned enough by the threat of sabotage
that it proposed to acquire and install its own X-ray scanner for the purpose
of screening checked baggage before loading it onto its flights at Mirabel.316
Telexes sent by Air India’s head office in Bombay earlier in the year had directed
that its stations around the world use X-ray scanners and explosives detecting
devices to examine checked baggage to respond to sabotage threats.317
Ashwani Sarwal, Assistant Airport Manager for Air India, contacted Transport
Canada to discuss the prospect, and Transport Canada approved the idea. On
August 8, 1984, Sarwal wrote to confirm that Air India would be going ahead
with its plan to purchase an X-ray scanner as soon as possible, and enclosed a
brochure for Transport Canada’s review. He asked that Transport Canada advise
him if it required any further details regarding Air India’s proposal to put the
machine into use by September 1st. Air India leased the device and put it into
service at Mirabel that fall.
In light of the growing and persistent threat, Air India modified its security plan
for operations in Canada to include X-raying checked baggage as a standard
measure.318 Accordingly, when Air India planned to expand its operations to
include flights at Toronto’s Pearson airport commencing in January 1985, it also
decided to acquire an X-ray scanner to examine checked baggage.319 Technology
allowed for faster and more efficient responses to threats. As noted in Section
1.11 (Pre-bombing), The Cost of Delay – Testimony of Daniel Lalonde, Air India
was very concerned about the expenses caused by security delays or inefficient
operations.320
On January 8, 1985, Air India met with Transport Canada and RCMP personnel
to discuss the application of Air India’s security program at Pearson.321 As at
Mirabel, Air India would be relying on security officers provided by Burns
International Security to conduct pre-board screening of passengers and
their carry-on baggage, using metal detectors and X-ray equipment, as well as
searching checked baggage by X-ray. All checked baggage would be screened
by X-ray prior to being loaded into containers and placed aboard the aircraft.
Air India was concerned about the number of threats that would be received
at Pearson. Mahendra Saxena, Air India’s senior security officer based out of
JFK International Airport in New York, indicated that, due to Toronto’s larger
315
316
317
318
319
320
321
Exhibit P-101 CAA0234, pp. 2-4.
Exhibit P-101 CAF0645.
Exhibit P-101 CAF0575, p. 2.
Exhibit P-101 CAA0119, p. 1.
Exhibit P-101 CAA0118, p. 2.
See Section 1.11 (Pre-bombing), The Cost of Delay – Testimony of Daniel Lalonde.
Exhibit P-101 CAA0118.
�Chapter II: Threat Assessment and Response
Sikh population, he expected more security problems in Toronto than were
currently being experienced at JFK International Airport, where Air India
managed three threat situations a day. Because of the threat situation, Air India
also requested that an RCMP explosives detecting dog be called in to inspect
the checked baggage for each flight. Transport Canada refused to provide this
service, stating that the dog would only be called where suspicious articles were
found.322 Furthermore, Transport Canada’s position was that any additional
police assistance would only be provided at a cost to Air India.
Air India leased a Linescan System Two unit for checked baggage inspection,
but the device could not be delivered and installed in time for the first flight out
of Pearson on January 19, 1985. In its place, Air India’s security measures called
for the use of the Graseby Dynamics PD4C explosives vapour and trace detector
(the “PD4”) to inspect checked baggage,323 and, accordingly, Saxena decided
that the device would be used exclusively in the absence of the X-ray unit.324
The X-ray machine was installed and became operational on February 2, 1985.325
Once the X-ray machine was installed, Burns employees were instructed to use
the PD4 in the event that anything suspicious appeared on the X-ray monitor.
A Flawed Device: The PD4
The PD4 explosives vapour detector was a hand-held device that appeared on
the market in 1982. It was designed to detect “…explosive substances containing
nitrated organic molecules,” a group including nitroglycerine and TNT.326 When
activated, the PD4 drew in and tested air samples for the presence of explosive
materials. It made a slow ticking noise while in normal operation. If explosives
were detected by the “sniffer” device, it alerted the operator with a light and a
high-pitched tone that increased with the relative concentration of explosive
vapour.327
The PD4 proved to be a singularly flawed device, and unfit for the purpose
for which it was used. On January 18, 1985, a group of officials from Air India,
Transport Canada, Peel Regional Police and the RCMP met for a further discussion
of security and a demonstration of the PD4 sniffer. Ashwani Sarwal and Herb
Vaney represented Air India at the demonstration,328 and Sarwal displayed the
PD4 device to those present. One of the RCMP members in attendance was
Constable Gary Carlson who, along with his bomb-sniffing dog Thor, provided
explosives detection services at Pearson. According to Carlson’s statement, 329 he
tested the PD4 with an open vial of gunpowder. The vial was first placed inside
a garbage container, and an Air India representative activated the PD4 and
attempted to locate the gunpowder in the container. The PD4 failed to detect
322
323
324
325
326
327
328
329
Exhibit P-101 CAA0118, pp. 4-5.
Exhibit P-101 CAA0119, p. 1.
Exhibit P-284, Tab 17.
Exhibit P-101 CAF0010, p. 1.
Exhibit P-410, pp. 20-21.
Exhibit P-410, p. 4.
Exhibit P-101 CAA0369, p. 2.
Exhibit P-101 CAC0268.
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it. Carlson then took the vial and placed it on top of the garbage container
lid. The PD4 was gradually moved closer and closer to the vial, but it was not
until the conical “nose” probe of the device was placed into the vial and just one
inch from the gunpowder sample that it sounded to indicate the presence of
explosive material.330
Carlson told the Air India representatives that “…this was not an effective
method of checking suitcases for explosives,” adding that he and his dog were
available at any time to check suspicious items.331 Staff Sergeant Robin Ward,
another RCMP officer present at the demonstration, indicated in his affidavit
evidence to the Kirpal Inquiry that “Mr. Sarwal was advised at time that we had
no faith whatsoever in this device and we did not see how it would be effective
in detecting an explosive inside a suitcase.”332
In his testimony before the Commission, Carlson confirmed that the RCMP
personnel present at this demonstration were shocked by its ineffectiveness.
Conversely, the Air India representatives seemed indifferent.333
Detective Fred Lemieux of Peel Regional Police was also present at the January
18th demonstration. In a letter to the RCMP Air India Task Force, dated January 2,
1986, he wrote that the machine’s performance made it “…quite evident to all
present that the detector failed to perform its function in this demonstration.”
He felt that only three conclusions were possible: first, that the operators were
unfamiliar with the equipment; second, that the device was faulty; or third, that
the explosives were not capable of being detected by the PD4. He added, “…in
any case, it was suggested that pre-board screening should not rely solely on
the PD-4 detector.”334
According to T.N. Kumar, Air India’s General Manager for Legal Affairs, no report
of this test was made to Air India Headquarters.335 Instead, Air India relied on
data provided by the manufacturer in concluding that the device was effective.
In essence, Air India uncritically accepted the manufacturer’s claims about the
usefulness of the PD4.
The first Air India flight from Pearson was scheduled for January 19, 1985 – just
one day after the failure of the PD4 to detect the gunpowder. While on foot
patrol at the airport, Carlson and Ward attended the baggage handling area to
observe Burns security personnel examining checked baggage for the flight.
Despite the troubling results of the previous day’s demonstration, the Burns
employees were using the PD4 scanner to do so. Carlson was curious about how
the PD4 would perform with a different compound, and he provided a sample
of “Det sheet” plastic explosive in order to test the PD4.336
330
331
332
333
334
335
336
Exhibit P-101 CAA0369, p. 2, CAC0515, pp. 2-3.
Exhibit P-101 CAC0268, p. 2.
Exhibit P-101 CAA0369, p. 2.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 2995-2996.
Exhibit P-101 CAC0515, p. 3.
Testimony of T.N. Kumar, vol. 37, May 31, 2007, pp. 4456-4457.
Exhibit P-101 CAC0268, p. 2.
�Chapter II: Threat Assessment and Response
Carlson explained during his testimony that the Det sheet (also known by the
trademarked name “Detasheet”337) is:
…a military grade explosive, green in colour. It would be
three inches by four inches. It was very safe to carry around,
so I would use that for training of my dog. And I used that to
determine if the PD4 would alarm to that type of explosive. 338
The device did not alarm even when it came into direct contact with the “Det
sheet”.339
Transport Canada officials were informed of this second failed test on January
21, 1985, during a debriefing of Air India’s security operations for its inaugural
flight.340 No Air India personnel were present at this meeting. Moreover, Air
India had not been told about the second failed test on January 19th,341 and
no information regarding this failed test was provided to Air India before the
bombing.342
There is no evidence that either Transport Canada or the RCMP (or, for that
matter, Air India) conducted a thorough examination of the functional reliability
and sensitivity of the PD4 in either laboratory or field conditions. Nevertheless,
considerable evidence exists to support the conclusion that great caution was
warranted in relying on the PD4 to detect explosives concealed in checked
baggage. This information was available to Canadian authorities.
Evolution of Explosives Detection Technology
In the late 1970s and early 1980s, explosives detection technology was in its
infancy. Assessments of the vapour detectors at this time were uniformly
poor. Transport Canada had evaluated two explosives detection devices, in
collaboration with the National Research Council, in 1979.343 Tested were the
Pye Dynamics PD3344 and the Ion Track Instruments Ultratek. Both devices were
designed to detect vapours released by different explosives. The review of the
devices indicated that they had severe shortcomings. Tests showed that both
devices were temperamental and unreliable. The devices were tested by placing
337 This rubberized explosive, similar to plastic explosives, was originally manufactured by DuPont under
the trademarked name “Detasheet,” but it is also variously referred to by experts and law enforcement
officers as “Det sheet,” “Deta sheet” and “detasheet. Unless quoting a written document that indicates
otherwise, the Commission uses the form “Detasheet.”
338 Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 2998.
339 Exhibit P-101 CAA0369, p. 3.
340 Exhibit P-101 CAA0121, p. 2.
341 Exhibit P-101 CAC0528, pp. 33-34.
342 Transport Canada’s monitoring and enforcement failures are discussed in further detail in Section 4.7
(Pre-bombing), Transport Canada Policy Gaps and Implementation Deficiencies.
343 Exhibit P-101 CAF0549.
344 To avoid confusion, it should be noted that Pye Dynamics, listed as the manufacturer of the PD3, and
Graseby Dynamics, the manufacturer of the PD4C, were related UK companies. Following in the
footsteps of the PD1 military explosives detector and the PD2 commercial explosives detector, the PD3
was the predecessor of the PD4.
193
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an explosive substance in a suitcase and, after 60 minutes, passing the detectors
along the edges of the case. The study author noted that “[f ]or unexplained
reasons it was difficult to reproduce on a day-to-day basis the results obtained
from the detectors using identical flow rates, temperatures and procedures. The
PD3 was particularly difficult.”345
The shortcomings of the devices that were listed in the study included inadequate
sensitivity, a limited range of explosives that could be detected, and a high
sensitivity to common, non-explosive vapours that would result in false alarms.
These flaws made the devices unsuitable for use at airports or with aircraft. The
study concluded that the devices would only be suitable for use in areas where
the expected vapour concentration was high. This ruled out using the devices
to examine closed containers such as checked baggage at an airport.
The RCMP had also been evaluating explosives detection devices. A July 1985
report indicated that the Explosive Disposal and Technology Branch of the P
Directorate had, “…during the past several years, been keeping current with the
development of a number of explosive-detection ‘sniffers.’ None were found
which were considered effective.”346 The report did not specify which devices
had been reviewed. The blunt assessment indicates, however, that the state of
the art of explosives detection technology left much to be desired in 1985.
Prior to 1991, Nick Cartwright served a term as Chief Chemist and Manager of
the Canadian Police Research Centre and Officer in Charge of the Science and
Technology Branch in the Forensic Laboratory Services Directorate of the RCMP.
He testified that the RCMP had evaluated the PD4 and found it to be unreliable.
He told the Commission that there were other devices available as of 1985, but
they were also unreliable. He said that they were more lab prototypes than they
were totally functioning units.347
The National Research Council spent several years developing a new explosives
detector, the EVD-1.348 This was a much more complicated device than the PD4,
and could detect traces of explosives in concentrations of less than five parts
per trillion.349 Cartwright said that a part per trillion was analogous to “one
second in 32,000 years,” or “one shot of scotch in Lake Superior.”350 The EVD-1
was not yet in mass production at the time of the bombing, but pre-production
models were quickly put into service to assist in examining checked baggage at
Canadian airports in the days following the bombing.351
345
346
347
348
349
Exhibit P-101 CAF0549, p. 6.
Exhibit P-101 CAF0680, p. 1.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5108-5109.
See Exhibit P-101 CAF0675.
Exhibit P-101 CAF0808, p. 1. The RCMP had required an operational sensitivity of five parts per trillion,
and the production models they obtained actually exceeded this standard.
350 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5153-5154.
351 Exhibit P-101 CAF0675, p. 1. Transport Canada released four pre-production EVD-1 models for use at
major airports on June 23, 1985. This release prompted internal warnings against any false sense of
security, since the devices had not yet been systematically tested in field conditions and no operator
training or maintenance programs were in place. As of June 28, 1985, operators of the EVD-1 at
Toronto’s Pearson Airport had no training in its use at all.
�Chapter II: Threat Assessment and Response
The EVD-1 rapidly became the world standard352 because of its advanced
capabilities. But it too proved to have some difficulties. The RCMP tested a
production unit in July 1985 and concluded that it was actually “somewhat
disappointing.” It could only detect a limited number of different explosives,
and was slower and less sensitive than an explosives detection dog. Air samples
had to be obtained with a hand-held device and then brought back to the unit
to be analyzed. Once an individual air sample was placed into the EVD-1, it
required two minutes of processing before a result could be obtained. Finally,
the machine was prone to technical problems and to breaking down. Further
tests were planned in field environments, but the device was nevertheless
considered to be of only “limited utility” until that time.353
The EVD-1 illustrates the difficulties faced in the early stages of explosives
detection technology. Nonetheless, the developmental work eventually led
to success. Dr. Lorne Elias, who was instrumental in the development of the
EVD-1, was called the “father of vapour and trace detection technology” by Nick
Cartwright. In fact, Elias played a major role in developing the technology now
employed successfully in explosives trace and vapour detection.354
In light of the primitive state of explosives detection technology at the time,
Air India’s proposal to rely on the PD4 should have raised greater alarm. The
Commission is unaware of any Transport Canada evaluation for the PD4. Based
on the informal tests conducted at Pearson, however, neither Transport Canada
nor the RCMP considered it fit for use.
Technology Failures on June 22, 1985
On June 22, 1985, all the bags checked in at Toronto for Air India Flight 181/182,
as well as the interline bags from connecting domestic flights, were sent to the
international baggage area for examination by X-ray.355 At approximately 2:30
PM, security screening of this checked baggage commenced at Pearson airport.
Three Burns guards were on duty that afternoon in the checked baggage
area.356 Naseem Nanji, one of the guards, loaded suitcases onto a belt that fed
bags through the device. Another Burns employee, James Post, examined the
black and white images that appeared on the monitor as each bag was scanned,
endeavoring to identify any suspicious objects contained within. A third Burns
employee, Samynathan Muneeswaran, handled the scanned bags as they
emerged from the X-ray scanner.
At approximately 4:45 PM, the Linescan System Two X-ray machine, leased by Air
India to examine checked baggage, broke down.357 At that point, somewhere
between 50 and 75 per cent of the bags had been examined by X-ray. The
X-ray scanner could not be restarted and, since it was a weekend, there was
352
353
354
355
356
357
Testimony of Jean Barrette, vol. 38, June 1, 2007, p. 4564.
Exhibit P-101 CAF0680, pp. 2-3.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5115-5116.
Exhibit P-157, p. 37.
Exhibit P-101 CAF0143, p. 2.
Exhibit P-157, p. 37.
195
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no possibility of obtaining repair service. John D’Souza, the Air India security
officer, learned of the malfunction while making his rounds. He directed the
Burns officers to use the PD4 to screen the remainder of the checked baggage
for explosives.358 D’Souza also provided an extremely brief demonstration of
how the PD4 operated, lighting a match and holding it close to the device.
Having detected the burning match, the device emitted a shrill noise, which has
been described as sounding “…like a kettle going off.”359
Aside from this cursory demonstration, the Burns employees had not been
trained in the use of the PD4 and were unfamiliar with its operation. The sound
made by the PD4 when it detected explosives changed in intensity, depending
on the perceived concentration of explosive vapours.360 Clearly, a lit match held
up to it caused a strong reaction. The employees were not shown how it would
react to a lower vapour concentration, such as might be detected along the
edges of a suitcase containing a concealed explosive device. This is important
because there is evidence that the device may have reacted to one or more
bags during the continuing screening of checked baggage.
In her statement to the RCMP after the bombing, Nanji indicated that while Post
was using the PD4 to examine the checked baggage, it emitted a “beep” when
it was passed along one bag’s zipper. Post used the PD4 again to check this bag,
and it “…beeped low in volume when it was passed near the [zipper’s] lock. But
the beeper wasn’t making a long whistling sound like it had when John the Air
India man demonstrated the ‘sniffer’ to us. So we let the bag pass.” Nanji stated
that no one told Air India about this, due to the fact that “…no one told us to call
them if the ‘sniffer’ gave a short beep.”361 Nanji testified about her observations
during the trial of Ripudaman Singh Malik and Ajaib Singh Bagri, and Justice
Josephson summarized her testimony in his 2005 reasons for judgment.362
Muneeswaran also provided a statement to the RCMP shortly after the bombing,
in which he stated that one bag in particular caused the PD4 to react. Although
the device “would not stop” alarming, this bag was tagged and put through with
the rest of the baggage.363 Antonio Coutinho was a station attendant loading
and unloading baggage for the flight. He was working at the baggage conveyor
belt and observed the demonstration of the PD4 and its use with the checked
baggage. In a statement given after the bombing, he informed the RCMP that a
large burgundy bag set off the PD4 when it was run across the bag’s lock.364 The
bag was checked again with the PD4, and the scanner “buzzed” again. Coutinho
also testified at the trial of Malik and Bagri, and Justice Josephson summarized
his testimony:
358 Exhibit P-101 CAF0531, p. 3.
359 Exhibit P-101 CAF0142, p. 7.
360 Exhibit P-410, p. 19. See also R. v. Malik and Bagri, 2005 BCSC 350 at para. 30. According to an expert,
Timothy Sheldon, the PD4 emitted a slow ticking noise when in operation that accelerated to a “high
pitched whine,” depending on the level of explosive vapour detected.
361 Exhibit P-101 CAF0159, p. 3.
362 R. v. Malik and Bagri, 2005 BCSC 350 at para. 27.
363 Exhibit P-101 CAF0143, p. 5.
364 Exhibit P-283, Tab 35.
�Chapter II: Threat Assessment and Response
Mr. Coutinho subsequently observed a large reddish brown
suitcase with a “heavy baggage” tag trigger beeps from the
PD4C Sniffer each time it was passed over the bag. The bag
had been checked in at Toronto and was destined for Bombay.
To Mr. Coutinho’s surprise, security personnel suggested that
the lock on the suitcase was triggering the device and allowed
it to pass through security. Because the Bombay baggage
containers were already full, this particular bag was placed
on an excess baggage cart for loading into the bulk cargo
compartment at the rear of the aircraft.365
Similarly, a statement given by Barry Higgins, who was also working in the
baggage area on June 22nd, indicates that he saw the AI representative, D’Souza,
explain to a security guard how to use the hand scanner. Once it was put into
use examining checked baggage, the scanner was brought near a bag which
caused it to start “…buzzing on and off.” A sticker was put on the bag and it was
sent on its way.366
During his interview with the RCMP, Post was asked about the noises made
by the PD4. He stated that it was his understanding that the PD4 would emit
a “piercing scream” if it detected explosives, and that the only noises it made
during the examination of the checked baggage was a “…beep when turned
on and a beep when turned off.”367 He was convinced that the PD4 had not
detected any explosives.
The Burns supervisor, Michael Ciuffreda, stated that he did not believe Post
had used the PD4 before, and he had never trained Post in its use.368 Ciuffreda
had seen the PD4 demonstrated by an Air India representative on several prior
occasions in 1985. He stated that, although it did occasionally emit a clicking
noise while in use, he never heard it whistle or beep.
The PD4 device would be in start-up mode for 10 seconds after being turned
on, during which time it would “auto zero” to ambient conditions.369 This meant
that the device would use the air around it to establish a baseline against which
detected concentrations of explosive vapours could be assessed. The machine’s
red indicator light would be on and the PD4 would begin emitting a slow ticking
sound. Once the start-up was complete, the red indicator light would go out.
The ticking noise would continue.
The instruction manual makes no reference to the device sounding a “beep”
when turned on or off.370
365
366
367
368
369
370
R. v. Malik and Bagri, 2005 BCSC 350 at para. 29.
Exhibit P-283, Tab 36.
Exhibit P-101 CAF0156, p. 2.
Exhibit P-101 CAF0142, p. 6.
Exhibit P-410, p. 9.
See Exhibit P-410, pp. 9, 19. At p. 19, its outputs are listed: “1. Audio – An audio tone of constant
amplitude from an internal transducer which is varied in frequency from near zero to 1 KHz in relation
to the perceived explosive vapour level; 2. Visual – LED lights when the audio output frequency
exceeds a preset value; 3. Earphone Jack – When the earphone is plugged into the jack socket the
internal transducer is muted; 4. Battery Low Indication – Audible alarm at a fixed frequency of
approximately 2 KHz.”
197
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There is no way to know whether the checked bag belonging to “M. Singh,”
interlined from CP Air Flight 060, was examined by X-ray before the machine
malfunctioned, or whether it was examined by PD4 afterwards. Even if the
bag was X-rayed, factors, such as human error and the difficulty in detecting
concealed explosives, suggest that it might not have been found. The PD4 was
so unreliable, moreover, that no conclusions can be drawn about its apparent
reaction to a particular checked bag. What is certain is that, due to the Burns
employees’ inexperience with the PD4, and the cursory manner in which its
operation was demonstrated, their examination of the remaining checked bags
was effectively a useless exercise. They were so unfamiliar with the device that
the sounds it made during the screening of checked baggage were interpreted
differently by different screeners. Any opportunity to flag a potentially
dangerous bag was wasted because the Burns personnel lacked the training
and initiative to take action, such as reporting the noises to a superior371 or to
an Air India official, before the bag was loaded and the plane departed. Instead,
they only spoke of the noises made by the PD4 in hindsight and with conflicting
recollections.
Air India was under high alert in June 1985. Air India’s operations worldwide
had been directed to ensure the “…meticulous implementation of counter
sabotage measures for flights at all airports,” in a telex dated June 1, 1985.372
As the CATSA Act Review Advisory Panel noted, the June 1st Telex emphasized
random physical searches of checked baggage as a “first priority.” 373 This was to
be done particularly where other means, such as explosives detection devices
or explosives detection dogs, were not available. At Pearson, however, Air India
relied solely on the X-ray machine until it broke down. Air India had no backup
X-ray machine. D’Souza then directed that the screening personnel use only the
PD4. No random physical searches of checked bags were conducted, despite
the clear direction in the telex to do so.
Contradictory Evidence on the PD4
T. N. Kumar testified that the PD4 was “the best available” at the time. He also
contended that that the PD4 failures during the tests conducted on January
18th and 19th made it look less reliable than it really was,374 arguing that its poor
performance was caused, at least in part, by the fact that neither Transport
Canada nor the RCMP were familiar with the device, and because there was no
evidence that the PD4 instruction manual was followed properly during the
tests.
In a similar vein, Air India argued in its final submissions that there was no
suggestion that a one-time informal test should have caused Air India or
Transport Canada to conclude that the device was useless or ineffective and
371 See, for example, Exhibit P-101 CAF0142, p. 7. Burns Supervisor Michael Ciuffreda had no idea even
after the bombing that the PD4 used by Post might have reacted to one or more bags.
372 Exhibit P-101 CAA0185.
373 Exhibit P-157, p. 63.
374 Testimony of T.N. Kumar, vol. 37, May 31, 2007, pp. 4411, 4428-4429. Kumar stated: “…yes, there could
have been limitations with the PD4 but it was not all that bad as … it appears to be.”
�Chapter II: Threat Assessment and Response
that its use should be discontinued. According to Air India, neither Transport
Canada nor the RCMP was familiar with the device and its use elsewhere, and
neither Transport Canada nor the RCMP suggested Air India should discontinue
its use as part of its security program.375 Kumar testified:
The PD4 instrument was not available in Canada. I have all my
doubts that the RCMP and Transport Canada who used the
instrument didn’t know the instrument. The instrument comes
with a sample pack. It needs to be first tested with the sample
pack and activated. Then it needs to be simulated or it needs
to be adjusted or calibrated with certain kind of things. It was
used for about seven explosives, basically nitroglycerine.376
Kumar conceded that he had no evidence that the device was not properly
calibrated when it was being used by Air India and the RCMP on January 18,
1985.377 In fact, the instruction manual for the PD4, which was disclosed by Air
India, makes no reference to calibration. Instead, the device requires 10 seconds
on start-up to calibrate itself, based on the ambient air conditions. The sample
pack was used to confirm that the device was operational, but no further
adjustment or calibration was required.378
Kumar testified that he was nevertheless satisfied that the device was properly
calibrated and operated by John D’Souza on June 22, 1985, before it was used
by otherwise untrained Burns International Security personnel to inspect the
checked baggage going onto the Kanishka. This is despite the fact that D’Souza
himself did not follow the set-up procedures set out under section 3 of the
instruction manual.379
Kumar testified that Burns was contractually responsible for deploying the PD4
and for training its personnel on how to use the device.380 This seems contrary
to evidence that the PD4 was under the control of Air India.381,382 There is, in
fact, no mention of such a contract anywhere in the evidence. Air India itself
made no reference to such a contractual responsibility in its final submissions
concerning the PD4. To the contrary, Air India’s final submissions stated:
375
376
377
378
379
380
381
Final Submissions of Air India, para. 26.
Testimony of T.N. Kumar, vol. 37, May 31, 2007, p. 4428.
Testimony of T.N. Kumar, vol. 37, May 31, 2007, p. 4456.
Exhibit P-410, p. 9.
Testimony of T.N. Kumar, vol. 37, May 31, 2007, p. 4460.
Testimony of T.N. Kumar, vol. 37, May 31, 2007, pp. 4457-4458.
See, for example, Exhibit P-284, Tab 60. In a letter dated May 31, 1985, Holger (“Nick”) Kordts of Burns
International Security wrote to Sarwal to explain a baggage handling error. The letter notes that
when the Burns security officer in the checked baggage handling area finished for the day, he returned
the PD4 sniffer to the Air India security officer at Pearson.
382 See Exhibit P-101 CAF0139, p. 3. When the X-ray scanner at Pearson malfunctioned on June 22, 1985,
the Burns International Security supervisor, Michael Ciuffreda, asked John D’Souza of Air India whether
he wanted the checked baggage screeners to use the PD4 “sniffer.” D’Souza instructed Burns to do so,
and demonstrated its use to the Burns guards present with a lit match, which caused the PD4 to alarm.
199
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Except for any on the spot training on the use of the PD4
explosive detection device, Burns was to provide all training for
the security agents it provided to Air India under its contract
to provide security services. For the PD4, which accompanied
an Air India security employee from New York to Toronto and
on to Montreal, training was provided by the Air India Security
Officer on the spot, demonstrating the use of the device after
he had calibrated and tested it.383
The Commission believes that Mr. Kumar was mistaken on this point. Even
assuming he is correct, however, it necessarily follows that on January 19, 1985,
when the PD4 was being used by Burns employees to inspect checked baggage
for explosives, and was tested again by the RCMP, it must have been properly
calibrated.384 Conversely, if Air India was responsible for deploying and training
the Burns screeners on the use of the PD4, then the Air India security officer was
responsible for calibrating the device and demonstrating its use. It still failed
to detect the explosive material, even when placed in direct contact with the
Detasheet.
It appears that Air India itself was unfamiliar with the operating strengths and
weaknesses of the PD4. On June 28, 1985, an extraordinary meeting of the
International Air Transport Association (IATA) Security Advisory Meeting was
convened.385 Representatives from Transport Canada, Air India, and IATA were
among the many industry members present. Mahendra Saxena and R.C. Puri
represented Air India.386 Saxena wrote to Air India’s Chief Vigilance and Security
Manager in Bombay and provided his accounting of the meeting. In light of
the disaster, Saxena sought IATA’s opinion on the effectiveness of the PD4 “…in
detection of explosives hermetically sealed or wrapped in any air tight containers
and the advisability of using the PD4 in general.” According to Saxena, the
acting chair of the meeting replied that no explosives detection device in the
world had been recommended and certified by any government as 100 per cent
effective.387 Rodney Wallis, who was at this meeting as an IATA official, testified
that “…indeed, these instruments were not in general use around the world.”388
Saxena remarked that it was “…high time IATA organized a technical committee
to get into the testing of various security equipment [sic] and to recommend
the same for use by airlines.”389
383 Final Submissions of Air India, para. 54.
384 Testimony of T.N. Kumar, vol. 37, May 31, 2007, p. 4459. In cross-examination by Sandy Graham, Counsel
for Transport Canada, Kumar said that Burns Security personnel were provided with instructions and
that he could “…certainly assert that they did” follow the prescribed start-up protocol every time
the device was used.
385 Exhibit P-101 CAF0441.
386 Saxena was the Senior Security Officer for Air India at John F. Kennedy International Airport in New
York, and Puri was the Manager of Canadian Operations.
387 Exhibit P-163, pp. 2-3.
388 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4493. It should be noted as well that Wallis and
Saxena differed on several points concerning recollection of the events of the meeting,
particularly with respect to the appropriateness of Air India’s security measures. Wallis testified that no
one in the meeting was in a position to approve (or otherwise) of Air India’s program, certainly
not himself. See Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4488-4493.
389 Exhibit P-163, p. 3.
�Chapter II: Threat Assessment and Response
It cannot be disputed that, when the PD4 was finally tested by an expert, those
tests confirmed that it was an ineffective device that should not have been relied
upon by Air India. In his reasons for judgment in the trial of Ripudaman Singh
Malik and Ajaib Singh Bagri, Justice Josephson observed that Timothy Sheldon,
an expert in evaluating explosives detection equipment, had testified that the
PD4C Sniffer had not distinguished between explosives and dummy packages
during testing he had conducted in 1988, leading him to conclude that it was
not effective as anything other than a deterrent.390
Similarly, the report of the Kirpal Inquiry also noted that the effectiveness of the
PD4 was “highly questionable” and recommended that “…it is not advisable to
rely on it.”391 Air India decided to rely on the PD4 sniffer as the sole backup to
X-ray scans of checked baggage, even though senior members of the airline had
witnessed troubling demonstrations indicating that the device was unreliable.
Given Air India’s own assessment of the threat it faced, this was an unacceptable
decision.
X-Ray Searches: Skilled Operators Required
Only two airlines were routinely using X-rays to search checked baggage at
Canadian airports in 1985 – Air India and El Al. As primitive as the technology
was, the checked baggage inspections were a positive development in aviation
security, and one that was long overdue in Canada. The threat of sabotage, and
the corresponding need for checked baggage security measures, was wellrecognized by Transport Canada and the airlines by 1985. 392
As with the PD4, the X-ray equipment used to scan checked baggage in 1985
suffered from technical limitations and was rendered less effective if the operators
lacked the necessary skill and good judgment to diligently monitor and correctly
interpret the images of scanned baggage.393 X-raying checked baggage in 1985
was something of an art as well as a science. The X-ray machines of the period
were primitive and in “an immature area of development” compared to the
devices in service today.394 The X-ray machines employed only a low energy
X-ray source and displayed a black and white image, composed of light and
dark areas on a low or medium-resolution monitor. Cartwright explained the
challenges of searching for explosive devices with this equipment:
It wasn’t really a detection system in and of itself. What it did
is it provided an image of what was present in the object that
was being X-rayed and then it was up to the operator to be
390 R. v. Malik and Bagri, 2005 BCSC 350 at para. 30.
391 Exhibit P-164, p. 173.
392 This is illustrated in Section 2.3.1 (Pre-bombing), Recognition of the Threat of Sabotage and
Weaknesses in the Ability to Respond.
393 Professor Kathleen Sweet wrote in a paper prepared for the Commission, “Simple x-ray systems rely on
humans to serve as pattern recognition devices; in the absence of advanced computer
pattern recognition techniques, they are very dependent on human factors. This boils down to
the proper training and competency of the screener.”: Kathleen Sweet, “Canadian Airport Security
Review” in Volume 2 of Research Studies: Terrorism Financing Charities and Aviation Security, p. 277.
394 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5079.
201
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able to interpret that image and to identify if there were things
which were suspicious, of a suspicious nature or unresolvable.
You know, there are various categories that the individual
would be trained to say, okay, I’m not comfortable with letting
this bag go. Therefore, it needs to be opened up or other
things need to be done with the bag.395
While a weapon, such as a knife or gun, had a distinctive shape, operators had
to learn to identify wires and shapes that might indicate an explosive device.
The machines demanded operators who were diligent and well-trained but, in
practice, they were operated by individuals who were frequently unmotivated
and who lacked essential training. Having tested X-ray machines and their
operators in the weeks following the bombing, the RCMP concluded that the
major weakness in the X-ray system was “…the capability and vigilance of
the operator in detecting suspicious items.”396 The paucity of training and the
assessments made of airport security following penetration tests at airports are
discussed in detail in Section 2.4 (Pre-bombing), Security Culture at Canada’s
Airports.
An evaluation conducted by the RCMP of X-ray machines and explosives
detection devices in July 1985 was remarkably reserved about their prospects
for effective checked baggage security.397 The machines were not capable of
revealing sophisticated or specialized bombs on their own. Their operators
required additional training along with the assistance of computer-aided
pattern recognition. In tests of carry-on baggage screening conducted at
Ottawa International Airport, the Burns X-ray operator was unable to distinguish
between a bar of soap and C4 plastic explosives packed in an identical box
along with a blasting cap.398 The operator also failed to notice a subsequent
improvised explosive device consisting of the C4, a blasting cap, and a pager. The
RCMP concluded it was also unlikely that an RCMP explosives technician would
have observed these items. It was felt that only a very experienced explosives
technician conducting a hand search would have determined that the bar of
soap had been replaced by plastic explosives.
In a subsequent letter to Transport Canada’s Inspector General of Transportation
Safety, Assistant Commissioner J.A.R. Roy wrote that:
…in our opinion, these reports suggest that both the X-ray/
fluoroscopes and explosive sniffers have severe limitations in
detecting sophisticated explosive devices. These limitations
are even greater when large numbers of articles are to be
checked. In the case of the X-ray/fluoroscope, it may be totally
ineffective for such an application.399
395
396
397
398
399
Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5081.
Exhibit P-101 CAF0683, p. 2.
Exhibit P-101 CAF0682.
Exhibit P-101 CAF0806, pp. 4-5.
Exhibit P-101 CAF0682, p. 1.
�Chapter II: Threat Assessment and Response
The RCMP intended to conduct more tests, as these results were strictly
preliminary. Nevertheless, the RCMP had “…serious reservations about the
effectiveness of the X-ray/fluoroscopes to detect explosive devices in baggage,”400
concluding that there was no perfect system, and that X-rays should not be
used as the sole means of screening checked baggage.401 Instead, the RCMP
suggested that a combination of the existing security systems and procedures
would be more likely to increase confidence in screening out dangerous articles.
This would include the use of X-ray machines and metal detectors, matching
bags to passengers prior to takeoff, and the presence of explosives detection
dogs to respond to specific threat situations. The Report also recommended
the use of the new EVD-1 explosives detectors to check the aircraft cabin prior
to departure. The EVD-1 was found to be reliable for detecting explosives like
dynamite when an air sample from the aircraft cabin was taken and analyzed
over the two-minute period required by the device. 402
Similarly, the recommendations of the Kirpal Report stressed that X-ray scanners
had limitations and might in fact provide a false sense of security if relied upon
alone.403 The Kirpal Report also recommended passenger-baggage matching as
an essential component of checked baggage security.
In contrast, today’s machines use dual energy systems that can differentiate
between the various materials contained within baggage.404 They display
colourized images on high-resolution screens, and have extensive computer
enhancements that assist in zooming in on target areas and providing pattern
recognition capabilities. Modern X-ray machines can highlight areas of concern
that resemble the components of an explosive device,405 and can even distinguish
between metallic and organic materials. This is an important feature because
the presence of organic materials may signify the presence of explosives. The
machines are also capable of randomly superimposing images of weapons
or explosive devices onto the image of a bag being scanned, or replacing the
image of the scanned bag with an image of a bag containing dangerous items,
in order to keep screeners alert and motivated.406
X-Ray Searches: Malfunction of Air India’s X-Ray Machine
The Linescan System Two X-ray machine leased by Air India had malfunctioned
on at least one other occasion before June 22, 1985. On June 8th, the machine
broke down and the Burns personnel inspecting checked baggage were
forced to rely on the PD4 exclusively.407 The device was serviced by Corrigan
Instrumentation Services Ltd., the local Scanray dealer, on June 13th. A complex
series of events had left the machine only half-functional, providing only a fuzzy
image on its monitor.
400
401
402
403
404
405
406
Exhibit P-101 CAF0682, p. 1.
Exhibit P-101 CAF0683, p. 4.
Exhibit P-101 CAF0683, pp. 2-3.
Exhibit P-164, p. 173.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5082.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5087.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5088-5091. When the threatening item is
detected, the machine displays a message to the screener “congratulating” them on their vigilance.
407 Exhibit P-101 CAF0159, p. 1.
203
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What was apparent was that the machine was not being well-treated. Pentti
Makela, Corrigan’s Manager of Engineering, came to the airport to repair the
machine. He discovered that a wire under the machine’s footmat had been
severed,408 which activated a series of interlocks in the machine that prevented
it from generating X-rays. Meanwhile, someone had opened the locked service
panel of the machine and set it into a diagnostic mode.409 This bypassed the
interlocks so that the machine once again generated an X-ray beam, but without
producing a clear, refined image since it was not in its normal operation mode.
Makela replaced the wire, but noted that it had been cut and repaired on two
other occasions by unknown persons. The wire was being cut when the machine
was moved into and out of position from its storage area some 40 feet away.410
After the malfunction on June 22, 1985, Makela again came to Pearson to examine
the X-ray machine and to ascertain the cause of its breakdown. He tested it and
found it to be working properly. Joe Corrigan, the company’s president, wrote
to Herb Vaney of Air India to inform him of their findings. In his letter, Corrigan
emphasized that the footmat cord was being pinched when the machine was
moved into and out of its storage area each Saturday, causing it to fray and split.
Corrigan stated that the movement of the machine was “unwise at best,” and
was likely causing intermittent problems with the machine.411
The treatment of the X-ray scanner at Pearson must be considered a possible
cause of the malfunction on June 22, 1985 – misuse or excessive movement
of such a large and delicate piece of equipment would likely cause significant
problems. The RCMP made a note during their investigation of the bombing
that the machine was not being calibrated on a regular basis.412 In light of the
apparent tampering by persons unknown, Corrigan also recommended that
careful control be exercised over the keys to the machine’s access panel to
prevent unauthorized access to the internal electronics of the machine.
“Low-tech” Security
In June 1984, Air India provided the RCMP and Transport Canada with intelligence
that Sikh extremists were planning to become martyrs by blowing up an Air
India aircraft.413 The alleged plot involved an individual boarding the flight and
checking a piece of luggage containing a concealed explosive device aboard the
aircraft. The bomb would detonate while the aircraft was in flight, destroying it
in mid-air. In response to the threat, the Air India Station Manager at Mirabel
implemented a number of strict security measures. Air India’s operations at
Mirabel did not make use of X-ray scanners for checked baggage at that time,414
but, rather, used “low tech” solutions. These included manually opening and
408
409
410
411
412
413
414
Exhibit P-101 CAF0798, pp. 9-10.
Exhibit P-101 CAF0529, p. 2.
Exhibit P-101 CAF0798, p. 9.
Exhibit P-101 CAF0529, pp. 2-3.
Exhibit P-101 CAA0235, p. 2.
Exhibit P-101 CAF0161, p. 1.
Exhibit P-101 CAF0161, p. 2.
�Chapter II: Threat Assessment and Response
searching all checked baggage, subjecting all passengers and carry-on baggage
to secondary security searches prior to boarding, and imposing a 24-hour hold
on cargo and a requirement that it come from bona fide shippers. The searches
were supplemented with the use of an explosives detection dog. Additionally,
extra security staff were brought to Mirabel, and Air India coordinated with
Mirabel’s General Manager, the RCMP, and Air Canada security to finalize the
local arrangements.
These measures, although slower to implement, had the advantage of being
comprehensive and requiring little additional equipment. Although Air India
was understandably concerned with costly delays, speed and efficiency must
nevertheless be balanced against the need for thorough, proven security. There
was good reason to doubt the effectiveness of the PD4, particularly if it was used
as the sole backup whenever the X-ray malfunctioned. Cartwright’s opinion was
that using the PD4 when the X-ray malfunctioned was “…certainly better than
not doing anything,”415 but he added that because of the high threat level, it
would have been wise, at a minimum, to add some other measures.
While manual searches of bags were no guarantee that a concealed explosive
device would be found, the assistance of the explosives detection dog in
searches made this measure more effective. Even with the absence of the
explosives detection dogs on June 22, 1985, Air India had many viable
alternatives to supplement or replace the use of the PD4 to screen checked
baggage. As will be discussed, another “low-tech” security measure, passengerbaggage reconciliation, would have been the single most effective strategy Air
India could have implemented to protect the passengers of Air India Flight 182,
far surpassing any machine in use at the time.
Wallis testified that, in his opinion, the technology in use at airports was
much too primitive to be reliable in 1985, and that other effective, practicable
security measures were available instead. In his opinion, passenger-baggage
reconciliation was“…the best defence we had”in 1985.416 He told the Commission
that he had warned of the dangers in using the technical equipment available at
the time, such as X-rays and vapour detection systems, and had pushed instead
for passenger and baggage reconciliation. With respect to vapour detection
systems, Wallis added: “I think most experts in those days would have taken a
good dog, a good bomb detecting dog over a piece of equipment any day. They
might still today.”417 Wallis stated that the early X-rays were not designed as
bomb-detecting pieces of equipment, but rather as a means to provide images,
and should not have had a role to play in bomb detection whatsoever:
If you were successful in hiding an image, then the screener
wouldn’t pick it up. That’s always assuming the screener had
been trained to pick up images and was conscientious in his
program.
….
415 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5152.
416 Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4255-4256.
417 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4256.
205
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I mean throw the X-rays away. They’re valueless; had no role
to play whatsoever. And in those days, of course, the images
were poor. I mean there has been massive development
in technology since those days, but in the ‘80s, the X-ray
was cosmetic more than effective. The sniffers were new
technology and I’ve already said people would have preferred
to have worked with dogs, but passenger and baggage
reconciliation could be achieved easily.418
Even today, caution must be exercised when utilizing technology to provide
security. Cartwright cited the example of the “ALPHA Molecular Locator,” a
device that, by design, did not actually work. The device consisted of an empty
plastic body with an extendable pointer. Surprisingly, the device was sold to
a number of customers, doubtless because of an unwarranted reliance on the
claims of the manufacturer regarding its effectiveness. The device lives on, and
is presently in its eighth generation; Cartwright testified that it now includes a
flashing LED light, and some internal electronics that have not been connected.
It has periodically changed names and been marketed from different countries.
It is a device incapable of performing any function other than a cosmetic one,
yet it remains in use today.419
This example highlights the important lesson that “…technology has to be
looked at and has to be evaluated very carefully to ensure that it does what you
think it will do and it is appropriate for the circumstances in which you propose
to deploy it.”420 According to Cartwright, “…technology is not always the answer.
Technology doesn’t always work.”421
A Proven Solution: Passenger-Baggage Reconciliation
Technology was given priority because it was seen as both cheaper and more
efficient than other comparatively time-consuming and costly methods, such as
passenger-baggage reconciliation. It is ironic that, if less faith had been placed
in technology, and more tried-and-true methods like passenger-baggage
reconciliation had been used to ensure checked baggage security, the suitcase
containing the bomb would almost certainly have been removed.
Section 4.1.1 of Air India’s security plan required that “…unaccompanied
baggage must be associated with a bonafide [sic] passenger and his documents
before it is boarded.”422 The emergency measures of the Air India security plan,
intended for a high threat level, also required that:
c) All unaccompanied baggage shall be held over for 24
hours prior to dispatch [sic] or shall be subjected to 100%
examination.
418
419
420
421
422
Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4256-4257.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5174-5175.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5175.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5174-5175.
Exhibit P-284, Tab 68, p. 17.
�Chapter II: Threat Assessment and Response
d) Checked-in baggages [sic] belonging to “No Shows” shall not
be loaded into the aircraft.
e) All unaccompanied baggage shall be inspected physically or
held for 24 hours prior to forwarding.423
These directives appear to draw a distinction between a bag belonging to a
“no-show” passenger and an unaccompanied bag. A “no-show” passenger is
a passenger who has a confirmed seat allocation or reservation, or has been
issued a boarding pass, but has failed to board the aircraft.424 According to
Wallis, “unaccompanied baggage” referred to checked bags that were flown
separately from the owner but which were nevertheless associated with a
travelling passenger.425 This would include mishandled bags that were sent to
the passenger’s destination on a later flight.
Air India identified “no-show” passengers by comparing the number of
passengers who checked in at the airport against the number of passengers
who boarded the aircraft. Rajesh Chopra explained that, if the number of flight
coupons that had been collected from the boarded passengers did not match
with the number of boarding passes issued at the gate, they would ascertain
which passenger was not present and would off-load that passenger’s bags.426
It was the common position among the experts who testified that, with respect to
Air India Flight 181/182,“M. Singh”was not a“no-show”passenger.427 Accordingly,
the bag he checked aboard CP Air Flight 060 with an interline tag to Delhi did
not come under the “no-show” rules. Nor was the bag apparently considered
“unaccompanied.” Kumar testified that this was because unaccompanied bags
are checked bags that are associated with a travelling passenger. As Air India
had no record or reservation for “M. Singh” aboard Flight 181/182, his bag was
unauthorized.428 It had infiltrated Air India’s baggage system.
Unfortunately, in June 1985, Air India employed no means of identifying an
“unauthorized bag,” although there is evidence Air India had used this measure
earlier. The bag checked at Vancouver International Airport by “M. Singh” was
considered to be such a bag. “M. Singh” did not have a reservation aboard Air
India Flight 182 and, as he did not check in at Pearson Airport, Air India had not
issued a boarding pass. His checked bag, interlined from CP Air to Air India, was
accepted by Air Canada, Air India’s ground handling agents at Pearson, when CP
Air Flight 060 arrived. As it had a tag indicating that it was to be loaded aboard
the Air India flight, the bag was delivered to Air India’s baggage handling area
and examined by Burns security personnel, either by X-ray or by PD4. It was
423 Exhibit P-284, Tab 68, p. 21. The emergency measures of Air India’s security program were applicable in
June 1985. See, for example, Testimony of T.N. Kumar, vol. 37, May 31, 2007, p. 4406.
424 Testimony of Chern Heed, vol. 36, May 30, 2007, p. 4341.
425 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4408.
426 Testimony of Rajesh Chopra, vol. 43, June 14, 2007, p. 5336.
427 “M. Singh” was a “no-show” with respect to CP Air Flight 060.
428 Testimony of T.N. Kumar, vol. 37, May 31, 2007, pp. 4406-4407. See also Testimony of Rodney Wallis, vol.
37, May 31, 2007, p. 4408.
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then loaded aboard the aircraft. Air India had no idea that the bag was aboard
the aircraft or that it belonged to a passenger who had failed to board the
interlining flight.
Chopra’s characterization of the bag as “unauthorized” is understandable, but
it also suggests an after-the-fact rationalization. The fact that the bag was not
authorized to be in Air India’s baggage system does not absolve Air India of
responsibility for the bag. It does not answer the question of why there were no
procedures in place to identify and isolate such unauthorized bags. The Foreign
Aircraft Security Measures Regulations429 required carriers like Air India to develop
systems of identification to prevent baggage from being placed aboard aircraft
if not authorized by the owner or operator. The bag was accepted at Pearson
and sent to Air India’s baggage area by Air Canada, Air India’s ground handling
agent. Air India’s contracted security provider, Burns International Security,
scanned the bag belonging to “M. Singh”. For Air India to say that the bag was
placed aboard Air India Flight 181/182 without authorization was no answer, as
this was just the sort of act that its security plan was meant to prevent.
A much more effective system, and one that almost certainly would have
identified the “unauthorized bag,” was passenger-baggage reconciliation,
a measure that required that every checked bag be matched to a confirmed
passenger before being loaded aboard the aircraft. Although this measure
was not practised widely in 1985, it was certainly understood to be an effective
measure, and had been practiced in Canada prior to the bombing. It was an
ideal tool to meet the threat of sabotage through explosives concealed in
checked baggage.
The simplest form of passenger-baggage reconciliation was practiced in airports
in developing countries that did not have the money for technology. As Wallis
described it:
[Y]ou line the bags up on the tarmac, you say to the
passengers, “Identify your bag”. He identifies his bag or
her bag; you put it on the airplane. Anything that isn’t so
identified doesn’t go on. Very, very, very effective way of
reconciling passengers and bags and we had two instances
in the subcontinent where bags didn’t go on and blew up. So
therefore, we knew what would have happened to the airplane
had they been on the aircraft.430
Passenger-baggage reconciliation had been used effectively on a number of
occasions prior to the bombing. This measure had been used successfully in Spain
to prevent a bombing, and Lufthansa employed it periodically at Frankfurt.431
Wallis gave the example of a bomb that was intended to be interlined to a
Pan American flight out of Rome.432 The bomb was to be placed aboard the
429
430
431
432
Foreign Aircraft Security Measures Regulations.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4257.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4478.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4412.
�Chapter II: Threat Assessment and Response
originating flight in a piece of interlined checked baggage. At the Yesilkoy
Airport in Turkey, where the originating aircraft was taking on passengers, the
basic, but highly effective, reconciliation technique described above was used:
prior to boarding, the checked bags were lined up, and passengers were asked
to identify them. One bag was not identified, and so it was not loaded aboard
the aircraft. It contained the bomb.
Passenger-baggage reconciliation had also been successfully used in Canada
before 1985, and Transport Canada was aware of its potential. A Transport
Canada audit of CP Air’s security, conducted in 1984, indicated that CP Air was
regularly conducting passenger-baggage reconciliation during various threat
situations.433 Transport Canada considered it an effective and worthwhile
measure for high threat situations, noting:
…recently the CP Air and KLM staffs in Toronto (KLM is handled
by CP Air) successfully developed and applied a passengerbaggage match system. They found it worked very well and
there was definitely no bag put on the aircraft unless the
passenger was on the aircraft. It caused some slight delay but
it would not be an impossible situation to tolerate in the event
that we did run into high threat situations in Canada.434
As the threat of sabotage and checked baggage security became of increasing
concern in Canada, airports and airlines struggled to balance effective security
against good customer service. Confirming that all checked bags were associated
with travelling passengers required additional time before a flight could depart.
In November 1984, Sheppard wrote a memorandum concerning the feasibility
of acquiring and deploying X-ray machines to scan checked baggage at
airports during general and specific threat situations. From the content of the
memorandum, it is apparent that passenger-baggage reconciliation had been
utilized on multiple occasions to respond to various threats, but that it was causing
delays to flights and was thus a source of concern. Air India in particular was
under such a high threat that it was frequently engaged in passenger-baggage
reconciliation at Mirabel, but Sheppard felt that “…[b]aggage matching was so
time consuming and leading to loss of confidence on the part of passengers
that Air India has leased a large scan ray unit for Mirabel.”435
Passenger dissatisfaction was likely the result of delays that passenger-baggage
reconciliation caused to departing flights, along with what was likely an
increase in baggage mishandling. There is no evidence that passenger-baggage
reconciliation itself was ever considered ineffective. Owing to efficiency
concerns, however, Transport Canada was considering X-ray inspections as an
alternative. Sheppard wrote that “[m]any, many bomb threats against aircraft”
had caused delays of hours at airports due to “…evacuation, baggage matching
433 Exhibit P-101 CAF0637, pp. 6, 18.
434 Exhibit P-101 CAF0637, pp. 18-19.
435 Exhibit P-101 CAF0581, p. 1.
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and opening.”436 Given the general emphasis on speed, efficiency, and customer
satisfaction in an era when baggage mishandling was endemic, even when
passenger-baggage reconciliation was not utilized, it is clear that Transport
Canada viewed X-ray technology as something of a panacea.
Despite the concern that passenger-baggage reconciliation was time-consuming
and thus inefficient, it was, ironically, the single most effective checked baggage
security measure available at the time. Professor Reg Whitaker expressed its
utility with respect to Air India Flight 181/182:
Well, I think evidently that passenger baggage reconciliation
carried out with any degree of diligence should have identified
that bag as unidentified – as unaccompanied and had it
removed.
And, however that was dealt with subsequently, it would have
been off the flight. I mean, that’s clearly the point. Once you
reach this stage where the bag had actually gotten onto the
CP flight and had landed at Pearson. All the other security
measures that were – additional security measures that had
been taken around flight 182 all turned out to be superfluous,
the additional police and so on because in effect, they were
directed towards the wrong – in the wrong direction.437
Recommendation 4.1.5 of the IATA Aircraft / Airport Security Procedures stated:
“…ensure that all baggage boarded (except expedite baggage) belongs to
passengers who are travelling on the flight.”438 This was as much a customer
service measure as it was a security measure, given how many bags were put
onto the wrong flight at the time. When asked how one could comply with that
recommendation without reconciliation of passengers and baggage, however,
Wallis replied: “With great difficulty, I would suggest.”439
Due to the large amounts of baggage moving in a major airport, however, it would
not be possible to routinely have passengers identify their lined-up checked
bags. Baggage mishandling was “endemic” in 1985.440 Automation – computer
assistance – was required. This is certainly an area where technology can be of
immense value. Computers can manage vast amounts of data, facilitating the
sorting and tracking of the thousands of bags that cross through a busy airport
each day. Technology can be exceedingly useful. What is important, however, is
to resist the temptation to rely too much on that technology or to overestimate
the effectiveness of any one device or tool. Following the bombing of Air India
Flight 182, IATA undertook to develop and promote means of automating the
process of passenger-baggage reconciliation.
436
437
438
439
440
Exhibit P-101 CAF0581, p. 1.
Testimony of Reg Whitaker, vol. 36, May 30, 2007, pp. 4351-4352.
Exhibit P-158: Aircraft/Airport Security Regulations, s. 4.1.5.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4413.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4413.
�Chapter II: Threat Assessment and Response
Failure to Learn from the Air India Bombing: Pan Am Flight 103
On December 21, 1988, a bomb aboard Pan American World Airlines (Pan Am)
Flight 103 exploded in mid-air over Lockerbie, Scotland.441 The aircraft came
apart in the violence of the blast and the subsequent rapid depressurization.
The explosion and crash of the Boeing 747 killed 270 people, including all 259
persons aboard the aircraft and 11 townsfolk on the ground below. The modus
operandi of this bombing was identical to that used in the bombing of Air India
Flight 182: the bomb was concealed in a piece of unaccompanied checked
baggage that was loaded aboard the plane after being delivered to the airport
as an interline bag from a different connecting flight.
Just as in the Air India tragedy, passenger-baggage reconciliation might well
have identified the bag and prevented the bombing. Unlike the Air India
tragedy, however, passenger-baggage reconciliation was a required security
measure for this flight. Unfortunately, an overriding concern for expediency and
cost-effectiveness resulted in the decision to bypass this measure altogether, in
favour of cheaper, technological solutions. Wallis summed up the incident in his
book on the disaster:
It was a tragedy that should never have happened.
Investigations were to show that the methodology used by
the terrorists was a known one. It had been used to bring
down an Air India jumbo jet, the Kanishka, three years earlier,
and counter-measures to prevent such bombings existed.
Furthermore, prior warning of an attack on Pan Am had been
received directly by US authorities. The warning detailed the
route of the aircraft and the intended timescale of the attack.
Pan Am 103 was destroyed and 270 people died as a result of
avoidable human failures and irresponsible corporate decisionmaking. A court in New York was to hear later that the airline
had abandoned the passengers and crew on board the [747
named] “Maid of the Seas” to the worst ravages of international
terrorism.442
By 1988, the Federal Aviation Administration (FAA) required that all bags
interlined to American carriers must be matched to travelling passengers as
well as security screened before they could be loaded aboard the aircraft.443
Additionally, the FAA had designated the Frankfurt airport as a high risk airport,
given its assessment of the threat of terrorism, making passenger-baggage
441 Exhibit P-166, p. 1.
442 Rodney Wallis, Lockerbie: The Story and the Lessons (Santa Barbara Greenwood Publishing Group, 2001),
pp. 1-2.
443 Exhibit P-166, p. 3.
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reconciliation essential.444 Officials within Pan Am’s Frankfurt office were
concerned about cutting costs, however, and decided that passenger-baggage
reconciliation was too expensive a security measure. To save money, Pan Am
instead set up a subsidiary company called Alert Management and bought new
X-ray machines for screening checked baggage. Alert would provide the pareddown security services for Pan Am in Frankfurt. Pan Am incorrectly concluded
that this arrangement relieved it of the FAA-mandated duty to match passengers
and baggage.445
The bag containing the bomb began its journey aboard an Air Malta flight
destined for Frankfurt. It had been placed aboard the flight by a Libyan security
officer, who had access to the baggage tags used by the airline as well as access
to the baggage handling area.446 He tagged the bag containing the explosive
device for interlining so that it would be flown to Frankfurt and transferred to
the Pan Am flight to London.
At the Frankfurt airport, the bag was run through an X-ray machine and cleared
by security. The X-ray machines were no more advanced than those in operation
in June 1985. They still displayed black and white images and lacked highresolution displays. The security officer operating the X-ray machine for Pan
Am’s checked baggage at Frankfurt was inexperienced, had poor eyesight, was
not wearing his glasses, and had not been trained. As Wallis explained, only two
or three months before the bombing “…he’d been a cleaner somewhere and
was now an X-ray specialist. So he missed it and the bag went onto the Pan
American flight, just as the bag went on to the Air India Flight.”447
The Pan Am flight proceeded to Heathrow Airport in London. Unlike Air India
Flight 181/182 which changed its flight number from 181 to 182 upon leaving
Montreal but did not change the actual aircraft, Pan Am Flight 103 changed
aircraft at Heathrow. A Boeing 747, Maid of the Seas, was waiting at Heathrow,
and would be making the transatlantic flight to the United States as Pan Am
Flight 103. All connecting passengers would have to disembark from the plane
arriving from Frankfurt and board the Maid of the Seas. All baggage destined
for the United States would also have to be transferred from one aircraft to the
other.
Conclusion
There is no one-size-fits-all solution for aviation security. A successful security
strategy consists of multiple security measures, and the ability to deliver
appropriate responses depending on the threat assessment. One of the
critical components of any aviation security program will be technology: X-ray
machines, metal detectors, and computer systems which are part of the airport
experience of thousands of travellers in Canada each day. With the assistance
of technology, some degree of efficiency within a busy international airport
444
445
446
447
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4518.
Exhibit P-166, p. 5.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4516.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4517.
�Chapter II: Threat Assessment and Response
can be maintained. Nevertheless, effective security also depends on the ability
to anticipate a threat, including sabotage, and to design reliable methods for
combating it.
When the Kanishka departed Pearson for Mirabel on June 22, 1985, it carried an
explosive device that had not been detected by any of the modern equipment
in use. This was the culmination of a number of tragic failures. Air India placed
undue faith in the X-ray machine, given the lack of training of its operators. It
also placed undue faith in the PD4, and its failure at the test on January 18th
demanded an alternate response. Transport Canada and the RCMP had serious
doubts about the effectiveness of the device, and yet took no action to alert
Air India of the second failure of the PD4 following the test on January 19th. The
device was put into the hands of inexperienced private security guards after a
fleeting demonstration. The safety of all 329 passengers and crew aboard Air
India Flight 182 rested on the twin assumptions that the device would work
properly and that it would be used properly.
Air India placed undue faith in the abilities of both X-ray machines and the PD4
in protecting the safety of its passengers, crew, and aircraft. It did so despite
having good reason to question and re-examine their effectiveness, and despite
the existence of viable alternatives such as physical searches of checked bags and
true passenger-baggage reconciliation. Technology will always have practical
limits, and these limits will be compounded when unskilled, inexperienced,
or poorly trained operators are involved. Transport Canada and the RCMP,
meanwhile, expressed doubts about the PD4, while failing to take any action to
inform Air India of a subsequent failed test or to formally recommend that Air
India not rely on the PD4 for checked baggage security.
2.4 Security Culture at Canada’s Airports
Burns Security – little training, low pay and no motivation say it all.
- Minutes of Meeting, Department of Justice, January 7, 1986.448
Despite the extensive evidence surrounding the threat of sabotage to civil
aviation in the early 1980s, the evidence is that, at the same time, the “culture of
security” at Canada’s major international airports was surprisingly lax. Canada
was not alone in having a lax security culture; the CATSA Act Review Advisory
Panel concluded that there was no “security awareness culture” in North America
in 1985, writing that:
The air carriers paid more attention to competitive pressures,
and security did not loom as large. For example, screeners
hired by airline companies received only the most rudimentary
training. The primary concerns of air carriers were to please
customers and reduce costs. The reason for the human error:
people and systems are reluctant to pay the price for what
is not seen as an urgent need until the gravity of the threat
becomes unmistakable.449
448 Exhibit P-101 CAC0517, p. 5.
449 Exhibit P-157, p. 72.
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Although Europe had become increasingly focused on aviation security since
the 1960s, Canada had not experienced a major incident against aviation
security in the 1980s and this fostered a general culture of complacency. There
were many dedicated and hard-working individuals who strove to ensure the
safety of air travel, but there were nevertheless individuals within Air India, Burns
International Security, and the RCMP who were “…going through the motions”
of providing basic security without necessarily being focused on preventing
acts of terrorism. The absence of a purposeful security focus was reinforced
by the anemic regulatory structure governing carrier operations, the lack of
meaningful inspections and sanctions, and an undue focus on the vanishing
hijacking threat posed in the 1970s.
As noted by the CATSA Act Review Panel, there existed no specific protocol
for government agencies, such as Transport Canada and the RCMP, to provide
security assistance to the air carriers. Instead, security was seen as “an individual
company issue.”450 Private commercial interests were responsible for protecting
the public interest. This protection was provided by poorly-trained private
security personnel and unmotivated airport personnel, paid minimum wage.
The air carriers’ supervision of the contracted security companies was
inadequate. Transport Canada’s Civil Aviation Security Branch considered the
fact that security companies were generally under the direct supervision of an
air carrier’s customer service section (as opposed to their security section) to be
a significant security issue. This was perceived to be a problem due to the fact
that the air carriers’ customer service focus would often be in direct conflict with
security priorities. For example, there were occasions when contracted screening
companies were urged to speed up the passenger screening process and get
passengers through as quickly as possible.451 One such incident involving Air
India is found in the written statement of Burns branch manager Holger (“Nick”)
Kordts, who informed the RCMP after the bombing that Air India would have
security “…rush through three or four older persons,” if pressed for time.452
Designating and Training Security Officers
A 1982 Transport Canada report outlining issues facing the development and
implementation of the National Air Transport Security Plan noted that:
Employees of the private security agencies hired by the
air carriers are generally not of a high calibre in terms of
educational level, experience or permanence. They are
located at a low point in the wage structure … and due to
low salaries agencies are frequently unable to attract ‘the best
450 Exhibit P-157, p. 72.
451 Exhibit P-101 CAF0774, pp. 18-19.
452 Exhibit P-101 CAF0538, p. 8. See also Exhibit P-283, Tab 27, p. 1: The minutes of an Air India/Air
Canada debriefing following the initial Air India flights out of Pearson centred around delays
being caused by throngs of well-wishers and lagging passengers. Air India was concerned about being
“…an ‘off-sked’ departure – looks unprofessional; get a bad reputation.” It was recommended that
Burns deploy a “firm, male security guard” who would take a “tougher approach”.
�Chapter II: Threat Assessment and Response
people’. This presents a difficult situation, as the employees
are not hired by Transport Canada but they do represent the
first line of defence in T.C.’s security program. It is interesting
to note that in the USA standards are being developed to
ensure that these employees can both see and read (This may
indicate the prior level of performance on the job). While the
contracting of private security companies is not a Transport
Canada responsibility, it does raise questions which should be
addressed in the context of this planned exercise. Is passenger
screening being provided in the most effective manner?
Should these private guards not be security cleared by the
RCMP?453
The Aeronautics Act, as it stood at the time of the bombing, limited the designation
of “security officers” to properly qualified personnel.454 Prior to 1984, however,
there were no criteria specifying what attributes would make a security company
employee “properly qualified.”455 In 1984, Transport Canada issued a set of
criteria that would be required for qualification as a security officer. Transport
Canada also developed new training programs which were issued to the carriers,
who bore responsibility for training their security personnel. No private security
officer could screen passengers and their baggage and personal belongings
at an airport without successfully completing the initial and refresher training
mandated under the security measures set by the Minister of Transport.
The program materials were audio-visual presentations utilizing slide show
carousels and audio cassettes. Along with courses on the use of X-ray and
metal detection units for passenger and carry-on bag screening, the materials
included courses such as “Don’t Pocket Your Protection,” designed to familiarize
airport personnel with their restricted area passes and their proper use, and “It
Doesn’t Happen Here,” which utilized actual incidents of hijacking and missile
attacks against Canadian targets to solicit the support of airline personnel in
maintaining alertness and countering the threat.456
Burns International Security Services Limited Personnel (Burns) was the
private security company that provided the bulk of passenger and baggage
screening services at the major airports in Canada in 1985. Burns was under
contract with Air Canada and Air India to provide security officers at Mirabel
International Airport 457 and Lester B. Pearson International Airport. At Pearson,
Burns provided security services under several different contracts. It was under
contract with CP Air, which managed the domestic flight operations for itself
and 26 other airlines at Terminal I, and was also under contract with Air Canada,
453 Exhibit P-101 CAF0774, p. 19.
454 Aeronautics Act, R.S.C. 1970, am. S.C. 1973-74, introducing s. 5.1(9): “The Minister may designate as
security officers for the purposes of this section any person or class of persons who, in his opinion, are
qualified to be so designated.”
455 Exhibit P-263, p. 48.
456 The catalogue of Transport Canada training programs can be found at Exhibit P-101 CAF0647.
457 Exhibit P-101 CAE0249, p. 17. According to the RCMP, “In Canada, Air India contracts its passenger
security services to Air Canada, which in turn contracts its passenger security to Burns Security.”
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which managed the international flight operations for itself and 18 other airlines
at Terminal 2.458 Additionally, when Air India prepared for its new operations
at Pearson in January 1985, it also contracted with Burns to provide additional
security for its weekly flights on the recommendation of Air Canada’s security
manager.459 A letter from Burns to Air India, dated January 23, 1985, confirmed
the contract to provide 11 security officers and two security supervisors each
week to X-ray checked baggage, guard the aircraft and conduct secondary
screening of passengers and carry-on baggage.460
As of 1984, Transport Canada required that security officers:
• Be 18 years or older;
• Be in good general health without physical defects or abnormalities
which would interfere with the performance of duties;
• Be licensed as a security guard and in possession of the licence
while on duty; and
• Meet the training standards of Transport Canada consisting of
successfully completing the Transport Canada passenger inspection
training program, attaining an average mark of 70 per cent, and
undergoing refresher training within 12 months from previous
training.461
The security companies under contract with air carriers would themselves have
to meet Transport Canada requirements providing that a company:
• Was licensed in the province;
• Used a comprehensive training program which had been approved
by Transport Canada and was capable of being monitored and
evaluated;
• Kept records showing the date each employee received initial
training and/or refresher training and the mark attained; and
• Provided supervision to ensure that their employees maintained
competency and acted responsibly in the conduct of searching
passengers and carry-on baggage being carried aboard aircraft.462
458
459
460
461
462
Exhibit P-101 CAF0603, p. 5.
Exhibit P-283, Tab 5, p. 3.
Exhibit P-284, Tab 23, p. 2.
Exhibit P-101 CAF0089, p. 18.
Exhibit P-101 CAF0089, p. 18.
�Chapter II: Threat Assessment and Response
Weaknesses of Private Security Firms
In practice, however, the security companies responsible for hiring and training
these security officers were awarded contracts on the basis of being the lowest
bidder.463 The security officers were paid minimum wage, poorly trained, and
subject to low or unspecified performance standards. As a result, there was high
employee turnover and low security motivation.
The employees of the carriers working at airports across Canada were not
subject to criminal record checks or credit checks. Private security officers were
put to work screening the public, and aircraft groomers went aboard aircraft,
without any security clearance.464 Transport Canada required its own employees
to undergo background and criminal record checks in order to obtain security
clearance. In the 1970s, Transport Canada had considered creating a program to
conduct similar security checks for all private sector airport and airline employees
with restricted area passes and access control passes. The conclusion reached
in 1979, however, was that Transport Canada lacked the authority to require
fingerprints and personnel history forms from airline and airport personnel, and
that the RCMP (including the Security Service) lacked the authority to provide
Transport Canada with information obtained through security checks. As such,
it was decided that the aviation industry companies themselves would bear
responsibility for any reliability checks.465
Mr. Chern Heed, who served as the Airport General Manager at both Vancouver
and Pearson Airports, testified about the great ease with which a restricted area
pass for an airport could be obtained under this system in 1985. According to
Heed, “…basically the security pass, or the airport restricted security pass was
issued on the face of the company. So if your employer said you worked for ABC
company, and referred the application to the airport manager, he was issued
a restricted area pass.”466 That is to say, if the employer, which did not conduct
security checks of its employees, requested a pass granting that employee
access to the restricted areas of the airport, then it would be issued.
Examples of Security Failures
As a consequence of this system, the very personnel charged with security
or screening functions were frequently unmotivated, improperly trained,
unprofessional, or incompetent. This is exemplified in a December 1982 letter
written to the airport manager at Pearson by a member of the travelling
public concerning the conduct of the screening staff. The letter described an
experience of going through security at Terminal 2, the international terminal
at the airport. The traveller’s carry-on baggage was sent through without being
examined by the screeners, who were conversing amongst themselves “…in a
most joyous mood.” Curious to see what might actually get a reaction from the
463
464
465
466
Exhibit P-157, p. 55.
Exhibit P-157, p. 55. See also Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3649.
Exhibit P-364, pp. 5-6.
Testimony of Chern Heed, vol. 38, June 1, 2007, p. 4640.
217
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distracted security personnel, the traveller walked directly past the checkpoint,
bypassing the metal detector entirely, and attracting no attention from the
guards. He wryly told an Air Canada attendant that he could have gone through
the security checkpoint with a shotgun without notice, concluding that as a
person “…who frequently commutes that route for business reasons and being
quite aware of what is happening around the world, I must admit that being
one of the 250 passengers that night, this incident really scared the hell out of
me.”467
Paul Sheppard, the Director of Civil Aviation Security at Transport Canada, was
concerned enough to write a response to Air Canada’s Director of Security. Air
Canada contracted with Burns to provide private security guards. Sheppard
stated that the air traveller’s observations “…come as no surprise,”468 pointing
out that, in his experience, the security at Pearson’s international terminal had
been of much lower quality than the domestic terminal at the same airport.
He was concerned about the fact that the security screeners were inadequately
supervised, as this resulted not only in a very poor image, but also in poor
security.469
Transport Canada designed the training courses and materials used by the
private security companies to train security officers, and had a responsibility
to evaluate the training of screening personnel by the air carriers.470 Sheppard
conducted tests of the security personnel at both of Pearson’s terminals in 1983,
and was very concerned about the results. The tests disclosed that both the Burns
security officers and the RCMP had improperly responded to critical threats.471
The Burns employees, in particular, were poorly trained and unprepared to
diligently respond to threats and unexpected situations.
Penetration tests were conducted to assess the Burns employees’ responses
when a weapon was hidden in carry-on baggage. A briefcase containing a
weapon was taken through the security checkpoint where passengers and carryon baggage entering the departure area of the terminal were screened by X-ray
and metal detectors. The weapon was not otherwise concealed or obscured in
any of the tests, and it showed up clearly on the X-ray screen used to screen
carry-on baggage. According to the screener training which all private security
officers were required to complete, the proper response when a weapon is
found is to leave the briefcase in the machine, or set it aside, and call the police
with a silent alarm.
At Terminal I, the domestic terminal at Pearson, the screeners identified the
weapon and then became flustered. Sheppard, posing as the traveller carrying
the weapon in his briefcase, claimed to know nothing about it. The screener left
to call for a supervisor, giving Sheppard the opportunity to pick up the briefcase
467
468
469
470
471
Exhibit P-101 CAF0559.
Exhibit P-101 CAF0560.
Exhibit P-101 CAF0560.
Exhibit P-138, p. 17.
Exhibit P-101 CAF0566.
�Chapter II: Threat Assessment and Response
and take the weapon.472 Ultimately, the RCMP were signaled and responded
four minutes later. The RCMP members attended, but they did not approach in
a way that would enable the second officer to provide backup to the first.
At Terminal 2, the weapon was again identified and Sheppard again pleaded
ignorance. The guards ran the briefcase through the scanner again to show their
supervisor, who proceeded to press him as to whether he had authorization to
carry the weapon on board and insisted that he open the case. Exasperated
“…that they were going to continue to [hassle] me and never call the RCMP,”
Sheppard broke off the test and identified himself.473
Sheppard asked the Burns guards why they did not use the silent alarm to
summon the police, and they replied that they had been told to only use the
silent alarm when their lives were in danger. As he noted, their lives certainly
were in danger, given that he could have seized the weapon when asked to
remove it from the briefcase. Sheppard asked the RCMP whether they had
indeed instructed the Burns personnel not to summon them, even when they
positively identified a weapon. According to Sheppard’s report, the response
given to him by the RCMP special constables was that the Burns personnel had
been using the silent alarm far too often for trivial matters, such as oversized
bags and jokes involving weapons, and so they had been instructed not to use
the silent alarm “…unless their lives were in danger or they found a weapon
or a bomb.” Unfortunately, as Sheppard observed, “…[t]he latter part of the
communication was apparently lost along the way by all concerned.” 474
Sheppard’s review included a checklist for security matters found to be
satisfactory or unsatisfactory. It included the question, “Have the contract
security or air carrier personnel received adequate training regarding the air
carrier security program, requirements, their authorities and responsibilities,
especially in respect of removal of weapons and dangerous objects from
passengers?” The form is checked “No,” followed by the handwritten annotation
“Nor the RCMP.” 475
Other findings worthy of note from the inspection checklist included the fact
that the item “Is baggage checked only on the flight for which the passenger
has a ticket?” is checked “No”, with the handwritten annotation “Standby bags
shipped.” Additionally, the item “Is unaccompanied baggage cleared and, if
necessary, examined by a responsible employee of the air carrier prior to being
loaded aboard the aircraft?” is checked “No.” Finally, the item “Date air carrier
last tested the passenger screening system with simulated weapons. Results
satisfactory?” is checked “No.”476
Sheppard expressed his concern about the lax security posture in a letter to
the Manager of Safety and Security at Pearson Airport, writing, “Obviously a lot
472
473
474
475
476
Exhibit P-101 CAF0566, p. 1.
Exhibit P-101 CAF0566, p. 1.
Exhibit P-101 CAF0566, p. 2.
Exhibit P-101 CAF0566, p. 5.
Exhibit P-101 CAF0566, pp. 6-7.
219
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of work remains to be done, particularly with the air carriers and the private
security guard company holding the contract.”477
General Complacency about Airport Security
The difficulties in maintaining vigilant and competent security at airports
were by no means limited to the private security officers working for the air
carriers. Throughout the major Canadian airports, many employees of airlines,
and other airport tenants, resisted adopting a focused, purposeful awareness
of security issues. They contributed to the security failures through simple acts
and omissions such as leaving security doors propped open or unlocked, or
failing to display their security passes in restricted areas. In a larger sense, the
low motivation and the disregard for security measures meant that the army
of airport workers could not truly be expected to act as eyes and ears on the
ground to alert authorities to suspicious activity. Along with high staff turnover,
low pay, and minimal training, the relatively incident-free years of the early
1980s bred a sense of complacency and engendered faith in the idea that “it
couldn’t happen here.”
A May 1984 Transport Canada memorandum to its Dangerous Goods and
Civil Aviation Inspectors addressed areas of security requiring considerable
improvement at the larger airports. A number of security lapses caused concern
for the Civil Aviation Security branch, including the failure to verify that only
bona fide passengers entered the screening areas and sterile areas, and the
failure of personnel to display their identification cards when inside secure areas.
The memorandum stated that “…[w]e have been concerned that an attitude of
complacency was developing within some areas of aviation security, indeed it
was expected to develop. This is just one example of how it would surface.”478
The inspectors were directed to monitor the larger airports in their respective
regions and alert the carriers to any observed shortcomings in their security
systems. Unfortunately, such inspections would not be frequent. There were
only 11 inspectors across Canada to conduct such reviews for the roughly 70
carriers operating at the dozens of Canadian airports across the country,479
19 of which were major Class I or Class II airports.480 As the CATSA Act Review
Advisory Panel noted, they were “…thinly stretched for the tasks and breadth of
the industry they were responsible for monitoring.”481
Security at an airport relies on more than being able to detect weapons in
carry-on baggage or a timely response by police. Whenever airport staff are
inattentive, or cut corners, or cease to pay regard to security requirements, such
as prominently displaying their identification badges when accessing restricted
parts of the airport, some of the most effective defences against unauthorized
access and criminal activity are disabled.
477
478
479
480
481
Exhibit P-101 CAF0567.
Exhibit P-101 CAF0570.
Exhibit P-157, p. 22.
Exhibit P-101 CAF0638, p. 2.
Exhibit P-157, p. 22.
�Chapter II: Threat Assessment and Response
1984 Security Inspection at Pearson Airport
In April 1984, a security inspection was conducted at Pearson airport. Transport
Canada provided comments with respect to security deficiencies that required
action, and the review was discussed at a meeting of Pearson’s Airport Security
Committee on June 14, 1984. Sitting on the committee were representatives of
the airlines operating out of Pearson, along with Transport Canada and the RCMP.
All present were given a copy of the airport security review and asked to provide
comments.482 Among the issues highlighted at that meeting was the fact that
carrier personnel were leaving the security doors to the departure lounges and
aircraft bridges unlocked or propped open, allowing anyone unfettered access
to passengers and aircraft. All present were reminded that it was the airlines’
responsibility to ensure that doors were closed after a flight.483
This issue of security lapses was again the theme at the meeting of the Airport
Security Committee held on September 13, 1984, when Dale Mattson, who
chaired the meeting, reported that departure area doors continued to be found
unlocked. Also of concern was the fact that incomplete and invalid security passes
were being issued by the carriers. At the same meeting, Mattson noted that he
had not received any comments concerning the report of the Airport Security
Review held in the spring, and asked that it be given everyone’s immediate
attention, adding that responses were expected by the end of October.484
The ten Class I airports in Canada in the 1980s (the eight international airports
plus Ottawa and Dorval airports) each had Transport Canada safety and security
officers who reported to that airport’s general manager. They were required to
conduct annual security surveys to assess the airport’s security measures and
make recommendations.485 Transport Canada felt that the reviews had a great
deal of value, but acknowledged that they were not without weaknesses:
If there is a fault to be found in these surveys, it is that they
may not have the “teeth” to correct the problems when holes
are identified in the system. An example of this was one airport
which had many faults which were identified year after year
but efforts at correcting the problems were held up due to
other more pressing priorities.486
It is not surprising, then, that at the next Pearson Airport Security Committee
meeting, held in December 1984, Mattson once again pointed out that no one
on the committee had submitted any comments or responses to the Airport
482
483
484
485
486
Exhibit P-101 CAF0079.
Exhibit P-101 CAF0079, p. 5.
Exhibit P-101 CAF0080, pp. 2-3.
Exhibit P-101 CAF0654, p. 5.
Exhibit P-101 CAF0654, p. 5.
221
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Security Review.487 He emphasized that, since a number of the recommendations
would impact carrier operations, he would like to receive the comments of the
committee members as soon as possible.
General Inattention to Security Issues
One of the realities of a busy international airport is that some day-to-day
operational matters will take precedence over others. Clearly, however, the
inattention to fundamental questions of security was a deep and pervasive
failing on the part of many individuals, and changed little with time. It was a
theme repeated at airports across the country.
In April 1985, at a meeting of the Vancouver Airport Security Committee, the
Chairman expressed his concern over the use of Restricted Area Passes at the
airport, and cited the example of an employee who had pasted a picture of the
Pope on his pass and attempted to use it to gain access. On another occasion
that employee had pasted the picture of a cartoon character on his pass. The
pass was confiscated, and all representatives at the meeting were warned to
explain to their employees the serious consequences of abusing the pass
system. At this meeting, it was also observed that security gates at the airport
were being left open and unattended.488 The security measures intended to
prevent unauthorized access to restricted and vulnerable sections of the airport
were being ignored.
The security picture was no different at Mirabel International Airport (Mirabel)
in 1985. As outlined in the testimony of Daniel Lalonde, the security officers
employed by the air carriers at Mirabel were poorly trained and poorly paid.
This was despite the fact that the tasks with which they were charged, such
as properly operating X-ray scanning equipment, required attention, skill, and
diligence. Lalonde testified that most of these people were not particularly
focused on security, and he included himself in that assessment. With no prior
security experience, no training in screening checked baggage, and only one
hour of prior training for screening carry-on baggage using a different X-ray
machine, Lalonde was asked to help scan the checked baggage for Air India on
June 22, 1985. He did not know what to do, or whom to contact, when suspicious
articles of checked baggage were found.489
Brian Simpson provided illuminating testimony concerning the continuing
problems affecting the security culture at Pearson in June 1985. He testified that,
in general, the airport employees on the ground were simply not concerned
about security. Neither he nor his colleagues among the Air Canada airport
staff had any respect for airport security; they also viewed the private security
officers as “a joke.” The consensus amongst airport workers was that the private
security guards were neither authoritative nor good at their jobs. The RCMP
special constables were held in the same low esteem.
487 Exhibit P-101 CAF0082, p. 2.
488 Exhibit P-101 CAF0086, p. 5.
489 The full details of his story can be found in Section 1.11 (Pre-bombing), The Cost of Delay – Testimony
of Daniel Lalonde.
�Chapter II: Threat Assessment and Response
Security was simply not part of the daily routine for the airport crews. They were
not given any security training or motivational training that would encourage
them to make the security and safety of the airport and aircraft a part of their jobs.
Simpson testified that he himself was delinquent in displaying the identification
pass indicating that he was authorized to work in restricted parts of the airport
and aboard aircraft. He would put it in his pocket so that he did not lose it while
working. Nevertheless, he had been asked to show his pass only twice in nearly
20 years of employment at Pearson.490
In the prevailing security environment, nothing systematically prevented
airport workers from entering any part of the airport or going aboard almost any
aircraft, whatever their intentions. No records were kept of who went aboard an
aircraft or entered a restricted area, or why they did so. Simpson testified that he
boarded Air India Flight 182 on a whim on June 22, 1985, and, not only was he
not challenged or hindered in any way, but he would not have been concerned
had anyone, even his own supervisor, caught him doing so. There was no stigma
in breaking the rules, and certainly no fear of consequences for any breaches.
Simpson testified “I could have gone on every aircraft on every gate that day
and any other day and no one would bat an eye.”491
Simpson also confirmed that secure airport doors were occasionally left open at
Pearson, and that door lock codes were frequently written on the walls. Anyone
attempting to enter a secure area, even if they had no business there, might well
see the code written on the wall that would enable their entry. In addition, the
door codes were changed infrequently and were easy to guess. For example,
the bridge doors could be opened by punching in the number 4 followed by
the gate number.492
April 1985 Inspection of Air Carrier Security at Pearson
Airport management at Pearson were concerned enough by the exceedingly lax
security that, in April 1985, they conducted an inspection of air carrier security.
The tests focused on the passenger screening points for both the domestic
and international terminals, which were staffed by Burns security officers. The
inspection, which was also conducted to provide reference material for the
pending Papal visit, revealed that the security headaches at the airport continued.
It is revealing in itself that among the report’s findings and conclusions was the
recommendation that testing of security screening personnel be done on a
monthly or bi-monthly basis.493
The inspection report indicated that a number of problems resulted from
inadequate and inconsistent staffing at passenger screening checkpoints.
Without an adequate number of screeners at the checkpoints, the screeners
were distracted and forced to hurry through their duties, particularly at peak
490
491
492
493
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3650, 3681, 3697.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3649, 3694.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3643, 3677, 3682.
Exhibit P-101 CAF0603, p. 8.
223
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periods. For example, body scans of passengers conducted with hand-held
metal detectors were hurried and incomplete, averaging less than three seconds
per person.494 At one screening point in Terminal 2, only one security screening
guard out of three was actually working when the inspection was conducted.
Of the other two, one was reading a newspaper and the other was using a pay
phone.
Penetration tests conducted during the inspection revealed that inattentiveness
and rushed searches by passenger and carry-on baggage screeners continued
to result in significant security deficiencies at both terminals at Pearson. For
example, although the inspector conducting the test presented an invalid
boarding pass at the passenger screening point at Terminal 2, the security officers
allowed him to proceed without even a cursory examination of its details. As the
inspector walked through the metal detector, it sounded an alarm indicating
that there were metal objects concealed on his person. He offered to empty
his pockets, but received no response. Instead, he was quickly examined by the
hand-held “wand” type metal detector; this device also beeped, but he was not
searched further. During the subsequent briefing about the test, the guards
acknowledged not hearing the noises made by the wand.495
At the passenger screening point at Terminal I, the inspector’s boarding pass
was once again not examined, and when the walk-through metal detector
reacted with an alarm as he walked through it, he again volunteered to empty
his pockets but received no response.496 He was again scanned by a “wand” type
metal detector which beeped in response to the keys in his pocket, but he was
not searched further or asked to remove anything from his pockets.
The weapon concealed in the inspector’s carry-on briefcase was, fortunately,
detected when it passed through the X-ray scanner at the security screening
checkpoint. Unfortunately, the silent alarm for that unit had not been installed,
meaning that the security officer turned away to activate the alarm on another
unit. In the confusion that ensued, the inspector moved into the sterile area,
and the screener lost track of both where the briefcase had gone, and whether
the “suspect” was the inspector or the passenger behind him.497 The screener
then left with the RCMP in a futile search for the suspect in the sterile area
and departure rooms, while the inspector left the sterile area altogether and
returned to the main terminal. He then joined a line of passengers at the next
passenger screening point and conducted a further penetration test.
The final penetration test at Terminal I was more thorough. This time, the RCMP
were successfully summoned and arrived after three minutes, along with the
security officer from the first passenger screening point. Unfortunately, the
security officer was unable to identify the inspector as the suspicious passenger
or even the briefcase as the one with the concealed weapon in it.498
494
495
496
497
498
Exhibit P-101 CAF0603, p. 6.
Exhibit P-101 CAF0603, p. 8.
Exhibit P-101 CAF0603, p. 9.
Exhibit P-101 CAF0603, p. 9.
Exhibit P-101 CAF0603, p. 10.
�Chapter II: Threat Assessment and Response
Professor Peter St. John of the University of Manitoba is an expert on aviation
terrorism, and was critical of the security in place at Canadian airports, even
before the bombing of Air India Flight 182. He testified that, after witnessing
an assassination attempt against the Indian High Commissioner in downtown
Winnipeg, he became aware of the threat of violence posed by some radicals
within the pro-Khalistani movement.499 As he learned more about the violent
potential of the movement, which was well-funded and whose extreme
members were outspoken in their fervent hatred of the government of India, St.
John suspected that increasingly ambitious and sensational attacks lay ahead.
With the growing threat of violence from extremist members of the Sikh
community coming to the fore, and the history of terrorists targeting civil
aviation, the lax aviation security in Canada made airlines operating in Canada
a possible target for hijacking or some other threat. When asked to provide
an example of his observations of airport security during this period, St. John
testified:
I had a student working in [passenger] screening and the Prime
Minister of Canada went by him but he was so drugged [sic]
after about half an hour working that he didn’t recognize the
Prime Minister of Canada standing in front of him. And there
were little indicators like this that airport security was going
through the motions but that it wasn’t really good security.
[T]he ticket counter people were not really seriously asking
you questions about security, not even looking you in the
eye. There was just a concern about little things like that, that
people were breaking rules.… I don’t want to exaggerate
because I developed – these perceptions over a long period
of time, and I began to look much more sharply at airport
security, but at this time I was concerned about this because I
thought it was really lax.500
St. John testified that Canada’s poor security was such a concern to him that, in
1985, he began organizing a conference to be held in January 1986 to discuss
the challenges facing Canada’s aviation security system. According to St. John,
Transport Canada was dismissive of the idea for a number of reasons, including
the fact that “Nobody else was having an airport security conference.” The
conference went ahead in any case and, in an ironic twist, a hijacking took place
at Winnipeg airport while the conference was in full swing. The RCMP took over
ninety minutes to respond to the incident, which could have “…blow[n] the
whole front of the airport away, which was all glass, and it would have injured a
lot of people if it had happened.”501
499 Testimony of Peter St. John, vol. 35, May 29, 2007, p. 4230.
500 Testimony of Peter St. John, vol. 36, May 30, 2007, p. 4290.
501 Testimony of Peter St. John, vol. 35, May 29, 2007, pp. 4232-4233.
225
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Post-Bombing Security Still Lax
In the aftermath of the bombings, a July 1985 security audit of Mirabel, Vancouver
and Pearson International Airports conducted by Transport Canada revealed
that the security breaches and lax security posture continued.502 As was the
case before the bombing, these security failures were caused by inattention,
complacency, incompetence, and low security awareness.
In Toronto, the security measures designed to prevent unauthorized access to
sensitive areas of the airport were in shambles. The conclusion reached was that
many areas of the airport were vulnerable to determined or even accidental
entry. For instance, thousands of the identification passes that had been issued
to personnel, and which allowed access to restricted parts of the airport, had
been lost, stolen, or never returned, and could not be accounted for.503 The
access codes for security doors with combination locks had not been changed
since the day they were installed, as Simpson also noted in his testimony, and
the codes themselves were written on many of the doors. It was found that
credit cards could open locked access doors at the airport, that access to security
keys was not well controlled, and that the keys could be easily duplicated. The
perimeter fencing at the airport was also not up to standards,504 with barbed
wire having been improperly installed, and parts of the ground underneath the
fence washed away by a creek, with the result that it was possible to penetrate
the fence and get into the airport.
Access control to the warehouse areas of the airport was also found to be weak.
Consequently, cargo and mail could be accessed with relative ease, and the RCMP
noted that “substantial losses” were incurred each year as a result of theft.505 Of
particular concern was the inadequate control of access to the aircraft parked at
the airport. The audit report noted that “…the ability to control restricted access
is highly suspect and instances have been noted where unauthorized access to
aircraft has occurred,” and “…the access of caterers, cleaners, etc. to the aircraft
is not closely monitored.”506 The aircraft were also parked adjacent to airport
security fencing due to space constraints.
Operationally, the Airport Security Plan had not been updated since 1981,
and did not provide for a stepped response to specific threat situations.507 Of
significant concern was the fact that it did not assign specific responsibilities
within the Canadian Air Transportation Administration (CATA) for various
security tasks and a monitoring function. Additionally, the Airport Disaster Plan
also did not define responsibilities of CATA and the air carriers under various
alert situations. This caused so much confusion that, during a recent hijacking
502
503
504
505
506
Exhibit P-101 CAF0555, CAF0695; Exhibit P-457.
Exhibit P-101 CAF0555, p. 4.
Exhibit P-101 CAF0555, p. 5.
Exhibit P-101 CAF0555, p. 7; Exhibit P-457, p. 18.
Exhibit P-457, p. 20. See Section 1.9 (Pre-bombing), Mr. Simpson’s Visit to the Air India Aircraft for an
example of this lax monitoring.
507 Exhibit P-101 CAF0555, p. 4.
�Chapter II: Threat Assessment and Response
threat, the airport took 36 hours to reach full alert status while both RCMP and
CATA headquarters worked to determine the necessary responses. The state of
readiness at the airport was also called into question during this situation, as
no explosives detection dog was available and airport workers were unable to
properly interpret the readings given by the explosives detection device used
instead.
Moreover, it was found that follow-up to the regulatory inspections at Pearson
was “inadequate.”508 The Security Committee had not followed up on its 1984
security survey, and there was a lack of day-to-day monitoring of carrier and
airport security measures. Incident reports compiled by Burns Security and
RCMP officers were also not being routinely reviewed, analyzed, and acted
upon, and various penetration tests conducted had established that even the
screening of passengers and carry-on baggage did not guarantee that airport
sterile areas were completely secure.
Other problems highlighted included the fact that contracts with Burns Security
did not specify performance standards, meaning that the contract was silent on
the objectives and requirements that Burns needed to satisfy in order to fulfill its
contractual obligations to provide thorough and competent security services.
There were also prominent lapses at Vancouver International Airport, where
gates were left open and unguarded, and the perimeter fencing that surrounded
the airport was inadequate to prevent unauthorized persons from entering.509
In some areas, the fencing was shorter than required, or lacked barbed wire.
In other areas, the fencing had been damaged, and unauthorized individuals
would have no difficulty in moving underneath it. In another area, a large
quantity of soil had been piled up near the perimeter fencing making it easy to
climb the hill and get over the fence. Meanwhile, aircraft parked at the airport
were left unlocked and unsecured and “…unguarded during all hours of the
day and night.”510 RCMP patrols had identified this problem and brought it to
the attention of air carriers on numerous occasions, but the security failure
persisted.
Other security problems at Vancouver International Airport included the fact
that there had been no motivational or security training for personnel, resulting
in complacency and a lax security posture at the airport. There had not been
a proper test of the airport’s security and emergency plan in at least four
years. Although an exercise had been conducted in June 1985, it was only a
partial exercise as not all participants were available, and the exercise tested
emergency responses to a simulated crash, and not a bomb threat or other
security threat. Additionally, inspections of air carriers did not survey or address
any of their security measures, and, as a consequence, faults in the design or
implementation of carrier security programs did not come to the attention of
responsible personnel.511 Finally, as in Toronto, no formalized procedures existed
to monitor airport security measures on a daily basis.
508
509
510
511
Exhibit P-101 CAF0555, pp. 4-6.
Exhibit P-101 CAF0555, p. 1.
Exhibit P-457, p. 7.
Exhibit P-101 CAF0555, pp. 1, 3.
227
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At Mirabel, the security audit revealed that RCMP special constables and
commissionaires were not examining airport passes thoroughly. Access to the
cargo area was easily obtained. Airport personnel were not regularly wearing
their passes, and control over the security passes themselves was ineffective,
with the result that passes were not being returned and were not accounted
for, with some even being taken out of the country. Meanwhile, annual security
surveys and quality reviews were not being conducted, the security plans and
emergency procedures were out of date, and there was no integrated day-today monitoring of security measures.512 One air carrier was operating without
meeting its regulatory obligation to develop and file a security plan.
Even after the bombing of Air India Flight 182 drove home the reality that
terrorism “can happen here,” these lapses continued. Ed Warrick, the Airport
General Manager at Pearson in 1985, wrote a stern letter concerning the security
inspections conducted after the bombing. The August 1985 letter noted that
employees at Pearson were not closing bridge doors, were leaving the doors
unsecured, were setting off alarms, and were writing the codes to bridge doors
on the walls. Not surprisingly, Warrick stated, in no uncertain terms, that these
breaches were “…totally unacceptable from a security viewpoint and must
cease immediately.”513
As it turned out, the casual disregard for basic security procedures continued
unabated at the airport. A meeting of the Airport/Airline Operators’ Committee
in September 1985 included the warning from the Committee chairman that
“Airport Management is concerned with the increasing number of incidents
where aircraft bridge doors and Departure room doors are being left open and
door alarm systems turned off.” All present were urged to increase employee
security awareness and ensure that their employees kept restricted area doors
secured at all times. Failure to do so would result in Transport Canada having
all doors guarded by commissionaires, with the cost being charged to the
carriers.514
In November 1985, Warrick published a circular that was sent to all the air
carriers at both terminals, and all the ground handling agencies. It expressed
his continued frustration at the intolerable security situation.515 In the bulletin,
he noted the persisting security breaches at bridge doors and emergency exits,
and placed the blame squarely at the feet of air carrier and ground handling
agency personnel. He underscored the importance of continual vigilance, and
explained that:
Transport Canada has increased Airport Policing and Security
Detail resources in an effort to improve the level of security at
Lester B. Pearson International Airport. However, without the
512
513
514
515
Exhibit P-101 CAF0555, pp. 8, 9.
Exhibit P-101 CAF0141, p. 1.
Exhibit P-101 CAF0609, pp. 2-3.
Exhibit P-101 CAF0610.
�Chapter II: Threat Assessment and Response
active support and participation of all Airport Agencies and
their personnel in the Airport Security Program, there is no
doubt, regardless of the number of security personnel who
are employed, we will be unable to achieve and maintain an
acceptable level of security at this facility.516
Such porous security was especially undesirable in light of the fact that the
media, which expressed considerable interest in aviation security following
the bombing of Air India Flight 182, had just conducted a penetration exercise
at Pearson in September 1985. The successful infiltration of the airport by the
CBC in September 1985 did nothing to reassure the public that security had
improved. According to the minutes of the subsequent meeting of the Pearson
Airport Security Committee, the airport administration was so embarrassed by
the incident that it increased the number of security guards inside the terminal
buildings. The reporter had been able to infiltrate the sterile areas of the airport
terminal through an unguarded security door being used by passengers of an
arriving flight.517 According to the minutes, Mattson observed:
…[o]ur security system was never designed to repel terrorism
however media reports such as this, put us all in a bad
position. The chairman stated that it is the responsibility of all
airport employees to participate in the overall airport security
program. He stated that Transport Canada are preparing
training/information programs, however, these may not be
ready for some time.
He requested that all agencies should make an effort to inform
all their employees that our increased security posture can
only be attained if all participate. He furthered that Transport
Canada are open to any comments or recommendations to
improve security.518
At the meeting of the Airport Security Committee, Mattson was very concerned
about the lack of control being maintained over the access points by the air
carriers, adding that the screening personnel employed by the air carriers should
have been paying attention to the security doors while they were in use.519 A
carrier representative pointed out that at other airports, the exit doors adjacent
to the screening points were monitored by commissionaires or other security
guards, but Mattson replied that there were insufficient resources or personnel
available to cover all the doors being used by passengers from arriving flights.
In April 1986, airport security again proved to be an embarrassment to
Transport Canada and the air carriers, when members of the press successfully
penetrated the security at Mirabel and Dorval airports with concealed weapons
516
517
518
519
Exhibit P-101 CAF0610.
Exhibit P-101 CAF0704, pp. 3-4.
Exhibit P-101 CAF0704, pp. 3-4.
Exhibit P-101 CAF0704, p. 4.
229
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and explosives. These very public episodes understandably “heightened
the urgency” to improve aviation security measures at Canada’s airports,520
particularly in light of the weaknesses identified in the July 1985 security audits
at Vancouver, Pearson, and Mirabel International Airports.
Initial Steps to Enhance Airport Security
In July 1986, funding was approved by the Treasury Board for the implementation
of immediate, short-term enhancements to the identified security weaknesses,
with long-term measures to be identified later. The approved priorities included
acquiring new X-ray equipment, increasing the number of commissionaires
at airports, providing expanded security training and awareness programs to
airport employees, and retaining the RCMP deployments at the eight domestic
airports from which they were previously scheduled to be withdrawn.521
While any attempt to increase meaningful security must be commended, the
timing of these improvements faced criticism even then. Coinciding with the
April 1986 submissions to the Treasury Board for expanded funding for security
was a spring 1986 memorandum with an annex that asked a number of critical
questions about these security enhancements.
Many of the gaps in airport security were well known before
the Air India crash. What accounts for the delay in plugging
these gaps? Why does it take a media test penetration of
airport security (April 1986) to move DOT to enhance further
its security measures?
…
Why is the Pearson International Airport pass system only now
being reviewed when it was known last year that many passes
were missing, etc.?522
The Continuing Problems of Complacency and “Threat Fatigue”
There were many factors contributing to the frequent security breaches and
the lax attitude towards airport and airline security that even the bombing of
Air India Flight 182 had failed to eliminate. Arguably, the most significant of
these included the failure to create a true culture of security awareness through
regular and thorough training and testing at all levels of aviation security, and
the inexperience, low pay, and high turnover of airport personnel and security
officers.
520 Exhibit P-101 CAF0553, p. 1.
521 Exhibit P-101 CAF0553, p. 1.
522 Exhibit P-101 CAF0635, p. 2.
�Chapter II: Threat Assessment and Response
One closely related factor was the “threat fatigue” that sets in when one is called
upon to be exactingly vigilant at all times. Yves Duguay, Senior Director of Air
Canada Security and Chairman of the International Air Transport Association
(IATA) Security Committee, testified that, when staff are kept at a very high level,
in terms of security measures, for extended periods of time, complacency sets in
because this level then becomes the norm.523 Instead of being vigilant, airport
workers resume “going through the motions,” due to the perception that the
high-level measures are not producing results and are unnecessary. As Duguay
explained:
[I]f you want to have a really good security system, you cannot
rely on the security part alone. [W]e have to have the buy-in of
our employees, that’s very important, and they have to be part
the solution. [W]hen they don’t believe that a measure actually
brings any value to the system, you have to start thinking that
they might not be complying [with] the measure ….524
For these reasons, Duguay testified he was strongly in favour of security awareness
programs and training being delivered to anyone working at an airport.525 He
believed that a broad culture of security awareness was an essential part of any
functional security system.
Many of the experts who testified before the Commission were worried about
the impact of complacency on aviation security. Aviation security expert Rodney
Wallis testified that complacency was an ever-present problem, particularly
with front line security.526 This attitude was a product of the small number of
security incidents that actually took place for the average worker, leading to
inattention and an expectation that serious security threats were unlikely to
emerge. According to Wallis:
[C]an one really live with that sort of a job where nothing
ever happens? So somehow the role of the Security Manager
is to keep up the level of attention. A screening team which
was originally recommended by ICAO comprises of five or
sometimes six people. They work in a shift and they rotate.
Sometimes they’re operating the walk-through magnetometer.
Sometimes they’re observing the screen. Sometimes they’re
controlling the baggage flow through the machine, but
you have to keep rotating them in order to maintain their
attention. You also have to start introducing artificial means of
keeping them on their toes.
523
524
525
526
Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5264.
Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5276.
Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5279.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4541.
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For instance, you can screen into the VDUs an image of
a weapon or an image of something that really requires
further looking to see if they’re with you, but you’ve got to be
monitoring all the time.
It’s very difficult, you know … the routine nature of that
job is soul destroying and the task, the challenge set for
governments, set for airlines, set for airports managers,
is somehow to keep people motivated and you have to
continually devise programs to do that.527
Frontline workers benefit from being kept informed with intelligence and threat
assessments.528 This involvement facilitates a sense of purpose, making their jobs
more meaningful and contributing to heightened vigilance. The fact that most
of those on the front lines did not comprehend the threat prior to the bombing
of Air India Flight 182, and acted without purpose or focus in performing their
duties, is illustrative of the fundamental connection between providing good
information and maintaining effective aviation security.
Minimal Consequences for Security Breaches
As noted, this was a period where there were few consequences for lapses in
security. Most responsibility for aviation security had been placed with the air
carriers and private security companies, whose interest in executing meaningful
security measures was constantly balanced against budget numbers and
customer relations.529 The prevailing attitude was that, so long as there were
no major incidents and customers were happy, business could continue as it
always had.
The Aeronautics Act made it a summary conviction offence for any individual
who refused an authorized search of their person, belongings and baggage to
board an aircraft. It was also an offence punishable on summary conviction to
breach the regulations made pursuant to the Act.530 The penalties that could be
imposed on an air carrier upon conviction were relatively insignificant, however,
and there were no civil penalties, such as large fines, that could be imposed
upon air carriers as deterrents against breaches of the regulations and orders.
There was also no legal requirement for air carriers to comply with their own
security programs. As the Director of Civil Aviation noted in a meeting held
527 Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4541-4542.
528 As discussed in further detail in the present-day context in the Volume Four of this Report: Chapter III,
Section 3.4, Use of Intelligence in Aviation Security.
529 See, for example, Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4494. He testified that when
he joined the International Air Transport Association his role was “…to keep the commercial operation
going but to ensure that it operated securely.” He sought to ensure that passenger service aspects
of the airlines were not being adversely impacted by security measures by balancing the two goals
carefully. The happiness of their customers was, understandably, very important. It was only as
the threat became more pronounced that security concerns took the predominant role it has today.
530 Aeronautics Act, R.S.C. 1970, am. S.C. 1973-74, introducing s. 5.1(11). Punishment upon conviction could
result in a fine of up to $5,000, imprisonment for up to one year, or both.
�Chapter II: Threat Assessment and Response
after the bombing of Air India Flight 182, even if an inspection uncovered a
security issue, there was “…no authority to take any action (nothing between
written reprimand and death penalty).”531 These issues are discussed in detail in
Section 4.7 (Pre-bombing), Transport Canada Policy Gaps and Implementation
Deficiencies.
Poorly Trained “Security Officers”
Following the bombing of Air India Flight 182, the Government of India
announced it would hold a judicial inquiry into the disaster, headed by Justice
B.N. Kirpal (Kirpal Inquiry). The Canadian Aviation Safety Board (CASB) prepared
extensive submissions to the Kirpal Inquiry containing its analysis of the evidence.
The evidence included information obtained by the RCMP investigation, along
with the cockpit voice and flight data recorders and the forensic examinations
of the recovered bodies and wreckage. With respect to the level of security
provided by Burns, the CASB submissions referred to the RCMP investigation,
stating:
The statements taken from Burns security personnel in Toronto
indicated that a significant number of personnel, including
those handling passenger screening, had never had the
Transport Canada passenger inspection training program or,
if they had, had not undergone refresher training within 12
months of the previous training.532
As noted earlier, under the statute and associated regulations in place at that
time, individuals who had not successfully completed the training program
developed by Transport Canada were ineligible for the designation of “security
officer,” and should not have been screening passengers or baggage at the
airport. Although the training program was rudimentary, it was nevertheless
part of a consistent national standard for screening personnel. The Burns
supervisors at Pearson interpreted the requirement that screeners be trained
and qualified to mean that guards who had not received the Transport
Canada security officer training would do other jobs instead, such as working
“downstairs” examining checked baggage by X-ray.533 Such duties arguably
demanded personnel at least as qualified as a formally designated screening
officer. In practice, however, the distinction between a trained and designated
security officer and an untrained guard was not well maintained. Burns charged
Air India the same rate for “security officers” and “guards,” and apparently used
the terms interchangeably.534
531 Exhibit P-101 CAC0517, p. 5. The “death penalty” refers to the revocation of an air carrier’s operating
privileges in Canada, meaning its aircraft could no longer take off or land at Canadian airports.
532 Exhibit P-101 CAF0089, p. 9.
533 Exhibit P-101 CAF0801.
534 See, for example, Exhibit P-284, Tabs 23, 24, 34, 35, 39. Holger (“Nick”) Kordts, the Burns Branch
Manager for Etobicoke, referred to Burns providing security officers or security guards interchangeably
and paid Burns $6.90 (originally $7.00) per hour per employee.
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Many employees were merely shown the ropes by more experienced employees
and were expected to learn on the job. The statement obtained from Mohnaz
Khan indicated that he had received no training whatsoever in his four months
with Burns as a security officer, aside from “on the job” training as he worked.535
Lalonde had testified about similar ad hoc “on the job training” when he started
with Burns at Mirabel.536 Another Burns employee, Gregory Balaze, indicated
he had not taken the Transport Canada passenger screening course, and had
been instructed “…just to stand there and look for anything suspicious or
anyone suspicious who might be carrying something he isn’t allowed.”537 He
had, however, been shown how to use the X-ray scanner on the job early one
weekend and assisted in the examination of checked baggage.
Naseem Nanji, a Burns security officer who actually conducted X-ray screening
of the checked baggage due to be loaded aboard Air India Flight 182 at Pearson
on June 22, 1985, had received no training in the operation of either the X-ray
scanner provided by Transport Canada for screening carry-on baggage or the
larger X-ray scanners used to screen checked baggage. She stated, “I didn’t
receive any instructions on how to look for a bomb. I was told to look for funny
wiring or connections.” The only training she received from Burns consisted of
courses in first aid and CPR.538
Abufazal Khan, a security officer conducting passenger and baggage screening
at Pearson who had worked on Air India flights on a number of prior occasions,
provided a candid statement about his own lack of training and competence:
When I first started work with Burns Security I didn’t receive
any instruction or training about the job. After a couple of
months they (Burns) gave us an hour of classroom training
and showed us slides of what to look for in baggage, our dress
code, types of bombs to look for and also guns to look for. I
don’t believe I could tell what a bomb looked like if I saw one. I
have worked about 275 hours in the past 8 months with Burns.
I had no previous security experience prior to working for
Burns Security.539
Refresher training for Burns personnel was particularly sporadic and inconsistent.
Ann Marie Jackson, who had worked for Burns since 1983 and carried out
passenger screening duties for Air India on June 22, 1985, had not received any
refresher training in two years. She recalled taking a written test when she was
first employed, but once she started working at the airport she simply learned
535 Exhibit P-101 CAF0158.
536 Testimony of Daniel Lalonde, vol. 29, May 16, 2007, pp. 3116, 3131. When asked about how he learned
to operate the X-ray scanner used to examine carry-on baggage, he testified “Well, other officers
showed me how to activate it. It’s pretty simple. It was forward and back and that was it. Specific
training, no, I don’t recall that.”
537 Exhibit P-395, p. 57.
538 Exhibit P-101 CAF0159, pp. 1-2.
539 Exhibit P-101 CAF0157.
�Chapter II: Threat Assessment and Response
on the job. Another Burns guard, Jack Prosser, informed the RCMP that he had
taken a security test in 1982 when he worked for a different security company,
but only received formal training from Burns after the bombing.540
In his September 1985 statement to the RCMP,541 Holger (“Nick”) Kordts, the
branch manager for Burns at Pearson, said that employees did not receive the
refresher training that was mandated by Transport Canada for security officers
after twelve months. Instead, they were given pop quizzes on the job by their
supervisors. Kordts was not even aware of the 12-month refresher course
requirement, and he informed the RCMP that records had not been kept about
any refresher training or pop quizzes until just before he gave his statement.542
Employee Security Checks
As discussed earlier, the airport and airline employees at the very front lines
of security at airports across Canada were not subjected to criminal record
or security screening prior to being hired and being issued a restricted area
pass and identification card. It would not be until after the bombing, with the
publication of the Seaborn Report, that the matter of security checks would be
revisited. The Report made the recommendation that:
[I]t would be desirable for all Canadian airside employees
and others with regular access to particularly sensitive areas
of the airport and to aircraft to be subject to security and
criminal indices checks as a condition of employment….
Clearly visible and controlled identification should be worn at
all times. Airport management and the air carriers must make
it a continuing priority to inculcate in all workers the need to
maintain a high level of security awareness throughout the
airport and on the airfield.543
The recommendation that security checks be a condition of employment at
an airport was eventually implemented in 1987. Air Canada, for example, now
conducts criminal record checks for every new employee, and those requiring
restricted access at airports are also subjected to a security check going back five
years.544 In general, a company desiring a pass for its employee is now required
to submit his or her fingerprints and a personal history form to Transport
Canada. With this information, the RCMP conducts a criminal indices check, and
CSIS conducts a security check.545 Transport Canada initially conducted a credit
check during this process, but discontinued that practice in 2007. Members
of the CATSA Act Review Advisory Panel have expressed considerable concern
about the security consequences of this decision.
540
541
542
543
544
545
Exhibit P-395, pp. 39-40, 45-46.
Exhibit P-101 CAF0538.
Exhibit P-101 CAF0538, p. 11.
Exhibit P-101 CAF0039, p. 8.
Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5287-5288.
Testimony of Chern Heed, vol. 38, June 1, 2007, pp. 4640-4641.
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The lack of security clearance checks for airport and air carrier employees proved
to be more than a theoretical security risk. A similar security problem existed at
Vancouver International Airport, where the bags containing the bombs were
placed on an aircraft on June 22, 1985. At that airport, Dynamic Maintenance
had been contracted to clean the premises. Following the bombing of Air India
Flight 182, CSIS checked the names of 159 Dynamic employees at the airport
to assess security risks. They found that multiple individuals among the airport
janitorial staff, who had wide access to the airport and could move about
virtually unnoticed, had connections to extremist Sikh organizations. The search
found seven employees with associations with the Babbar Khalsa, and four with
the International Sikh Youth Federation.546 In fact, CSIS determined that Ajaib
Singh Bagri’s brother was an employee of Dynamic at Vancouver International
Airport.547 CSIS concluded that it would have been easy for these extremist
organizations to have “almost unlimited access” to the airport.548 The staff were
not security-screened to work at the airport, and could go nearly anywhere in the
airport unchallenged once they received their pass tags and keys.549 Moreover,
the RCMP indicated to CSIS that they felt there was a good chance the Dynamic
cleaners were involved in criminal activity.
Regarding the implications of this security failure, CSIS wrote:
It is clear that this may not be the only non-cleaning
activity the staff are involved in. In addition to being able to
circumvent security checks, cleaning staff could be used as
couriers or go betweens for political or criminal purposes….
Considering the Canadian Governments [sic] stated aim
to tighten airport security, the present lapse at VIA could
prove embarrassing and fatal, particularly if any DYNAMIC
staff become implicated in an incident similar to Air India
Flight 182…. and it would be interesting to see if similar
results would be achieved if checks were carried out at other
International airports but it is still only recognition of what
could be a serious problem and not a solution.550
The “…lax hiring practices of the airport community” also caused consternation
at Pearson in the months after the bombings. The screening failures became
evident when four employees of an air carrier operating at Pearson were
arrested as illegal immigrants. The Immigration Canada representative lectured
the carriers on the risk that “…because of the increased security situation,
employment of illegal immigrants could prove costly and embarrassing,” adding
that “…some of these people could have criminal records.”551
546
547
548
549
550
551
Exhibit P-101 CAB0681, p. 4.
Exhibit P-101 CAA0418, p. 2, CAB0601, p. 1.
Exhibit P-101 CAB0681, p. 4.
Exhibit P-101 CAB0681, p. 4
Exhibit P-101 CAB0681, p. 5.
Exhibit P-101 CAF0704, p. 5.
�Chapter II: Threat Assessment and Response
Security Culture Slow to Change
In the weeks and months following the Air India bombing, Transport Canada,
and the Government of Canada as a whole, worked quickly to improve aviation
security. Immediately following the bombings, a tough new Ministerial Directive
was issued for all flights to Europe or Asia, requiring that all checked baggage
be physically inspected or X-rayed, all cargo be held for 24 hours unless it was a
perishable item from a known shipper, and all passengers and carry-on baggage
be fully screened.552 The amended Aeronautics Act came into force on June 28,
1985, with updated aviation security regulations following in December 1985.
It would be a mistake, however, to suggest that a new culture of strict and
uniform security was widely embraced immediately after the bombings,
whether one looks at the conduct of airport workers and security guards being
paid minimum wage, or the executives of the air carriers themselves.
The Air Transport Association of Canada made extensive submissions to the
Government of Canada concerning the emergency measures imposed on June
23, 1985, calling the measures “excessive,” and seeking a resumption of the prebombing security regime as the standard set of aviation security requirements
under normal conditions.553 Rodney Wallis, who was the Director of Security
for IATA between 1980 and 1991, expressed his opinion to the Director of Civil
Aviation Security for Transport Canada in September 1985 that Canada had
“overreacted” by issuing the strict Ministerial Directive, particularly with regard
to the hold on cargo.554 He testified that the emergency measures “…didn’t go
down well” with the carriers because they were causing departure delays of
several hours per flight, with each hour of delay costing between $10,000 and
$18,000 in 1985 dollars for a large jet aircraft.555
The carriers emphasized that they supported the imposition of reasonable
security measures, but preferred a stepped response based on intelligence and/or
risk assessments, rather than imposing tough screening requirements uniformly.
This reluctance was understandable. The delays caused by searches of checked
baggage and cargo holds were raising operational costs and inconveniencing
passengers, and the industry anticipated “major economic problems” if the
average three-hour delay per aircraft continued.556 This reflects a recurring
tension in aviation security between the airlines’ interests in minimizing costs
and inconvenience to passengers, and interests in robust security measures
which will require time and money. Although it can be debated whether the
government struck the appropriate balance in the aftermath of the Air India
bombing, it is undeniable that the pre-bombing system was deficient and that
the government has a legitimate role in requiring airlines to invest in security
measures.
552
553
554
555
556
Exhibit P-101 CAF0595.
Exhibit P-101 CAF0602, pp. 3-4.
Exhibit P-101 CAF0606, p. 1.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4481.
Exhibit P-101 CAF0441, p. 6.
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Conclusion
What remains is that the system, as it stood on June 23, 1985, utterly failed to
prevent the bombing. There could be no justification for returning to a system
of voluntary security measures dependent upon unmotivated, poorly trained
and poorly paid security and airport personnel for its delivery and effectiveness.
Human, regulatory, and intelligence failures had all contributed to the tragedy. A
more robust aviation security regime was required; one which included greater
monitoring, compulsory and uniform standards, and the promotion of security
awareness
�VOLUME TWO
PART I: PRE-BOMBING
CHAPTER III: WHAT WENT WRONG?
3.0 The CSIS Act
This section provides a general overview of the Canadian Security Intelligence
Service Act1 (CSIS Act) and an in-depth look at some of the key sections of the
CSIS Act.
The government’s decision to create a new civilian intelligence service was
rooted in the scandals that had plagued the RCMP Security Service (SS) and
the resulting McDonald Commission2 into those activities. The result was a new
organization and a new act, the CSIS Act, which propelled a change in culture,
dramatically affecting CSIS operations and administration and the overall
relationship between intelligence and evidence in Canada.
[W]e arrived at the CSIS Act in 1984, which … gave it a
legal mandate and provided for review and accountability
mechanisms.3
On June 21, 1984, the CSIS Act was passed. The legislation created a framework
for CSIS, a service without police powers and separate from the RCMP. It granted
CSIS an explicit statutory charter, something that was rare among western
democracies at the time.4 The CSIS Act granted sole responsibility for security
intelligence investigations to CSIS. It also imposed a requirement of obtaining
judicially authorized warrants in order to employ the use of intercepts. CSIS
was not given any enforcement powers.5 Finally, the CSIS Act created two new
review bodies for CSIS. The Security Intelligence Review Committee (SIRC) was
established to provide external review and the Inspector General (IG) position
was established to provide internal review. The role of these review bodies
1
2
3
4
5
R.S.C. 1985, c. C-23.
Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom
and Security under the Law, Second Report – vol. 2 (Ottawa: Supply and Services Canada, 1981)
[McDonald Commission, Freedom and Security under the Law].
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1434-1435.
Since 1975, the RCMP Security Service had drawn its mandate from a broadly worded Cabinet
directive. Prior to that, the RCMP Security Service derived its authority from the power given to the
Governor-in-Council in the RCMP Act to assign functions within the Force.
Philip Rosen, “The Canadian Security Intelligence Service”, revised January 24, 2000, online: Parliament
of Canada http://www.parl.gc.ca/information/library/PRBpubs/8247-e.pdf (accessed October 27, 2009).
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Volume Two Part 1: Pre-Bombing
was to act as watchdogs to ensure that CSIS activities remained within the law,
to avoid a previous problem of the RCMP SS as highlighted by the McDonald
Commission.
The CSIS Act attempted to address the twin requirements of security and
democracy, as recommended by the McDonald Commission. Geoffrey O’Brian
described security intelligence agencies as having four parts: “…mandate,
powers, controls and review.” The mandate and powers allow for what you can
investigate and how. The controls and review deal with “the requirements of
democracy,” ensuring that the Service acts according to what society wants and
within “the norms of society.”6
Key Sections of the Act
The CSIS Act has a number of key sections:
Section 2
Section 2 of the CSIS Act contains the relevant definitions for the Act. Of particular
note is the definition of threats to the security of Canada which defines CSIS’s
mandate:
“threats to the security of Canada” means
(a) espionage or sabotage that is against
Canada or is detrimental to the interests
of Canada or activities directed toward or in
support of such espionage or sabotage,
(b) foreign-influenced activities within or
relating to Canada that are detrimental
to the interests of Canada and are
clandestine or deceptive or involve a
threat to any person,
(c) activities within or relating to Canada
directed toward or in support of the
threat or use of acts of serious violence
against persons or property for the purpose
of achieving a political, religious or
ideological objective within Canada or a
foreign state, and
6
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1542.
�Chapter III: What Went Wrong?
(d) activities directed toward undermining
by covert unlawful acts, or directed
toward or intended ultimately to lead to
the destruction or overthrow by violence
of, the constitutionally established system
of government in Canada,
but does not include lawful advocacy, protest or dissent, unless carried on in
conjunction with any of the activities referred to in paragraphs (a) to (d).
The definition in the CSIS Act above is relatively short, in comparison, for example,
to the three page long definition of “terrorist activity” found in the Anti-terrorism
Act.7 While the definition in the CSIS Act does overlap with criminal acts such as
espionage, or the use of acts of serious violence, the definition also encompasses
activities which are not crimes or may not be considered crimes.8
CSIS is therefore mandated to investigate a broader spectrum of threats than
those covered by criminal legislation, and yet terrorism, as well as other activities
considered criminal, also falls within CSIS’s threat definition. This therefore
results in an overlap in mandates between CSIS and the RCMP.
Section 6
Section 6 of the CSIS Act bestows authority of direction of the Service on the
Director of the Service “…under the direction of the Minister.” Section 6(2)
provides that the Minister may issue directives to the Service as a means of
providing that direction. According to Reid Morden, who served as a Director
of the Service, the independence of CSIS was “…carefully calibrated by the fact
that the Act deliberately gives the Minister direct oversight and supervision of
the Service.”9
Section 12
Section 12 of the CSIS Act provides the legislative authority for CSIS to retain the
information it gathers. It also contains an important and controversial qualifier
in the term “strictly necessary”:
The Service shall collect, by investigation or otherwise, to
the extent that it is strictly necessary, and analyse and retain
information and intelligence respecting activities that may on
reasonable grounds be suspected of constituting threats to the
security of Canada and, in relation thereto, shall report to and
advise the Government of Canada.10
7
8
9
10
S.C. 2001, c. 41. See Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, p. 1529.
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, p. 1529.
Testimony of Reid Morden, vol. 88, December 4, 2007, p. 11458.
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, s. 12 [CSIS Act].
241
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Volume Two Part 1: Pre-Bombing
CSIS understood this qualifier to respond to concerns by the McDonald
Commission about the RCMP Security Service practices in collecting and
retaining information on Canadians indiscriminately.11
Section 12 permits CSIS to collect information which it then turns into
intelligence. It is from this section that CSIS developed policies, not only with
regard to the retention of intelligence, but equally importantly, for dealing with
evidence. This led to a de facto prohibition on CSIS collecting evidence, and
eventually to policies that led to information that might be considered evidence
being routinely erased, notably intercepts and intelligence officer notes.12 It was
due to the absence of any mention of evidence in s.12 that Archie Barr wrote
the oft-quoted memo stating that it would no longer be CSIS policy to retain
evidentiary recordings:
As the CSIS Act contains no requirement for collection by
the Service of information for evidentiary purposes, no such
capacity will be provided for within CSIS facilities.13
The correct interpretation of this section was debated throughout the Inquiry.
CSIS witnesses consistently maintained that the “strictly necessary” qualifier
applied to what CSIS can “analyze and retain” as well as “collect”:
One of the outcomes of the McDonald Royal Commission, was
a concern that was shared by the government that the new
organization, the new Security Intelligence organization would
have strict limits on what it could collect – what it collected
in terms of private information on Canadians. So there were
statutory limitations placed upon what we could collect and
what we could retain. And the section of the Act specifically
says that we can – we could only collect and retain information
that is strictly necessary in our effort to advise government
on threats to the security of Canada. So that was a very, very
distinct and strong limitation on what we could do with our
information.14
The Supreme Court of Canada, in Charkaoui,15 has definitively rejected this
interpretation, pointing out that both grammatically and logically “strictly
necessary” in s.12 refers only to collecting, and not to analysis or retention.
Nevertheless, historically, SIRC accepted and supported the CSIS interpretation
that limited its ability to retain information. Consequently, 800,000 files inherited
from the RCMP Security Service were disposed of by CSIS in due course.16
11
12
13
14
15
16
Testimony of Reid Morden, vol. 88, December 4, 2007, p. 11430.
Testimony of Reid Morden, vol. 88, December 4, 2007, p. 11430.
Exhibit P-101 CAA0040.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6119-6120.
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326.
Testimony of Kent Roach, vol. 81, November 22, 2007, p. 10395.
�Chapter III: What Went Wrong?
In retrospect, some senior CSIS members, including James (“Jim”) Warren, have
questioned the extreme focus placed on s.12, the “strictly necessary” qualifier
and the overly cautious limitation to collect only intelligence:
[T]he pendulum perhaps had swung too far and maybe we
were being overly sensitive to this issue and overly cautious …
generally pervading the service of the day – was this idea that
we had to pay a lot more attention to things like the privacy of
Canadians … and especially those that weren’t suspected of
being involved in subversive activities.17
Section 18
Section 18(1) reflects the continued emphasis on secrecy that carried over from
the RCMP Security Service to CSIS. It states that CSIS is not permitted to disclose
information collected and, in particular, prevents the disclosure of the identity
of CSIS human sources and CSIS employees involved in covert activities.
Section 18(2) does contemplate that CSIS information may need to be disclosed
to law enforcement, though read in conjunction with s. 19(2), CSIS is vested with
the discretion to disclose through the use of the word “may.”18
Section 19
Section 19 of the CSIS Act provides the legislative authority for CSIS to lawfully
disclose information it has collected.19 Information collected by CSIS may not
be disclosed unless disclosure is required for the fulfillment of its duties, namely
threat-related advice to the Government of Canada (section 12), security
screening and security advice to the immigration and citizenship program
(sections 13 to 15), and foreign intelligence information (section 16). CSIS needs
to disclose this type of information to the government in order to fulfill its
mandate.
Section 19(2) also outlines circumstances in which information collected, that is
not specifically related to the CSIS mandate, may also be disclosed. Of particular
note is section 19(2)(a), which provides for the passage of information from
CSIS to law enforcement; an issue of great concern throughout the Air India
investigation. The section notes that information gathered by CSIS may have
value to law enforcement and that it “…can lawfully disclose that information
to the relevant police force and prosecutors” despite the secrecy mandated in
s. 18:20
17
18
19
20
Testimony of James Warren, vol. 48, September 19, 2007, p. 5941.
Testimony of Kent Roach, vol. 80, November 21, 2007, pp. 10230-10231.
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1555.
Testimony of Kent Roach, vol. 80, November 21, 2007, pp. 10230-10231.
243
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Volume Two Part 1: Pre-Bombing
The Service may disclose information … where the information
may be used in the investigation or prosecution of an
alleged contravention of any law of Canada or province, to
a police officer having jurisdiction to investigate the alleged
contravention and to the Attorney General of Canada and the
Attorney General of the province in which proceedings of the
alleged contravention may be taken.21
Section 19(2)(b) is similar to s. 19(2)(a) except that it refers to CSIS information
relating to international affairs. Similarly, s. 19(2)(c) is in relation to CSIS
information of interest to national defence.22
Because s. 19(2) is permissive through the use of the word “may”, the question of
when information should be passed soon became a hotly debated issue. Policy
and operational requirements are at the heart of the problem. The actual CSIS
response depends on a CSIS-only analysis of “…when is it appropriate to pass
information of that nature, in what circumstances are there policy reasons for
doing so,” and whether there are “…operational reasons for doing so.”23 What is
clear is that, despite the Pitfield Committee’s description of the stark dichotomy
between intelligence and evidence, the CSIS Act has always contemplated a
relationship between intelligence and evidence and there has never been a
“statutory wall” between the two.24
Section 21
Section 21 of the CSIS Act provides for the Service’s warrant powers. The section
makes clear that every warrant must first receive approval by the Minister and,
once that approval has been received, the warrant application must be brought
before a judge of the Federal Court.25
Review Bodies
Part III of the CSIS Act provides for review bodies, which are designed to make
sure that CSIS acts within the law. These review bodies were created by the CSIS
Act and did not exist in any form within the old RCMP Security Service.
The system created is one of review and not oversight. Oversight implies
inspection of current operations and involvement in the critique of current
operations. Instead, the CSIS Act created the SIRC and the Inspector General
(IG)’s office to look retrospectively at CSIS’s performance. The idea of the review
programs was to allow the Minister to be held more accountable without deeply
involving the Minister in all the operational details.26
21
22
23
24
25
26
CSIS Act, ss. 19(2), 19(2)(a) [Emphasis added].
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, pp. 1555-1556.
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1557.
Testimony of Kent Roach, vol. 80, November 21, 2007, p. 10231. See Volume Two of this Report: Part 1,
Pre-Bombing, Chapter III, What Went Wrong?, for a full discussion of these issues.
The definition of “judge”, for the purpose of the CSIS Act, is found in section 2 of the Act.
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1438-1439.
�Chapter III: What Went Wrong?
The IG’s office, an internal mechanism, was specifically created in order to
provide the Minister’s office with “…better insight into the operations.”27 An
important aspect of the CSIS Act is the frequent mention of the Deputy Minister.
Rarely is the role of a Deputy Minister mentioned in legislation.28 In the CSIS
Act, the Deputy Minister is given a leading role in what seems to be an effort
to temper any partisan politics in the exercise of political control over CSIS
operations. According to the CSIS Act, the Deputy Minister is to be consulted
on operational policies.29 As well, the Deputy Minister must be consulted on
warrant applications.30 Under s. 30, the IG reports to the Deputy Minister. The IG
provides an annual certificate to the Minister that is meant to certify that CSIS is
complying both with the law and with ministerial directives.31
On the other hand, SIRC, an external mechanism, is “…an independent, external
review body which reports to the Parliament of Canada on the operations of
[CSIS].”32 SIRC’s role is to monitor CSIS’s compliance with the CSIS Act. SIRC is
comprised of members of the Queen’s Privy Council for Canada who are not
members of the Senate or the House of Commons.33 They are appointed through
a process of all-party consultation in the House of Commons. SIRC is intended to
strengthen parliamentary accountability by reporting to the Minister. SIRC also
plays the important role of informing the public about the actions of CSIS.34
Security Offences Act
To understand the roles and responsibilities of CSIS vis-à-vis the RCMP, it is
important to understand the Security Offences Act.35
The Security Offences Act was passed at the same time as the CSIS Act and also
arose out of the changes recommended by the McDonald Commission.36
Though the CSIS Act removed the security intelligence duties from the RCMP
and gave them to CSIS, the Security Offences Act granted the RCMP significant
duties in relation to criminal investigations regarding national security criminal
offences.37
A comparison and analysis of the CSIS Act in conjunction with the Security
Offences Act show that “overlapping jurisdiction” has always existed between
the two agencies in relation to terrorism investigations.38
27
28
29
30
31
32
33
34
35
36
37
38
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1439.
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, p. 1534.
CSIS Act, s. 7(1).
CSIS Act, s. 7(2).
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1439.
Online: Security Intelligence Review Committee <http://www.sirc-csars.gc.ca/index-eng.html>
(accessed October 27, 2009).
CSIS Act, s. 34(1).
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1439, 1463.
R.S.C. 1985, c. S-7.
Testimony of Kent Roach, vol. 80, November 21, 2007, pp. 10233-10234.
Security Offences Act, R.S.C. 1985, c. S-7, s. 6 [Security Offences Act].
Testimony of Kent Roach, vol. 80, November 21, 2007, p. 10235.
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Volume Two Part 1: Pre-Bombing
Section 2(a) contemplates RCMP investigation of actions, mainly Criminal Code
offences, falling within the definition of threats to the security of Canada as
defined by the CSIS Act:39
2. Notwithstanding any other Act of Parliament, the Attorney General
of Canada may conduct proceedings in respect of an offence under
any law of Canada where
(a) the alleged offence arises out of conduct constituting a
threat to the security of Canada within the meaning of
the Canadian Security Intelligence Service Act, or
The Security Offences Act also provides the Attorney General of Canada with a fiat
that “…establishes the exclusive authority of the Attorney General of Canada.”40
Finally, the Security Offences Act recognizes that the RCMP has “the primary
responsibility” in relation to offences that also constitute a threat to the
security of Canada.41
3.1 Internal CSIS Structure
The primary mandate of CSIS was to collect, analyze and disseminate intelligence
to advise the Government of Canada on threats to national security. The RCMP,
along with Ministers and other government agencies, relied on CSIS threat
assessments to develop appropriate policy and operational responses to any
national security threats.
The Commission investigated the adequacy of the CSIS threat assessment
process in the period leading up to the Air India and Narita bombings. The
questions asked were:
• How was CSIS organized?
• What did CSIS know?
• What went wrong?
This chapter presents the answers to these questions as uncovered by the
Commission’s investigation into the Government’s action in the pre-bombing
period.
How Was CSIS Organized? CSIS Threat Assessment Structure
CSIS was a highly centralized organization with a specific mandate to investigate
and advise the Government of Canada on threats to the security of Canada.
39
40
41
Testimony of Kent Roach, vol. 80, November 21, 2007, pp. 10233-10234.
Security Offences Act, s. 4.
Security Offences Act, s. 6.
�Chapter III: What Went Wrong?
CSIS Headquarters (HQ) coordinated overall CSIS investigations by developing
operational policies and setting annual intelligence requirements. The regional
offices undertook the intelligence collection efforts to meet these requirements
but had relative autonomy over the assignment of resources for this purpose. HQ
was responsible for maintaining a centralized intelligence database to ensure
that intelligence collected from various sources on related investigations was
properly assembled.
Solicitor General, Director and Executive Committee
and senior management
Setting of annual intelligence requirements,
policies, guidelines and procedures
Target Approval
and Review
Committee
Review and
approval
of all CSIS
investigations
HQ Sikh Desk
BC Region CT Unit
Tasking Regions, integration of intelligence from
various sources (including the Regions),
management of centralized intelligence
database (NSR)
Collection of intelligence to meet the intelligence
requirements; entry of all intelligence into
centralized intelligence database (NSR)
Security Liaison
Officers
Foreign
Partners
Other Government
Departments
CSIS Sikh Desk
Drafting of threat assessments
on the basis of intelligence received
from all sources
Regions
share all
intelligence
with HQ
Desks (NSR)
Sikh Desk
Intelligence
Officers
Communications
Intelligence
Production Unit
Physical
Surveillance
Unit
BC Region Sikh Desk
Drafting of situation reports and
warrant applications. Entry of
all reports into the centralized
database, Narrative Storage and
Retrieval (NSR)
CSIS TA Unit
Dissemination of threat assessments
to entities outside of CSIS (mainly to
the RCMP P Directorate)
RESPONSE
DISSEMINATION
ASSESSMENT
COLLECTION
TASKING
The roles and responsibilities of the various units involved in the CSIS assessment
of the threats of Sikh extremism in the pre-bombing period are described below,
with a focus on each unit’s role in each component of the intelligence cycle:
tasking, collection, analysis and dissemination.
Figure 1: Organization of CSIS Units involved in Sikh Extremism
Investigation
247
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Volume Two Part 1: Pre-Bombing
Solicitor General
The Solicitor General provided guidance and oversight over “tasking” priorities
for CSIS operations. The security intelligence activities of CSIS operated under
political control, as recommended by both the McKenzie and McDonald
Commissions:
Two Royal Commissions in the past fifteen years … concluded
that security intelligence work was different from law
enforcement and that security intelligence activity needs more
government direction than is appropriate for police work.
Police have in the criminal law, as CSIS has in statute, clear
direction from Parliament as to their proper targets; but the
job of the police, in every case, is to seek to gather evidence,
lay charges and bring matters before the Court. So far as police
work is concerned the laying of charges normally can and
should take place without government direction.
Security intelligence investigation in relation to a particular
target is often long-term and recourse to the criminal courts is
only one of a number of possibilities for dealing with a threat.
The ultimate choice of the method of dealing with any threat
must be the responsibility of the Government. Government
direction is also required in relation to the attitude to be taken
towards various foreign governments and agencies in a rapidly
changing international environment.42
The CSIS Act enshrined political accountability. Ministerial approval was a
requirement for all CSIS warrants, which authorized CSIS’s most intrusive
investigative techniques.43 The Solicitor General could issue directions to
the CSIS Director regarding the control and management of CSIS.44 The CSIS
Director was directed to consult with the Deputy Solicitor General on CSIS’s
operational policies and investigations.45 Ministerial approval was also required
for all cooperative agreements between CSIS and other Canadian government
and foreign agencies.
The Solicitor General position was filled by the Honourable Robert Kaplan from
March 3, 1980 to September 16, 1984 and by the Honourable Elmer MacKay
from September 17, 1984 to August 19, 1985. Minister Kaplan issued three key
Ministerial Directives:
42
43
44
45
Exhibit P-101 CAF0030, p. 1.
CSIS Act, s. 21.
CSIS Act, s. 6(2).
CSIS Act, s. 7.
�Chapter III: What Went Wrong?
(a) the 1980 Directive on tape retention policy;
(b) the 1984 Directive on the division of CSIS and RCMP
responsibilities after CSIS’s creation; and
(c) the 1984 Directive advising that all RCMP SS Directives,
policies and guidelines not inconsistent with the CSIS
Act were to remain in effect.46
Minister MacKay was involved in several post-separation issues. In general,
however, the department of the Solicitor General issued general policies and
left the RCMP and CSIS to work out the operational details of implementing
these policies on their own.
Target Approval and Review Committee
The Target Approval and Review Committee (TARC) was responsible for
assessing and approving all CSIS targets and, in doing so, acted as an approval
body for CSIS’s collection efforts. The Committee included the CSIS Director, the
Deputy Director National Requirements, legal staff and representatives from the
Solicitor General’s office. The TARC would consider whether the investigative
means chosen were proportional to the gravity and imminence of the threat.
Care was taken to balance the intrusiveness of the investigation with respect
for the rights and freedoms of those being investigated. The TARC would also
consider whether resources were available for the processing of the warrant.47
This system ensured a measure of political oversight, right from the start, for all
CSIS investigations against organizations and individuals. All CSIS targets were
thus considered and approved by very senior management, a process that,
although time-consuming and bureaucratic, ensured the political oversight
that the McKenzie and McDonald Commissions had envisioned.
CSIS Director and Senior Executive Committee at HQ
The CSIS Director and the Senior Executive Committee, consisting of five deputy
directors, were responsible for setting the tasking priorities for CSIS, as well as
for providing tasking guidance for the collection, analysis and dissemination of
CSIS’s intelligence product.
At the head of CSIS was the Director, who reported to the Solicitor General and,
in the original structure of CSIS created by the Security Intelligence Transition
(SIT) Group, was supported by five deputy directors.
46
47
Exhibit P-101 CAA0812. These Ministerial Directives are Exhibit P-101 CAA0011, CAA0081 and CAA0091
respectively.
Exhibit P-437: Statement of Archie Barr, p. 5; Exhibit P-101 CAD0003, p. 8.
249
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Volume Two Part 1: Pre-Bombing
Ted Finn
CSIS Director
Archie Barr
Deputy Director
National
Requirements
(DDR)
H. Brandes
Deputy Director
Intelligence
Production
(DDI)
R. Lee
Deputy Director
Regional
Operations and
Liaison (DDO)
W.C. McIvor
Deputy Director
Administrative
(DDG
Administrative)
M. Spooner
Deputy Director
Services (DDG
Services)
Various units
(see CSIS HQ CT
organizational chart
Various units
Various units
Various units
Various units
Figure 2: Organization of CSIS HQ Executive Committee
*Highlighted units were involved in the Sikh extremism investigation.
The first CSIS Director, Ted Finn, was a civilian with no operational intelligence
experience, unlike his five deputy directors who had risen up through the RCMP
SS ranks. The five deputy director structure was considered important to ensure
Finn was properly supported, while avoiding concentrating power in the hands
of one deputy director who could effectively usurp Finn’s role.
One of the structures of the CSIS hierarchy was that there
were five Deputy Directors with purposely overlapping
responsibilities. Among other things, this reflected the concern
that the ex-RCMP officers being appointed as Deputy Directors
might effectively usurp the duties of the civilian Director. No
one Deputy Director therefore had complete control of any
sphere of operations.48
This “overlapping” executive structure did, however, create difficulties, as
responsibility for various functions remained unclear. The role of the Deputy
Director of National Requirements, Archie Barr, became so important that Barr
soon became the de facto lead deputy director.49
In 1984-85, the CSIS HQ Senior Executive Committee had the following primary
responsibilities:
48
49
Exhibit P-437: Statement of Archie Barr, p. 5.
Today that position is called the Deputy Director Operations (DDO).
�Chapter III: What Went Wrong?
• Setting of annual Intelligence Requirements (IRs), as assigned to the
CSIS Director,50 under the direction of the Solicitor General.51 Archie
Barr, the Deputy Director of National Requirements was responsible
for determining the intelligence targets that CSIS would focus on.
Ray Lees, the Deputy Director, Regional Operations and Liaison was
responsible for ensuring that the regional investigations did in fact
meet the national IRs.
• Development of policies, procedures and guidelines (including the
conversion of those inherited from the RCMP SS) to enable CSIS to
carry out its mandate as defined by the CSIS Act.
• Ensuring that the Government of Canada received timely and
relevant advice on threats to the security of Canada. H. Brandes,
the Deputy Director of Intelligence Production, managed the units
responsible for producing and disseminating assessed intelligence
to various users. The assessed intelligence could take many forms,
including briefings to advise Ministers and threat assessments
to inform the operational responses by the RCMP and other
government departments, both formal and informal.
CSIS HQ Counter Terrorism (CT) Units
CSIS HQ Counter Terrorism (CT) Units had the primary role of integrating and
analyzing intelligence collected by CSIS and its partners for the production
of threat assessments. The CT Units were also responsible for ensuring the
HQ tasking priorities were met by the Regions and for assisting the Regions’
collection efforts by developing operational guidelines and supporting the
Regions’ applications for approval of various investigative powers.
All CSIS CT investigations were managed by Mel Deschenes, the Director General
of CT. Deschenes reported directly to Archie Barr and was supported by three
Section Heads who managed the work of numerous CT intelligence analysts.
50
51
Section 6(1) of The CSIS Act grants the CSIS Director, under the direction of the Minister, control and
management of CSIS and all matters connected therewith. The CSIS Director in 1985 was Ted Finn.
Section 6(2) of The CSIS Act grants the responsible Minister the power to issue to the CSIS Director,
written directions with respect to CSIS. At the time of the Air India bombing, the responsible Minister
was the Solicitor General. In the present day, the responsible Minister is the Minister of Public Safety.
251
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Volume Two Part 1: Pre-Bombing
Ted Finn
Director
Archie Barr
Deputy Director National Requirements
J.A. Venner
Director General Counter
Intelligence
Mel Deschenes
Director General Counter
Terrorism
Chris Scowen
Chief, Middle East Section
Russell Upton
Chief, Western Europe
and Far East Section
Western Europe Desk
Bob Burgoyne
Analyst, Sikh Desk
Glen Gartshore
Far East (Sikh) Desk
Bill Dexter
Analyst, Sikh Desk
(filled March 25, 1985)
Other Operational Units
Other CT section
South America &
Caribbean Desk
Yugoslav Desk
Dan Godbout
Analyst, Sikh Desk
(filled May 31, 1985)
Figure 3: Organization of CSIS HQ CT Units on Sikh Extremism
Investigation
Barr was actively involved in the operation of CSIS’s CT investigations. Barr was
responsible for developing operational policy and managing several operational
divisions, including Counter-Intelligence (CI), CT, technical communications and
foreign liaison. Barr had been involved with the SIT Group and was committed
to ensuring CSIS operated in a manner that respected its new mandate. He was
an active manager, involving himself in adjusting CSIS’s practices to meet the
new, more-intensive warrant requirements, and personally presented warrant
applications to the Federal Court.
As Director General (DG) CT, Deschenes’s portfolio was extensive, covering all
counterterrorism investigations undertaken by CSIS. The CT investigations were
divided into three geographic areas, each with its own Chief. Chris Scowen,
Chief of the Middle East Section was the de facto lead Deputy DG CT, although
this would not be formalized until August 1985. Scowen would fill in as the
Acting DG CT whenever Deschenes was not available.52 Deschenes was, in fact,
absent during the week prior to the bombing. Accordingly, many, if not most, of
the operational policy decisions in relation to the Sikh extremism investigation
were made by Scowen (not Deschenes), in conjunction with Barr.
52
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6127-6128.
�Chapter III: What Went Wrong?
Russell Upton was the Chief of the Europe and Far East Section at CSIS HQ, the
section with the desk which eventually came to be known as the “Sikh Desk”.
Upton reported directly to Deschenes up until the time of the bombing. Upton
had four sections under his command, one of which was the Western Europe and
Pacific Rim Section. In the fall of 1984, the work of this section was increasingly
focused on Sikh extremism issues and was referred to as the “Sikh Desk.” This
was a somewhat inaccurate characterization, as the Desk responsibilities were
far broader than simply an assessment of the threat posed by Sikh extremists,
and this desk retained several other continuing commitments related to its
previous, broader title.
The Sikh Desk was led by Glen Gartshore. At the creation of CSIS, there was
nominally provision for three analyst positions at the Sikh Desk. One of those
positions was immediately filled by Robert (“Bob”) Burgoyne. Burgoyne soon
became CSIS HQ’s “Sikh expert,” despite having started at the desk with no
background in this area. The remaining analyst positions remained vacant for
most of the pre-bombing period. One of the vacant analyst positions was filled
in March 1985 by Bill Dexter (returned from French language training), with the
final position filled in late May 1985 by Dan Godbout.53 The Sikh Desk tasked
the Regions and their investigators to collect the information needed to better
assess and report on the threat of Sikh extremism in Canada.54 CSIS HQ would
receive information from liaison officers abroad, from domestic partners (such
as the RCMP, CSE and Foreign Affairs) and well as from foreign intelligence
agencies.55 The Sikh Desk would integrate and analyze the information received
from all sources, extract the tactical information and then task the Regions in
response to perceived intelligence deficiencies or, alternatively, switch the focus
of an investigation. The information received would be used to prepare threat
assessments that would be disseminated within and outside CSIS.56
In 1984-85, the managers and analysts in the Counter Terrorism Units at CSIS HQ
had the following primary responsibilities:
• The DG CT (Deschenes) and Section Chiefs (Upton and Scowen)
were responsible for developing operational policy and allocating
resources amongst competing CT investigations;
• The Sections were responsible for transmitting operational policy
and the national IRs to all CSIS Regions and ensuring that the
IRs were met;
• The Sikh Desk (Gartshore and Burgoyne) was responsible for tasking
the Regions to satisfy the IRs and for assisting the Regions in their
investigations. The Sikh Desk assisted with the approval process
for TARC applications and warrant applications against selected
targets. The Desks coordinated with the Warrant Acquisition
53
54
55
56
Exhibit P-101 CAD0153, p. 3.
Testimony of Bob Burgoyne, vol. 31, May 22, 2007, pp. 3462-3463.
Testimony of Bob Burgoyne, vol. 31, May 22, 2007, pp. 3466, 3469-3470.
Testimony of John Henry, vol. 25, May 8, 2007, p. 2508.
253
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Volume Two Part 1: Pre-Bombing
Control and Requirements (WAC&R) Unit of the Communications
Intelligence Production (CIP) Division to process warrant
applications submitted by the Regions.
• The Sikh Desk was responsible for integrating intelligence received
from various sources, including the Regions, Security Liaison
Officers (SLOs), foreign partners and other Canadian government
departments and agencies (including the RCMP, DEA, CSE).
The Sikh Desk was responsible for analyzing all intelligence to produce threat
assessments to advise Ministers or inform the operational responses by other
government agencies, in particular the RCMP. The Desks coordinated with the
Threat Assessment Unit (TAU), which was responsible for the dissemination of
CSIS threat assessments outside of CSIS.
Threat Assessment Unit
The Threat Assessment Unit (TAU) was a two-person unit at CSIS HQ that was
responsible for dissemination of CSIS threat assessments to other government
agencies.
TA requests
CSIS Sikh Desk
Analysis of intelligence &
production of TAs
CSIS TAU
Editing & dissemination
of CSIS TAs
Finished TAs
TA requests
Finished TAs
RCMP P Directorate
Requests TAs to inform
its protective policing
and security enforcement
mandate
Threat
warnings
DEA
Passes information
regarding threats to
diplomatic personnel
and premises
received from foreign
partners
Figure 4: Information Flow through the Threat Assessment Unit
Threat assessments could be triggered through a request from another
government agency or on CSIS’s own initiative, in fulfillment of the mandate
to advise government.57 The agencies most commonly requesting threat
assessments were the RCMP P Directorate and the DEA (through the RCMP).
The RCMP P Directorate would request general updates on threats to mission
personnel, on an ongoing basis, to ensure that protective policing resources
were assigned to the highest priority threats or in response to specific
information indicating a threat.58 The DEA would pass on threat warnings from
57
58
Testimony of John Henry, vol. 25, May 8, 2007, p. 2528.
Testimony of Bob Burgoyne, vol. 31, May 22, 2007, p. 3444.
�Chapter III: What Went Wrong?
the Government of India.59 The normal channel for diplomatic information on
threats would be from the Indian Mission to External Affairs, to the RCMP P
Directorate (VIP Security Branch), to the CSIS TAU.60
Upon receipt of a request for a threat assessment, the TAU at CSIS Headquarters
would forward the request to the appropriate operational desk, which would
then draft the assessment. In relation to a Sikh threat, the Sikh Desk would
consider the available intelligence and draft a threat assessment, including as
much relevant information and analysis as it felt appropriate. The Sikh Desk,
usually Burgoyne, would submit the draft TA to the TAU, which would edit it
to remove any information not deemed suitable for dissemination outside of
CSIS. The TAU, as needed, might also substitute vocabulary more common to
the police. Throughout this process, the TAU would remain in contact with the
Sikh desk.
The TA Unit would enter the original TA request information, and resulting threat
assessment, into the Narrative Storage and Retrieval (NSR) system for future
reference.61 The members of TAU were not expected to be expert in any one
subject or geographical area but, instead, were tasked to respond to TA requests
from all government agencies, as well as to disseminate TAs produced by CSIS in
a manner deemed appropriate for use outside CSIS.
BC Region CT Units
The BC Region CT Units had the primary responsibility for collecting intelligence
to meet the Intelligence Requirements and inform the threat assessments
produced by HQ analysts.
Randi Claxton
Director General
Ken Osborne
Deputy Director
General Operations
Chief
Counter Intelligence
R.W. R. Smith
Chief, Counter Terrorism
Jim Francis
Unit Head
Ray Kobzey
Sikh Desk
Intelligence Officer
David Ayre
Sikh Desk
Intelligence Officer
Figure 5: Organization of BC Region Units on Sikh Extremism
59
60
61
Testimony of Bob Burgoyne, vol. 31, May 22, 2007, p. 3461; Testimony of Glen Gartshore, vol. 31, May
22, 2007, pp. 3549-3550.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2540-2541.
Testimony of John Henry, vol. 25, May 8, 2007, p. 2528.
255
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Volume Two Part 1: Pre-Bombing
Investigation
Sikh extremist sentiment was prevalent in the BC Region in 1984-85, and that
Region was a key focus of the intelligence collection effort. The BC Region was
led by Randil Claxton, the Director General (DG BC). Although the Regions were
relatively autonomous, Claxton would periodically discuss the investigation
with CSIS HQ through Ray Lees, the HQ DDO who was responsible for ensuring
regional investigations met the Intelligence Requirements.62 Claxton oversaw
the work of various managers and investigators involved in the Sikh extremism
investigation.
While the Regions relied on CSIS HQ for the annual IRs, they maintained a high
degree of autonomy over the management of their investigations. All regional
personnel, including the translators, transcribers, physical surveillance units
and investigators, reported directly to Claxton, who had the authority to place
his resources where he felt he would get the best return.63
Ken Osborne was the Deputy Director General Operations (DDG Ops) at BC
Region. He was responsible for allocating resources amongst competing CI, CT
and other investigations carried out in the Region. Robert Smith was the Chief
of CT and managed various CT units. Jim Francis was one of the Unit Heads. He
managed four or five two-man intelligence officer (IO) Desks64 one of which was
responsible for the investigation into Sikh extremism. The two IOs assigned to
the Sikh Desk were Ray Kobzey and David Ayre.
In 1984-85, the managers and investigators in the Counter Terrorism Units at BC
Region had the following primary responsibilities:
• The DG BC (Claxton) was responsible for allocating resources to
meet the annual Intelligence Requirements set by CSIS HQ.
• The Chief, Counter Terrorism (Smith) was responsible for allocating
resources amongst competing CT investigations in the Region.
These resources included Physical Surveillance Units (PSU) and
Communications Intelligence Production (CIP) personnel
(translators, transcribers and intelligence monitors).
• The Unit Head (Francis) was responsible for ensuring that
intelligence collected by the regional investigations was properly
disseminated within CSIS by transmission to the CSIS HQ Sikh Desk
and entry into CSIS’s centralized database, the Narrative Storage
and Retrieval (NSR) system.
62
63
64
Exhibit P-437: Statement of Archie Barr, p. 5.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6127.
Exhibit P-101 CAD0115, pp. 4-5.
�Chapter III: What Went Wrong?
• The Intelligence Officers (Kobzey and Ayre) were responsible
for collecting, assessing and reporting to Headquarters
information relevant to the Intelligence Requirements through
a range of investigative techniques. The IOs worked closely with
the PSU, translators and transcribers.
Communications Intelligence and Warrants
BC Region
HQ
Processing of Regional Intercepts
Policy guidance and assistance
with operational services
M. Spooner
R. Lees
Deputy Director Services
(DD Services)
Deputy Director Regional
Operations and Liaison (DDO)
Randy Claxton
Jacques Jodoin
Director General, BC Region
(DG BC)
Director General,
Communications Intelligence &
Warrants (DG CI&W)
CI&W Division, B.C. Region
Warrant Acquisition
Control & Requirements
(WAC&R) Managed
warrant acquisition
process
Special Branch
Safety and security of
Special Operations staff
Communications
Intelligence Production
(CIP)
Translators, transcribers
and monitors
Multilingual Section
Translators with proficiency
in several languages
Figure 6: Organization of CSIS CI&W Divisions at HQ and BC Region
At HQ, the Communications Intelligence and Warrants Section (CI&W) was
responsible for the management and processing of technical intercepts. The
section was part of the operational support services and came under the
command of Deputy Director M. Spooner.65 Jacques Jodoin was the Director
General, Communications Intelligence and Warrants (DG CI&W), from 1984 to
1988.66
65
66
Testimony of Jacques Jodoin, vol. 49, September 20, 2007, pp. 6072-6073.
Testimony of Jacques Jodoin, vol. 49, September 20, 2007, p. 6032.
257
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The CI&W Section was composed of four units. The main section, the Warrant
Acquisition Control & Requirements Unit (WAC&R), was responsible for
warrant acquisition and had a staff of seven people. They created the policy
for the process of warrant applications. A second section, Communications
Intelligence Production, was composed of transcribers and translators. They
were responsible for taking raw product off machines and writing reports. There
were 75 employees in that section servicing the Ottawa region. A third section,
the Special Branch, or Special Unit, was quite small and dealt with the safety and
security of the technicians who surreptitiously installed intercept technology.
The fourth section was called the Multilingual Section and contained 20
translators with proficiency in about 28 languages. They translated written
material, as opposed to communication intercepts.67
Each region also had its own CI&W division, which mirrored the structure
which existed at HQ. CI&W was considered a support service and was managed
separately from the operational sections (such as CT and CI), although it worked
closely with them. Although Jodoin provided indirect overall supervision and
policy guidance from HQ, the regional CI&Ws reported to their regional Director
General.68 Jodoin would communicate policies directly with the regional
DGs69, but the responsibility to decide whether and how to implement these
policies within the regional CI&W Units remained with the regional DGs, such
as Claxton.
3.2 The CSIS Investigations into Sikh Extremism
What Did CSIS Know?
At the time of the Air India bombing, CSIS had collected a wealth of intelligence
about the Sikh extremist movement in Canada. RCMP Security Service (SS)
officers, later CSIS investigators, had been aware of the threat of Sikh extremism
within Canada since 1981 and continued to monitor the growing threat through
the following years. Major investigations were underway in the BC, Toronto and
Windsor regions, with the national investigation coordinated by the Sikh Desk
at CSIS HQ. This section describes the CSIS investigation into Sikh extremism
which demonstrates the intelligence known by CSIS at the time of the Air India
tragedy. On this basis, it will then be possible to assess whether CSIS handled
this information properly in analyzing and responding to the threat of Sikh
extremism in Canada.
HQ Investigation
Growing Awareness of Sikh Extremism in Canada
The RCMP Security Service first became aware of Sikh extremism in late 1974
when Dr. Jagjit Singh Chauhan, widely viewed as the founder of the Khalistan
67
68
69
Testimony of Jacques Jodoin, vol. 23, May 4, 2007, pp. 2242-2243.
Testimony of Jacques Jodoin, vol. 49, September 20, 2007, p. 6071.
Testimony of Jacques Jodoin, vol. 49, September 20, 2007, p. 6073.
�Chapter III: What Went Wrong?
movement, created “Khalistan Consulates” in Toronto, Vancouver and Winnipeg.
At the time, the Khalistan movement was not considered by the Security Service
to constitute a threat to the security of Canada.70
The investigation into Sikh extremism by the RCMP SS began in the fall of
1981.71 Glen Gartshore, head of the Western Europe/Pacific Rim Desk at HQ,
testified that he first became aware of the issue of Sikh extremism when the
Government of India (GOI) made representations to the Department of External
Affairs concerning activities being carried out in Canada. A particular concern
for the GOI was a group of Sikhs in Winnipeg promoting an independent state
of Khalistan through the creation and distribution of “Khalistan passports” and
“Khalistan currency.” Though the concerns raised by the GOI were in relation to
activities in Winnipeg, the RCMP SS investigation focused mainly on activities in
Ontario and British Columbia.72
Between 1981 and 1984, a number of Sikh extremism events in Canada were
noted in the continuing low-level RCMP SS investigation:
• March 18, 1982: Kuldip Singh Samra became enraged after his bid
to overturn an election at a local Sikh temple was denied by a
judge. He opened fire in an Osgoode Hall courtroom in Toronto
killing two men and putting a third in a wheelchair.
• May 8, 1982: Dr. Gurdian Singh Dhillon, the Government of India
High Commissioner to Canada, was met at Vancouver Airport by a
group of Sikhs who chanted and pelted him with eggs.
• October 16, 1982: 500 protesters marched to the Indian Consulate
in Vancouver.
• November 14, 1982: Metro Toronto Police Constable Christopher
Fernandes was shot at a Sikh demonstration outside the Indian
Consulate in Toronto.
• June 29, 1983: Talwinder Singh Parmar was arrested in West
Germany pending extradition to India where he was accused of
murdering two police officers.73
• July 6, 1984: Parmar was released from German prison and returned
immediately to Canada because the German government would
not extradite him to India.
• July 18, 1984: While visiting Winnipeg, the acting Indian High
Commissioner was assaulted by five Sikhs.
70
71
72
73
Exhibit P-101 CAA1086, p. 2.
Testimony of Glen Gartshore, vol. 31, May 22, 2007, p. 3518.
Exhibit P-101 CAA1086, p. 2.
Exhibit P-101 CAA1046, Annex A.
259
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1984 Application for Level 2 Monitoring Coverage
On April 11, 1984, Gartshore wrote to Staff Sergeant Russell Upton, his superior,
to apply for level 2 coverage for Sikh extremism in Canada.74 Level 2 monitoring
allowed for investigators to talk to people in the community to help evaluate
what was happening in Canada.75 The concern was that communal violence in
India involving Sikhs, including acts of terrorism, would spill over into Canada.76
The RCMP SS was particularly concerned for the safety of Indian missions in
Canada and the level 2 monitoring application was intended to help keep track
of that threat.
Analyst Joins the Western Europe & Pacific Rim Desk
In the spring of 1984, analyst Bob Burgoyne joined Gartshore on the
Western Europe & Pacific Rim Desk in the position of analyst, after working in
counterterrorism and counter-intelligence (CI) on the Yugoslav Desk. At the time,
the concerns of the Western Europe & Pacific Rim Desk were tied to the ongoing
Cold War. Burgoyne had CI responsibilities relating to European-based terrorist
groups. In connection with the Asian sub-continent, however, he was responsible
for Sikh extremism and this soon became his main focus. Nevertheless, until
the fall of 1984, Burgoyne retained other important responsibilities including
Western terrorist groups and the Tamil Tigers from Sri Lanka.77
Burgoyne’s Desk head, Gartshore, provided the first briefing on the threats the
Desk would be monitoring. At the time, level 2 coverage was in place for the
Khalistan Liberation Movement. Talwinder Singh Parmar was a key player in that
movement and was already one of the key targets, even though he had been
incarcerated in West Germany since 1983.78
Burgoyne began to educate himself on Sikh issues. He studied the subject in his
spare time and relied on the Liaison Officer (LO) in New Delhi for daily or weekly
updates on events in India which could have a bearing on Sikh activities in
Canada. Approximately six months after he began working on Sikh extremism,
Burgoyne was described as the “Sikh expert”. He told the Commission that he
put in a lot of extra time to learn the area, but was not at all comfortable with
such a description, even though when it came to expertise on Sikh issues at HQ
he “…was pretty well it.”79
74
75
76
77
78
79
Exhibit P-101 CAF0072b.
Testimony of Glen Gartshore, vol. 31, May 22, 2007, pp. 3518-3519. According to Bob Burgoyne,
level 1 permitted investigation of open sources and bio-data, level 2 permitted physical surveillance
and redirection of an existing human source, level 3 permitted development of human sources
and level 4 permitted full-scale interception of private communications (with a warrant) and mail
opening: Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3410.
Exhibit P-101 CAF0118.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3396-3397.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3396.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3403-3404.
�Chapter III: What Went Wrong?
Throughout the period leading up to the bombing, Burgoyne continued to be
portrayed as the Sikh expert, despite the fact that he was a junior officer who
had only been on the desk a relatively short time. At one point he was asked
to brief an official from the Department of External Affairs who was about to
be transferred to India. The official reacted with surprise when he learned that
Burgoyne did not speak Punjabi. Burgoyne told the Commission that, though
he had a “pretty good handle” on activities in Canada, he would have been
“absolutely” more knowledgeable had he been able to speak the language.80
Sikh Extremism File Created
On April 17, 1984, a “Sikh Extremism” file was created,81 in response to violence
in India coupled with intelligence that Sikh terrorists might become active
internationally.82 Burgoyne wrote: “We remain extremely concerned over the
possibility of Sikh terrorists travelling to Canada and/or possible eruptions of
Sikh community violence in Canada, brought about by related developments in
India.”83 Indeed, intelligence received in late April suggested that a group of 36
Sikhs was being sent to North America to kill moderate Sikh leaders, prominent
Hindu leaders, and carry out attacks on Indian government diplomatic
personnel.84
Two events in the next few months would raise the profile of Sikh extremism in
Canada. On June 6, 1984, Indian government troops stormed the Golden Temple
in Amritsar, the holiest Sikh temple. A few weeks later, in early July, Parmar was
released from a German jail and promptly returned to Canada.
Operation Bluestar and the Assault on the Golden Temple
Sant Jarnail Singh Bhindranwale was widely considered to enjoy the tacit
support of the ruling Indian government as a counterweight to the Akali Dal, a
widely popular Sikh nationalist movement. Bhindranwale rapidly transformed
himself into the leader of the Khalistan movement. Months before the raid
on the Golden Temple, he and his followers moved into the complex. Amid
rumours that the Indian government was planning to invade, he began to
amass arms and fortify the Temple. On June 2, 1984, Indian PM Indira Gandhi
authorized “Operation Bluestar.” All transportation in and out of the Punjab was
halted. The border with Pakistan was closed; telephone lines and other means
of communication were cut. On June 5th, tanks moved into the complex and
opened fire. On June 6th, the attack was over and the Government was in control
of the Golden Temple. The Government reported that nearly 500 Sikhs had been
killed, however nearly 2000 remained unaccounted for. Sant Bhindranwale was
80
81
82
83
84
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3405-3406.
Exhibit P-101 CAB0054, p. 1.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3412-3413.
Exhibit P-101 CAB0054, p. 1.
Exhibit P-101 CAF0102, p. 3.
261
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among those who were killed.85 Sikhs around the world reacted in horror to the
storming of the Golden Temple. Sant Bhindranwale and those who died in the
action became martyrs in the eyes of Khalistan idealists.86
Level 4 Authorization for Sikh Extremism
In response to the storming of the Golden Temple and the violent and escalating
tensions worldwide, the RCMP SS Operational Priorities Review Committee
(OPRC) granted the authority for a full level 4 investigation into Sikh extremism
on June 27, 1984.87 This was the highest level of investigative authority. It
allowed the most intrusive techniques such as physical surveillance and the
ability to obtain a warrant for interception of private communications. At the
same time, the name of the file was changed from “Sikh Extremism”, which was
felt to be too general a term, to “Alleged Sikh Terrorist Groups in Canada.”88
The RCMP SS was concerned for the safety of Indian diplomats and their missions
in Canada. Indeed, a foreign source provided the RCMP SS with its assessment
that, following the attack on the Golden Temple, there was a significant threat
in the coming weeks of an attempt to either kidnap or murder Indian official
personnel, Air India employees or the staff at Indian tourist offices in Canada.89
Also of great concern were unconfirmed reports that Canadian Sikhs were
providing weapons and funds to Sikh extremists in the Punjab. As well, mass
demonstrations were being staged in Canada, mostly in Vancouver and Toronto.
Intelligence indicated that clandestine meetings of Sikhs had been held in
Toronto to plan protests and attract attention to the Sikh cause. Sikhs in Toronto
“…publicly announced the formation of a Canadian arm of [a] Sikh governmentin-exile, and disclosed their intention to directly support terrorist action targeted
against the Government of India.” Intelligence also suggested that there were
Canadian-made plans to send assassination squads to attack PM Indira Gandhi
and the High Commissioners to Canada, the US, and the UK.90
Initial Knowledge of the Babbar Khalsa
On June 6, 1984, RCMP P Directorate, VIP Division, reported that a threatening
phone call had been received by the Indian High Commission in London, UK,
stating that the Indian Consul General in Vancouver and/or his family would be
kidnapped or killed by the “Barbara Khalsa” group. As this report demonstrates,
at the time, even knowledge of the group’s proper name was lacking.91
85
86
87
88
89
90
91
Exhibit P-101 CAA1087, p. 11.
Exhibit P-101 CAA1046, p. 4.
Exhibit P-101 CAF0102, p. 1; Testimony of Glen Gartshore, vol. 31, May 22, 2007, pp. 3520-3521.
Exhibit P-101 CAF0102, p. 1.
Exhibit P-101 CAB0061, pp. 2-3.
Exhibit P-101 CAF0102, p. 3.
Exhibit P-101 CAB0068, p. 1.
�Chapter III: What Went Wrong?
A few days later, Burgoyne wrote a memo to Gartshore regarding the Security
Service’s knowledge of the, now correctly named, Babbar Khalsa (BK) in Canada.
The Security Service had previously received reports from Indian authorities
about a BK presence in Vancouver. However, the RCMP SS was unable to confirm
the existence of the BK in Vancouver or anywhere else in Canada.92 At the time,
that was the extent of the Security Service’s knowledge of the BK.93
Parmar’s Return to Canada and the Creation of CSIS
Talwinder Singh Parmar was imprisoned in West Germany as of June 29, 1983,
pending extradition to India pursuant to a warrant for his alleged involvement
in the murder of two police officers.94 On July 6, 1984, however, he was released
from jail.95 Two reasons for this release were in circulation. One reason was that
insufficient evidence had been provided by the Indian government to support
his extradition from Germany.96 The other was that, due to the recent tension
and violence in India, West German officials felt that Parmar would not receive a
fair trial in India.97 Whatever the actual cause for his release, the result was that
Parmar, who had long been considered a key Khalistan leader, was set free and
returned to Vancouver.
Upon his release, Parmar was immediately characterized by the GOI as “…
the most dangerous Sikh terrorist presently at large.” The GOI communicated
its concern to Canadian officials that Parmar posed a threat to the security of
Indian VIPs in Canada.98
The RCMP SS, and in particular Burgoyne, registered concern about what
effect Parmar would have on the Sikh community in Canada. Since Parmar was
covered by a level 4 investigative authority, Burgoyne tasked the BC Region to
attempt an interview with him99 to cover points such as the formation of Babbar
Khalsa in Vancouver, the Khalistan “government-in-exile” and to clarify what he
meant by publicly warning the Indian Government that they would pay a price
for what they did in Amritsar. At the very least, it was thought that having the
interview might neutralize his activities in the Vancouver area.100
It was at this point in July 1984 that the RCMP SS was replaced by CSIS.
As soon as Parmar arrived back in Canada, he launched a nationwide campaign
in an attempt to establish himself as the Sikh leader in Canada.101 His actions
were an immediate cause for concern and were documented in a memo written
by Burgoyne:
92
93
94
95
96
97
98
99
100
101
Exhibit P-101 CAB0061, pp. 1-2.
Testimony of Bob Burgoyne, vol. 31, May 22, 2007, pp. 3454-3455.
Exhibit P-101 CAB0114, p. 1.
Exhibit P-101 CAF0100, p. 1.
Exhibit P-101 CAA1087, pp. 15-16.
Exhibit P-101 CAB0114, p. 1.
Exhibit P-101 CAF0100, p. 1.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3414-3415.
Exhibit P-101 CAF0100, p. 2.
Exhibit P-101 CAB0114, p. 1.
263
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Parmar wants to be acclaimed the “Holy Man” in North
America, thereby gaining control and/or direction of the
various organizations and Sikhs in general. While in Calgary,
Parmar strongly suggested that local Sikhs unite, fight and
kill, in order to revenge the attack on the Golden Temple in
Punjab.… Parmar appears willing to support or assist terrorist
acts in the name of the Khalistan state.102
Burgoyne wrote the memo to highlight his concerns to Mel Deschenes, the
DG CT of the newly-constituted CSIS, and so that the information would be
circulated to other government departments.103 However, it is unknown whether
the DG CT shared Burgoyne’s concerns and what, if any, external government
departments were informed about Parmar and his activities.
Tasking Role of the HQ Desk
The Western Europe & Pacific Rim Desk (which later became known as the Sikh
Desk) was responsible for tasking the regional offices of CSIS.104 This was not
done without supervision, as most directions required that management sign
off first. This sign-off was usually provided by Upton, the head of the Europe and
Pacific Rim Section, which housed the Western Europe & Pacific Rim Desk.
Burgoyne testified that, from the fall of 1984 until the spring of 1985, the Sikh
extremism investigation occupied most of his time, as the area of investigation
was new and there was a need to gather as much information as possible.
His role at HQ, and indeed the role of the Desk, was that of the gatekeeper of
information as well as the decision-maker about which target approvals would be
sought. In cases where an application to the Target Approval Review Committee
(TARC) was deemed necessary, the Desk would write the submission. TARC was
formerly known as the Operational Priorities Review Committee (OPRC) in the
RCMP SS.105
Another aspect of the Desk’s role was in connection with RCMP requests for
threat assessments. In order to respond to these requests, and to produce
informed threat assessments, the Desk needed information from the field and
directed the regions accordingly.106 For example, on July 10, 1984, the Desk
asked the regions to determine whether or not the BK was an “…identifiable
organizational entity in Canada, and the extent to which they individually, or
collectively, pose a threat to Indian diplomatic personnel and property”.107 The
intelligence officers in the various regions were to investigate the existence of
the BK in their area and report back to the Desk in a timely manner.
102 Exhibit P-101 CAB0114, p. 1-2.
103 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3416.
104 Tasking was the process by which CSIS HQ would direct investigations by asking for more information
to complete holes in the overall investigation. This direction was not specific to allow for regional
autonomy.
105 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3400, 3408-3409.
106 Testimony of Glen Gartshore, vol. 31, May 22, 2007, p. 3527.
107 Exhibit P-101 CAF0099, p. 1.
�Chapter III: What Went Wrong?
The Desk also needed information from abroad and therefore would also task
SLOs (security liaison officers, previously known as liaison officers (LOs) in the
RCMP SS).108 Through SLOs, they would request general information from allied
intelligence services and would also share CSIS information. After the storming
of the Golden Temple, Burgoyne began making greater demands for information
about events transpiring in the Punjab, especially in relation to information
needed for threat assessments. The SLO in New Delhi would send information
on a regular basis.109
Tasking documents show that the range of concerns held by HQ was broader
than just Parmar or the BK.110 There were numerous names of organizations,
often first identified by the Government of India, and the Desk would have to
determine whether they existed in Canada and, if so, whether they posed a
threat.111
Renaming of the Desk to Focus on Sikh Extremism
During the fall of 1984, due to the heightened threat of Sikh extremism, the
Western Europe & Pacific Rim Desk was renamed the Sikh Desk. This occurred
at the same time as the approval of the level 4 authorization on Parmar and
at a time when Sikh extremism issues had begun to dominate Burgoyne’s
responsibilities. On the creation of the Sikh Desk, Burgoyne’s other duties were
passed to other CSIS employees, allowing him to concentrate almost entirely on
the Sikh issue.112
Subject Evaluation Report on Parmar
While the Sikh extremism investigation had received a level 2 approval in April
1984 and a level 4 approval just after the raid on the Golden Temple, an individual
level 4 approval was preferred for individual targets once they had been
identified. To that end, on September 17, 1984, the DG CT submitted a Subject
Evaluation Report on Parmar to the TARC to obtain a level 4 authorization on
him, a step that was required in order to proceed with a warrant application. The
application was recommended by Deschenes, but it was written by Burgoyne
with input from the regions, particularly BC Region. The document indicates
that the threat to Indian missions in Canada at the time was now considered
high, and that Parmar was identified early on as a key individual among those
fomenting Sikh unrest in Canada, particularly in British Columbia.113
After the level 4 approval on Parmar, the Sikh Desk supported BC Region’s
urgent application for a warrant to intercept the communications of Parmar. The
application was submitted in October 1984, but its approval was unfortunately
delayed for five months.114
108 Liaison officers in the RCMP SS were known as Los; in CSIS they were renamed security liaison officers
or SLOs.
109 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3408-3409.
110 See, for example, Exhibit P-101 CAF0103 and CAF0120.
111 Testimony of Glen Gartshore, vol. 31, May 22, 2007, p. 3531.
112 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3399.
113 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3400-3401, 3417-3418.
114 See Section 1.3 (Pre-bombing), Parmar Warrant.
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Profiles Developed on Key Sikh Extremists
In early October 1984, David Ayre, a CSIS BC Region intelligence officer, produced
profiles of Surjan Singh Gill and Ajaib Singh Bagri in response to a request for
further information from HQ.115 The description of Gill is startling:
Gill is purportedly the brains behind the Babbar Khalsa
Group … and its titular leader, Talvinder Singh Parmar … Gill
orchestrates all of Parmar’s activities and seems to go with
him whenever he departs from Vancouver.… Gill is a highly
emotional individual who has been noted acting in a frenetic
manner. He was observed by myself hacking away with a
ceremonial sword at an effigy of Indira Gandhi outside the
Indian Consular offices, just before the invasion of the Golden
Temple. Gill’s eyes were glazed, he had a look of hate on his
face, and he was yelling incoherently whilst he was flailing
away.116
Perhaps most disturbing is Ayre’s analysis of Gill’s potential as a terrorist:
Given the proper set of circumstances and stimuli, I feel
that Gill can be considered a dangerous threat to Canadian
security.117
A similar description of Bagri was also provided, though Ayre qualified the
description by revealing that CSIS had so far been unable to obtain much local
information on him:
Bagri is a close consort of Parmar and Gill and seems to be
heavily involved in the Babbar Khalsa Group. As a terrorist
threat, I feel he rates quite highly, especially when you look at
the statements he made in New York during the World Sikh
Organization meeting.… I feel that he has a propensity to
commit a terrorist act given the right set of circumstances.118
The profiles were a result of Upton’s direct intervention and his expression
of dissatisfaction with the BC Region’s original bare-bones assessment of the
targets.119 Upton noted that the more robust profiles produced were exactly
what was needed by the Desk for accurate assessments of the situation.120
115
116
117
118
119
120
See Exhibit P-101 CAF0104.
Exhibit P-101 CAF0104, pp. 1- 2.
Exhibit P-101 CAF0104, p. 2.
Exhibit P-101 CAF0104, p. 3.
See Exhibit P-101 CAB0138 and Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3578-3581.
See Exhibit P-101 CAF0106 and Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3583-3584.
�Chapter III: What Went Wrong?
Trying to Find Parmar and Bagri
On October 15, 1984, CSIS received information about a potential hijacking
involving Canadian and UK Sikhs. Ajaib Singh Bagri was listed as one of the
members of the hijacking “committee”. At the time it was known that Bagri was
a member of the BK, close to Parmar, and had been assessed by BC Region as a
person who was capable of terrorist acts.121
Of particular concern was the fact that neither Parmar nor Bagri had been seen
in BC Region for quite some time, and that CSIS had no idea where they were.
The Desk tasked both BC and Toronto regions to “…exhaust all possible avenues
in a final attempt to locate the present whereabouts of Talwinder Singh Parmar
… and Ajaib Singh Bagri ….”122
So alarming was the information concerning the hijacking plot that, although
BC and Toronto were given the specific tasking, all the other regions were copied
as well. It was considered policy to advise all the regions when such information
was received, the reasoning being that it increased the possibility that spinoff
information from other regions might be brought to the attention of HQ.123
In contrast to this treatment of “alarming” information, seemingly innocuous
information would not be copied to other regions, thereby eliminating the
potential for spinoff material. Though the material may have been available
through a search of NSR, relevant but not “alarming” material could easily be
missed because attention was not drawn to it through copies to the regions.
This is one example of HQ playing a gatekeeper role in determining which
information was deemed important enough to be brought to the attention of
other regions. This subjective procedure, by which material was shared or not
shared, created a potential for the loss of valuable information from other regions
that might have been able to provide additional context or intelligence.
Parmar Implicated in Indira Gandhi Assassination
On October 31, 1984, Indian PM Indira Gandhi was assassinated in India by two of
her Sikh bodyguards. Immediately, there began to be speculation in the Indian
press that the assassination was orchestrated from abroad and that Parmar was
involved.124 Upton wrote a memo to Gartshore reflecting on this turn of events
and its impact on the importance of the warrant that had just been applied for
to intercept Parmar’s communications:
Subject: Talwinder Singh Parmar et al. Glen, attached is a copy
of External’s message from Delhi dated 84/11/13. Once again
Parmar’s name comes up. You can bet your bottom dollar that
eventually a Canadian connection will be made here. This
lends to the need for our warrant on Parmar ….125
121
122
123
124
125
Exhibit P-101 CAF0127, pp. 1, 3.
Exhibit P-101 CAF0127, p. 3.
Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3589.
Exhibit P-101 CAB0168.
Exhibit P-101 CAB0167.
267
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The Desk and Upton became very anxious for more information, particularly for
source information on Parmar, which would not be forthcoming for a number
of months.126
Sikh Extremism File Compartmentalized
Also in October 1984, the Desk became concerned that the authority to
investigate Sikh extremism was becoming tenuous. The original coverage
granted was for one year, with the expectation that as more information was
gathered, files would be opened on specific targets, either groups (such as the BK)
or individuals. In early 1985, the Sikh extremism file was shut down and replaced
by specific files reflecting the move towards more focused investigations.127
By January 1985, the Sikh Desk was putting increasing pressure on the regions
to identify separate Sikh extremist organizations of interest to CSIS. Specifically
singled out were the BK, the Sikh Student Federation (later known as the
International Sikh Youth Federation (ISYF)), the Khalistan Liberation Movement,
the World Sikh Organization, the Akhand Kirtani Jatha and the North American
Sikh Youth Organization International.128 The tasking was meant to allow for an
assessment of resources needed and an evaluation of the appropriate focus to
be applied to the investigations.129 In the case of the BK, however, an application
was already before the TARC for a level 4 approval and the submission dealing
with the Sikh Student Federation was in progress.
One potential problem with the greater specialization of the file was that it
increased compartmentalization. While, previously, all information would come
under “Sikh Extremism”, information was now to be filed based on a narrow
focus, such as BK or ISYF. This compartmentalization meant that linkages
between groups or persons could be missed, especially if the “need-to-know”
principle excluded an analyst working on one organization from access to
another organization’s file, despite the possibility of important interconnections.
With Burgoyne as the only analyst on the Sikh Desk, it is highly unlikely that
this possibility existed in late 1984 and early 1985. However, once more analysts
were added to the Desk, just prior to the bombing and in the post-bombing
stage, this possibility existed not only at HQ but in the regions as well. Though
the Commission does not have evidence to show that particular information
was missed due to this organization of files and the use of the “need-to-know”
principle, it is known that connections that could have been made were not. For
example, the Sikh Desk did not recognize that code words used in the Windsor
area (Bob Burgoyne’s file) were the same as those used in the days before the
bombing by Parmar in BC (Bill Dexter’s file). The connection was not made until
126 Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3598. See also Section 1.3 (Pre-bombing), Parmar
Warrant.
127 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3420-3421.
128 Exhibit P-101 CAF0107, pp. 1-2.
129 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3422; Testimony of Glen Gartshore, vol. 31, May
22, 2007, pp. 3525-3526.
�Chapter III: What Went Wrong?
an analyst who had been working on the Windsor file was transferred to the
Sikh Desk at HQ months after the bombing and went back over the Parmar
transcripts.130
Level 4 on the Babbar Khalsa and its Leaders
On January 30, 1985, the Sikh Desk submitted a subject evaluation report on the
BK for the purpose of obtaining a separate level 4 authority on the organization.131
The document set out CSIS’s knowledge of the BK and its leaders at the time:
The Babbar Khalsa in Canada is believed to consist of approximately 20
members, all radical and potentially dangerous Sikhs. The organization is led
by three individuals from British Columbia namely Surjan Singh Gill, Talwinder
Singh Parmar, and Ajaib Singh Bagri.132
On the same day, Ted Finn, the Director of CSIS, authorized level 4 coverage
of the BK and its leaders, Gill, Parmar and Bagri, as well as level 3 coverage
of the rest of the membership.133 A corrected copy of the subject evaluation
report was circulated to all regions in late February. A description of the three
leaders is given, and their profiles, particularly those of Gill and Bagri, are largely
unchanged from the description given by Ayre four months before:
i)
Gill is reportedly the brains behind Babbar Khalsa. In 1981
[November] Gill reportedly organized a meeting to examine
ways of extending assistance to the hijackers of the IAC aircraft
and their families.
ii) Parmar is the subject of an international warrant issued by the
Indian government for murder and is considered to possess
the greatest threat in Canada to Indian diplomatic missions
and personnel. Parmar has freely admitted that while in India
in 1981, he founded the Babbar Khalsa in that country.
iii) Bagri is a close consort of Parmar and believe[s] he can be
easily manipulated into committing a terrorist act. Bagri has
made several heated verbal attacks on the Hindu religion,
including remarks made at a Sikh convention in New York that
50,000 Hindus be killed to avenge the deaths of Sikhs killed by
Indian troops in the attack on the Golden Temple in Amritsar
….134
This absence of change in the profile emphasizes the lack of new information
gathered by CSIS in the interim. As of February 21, 1985, it would appear that CSIS
had gathered no new information on the BK or its members since September
1984.135
130
131
132
133
134
135
Exhibit P-101 CAA0308, CAA0309(i).
See Exhibit P-101 CAB0187 and Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3422-3423.
Exhibit P-101 CAB0187, p. 2.
Exhibit P-101 CAF0111, p. 1.
Exhibit P-101 CAF0111, pp. 2-3.
Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3591-3592.
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Lack of Parmar Photograph and Other Information
Not only was there no new CSIS information about Parmar or his associates
as of late February, 1985, CSIS memoranda also complained of the lack of a
suitable photograph and a good physical description of Parmar.136 This was
creating difficulties for CSIS, as Parmar travelled frequently in Canada and the
surveillance units were not able to easily identify him. CSIS memoranda also
complained about a lack of fingerprints for the target. However, it is difficult to
understand the need for fingerprints and their possible use, considering that
CSIS was now a civilian organization.137
Upton testified that the difficulty in obtaining biographical data on Parmar was
due to a lack of source coverage on Parmar, either directly or indirectly through
persons close to him. He also confirmed that a warrant and its resulting intercept
product would have helped to obtain the information needed on Parmar.138
Attack on Ujjal Dosanjh
In February, 1985, the outspoken moderate lawyer, Ujjal Dosanjh, was beaten
with a pipe and nearly killed.139 No one was ever convicted of the crime. CSIS
was aware of the incident, but treated it as a matter for the police to investigate.
At the very least, this violent incident should have served notice to both CSIS
and the RCMP that Sikh extremism had become a significant threat to the safety
of Canadians.
April 13th Hijacking Alert
As the celebration of the Sikh festival of Baisakhi on April 13th was fast approaching,
the Government of India communicated information regarding potential
upcoming threats to the Department of External Affairs. This information was
in turn shared with CSIS.140 Included in the threat information received was the
following:
Unconfirmed reports of plans to hijack an Air India flight
around the time of Baisakhi, with particular threat to AI-181
reaching Toronto on Saturday, April 13, 1985.141
This information was shared with the RCMP, and the Airport Security division
was advised. At the same time, CSIS also produced a threat assessment for the
RCMP in response to a verbal request. In this TA, CSIS stated that it believed the
bomb threats were made in order to keep “…Khalistan alive in the minds of all
Sikhs.”142 CSIS also stated that it had no information that there actually would be
a hijacking. In fact, no hijacking took place.
136
137
138
139
140
141
142
Exhibit P-101 CAF0123, p. 1.
Exhibit P-101 CAF0123, p. 1; Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3594-3595.
Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3596.
Exhibit P-101 CAA1099, p. 1; Testimony of Ujjal Dosanjh, vol. 80, November 21, 2007, p. 10173.
Exhibit P-101 CAB0216.
Exhibit P-101 CAB0215(i), p. 2.
Exhibit P-101 CAA0147, p. 1.
�Chapter III: What Went Wrong?
Heightened Alert Due to Impending Golden Temple Anniversary and Gandhi
Visit
In May 1985, CSIS went on a heightened alert status. Two important events were
fast approaching: the first anniversary of the storming of the Golden Temple
and a visit by Prime Minister Rajiv Gandhi to the United States.143 Upton testified
that he was “…in and out of my DG’s office frequently impressing upon him the
urgency of the Sikh problem.”144 The Sikh Desk itself was very busy trying to
gather what intelligence it could.
Due to the heightened alert, Upton requested that the Sikh Desk update its
profile of Parmar with new information, since the existing profile only described
activities up to August 1984.145 The stated purpose for updating the profile
was so that it could be circulated to government departments for operational
development purposes.146 It is unclear whether the profile was in fact updated
or whether an updated profile was circulated within government.
Level 4 on International Sikh Youth Federation and its Leaders
Also in early May, and in response to the heightened threat and need for more
and better coverage of Sikh extremism, the Sikh Desk did obtain level 4 coverage
of the ISYF and its leaders, and a level 3 coverage of the membership. The ISYF
had been previously known as the Sikh Student Federation.147
Threat Assessment for Gandhi’s Visit
The first threat assessment in relation to the upcoming Gandhi visit was
produced by CSIS on May 24, 1985.148 The TA, written by members of the Sikh
Desk, was sent to various agencies outside of CSIS. The TA informed recipients of
CSIS’s view at that point concerning Sikh extremists and the threat they posed.
One of the pieces of information that was shared dealt with a statement made
by Gurmej Singh Gill, a BK member from the UK with very close ties to Canadian
BK leaders. He visited Canada in January 1985, and in May 1984 he was reported
to have said that, “…the names of Sikhs who refused to boycott Air Indian flights
would be put on a ‘hit list’ which would be passed on to the BK in India for action.”
This statement, demonstrating that Sikh extremists considered Air India an alter
ego for the Government of India and a legitimate target at least for economic
action, was passed to the RCMP and Transport Canada, two other agencies with
a role in aviation security.149
143
144
145
146
147
148
149
Exhibit P-101 CAB0225.
Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3599-3600.
Exhibit P-101 CAB0212, p. 2; Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3585-3586.
Exhibit P-101 CAB0212, p. 2.
Exhibit P-101 CAF0117, p. 2; Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3428.
Exhibit P-101 CAB0236(i); Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3429-3430.
Exhibit P-101 CAB0236(i).
271
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May 28th Deschenes Telex
As the dates of the anniversary of the storming of the Golden Temple and
Gandhi’s visit to the US drew closer, Sikh extremism was reclassified as the
number one threat within CSIS.150 An important telex was sent to all regions and
to the Windsor district on May 28, 1985 by Mel Deschenes, the DG CT, requesting
priority attention regarding Sikh extremists:
CSIS Headquarters recognizes the terrorist potential here,
and is obligated to provide the government with timely and
accurate intelligence and assessment of the situation as it
develops. Top priority attention is now being afforded this area
until at least mid 1985 06. We would therefore request that all
districts and regions afford this area equal priority attention
during the period in question.151
The Deschenes telex also requested a change in reporting procedure with
regard to intercepts on Sikh extremists:
[W]e would ask for priority debriefing of all available sources
in this area, particularly those special sources covering hard
target areas. In order to advance threat assessments for the
1985 06 06 affair, and Gandhi’s visit, we would ask that any, and
all, special meetings of target … groups be afforded coverage,
if and when possible, and priority reporting.152
“Debriefing” and “special sources covering hard targets” were code for analyzing
technical sources (i.e. wiretaps).153 Instead of waiting until enough information
was gathered for a robust intelligence report, intelligence reports based on
intercept product were to be written daily, even if the information was minimal,
and entered into the Narrative Storage and Retrieval (NSR) system so that HQ
was updated along with the regional investigators.154
Impressive as this emphasis on daily reporting may seem, in practice, it was
unrealistic when applied to the Parmar intercept. HQ may have attached high
importance to receiving daily updates, but the cold hard fact – not addressed
in Deschenes’s memo – was that there were not enough translators in place
to allow for daily translation of the intercept material and, in fact, BC Region
completely lacked a translator. While the English language portion of the
intercept could be reported on, since almost all of the significant conversations
in the Parmar intercept were in Punjabi, the instruction to provide daily updates
150
151
152
153
154
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3789-3792.
Exhibit P-101 CAF0124(i), p. 1.
Exhibit P-101 CAF0124(i), p. 2.
Testimony of Glen Gartshore, vol. 31, May 22, 2007, pp. 3541-3543.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3791.
�Chapter III: What Went Wrong?
on the intercepted communications of the principal Sikh extremist target was
meaningless. Predictably, instead of daily translation, a backlog of untranslated
tapes continued to grow. This crucial intelligence failure was to be repeated
on June 23rd after the bombing, when regions were once again instructed
immediately to “…debrief their special sources”, but BC Region still lacked the
ability and resources to comply.155
June 1985 Events
On June 4, 1985, CSIS surveillants observed the Duncan Blast.156 Though CSIS HQ
was informed, as were the RCMP and the Vancouver Police Department (VPD),
there is no documentation showing that HQ requested BC Region to complete
any follow-up on the event observed.157
On June 5, 1985, Upton sent out an update to all regions and Windsor district
regarding the requirement of daily updates on Sikh extremism.158 In the note
he stated:
In conjunction with the current threat received from Sikh
extremists and further to message … of 1985 05 28, the
Director General – Counter Terrorism now has a requirement
to provide daily briefing to the Deputy Director National
Requirements and, ultimately the Director. It is necessary
to complete daily situation reports for the DG-CT. In this
regard, BC, Alta, Man, Toronto, Ottawa and Quebec regions
as well as Windsor district are requested to provide this
Headquarters with daily reports detailing and assessing events
or developments in their respective areas. These reports must
reach this HQ by 1400 hours each working day until further
notice. Negative reports are required.159
According to Burgoyne’s testimony, the directive for daily reports and the
briefings for the Deputy Director of National Requirements and the Director
were in anticipation that June would be a “…very volatile month” and that “…
things were going to become quite active within the community.”160
Upton testified that HQ got a very favourable response from the regions in
response to the request for daily reports, particularly from BC and Toronto,
which included the Southwestern Ontario region including Windsor.161
June also saw a coordinated disruptive interview program of Canadian Sikhs,
organized by CSIS, RCMP, municipal police forces and American authorities.162
155
156
157
158
159
160
161
162
Testimony of Glen Gartshore, vol. 31, May 22, 2007, pp. 3542-3543.
Details can be found in Section 1.4 (Pre-bombing), Duncan Blast.
Details can be found in Section 1.4 (Pre-bombing), Duncan Blast.
Exhibit P-101 CAB0256.
Exhibit P-101 CAB0256.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3432.
Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3601.
Exhibit P-101 CAA1099, p. 2.
273
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CSIS was not directly involved in the interviews, but aided by suggesting
interview subjects. In Vancouver, this resulted in a joint RCMP and US Secret
Service (USSS) interview of both Parmar and Gill.163
Despite the understanding that the month of June would be a volatile one,
on June 14, 1985, the RCMP requested yet another updated TA, with the
expectation that the threat would be lowered “…now that ‘Genocide Week’ and
Prime Minister Rajiv Gandhi’s visit to the USA is terminating.”164 Upton circulated
the request for updated information to all the regions and Windsor district. He
also stated in his memo that “…[a] great deal of intelligence has been received
from various sources which has, as yet, to be completely sorted out and fully
analysed.”165 The TA was required for June 17th, two days after Gandhi was due
to leave the US.166
Though the tension was easing, Burgoyne testified that the attitude at CSIS
HQ was that the threat of Sikh extremism remained high and that the threat
assessment should be maintained at that level for the near future.167
On June 18, 1985, CSIS released its final TA prior to the bombing. The TA, signed
by Deschenes but actually written by Dexter, was distributed to numerous
government agencies including the RCMP, External Affairs, and Transport
Canada.168 This TA documented the events that occurred in the previous three
weeks, including investigations, demonstrations and incoming intelligence.
Included in this information was reference to a plot to assassinate Prime Minister
Rajiv Gandhi discovered during the arrests in New Orleans,169 and to the potential
for Canadian connections. As well, a concern was raised about Canadian Sikhs
arming themselves, with CSIS offering the example that two Sikhs from the
Windsor area were known to have purchased an Uzi machine gun in Detroit
which they were likely to have brought back to Canada.170
Notably absent from this memo, particularly in light of the concern over guns,
was any mention of the Duncan Blast narrative. Accordingly, the Duncan
Blast events were not shared with the relevant government departments and
agencies except with the RCMP at the local level. Though CSIS misinterpreted
the events, it is possible that, had they shared their knowledge of the event,
another agency might have seen things differently or, at least, might have asked
for further information that would have led to CSIS revisiting its assessment of
the significance of this crucial event.
HQ did maintain that the threat level should be continued as “high”:
163
164
165
166
167
168
Exhibit P-101 CAB0290.
Exhibit P-101 CAA0215, p. 1.
Exhibit P-101 CAA0215, p. 2.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3434-3435.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3434.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3435. Deschenes was in Los Angeles at the time
this TA was written.
169 This is discussed in Section 1.12 (Pre-bombing), A “Crescendo” of Threats.
170 Exhibit P-101 CAB0321, p. 3.
�Chapter III: What Went Wrong?
While the Gandhi visit and the Anniversary of the Golden
Temple invasion certainly afforded ample opportunity for
strike potential we must recognize that the most dangerous
element of the Sikh populace were well aware that security
would be optimum and the potential for a serious attack
succeeding would be greatly diminished. These same
extremists/terrorists are no less determined to realize their
ambitions and to think that they have abandoned their cause
would be somewhat naïve on our part.… For these reasons we
assess the threat as being only slightly less serious than it was
at the time of our last assessment.171
Nevertheless, on June 19, 1985, and despite the analysis that the most radical
Sikhs might be biding their time, the requirement for daily updates from all
regions was discontinued.172 It seems as though CSIS and the Government of
Canada were breathing a collective sigh of relief, prematurely, as it turned out.
Having looked at the investigation of Sikh extremism at the HQ level, it is
instructive to examine more closely what was taking place in the field, especially
in the BC Region and Windsor District.
BC Regional Investigation
Although policy and analysis are housed within CSIS HQ, regional employees,
primarily intelligence officers, conduct investigations including source
development (technical and human), community interviews, surveillance, and
related activities.
In the BC Region, Ray Kobzey and David Ayre were the two main intelligence
officers dealing with the Sikh extremism investigation, working under unit head
Jim Francis. Kobzey and Ayre also liaised directly with the analysts at HQ and
often received direction from them.
Through Kobzey’s testimony, and using additional documents, we are able to
examine the CSIS BC pre-bombing investigation.173
Escalating Sikh Extremism
The issue of Sikh extremism first came to the attention of Kobzey in 1981. At
the time, he was a member of the RCMP Security Service based in Vancouver
and working primarily on the Latin American Desk with part-time coverage
of other issues. In November 1981, local newspapers published articles about
the creation of a Khalistan Consulate in Vancouver headed by Surjan Singh Gill.
Kobzey stated at the Inquiry:
171 Exhibit P-101 CAB0321, p. 4.
172 Exhibit P-101 CAB0323.
173 Raymond Kobzey appeared before the Commission on May 23, 2007 (vol. 32, pp. 3715-3777) and on
May 24, 2007 (vol. 33, pp. 3779-3864).
275
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As a consequence of that, I became interested in the issues of
Sikh activism, with respect to the establishment of a homeland
in Punjab to be called Khalistan by the people who were
interested in creating that unique country.174
The Khalistan issue did not gain much prominence at the RCMP Security Service.
However, Kobzey maintained an interest in what was happening and “…sought
to pay more attention to the issues that were surfacing in the newspaper, open
sources, et cetera.”175
In addition to the press attention the Khalistan Consulate had created, another
story surfaced in an interview in the local press. A woman expressed concern
over the apparent disappearance of her husband, who had returned to India in
1980.176 His name was Talwinder Singh Parmar. Kobzey kept tabs on all these
events, and even interviewed Surjan Singh Gill. Subsequent to that interview,
newspaper articles were written about Talwinder Singh Parmar’s absence from
Vancouver and his wife’s concerns about his health and whereabouts.
In late 1981, Parmar was smuggled out of India and returned to Vancouver,
but not without controversy. India had implicated him in the murder of two
policemen and had a warrant out for his arrest. Though India formally requested
his extradition, the Canadian government denied the request, stating that
Parmar was a Canadian citizen and that no formal extradition treaty existed
between Canada and India.177
Eggs Thrown at the Indian High Commissioner
An event that occurred soon after Parmar’s return to Canada brought renewed
attention to the Sikh extremists.
On May 7, 1982, responding to a tip, Kobzey and another RCMP Security Service
officer, Neil Eshleman, were at the Vancouver airport for the arrival of the High
Commissioner from India.178 They were warned of a possible demonstration with
eggs to be thrown at the High Commissioner. RCMP VIP Security was advised
and was present as well. The demonstration and egg-throwing occurred as
predicted.
The officers noted that about 50 to 70 members of the Sikh community were
present, including children. About 35 massed in a group on the sidewalk in
front of the Domestic Arrivals level, donned black robes and produced black
triangular flags. Kobzey identified the group’s leader as Surjan Singh Gill, and
pointed this out to Cpl. Bob Grey of VIP Security Section and Insp. Rob Fowles of
the Vancouver Police Department.
174
175
176
177
178
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3721.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3722.
Exhibit P-101 CAA1087, p. 33.
Exhibit P-101 CAA1087, p. 33.
These events are described in Exhibit P-101 CAB0026, pp. 1-2.
�Chapter III: What Went Wrong?
When the High Commissioner, Dr. Gurdial Singh Dhillon, was leaving under the
escort of VIP Security, the crowd spotted him and surged toward him and the
vehicles, throwing several eggs. Two eggs struck Dr. Dhillon on the right side of
his neck, and several hit the windshield and roof of the car.
Kobzey told the Inquiry that this incident made him aware of the significance of
the protesters, who had announced that they would carry out an act of violence
against an internationally protected person and embarrass the Government
of Canada. Kobzey went on to say that greater attention ought to be paid to
monitoring Sikh activism/extremism. His intelligence report served notice to his
superiors and counterparts at HQ that this event raised the spectre of future
security problems, and that more attention ought to be paid to such issues along
with the allocation of sufficient resources to ensure good coverage. Despite
Kobzey’s efforts, the RCMP Security Service maintained the Sikh extremism
investigation at a low priority.
In 1984, Kobzey began to receive information regarding threats involving
shootings and bombings in relation to the Khalistan issue. His assessment
was that there was a potential threat to both Indian missions in Canada and to
prominent moderate Sikh and Hindu leaders in Canada.179
Operation Bluestar and the Invasion of the Golden Temple
A few months later, on June 5, 1984, the invasion of the Golden Temple enraged
and united Sikhs around the world. Protests immediately escalated. In Vancouver,
20,000 Sikhs protested outside the Indian Consulate, many calling for the death
of Prime Minister Indira Gandhi.180
Following Operation Bluestar and the escalation of Sikh extremism, Kobzey
observed changes in the Vancouver Sikh community. Through interviews with
various individuals, he found that emotions were running high, particularly
among community members involved in the Babbar Khalsa and the International
Sikh Youth Federation in Vancouver. Many community members expressed
their anguish and were vocal about the need for some kind of revenge for the
invasion of the Golden Temple by the Government of India’s military and for the
resulting loss of life. Kobzey became very concerned:
I felt that we had the makings of a serious problem for the
security of Canada, for our citizens, and possibly repercussions
outside of Canada, in terms of Canadian citizens going some
place and creating a problem.181
179 Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3722-3727.
180 Exhibit P-101 CAA1087, pp. 5, 11-13.
181 Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3730.
277
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The Parmar Warrant
To add to the tension, in July 1984 Parmar was released from jail in West Germany,
where he had been held for over a year. He promptly returned to Vancouver.
Kobzey was concerned and brought this information to the attention of his
superiors at the newly created CSIS.182 It was agreed that a CSIS Act section 21(2)
warrant would be sought against Parmar. Kobzey was tasked with preparing the
briefing package to submit to Burgoyne in the HQ CT.183
Level 4 Application for Parmar
Due to the urgency created by the storming of the Golden Temple, the return
of Parmar and the escalating tensions in the community, Kobzey184 applied for
level 4 coverage of Parmar. Kobzey’s application included information about
Parmar’s activities in India and his arrest in West Germany, which Kobzey and
investigators from other CSIS regions had entered into the Narrative Storage
and Retrieval (NSR) system – the national CSIS database.
The NSR provided a useful, centralized resource from which CSIS investigators
across the country could access information about related investigations. For
example, Parmar’s infamous statement in Calgary when he “…strongly urged
Sikhs to unite, fight and kill in order to revenge the attack on the Golden Temple
in the Punjab” was entered into NSR by CSIS agents in Calgary and accessible by
Kobzey.
The application for a level 4 investigation was made: to identify the links between
Parmar and Sikh terrorist elements in India; to determine Parmar’s intention
towards the Khalistan liberation movement, and his intent to use violence
against Indian interests in Canada and abroad; to identify and assess Parmar’s
prominence within the Canadian Sikh community and thereby establish the
threat he posed to the Government of India and its interests in Canada; and to
permit the direction of all aspects of CSIS resources against Parmar.185
Kobzey’s application package was sent to HQ and the information was
incorporated into the HQ application to TARC.186 The HQ application contained
information to which Kobzey did not have access, such as information from
External Affairs and other regions. This included information that Parmar was
viewed within the Canadian Sikh community as something of a hero whose
influence was second only to Bhindrawale. The HQ assessment concluded that
the pro-Khalistan movement in Canada could be expected to become much
more significant as a result of Parmar’s activities.187 HQ’s centralized role meant
182 The RCMP SS had been disbanded and CSIS created on July 16, 1984.
183 Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3731, 3733.
184 The information in this section is drawn from Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 37313741.
185 Exhibit P-101 CAB0139, p. 4.
186 See Exhibit P-101 CAB0139 for the HQ application to TARC.
187 Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3739-3740; Exhibit P-101 CAB0139, p. 3.
�Chapter III: What Went Wrong?
that the level 4 application contained all the relevant information. However, the
CSIS top-down approach meant that investigators such as Kobzey might not be
privy to certain relevant and useful information.
Warrant Application to Intercept Parmar
In August 1984, prior to receiving level 4 approval, Kobzey began to work on
a warrant application package for authority to intercept Parmar.188 It took
one month to prepare the material, using local files and the NSR, along with
additional information from the VIIU, VIP Security, and Immigration officials,
because Kobzey’s other duties precluded him from working full-time on the
application.
Since any warrant product on Parmar would likely need translation, the warrant
application went all the way up the chain in BC Region to the DG, Randil Claxton.
This ensured that Kobzey’s superiors supported the warrant and that there was a
commitment “…to obtain the services of a security-cleared translator to debrief
the product; and that we had the space within the technical section available
within their bank of equipment for them to bring the line up, should the warrant
be approved.”189 The CI&W chief was also required to sign off on the warrant,
since it would be his responsibility, if the warrant was approved, to set up the
line, maintain it and debrief personnel. The CI&W Section communicated the
final warrant application to HQ in late September or early October.190
Kobzey saw his role as “…preventing acts of violence against citizens or people
under our protection in this country or against property or the same things
happening outside of our country by our citizens.”191 He felt that the situation
with regard to Parmar was urgent, due to the latter’s violent threats, which
were documented in the warrant application. These included what Kobzey
characterized as sinister aspects of Parmar’s preachings, including: killing 50,000
Hindus; harassment of Embassy, High Commission and Consulate personnel;
blowing up of embassies; and seeking revenge on the Hindu government.192 As
well, the fact that the threats were tied to religious fervour increased Kobzey’s
sense of urgency. He told the Inquiry that:
The possibility of a person being so upset at sacrilege or
alleged sacrilege which took place against the holy site or
shrine and would cause them to commit acts of violence, was
something that I was attuned to and aware of.193
Kobzey also commented on the history of the Sikhs and how they not only
prided themselves on their involvement in the military, but that they were also
“…valorous in the way they conducted themselves in battle.”194
188
189
190
191
192
193
194
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3744.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3745.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3741-3760.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3743-3744.
Exhibit P-101 CAB0144, pp. 3-4.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3753.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3753.
279
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Parmar’s allegedly close association with Bhindranwale suggested that he would
have access to weapons and explosives and to persons who were skilled in their
use. Kobzey inferred from the association of these two men that Parmar might
have connections to members of the Sikh community who had the technical
expertise to develop explosive devices, and, potentially, to blow up embassies.
Kobzey therefore considered it critical to obtain a warrant quickly to learn as
much as possible about Parmar, his associates, his contacts worldwide, any
involvement in the movement of money, and whether he was looking for arms,
munitions, and so on.195
The warrant application also addressed rumours within the community that
Parmar was an agent of Indian Intelligence. His 13-month incarceration in a
West German jail was seen by some community members as a ploy to give him
credibility with the Canadian Sikh community. Kobzey saw some merit in the
argument that Parmar had something to hide – perhaps training in the field of
intelligence work.196
Kobzey stressed the relevance of these concerns to the warrant application. On
the one hand, Parmar espoused terrorist actions or acts of violence for a political
objective. On the other, if he were an intelligence officer, he would also be a
security threat to Canada through the creation of problems and unrest within
the émigré community as a result of portraying himself as a terrorist.197
Kobzey was further concerned that, if Parmar was an agent of the Indian
Intelligence Service, he would inspire others to commit acts of violence. He
noted that the warrant was essential to enable the agency to determine whether
Parmar was in fact a terrorist threat, and what his motives were. A major concern
was that Parmar portrayed himself as a fundamentalist Sikh, although some
intelligence suggested that he was not. The goal was to deploy appropriate
resources to determine exactly what Canada was facing.198
A five-month process ensued until the warrant was granted.199 Kobzey had
continued to investigate Sikh extremism in Vancouver, albeit with great difficulty
due to the lack of a warrant and no human source coverage. Meanwhile, tensions
in Vancouver continued to escalate in response to actions in India.
The Assassination of Indira Gandhi and Reaction in Canada
On October 31, 1984, the assassination of Prime Minister Indira Gandhi by her
Sikh bodyguards added fuel to the escalating tension between Sikhs and India
worldwide:
195
196
197
198
199
Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3754-3755.
Exhibit P-101 CAB0144, pp. 5-6.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3756-3757.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3758-3759.
See Section 1.3 (Pre-bombing), Parmar Warrant.
�Chapter III: What Went Wrong?
That evening, full-scale anti-Sikh rioting broke out across India,
except in the Punjab. In New Delhi, gangs of Hindus roamed
the streets beating, killing, and setting fire to Sikhs. The
government acknowledged that 2717 Sikhs were killed in riots,
with 2150 in Delhi alone. 50,000 Sikhs fled from the capital to
the Punjab and another 50,000 escaped to government-run
refugee camps.200
In Canada, many Sikhs celebrated the death of Indira Gandhi.201 Kobzey had
strong concerns because of the manner in which the assassination was planned
and carried out. After killing the Prime Minister in the presence of army staff, the
bodyguards laid down their weapons and said that they had done what they
needed to do. Kobzey noted that this indicated a religion-based motivation
beyond the norm. The inference was that there could be similar conviction within
the Babbar Khalsa group, or by Parmar, to carry out such actions in Canada. It
was incumbent upon CSIS to get the warrant in place to learn more and advise
the Government of Canada on how to proceed. Kobzey wrote to HQ about the
delay regarding his urgent application for a warrant for Parmar.202
In the meantime, events in Vancouver continued to be of concern. There were
conflicts over control of the gurdwaras, which were a huge source of money,
as Sikhs would give generously to them. Parmar was visiting gurdwaras and
soliciting funds, which deeply disturbed Kobzey and those whom he interviewed
in the community.203
In conducting his inquiries, Kobzey was in contact with the VPD’s Indo-Canadian
Liaison Team. They too were concerned by what they saw. Kobzey stated that, in
the intelligence community, Sikh extremism was an issue of great concern that
needed to be addressed.204
Warrant Approval for Parmar Finally Obtained
On March 14, 1985, the Parmar warrant was approved by the Federal Court
and deemed valid for a year.205 BC Region was notified on March 18, 1985.206
On March 28th, the BC Region Chief of CI&W informed the DG CI&W that the
intercept on Parmar had been installed on March 25, 1985, over five months
after BC Region submitted its urgent application for a warrant.207
Delays in Finding a Translator
BC Region employed a transcriber, Betty Doak, to report on any information
spoken in English as well as to record when calls were made, to whom, and
200
201
202
203
204
205
206
207
Exhibit P-101 CAA1087, pp. 11-12.
Exhibit P-101 CAA1087, p. 13.
See Exhibit P-101 CAB0166.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3764.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3765.
Exhibit P-101 CAD0024, p. 2.
Exhibit P-101 CAA0133, p. 1.
Exhibit P-101 CAB0206, p. 1.
281
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at what telephone number. She also was to have a coordinating role with the
translator. At the time, however, BC Region did not have a Punjabi-speaking
translator.
On May 16, 1985, BC Region sent out an urgent request to all regions for
recruitment of Punjabi translators.208 In the meantime, BC Region arranged
for the Parmar warrant product to be shipped to Ottawa for translation. This
resulted in two major problems. First, Kobzey and Ayre did not have contact
with the translator to discuss the intercept product. Normally, they would have
had daily access to the translator to discuss any concerns or questions and to
keep the translator updated on the progress of the investigation. The second
problem was that the delay in mailing the tapes meant a delay in translation;
and this delay ballooned into an extensive backlog of tapes.209
Despite instructions from HQ, the urgency of the situation and the priority of
the threat, nothing changed in terms of the translation of the Parmar product
until June 7, 1985 when a security-cleared translator was found for BC Region
after the passage of several months.210
The next day, Kobzey took his annual leave and did not return until the evening
of June 22nd. The last thing Kobzey did before he took his leave was to “…brief
up the translator … [on] what we were looking at with respect to the line ….”211
There was no time to develop a relationship with the translator, to go over the
transcript and answer questions, or for the translator to become familiar with
the target, Parmar.
Physical Surveillance Coverage
In April 1985, soon after obtaining the Parmar warrant, Kobzey and Ayre
submitted a request for physical surveillance (PSU) coverage of Parmar. The
purpose was to complement the intercept warrant, especially in anticipation of
the upcoming one-year anniversary of the storming of the Golden Temple, and
Indian PM Rajiv Gandhi’s June visit to the United States.212
Kobzey conducted briefings for the PSU surveillants to guide them on what
information the investigators needed from surveillance. The surveillants were
tasked with locating Parmar, and were provided a priority list of individuals
associated with Parmar to cover. Kobzey would update the surveillants’ folders
if new information came in from other regions.213
Kobzey advised them that the target they were following was “…a person who
was involved in activities that were extremely … dangerous.” He testified that
the surveillants “…knew what they had to do. And they knew the importance
of it.”214
208
209
210
211
212
213
214
Exhibit P-101 CAB0234, p. 1.
For an in-depth description of the tape problems, see Section 4.3.1 (Post-bombing), Tape Erasure.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3814.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3811-3814.
See Exhibit P-101 CAB0209 and Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3793-3794.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3827-3828.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3828.
�Chapter III: What Went Wrong?
However, coverage was neither ongoing nor immediate. Coverage of Parmar
was sporadic during April and May, and ongoing daily coverage of Parmar did
not begin until June 1, 1985.215
Kobzey had to lobby the DDG ops, Kenneth Osborne, to get any PSU coverage at
all, due to the lack of resources and the priorities of other targets in BC Region.
Kobzey indicated that he was able to obtain surveillance more regularly as the
profile of Sikh extremism rose.216
Further Evidence of Growing Tension
On May 28, 1985, BC Region received an important telex from the DG CT,
Deschenes, warning of the heightened tensions created by the upcoming
anniversary of the storming of the Golden Temple and the concurrent visit of PM
Rajiv Gandhi to the US. Kobzey testified that, based in part on the Deschenes
document, Sikh extremism was now considered a threat that matched the priority
level of CI. Kobzey testified that information from this document, the attempted
murder of an Indian government minister in New Orleans, and arrests made in
the US earlier that year, all highlighted the significance of potential violence
against Gandhi, or other Indian ministers, and HQ was advising all the regions
and districts to be extra vigilant with respect to the issues of Sikh extremism.217
The Deschenes memorandum also called for increased scrutiny of wiretap
information. This expedited process meant that information from the intercepts
was urgent, and that the investigators involved had immediate access, so they
or HQ could do whatever was required with that information quickly.218
On June 4, 1985, the Duncan Blast occurred. On that day, two CSIS agents
witnessed Parmar, Reyat and an unidentified third person enter a wooded area
near Duncan, BC.219 The surveillants heard a loud bang which was interpreted
by the senior agent as a gunshot. These events resulted in uninterrupted
mobile surveillance of Parmar until June 17, 1985, an unprecedented amount of
coverage for a CT target at the time.
Incomplete Information
When Kobzey took his leave on June 8, 1985, the belief in BC Region appeared to
be that the elevated threat situation had passed, though tensions would remain
high. However, in his testimony at the Inquiry, Kobzey expressed his view that
BC Region was not in possession of all the relevant information that could have
aided in a more accurate assessment of the continuing threat, and would have
resulted in him delaying taking leave.220
215
216
217
218
219
220
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3795-3796, 3828.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3774.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3790.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3791-3792.
See Section 1.5 (Pre-bombing), Mr. X.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3805.
283
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First, CSIS had not received the June 1st Telex sent from Air India in Bombay to
airports around the world. It stated that vigilance should be maintained for
the entire month of June and warned of time-delayed devices being placed
in aircraft.221 Kobzey believes this document would have given him the “…
opportunity to ask for extended surveillance for the entire month.”222
Second, the information gathered regarding the Duncan Blast had been
misinterpreted as a gunshot.223 Kobzey testified that, had the information from
the surveillants been described differently – for example, if they had suspected
dynamite in the blast – he would have acted much differently.224
Third, CSIS BC Region did not benefit from the experience being developed in
the Windsor area, where another Sikh extremism wiretap had been set up prior
to the bombing. This intercept related to a US operation in May 1985. A young
CSIS investigator, Charlie Coghlin, had been reviewing the intercept product
and had developed an ear for the code words used by Sikh extremists.225
Because of incomplete information, Kobzey believed he could take vacation
leave. He was facing burnout due to long hours on the investigation with little
institutional support. He went sailing and was not reachable during his leave.
This was the pre-cellphone era, and he had no radio communication on board
his vessel.226
Ayre was left in charge of the Sikh extremism investigation in BC Region,
in consultation with other members. During that time, Osborne decided to
terminate surveillance on Parmar, after a rather lengthy continuous period. That
decision was taken prior to Kobzey’s return from vacation.
During Kobzey’s absence he had not been made aware that surveillance had
been called off against Parmar, nor of the Khurana information and the alleged
“wait two weeks” comment.227 Code words used by the subjects of the Windsor
investigation had not been shared with BC Region, and so the use of the same
code words in the Parmar intercept material was not caught. Kobzey testified
about returning home and learning of the bombing. His first reaction was:
“That expletive Parmar, he did it, they did it”; and that was my
gut instinct ....228
The June 17, 1985 Situation Report
Despite Kobzey’s absence, the BC Region continued to assess the threat from
Sikh extremists as high. BC Region submitted its daily situation report to assist
221
222
223
224
225
226
227
228
Exhibit P-101 CAA0174; See also Section 1.2 (Pre-bombing), June 1st Telex.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3811.
See Section 1.4 (Pre-bombing), Duncan Blast.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3805.
Exhibit P-101 CAA0308, CAA0309(i).
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3813, 3838.
CSIS BC Region was aware of the Khurana information.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3812.
�Chapter III: What Went Wrong?
CSIS HQ in drafting the June 18, 1985 TA requested by the RCMP. The report
noted that although no incidents had occurred, the threat potential from the
Sikh community continued to be high. BC Region warned about the particular
nature of the threat, describing it as political, with religious fanaticism being
used as the driving force to achieve its goals.
Ultimately, they warned that “…time is of no consequence to the Sikh extremist
element in reaching their objectives” and “…we can expect the overall problem
to remain constant for some time to come.”229 BC Region appeared to understand
that the Sikh extremist threat was real and serious, but remained unable to
provide sufficient insight to prevent the bombing of Air India Flight 182.
Windsor District Investigation
In 1985, the secure CSIS communication system was not employed in all districts.
The Toronto office, responsible for the entire Southwestern Ontario Region, had
various district offices reporting to it. One of those was the Windsor District,
an office with three staff in 1985. Toronto had access to NSR, but the district
office did not. This meant that messages for Windsor would be sent through
the Toronto office. Similarly, Windsor had to report to HQ through the Toronto
office, where the manager would sign off on reports before they were entered
into NSR.230
Early in 1985, Windsor District observed activity related to Sikh extremism. In fact,
HQ sent out a request on February 21, 1985 for further information, specifically
in response to material received from Windsor District.231 An escalation of this
activity over the ensuing months led to a cross-border police investigation, with
the RCMP taking the lead in Canada. CSIS gathered intelligence from the early
stages and throughout the police investigation.
New Orleans Plot
Events in the US in early May 1985 (the “New Orleans Plot”) led to greater CSIS
attention to the activities of Windsor-area Sikhs. The New Orleans Plot involved
an attempted assassination in the US. A group of Sikhs in the New York area
initially plotted to assassinate Prime Minister Rajiv Gandhi, but turned their
attention to a softer target, an Indian cabinet minister who was convalescing
in a New Orleans hospital.232 The US Federal Bureau of Investigation (FBI) was
aware of the plot, and a number of the individuals involved were arrested. The
assassination attempt was foiled, but two fugitives from the FBI, Lal and Ammand
Singh, were not caught and it was believed they escaped to Canada.233 Days
after the bombing of Air India Flight 182, these two individuals were named in
Canadian newspapers as potential suspects.
229
230
231
232
233
Exhibit P-101 CAA0219.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3424-3425.
Exhibit P-101 CAF0111; Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3424-3425.
Exhibit P-101 CAA1086, p. 3, CAA1099, p. 2.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, pp. 6391-6392.
285
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The FBI soon found links between the Sikhs from the New Orleans Plot and
Canadian Sikhs. An RCMP threat assessment dated June 14, 1985 reports that:
A current FBI and Secret Service investigation has implicated
Vancouver, Toronto and Windsor Sikhs with the conspirators
arrested in New Orleans in the foiled Gandhi assassination
plot.234
On May 13, 1985, Russell Upton wrote a memo addressed to the CSIS
representative in Washington and the CSIS Director General of Foreign Liaison,
Toronto Region and Windsor District, regarding his concerns following the
discovery that the New Orleans Plot had potential Canadian connections. In it
he stated:
It would appear that the … Babbar Khalsa group, in Windsor
and area has [established] an important relationship with
US activists. This Canada/USA relationship in an area of Sikh
terrorism is of special interest and concern to us at this time.235
Around the same time, the Sikh Desk at HQ gained another analyst, Bill Dexter.
He took over the analysis of reports from the regions to free up Burgoyne to
concentrate on the developments in Windsor:
[B]ack in early June, I was involved with an operation down
in Windsor, Ontario, where we had a group of Sikhs that were
trying to smuggle Uzi machine guns into Canada, and a lot of
my time was devoted to that operation.236
Over the next few weeks, Burgoyne, considered the CSIS Sikh expert at HQ,
became focused entirely on the Windsor situation, writing warrant applications
and overseeing the results of the investigation. It was believed at the time that
Sikhs in the Windsor area were attempting to gather weapons to send to India.
However, Inspector Lloyd Hickman from RCMP Protective Services proposed an
alternate scenario in a May 28, 1985 memo:
The only area of concern from the Protective Policing area was
the fact that these Sikh extremists in the Windsor/Detroit area
who are buying weapons may not be targeting the upcoming
Gandhi visit, but may in fact be targeting Indian interests in
Canada of which we have a protective responsibility.237
234
235
236
237
Exhibit P-101 CAC0438.
Exhibit P-101 CAF0826, p. 3.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3432-3434.
Exhibit P-101 CAC0356.
�Chapter III: What Went Wrong?
Hickman had no further involvement in the Windsor investigation.238
On June 11, 1985, the RCMP Windsor Detachment executed search warrants
on the homes of Avtar Singh Kooner and Surjit Singh Agimal. The police were
looking for weapons allegedly imported from the US. Kooner was known to
have travelled to New Orleans in early May, but there was no further evidence
to link him to the New Orleans Plot. After the searches, the RCMP launched
an interview program involving Windsor NCIS and they were aided by CSIS’s
Coghlin.239
As well, the RCMP reported that they were continuing to work “…shoulder to
shoulder with representatives from the Federal Bureau of Investigation and the
US Secret Service from Detroit and have had an excellent working relationship
in this regard.”240 That “excellent” relationship did not extend to CSIS, perhaps
foreshadowing some of the difficulties to be experienced later in the Air India
investigation.
On June 17, 1985, CSIS Windsor District sent a damning telex through Toronto
Region to HQ. The CSIS investigator commented that CSIS found out about the
RCMP searches only by accident, and had not been made aware through the
usual liaison channels:
Not wishing to stir up any hornet’s nests, the writer,
nonetheless feels obliged to state that I personally felt the
searches conducted by the RCMP in Windsor were premature
and proved ineffectual.… The searches came up negative
because neither Agimal nor Kooner are stupid enough to keep
such weapons in their homes. In the final analysis, the RCMP
came up with one handgun and some passport falsification
equipment …. During questioning, Kooner as much as told
their interrogators to either charge him, if there was any
evidence, or release him. He was released.241
Additional comments in the telex show that similar strains on the RCMP-CSIS
relationship were being felt in Toronto.242
Effect on Other Investigations
The Windsor investigation did not result in any intelligence that could have
prevented the bombing, but it certainly had an effect on the subsequent
investigation. A CSIS wiretap was in place during the Windsor investigation.
238
239
240
241
242
Testimony of Lloyd Hickman, vol. 34, May 28, 2007, p. 3978.
Exhibit P-101 CAB0304, p. 3.
Exhibit P-101 CAB0304, p. 4.
Exhibit P-101 CAB0311, pp. 2-3.
Exhibit P-101 CAB0311, p. 5.
287
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While reviewing the intercept material, Coghlin became aware of certain
common code words and phrases. It was not realized until months after the
bombing that similar code words were used in the Parmar intercepts.243 At that
time, Coghlin had been transferred to HQ to help with the analysis and was
given access to the translators and transcriber logs for the Parmar intercept.
HQ Sikh Desk, however, had access to both reports on Windsor intercepts
and those Parmar intercepts that had been translated prior to the bombing.
The work was split, with Burgoyne working on the Windsor investigation and
Dexter working on the Vancouver investigation. The “need-to-know” principle
may have affected the information that flowed between them. Two additional
complications may also have played a role in the lack of understanding of the
code words before the bombing. First, the Parmar intercept product was subject
to a severe backlog. Second, the Windsor reports would also have been delayed
to some extent by the routing process that required such reports to go first to
Toronto and then to HQ.
Finally, the Windsor investigation may have had one severe consequence: it
seems to have provided further evidence that Sikhs were interested in arms
acquisition and trading, rather than anything to do with bombs, therefore
reinforcing the very narrow view regarding the means of threat (assassination
as opposed to sabotage) posed by Sikh extremists that seems to have pervaded
CSIS at the time.
The June 17, 1985 Situation Report
Windsor District also submitted a situation report to assist CSIS HQ in drafting
the June 18, 1985 threat assessment. It noted that the RCMP’s raids on the
residences of Kooner and Agimal were ineffectual and served only to bolster
the Sikh extremists’ status in the Sikh community.
Windsor District warned that the threat against Indian interests remained high.
They expressed their view that “…the BK will simply ride out the RCMP campaign,
re-group after the force loses interest and attempt to strike at some less high
profile target, once the heat is off.”244 As in the BC Region, Windsor investigators
appeared to understand the seriousness of the Sikh extremist threat, but could
provide little insight into the specific nature of that threat.
3.3 CSIS’s Threat Assessment Failures
What Went Wrong?
In the year prior to the bombing, CSIS had increasingly dedicated resources
to investigate the growing threat of Sikh extremism in Canada. CSIS issued 70
243 Exhibit P-101 CAA0308, CAA0309(i).
244 Exhibit P-101 CAB0312, p. 2.
�Chapter III: What Went Wrong?
threat assessments concerning Sikh extremism and aviation security, including
13 that related specifically to Air India.245 It is clear that CSIS was investigating
this growing threat and disseminating information to advise other agencies
about it. What then, went wrong?
Effective intelligence assessment requires successful efforts at every stage
of the intelligence cycle: timely, relevant setting of intelligence priorities;
comprehensive intelligence collection; analytical tools to effectively process
information; and information channels to disseminate and discuss the
intelligence.
The Commission’s review of the CSIS investigation into Sikh extremism prior
to the bombing uncovered deficiencies in each component of the intelligence
cycle. The primary reasons for the deficiencies in the CSIS threat assessment
process are:
• CSIS was in its infancy when the Air India bombing occurred. As
such, already scarce investigative resources were diverted to
dealing with transition issues and to developing operational
policies and a clearer understanding of its new mandate.
• CSIS failed to adjust its intelligence priorities in a timely manner. The
agency failed to recognize the changing threat paradigm in the
early-to-mid 1980s from counter-intelligence to counterterrorism
and failed to recognize the threat of Sikh extremism in particular.
• CSIS collection and analysis efforts with respect to the threat of Sikh
extremism were clearly hindered by a lack of resources and
expertise.
• CSIS intelligence analysis capacity was hampered by “tunnel vision”
about the expected nature of threats to Indian interests in Canada.
• Information sharing within and outside the agency was not freeflowing, resulting in threat assessments and responses that were
not fully informed.
• There was a lack of coordination in the Government’s assessment
and response to the threat of Sikh extremism, which impeded
communications channels for feedback that could have
improved or challenged CSIS TAs. This prevented CSIS from
producing meaningful TAs that were relevant to the RCMP response
operations.
The effects of each of these intelligence failures are discussed below.
245 Exhibit P-101 CAB0902: Security Intelligence Review committee, “CSIS Activities in Regard to the
Destruction of Air India Flight 182 on June 23, 1985”, November 16, 1992 [1992 SIRC report].
289
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3.3.1 The Infancy of CSIS
It would be tempting, but wrong, to conclude that the Air India tragedy
simply came at a bad time. CSIS had been created less than one year earlier,
and the national security community was still dealing with the difficulties of
adjusting to the new structure recommended by the McDonald Commission
and implemented by the Security Intelligence Transition (SIT) Group. The fact
that CSIS was operating when it was incapable of doing so efficiently is not an
acceptable excuse.
Jim Warren, who reviewed the CSIS Air India file in 1986 during his term as DG
CT, admitted that CSIS was not “…up and running at full speed” when it was
created on July 16, 1984.246 CSIS itself opened its submission to the Honourable
Bob Rae with the statement that, at the time of the Air India bombing, it was
an organization in its infancy that had not yet had the opportunity to fully
resolve a number of policy and infrastructure issues. It was operating new
administration, accommodation, communications and computer systems.
CSIS had yet to develop a methodology to deal with a new system of extensive
external review.247
The Inquiry evidence shows that the CSIS Act was passed with virtually no
attempt to identify the effect of civilianization on day-to-day operations. The
new agency was under-resourced, and no attempt was made to infuse the
agency with any coherent identity, all of which made the transition chaotic. The
operations of the new civilian service suffered, as all personnel experienced a
steep “learning curve” in understanding the effect of their new identity on their
pre-existing duties. The evidence leaves the distinct impression that CSIS was
created with little thought to the practicalities of running a national civilian
intelligence agency.
This lack of preparation affected CSIS operations. Important investigative
initiatives were delayed or not initiated. Approval for the “urgent” warrant to
intercept the communications of Parmar was delayed for five months due to the
“priority” need to convert old RCMP SS warrants to new CSIS warrants.248 This
delay led to an important lost opportunity for CSIS to obtain intelligence and
potential evidence that would be subsequently needed by the RCMP.
The Commission has considered the influence of the infancy of CSIS on the
agency’s ability to assess the threat of Sikh extremism, and asked whether the
problems that occurred were inevitable or avoidable.
Gaps in Policies and Procedures
The focus of the drafters of the CSIS Act was on passing the legislation, and little
priority was placed on developing the policies and practices necessary for the
246 Testimony of James Warren, vol. 48, September 19, 2007, p. 5942.
247 Exhibit P-101 CAA1086, p. 1.
248 The full story can be found in Section 1.3 (Pre-bombing), Parmar Warrant.
�Chapter III: What Went Wrong?
new Service’s day-to-day operations. CSIS management was left to fill these
gaps in policy and procedure, a task that proved to be significant, cumbersome
and unsupported by adequate resources.
The Focus on Legislation
It is important to understand the political climate under which the CSIS Act was
passed. While the Government began transition discussions in 1982, the focus
remained on the drafting of the legislation itself. The first legislative attempt, Bill
C-157, was studied extensively over the summer of 1983 by a special committee
of the Senate (the “Pitfield Committee”). Following the Pitfield report, issued
in November 1983, the Bill was allowed to die on the order paper. The second
legislative attempt, Bill C-9, which incorporated virtually all the recommendations
of the Pitfield Committee, was still in progress at the beginning of 1984. At that
time the creation of the new Service was still not a certainty.249
Realizing that a general election was forthcoming in September 1984, the
Liberal Government became increasingly preoccupied with “…getting the
legislation through and getting on with the creation of the new organization”
before the Parliamentary session closed for the summer.250 During this chaotic
political period, the CSIS Act was the last piece of legislation passed by the Liberal
Government, just two days before Parliament recessed and two weeks before
the newly-appointed Prime Minister, John Turner, called the election.251 The Act
was proclaimed in force just two weeks later, on July 16, 1984. The rush to pass
and proclaim the legislation left little time for the development of the policies
and procedures needed to guide the new agency.252 A further complication was
that, as a result of the September election, a new government was formed by the
Progressive Conservative Party, which had little familiarity with the intricacies of
the transition process and the new CSIS mandate.253
Jacques Jodoin, the Director General of Communications Intelligence and
Warrants at CSIS HQ, commented on his impression of the work atmosphere in
CSIS at the time:
You had to – like they say – jump off the truck and keep
running; so we did. And it caused some problem, it caused
some shortcomings and yes, that was the situation.254
When the CSIS Act passed and the SIT Group dissolved, all CSIS personnel were
asked to “jump off the truck” that had been pushing them towards civilianization
and to “keep running,” with little guidance down the path envisioned by the
249
250
251
252
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6206.
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6206.
Testimony of Geoffrey O’Brian, vol. 16, March 5, 2007, p. 1532.
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, pp. 1559-1560; Testimony of Jacques Jodoin, vol.
23, May 4, 2007, p. 2246; Testimony of Raymond Kobzey, vol. 33, May 24, 2007, p. 3819.
253 Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1560.
254 Testimony of Jacques Jodoin, vol. 23, May 4, 2007, p. 2246.
291
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transition group. CSIS, in its first incarnation, was under-resourced, and faced
with the daunting tasks of establishing its new civilian identity and developing
the policies and procedures that conformed to its new mandate, while at the
same time furthering its ongoing investigational priorities.
Failure to Adequately Resource the New Service
CSIS was not provided with adequate resources to carry out its operations,255
and was stretched for personnel for years after its creation. There were many
vacant positions, even in the first organization charts.256 There were no new
recruits for some months, while CSIS set up its own training academy at Camp
Borden. The Camp Borden training program took six months, after which the
recruits had to complete training in the field.257 In this time of transition, CSIS
managers were forced to allocate their scarce resources in the best possible
manner to meet CSIS intelligence requirements.258 Russell Upton, who was
in charge of allocating resources within a large CT section that included Sikh
extremism, noted that, while he fully recognized the seriousness of the Sikh
extremist threat, due to this overall lack of resources, he was unable to spare
any to augment the admittedly under-resourced HQ Sikh Desk.259
Failure to Establish a Separate Civilian Identity
An independent advisory team, headed by the Hon. Gordon F. Osbaldeston, was
given a three-month term by the Solicitor General to produce recommendations
regarding the CSIS framework of operational policies, the design of personnel
management policies and any possible requirement for further studies.260
The October 1987 Report, “People and Processes in Transition” (known as the
“Osbaldeston Report”), found that CSIS’s operations were hampered by its
failure to separate from its police background and to make the transition to its
new civilian identity.
…there must be more capital expenditure for accommodation
and administrative needs. CSIS still shares many operational
and administrative facilities with the RCMP. A large percentage
of CSIS employees still go to work in the morning at RCMP
headquarters, making it rather difficult to generate and
maintain the esprit de corps that is so important.261
For months after the separation, most lower-level CSIS personnel continued to
work in the same building as the RCMP, while CSIS management were housed in
255
256
257
258
259
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6204.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6122.
Testimony of Raymond Kobzey, vol. 33, May 24, 2007, p. 3818.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6183.
See Section 3.3.3 (Pre-bombing), Failure to Allocate Resources for a detailed description of the effect of
the lack of resources on CSIS pre-bombing investigation.
260 Exhibit P-101 CAA0569, Appendix A: “Terms of Reference”.
261 Exhibit P-101 CAA0569, p. 29.
�Chapter III: What Went Wrong?
a separate building.262 CSIS personnel still used RCMP stationery and were not
issued business cards identifying their status as employees of the new civilian
Service.
The separation process created turmoil in the relationships within the ranks of
both the RCMP and CSIS. Some viewed the separation positively: there were
those within the RCMP who were glad that the “barn-burning troublemakers” in
the RCMP SS were gone,263 and some within the RCMP SS that felt the separation
was simply a formal recognition of long-standing conditions.264 Others noted
the negative consequences of the separation. The “brotherhood” that developed
during the common training at the RCMP Depot was lost.265 The ability of
members of the Service and the RCMP to chat informally, as had been the case
prior to separation, was impeded.266 The respected RCMP identity was taken
away and the new civilian Service had yet to establish any identity of its own.267
At the same time, in order to bolster the ranks, CSIS allowed for “direct entry”,
which meant that police officers could join CSIS directly, bypass the requirement
to attend Camp Borden and assume a higher rank than the civilian recruits who
were required to attend training.268 This procedure created tension within CSIS
as testified to by Geoffrey O’Brian, a member of the SIT Group, who went on to
hold numerous senior positions in CSIS:
…if you were a young person who joined CSIS, and started off
at training, and suddenly here was someone else who’d just
become a member of CSIS but had a police background and
they jumped two levels on you; … there was I suppose the
inevitable tension.269
The “direct entry” procedure also did not help CSIS move away from its police
roots towards greater civilianization, a complaint that was echoed by both SIRC
and the Osbaldeston Report.
Recognized Need for Wide-scale Policy Revisions
The need for a review and rewrite of all CSIS policies became apparent early on.
Archie Barr admitted that the SIT Group did not have the time to write many
policies for the new Service during the transition process. Even basic policies
relating to new staffing, pay and administration were yet to be developed.270
262 Testimony of James Warren, vol. 48, September 19, 2007, p. 5941.
263 Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1561; Exhibit P-437: Statement of Archie Barr, p.
4.
264 Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1561.
265 Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1561.
266 Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3573.
267 Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1562.
268 Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, pp. 1563-1564.
269 Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, pp. 1563-1564.
270 Exhibit P-437: Statement of Archie Barr, p. 9.
293
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The few policies that were issued tended to focus more on what CSIS was not
to do, rather than what it was to do and how it was to do it. CSIS was no longer
in the evidence-collection business.271 CSIS collected only information that was
“strictly necessary” to carry out its mandate. CSIS would protect its methods,
the identities of sources and third party information.272 It would be a more
transparent agency, subject to political control and independent reviews. These
policies made clear that CSIS was not to make the same mistakes as the RCMP
SS. However, they did not make clear just how CSIS was to achieve that result.
On August 28, 1984, the Solicitor General, the Honourable Robert Kaplan, issued
a ministerial directive,273 declaring that all ministerial policy direction provided
to the RCMP SS would remain in effect for the new civilian Service to the extent
that it was not inconsistent with the CSIS Act. Kaplan acknowledged that:
There is undoubtedly a need to review all existing directions
to identify those which require revision or updating and I
understand that such a review is already being planned. I
welcome this undertaking and look forward to being kept
advised of the progress being made.274
While Kaplan understood the need to review and revise all policies for compliance
with the CSIS Act, no policy task force was formed to carry out this daunting
undertaking. Instead, CSIS personnel were expected to rewrite policy while
dealing with ongoing operational imperatives. Some even felt that the policywriting process should be postponed until CSIS had operated for some time in
order to discover the practical changes that the new mandate would require.275
It was understood that specific guidelines and policies would be developed as
the agency matured. This approach, however, overloaded CSIS management
with work and left personnel to operate with little guidance.276
New Legalistic Policies and Procedures
The policy-writing task itself was complicated and time-consuming. The
Act imposed unprecedented legal oversight on CSIS activities277 and, as no
jurisprudence existed, nobody really knew what to expect.278 Unlike in the days
271 Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6124. See, for example, Exhibit P-101
CAA0040: Archie Barr issued a memorandum stating that “…as the CSIS Act contains no requirement
for collection by CSIS of information for evidentiary purposes, no such capacity will be provided for
within CSIS facilities.” The effect of this policy direction on CSIS operations is discussed in Section 4.3.1
(Post-bombing), Tape Erasure.
272 Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6124.
273 Exhibit P-101 CAA0091.
274 Exhibit P-101 CAA0091.
275 Exhibit P-437: Statement of Archie Barr, pp. 8-9.
276 Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3572.
277 For example, section 21 of the CSIS Act required Federal Court approval for all CSIS warrants. The Official
Secrets Act under which the RCMP SS operated had required only the signature of the Solicitor General
for warrant applications.
278 Testimony of Jacques Jodoin, vol. 23, May 4, 2007, p. 2245; Exhibit P-437: Statement of Archie Barr, pp.
8-9.
�Chapter III: What Went Wrong?
of the RCMP SS, legal services became a major part of the CSIS operational
decision-making279 – a legalistic, bureaucratic, cumbersome, but necessary,
process.280
Chris Scowen, de facto Deputy DG CT at the time of the bombing, told the
Commission that they were “…walking on eggshells for the first months and
the first couple of years” because there was uncertainty about which activities
were affected by the Act and how. CSIS management relied heavily on the two
lawyers in the Legal Branch for interpretations and explanation as to how the
Act would apply.281
CSIS management faced the overwhelming tasks of revising administrative
and operational policies to conform to the new legalistic requirements, while
simultaneously furthering existing investigations and initiating new ones. Each
of these tasks could have required management’s full attention.
The Director, Ted Finn, and his five Deputy Directors were responsible for the
rewriting of policies to conform to the new CSIS mandate. They held weekly
meetings to develop the necessary operational and administrative policies
and procedures. However, as time passed, CSIS experienced increasing
administrative difficulties, and the greater part of the meetings was spent
discussing administrative, staffing and financial problems, rather than
operations.282 Ultimately, the need to revise basic administrative policies and
practices proved so overwhelming that the development of operational policies
and the furtherance of CSIS investigations suffered.
Lack of Clear Procedures for Policy Development
Even when CSIS did attempt to write policy, there appeared to be no established
procedure for doing so. The confusion over the proper procedure to establish
policy, along with unclear roles within CSIS management, resulted in policies
of disputed validity. In addition, early attempts often resulted in bureaucratic,
overly-cautious procedures that ultimately unjustifiably impeded CSIS
investigations.
In April 1984, just prior to the creation of CSIS, Archie Barr wrote a memorandum
to revise the tape retention policy to accord with the new non-evidentiary
mandate of CSIS. The memorandum established that CSIS would no longer
maintain facilities for the retention of tapes for evidentiary purposes.283 The
Barr memorandum was intended to modify a 1980 Ministerial Directive284
that set out procedures for retention of evidentiary tapes by the RCMP SS, a
practice no longer allowed under the new CSIS mandate. This memorandum
279
280
281
282
283
284
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6121.
Testimony of Jacques Jodoin, vol. 23, May 4, 2007, p. 2245.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6121.
Exhibit P-437, Statement of Archie Barr, p. 5.
Exhibit P-101 CAA0404.
Exhibit P-101 CAA0010.
295
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became a matter of controversy; as it was relied on to justify the subsequent
erasures of Parmar intercepts after the bombing. At the time of its issuance, the
memorandum was accepted as policy across CSIS. However in 1988, Solicitor
General officials questioned the validity of this policy, particularly whether a
ministerial direction could be modified or reversed by a decision of the SIT
Group.285 They noted that, although CSIS had indicated that it wanted the
Ministerial Directive modified, no new modified policy was ever agreed upon
for ministerial approval. This confusion caused concern during the Reyat trial,
because the Solicitor General’s staff concluded that the Barr memorandum
could not be relied upon as established policy, as the proper procedure to
change policy had not been followed, and thus, the Barr memorandum could
not be used to justify the contentious erasure of the Parmar tapes.
In February 1985, Jacques Jodoin issued a memorandum286 further revising the
tape retention policy, based on his review of the warrant renewal process. He
advised all regions and districts to make verbatim transcripts of any vague or
incriminating passages, and to retain the underlying tape for one year or until
the warrant renewal date. Jodoin’s policy was intended to improve the CSIS
warrant renewal process. However, Jodoin’s memorandum was followed by
some regions and ignored by others, including the BC Region. Justifications for
why this policy was ignored included the fact that Jodoin, as an HQ manager of
technical services, did not have the authority to impose policy on the operational
units in the CSIS regions. Within the CSIS regions, the regional directors general
had operational autonomy and, therefore, made the ultimate decision on
whether to follow technical policy issued from HQ. However, had BC Region
implemented the policy, the erasure of the Parmar intercepts could most likely
have been avoided.
Ultimately, there was a recognized need to fill the gaps in policies and procedures
to meet the new more legalistic requirements of the CSIS Act. However, CSIS
management was given few resources, and little direction on just how to do
this.
Effect of Policy Gaps on Operations
In general, at the operational level, RCMP SS policies carried over to CSIS
unchanged. Personnel utilized the same vehicles, stationery, computer systems
and methodology287 with little modification for basic investigative operations
like physical surveillance, transcriptions, translations and source recruitment.288
Until sometime after CSIS was created, the only notable change with operational
implications was that the intelligence officers had lost their peace officer
status.289
285
286
287
288
Exhibit P-101 CAF0260.
Exhibit P-101 CAA0126.
Testimony of Raymond Kobzey, vol. 33, May 24, 2007, p. 3818.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6184; Testimony of Neil Eshleman, vol. 75,
November 14, 2007, pp. 9440-9441.
289 Testimony of Raymond Kobzey, vol. 33, May 24, 2007, p. 3818.
�Chapter III: What Went Wrong?
CSIS personnel were forced to take the time to learn about their new mandate
and adjust their practices with respect to their new role. Because available
personnel were scarce at the time, this requirement further taxed individuals
who already had significant investigative responsibilities to meet. Inevitably,
CSIS investigations suffered as personnel learned about the new mandate,
followed more cumbersome processes, and re-established relationships, both
within and outside of CSIS.
Investigations “On Hold”
Some CSIS operations were effectively put “on hold” as new policies and
procedures were developed. The need to convert all necessary warrants to
accord with the new Federal Court requirements mandated by the CSIS Act was
a daunting task which took five months to complete. The day-to-day needs of
ongoing investigations were set aside, unless shown to be urgent, in order to
complete this conversion process. For the Sikh extremism investigation, this
meant that BC investigator, Ray Kobzey, who was well aware of the serious
threat presented by individuals such as Parmar, Bagri and Gill, was forced to
pursue a warrant on Parmar only290 – and the approval of the Parmar warrant itself
was delayed until after the conversion process was completed.
In effect, because of the primacy of the conversion process, Kobzey was unable
to apply for warrants on targets he considered to be serious threats, even if he
normally had enough information to obtain the warrant.
The Learning Curve
All CSIS personnel experienced a learning curve, as they became familiar with
the new mandate and its effect on operations.291 Russell Upton spoke about the
steepness of that learning curve and the need for everyone to learn about the
changes and all the new legal and regulatory requirements.292
It was not only CSIS personnel who experienced a learning curve with the new
mandate, but also agencies with which CSIS worked closely. One of the first
tasks that Randy Claxton, Director General of BC Region, took on after CSIS was
created was to conduct briefings for their police partners about the new CSIS
mandate.
As a result of CSIS being a new organization on the block it
was imperative that I go to all the RCMP subdivisions and
city police organizations and conduct briefings primarily to
demystify what happened and explain that we are a legislated
organization under the CSIS Act.293
290
291
292
293
Testimony of Raymond Kobzey, vol. 33, May 24, 2007, pp. 3821, 3824-3825.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6184.
Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3573-3574.
Exhibit P-101 CAF0816, p. 22.
297
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Educating the Public
The new organization was unknown to the community. Reaching out to the
public was a high priority but complicated due to lack of resources and policy.
Jack Hooper testified that on the day CSIS was created, he was sworn in, returned
to his desk, completed the RCMP SS report he had been drafting and sat down
to type out three business cards.294 Bill Turner told the Commission that there
was even confusion caused by the lack of policy on whether their cards should
be bilingual, have a crest or even identify CSIS. Turner stated that since there
was no policy, employees did various things until Headquarters informed
them otherwise.295 Hooper knew immediately that CSIS investigators would
have to be creative in establishing CSIS’s identity in order to build trust in the
community.296
Ultimately the lack of identity hindered CSIS operations, as investigators spent
time “educating the community” about the new Service.
Dealing with Cumbersome New Processes
The requirements of the CSIS Act created increasingly cumbersome and legalistic
processes to replace the previously straightforward processes of the RCMP
SS and their affected operations. CSIS management was busy dealing with
the many administrative and resource problems, and failed to provide timely
operational direction. Personnel in the field were left to make their best guess
as to what was required.
Kobzey told the Commission that the process was new and there were no
templates in place. In attempting to obtain a warrant to intercept Parmar’s
activities, he drafted a document labelled “An affidavit pursuant to a judicial
warrant” which was signed off by his Director General and submitted. Kobzey’s
information was repackaged to feed into the actual affidavit, drafted by Bob
Burgoyne and signed off by Barr, and went to the Federal Court. Kobzey had
no precedent to guide him in the creation of his memo. He tried to include
information he felt to be germane to the issue of threats to the security of
Canada. The role of the Sikh Desk, also struggling with the lack of guidance for
the new warrant requirement, was then to “fine tune” the information and tailor
it for presentation in court. Kobzey stated that the transition team, assigned to
get CSIS up and running, produced no warrant guidelines and did not have time
to address the warrant issue properly.297
The procedures that were developed were often overly cautious, as
personnel were careful to adhere to the spirit of the McDonald Commission
recommendations. In addition to the inexplicably complex warrant process
developed for warrant approvals (as described in the Parmar warrant narrative),
294
295
296
297
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6204-6205.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8279.
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6205.
Testimony of Raymond Kobzey, vol. 32, May 23, 2007, p. 3748.
�Chapter III: What Went Wrong?
the first warrant applications were signed by, and brought to the Federal Court
by, Archie Barr, the second-in-command in CSIS. The misallocation of resources
implicit in this arrangement was eventually recognized, and this duty eventually
moved down to a much lower level.298 The increased level of political oversight
over CSIS was an impediment; for example, the Parmar warrant was held up for
months because of concerns from the Solicitor General’s office, concerns which
eventually proved to be of no relevance.299
Tensions in Relationships Within and Outside of CSIS
Tensions persisted within and outside of the new civilian Service. Ex-RCMP SS
members were given the option to bridge back to the RCMP within two years of
the CSIS creation,300 raising questions with CSIS employees about the wisdom of
becoming part of the new agency.301 Restructuring was going on all over CSIS,
forcing many CSIS members to establish new working relationships.302
CSIS personnel also testified about the change in relations with some RCMP
officers that occurred after its creation. Kobzey noted that it was very difficult,
in some cases, to convince old RCMP colleagues that, although CSIS personnel
were now “civilians,” they were the same people, doing the same job. He testified
that, as an RCMP SS member, he had been able to effectively obtain information
from the RCMP “…being that we’re a member of the RCMP.” After the transition,
his access to RCMP material changed.303
Loss of Basic Investigative Tools
CSIS investigators lost some of the basic informational tools that they had relied
upon to conduct investigations as members of the RCMP SS. After the transition,
CSIS lost the ability to perform timely criminal records checks and basic biodata
references, as they lost access to the Canadian Police Information Centre (CPIC)
database.304 Kobzey, when asked why he believed these capabilities were
withheld from CSIS, replied:
MR. KOBZEY: We were no longer a police agency, sir.
THE COMMISSIONER: No, but you were serving an important
function. I’m not putting the responsibility on CSIS, but
wouldn’t it have made sense for the government to enlarge
the ability of CSIS to obtain that kind of information?
298
299
300
301
302
303
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8283.
See Section 1.3 (Pre-bombing), Parmar Warrant, for full details.
Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3574.
Exhibit P-101 CAA1086, p. 5.
Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3575.
Testimony of Raymond Kobzey, vol. 32, May 23, 2007, p. 3727 and Testimony of Ray Kobzey, vol. 33, May
24, 2007, p. 3818.
304 Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6207.
299
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MR. KOBZEY: From an investigator’s point of view, yes, sir, and
I think that was part of the initial transition and some of those
issues had yet to be resolved and arranged.305
The sudden loss of these basic investigative tools was part of the post-transition
reaction to “de-police” the new Service. It is clear that the basic biodata available
on CPIC would have been of use to CSIS during their pre-bombing investigation.
The procedure put in place after the transition was cumbersome, requiring
CSIS personnel to transmit CPIC requests through the RCMP. This procedure
forced CSIS to wait for RCMP responses to their requests and exposed their
investigations to the RCMP. This inevitably affected the breadth and timeliness
of CSIS intelligence collection, and began a long-standing dispute between the
agencies, which was not resolved until 1990, when CSIS gained full access to
CPIC.306 These limits on CSIS investigations lacked rational explanations.
Conclusion
The period after the creation of CSIS was one of confusion, inefficiency and
adjustment. Operations were held up by the need to learn about the new
mandate and the resulting cumbersome processes that were considered
necessary to meet the recommendations of the McDonald Commission.
The responsibility for the failures of CSIS during the period does not rest with
the individual members of that organization. It was clear from the evidence that,
collectively, they tried to perform their duties as they understood them, under
the umbrella of inadequate legislation and resources.
The early difficulty with CSIS rests solely with the government of the day who,
in a rush to adopt the McDonald Commission recommendations, produced
woefully inadequate implementation legislation. The legislation lacked
clarity and direction and did not address resource issues; this resulted in CSIS
commencing operations lacking office space, technology and clear legislative
direction. The members should be commended for attempting to fulfil their
duties in what were, initially, impossible circumstances.
Bill Turner refrained from calling the situation “chaotic,” but stated that CSIS
personnel were carrying on functions and duties they knew – but without
policy.307 Chris Scowen said: “…we were all very much new boys trying to work
out these new regulations in which we operated.”308
All CSIS personnel had to familiarize themselves with a new, more legalistic
mandate and examine how this mandate would affect their daily operations.
Resources were known to be inadequate. New people were being brought into
CSIS, while existing personnel were considering taking the “bridge back” option
305
306
307
308
Testimony of Raymond Kobzey, vol. 32, May 23, 2007, pp. 3727-3728.
Testimony of Jean-Paul Brodeur, vol. 18, March 7, 2007, p. 1722.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8279.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6138.
�Chapter III: What Went Wrong?
that would allow them to return to the ranks of the RCMP. CSIS personnel were
dealing with a new mandate, new policies, new methods and a new chain of
command, with minimal guidance from the top ranks.309
CSIS’s investigations and its ability to cooperate with the RCMP suffered due to
the strains caused by transition. At times, it seemed that CSIS was holding its
collective breath while transition issues settled out, hoping that tragedy would
not strike during this period of confusion. Unfortunately, tragedy did strike.
3.3.2 The Changing Threat Paradigm
The diversion of CSIS resources and personnel to deal with transition issues
created a situation in which it was especially critical that a resource-starved
CSIS properly focus its investigations on the most relevant threats to national
security. The intelligence priorities of the RCMP Security Service (SS) in the years
prior to the creation of CSIS are outlined in the 1982-1983 Annual Report on the
Activities of the RCMP Security Service, issued on May 13, 1983.310 The report
recognized the strain on operations caused by the transition process.
Efforts to create the civilian Canadian Security Intelligence
Service [have] progressed in tandem with normal operations.
The substantial administrative, research and consultative
tasks required of the RCMP Security Service were met through
selective reduction of operational coverage on lower priority
targets and postponement of less urgent administrative
projects.311
This Commission investigated whether CSIS adequately adjusted its intelligence
priorities during the period preceding the Air India and Narita bombings. The
investigation included analysis of whether CSIS adequately recognized the
change in the threat paradigm from counter-intelligence (CI) to counterterrorism
(CT) and assigned appropriate tasking priority to the emerging threat of Sikh
extremism in particular. Or, expressed another way, did CSIS effectively plan for
the upcoming war or were they focused on fighting battles of the past?
The Paradigm Shift from the Cold War to Terrorism
In the years before separation, Canadian intelligence operated almost exclusively
in a Cold War atmosphere. The 1982-1983 RCMP SS Annual Report listed the
distribution of effort as 55% counter-intelligence (CI), 17% counter-subversion
(CS) and 15% counterterrorism (CT).312 Within the RCMP SS, CT only had the
309
310
311
312
Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3574-3576.
Exhibit P-101 CAF0017.
Exhibit P-101 CAF0017, p. 4.
Exhibit P-101 CAF0017.
301
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status of a unit within the counter-subversion branch. In the meantime, in the
early 1980s, terrorism around the world, and in particular Sikh extremism, was
on the rise.313
In the early 1980s, the RCMP SS began to bolster its counterterrorism
investigations, due to two major terrorist incidents that occurred in Canada.
In April 1982, a Turkish commercial counsellor was shot and wounded. Four
months later, a Turkish military attaché was shot and killed. Armenian terrorist
groups claimed responsibility for both attacks. These terrorists issued bomb
threats to various Canadian government departments and attempted to bomb
Air Canada premises in Los Angeles. It was clear that Canada was no longer
immune to lethal terrorist violence, and the RCMP SS adjusted its priorities to
address the Armenian terrorist threat.
The 1982-1983 RCMP SS Annual Report indicated the Service’s recognition of
the growing threat of terrorism. Counterterrorism investigations were allotted
the greatest increase in resources, up 7% from the previous year.314 However,
these resources were mainly assigned to the Armenian CT investigation. As
if to confirm this ranking of priorities, in March 1985, the Turkish embassy in
Ottawa was stormed by Armenian nationalists. The Annual Report described
several other CT investigations, but concluded that these concerns were not
considered imminent or high priority. The issue of Sikh extremism did not even
merit mention.315
Other CT investigations, including Sikh extremism, continued to suffer from
a lack of resources due to the focus on counter-intelligence targets and on
Armenian terrorist targets. Upon the creation of CSIS in July 1984, CT became a
major division, equal to both CI and CS. However, the CT staffing complement
did not change. At the time of separation, Geoffrey O’Brian estimated that the
operational resources of CSIS were approximately 75% for CI and 25% for all other
divisions.316 Daryl Zelmer testified that counter-intelligence remained the main
priority for CSIS in the year leading-up to the bombing. While counterterrorism
was a “growing industry,” it still was allotted fewer personnel and investigative
resources than counter-intelligence,317 and the resources assigned to CT
investigations remained within the Armenian terrorism unit. The following is an
excerpt from the testimony of Russell Upton, the Chief of the Europe and Far
East Section at CSIS HQ:
THE COMMISSIONER: (Off mic) …other sections were
deprived of resources to the same extent you were?
313 International terrorist incidents in the early 1980s included the series of suicide attacks directly against
American diplomatic facilities in Beirut, Lebanon and against the US marine barracks at Beirut
International Airport in 1983 and, on the same day, against the French paratroops headquarters also
in Beirut and against the Israeli Defence Forces command post in Tyre, Lebanon, as well as the 1984
suicide bombings of the US embassy and then the attempt to assassinate the Emir of Kuwait in
December, 1984: Testimony of Bruce Hoffman, vol. 19, March 9, 2007, pp. 1786-1787.
314 Exhibit P-101 CAF0017.
315 Exhibit P-101 CAF0017.
316 Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1553.
317 Testimony of Daryl Zelmer, vol. 23, May 4, 2007, p. 2320.
�Chapter III: What Went Wrong?
MR. UPTON: Not to my knowledge.
THE COMMISSIONER: One had more than the other? I mean,
you don’t know whether [others] had more resources than
needed, or…
MR. UPTON: I was very well knowledgeable of the Section that
was set [up] to handle the Armenian situation after the terrorist
act. And it was given a top priority, continued top priority, and
it in effect at times hindered me from getting my resources.
And it was fully staffed; it had research resource people and
everything. And after the bombing, I must say that the CSIS –
director transferred some of those resources over to my area
and that helped to relieve a lot of pressure. But for me, that
was too late. I was already pretty stressed out and I resigned in
May of ’86.318
Lack of Recognition of Sikh Extremism in Early 1980s
Was the lack of recognition of the Sikh extremist threat reasonable? The early
1980s witnessed the rise of Sikh extremist violence.319 In Canada, demonstrations
against the Indian government grew in size and intensity, Indian diplomatic
personnel and personnel were faced with threats, and rumours surfaced of
military training within a growing Sikh extremist movement.320
During this time, the investigation into Sikh extremism was given relatively
low priority. RCMP SS investigators appeared concerned that the unrest in the
Punjab could spill over into the Sikh population in Canada, but were given few
resources to pursue the concern.321
The general belief throughout this period was that the problem of Sikh extremism
was foreign, and, at the time, Sikhs in Canada were generally peaceful, with any
violence limited to interfactional or religious disputes amongst Sikh groups.322
Information about the Khalistani movement was obtained primarily from the
Government of India itself, as well as from sources developed by other police
forces,323 the media, and a few community contacts. In response to concerns
expressed by the Indian Government about Parmar in 1982, Security Service
investigators undertook physical surveillance to locate Parmar for an interview,
but failed to actually interview him. They did, however, undertake an interview
with Surjan Singh Gill, who was a known affiliate of Parmar and the self318
319
320
321
Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3604.
See Section 2.2 (Pre-bombing), Failure to Appreciate the Nature and Seriousness of the Threat.
See Section 1.12 (Pre-bombing), A “Crescendo” of Threats.
For a full description of CSIS pre-bombing investigation, see Section 3.2 (Pre-bombing), The CSIS
Investigations into Sikh Extremism.
322 Exhibit P-101 CAB0049.
323 CSIS relied on the Vancouver Police Department, Indo-Canadian Liaison Team for community
intelligence. The VPD dialogued with several members of the Sikh community: See Exhibit P-101
CAB0048.
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proclaimed Khalistani “Consular General” in Vancouver.324 The investigation
throughout the pre-bombing period was more reactive than proactive, with
CSIS’s efforts focused on substantiating threat warnings received from various
sources and on obtaining information about anticipated demonstrations.
Focus on Sikh Extremism Increases in 1984
In early 1984, Sikh extremism did not have its own intelligence requirement
(IR), a ranking that prioritized the work and resources of the RCMP SS and, later,
CSIS.325 However, events over the following year revealed the obvious growth of
Sikh extremism in Canada, compelling CSIS to begin to bolster its investigation
into the threat.326 The Sikh extremism investigation327 was given increased
priority with the opening of the “Sikh extremism” file on April 7, 1984, with
Operational Priorities Review Committee (OPRC) level 2 coverage approved.328
The higher prioritization was triggered by the increasingly tense situation in
the Punjab, as violence escalated and the Indian army surrounded the Golden
Temple. In March 1984, the Security Service received information suggesting
that this “foreign issue” was about to spill over into Canada in a deadly manner.
A source advised that a group of 18 Sikhs from India had sworn a pledge to
carry out attacks or to kill moderate Sikh leaders, prominent Hindu leaders and
Indian diplomatic personnel in Canada. In fact, the source alleged that some
of them had already arrived in Vancouver.329 Once the Service had opened the
Sikh extremist file, all regions were required to provide community assessments
of the Indian situation in their areas. The instructions from HQ recognized the
inherent link between the events in the Punjab and the possible reaction within
the Canadian Sikh community. It warned that if the Indian government was
unable to restore calm in the Punjab area, tensions could flare within Canada’s
Sikh community.330
This happened when the Indian army stormed the Golden Temple on June 6,
1984. The event triggered mass demonstrations across Canada.331 While the
protests were generally non-violent, Security Service threat assessments noted
that they were emotionally charged events, in a Sikh community united in grief
like never before.332 The SS believed that the prospect for confrontations and
violence in Canada was a certainty. While noting that their recently initiated
investigation into Sikh extremism in Canada had not yet yielded any firm
conclusions, they did conclude that the threat to Indian missions and personnel
was at its highest.333
324 Exhibit P-101 CAA0018, CAB0031.
325 Testimony of Daryl Zelmer, vol. 23, May 4, 2007, p. 2321.
326 A detailed description of CSIS pre-bombing investigation into Sikh extremism is provided in Section
3.2 (Pre-bombing), The CSIS Investigations into Sikh Extremism.
327 For detailed information about CSIS pre-bombing investigations, see Section 3.2 (Pre-bombing), The
CSIS Investigations into Sikh Extremism.
328 Exhibit P-101 CAB0054, CAF0072b.
329 Exhibit P-101 CAB0048.
330 Exhibit P-101 CAB0054.
331 Exhibit P-101 CAB0062.
332 Exhibit P-101 CAB0062, CAB0063.
333 Exhibit P-101 CAB0062.
�Chapter III: What Went Wrong?
Investigative Authorization on Sikh Extremism Increased to Highest Level
In light of the reaction of the Sikh community in Canada to the Golden Temple
storming, the Sikh extremism file was given the highest OPRC level 4 investigative
authorization, officially approved on June 27, 1984, just three months after the
file was opened.334 This authorization signified the Service’s recognition, a year
before the Air India and Narita bombings, that the Sikh extremism investigation
needed to employ the most intrusive investigative methods to address this
serious threat. By the fall of 1984, a “Sikh Desk” had been created at HQ.335 Over
the following year, CSIS identified specific targets within the Sikh extremist
community and obtained specific OPRC level 4 authorizations against Parmar
(on September 17, 1984),336 the Babbar Khalsa (on January 30, 1985)337 and
the International Sikh Youth Federation (on May 5, 1985).338 On May 28, 1985,
Mel Deschenes, the DG CT, designated the Sikh extremism file as a top priority
investigation with its own IR until at least mid-June.339 This designation was
based on CSIS’s concern about the potential for serious incidents in the period
leading up to the anniversary of the Golden Temple storming (June 6, 1985)
and during the US visit of Prime Minister Rajiv Gandhi, from June 11 to 16, 1985.
Investigators were ordered to mobilize and process all available sources on a
priority basis, and to submit daily situation reports to HQ.340 CSIS personnel
involved in the Sikh extremism investigation during this period expressed their
conviction that prospective violence by Sikh extremists was considered to be
a certainty. Kobzey, an Intelligence Officer at BC Region, considered the Sikh
extremism file to be urgent, based on the violent rhetoric of Parmar and the
religious fervor tied to the threats.341 Russell Upton testified that the issue of
Sikh extremism was clearly evident in 1984; that “…we were getting red flags all
over,”342 and that it was only a matter of time before the terrorist element in the
Sikh community was going to “hit us good”. Upton agreed with the notion that
the bombings were “…a terrorist action that was waiting to happen.”343
From these designations and comments, it would appear that CSIS was aware
of, and assigning appropriate priority to, the investigation of Sikh extremism.
However, the Commission’s review of the evidence shows that from June 1984,
when the Sikh extremism investigation was given OPRC level 4 authorization,
to June 1985, when the bombings occurred, CSIS failed to adequately generate
useful intelligence on the activities of Sikh extremists in British Columbia.
Although the Sikh extremism file had been nominally designated top priority
throughout the year leading up to the bombing, investigators were not allotted
adequate resources or personnel to effectively carry out the investigation. It
334
335
336
337
338
339
340
341
342
343
Exhibit P-101 CAF0102, p. 1; Testimony of Glen Gartshore, vol. 31, May 22, 2007, pp. 3520-3521.
Testimony of Daryl Zelmer, vol. 23, May 4, 2007, p. 2321.
Exhibit P-101 CAB0139.
Exhibit P-101 CAF0111.
Exhibit P-101 CAB0117.
Exhibit P-101 CAF0124(i).
Exhibit P-101 CAB0256.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3753; Exhibit P-101 CAB0144, pp. 3-4.
Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3613.
Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3609, 3613.
305
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appeared to be a situation in which the investigators on the ground understood
the threat, but could not obtain support or guidance from an upper management
that was too focused on transition issues and traditional counter-intelligence
priorities.
Archie Barr noted that the intelligence landscape was changing quickly at the
time.
Although CSIS was newly formed, we brought a wellfunctioning counterterrorism unit to CSIS from the RCMP,
and the need for it grew much larger than we had originally
expected, as the threat of terrorism began to spread in the
1980s. Much of the CSIS work in the early days involved
counter-intelligence as the Cold War continued, but the
intelligence landscape was changing quickly.… The shift
from counter-intelligence to counterterrorism could have and
should have been faster.344
Ronald (“Ron”) Atkey, the first chairman of the Security Intelligence Review
Committee, which had oversight over CSIS, described the three competing
intelligence priorities within CSIS prior to the Air India and Narita bombings:
counter-intelligence, counter-subversion and counterterrorism. CSIS had begun
to disband the counter-subversion branch, in light of its new mandate, which
freed up some resources for counterterrorism priorities.
MR. ATKEY: But I have to say that the events of June 23rd, 1985,
did shift the whole mentality of this thing rather quickly.… [a]
nd the counterterrorism became the focus and resources were
directed towards that.
MR. BOXALL: I guess, the art to it is attempting to not wait
until the event occurs to shift the resources, but for someone
to be in a position to predict that?
MR. ATKEY: That’s correct.345
After the bombing, resources were rapidly shifted to the investigation into Sikh
extremism. This adjustment in priorities was long overdue and, tragically, too late
to assist CSIS investigators in preventing the Air India and Narita bombings.
Failure to Adjust Priorities to the Investigation of Sikh Extremism
This recognition of the seriousness of the Sikh extremist threat came too late,
especially in light of the significant events that were occurring in the year before
the bombing. Even the prioritization, long overdue, of the Sikh extremism
344 Exhibit P-437: Statement of Archie Barr, pp. 5, 7.
345 Testimony of Ronald Atkey, vol. 49, September 20, 2007, pp. 6007-6010.
�Chapter III: What Went Wrong?
investigation that occurred in May 1985 was to be implemented temporarily,
“until at least mid 1985 06.”346 The prioritization appeared to be more a cautious
reaction to the highly politicized visit of Rajiv Gandhi to the US, rather than a
result of a true understanding of the overall seriousness of the Sikh extremist
threat.
This belief that the threat was temporary was shared by the RCMP, who exerted
pressure on CSIS to reduce the threat level after Gandhi’s departure. In a June
11th TA request, the RCMP informed CSIS that the last CSIS TA had resulted in a
deployment of considerable RCMP resources to protect Indian interests, and,
should the Gandhi visit take place without serious incident, they “…assumed
the threat level … would diminish.” As such, the RCMP requested an updated
TA on June 17th, the day of Gandhi’s departure.347 Despite this pressure, CSIS
investigators across the nation cautioned against assuming the problem had
passed.348 The June 17, 1985 TA issued by CSIS assessed the threat as being “…
only slightly less serious” and warned that “…extremists/terrorists are no less
determined to realize their ambitions and to think that they have abandoned
their cause would be somewhat naïve on our part.”349
Despite CSIS’s warning that the threat continued, it allowed efforts made
to bolster the Sikh extremism investigation in early June to lapse after the
departure of the Indian Prime Minister from North America. CSIS HQ ended the
requirement for daily situation reports from the regions, several key personnel
in both HQ and BC Region were allowed to take leave, and physical surveillance
coverage on Parmar was, regrettably, pulled on the day before the bombing.350
While it was likely that the CSIS personnel involved with investigation were weary
after the intense period during the Gandhi visit, this was no excuse for letting
the investigative resources lapse without ensuring that suitable replacements
were available to maintain CSIS’s ability to assess what was admitted to be a
continuing high threat. It is difficult to conceive how CSIS could have warned that
the threat continued to be high, while simultaneously reducing its investigative
capability.
This lack of appreciation of the breadth and severity of the threat of Sikh
extremism on the part of CSIS HQ translated into a failure to prioritize the Sikh
346 Exhibit P-101 CAF0124, p. 1.
347 Exhibit P-101 CAB0275.
348 Exhibit P-101 CAA0219 p. 2 (BC Region wrote, “…we still consider the threat potential from the Sikh
community to be high.... It would appear that time is of no consequence to the Sikh extremist element
in reaching their objectives therefore we can expect the overall problem to remain constant
for some time to come”), CAB0312 (Windsor Region wrote, “…this office feels the threat posed by Sikh
extremists against Indian Missions, personnel and interests in this country will remain high … the BK
will simply ride out the RCMP campaign, re-group after the force loses interest and attempt to
strike at some less high profile target, once the heat is off ”), CAB0316 (Edmonton District wrote,
“…it would seem small groups or individuals within Edmonton’s Sikh community have the potential
to either support or undertake violence against Indian missions, personnel or interests in Canada or on
an international scale in the future long term”) and CAB0315 (Manitoba Region wrote, “…we must
not [be] complacent and assume that the Sikh problem has passed. Writer feels that Indian
missions and personnel will continue to be a target of the more militant Sikh extremist factions present
in this country”).
349 Exhibit P-101 CAA0220.
350 See Section 3.3.3 (Pre-bombing), Failure to Allocate Resources.
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extremism investigation, and thus into a failure to devote adequate resources
and personnel to carry out the investigation effectively. The evidence at the
inquiry clearly shows that the BC investigators, Kobzey and David Ayre, had an
understanding that there was a serious threat posed by Sikh extremists.351 What
is equally clear is that this view was underappreciated at HQ. In a centralized
organization it is difficult for priorities to be adjusted, unless HQ understands
and appreciates the need for the adjustment. In the case of the threat posed
by Sikh extremism, HQ did not appreciate the risk in a timely manner and, thus,
provided inadequate support to the investigators on the ground.
Conclusion
The Commission’s review shows that CSIS was slow to recognize the changing
threat paradigm from counter-intelligence to counterterrorism. While CSIS
was beginning to bolster its counterterrorism investigations in reaction to two
attacks by Armenian terrorists in Ottawa, it failed to adequately recognize other
emerging terrorist threats in Canada, such as Sikh extremists. Sikh extremism
investigators found themselves in a losing competition for resources with the
higher priority counter-intelligence and Armenian terrorist target investigations.
In effect, CSIS’s targeting priorities were more reactive than proactive: CSIS was
busy fighting the threats of the past rather than anticipating emerging threats.
3.3.3 Failure to Allocate Resources
The Struggle for Resources
The failure of CSIS senior management to recognize the threat of Sikh extremism
led to an inevitable struggle for resources by the analysts and investigators
involved in this investigation. In the year preceding the bombing, CSIS nominally
assigned the Sikh extremism investigation increasing levels of priority, but
failed to adjust the resources accordingly to allow investigators to actually meet
these priorities. Ironically, when Mel Deschenes assigned the Sikh extremism
investigation top priority on May 28, 1985, in anticipation of the Golden Temple
storming anniversary and the US visit of Rajiv Gandhi, he noted “…any extra
resources and attention you can afford this area during the coming weeks shall
be appreciated.”352 In fact, this top prioritization did not translate into increased
personnel to handle the necessarily increased investigative load. A week later,
when Russell Upton tasked the regions to provide daily situation reports, there
was similarly no increase in resources to meet the increased requirement.353
Hard-working investigators were simply asked to work harder.
A number of CSIS intelligence failures with respect to the Sikh extremism
investigation in 1984-1985 can be traced, at least in part, to the lack of resources,
as noted by Professor Wesley Wark:
351 Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3753-3755, 3764-3765; Testimony of Ray Kobzey,
vol. 33, May 24, 2007, p. 3790.
352 Exhibit P-101 CAF0124(i).
353 Exhibit P-101 CAB0256.
�Chapter III: What Went Wrong?
[I] see two clear kinds of intelligence failure at work in Air India
in 1985.... One has to do with intelligence collection, part of the
intelligence cycle. Now, it is the case that government agencies
were aware of the threat from Sikh terrorism and were
targeting that threat, and they were engaged in intelligence
collection against it, especially in terms of CSIS efforts. But
what we see in the detailed record of the pre-bombing CSIS
information collection effort, was an inability to take full
advantage, I would say, of that targeting, an inability to sustain
physical surveillance on key targets, in particular Mr. Parmar,
and the inability to make full use of the wire tap information,
the electronic surveillance, again, conducted against Mr.
Parmar.... [W]e had the right intelligence instincts at work, but
we didn’t have a system that could fully deliver on them. Why
is that? I think it’s very hard for me to reach an assessment
about that. There are some things that leap out at one as likely
answers, in terms of lack of resources in particular, and lack of
capacities to translate intelligence into usable information. But
I do see an intelligence failure at work, here.354
A review of the Inquiry evidence shows that CSIS’s investigation into Sikh
extremism was compromised by the failure to move swiftly to engage investigative
techniques that might have produced actionable intelligence information, or to
devote sufficient personnel to support the investigative techniques that were in
fact employed. These deficiencies, along with questionable strategic decisions,
affected CSIS’s ability at all stages of the intelligence cycle. The units responsible
for the collection, analysis and dissemination of relevant and timely intelligence
all suffered from a lack of resources and personnel. The lack of intelligence
that resulted led to a systemic failure, affecting senior management’s ability to
appreciate the gravity of the Sikh extremist threat and to adjust tasking priorities
to correct the underlying resource and personnel deficiencies.355
This section outlines the deficiencies in investigative resources and personnel for
the CSIS investigation into Sikh extremism, and the effect of these deficiencies
on CSIS’s ability to collect, analyze and disseminate intelligence.
Effect on Intelligence Collection
CSIS’s collection of intelligence provides the foundation for all other stages of
the intelligence cycle. Effective collection efforts provide context which allows
analysts to make informed assessments from which the government can
develop appropriate responses and adjust its priorities to meet the changing
threat climate.
354 Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1495-1496.
355 For a detailed description of the senior management’s failure to recognize the changing threat
paradigm and sufficiently prioritize the Sikh extremism investigation, see Section 3.3.2 (Pre-bombing),
The Changing Threat Paradigm.
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With little direction and support from a CSIS senior management that was
focused on transition issues and other higher-priority investigations, the
furtherance of the Sikh extremism investigation depended on the personal
initiative of the on-the-ground investigators. In the aftermath of the Golden
Temple storming and the return of Parmar from a German prison in the summer
of 1984, CSIS investigators in BC Region and analysts at HQ initiated efforts
to gain approval for more investigative resources against Parmar, but were
met with constant challenges. Human sources proved difficult to cultivate in
a tight-knit, secretive group, and the Sikh community was often unwilling to
speak due to threats of intimidation from extremists. The Parmar intercept
application was delayed at HQ for five months. There was a lack of securitycleared translators available to process the Parmar tapes, once recorded. The BC
Region Physical Surveillance Unit (PSU) coverage was focused on other targets
considered to be higher-priority, and covered Parmar or other Sikh extremists
only when resources were available. Even staffing levels were inadequate, as
few investigators were involved in the Sikh extremist investigation, and those
involved were overworked.
Human Sources
The greatest problem in CSIS’s investigation into Sikh extremism was its inability
to recruit trustworthy and reliable human sources.356 Chris Scowen testified that
the most important intelligence resource any intelligence service can have is a
human source:
You can have all the technical sources you want, they would
supply enormous amounts of information but the human
source is the only kind of source that can be directed, can use
their own intelligence, can use their own imagination in the
furtherance of an operation.357
Kobzey testified about his efforts to recruit human sources within the Sikh
community in British Columbia. He noted that, in 1982, the Sikh extremism
investigation was assigned a low level of investigative authority, which was
sufficient for him to develop relationships with Sikh community members who
could inform CSIS about issues of concerns to them. Kobzey developed these
casual relationships with the hope that he would find a person who could
become a CSIS source at a later date, when the level of investigative authority
was increased. In particular, he was looking for someone who had access to the
plans of Sikh extremists like Parmar, Bagri, Gill and their associates.
However, Kobzey testified that this task proved difficult. Members of the Sikh
community were very reluctant to be seen to be working with the authorities,
for fear of retribution, beatings, and violence, either to themselves or to family
members in Canada and overseas. The Sikh extremists themselves were a
356 Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3603.
357 Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6155.
�Chapter III: What Went Wrong?
close-knit, family-like unit that did not trust anyone outside of their immediate
circle.358 Kobzey considered the introduction of a human source into such a
group to be virtually impossible.359 Ultimately, no human sources had been
recruited, prior to the bombing, to support the BC investigation of Parmar and
his associates.360
CSIS, as a newly-formed and highly secretive agency with little public reputation,
lacked vital tools to gain trust in face of the distrust of government present in
the Sikh community.
A human source could have provided critical context within which to understand
the movements and intercepted conversations of Parmar, who often acted and
conversed in a security-conscious manner.361 Instead, CSIS investigators were
forced to turn to inferior investigative methods, including technical intercepts
and physical surveillance. Without the insight of a human source, investigators
could only make their best guess about the actions and conversations of a
group of Sikh extremists with which they had little cultural and operational
familiarity.
Technical Sources: Parmar Warrant
In light of the difficulty in recruiting human sources, CSIS had to rely on technical
sources to obtain insight into the dealings of Parmar and his tight-knit group.362
Kobzey recognized the importance of gaining comprehensive insight into this
group immediately after Operation Bluestar in June 1984, and Parmar’s return
to Canada in July 1984.
I felt that the action against Bluestar would be so inflammatory
that we had to be in a position to deal with this by means of
a warrant soonest, to start getting information which would
enable us to gather clear insight into this individual, his
associates, his contacts worldwide, people who he was dealing
with ….363
Kobzey drafted an urgent warrant application during August 1984 to intercept
the communications of Parmar, and submitted it to CSIS HQ in September 1984.
The application warned that “…in view of our limited source coverage, we are in
a very poor position to provide timely intelligence with respect to any planned
acts of violence.”364 In spite of this warning, the approval and subsequent
processing of the Parmar intercept were handled in a non-urgent manner, rife
358
359
360
361
362
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3820-3821.
Exhibit P-101 CAB0144, p. 7.
Exhibit P-101 CAB0902: 1992 SIRC Report, p. 40.
Exhibit P-101 CAD0154, p. 10. See also Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3603.
The circumstances surrounding the Parmar warrant are described in detail in Section 1.3 (Prebombing), Parmar Warrant.
363 Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3754-3755.
364 Exhibit P-101 CAB0144, p. 7.
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with significant delays, and causing potential losses of critical, contextual and,
possibly incriminating, information.
It is important to put this issue in context. There is no certainty that information
would have been obtained that would have prevented the terrorist attacks.
However, in assessing the steps that were taken during the investigation, it
is surprising that the warrant took five months to obtain, considering CSIS’s
urgent need for insight into the Sikh extremist movement in Canada, and CSIS’s
view that Parmar was the leader of that movement and had been employing
inflammatory rhetoric in public. Kobzey admitted that the unexpected delay
hampered his attempts to gain in-depth knowledge about Parmar.365
In comparison, shortly after the bombing, with the creation of the CSIS task force
in BC Region and a three-person warrant drafting section, CSIS HQ was able to
obtain approval by the Federal Court for several additional warrants in a much
shorter period of time.366 This illustrates that CSIS HQ had the ability to process
warrants in an expeditious manner once they were considered sufficiently
urgent.
The lengthy Parmar warrant process prior to the bombing meant that CSIS
investigators lost potentially valuable information not only in relation to Parmar
but also to other Sikh extremists.367 The failure to obtain the Parmar warrant
in a timely manner resulted in an inability to apply for additional warrants for
other Sikh extremist targets prior to the bombing. This meant that there were
no warrants for Ajaib Singh Bagri and Surjan Singh Gill, even though they were
known to CSIS and were considered potentially as dangerous as Parmar.
Punjabi Translators
At the time that CSIS officials in BC Region had determined that they needed
to intercept Parmar’s communications, it was apparent that there was another
problem: the lack of qualified and security-cleared Punjabi translators. Despite
knowledge of that deficiency, little, if anything, was done to remedy the
problem over the five months that it took to process the warrant application.
Even after the warrant was granted, and Parmar’s communications were being
intercepted, the issue of an acute lack of translators remained unresolved. By
way of illustration, two days before the Air India bombing, approximately 100
audio surveillance tapes of Parmar remained untranslated.368
The responsibility for ensuring that there were adequate resources for the
translation and transcription of wiretaps fell to Jacques Jodoin, the Director
General, Communications Intelligence and Warrants (CI&W) at CSIS HQ.369 BC
365
366
367
368
369
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3822.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7652.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3775-3777.
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1510.
Testimony of Jacques Jodoin, vol. 23, May 4, 2007, p 2278.
�Chapter III: What Went Wrong?
Region began searching for a Punjabi translator before the Parmar warrant was
installed on March 25, 1985, but was unsuccessful. On May 16, 1985, it sent out
an urgent request to all regions for recruitment of Punjabi translators.370 Despite
this nationwide search, CSIS continued to have difficulty in hiring a securitycleared Punjabi translator. Jodoin arranged for the Parmar tapes to be translated
through a drawn-out and inefficient process. Tapes were sent to Ottawa to be
translated and the translation would then be sent back to BC Region.
This process not only resulted in extensive delays, but also restricted the ability of
BC Region investigators to interact daily with the translator. This made it difficult
to coordinate investigative efforts with what the translators were uncovering.
One reason offered for the extreme difficulty in recruiting translators was the
requirement that they be Top Secret cleared. During the hearings, Jodoin
testified that for this clearance one had to have been in the country for at least 20
years. In his view, there were few Punjabi-speaking persons who could meet this
requirement in 1985. Additionally, members of the community were unwilling
to cooperate because they did not want CSIS investigators asking questions
within their own community.371
Physical Surveillance Units
BC Region investigators faced challenges in obtaining PSU coverage for Sikh
extremist targets. PSU resources in BC Region were scarce, with units available
to cover one target for up to 16 hours any day of the week.372 All BC Region
investigations competed fiercely for coverage.373 With little new information
collected through other investigative means, BC Region Sikh extremism
investigators rarely had fresh justification for the commitment of PSU coverage,
and often found their investigations second in priority to those of their counterintelligence (CI) colleagues.374 Ultimately, surveillance on Sikh extremist targets
was intermittent at best.
Kobzey submitted a request for PSU coverage on Parmar on April 4, 1985,375 at a
time when counterterrorism (CT) targets were given low priority in comparison
to ongoing CI targets.376 When coverage was denied, Kobzey would occasionally
undertake surveillance on his own, despite not having training. This diverted his
efforts away from other important investigative steps more suitable to the role
for which he was trained.
Even the critical Duncan Blast surveillance was obtained by a stroke of luck.
At the time, PSU coverage on Parmar was granted intermittently and on an
ad hoc basis. With the anniversary of the Golden Temple storming and the US
370
371
372
373
374
375
376
Exhibit P-101 CAB0234, p. 1.
Testimony of Jacques Jodoin, vol. 23, May 4, 2007, pp. 2278-2280.
Exhibit P-101 CAD0131, p. 8.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3838.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3773-3774.
See surveillance request by Kobzey and Ayre dated April 4, 1985: Exhibit P-101 CAB0209.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3794-3795.
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visit of Rajiv Gandhi approaching, Kobzey took the initiative to make a personal
request, insisting coverage was necessary in light of these important events. His
request was met with resistance at senior levels, but ultimately PSU coverage
was provided for a few days in early June including the day of the Duncan Blast
incident.377
The events of that day resulted in continued uninterrupted mobile surveillance
of Parmar until June 17, 1985. This was an unprecedented amount of coverage
for a CT target at the time. It is ironic that intelligence obtained by the PSU itself
enabled this coverage. One can only imagine what information CSIS would
have obtained had it had timely information from human or technical sources
that could have justified even further coverage. Unfortunately, PSU coverage
on Parmar was pulled days before the attack, leaving the whereabouts of
Parmar and his associates on the day the bombs were planted uncertain to this
day. Kobzey was away on vacation at the time and unable to advocate for the
continuance of PSU coverage.
The Commission’s evidence shows that the quality of PSU coverage provided
suffered due to the insufficient resourcing of PSU teams. Inexplicably, members
of the PSU mobile surveillance team following Parmar, who witnessed the
Duncan Blast, were not provided with cameras.378 The lack of photos taken
on that critical day has contributed to the inability to identify the third person
who attended with Parmar and Reyat, known only as Mr. X.379 If they had had a
camera, the PSU might have determined his identity long ago.
BC Region Investigators
Even if CSIS had been able to obtain more human and technical sources in
support of its investigation into Sikh extremism, it did not have the human
resources available to efficiently and effectively process the information that
they could have provided. While BC Region was generally well staffed overall,
with 165 employees including 40 intelligence officers (IOs), there was little
effort to adjust staffing priorities to meet the emerging threat posed by Sikh
extremists.380
Despite Sikh extremism being the number one CT priority for CSIS and despite
the fact that the hotbed of Sikh extremism in Canada was in Vancouver, there
was a clear shortfall in personnel dedicated to monitoring this threat. In fact,
prior to the bombing, only two investigators were working directly on the Sikh
extremism issue – Kobzey and Ayre. They reported to their unit head, Jim Francis,
who in turn reported to the Chief of CT, Robert Smith.
Kobzey and Ayre spent much of their limited time confronting serious challenges
to obtaining resources to support their investigations. They seemed to be in
377
378
379
380
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3793-3796.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2208.
A detailed description can be found in Section 1.5 (Pre-bombing), Mr. X.
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6208-6209.
�Chapter III: What Went Wrong?
a constant fight for basic investigative resources, which detracted from their
ability to carry out their own important investigative duties.
Even with their limited capacity, the BC investigators were able to appreciate
the seriousness of the Sikh extremist threat in BC, as shown by their “urgent”
warrant application to intercept the communications of Parmar, submitted to
CSIS HQ in October 1984.381 Once again, BC Sikh extremism investigators met
with opposition at the higher levels of CSIS, where the warrant process was
delayed in light of the “higher priority” issue of dealing with warrant conversions
which had been necessitated by the creation of CSIS.382
With their time taken up in a constant battle for resources, with little support
from senior management at CSIS HQ, and no human sources, it is not surprising
that the BC investigators were unable to further their understanding of the
key Air India conspirators, despite their appreciation of the seriousness of the
threat. The lack of resources at the investigative level impaired every stage of
the intelligence cycle: the ability to define informed intelligence priorities, to
analyze the threat information available and to properly advise other agencies
of the “reality” of the Sikh extremism threat.
Immediately following the bombing, 14 BC Region CSIS investigators were
assigned to the Sikh extremism investigation. This much-needed shift of
resources was too late.
Effect on Intelligence Analysis
The HQ Sikh Desk, the analytical centre for all investigations into Sikh extremism
across the country, was severely understaffed in the year leading up to the
bombing. Although three analyst positions were allotted to the investigation,
only one position was filled for most of the year prior to the bombing.
Russell Upton was the Chief of the CT operations dealing with Europe and the
Pacific Rim, including the Sikh Desk. He managed an area of operations far
larger than simply the Sikh Desk, including the other CT hot spots in Western
Europe, Yugoslavia, South America and the Caribbean.383 The Sikh Desk, itself,
was originally the Western Europe and Far East Desk and dealt with other areas
of interest as well. Although Upton had the ability to reassign staff within his
section, his entire section was operating with insufficient resources. Staffing
was at half its intended complement; only seven of 14 allotted positions were
filled.384 This was at a time when there were constantly-increasing intelligence
flows, not only in relation to Sikh extremism but also for other areas within his
responsibility.385 This information had to be interpreted, analyzed and integrated
into CSIS’s existing understanding of various terrorist groups. As such, Upton
had no “extra resources” to divert to the Sikh Desk.
381
382
383
384
385
See Section 1.3 (Pre-bombing), Parmar Warrant.
See Section 1.3 (Pre-bombing), Parmar Warrant.
Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3568-3569.
Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3571-3572.
Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3601-3602.
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The Sikh Desk therefore remained short-staffed. Glen Gartshore was the head
of the desk, and Burgoyne filled one of the three allotted Sikh Desk analyst
positions at the time of the storming of the Golden Temple, one year prior to
the Air India bombing.386 Burgoyne was a novice analyst with no background or
formal training in Sikh extremism issues. A second analyst position was filled by
Bill Dexter, who was away on French language training until March 1985. Dan
Godbout filled the final position three weeks prior to the Air India and Narita
bombings, but his work did not involve Sikh extremism issues.387 Even if all the
analyst positions had been filled with individuals, working full-time and with
expertise on Sikh extremist issues, three analysts would have been insufficient
to cover what was designated as the number one CT threat by May 1985.
Despite the diligence of Gartshore and Burgoyne on the Sikh Desk, it is clear that
they were overworked and under-resourced. The fact that CSIS had nominally
allotted three Sikh Desk analyst positions demonstrates a theoretical awareness
of the increasing threat of Sikh extremism. Nevertheless, CSIS failed to actually
fill all these critical analyst positions and to provide some training or personnel
with experience in Sikh extremism issues. Upton testified:
In so far as Sikh extremism was concerned, the lack of
resources starved the investigation at times and resulted in a
systemic inability to appreciate the threat so as to affect CSIS’s
priorities and investigative deployments.388
Upton said that the Sikh Desk analysts performed “…admirably under the
circumstances,” in light of the limited analytical resources at their disposal,
especially as they were dealing with an extremely tragic and high-profile terrorist
matter.389 Unfortunately, even admirable performance under the circumstances
was inadequate to deal with potentially lethal terrorist threats to the security of
Canadians.
Personnel at HQ were rapidly transferred to the Sikh extremism investigation
after the bombing, to newly-created analyst positions. Much like the postbombing shift in resources at BC Region, this after-the-fact prioritization at CSIS
HQ was too late to assist the overburdened analysts, who had been working to
“connect the dots” to prevent the bombing of Air India Flight 182.
Effect on Intelligence Dissemination
The scarcity of personnel in the HQ Threat Assessment Unit (TAU) limited its
ability to add value to CSIS’s threat assessments from the regions, or to ensure
that the finished product met the requirements of the requesting agency.
John Henry was the Head of the TAU, which consisted of two persons who
386
387
388
389
Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3569.
Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3570-3571.
Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3604-3606.
Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3604.
�Chapter III: What Went Wrong?
produced 952 time-sensitive threat assessments in the year preceding the Air
India bombing.390 The TAU handled the dissemination of threat assessments
for all CSIS investigations, not just the Sikh Desk. As such, the TAU only had the
capacity to focus on liaison duties, relying almost entirely on the operational
desks for the analysis and assessment of threats.391
Once a desk responded with a draft threat assessment, the TAU would review
the assessment to ensure “…it conformed with all the rules … at the time
and that it said nothing to infringe upon the duties of other units ….” The TAU
could edit the assessment to remove any information not deemed suitable for
dissemination outside of CSIS, and was responsible for adding caveats restricting
the use of the information contained in the assessment. The TAU might also
substitute vocabulary more familiar to the police. The TAU would occasionally
challenge the desk on the material “from an outsider’s perspective.” Any changes
or alterations were made in conjunction with the desks. However, most of the
time, the TAU would not make any changes to the assessments provided by the
desks, basically issuing a verbatim copy to the appropriate agencies.392
In effect, the TAU was resourced to act as a threat assessment post office, receiving
threat requests and sending back threat assessments, while contributing little
analytical input to improve the quality of the product. In the Commission’s view,
by limiting the TAU to this role, CSIS likely missed an opportunity to take a more
client-centred approach to the TA process. The TAU, with no particular expertise
in the issues dealt with in CSIS-wide TAs, would not have been expected to
contribute to the substantive portions of the TA. However, they had the best
opportunity, as the link between the analytical desks and the RCMP, to obtain
an understanding of the RCMP’s requirements, and to ensure that the format
and content of the TAs met these requirements in a meaningful way. Instead,
Henry testified that, although he felt he had a good liaison relationship with
RCMP VIP Security Branch, he was not familiar with the operations of the RCMP
Airport Policing Branch or even the CSIS Sikh Desk.393 Notably, the liaison
between Airport Policing and the Sikh Desk was relevant in relation to threats
to Air India.
The Week of the Bombing: Failure to Maintain Minimal Personnel and
Resources
The general lack of resources for the Sikh extremism investigation was
exacerbated by the fact that, during the week prior to the bombing, a number
of important staff members were permitted to be absent, and investigative
resources were diverted to other matters.
In the BC Region, Kobzey went on vacation on June 8th and returned the night of
June 22nd. He was not on hand to advocate for continued surveillance of Parmar,
390
391
392
393
Testimony of Daryl Zelmer, vol. 23, May 4, 2007, pp. 2313-2314.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2545-2546.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2508, 2511.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2511-2512, 2542-2543.
317
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to guide the transcribers and translators of the Parmar tapes, or to assess the
significance of the “two weeks” comment made during the Khurana meeting
before the bombing.
Betty Doak, the key transcriber for the Parmar intercepts, who also undertook
responsibility for liaising with the translators, was away from just before the
bombing until a week after. In her absence, the Punjabi translator alone processed
the intercepted communications. This led to crucial gaps in the transcription, as
the translator failed to record the subscriber information, a task normally carried
out by the transcriber. As a result, although Parmar called Bagri on the day of
the bombing, the telephone number where Bagri received the call was never
recorded. This would have provided critical information about Bagri’s location
on the weekend of the bombing. Instead, Bagri’s location that weekend was
never determined.394
At HQ, there were similar absences. Upton took leave for five weeks starting
June 21st. Deschenes, his direct superior, was away in Los Angeles for the week
preceding the bombing, on another case.
All these people were key links for the Sikh extremism investigation. None had
adequate replacements with in-depth knowledge of the investigation.
Valuable investigative resources were also pulled just prior to the bombing.
CSIS had requested daily situation reports from all regions during the period
leading up to, and including, the US visit of Rajiv Gandhi. This requirement was
withdrawn as soon as Prime Minister Gandhi left the US.
One of the most unfortunate decisions made in CSIS’s pre-bombing investigation
was the decision to withdraw surveillance from the stationary observation
post (OP) near Parmar’s residence on the day of the bombing. Notably, mobile
surveillance coverage had been removed days before, on June 17th. Although
unprecedented mobile surveillance coverage for a CT target had been afforded to
Parmar in June 1985, the removal of both the mobile and stationary surveillance
resulted in CSIS having no record of Parmar’s movements on that day. Kobzey
testified that surveillance priorities were determined with the chiefs of the
various units, in consultation with the Chief of the PSU and the Deputy Director
General Operations (DDG Ops).395 Kenneth Osborne was the DDG Ops at the
BC Region at the time. In a June 1992 interview with the Security Intelligence
Review Committee (SIRC), Osborne was asked why the stationary observation
post was unmanned on the day of the bombings. Osborne indicated that he
would not have been consulted on this.396 CSIS has been unable to locate
specific documentation regarding the reasons why the OP was vacated on
June 22, 1985.397 The persistent lack of explanation for this critical decision is
troubling, as it is impossible to assess the adequacy of the decision made. Was
394
395
396
397
Exhibit P-101 CAA0557.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3827.
Exhibit P-101 CAB0883, p. 2.
Exhibit P-101 CAA1086, p. 4.
�Chapter III: What Went Wrong?
surveillance pulled because BC Region failed to appreciate the significance of the
threat from Parmar and his associates? Or, if it was cognizant of the threat, but
allowed surveillance to be pulled due to a belief that some other investigation
had a more compelling call on the scarce resources available, why did they not
substitute another method to monitor Parmar’s location in its place?
The reasons for this cutback in resources and personnel may have been a
perceived easing of the threat, with the end of Prime Minister Rajiv Gandhi’s state
visit to the United States, as well as a need to relieve overworked personnel.398
Despite the fact that the threat from Sikh extremists was still considered high,
many key persons may have taken the “uneventful” end of the Gandhi visit and
the passing of the anniversary of the Golden Temple storming as assurance that
they could now take leave, and their superiors apparently agreed.
Lack of Training and Development of Expertise
The sufficiency of the training provided to the CSIS investigators and analysts is
a matter which was canvassed during the Inquiry. The sudden transition from
the RCMP Security Service to CSIS was not accompanied by opportunities to
retrain or to provide enhanced training geared towards a civilian intelligence
agency. Training in the first few years continued much as it had in the past
under the Security Service which, as a practical matter, meant continuing with
an emphasis on on-the-job learning.
Within the first year of CSIS, a new training academy was set up at Camp Borden.
The purpose, however, was to train new civilian recruits rather than those already
part of CSIS. At the same time, in order to bolster the ranks, CSIS allowed for
“direct entry”, which meant that police officers could join CSIS directly, bypass
the requirement to attend Camp Borden, and assume a higher rank than the
civilian recruits who were required to attend training. Geoffrey O’Brian testified
that this procedure created inevitable tension within CSIS.399
The direct entry procedure also did not help CSIS move away from its police
roots towards greater civilianization, a complaint that was echoed by both SIRC
and the Osbladeston Report.
HQ Analyst Training
The members of the Sikh Desk testified about the training they were provided.
Training was primarily on-the-job, and specific Sikh extremism expertise was
developed on one’s own time.400
Some basic training courses were offered. For example, Burgoyne took a basic
training course for new employees (when he was a member of the RCMP SS). The
398 Testimony of Russell Upton, vol. 31, May 22, 2007, pp. 3572, 3620.
399 Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, pp. 1560, 1563-1564.
400 Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3576.
319
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two-week course was for both desk analysts and field investigators. The course
only covered the basic structure of the RCMP SS, and provided background on
what the different units offered. They also had external speakers and instructors
lecture on the global political climate. As well, liaison officers from the British
and Australian security services spoke in relation to their operations. The courses
did not specialize in any way, but only provided a general overview of the RCMP
SS.401
Burgoyne testified that he was not given any particular training in relation to
Sikh extremism:
No. I think the attitude at Headquarters was that as long as you
understood operational policy, whether you’re working the
Armenians or the Sikhs or the Palestinians, – the issues, that’s
up to you to learn … and quickly because one day you may be
working one area, the next day another area. So you know, the
issues dealing with Sikhism or the problems in the Punjab, you
had to do your own reading and usually night-time reading.402
No time off was given to read up on relevant topics, such as the history of the
Sikhs or the history of conflicts in India, issues which could have provided needed
context to the Sikh struggle in 1985. No resource library existed at HQ. The only
resource was the general conditions file on the countries. That file was generally
made up of open source information provided to HQ by security liaison officers
(SLOs) abroad. In fact the information provided by SLOs on a continuing basis
was perhaps the greatest source of information available to CSIS.403
Gartshore’s testimony was relatively similar:
MR. FREIMAN: Did you get any specific training in Western
European terrorism?
MR. GARTSHORE: No.
MR. FREIMAN: Did you get any specific training in Pacific Rim
terrorism?
MR. GARTSHORE: No.
MR. FREIMAN: Did you get any training in Sikh terrorism, or
Sikh extremism?
MR. GARTSHORE: No.
401 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3402-3403.
402 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3403.
403 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3403-3404.
�Chapter III: What Went Wrong?
MR. FREIMAN: What was the theory – how were you to get
yourself up to speed?
MR. GARTSHORE: Whatever I could read. Essentially we were
conducting investigations. It was just like doing police work.
Accept it.404
Gartshore testified that he too relied on any information he could gather on his
own. Other material included reading material sent to CSIS by the Government
of India, reports from discussions with community members in Canada and
material from CSIS investigations. He also stated that most of the leads received
by CSIS were from the Government of India.405
Upton confirmed that analysts were trained on the job. They were expected to
learn from others and to learn by doing.406 One obvious problem in the context of
the Sikh Desk was that, at the outset, Burgoyne was the sole analyst and therefore
the opportunity to learn from others was correspondingly attenuated.
Finally, the RCMP had offered some members of the Security Service the
opportunity to upgrade their education with tuition paid to attend Carleton
University and other universities.407 Burgoyne was turned down when he made
his request and was told he could complete his final year part-time.408
Burgoyne was transferred to the Sikh Desk (then the Western Europe and the
Pacific Rim Desk) when the only analyst, Bill Dexter, was sent away for French
Language training. Dexter did not return until May 1985. Though the effort to
improve the bilingualism of the employees was commendable, the Commission
notes that the timing was poor, given that enhanced French language skills
would not have been useful for investigating Sikh extremism.
Regional Intelligence Officer Training
Intelligence Officers (IOs) in the regions received similar training. All of them
had been RCMP officers prior to joining the RCMP SS and had therefore gone
through regular officer training. On joining the RCMP SS, some received
additional training, such as source development and source handling.409
However, when it came to specific issues, such as Sikh extremism, the BK and
the ISYF, the investigators relied on their internal files, which were put together
through open source material and from their own investigation.410
404
405
406
407
408
409
Testimony of Glen Gartshore, vol. 31, May 22, 2007, p. 3516.
Testimony of Glen Gartshore, vol. 31, May 22, 2007, pp. 3549-3550.
Testimony of Russell Upton, vol. 31, May 22, 2007, p. 3576.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2544-2545.
Testimony of Bob Burgoyne, vol. 30, May 17, 2007, p. 3404.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7394-7395; Testimony of Neil Eshleman, vol.
75, November 14, 2007, pp. 9440-9441.
410 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7394-7395.
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Of particular note, the IOs did not receive training on specific policies, such as
retaining notes. William Dean (“Willie”) Laurie, a CSIS IO who became involved in
the investigation after the bombing, testified about this training:
MR. BOXALL: And you had received no training and policies
of keeping a separate notebook or maintaining your records –
the original records of information obtained from the witness?
MR. LAURIE: You know, earlier today such a policy was put
before me and we didn’t see it and I know of no member
actually using it.…
MR. BOXALL: Was there any training with respect to officers as
to what to do in that situation when they were overlapped? …
MR. LAURIE: I was never given any guidance to do that.411
As with the Sikh Desk, none of the IOs in BC Region were given specific training
on Sikh extremism. They learned about the issues through the documents they
received through NSR, through community interviews and by reading in their
spare time.
Despite the lack of resources, the IOs managed to develop an expertise in Sikh
extremism that outweighed that of the RCMP. Soon after the bombing, CSIS
investigators in both Toronto and Vancouver were asked to give talks to the
RCMP in order to bring them up to speed on Sikh extremism issues.
Physical Surveillance Training
Physical surveillance personnel received regular officer training when they first
joined the RCMP. Once they joined the RCMP SS PSU, they received on-the-job
training. There was no formalized training course on physical surveillance, and
there was no training in relation to Sikh extremism or any other issue which might
relate to the targets they were following. The PSU members gained most of the
knowledge they needed from the IOs, who briefed them at the start of the day.
In effect, since the IOs themselves had very little opportunity for issue-specific
training, such as on Sikh extremism, the PSU was equally disadvantaged.
Most training in surveillance skills was done on the job, with junior members of
the team relying heavily on the expertise of senior members, as was the case with
Lynne Jarrett and Larry Lowe, the surveillants at the Duncan Blast. Jarrett was
very new to surveillance and was the most junior person in the unit. Lowe was
not only the team leader, but an agent with 25 years on-the-job experience.412
411 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7536-7538.
412 Testimony of Lynne Jarrett, vol. 22, May 3, 2007, pp. 2194-2196.
�Chapter III: What Went Wrong?
The PSU personnel were given limited training with regard to weapons. This
type of training would have been useful in connection with the Duncan Blast
to help identify the sound that was heard. Jarrett testified that, although she
had had some exposure to weapons during her training, it had been in a
controlled environment, wearing ear protectors. In fact, Jarrett testified that,
prior to the Duncan Blast, she had never heard rifle shots in the open without
ear protection.413
Training in cultural differences might have aided the PSU in avoiding some of the
errors they made. PSU members experienced great difficulty in differentiating
Sikh males and relied heavily on the colour of their turbans. There are numerous
incidents of misidentification throughout the Air India narrative, most notably
in the case of Mr. X.414 Further, they were seemingly unaware that all Sikh males
included “Singh” in their name (either middle or last name), an issue which led
to the misidentification of the telephone number Parmar dialed on the ferry on
June 4, 1985.415 While the PSU personnel were not expected to be experts in the
field of Sikh extremism, they were lacking certain basic information which would
have aided them in identifying persons who came into contact with Parmar.
There was no evidence presented to suggest that any of the above issues were
addressed in the PSU.
Threat Assessment Training
The Threat Assessment Unit had equally poor training. It is acknowledged that
the TAU was not expected to be expert in any one field, in marked contrast
to the members of the Sikh Desk. However, training on the basics of threat
assessments, their role, to whom they were to be given, and how to best craft
them, was lacking. John Henry testified that, when he was placed in charge of
the TAU in 1980, he had had no experience in writing TAs. Instead, he had to rely
on his second-in-command, who did have experience, to “show him the ropes”.
Once again, training was done on the job, in this case with the junior officer
teaching the officer in charge.416 Such a situation was hardly acceptable, let
alone ideal.
Henry told the Commission that, while part of the RCMP SS, he was sent to the
RCMP training division to take a course entitled “Intelligence Analysis”. Henry
testified that it did deal with TAs to some degree but it was not very helpful. The
course dealt more with bootlegging and bookmaking operations and contained
no specific training on writing threat assessments.417
As is clear from testimony from all sections of CSIS, training, especially focused
training on Sikh extremism, was woefully inadequate. While many members
of CSIS invested their own time in developing expertise, that necessity was an
413
414
415
416
417
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2186.
See Section 1.5 (Pre-bombing), Mr. X.
See Section 1.4 (Pre-bombing), Duncan Blast.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2534-2535.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2544-2545.
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institutional failure on the part of CSIS. While learning on one’s own time should
not be discouraged, the fact that no institutional training was offered meant
that those who did not invest their own time in expanding their knowledge may
have been working with grossly inadequate knowledge and skill. Intelligence
employees should have been given the resources to make sure their basic
knowledge was developed, at least to a certain satisfactory level.
Lack of Resources Continues after the Bombing
These deficiencies continued to affect CSIS’s investigations for years after the
bombing, contributing to failures to prevent further terrorist attacks. CSIS’s
failure to prevent the attempted assassination of an Indian Minister in BC by
Sikh extremists in March 1986 was partly attributed to a lack of resources.
Due to resource limitations, the region had generally-accepted standards that
allowed for time lags between communication interception, transcription and
translation. Consequently, although CSIS possessed intercepts that warned of
the attack, these tapes were not processed until after the attack.418
Warren recalled that, in the post-bombing period, the government granted
approximately $3.1 million specifically for augmentation of the counterterrorism
program. He noted that the money was spent quickly. In October 1987, the
Osbaldeston Report commented on the lack of resources and personnel in
CSIS’s CT investigations that had persisted since CSIS was created.
Throughout our review we were continually aware that CSIS
has had serious resource problems. On the one hand, CSIS
was established without due regard for the real costs of many
“housekeeping” matters. On the other hand, we have observed
that CSIS applies too many operational resources against some
types of targets, and that the allocation of these resources
needs further review.
We can state without further study that there must be more
capital expenditure for accommodation and administrative
needs. [CSIS] still shares many operational and administrative
facilities with the RCMP. A large percentage of CSIS employees
still go to work in the morning at RCMP headquarters, making
it rather difficult to generate and maintain the esprit de corps
that is so important.419
Not until after the release of the Osbaldeston Report in 1987 did CSIS finally
receive adequate funds to deal with the gaps in their counterterrorism program
that had persisted since the beginning of CSIS.420
418 Exhibit P-101 CAB0647.
419 Exhibit P-101 CAA0569, p. 29.
420 Testimony of James Warren, vol. 48, September 19, 2007, pp. 5941-5943.
�Chapter III: What Went Wrong?
Conclusion
CSIS’s failure to allocate sufficient resources and personnel to the Sikh extremism
investigation hampered its performance at all stages of the intelligence cycle.
This deficiency was perhaps most pronounced in CSIS’s intelligence collection
efforts.
Each failure to obtain an investigative resource compounded CSIS’s inability
to build its base of knowledge and to justify the approval of further resources,
eventually creating large gaps in the domestic intelligence environment. With
little intelligence on Sikh extremism collected by CSIS, analysts were forced to
rely on information from other sources, often foreign, of unknown reliability,
which the organization was continually unable to corroborate or contradict. The
outcome was a failure to understand the changing nature of the terrorist threat.
That failure, in turn, materially harmed CSIS’s ability to assess the Sikh extremist
threat in advance of the June 1985 terrorist attacks.
3.3.4 CSIS Failures in Assessing the Threat
Inability to Imagine a New Threat Paradigm
CSIS threat assessments suffered from a set of uncritical assumptions about the
nature and targets of Sikh terrorism. The Government of Canada was unprepared
for a tragedy like Air India – a lethal, coordinated attack on Canadian targets. The
emergence of Sikh terrorism represented a new threat paradigm, one motivated
by political objectives but justified by religious imperatives. CSIS analysts treated
information about the new threat paradigm with skepticism, expecting threats
to conform to those of the past, rather than looking ahead to the changing
threat environment. Admittedly, it is very difficult to successfully predict the
next emergent threat, as experienced personnel will differ on the true nature of
the “next war”. However, there must be institutional flexibility and creativity to
recognize emergent threats, and an ability to focus on understanding the goals
of those who threaten national security, in order to think through the modalities
by which they might seek to achieve these goals.
The lack of imagination on the part of CSIS analysts about the nature and
targets of Sikh terrorism was attributable to inexperience in the emerging field
of terrorism, compounded by inadequate intelligence collection efforts. Wesley
Wark described CSIS’s failure to develop sufficiently the capability and expertise
to properly assess threats to national security:
CSIS … [were] doing threat assessments with the same tools
and the same people that the RCMP Security Service were
doing them with; the same people and tools that were heavily
criticized by the McDonald Commission after all, for their
failure to be sufficiently sophisticated about the nature of
international security threats.421
421 Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1497.
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The Sikh Desk acted as the analysis centre for Sikh extremist threats, but its
analysts were not provided the basic tools: experience, information and resources
that would have enabled them to recognize the nature of the emerging threat
of lethal violence in Canada. Proper analysis would have required training on
emerging terrorism trends, comprehensive domestic intelligence collection by
CSIS investigators, and adequate resources and personnel to process the mass
of available information. Sikh Desk analysts were provided with none of these.
Dependence on Foreign Intelligence
The Sikh Desk’s main supplier of intelligence regarding the Khalistani movement
in India and Canada was the Government of India (GOI) and the rhetoric of Sikh
extremists themselves.422 Often, CSIS first became aware of many of the key
figures and groups in the Sikh extremist movement in Canada through the GOI.
As early as April 1982, the GOI identified Parmar as a Khalistani terrorist leader,
responsible for several crimes, including the murder of two policemen in India. In
July 1982, the GOI further identified Parmar as a specific threat to Prime Minister
Indira Gandhi during her upcoming visit to New York City.423 In November 1983,
the GOI first sent information about the emergence of the Babbar Khalsa (BK)
in Canada.424
CSIS did not have a long-established intelligence-sharing relationship with the
Government of India. While CSIS commonly accepted the reliability assessments
of its allied intelligence partners, it felt unable to rely upon the assessments by the
Indian government. The Sikh Desk was cautious about accepting the bona fides
of the voluminous threat information provided by the Indian government and
the threats issued by Sikh extremists. The Desk sought specific corroboration of
all information passed on by the Indian government,425 which was rarely found,
due, in part, to CSIS’s own limited intelligence collection capabilities in its Sikh
extremist investigation.
CSIS Skepticism about the Sikh Extremist Threat
In the year preceding the bombing, CSIS was generally skeptical about
information on the Sikh extremist threat in Canada. CSIS understood the
importance of the credibility of its assessments and placed great importance
on its ability to separate the wheat from the chaff, and to calibrate the reliability
of threat information received. CSIS thus generally adopted a cautious stance,
remaining skeptical about threat information until it was able to substantiate
the information with reliable intelligence, collected by itself or its established
partners.
This approach was fueled by the sentiments held by members of the Canadian
Sikh community in relation to the Sikh extremist threat and its causes.426 CSIS
422
423
424
425
426
Testimony of Glen Gartshore, vol. 31, May 22, 2007, pp. 3549-3550.
Exhibit P-101 CAB0031.
Exhibit P-101 CAB0042.
Testimony of Bob Burgoyne, vol. 31, May 22, 2007, pp. 3476-3477.
See, for example, Exhibit P-101 CAB0176: Article by Tara Singh Hayer alleging that any confrontation
would be due to GOI provocation.
�Chapter III: What Went Wrong?
was aware that members of the Sikh community felt that the Indian government
was issuing the multitude of threat warnings in a simple attempt to discredit
Sikh nationalism in Canada.427 Sikh extremist leaders were claiming that the
Indian government had sent spies to Canada to portray Sikhs as being violent
and extremist.428 In one instance, the Sikh Desk noted that moderate leaders
within the Sikh community had discounted the rumoured existence of a “hit list”
of targets in Canada, and that they felt that the “hit list” was simply “…an idea
being used by a small militant group to increase the climate of tension in the
Sikh community and to induce moderates to adopt a more extreme stance.”429
CSIS’s skepticism about the seriousness of Sikh threats was also partly attributable
to fatigue over the seemingly constant threat. The large volume of information
provided by the GOI and the suspicion of bias on the part of the GOI combined
to create a view at CSIS that much of the information could be discounted as
nothing more than “crying wolf.”
The seriousness of the threat posed by Sikh extremists continued to be
discounted, even after the terrorist bombing of Flight 182. In March 1986, an
Indian government official was shot while visiting Vancouver Island for personal
reasons. CSIS had intercepted communications prior to the attack, but the
investigators in BC Region did not feel the information was credible enough
to alert the responding agencies, as unsubstantiated threats were commonly
issued by Sikh extremists.
[T]he fact that the taped communications contained threats
of harassing Sidhu was not seen as unusual; threats against
others that are rarely carried out were said to be common in
communications between CSIS Sikh targets.430
Archie Barr noted that the threat information received by the BC Region prior
to the attack should have been assessed as significant, and investigators should
have passed the information to HQ rather than discounting it as another “cry
wolf” remark.
Clear information about the pending attempt on his life was
received the Friday before it happened, but it wasn’t passed
on until Monday following the attack. This was a case of
negligence, if not ineptitude.… Some action could have been
taken, and it should have been taken. It was poorly handled
and there was no excuse for not contacting Headquarters.431
427
428
429
430
431
Exhibit P-101 CAB0124, p. 2.
Exhibit P-101 CAB0129, p. 2.
Exhibit P-101 CAB0105.
Exhibit P-101 CAB0647, p. 13.
Exhibit P-437: Statement of Archie Barr, pp. 14-15.
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While it was important that CSIS attempted to assess the validity of all threat
information, a review of the Inquiry evidence indicates that Desk analysts
relied too heavily on the notion that the Sikh extremist threat would adhere to
conventional conceptions about terrorism.
Conventional Conceptions about Terrorism
Bruce Hoffman testified that the Air India and Narita bombings differed from
conventional acts of terrorism at the time.432 The lethal and simultaneous nature
of the attacks was quite exceptional. The common belief was that “…terrorists
wanted a lot of people watching and not a lot of people dead.” Any violence was
expected to be directed at “symbolic” targets such as diplomats and consular
properties. Hoffman testified that this led to a fatally false sense of security, based
on the belief that terrorist violence would be kept within acceptable boundaries,
and that terrorists thought that indiscriminate murder would alienate the very
people they wished to recruit and influence. It was believed that terrorists
wanted to preserve an image of legitimacy, notwithstanding their threats and
occasional resort to violent attacks, and thus would tailor their actions in ways
designed to not offend the international community and to avoid triggering
harsh repressive measures from their enemy. Experts at the time noted that
terrorist actions were often limited to simply issuing a manifesto and threats to
gain publicity for their cause.
The Rise of Religious Terrorism
However, by the early-to-mid 1980s, terrorists became convinced that more
spectacular, daring and bloody acts were necessary to obtain the degree
of attention that more constrained acts might have garnered in the past.
Justifications for violence began to emerge in terrorist circles. There was a new
inclination to resort to violence as revenge for oppression. Religious-based
terrorism emerged, justifying violence on religious precepts. Violence became
a divine duty or a sacramental act, and, by implication, refusing to engage in
violence would mean disobedience to a religious obligation. Religious-based
terrorists arose, who felt that they had no choice but to take up arms to fight
perceived victimization and persecution.433
Hoffman noted that the actions of the radical Sikh movement in the early
1980s conformed to the patterns and characteristics of religious terrorism.434
The “martyrdom” of Bhindranwale in the Golden Temple storming created an
ideal basis for support of religious terrorism by Sikh extremists. At the time of
the bombing, CSIS investigators on the ground appeared to understand the
religious motivations behind the movement. The BC Region situation report on
June 17, 1985 noted that “…basically what we are dealing with is a problem
involving a political issue with religious fanaticism being used as the driving
432 Testimony of Bruce Hoffman, vol. 19, March 9, 2007, pp. 1779-1785.
433 Testimony of Bruce Hoffman, vol. 19, March 9, 2007, pp. 1787-1789, 1793.
434 Testimony of Bruce Hoffman, vol. 19, March 9, 2007, p. 1796.
�Chapter III: What Went Wrong?
force to achieve the goal in question.”435 Meanwhile, Sikh Desk analysts appeared
to recognize the new phenomenon of religious terrorism, but did not expect it
to emerge as quickly and lethally as it did. While the Sikh Desk worked diligently
to understand the Sikh extremist movement, it failed to give credibility to the
rapid increase in the potential for large-scale violence after the Golden Temple
storming, justified by the religious basis of the movement. Burgoyne testified
that:
My personal feeling is that no one saw the Sikh issue – rising
so quickly in prominence and I think that was as a result of the
raid on the Sikh Golden Temple and maybe it was our lack of
understanding of Sikhs and how very emotional – and how
this single issue is what propelled us into what was a very
tumultuous year.436
The Sikh Desk analysts appeared to adopt the conventional wisdom about
terrorism, including the belief that terrorists wanted publicity, not violence. The
Air India bombings did not conform to this conventional understanding. They
were acts of indiscriminate mass murder, conceived in Canada and targeted
against Canadians. CSIS analysts were ill-equipped to conceive of such acts at
the time, and CSIS and the agencies it advised remained unprepared for them.
Breaking Conceptions about Terrorism
To have fully appreciated the emerging Sikh extremist threat, CSIS would
have had to break out of the conventional conceptions about terrorism. The
Commission investigated CSIS’s attitude towards the flood of threats prior to
the bombings, in an attempt to determine whether CSIS’s assessments were
justified on an unbiased review of the facts, or instead hampered by tunnel
vision.
In CSIS’s constant search for corroboration and for “specific” threats, it failed to
step back to consider the significance of the growing amount of information
indicating the changing nature of the Sikh extremist threat. CSIS analysts
remained wed to the ideas that the Sikh extremist threat was mainly a foreigninfluenced issue; that the potential for violence in the Sikh extremist community
was remote; and that terrorist attacks, if they were to occur, would be focused
on obvious symbolic targets such as Indian missions and personnel.
Sikh Extremism: A Foreign Threat
Initially, the Sikh Desk appeared to subscribe to the notion that terrorist
violence was a foreign-influenced issue, not a domestic one. The Sikh extremism
investigation was opened to investigate the possible eruption in Canada of Sikh
435 Exhibit P-101 CAA0219, p. 2.
436 Testimony of Bob Burgoyne, vol. 31, May 22, 2007, p. 3488.
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community violence, brought about by related developments from India.437
Early CSIS investigations were unable to uncover definite evidence of terrorist
conspiracies by Canadian Sikh extremist groups. However, their ability to do so
was hampered by their overall lack of investigative capacity in this area.
Early assessments generally described the unrest occurring in the Punjab
region, focusing on the events at the Golden Temple rather than the situation
in Canada. CSIS took the view that the Sikh community in Canada was generally
peaceful, but that foreign Sikh extremists might come to North America to
commit terrorist acts.438 After the Golden Temple storming, CSIS admitted
that there was a possibility that extremist elements within the Canadian Sikh
community could pose a threat to Indian interests.439 In mid-June 1984, when
Air India warned of suicide attacks, CSIS called for further investigation, but, on
the basis of its limited knowledge, expressed skepticism that violence by Sikh
extremists would occur in Canada.
It is unclear whether this attack is planned for Canada or any
vulnerable Air India office worldwide.… Air India in Canada has
never been the target of attack by extremists. The hijacking of
Air India aircraft by Sikh terrorists has been limited to flights in
India and Pakistan.440
The GOI issued a White Paper on the Punjab Agitation on July 10, 1984,441 outlining
an international Sikh extremist threat. The White Paper clearly described a major
Canadian connection to the Sikh extremist movement. It indicated that Parmar
had set up the BK in Canada and was the head of the overseas unit of the BK.
Parmar had allegedly claimed that the BK was responsible for several murders
and acts of sabotage in India. The White Paper also mentioned Surjan Singh Gill
and his February 1984 letter to Sikh leaders in the Punjab, which asked them
to continue the fight for Khalistan, urging them to consider employing suicide
squads. Indian authorities claimed Parmar was “…the most dangerous Sikh
terrorist presently at large”, but CSIS viewed the Indian assessment as being
biased.442
Canada had the second largest concentration of Sikhs outside India, after
Britain.443 In addition to the information received from the GOI, CSIS was aware
of the violent extremist rhetoric espoused by three Canadian Sikhs, Parmar, Bagri
and Gill – rhetoric that included calls for 50,000 Hindus to be killed as revenge
for the Sikhs killed in the Golden Temple storming, and threats that all Hindus
437
438
439
440
441
442
443
Exhibit P-101 CAB0054.
Exhibit P-101 CAB0055, CAB0057.
Exhibit P-101 CAB0111.
Testimony of Bob Burgoyne, vol. 31, May 22, 2007, pp. 3458-3459; Exhibit P-101 CAB0076, p. 2.
Exhibit P-101 CAB0104, p. 6.
Exhibit P-101 CAB0114.
Exhibit P-101 CAB0100, p. 5.
�Chapter III: What Went Wrong?
living in North America after August 1st would be killed.444 Upon his return to
Canada from the West German prison, Parmar stated: “I want to warn the Indian
government they’ll pay the price for attacking the Temple.”445
By October 1984, CSIS had focused its investigation on Parmar, Bagri and Gill.
CSIS recognized the threat potential posed by Parmar, warning that he was the
most radical and potentially dangerous Sikh in the country, with a close circle of
like-minded associates who posed a serious threat. However, CSIS noted that his
support in Canada appeared to be minimal at the time.446
In the following months, CSIS began to realize the threat potential of Sikh
extremist groups in Canada, noting in several TAs that the threat to Indian
interests from these groups was high. However, CSIS continued to underestimate
the potential for a coordinated conspiracy to undertake violent action in Canada,
despite the fact that several major Sikh extremist figures were present in the
country and espousing violent rhetoric.
Underestimating Potential for Violence of Sikh Extremists
CSIS considered early incidents of violence in the Sikh community to be
emotional outbursts in reaction to events in India, or to interfactional temple
rivalries (and thus, not related to threats to national security). This rationalization
allowed CSIS analysts to maintain the belief that violence would be minimal,
sporadic and contained within the Sikh community.
The Sikh Desk understood that the majority of Sikhs were peaceful, desiring
communal harmony, and that the threat of violence came from a very small
group of radicals. In the year preceding the bombings, the Desk acknowledged
the growing threat potential from this radical group but did not adequately
assess the potential for coordinated, large-scale conspiracies. Any violence
was expected to be due to “uncontrolled outbursts” by persons overtaken by
emotion.447 CSIS cited the shooting at the Toronto Consulate in 1982,448 and the
Winnipeg attack on the Acting Indian High Commissioner Fabian, as examples
of “emotional” outbursts by Sikhs.449 In August 1984, the Sikh Desk began to
warn of increasing possibilities of violence. It reported on a protest at which
young Sikhs chanted angrily and threw eggs. The TA recognized the volatile
nature of the youths involved, and warned that it could lead to more serious
incidents, with the eggs being replaced by something more harmful.450 By
September 1984, CSIS noted the growing polarization between the moderates
and extremists within the Sikh community and warned that “…the real threat
comes from the radical groups who … might take precipitous actions not
444
445
446
447
448
449
450
Exhibit P-101 CAB0143.
The Province (Vancouver) (July 9, 1984).
Exhibit P-101 CAA0104.
Exhibit P-101 CAB0120.
Exhibit P-101 CAB0035 (November 16, 1982), CAB0112 (July 25, 1984), CAB0124 (August 13, 1984).
Exhibit P-101 CAB0148.
Exhibit P-101 CAB0130.
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sanctioned by … the moderate leadership”.451 This view persisted within CSIS
ranks and was noted in the May 24, 1985 TA issued in anticipation of the Gandhi
visit to the US. The TA notes that Sikh extremist groups were attempting to “…
flame the emotions of younger Sikhs who may be susceptible to irrational and
spontaneous acts of violence.”452
The threat assessments in 1984-1985 regarding Indian interests exhibited CSIS’s
lack of knowledge about key Sikh extremist groups in Canada.453 After the Indian
government alerted CSIS in 1983 about Parmar’s group, the Babbar Khalsa (BK),
CSIS had difficulty confirming its existence in Canada. In June 1984, the BC
Region offered the opinion that the BK might be a “…group of malcontents and
frustrated separatists who utilized threats in order to get attention from a small
minority of local Sikhs.”454 In assessing the BK’s threat potential, CSIS remained
unable to confirm the BK’s existence in Canada, but concluded that the threat
that the BK would kidnap or kill Indian diplomats in Vancouver could not be
entirely discounted.455 By October 1984, CSIS noted the recent emergence
of groups in Canada using names of Sikh extremist groups that were known
internationally, including the BK. At the time, CSIS believed that these named
groups were being used in Canada by a small number of advocates of Sikh
separatism to attract attention to their cause and to broaden their appeal within
the Sikh community.456 Nearly a year later, CSIS appeared to have little new
knowledge about the activities of the BK in Canada. In April 1985, CSIS noted
that whether the BK was actually planning an action in Canada or abroad was
a matter of conjecture, and that it had no information that would support such
speculation.457 CSIS provided the RCMP with an overview of the BK on April 24,
1985, consisting of a brief listing of the threats issued by the BK in 1984 and
a mention that Parmar was considered to pose the greatest threat in Canada
to Indian interests. CSIS reported that it believed the organization consisted of
approximately 20 members.458 Other than the increased membership, it appears
that CSIS had not collected any independent intelligence about the BK to better
understand its activities throughout this period.
CSIS TAs often offered the view that the threats made by Sikh extremists were
exaggerated, issued more for tactical reasons than as an expression of an actual
willingness to carry out violent acts.459 While this may generally have been true
in terms of past Canadian experience, relying on the continued validity of this
conventional notion of terrorism prevented CSIS from adequately investigating
the possibility of planned violent actions by Sikh extremist groups. CSIS generally
dismissed threats to Indian missions and Air India flights made by phone or
451 Exhibit P-101 CAB0136, CAB0137.
452 Exhibit P-101 CAB0236, p. 3.
453 Exhibit P-101 CAB0105. CSIS reported difficulty in confirming the existence of a known Sikh terrorist
group, the Dashmesh Regiment, in Canada.
454 Exhibit P-101 CAB0061, CAB0064, CAB0085.
455 Exhibit P-101 CAB0058, CAB0061.
456 Exhibit P-101 CAA0104.
457 Exhibit P-101 CAB0223.
458 Exhibit P-101 CAB0221.
459 Exhibit P-101 CAB0105.
�Chapter III: What Went Wrong?
letters. An October 22, 1984 TA warned against the emotional characteristics
of Sikhs, but stated that CSIS was still inclined to believe that Sikhs in Canada
would continue to concentrate their efforts here without resorting to tactics
such as aircraft hijackings.460 One CSIS TA noted that telephone bomb threats
had been made to Air India offices in Toronto in the summer of 1984 “…as part
of the antagonistic campaign against Indian interests.”461 Threatening letters
sent to the Toronto Consulate in February 15, 1985, were dismissed as a ploy by
Sikh fanatics to keep the Khalistan issue alive.462 CSIS assessed a threat reported
against the incoming Air India flight on April 13, 1985 as unlikely to result in
actual violence:
We believed then as we believe now that threats of this nature
are probably generally communicated by mail or telephone to
continue to cause problems and perpetuate terrorist threats
in hopes of causing unrest/retaliatory measures by the Indian
Government so as to keep Khalistan alive in the minds of all
Sikhs.463
The TAs in the following months regularly cited a general “high” threat potential
from Sikh extremists in Canada, but added that CSIS had no specific information
about this “high” threat.464 In the months before the Air India bombing, CSIS
appears to have recognized the growing threat potential of Sikh extremists,
but remained unable to gather information about the specific plans of these
groups. On March 20, 1985, CSIS warned that Sikh extremist activity in Canada
had not receded and that the threat of violent actions against Indian interests
remained high.465 On May 24, 1985, CSIS described the BK and ISYF as Sikh
extremist groups with “clear violence potential.” However, the TA concluded that
although both groups were planning demonstrations in relation to the Gandhi
visit in early June, CSIS had no information to indicate that violence was being
planned. CSIS warned, however, that the situation could change rapidly based
on events in the Punjab.466 It appeared resigned to its inability to predict the
actions of Sikh extremist groups and, on June 5, 1985, cautioned that should the
radical elements plan any action, there was a good possibility that it would not
have any foreknowledge.467
The misconception that Sikh extremist groups would not likely resort to violence
in Canada resulted in an abdication of responsibility on the part of CSIS to take
the threats seriously enough to consider when and how these threats might
come to fruition. The underlying logic was that, if an act of violence were to
occur, CSIS would not have had advance notice, as the actions of Sikh extremists
were assumed to be spontaneous and emotional responses to events in the
Punjab.
460
461
462
463
464
465
466
467
Exhibit P-101 CAB0148.
Exhibit P-101 CAB0218.
Exhibit P-101 CAB0192.
Exhibit P-101 CAB0218.
Exhibit P-101 CAB0173 (December 7, 1984), CAB0182 (January 9, 1985), CAB0192 (February 15, 1985).
Exhibit P-101 CAB0203.
Exhibit P-101 CAB0236(i).
Exhibit P-101 CAB0249.
333
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Attitude towards Threats to Air India
The TAs issued by the Sikh Desk tended to focus on threats to Indian missions
and personnel, with much less attention and credibility given to possible threats
to other Indian interests such as Air India or to the general public. This may have
been due to the fact that the RCMP VIP Protection Unit, whose specific mandate
was to protect GOI missions and personnel, was the main client for CSIS TAs.
CSIS TAs were generally classified as dealing with threats to “Indian Missions and
Personnel.” John Henry, the Head of the Threat Assessment Unit (TAU), testified
that the term “Indian interests” was intended to include Air India. However, it is
not clear that the agencies receiving the CSIS TA product were fully aware of this
fact. The June 7, 1984 TA, in response to the Golden Temple storming, warned of
demonstrations at Indian missions “…and possibly other Indian interests.”468 No
effort was made to explicitly list these Indian interests.
Even when threats to Air India were received and noted in CSIS TAs, CSIS often
expressed skepticism that the threat would apply to Air India flights in Canada469
despite the fact that, throughout the year preceding the bombings, it had
received a flood of information from a range of sources linking threats to Air
India to Canada. In June 1984, the Air India General Manager at Mirabel passed
on a warning that 20 Sikhs were preparing to launch a suicide attack against Air
India.470 Later that month, an Air India sales agent in Toronto received a call from
a person using the name “Grewal,” stating that “…one of the Air Indian aircraft
one of these days is likely to be sabotaged.”471 A few days later, the Air India
Toronto office received a call warning of a bomb threat on an Air India flight.472
On August 7, 1984, the Vancouver Police Department (VPD) Indo-Canadian
Liaison Team informed CSIS that two audio cassette tapes warning that a plane
would be hijacked had been dropped into an Air Canada mail slot. The voice on
the tape was suspected to be that of a Sikh.473 In September 1984, the Desk was
notified of a threat of three terrorists hijacking an Air India flight “…originating
from Canada and North America”.474 In October 1984, the GOI warned that Bagri
was known to be part of a plot to hijack Air India aircraft from any port of origin
and destination in North America.475 A separate police source warned that a plot
was underway to sabotage an Air India flight from Montreal. The GOI continued
to send threat warnings predicting the hijacking of Air India flights to and from
Canada. In January 1985, the GOI warned of Sikh extremist plans to stage some
spectacular actions threatening civil aviation, including hijacking an Air India
flight from Montreal or Toronto.476 The GOI passed on an unconfirmed report that
468
469
470
471
472
473
474
475
476
Exhibit P-101 CAB0101.
Exhibit P-101 CAB0076; Testimony of Bob Burgoyne, vol. 31, May 22, 2007, pp. 3458-3459.
Exhibit P-101 CAB0076.
Exhibit P-101 CAB0079.
Exhibit P-101 CAB0088.
Exhibit P-101 CAF0818.
Exhibit P-101 CAB0140, p. 4.
Exhibit P-101 CAA0103.
Exhibit P-101 CAB0185.
�Chapter III: What Went Wrong?
an Air India flight to Toronto would be hijacked, specifically on April 13, 1985.477
On May 16, 1985, the RCMP informed CSIS that the London Metropolitan Police
had arrested five Sikhs in the UK who were buying remote-controlled devices.
An Air Canada flight schedule was found amongst the documents of the five
Sikhs.478 All these threats were directed at Canadian flights and almost all were
specifically directed to Air India flights in Canada. With only one flight arriving
and departing Canada weekly, it is difficult to imagine not considering that any
threat to Air India would apply to Flight 182 from Canada.
Even when CSIS considered threats to Air India in Canada, it generally concluded
that the possibility of an actual attack was remote. In October 1984, CSIS
responded to a threat to Air India passed by the GOI, and advised that Sikhs
in Canada were not expected to resort to tactics such as aircraft hijackings.
CSIS did not however rule out the possibility entirely, due to the “emotional
characteristics” of the Sikhs.479 Days later, CSIS received some corroboration
from the Vancouver Police Department of a threat to Air India, and appropriately
concluded that the “…potential for Sikh Extremists damaging an Air India
aeroplane is real.”480 While CSIS changed its assessment on the basis of the new
information from the VPD, its ongoing assessment efforts were hampered by its
general inability to find corroboration through its own investigations. Even after
this, CSIS continued to generally discount subsequent threats to Air India in
Canada. One reason for discounting these threats might have been the “cry wolf”
syndrome. The fact that repeated threats to Air India failed to come to fruition
appears to have created a threat fatigue within CSIS. John Henry expressed his
doubts about the seemingly constant threat to Air India in the year prior to the
bombing. Regarding the threat to the incoming Air India flight to Toronto on
April 13, 1985, he stated:
We didn’t really think there was any substance to it. An
example here is your Air India flight 181. It was going to be
hijacked coming in to Toronto. It seems to me none of them
were ever hijacked.481
When the RCMP received the June 1st Telex, it failed to pass the threat on to
CSIS,482 but did ask for an updated assessment of threats to Air India. CSIS’s
response was brief and vague, providing no specifics. It did, however, contain
one of the only clarifications on record that assessments relating to threats to
Indian missions were intended to include Air India.
477
478
479
480
481
482
Exhibit P-101 CAB0215.
Exhibit P-101 CAB0233.
Exhibit P-101 CAB0148.
Exhibit P-101 CAB0154.
Testimony of John Henry, vol. 25, May 8, 2007, p. 2552.
See Section 1.2 (Pre-bombing), June 1st Telex.
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Currently CSIS assess [sic] the threat potential to all India
missions in Canada as high. This is also intended to include
Air India. CSIS, however, is not aware of any specific threat to
the airline. Should we learn of any specific threat relating to Air
India, you will be advised immediately.483
It is unknown how CSIS’s assessment would have changed had it seen the June
1st Telex. However, it is clear that, up to this point, CSIS was aware of a flood of
threats to Air India, and, less than three weeks before the bombing, offered no
more detail about the potential target, perpetrators or timing of the threat than
to conclude that the threat potential to Air India was “high.”
Conclusion
CSIS underestimated the ability and will of Sikh extremists to channel their
emotions into coordinated, lethal attacks in Canada – attacks that might have
been predicted and prevented by more thorough intelligence investigations
into these small extremist groups.
Admittedly, CSIS’s ability to further the Sikh extremism investigation was limited
by the fact that the extremists operated in close-knit groups and were often
secretive about their activities. However, as noted in the previous sections, CSIS
failed to properly prioritize and resource the investigation into Sikh extremism,
and this resulted in a situation where analysts had little information that might
motivate them to look beyond the then-current notions about terrorism.
Accordingly, they continued to assume that terrorist violence would likely be
confined to the Punjab, and that these acts would, in any event, be unplanned
and spontaneous, embodying emotional responses to events in the Punjab,
and would not likely be directed against large-scale civilian targets such as Air
India. The inability of CSIS analysts to comprehend the possibility of a different
orientation for potential Sikh extremist acts of terrorism left CSIS, and the
agencies it advised, unprepared for the events of June 22-23, 1985.
3.3.5 Failures in Internal Information Sharing
Because of the lack of resources assigned to the intelligence collection effort in
the Sikh extremism investigation, good communication and coordination were
critical between the few investigators and analysts who were involved. This
would allow CSIS to make the most of the limited information collected.
CSIS was a centralized organization, with Headquarters (HQ) assigned the
responsibility for coordinating the investigations undertaken by regional offices
across the country. HQ was the information gatekeeper, acting as a depository
for all related information received from the various regions, as well as from
other government departments and foreign partners. HQ was responsible for
ensuring that regional investigators gained access to information obtained
from other sources that was relevant to the regional investigation.
483 Exhibit P-101 CAC0416.
�Chapter III: What Went Wrong?
A free flow of information within CSIS was critical, not only because of the lack of
resources, but also in recognition of the fact that terrorism was rarely a localized
phenomenon, but rather one with national and international dimensions. The
Commission analyzed the adequacy of CSIS policies and practices regarding
information sharing within the agency, and asked whether there were any
deficiencies that affected the CSIS investigation into the Sikh extremist threat
before the bombings. A number of deficiencies were found.
Practices and Policies
Information collected by CSIS was stored in a centralized computerized database,
the Narrative Storage and Retrieval (NSR) system. All HQ analysts and regional
Intelligence Officers (IOs) across the country had access to the NSR system.
Information was searchable by keyword. Regional IOs entered information
collected from their investigations into NSR, where it could be accessed by CSIS
personnel at HQ and other regions. HQ analysts entered information received
from external sources, including other government departments and foreign
agencies. Kobzey testified that all CSIS investigators had daily access to the NSR
system, allowing them to obtain information provided by other investigations
across the country and to receive orders from HQ.
Kobzey testified that he would normally check the system daily, upon his arrival
at the office, to see if any new data had been uploaded in the form of intelligence,
surveillance or search reports, etc., by investigators from headquarters and the
regions. He was interested in threat assessments or assignments from HQ for
investigation. Anything urgent would be downloaded, printed and placed on
his desk for him to take the necessary action. This could involve conducting
field inquiries, requesting PSU coverage, conducting his own surveillance, or
whatever was necessary.484
The IOs were responsible for diligently inputting information obtained from
their investigations in a form that allowed others to benefit from their insight.
Each NSR report would contain an “Investigator’s Comments” section, where
the IOs would provide context to the information reported. They would also
outline the significance of the information to HQ orders or investigations by
other regions.
[T]here would be a block with the title “The Investigator’s
Comments.” That would be where I would try to put into
context, for the benefit of the other regions and my
Headquarters counterpart, the significance of the information
in relation to the investigation we were conducting in BC or,
if it was a follow-up inquiry for HQ tasking or if it pertained
to messages that were coming to us from the other regions
regarding activities taking place in their locations and
484 Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3734-3735.
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any information that we had that was pertinent to those
investigations, we would cross-reference their message and
make notes in the comments about the significance of what
we had done.485
A good example of the utility of the NSR system was the Subject Evaluation
Report prepared on Parmar for the OPRC (Operational Priorities Review
Committee) level 4 investigative authority application.486 Kobzey prepared an
initial report on Parmar, based on the information available on the NSR system
and his personal knowledge of the subject. The initial report was passed to HQ
analysts, who added relevant information from other government departments
and foreign partners that Kobzey could not access.487 Ultimately, the report
included information gathered by CSIS investigators in BC Region and by other
CSIS regions, as well as information about Parmar’s activities in India and his
arrest in West Germany.488 As an example, Parmar was in Calgary when he made
one of his most infamous statements, in which he “…strongly urged Sikhs to
unite, fight and kill in order to revenge the attack on the Golden Temple in the
Punjab.”489 That information was entered into NSR by CSIS personnel in Calgary,
and was therefore available for Kobzey when he prepared his initial report
on Parmar. The information was included in both Kobzey’s report and in the
subsequent HQ application.490
The NSR database provided a system that theoretically allowed CSIS personnel
to obtain a comprehensive understanding of any CSIS investigation. The success
of the NSR system depended on the thoroughness of the information in the
database and the ease with which information could be accessed.
The Commission assessed the adequacy of the system for sharing of information
within CSIS. The NSR system was ahead of its time in its ability to offer a
centralized database of information, linking investigations across the country.
With some hindsight, and allowing for the state of technology then and now, the
Commission undertook a critical review of the NSR limitations. The Commission
found failures in internal sharing that hindered CSIS’s ability to “connect the dots”
in their assessment of the threat of Sikh extremism in the period leading up to the
bombing. These failures were the result of weaknesses in both operations and
policies within CSIS. First, the utility of the NSR system suffered from technical
limitations. Second, compartmentalization was apparent among all CSIS units,
as information sharing was restricted on a “need-to-know” basis.
Deficiencies in the NSR System
The NSR was designed to provide a useful system for archiving and accessing
the large quantity of intelligence collected by CSIS. While it often achieved this
485
486
487
488
489
490
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3736.
Exhibit P-101 CAB0139.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3739-3743.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3739-3740.
Exhibit P-101 CAB0139, p. 3.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3741.
�Chapter III: What Went Wrong?
objective, its utility was limited by the fact that the database was not necessarily
easily searched, nor was it accessible to all CSIS offices.
Kobzey called the NSR system cumbersome, and admitted that proper use of
the system required taking a course to understand how to retrieve information
using basic Boolean searches.
It was a program, bearing in mind we are talking 1981
onwards. It was an older style of computer database, and it
was a cumbersome database. It required basically Boolean
search … equations, to retrieve the information that you were
looking for. And you had to take a course in it, a storage and
retrieval course … and be certified before you could go on the
system.491
John Henry admitted that CSIS was “…in [its] infancy when it came to
computerization at the time.” He noted that, although all the documents were
placed in the database system, there did not exist a foolproof way to ensure that
the information was properly correlated and easily accessible.492
In 1985, the NSR system was not employed in every district. The Toronto office
was responsible for the entire South West Ontario Region, and as such, district
offices in certain areas reported to the Toronto office. This included Windsor
District, which was staffed by three agents at the time. While Toronto had access
to NSR, the districts did not. This meant that messages for Windsor would be
sent to Toronto first, and Toronto would disseminate them to Windsor. Likewise,
when Windsor needed to report to HQ, it would send its report to Toronto, where
the manager would sign off on the report before it would be entered into the
NSR system.493
The concept behind the NSR system was sound: to provide a centralized
database of information collected by CSIS from related investigations across
Canada. While this system provided a potentially useful means for assessing all
security intelligence gathered by CSIS’s own investigations, its ultimate utility
was limited, perhaps by the cumbersome technology of the day.
Compartmentalization
Internal communications within CSIS were stifled by compartmentalization and
secrecy. While CSIS collected a large quantity of information, communication
was not free-flowing among investigators, analysts and senior management.
This prevented CSIS from taking full advantage of the wealth of intelligence
collected.
491 Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3738.
492 Testimony of John Henry, vol. 25, May 8, 2007, p. 2529.
493 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3424-3425.
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Compartmentalization existed between senior management and on-theground investigators, as well as among investigations across the country and
even within a single investigation. This compartmentalization meant that one
CSIS investigator might not necessarily know what another was working on.
John Stevenson noted this point when comparing the differences between CSIS
and the RCMP:
I’m coming from CSIS; I’m coming from a security intelligence
background where the “need-to-know” principle is rigidly
applied; where documents are stored properly; where
investigators, work in fairly – close proximity to each other,
[and] may not know what the other investigator is working on
….494
This meant that access to intelligence was restricted, both within CT
(Counterterrorism) and between CI (Counter-Intelligence) and CT investigations.
This segregation within CSIS led to the possibility that CSIS would miss the
opportunity to make relevant connections. The importance of open information
sharing within CSIS is illustrated by the fact that key breakthroughs after the
bombing were made by investigators outside of the BC Region. For example,
the Windsor investigation did not result in any intelligence that could have
prevented the bombing, but it had an effect on the subsequent investigation.
There was a CSIS wiretap in place during the Windsor investigation. While
reviewing the intercept material, Charlie Coghlin became aware of certain
words and phrases that were commonly used as code. The realization that the
same code words were being used in the Parmar intercepts was not made until
months after the bombing, when Coghlin had been transferred to HQ to help
with the analysis and was given access to the translators and transcriber logs for
the Parmar intercept.495
The failure of CSIS HQ to appreciate the importance of Coghlin’s finding, and to
pass it on to investigations of Sikh extremist targets in other regions, resulted in
a missed opportunity to share critical insight that might have enabled Kobzey
to advance his investigation on Parmar.
This compartmentalization was the result of CSIS’s adherence to the illconsidered and strict “need-to-know” principle and the fact that CSIS personnel
operated within their own silos of responsibility.
“Need-to-know” Principle
Compartmentalization, based on the “need-to-know” principle, appears to have
been widely and uncritically accepted within CSIS. In an interview with the BC
Crown prior to the Reyat trial, Ayre stated:
494 Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7674.
495 Exhibit P-101 CAA0308, CAA0309.
�Chapter III: What Went Wrong?
I think that it comes down to the fact that we are all very
compartmentalized. We operate on a need to know basis [sic]
and there are a lot of areas that are being talked about that
were need to know and I didn’t need to know about them.496
The “need-to-know” principle was cited as a key principle upon which the
intelligence community operated.497 It was a prevailing principle for the RCMP
Security Service (SS), and subsequently CSIS, not only in dealing with outside
agencies, but also within its own establishment.
In relation to sharing between HQ and the regions, HQ always claimed that it
had the requisite need to know, in terms of what the regions were seeing and
collecting (with the possible exception of the names of human sources), but
the reverse was not always true. HQ did not always share information with the
regions. Its decision on what to share, and what not to share, was based on its
assessment of whether the investigator in the region had a need to know. A
clear difficulty, not only with this asymmetrical relationship, but with the very
concept of “need-to-know”, is the fact that it will almost always certainly lead to
an inadequate information flow: because it is impossible to know completely
what you need to know, if you are not deemed to have the “need-to-know”
status that would allow you to evaluate the information in the first place.
Information within the NSR system was available to investigators, but if
the information was considered sensitive it would trigger an alert to a user
conducting a search that the information existed, but was accessible on a
“need-to-know” basis only. To gain access, the IO could contact whoever had
responsibility for the file to explain the need to access the information.498
This compartmentalization was one of the major deficiencies of the centralized,
top-down organization at CSIS: investigators on the ground were denied access
to CSIS information that was relevant to their investigations. Restrictions due
to the “need-to-know” principle were often placed on information from foreign
sources, including information collected by the Communications Security
Establishment (CSE). HQ acted as the gatekeeper for foreign intelligence,
reviewing all material, but not necessarily entering it into NSR, due to third
party or secrecy concerns.499 In its attempt to respect such concerns, HQ could
withhold information from the regions.
Investigators, including Kobzey, appeared to accept the notion that HQ should be
able to withhold information that could be relevant to their local investigations.
Kobzey stated in testimony that he may not have had the necessary clearance
level for information of a highly sensitive nature (such as that from CSE). He
accepted that having “Top Secret” clearance would not automatically give him
496
497
498
499
Exhibit P-101 CAD0183, p. 12.
Testimony of Robert Chesney, vol. 83, November 26, 2007, p. 10729.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3854-3855.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6127.
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access to everything; HQ would make a determination regarding whether he
had the requisite need to know and, if not, HQ officials would assess the veracity
of the information themselves, without the benefit of Kobzey’s insight into the
investigation.500
It is not clear, however, that HQ was best qualified to determine what information
would be relevant to a given regional investigation, particularly in comparison
to the judgment of the investigators themselves. HQ received summary reports
from the regions that contained the intelligence that investigators found to be
of obvious significance. Intelligence withheld by HQ might have provided a
new context to trigger a different interpretation of an event originally perceived
to be insignificant. This restriction on the sharing of information eliminated
opportunities to make important connections, since information stayed within
silos.
Secrecy and third party concerns could conceivably be relevant in terms of
sharing information with other agencies, where these agencies might be subject
to different requirements and mandates. However, it is difficult to understand
why these concerns would exist within CSIS itself. Why did HQ feel that it could
not share certain types of sensitive information with regional investigators
working on the same file? All investigators were Top Secret cleared and the
restriction of access to relevant information appears difficult to justify. The
process was unduly restrictive and, as a result, generally ineffective in a service
dedicated to acquiring and, in theory, sharing it. The “need-to-know” principle,
as developed by CSIS, was a demonstrable mistake.
Silos of Responsibility and Filtering of Information
In 1984-1985, CSIS appeared to be an agency that was aware of the
recommendations of the McDonald Commission to respect individual privacy
rights. It was not accustomed to either the public spotlight or close political
scrutiny. CSIS personnel attempted to perform their duties, but often without
knowledge of all the information in CSIS’s possession that was relevant to their
investigations. The Osbaldeston report noted:
Within CSIS, we have observed a formal, hierarchical decisionmaking process that has tended to isolate the Director …. The
compartmentalized CSIS management committee structure
inhibits the accommodation of new or different points of view,
does little to encourage effective communication within the
Service, and does not provide a corporate level perspective
to program priorities and resources. The Director must chair
important internal management committees for his leadership
to be manifest.501
500 Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3854-3855.
501 Exhibit P-101 CAA0569, p. 17.
�Chapter III: What Went Wrong?
This isolation of roles and the filtering of information began at the lower levels
of the organization. Investigators briefed Physical Surveillance Units (PSU),
translators and transcribers only on the key points of an investigation. However,
the PSU, the translators and the transcribers were ultimately responsible
for making relevant observations, while investigators reviewed reports and
summaries of the information collected.
An example of problems with this approach can be seen around the Duncan
Blast incident.502 The PSU surveillant noted the phone number dialed by Parmar
during the ferry ride to Nanaimo, and understood he was calling a “Singh.” The
Unit looked in the Duncan phone book and noted the one “Singh” listed there,
despite the fact that his number did not match what the surveillant believed she
saw Parmar dial while on the ferry. The PSU personnel seemingly were unaware
that all Sikh males had the middle or last name Singh. The BC investigator
received the PSU report, and drafted a report to be distributed to CSIS HQ
and the RCMP. This summary report contained only the phone book number
of “Singh,” but not the number observed by the PSU surveillant on the ferry.
After the bombing, the RCMP asked to see the underlying PSU report, but CSIS
initially denied access on the basis that the summary report would be sufficient.
CSIS eventually released the underlying PSU report to the RCMP, at which point
it was realized that the number first observed by the PSU surveillant was that of
Inderjit Singh Reyat. The lost detail in the investigator’s summary report delayed
this important finding for months. In fact, this may have never been discovered
had the RCMP not gone back to review the original PSU report.
Another example of harmful filtering of information was the process set up
for translating and transcribing intercepts, such as those recorded on Parmar.
Investigators received intercept reports that consisted mainly of paraphrased,
rather than verbatim, translations, a practice that CSIS senior management
noted made these reports of little use as key intelligence information.503
Note-Taking Policies and Practices
The failure to appreciate the importance of reviewing raw information extended
to the note-taking practices of the IOs. Kobzey testified that he would often take
notes during an interview, if the interviewee permitted him to do so. However,
after completing the summary report for submission into the NSR system, he
would shred the notes, according to policy.504 Evaluation of the handwritten
notes in comparison with the intelligence report was, of course, made impossible
by the destruction of the notes. It is difficult to determine which details might
have been omitted or altered, or written with different emphasis.
While, generally, the regional investigators provided briefings to the PSU and
intelligence monitors, they failed to appreciate the importance of maintaining
502 See Section 1.4 (Pre-bombing), Duncan Blast.
503 Exhibit P-101 CAF0818, p. 2.
504 Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3738.
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the raw, initial reports. The importance of these reports became most apparent
after the bombing, when the opportunity to review the raw information,
especially the intercept tapes, from a new perspective would have been
valuable. The destruction of raw information and the lack of communication
between CSIS personnel resulted in lost opportunities to connect the dots and
to gain maximum benefit from the collected intelligence.
3.3.6 Lack of Meaningful Threat Assessments
Lack of Coordination: Intelligence for Intelligence’s Sake
A major deficiency in CSIS’s analysis efforts was the fact that the Sikh Desk,
effectively the “analysis centre” for threats to Indian interests, performed
its analysis functions in isolation. Analysts never “brainstormed” with other
involved agencies to pool their knowledge on the Sikh extremist threat and to
understand the range of available responsive actions. Instead, Sikh Desk TAs
(Threat Assessments) were based on the skill of individual analysts with little
expertise in Sikh extremist issues and no personal, on-the-ground insight. No
mechanism was in place to take advantage of the depth of knowledge and
analytical skills across government agencies to enable them to collaborate with
the Sikh Desk or challenge its TAs.
The purpose of CSIS TAs was to provide relevant intelligence to allow other
government agencies and ministers to determine appropriate operational
policies and responses. CSIS was deliberately not given enforcement powers.
Thus, CSIS’s main role in the government’s counterterrorism efforts was to
provide timely and relevant advice to the government through its threat
assessment product.
After reviewing CSIS’s TA process as it stood in 1985, the Commission is left with
the impression that intelligence was being produced for intelligence’s sake. CSIS’s
intelligence product was insufficiently tailored to the needs of its client agencies,
and it was produced with little input from those clients. Instead CSIS unilaterally
determined the scope of tasking, collection, analysis and dissemination of its
product. CSIS could determine if information, although relevant, should be
left out of the assessment product because of secrecy concerns or for other
reasons. This resulted in the production of general assessments that, at times,
lacked the precision and detail necessary to allow other agencies to develop an
appropriate response.
The 1987 Osbaldeston Report surveyed consumers of CSIS TAs and noted:
The consensus of this group was that CSIS operational
intelligence is of high quality, but that there is not enough of it.
Some of our interlocutors stated that CSIS did not seem aware
of what sorts of operational intelligence might be of interest to
its consumers. This was attributed to a lack of understanding
�Chapter III: What Went Wrong?
of the needs of the rest of Government on the part of CSIS
and many of its analysts. On the other hand, intelligence
consumers must tell CSIS what they want.505
As noted by the Osbaldeston Report, the failure to ensure meaningful TAs was
not attributable solely to CSIS. It appears that the intelligence consumers did not
provide direct feedback about the utility of the intelligence product. Admittedly,
these consumers were hampered in their ability to assess the intelligence
product, as they were often not aware of any underlying information available to
CSIS that had not been disclosed in the TA. Rather than addressing deficiencies
in the TA product, consumers like the RCMP simply came to expect little utility
from the TAs and began to advocate developing intelligence capabilities of their
own.506 Major criticisms of the TAs generally occurred at high levels after the
fact. Personnel across government agencies dealing with the Sikh extremism
investigation failed to work together to improve the TA product on an informal
and daily basis.
CSIS assessments tended to be general, consisting of a description of the
general threat environment and a simple designation of the threat level as
“high”, “medium” or “low”. Rarely included were details about the nature of the
threats, speculative information regarding the range of possible threats, an
estimate of the likelihood of harm or any possible consequences.507 CSIS TAs
purposely would not contain suggestions regarding the appropriate response,
as this was felt to be a decision within the sole jurisdiction of the RCMP and
other protective agencies.508
Lack of Meaningful Threat Levels
As indicated, CSIS TAs classified the threat level according to three broad
categories: high, medium and low. Agencies responsible for protective response
to threats were expected to set operational responses on the basis of these
general threat assessment levels.
The threat level to Indian interests consistently remained “high” for the year prior
to the Air India and Narita bombings, beginning with the June 1984 storming
of the Golden Temple. Effectively, the RCMP P Directorate was responsible for
adjusting its response in the face of a consistently high general threat.509
It is unclear whether there was any agreed view of how CSIS threat levels related
to a recommended operational response by the RCMP. John Henry, Head of the
Threat Assessment Unit (TAU) at CSIS HQ, testified to his understanding of the
505 Exhibit P-101 CAA0569, p. 19.
506 Exhibit P-391, document 210 (Public Production # 3343): RCMP response on July 31, 1985 to an early
draft of the Seaborn Report, “ICSI Review of Counter-Terrorism Measures Repecting Airport/Airline
Security” [RCMP Response to Draft Seaborn Report].
507 Testimony of John Henry, vol. 25, May 8, 2007, p. 2543.
508 Testimony of John Henry, vol. 25, May 8, 2007, pp. 2543-2544.
509 Testimony of John Henry, vol. 25, May 8, 2007, p. 2555.
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threat levels: when the threat was rated as high, it meant that one should be
extra vigilant and prepared for anything.510 It is difficult to understand how this
“be prepared for anything” guidance was helpful to the RCMP in formulating an
effective and targeted threat response.
Henry sympathized with the RCMP P Directorate’s frustration about the lack of
specificity in the CSIS TAs. He admitted that, in general, all CSIS could provide
was an assessment that stated, “…[t]he general threat is high, but we have
nothing specific.”511
CSIS did not undertake to better understand the RCMP’s methodology
concerning threat responses or to design its TAs to correspond to the RCMP’s
operations. There was a lack of recognition on the part of both the RCMP and
CSIS of the need to translate threat levels into something corresponding to a
more specific range of operational responses by the RCMP.
This deficiency was noted in a review of the failures in the TA process that allowed
Armenian terrorists successfully to seize the Turkish Embassy in March 1985. The
Canadian government undertook an interdepartmental review of the incident
and concluded that CSIS, in cooperation with other relevant government
agencies, should develop standard threat levels for its TA products.512
The review has also identified a need, in the preparation of threat assessments,
to define in standard and precise terminology various terrorist threat levels or
“thresholds” in terms of their seriousness. This would allow a more responsive
implementation of precautionary measures by responsible agencies.513
This deficiency was not dealt with prior to the attack on Air India Flight 182, nor
did the agencies do anything, in light of that conclusion, to try to ameliorate the
problem on an informal basis until a broader review could take place.
Lack of Threat Details
TAs issued by CSIS in the period leading up to the Air India and Narita bombings
lacked specifics and failed to probe alternative threat scenarios, especially when
it came to the possibility of terrorist bomb attacks against Air India flights.
This deficiency was noted in the 1992 Security Intelligence Review Committee
(SIRC) Report:
Many of the assessments contained little more than a
statement that the threat level against Indian Government
510 Testimony of John Henry, vol. 25, May 8, 2007, p. 2543.
511 Testimony of John Henry, vol. 25, May 8, 2007, p. 2512.
512 Exhibit P-101 CAF0063. The report entitled “Review of Federal Counter-Terrorism Arrangements” was
prepared with the participation of the Solicitor General’s office, External Affairs, National Defence,
the Privy Council Office and the Department of Justice.
513 Exhibit P-101 CAF0063, p. 4.
�Chapter III: What Went Wrong?
interests remained high. We noticed that the assessments
which mentioned Air India showed little sign of analysis
leading to more detailed assessment of the form any attack
might take.514
Details regarding the nature of the expected threat could be critical for the RCMP
to tailor the appropriate response. It is clear that the appropriate response for a
hijacking threat would differ from that for a bombing threat. It is also clear that
details about the expected target and potential suspects would allow the RCMP
to focus their response to address the areas of highest threat. In spite of this,
CSIS often left out details regarding the expected targets, type of threat and
possible suspects.
Targets: Threats Related to Air India
Sikh Desk TAs generally related to “threats to Indian missions and personnel”,
a term that was intended to include Air India.515 However, this inclusion was
explicitly clarified for the first time in an early June 1985 TA516 in response to an
RCMP request for a specific TA on Air India. The fact that the RCMP requested a
specific TA on Air India indicates that the RCMP did not necessarily consider that
any threats to Indian missions might pertain to Air India as well.
This clarification was particularly relevant in light of the fact that the P Directorate
consisted of two separate branches: VIP Security and Airport Policing. CSIS sent
the TAs to the P Directorate, which was responsible for disseminating the TAs
within the RCMP. Threat details were critical to ensure that the P Directorate
brought the TAs to the attention of the appropriate RCMP departments.
However, CSIS did not appear to appreciate fully the division of responsibility
within the RCMP and the need for threat details to facilitate the P Directorate’s
dissemination efforts. Since all threats to Indian missions were meant to include
Air India, all TAs related to threats to Indian missions should have clearly
indicated the need for them to be passed to the Airport Policing Branch. The
TAU within CSIS failed to ensure that this occurred. Henry would generally copy
both Airport Policing and VIP Security on TAs dealing with threats to aviation
security. However, the TAU often failed to copy Airport Policing on general
TAs517 regarding threats to Indian interests, including those issued in the critical
month before the bombing, even though these threats were clearly applicable
to Air India.
514
515
516
517
Exhibit P-101 CAB0902: 1992 SIRC Report, p. 27.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2513-2514.
Exhibit P-101 CAA0194.
See, for example, Exhibit P-101 CAB0218, which is a threat assessment regarding the April 13, 1985
threat to an incoming Air India flight. See also Exhibit P-101 CAB0071, which was copied to both
VIP Security and Airport Policing.
347
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Nature of Threat: Hijacking or Bombing
CSIS failed to provide details about the expected nature of threats in its TAs. It
is clear that the RCMP would need to respond differently to counter hijackings
versus bombing threats.
Burgoyne, the key CSIS analyst on the Sikh Desk, testified that the Desk did
not differentiate between hijacking and bombing threats in its assessments.518
Henry’s testimony indicated that terminology used in the threat assessment
could be ambiguous. He testified that “sabotage” could mean a wide range of
things:
I refer to sabotage as damage. Damage could be puncturing
the skin of the airplane, like with a truck. I’ve seen it happen.
Slashing the tires so that it’ll have difficulty as you crash on
landing, a bomb, yes, there’s sabotage. Even as the air crew
go through the lobby, slipping tranquilizer pills into their say,
coffee. The range is as far as your imagination can go.519
Henry’s comment reflects the attitude that responding agencies should be
prepared for anything. The lack of precision in the language of the assessments
did not appear to be a major concern for CSIS, as it seemed content to issue
general assessments of the expected threat. This overly cautious approach
inevitably hampered the RCMP’s ability to tailor the most effective response to
the threat.
Suspects: Names of Suspected Sikh Extremists
TAs would rarely include names of Sikh extremists under investigation by CSIS,
even in the face of direct requests from the RCMP for information on certain
persons. Burgoyne testified to his understanding of the importance of details
regarding suspects during the Inquiry hearings.
I think it’s important that we find who’s behind the threat, what
is that person capable of doing … what method may that
person employ. So whether you are a martyr, a marksman or
explosives expert, I think this is the information that we have
to try and gather on the person who is behind the threat.520
Despite this recognition of the importance of identifying suspected perpetrators,
CSIS commonly issued TAs lacking any such detail.
518 Testimony of Bob Burgoyne, vol. 31, May 22, 2007, p. 3454.
519 Testimony of John Henry, vol. 25, May 8, 2007, p. 2552.
520 Testimony of Bob Burgoyne, vol. 31, May 22, 2007, pp. 3453-3454.
�Chapter III: What Went Wrong?
On June 21, 1984, the RCMP requested a TA and enclosed a list of names of
alleged members of the Babbar Khalsa (BK), including Parmar and Gill.521 At
the time, the RCMP Security Service (SS) knew that Indian officials had claimed
that Parmar was the leader of a terrorist section of the Khalistan movement and
had been the subject of an extradition request by the Indian government for
the alleged murder of two policemen in India.522 The GOI had also specifically
identified Parmar as a threat to the safety of Prime Minister Indira Gandhi during
her 1982 visit to the US. The RCMP SS knew that Gill had identified himself as
the Vancouver Khalistan “Consul General,” was a personal acquaintance of
leaders of other international Sikh extremist groups, and was present at a 1982
egg-throwing incident staged against the Indian High Commissioner.523 While
the RCMP SS had passed on this information to VIP Security in 1982, it did not
include the information in its noticeably vague responding TA on June 21, 1984,
which simply stated that:
All of these persons are supporters to varying degrees of
greater political autonomy and religious freedom for Sikhs
in India. Some are Sikh community and Spiritual leaders in
Canada. Others are advocates of an independent Punjab and
provide financial and moral support to those professing to
represent the Government of Khalistan in exile.524
On September 6, 1984, the Sikh Desk issued a TA to provide an updated synopsis
of the Sikh situation in Canada.525 It stated that:
It is the radical groups, often advocates of Khalistan, that
constitute the greatest danger and create the largest risk factor
for Indian diplomatic premises and personnel. Elements within
this group have expressed support for acts of terrorism in India
and some may have ties to terrorist groups there.
However, the TA failed to provide any descriptions of the “radical groups,”
descriptions which would have assisted the RCMP in better focusing its response
to the “high” threat.
Meanwhile, about five weeks earlier, on July 31, 1984, the Sikh Desk had reported
detailed information about Parmar internally within CSIS.526 This detailed
information on Parmar was finally released to the RCMP on October 26, 1984,
along with information about Bagri and Gill. CSIS noted that it “…continues
to assess the threat as high as [sic] result of the actions of the individuals
mentioned.”527
521
522
523
524
525
526
527
Exhibit P-101 CAB0079, pp. 2-3.
Exhibit P-101 CAB0042 (May 7, 1982), CAB0031 (July 28, 1982).
Exhibit P-101 CAB0031 (July 28, 1982).
Exhibit P-101 CAB0085.
Exhibit P-101 CAA0093, p. 2.
Exhibit P-101 CAB0114.
Exhibit P-101 CAA0105.
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The hesitancy to pass on specific names was likely due to a perceived need to
protect individual privacy and the secrecy of CSIS’s own investigations. TAs that
contained information about individuals would include a comment to the effect
that information which might affect Canadian citizens or permanent residents
should be referred to senior level management, who would then manage
potential dissemination to Indian authorities.528 CSIS was acutely aware of
the need to protect privacy rights, to the detriment of its information-sharing
practices with the RCMP.
The RCMP Perspective on CSIS Threat Assessments
The RCMP expressed dissatisfaction with the general nature of CSIS TAs in the
immediate aftermath of the Air India and Narita bombings. In July 1985, the
RCMP characterized the information received from CSIS in the year prior to the
bombing as mainly providing a general historical and political overview, rather
than any “concrete intelligence.”
The CSIS did not forewarn us and to this point in time they
have not been able to provide any concrete intelligence
or information that has assisted our investigation since
the mishaps. They have provided a historical and political
perspective which the RCMP was cognizant of due to the many
protective operations it had to engage in involving Indian
diplomats and associated criminal investigations following
attacks on them or Indian missions over the course of the past
year in Vancouver, Winnipeg and Toronto.529
Because of its constant concern about proper resource allocation, the RCMP
often requested updated TAs from CSIS to ensure that the level of protection
was still required. Even in the critical month of June 1985, the RCMP was eager to
reduce the resources assigned to the protection of Indian interests. On June 11,
1985, the RCMP noted that the “high threat levels” in the CSIS TAs had resulted
in the deployment of a considerable number of RCMP resources. The RCMP TA
request sent on that date stated that if the Gandhi visit occurred without serious
incident, it was assumed that the threat level would diminish.530 The RCMP
appears to have been implicitly pressuring CSIS either to provide some evidence
of the continuously high threat or to reduce the threat level in its analysis.
The RCMP was not content to rely on CSIS TAs as the main source of security
intelligence upon which to design its responses, in part because of its
dissatisfaction with the CSIS information and assessments. In July 1985, the
RCMP reported that, although it had relied on CSIS to provide valuable details
on threats, it felt that the information provided was not adequate to inform its
threat responses effectively.
528 Exhibit P-101 CAB0085, p. 2.
529 Exhibit P-391, document 210 (Public Production # 3343): RCMP Response to Draft Seaborn Report.
530 Exhibit P-101 CAB0275.
�Chapter III: What Went Wrong?
A vacuum has been created following the separation of the
Security Service from the RCMP with respect to valuable
street-level criminal/dissident/terrorist and law enforcement
intelligence because of a lack of essential contacts, sources and
informants within the various ethnic communities. The Force
has had to rely on CSIS for this kind of information which has
not been effective to date in countering terrorist acts.531
After the creation of CSIS, the RCMP developed its own parallel TA process.532
Interdepartmental Threat Assessments
The usefulness of CSIS TAs could likely have been improved by an
interdepartmental review of the TA product. However, in 1985, CSIS TAs were
developed on the basis of CSIS insight alone, despite the fact that various
other agencies relied upon the product to make critical operational and policy
decisions. CSIS’s ability to provide meaningful TAs was impaired by a lack of
consultation with its client agencies, particularly the RCMP.
The Sikh Desk, the analysis centre for TAs on Sikh extremist threats, had no
direct contact with its major client, the RCMP P Directorate.533 All TA requests
and responding assessments were sent through the CSIS TAU.534 No mechanism
existed for Sikh Desk analysts to engage with the P Directorate for an evaluation
of its TAs. Burgoyne testified that he was unaware of how the P Directorate
would respond to the TAs, but assumed that it would contact the Sikh Desk for
clarifications if necessary.
Well, not having had contact with “P” Directorate if there was a
problem with the interpretation – of our assessment, perhaps,
they would have asked – can we be a little bit more clearer,
or is there anything else that we can provide them with, to
better assess. Although, I do think our assessments were quite
accurate based on the information we had at the time. So how
they would react to this, I really can’t say.535
At the Inquiry hearings, Burgoyne did not recall any instance where the P
Directorate asked for clarification about a threat assessment from the Sikh
Desk.536
The P Directorate did maintain direct contact with the TAU at CSIS. Henry
admitted that the TAU did not follow up to determine whether the consumer
531 Exhibit P-391, document 210 (Public Production # 3343): RCMP Response to Draft Seaborn Report.
532 See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
533 Testimony of Bob Burgoyne, vol. 31, May 22, 2007, p. 3444; Testimony of Glen Gartshore, vol. 31, May
22, 2007, pp. 3549-3550.
534 Testimony of Bob Burgoyne, vol. 31, May 22, 2007, p. 3444.
535 Testimony of Bob Burgoyne, vol. 31, May 22, 2007, p. 3453.
536 Testimony of Bob Burgoyne, vol. 31, May 22, 2007, p. 3453.
351
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agencies found CSIS product to be of any use. The TAU acted purely as a liaison
centre and did not develop any capability to provide added value to the TAs.
Henry had limited knowledge of the operations of the RCMP units that relied
upon the CSIS TAs. He felt he had a good liaison relationship with VIP Security, in
that there was often dialogue about the TAs. However, he was not familiar with
the operations of the Airport Policing Branch, which was notably the branch
responsible for responding to threats to Air India.537
Henry was also unaware of the process by which the Sikh Desk drafted the TAs.538
He testified that he “hoped” that the receiving agencies would take the CSIS TA
and draw on its own sources of information to develop an operational plan.
What is striking about the relationship between CSIS and the RCMP is that there
was virtually no dialogue between them. Given the general nature of some
of the TAs, one would have thought that the RCMP would have followed up
with CSIS to get more information. It is as if each agency assumed the other
understood the situation at hand when in fact, at times, neither did. Instead,
each appeared to have chosen to duplicate efforts, rather than trust the other
to carry out its separate role.
Early Efforts to Create an Interdepartmental Threat Assessment
The clear need for an interdepartmental system of intelligence assessment
was recognized in the review of the March 1985 Turkish Embassy incident. The
review report recommended that:
[A]n interdepartmental system be established, with CSIS as
the focal point, for the preparation of comprehensive terrorist
threat assessments, and for regular consultation between
appropriate intelligence and security components – CSIS, DEA,
RCMP, CSE and as necessary, CEIC, DOT and DND.539
In late May 1985, James Bartleman of External Affairs formed the ad hoc
Interdepartmental Working Group on Sikh Extremism, in recognition of the
need for increased coordination to assess and respond to the “crescendo” of
threats to Indian interests at the time. Efforts at international coordination were
also initiated, as government officials from DEA, CSIS, RCMP and the Solicitor
General’s office attended a tripartite meeting on Sikh extremism in Washington
in the week prior to the bombing.540
In the month before the bombing, CSIS began distributing TAs related to threats
to Indian interests more widely. Rather than forwarding TAs to the P Directorate
for further dissemination, CSIS sent its TAs directly to VIP Security, NCIB, Solicitor
537
538
539
540
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2511-2512, 2543, 2555.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2542.
Exhibit P-101 CAF0623, p. 2.
Exhibit P-101 CAB0289, p. 3.
�Chapter III: What Went Wrong?
General, PCO, DND, DEA, CSE, Transport Canada, Immigration Canada, Customs,
and all CSIS regions, districts and liaison officers stationed abroad.541
These efforts toward increased interdepartmental coordination of the threat
assessment might have helped to produce more meaningful TAs and enhanced
interdepartmental cooperation. Unfortunately these efforts were far too late to
prevent the Air India and Narita bombings.
3.4 Deficiencies in RCMP Threat Assessment Structure and Process
Introduction
Prior to the creation of CSIS, the RCMP Security Service collected security
intelligence and provided threat assessments to the RCMP units in charge of
implementing protective measures. The assessments issued by the Security
Service contained relevant information about potential threats as well as
an analysis of the level of the threat to assist in determining the appropriate
security response. The RCMP did not otherwise carry out threat assessment
functions as part of its policing operations, though it did have some units
gathering criminal intelligence. When CSIS was created, the new agency took
over the duties previously carried out by the Security Service, including the
dissemination of threat assessments to Protective Policing. However, the RCMP
decided to produce its own threat assessments also, while continuing to receive
those from CSIS.542 Hence, a new threat assessment process was put in place
by the RCMP.
Unfortunately, the RCMP threat assessment process was not efficient in gathering
and/or analyzing threat information centrally and, at times, interfered with the
process in place at CSIS. The RCMP devoted significant resources to gathering
and transmitting information that CSIS was already providing to Protective
Policing. However, the RCMP was unable to address existing gaps in the threat
assessment process by bringing into it the information to which it had unique
access or even the information already in its possession. Relevant information
was not always recognized or was not reported in a timely manner, and the
RCMP often had difficulty appreciating the significance of the information or
the seriousness of the threat.
Threat Assessment and the RCMP Mandate
Government Policy
The official Government position in 1984 was that the responsibility for the
collection and assessment of intelligence about threats to the security of
Canada was assigned to CSIS, while the RCMP would remain responsible
for protective policing and enforcement duties in connection with criminal
541 Exhibit P-101 CAA0187 (June 6, 1985 TA), CAA0220 (June, 17 1985 TA).
542 Exhibit P-101 CAA0039(i), p. 51, CAC0275, p. 2, CAC0495, p. 4.
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offences related to security threats.543 The same legislation that created CSIS
specified a mandate for the RCMP in the area of “security offences”, giving the
RCMP primary responsibility to perform peace officer duties in connection with
criminal offences arising “…out of conduct constituting a threat to the security
of Canada” or targeting “internationally protected person[s].”544
In the Government’s attempt to effect a surgical division of mandates between
CSIS and the RCMP,545 it was envisioned that the “security intelligence” mandate
and resources would be transferred from the RCMP SS to CSIS, which would then
have “…the responsibility and the capability to supply the RCMP with security
intelligence it requires to meet its security enforcement and security protection
responsibilities.”546 The RCMP was expected to rely on CSIS for intelligence
relevant to protective policing operations and security offences investigations.
In terms of threat assessment, this would mean that CSIS would investigate and
provide the threat information to the RCMP, which would then be responsible for
taking appropriate protective action and which could also use the information
to conduct its criminal investigation should a security offence be committed.
A Guideline was approved by the Minister about the appropriate role, policies,
administrative arrangements and resource allocation which should guide the
RCMP in the discharge of its security-related responsibilities. The Guideline
recognized some potential overlap and duplication between “security
intelligence” and “security enforcement” investigations, but took a narrow view
of the RCMP’s role in collecting information about security offences. The RCMP
was expected to take action only in investigating and gathering evidence
where it was apparent or likely that a security offence had been or was about
to be committed. In cases where there was only a possibility that threats could
give rise to security offences, the RCMP was expected to rely on CSIS to provide
relevant intelligence information.547
Recognizing that the RCMP would likely produce or acquire information related
to security threats in the course of carrying out its policing duties, the Guideline
instructed the Force to pass this information on to CSIS so that CSIS would
be in receipt of all security intelligence relevant to its mandate.548 The RCMP
Commissioner was authorized to establish dedicated units with no investigative
or operational mandate for the purpose of liaison with CSIS.549 The role of these
units was to be limited to sharing information with CSIS and consulting on
cases requiring enforcement or protective action,550 while the actual protective
543 The information in this section comes from Exhibit P-101 CAA0081, pp. 2-15.
544 Exhibit P-107: Security Offences Act, S.C. 1984, c. 21, ss. 57, 61. See also Section 3.0 (Pre-bombing), The
CSIS Act.
545 See discussion on the McDonald Commission in Section 2.1 (Pre-bombing), The Civilianization of
Security Services.
546 Exhibit P-101 CAA0081, p. 8.
547 Exhibit P-101 CAA0081, p. 13.
548 Exhibit P-101 CAA0081, pp. 9-10. See also the recommendation at p. 15, that the RCMP pass to CSIS
information relevant to the CSIS mandate.
549 Exhibit P-101 CAA0081, pp. 3, 16.
550 Exhibit P-101 CAA0081, p. 16.
�Chapter III: What Went Wrong?
and security offences investigations work would continue to be carried out by
existing RCMP units.551 The creation of the new units was said to require only a
“small level of resources” immediately.552
While not directly addressed in the Guideline, it is clear that the Government
contemplated that CSIS would be in charge not only of collecting but also of
analyzing all information relevant to national security threats in order to advise
other agencies, including the RCMP, of the nature and seriousness of the threats.
Hence, the RCMP had to provide the threat information it acquired to CSIS so that
it could be centrally analyzed and so that the overall threat could be assessed by
CSIS. The role contemplated for the RCMP in the threat assessment process was
minimal, at most.
Creation of RCMP Threat Assessment Process
As mentioned, when CSIS was created, the RCMP decided that, since the threat
assessment functions previously carried out by its Security Service would now
be transferred to CSIS, the Force needed to create its own threat assessment
process.553
The RCMP never viewed intelligence-gathering activities relating to terrorism
or other security-related crimes as being excluded from its mandate, and
consequently believed that it needed to maintain an intelligence function, in
particular for the gathering of “criminal intelligence.”554 To the RCMP, intelligencegathering activities and involvement in threat assessment were part of the
Force’s mandate to detect and prevent crime, and were made necessary by the
Force’s protective policing duties, as well as by the “expanded” law enforcement
responsibilities it was assigned in the Security Offences Act.555
According to former RCMP Commissioner Robert Simmonds, in order for the
RCMP to carry out its crime prevention duties with respect to terrorism, it was
necessary for the Force to gather non-offence-specific criminal intelligence. The
mandate to intervene where the commission of an offence was anticipated,
as opposed to completed, was said to require police, at times, to initiate
investigations in advance of criminal conduct.556 By getting actively involved
early on, through “intelligence-led policing,” the RCMP could take steps to
prevent breaches of peace, to maintain public order or to stop criminal acts
before the fact.557
551 Exhibit P-101 CAA0081, pp. 11, 14.
552 Exhibit P-101 CAA0081, p. 14.
553 Exhibit P-101 CAC0275, p. 2, CAC0495, p. 4; Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 54395440.
554 Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1665; Testimony of Henry Jensen, vol. 44, June 18,
2007, pp. 5423-5424, 5428-5429.
555 Exhibit P-101 CAC0283, pp. 4-5, CAC0406, p. 3, CAC0495, p. 5.
556 Exhibit P-101 CAA0474.
557 Exhibit P-101 CAA0474, p. 10; Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1659-1660;
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5359-5360.
355
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The RCMP believed it could not rely solely on CSIS for relevant threat information
and intelligence as it had done previously with the Security Service.558 CSIS
information was described as relevant to threat assessments mostly “…in areas
that fall within the CSIS mandate.”559 The RCMP did not believe that the intelligence
gathered by CSIS would encompass all the issues that were potentially relevant
to its responsibilities.560 This belief was related to actual or perceived limits on
the CSIS mandate and to the RCMP’s perception of the choices made by CSIS
about the type of intelligence probes it would be conducting. For example, the
activities formerly carried out by the Security Service to gather intelligence on
domestic groups who could present a security threat561 were viewed by the
RCMP as particularly relevant to its mandate.562 Deputy Commissioner Henry
Jensen testified that the RCMP needed intelligence about dissident groups and
organizations (“public order intelligence”) in order to conduct its protective
policing operations.563 This was the type of information that CSIS could collect
“…if they committed the resources to it and went out to the field” but, according
to Jensen, “…they were not doing it”, so the RCMP had to “…complet[e] the
loop.”564
Simmonds, for his part, spoke of the “high degree of frustration” experienced
by the RCMP in its day-to-day operations because of the “…difficulty we were
having in getting meaningful daily information from CSIS.”565 He also expressed
concern about the use the RCMP could make of the information CSIS collected.566
It was felt that by engaging in intelligence-gathering related to terrorism, the
Force would be better able to carry out its mandate to acquire the evidence
necessary to prove any terrorism offences that did take place.567
Though Simmonds noted in testimony before the Inquiry that he personally
never doubted CSIS’s competence,568 there may have existed within the RCMP
a certain lack of confidence in CSIS’s abilities. In April 1985, the Commanding
Officer of the RCMP H Division noted that “…in some quarters, the RCMP felt
they could not rely on CSIS.”569 In his view, the RCMP would not be able to “…
know that CSIS had done their work right” if it did not control the operations.570
As late as 1987, following a National Security Enforcement conference, an RCMP
officer asked the CSIS Nova Scotia Chief how “certain” CSIS could be of its threat
assessments.571
558 Exhibit P-101 CAC0406, p. 3
559 Exhibit P-101 CAC0283, p. 5.
560 See Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5457, indicating that the RCMP concerns
mostly related to the “completeness” of the information provided by CSIS.
561 See, generally, Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1630-1633.
562 Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1632-1633.
563 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5396, 5439-5440; Testimony of Henry Jensen, vol.
18, March 7, 2007, pp. 1632-1633, 1661.
564 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5440.
565 Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9341.
566 Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9347.
567 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5372. See also Exhibit P-101 CAC0030, p. 4, where
Simmonds describes counterterrorism as the area of common interest between CSIS and the RCMP
and the one area where information sharing was necessary.
568 Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9347.
569 Exhibit P-101 CAA0144, p. 1.
570 Exhibit P-101 CAA0144, p. 1.
571 Exhibit P-101 CAA0531.
�Chapter III: What Went Wrong?
For these reasons, a process was put in place at the RCMP for the central collection
of threat information in order to advise Protective Policing about the threats.
The RCMP undertook not only to collect and transmit to Protective Policing the
threat information already in the Force’s possession, but also to actively seek
out information relevant to its new threat assessment process.572 The RCMP
planned to use every possible avenue to obtain “suspected and known criminal
intelligence” about terrorism and extremism in Canada.573 For this purpose,
units were tasked with reviewing open sources of information, like magazines,
newspapers and local publications, to look for information about possible law
enforcement matters and to identify individuals or organizations with a potential
for violence directed at public figures.574 RCMP Foreign Liaison Officers were
asked to obtain national security “criminal information” that might impact on
Canada from foreign police forces.575 The RCMP also decided to conduct followup investigations about threat information.576 A 1985 draft Guideline on National
Security Enforcement and Liaison provided that investigations or “preventative
action,” targeting individuals or groups who advocated violence, supported
criminal activity, or indicated an apparent intent to engage in unlawful activity,
could be engaged in where a statement, activity, or action would constitute a
threat or cause harm to the security of Canada.577
RCMP Threat Assessment Structure
The National Criminal Intelligence Branch (NCIB) was an RCMP Headquarters
(HQ) branch which existed within the structure of the RCMP criminal operations
side prior to the creation of CSIS, reporting directly to the Director of Criminal
Investigations.578 NCIB was a unit with no operational or investigative capacity,
which was responsible for coordinating intelligence-gathering on criminal
activities and criminal organizations.579 Within each Division, a National
Criminal Intelligence Section (NCIS) was in charge of gathering intelligence
on major criminal activities. The NCIS had investigative capacity and acted
as the operational arms of NCIB, though they did not report directly to NCIB.
NCIB and the divisional NCISs were created in the 1960s.580 Their focus at the
time was specifically on organized crime581 but, by the 1980s, NCIS also had
responsibilities for gathering intelligence about planned or suspected “criminal
extremist/terrorist activities.”582
After the creation of CSIS, a National Security Enforcement (NSE) Section
responsible for intelligence coordination and sharing with CSIS, particularly
for information about political terrorism, was added within NCIB.583 NCIB NSE
572
573
574
575
576
577
578
579
580
581
582
583
Exhibit P-101 CAC0283, p. 5.
Exhibit P-101 CAC0286, p. 2.
Exhibit P-101 CAA0039(i), p. 19, CAC0283, pp. 6-7, CAC0495, pp. 4-5.
Exhibit P-101 CAC0286, p. 2.
Exhibit P-101 CAC0283, p. 6.
Exhibit P-101 CAA0039(i), p. 18.
Exhibit P-110; Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1642-1644.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2565-2566.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5358.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5358.
Exhibit P-101 CAC0495, p. 3.
Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1644; Testimony of Warren Sweeney, vol. 25, May
8, 2007, p. 2560.
357
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members were instructed to review and disseminate RCMP information about
extremism and threats to the security of Canada.584 Their role was essentially
to “…monitor the situation across Canada.”585 They were tasked with liaison
functions with CSIS and were also responsible for conducting records checks
for individuals appointed to various government positions, which consumed
a significant amount of their time.586 NSE units were also added within most
divisional NCIS sections.587 Their main function was to serve as a liaison facility
“…for collecting criminal intelligence information relating to national security
between the RCMP and CSIS, as well as other Agencies.”588
In addition to its liaison functions, the NSE Section at NCIB was put in charge
of the new RCMP threat assessment functions.589 According to the process
put in place, the RCMP Protective Policing Directorate (P Directorate), which
was responsible for VIP Security and Airport Policing, was to request threat
assessments from both CSIS and NCIB NSE.590 NCIB NSE was to pass on requests
to divisional NCIS NSE units which would then contact other RCMP units in
their division, as well as other agencies such as local police forces, to gather
intelligence.591 The divisional units were also expected to review open sources
materials and identify relevant information.592 The information gathered would
then be reported back to NCIB, where a member of the NSE Section would
review it, conduct file research and records checks, and then prepare a threat
assessment for P Directorate.593
The ministerial Guideline continued to govern the scope of the RCMP’s “…
appropriate role, policies, administrative arrangements and resource allocation”
for its security-related responsibilities. The NSE Section at NCIB and the NSE units
at NCIS were created pursuant to the Guideline as the dedicated liaison units.594
The Treasury Board submission applying for funding for the NSE replicated the
language of the Guideline, specifically stipulating that the new liaison units
would have no investigative or operational mandate.595 Hence, NSE units at
HQ and in the Divisions had no investigative capacity and were not expected
to conduct investigations.596 However, the RCMP provided for a mechanism
584 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2566.
585 Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2723.
586 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2560; Testimony of Warren Sweeney, vol. 26, May
9, 2007, p. 2723.
587 Exhibit P-101 CAC0286, p. 2. In four Divisions, NSE representation was on a part-time basis. In those
cases, threat assessment requests were transmitted to the Criminal Investigations Bureau (CIB) Officer
in the Division: Exhibit P-101 CAC0283, p. 7.
588 Exhibit P-101 CAC0286, pp. 2-3. See also Exhibit P-101 CAA0039(i), pp. 17, 50.
589 Exhibit P-101 CAC0275, p. 2, CAC0495, p. 4; Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 54395440.
590 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2568; Exhibit P-101 CAC0283, pp. 5-6, CAC0495,
p. 4.
591 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2569-2570; Exhibit P-101 CAC0278, p. 3,
CAC0495, pp. 2-3.
592 Exhibit P-101 CAA0039(i), p. 19, CAC0283, pp. 6-7, CAC0495, pp. 4-5.
593 Exhibit P-101 CAC0283, pp. 5-6; Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2568-2569.
594 Exhibit P-101 CAA0081, pp. 2-16.
595 Exhibit P-101 CAC0017, CAC0021.
596 Exhibit P-101 CAC278, p. 3, CAC0286, p. 2; Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2578.
�Chapter III: What Went Wrong?
enabling it to investigate threat information, where it was deemed necessary,
by instructing the divisional NSE units to bring matters requiring investigative
follow-up to the attention of District Intelligence Officers (DIOs) so that other
RCMP units could be tasked with conducting these investigations (whether
after-the-fact or preventive).597
Impact of the Decision to Create a Parallel RCMP Threat Assessment Process
The Government’s aim in approving the creation of dedicated RCMP liaison units
(the NSE units) was to improve coordination of activities between CSIS and the
RCMP and, in part, to ensure that CSIS received all threat-related information in
the RCMP’s possession so that it could be centrally analyzed as part of the global
CSIS threat assessment process. In practice, however, CSIS was largely cut out
of the picture in the new RCMP threat assessment process. The new NSE units
mainly gathered information for the RCMP’s own internal use in its new threat
assessment process.
Rather than encouraging “…a high degree of coordination between ‘intelligence’
and ‘action’”,598 NSE units were incorporated in a parallel RCMP threat assessment
structure operating largely independently from the CSIS threat assessment
process. The two agencies often ended up collecting and analyzing their threat
information separately, with neither agency being in a position to conduct an
overall analysis of all of the information available. P Directorate received advice
about threats from both CSIS and NCIB NSE, but had no central threat assessment
mandate or capacity of its own.599
Deficiencies in the RCMP Threat Assessment Process
Failures to Identify, Report and Share Relevant Information
The new RCMP threat assessment process was meant to ensure that threat
information uncovered by the various RCMP units in the course of their policing
activities was transmitted to NCIB NSE, where it could be globally assessed so
that Protective Policing could be advised of the threat situation. In practice,
however, a great deal of potentially relevant threat information that was obtained
by the Divisions, or that was accessible to them, was never reported to NCIB. E
Division NCIS received information in April 1985 about possible attacks on the
Vancouver Consul General and about various Sikh extremist groups. Included in
this information was a mention that Parmar’s group was the most dangerous,
was keeping a low profile, and was working on a highly secret project.600 None
of this information was reported.601 Kamloops NCIS learned that a group of Sikh
597 Exhibit P-101 CAC0283, p. 6; Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5446.
598 Exhibit P-101 CAA0081, p. 8.
599 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2772; Testimony of R.E. Muir, vol. 28, May 15,
2007, p. 2928.
600 Exhibit P-101 CAC0290.
601 The information was transmitted by E Division VIP to P Directorate in HQ and NCIS in Vancouver, but
not to NCIB: Exhibit P-101 CAC0290, p. 2.
359
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extremists were planning to kidnap an Indian Consul General. NCIB received this
information from CSIS, rather than from the divisional NSE unit that should have
been collecting and reporting it.602 In the same time frame, E Division NCIS was
informed that an unknown number of Sikhs from Vancouver and Toronto were
planning to travel to New York to attend a meeting on June 9, 1985, to establish
policy for the violent resolution of problems.603 This information also apparently
went unreported to NCIB, in spite of the obvious national and international
issues it raised.
The Khurana Information
On June 12, 1985, a Vancouver Police Department (VPD) source, Sarbjit Khurana,
allowed the VPD to record a meeting with Sikh extremists who were attempting
to intimidate him. During the debriefing immediately after the meeting, he
advised that Pushpinder Singh, a suspected terrorist believed to be directing
International Sikh Youth Federation (ISYF) operations, had responded to a
statement by ISYF spokesperson Manmohan Singh complaining about the lack
of attacks against Indian officials, that they should “…wait two weeks to see
something being done.”604 This information was available to RCMP E Division
NCIS members who worked at the Vancouver Integrated Intelligence Unit
(VIIU).605 It was clearly relevant to the threat assessment process, but it was not
passed on to NCIB by the NCIS prior to the Air India bombing.606
The Duncan Blast Surveillance Information
On June 4, 1985, CSIS followed Parmar, Reyat and an unknown third person to
a wooded area near Duncan. A loud explosion, which the surveillance team
initially thought was the discharge of a large calibre handgun, was heard before
the men returned to their car and departed.607 The information provided by
CSIS about the Duncan Blast surveillance was not reported to the E Division NSE
member or to NCIB. The RCMP has long complained that CSIS had not provided
it with sufficient detail to allow an understanding of the potential significance
of this event prior to the bombing.608 In fact, CSIS advised different RCMP
members and units of the information in various forms several times prior to
the bombing, but the RCMP members who received the information apparently
did not understand its significance to the threat assessment process and did not
report it through the RCMP system in place.609
Even if the RCMP members who received the Duncan Blast information did
not know that the noise heard in the woods may not have been a gunshot, the
602
603
604
605
606
Exhibit P-101 CAB0169.
Exhibit P-101 CAB0269(i); Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3893-3894.
Exhibit P-101 CAB0321, p. 3, CAC0487, p. 4; Section 1.6 (Pre-bombing), Khurana Information.
See Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces.
See Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces and Section 1.6 (Prebombing), Khurana Information.
607 Exhibit P-101 CAA0188.
608 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11241-11243; Exhibit P-101 CAA0335, p. 19,
CAF0814, pp. 1-2.
609 See Section 1.4 (Pre-bombing), Duncan Blast.
�Chapter III: What Went Wrong?
information they received was precisely the type of information that divisional
units were expected to report for the purposes of the RCMP threat assessment
process. The divisional NSE member, Sgt. Michael (“Mike”) Roth, who should
have received and transmitted this information within the RCMP threat
assessment process, had the proper security clearance to receive this secret
CSIS information and was specifically responsible for sanitizing, rewriting, and
reproducing classified CSIS information in a form that allowed its dissemination
within the RCMP.610 He testified before the Inquiry that he did not learn about
the Duncan Blast until after the bombing of Air India Flight 182 and that this was
precisely the type of information he should have received.
Other new and potentially related information was apparently not reported to
the divisional NSE unit or to NCIB for threat assessment purposes. According to
intelligence received by the Duncan Detachment on June 10, 1985, following a
split in the local Sikh temple, extremists started a new temple whose leader, an
associate of Reyat, was advocating “…selling homes and property to buy guns
and ‘get strong’, cut off all travel with Air India, cut off all business with Vancouver,
take revenge for any allegations.”611 Back in September 1984, an RCMP source
who provided information about a plot to bomb an Air India plane (Person 1)
had also referred to a man in Duncan who could manufacture “nitro” for blowing
up an Air India plane.612 As the information was not reported to NCIB, it was not
taken into the RCMP threat assessment process. Had it been, the RCMP would
have been in a position to analyze the Duncan Blast surveillance information in
light of this information and in light of the information about threats against
Air India which was otherwise known to the Force, including the possibility of
bombing raised by the June 1st Telex.613
The Duncan Blast information clearly suggested possible criminal activity at
least, and contained many potential national security implications. It certainly
was “information of threat assessment value.” It should have been reported
through the channels that had been set up within the RCMP precisely for the
purpose of gathering “criminal intelligence” and “intelligence related to security
offences.” That it was not is an obvious intelligence failure. This conclusion
does not excuse CSIS’s own intelligence failures in collecting, following up, or
analyzing the Duncan Blast information.614
The November 1984 Plot Information
In September 1984, E Division obtained information from “Person 1” about a
plot to bomb an Air India plane.615 The information was not reported to the
divisional NSE unit or to NCIB. Instead, it was communicated by telephone to the
610
611
612
613
614
615
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5604.
Exhibit P-101 CAA0276, p. 2 [Emphasis added], CAA0307, p. 3.
Exhibit P-120(c), p. 6 (entry for March 10, 1986: doc 521-3).
See Section 1.2 (Pre-bombing), June 1st Telex.
See Section 1.4 (Pre-bombing), Duncan Blast.
See Section 1.1 (Pre-bombing), November 1984 Plot and Exhibit P-120(c), p. 1 (entry for Sept. 20, 1984:
doc 526-3, p.26).
361
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Volume Two Part 1: Pre-Bombing
Montreal Drug Coordinator Office.616 There is no indication that the information
was passed on to the local airport policing detachment. Jensen testified that
this was precisely the type of information that would have to be reported to HQ
“in a very rapid way”,617 but the Division only transmitted information about this
plot to NCIB over a month later,618 in October 1984, after the VPD transmitted it
to CSIS and to the RCMP on the basis of information received from “Person 2.”619
On learning of the delay in the transmission of the November Plot information
to NCIB by E Division, Jensen directed that the field be instructed to “…use
rapid communication which is timely” and that investigators report this type of
information as soon as received.620 Jensen agreed during his testimony before
this Inquiry that the divisional investigator’s view – that the Person 1 information
was not reliable621 – should not have excused him from reporting on it.622 There
is no evidence of any additional steps taken to implement Jensen’s instructions
about the reporting of threat information.
Failures to Identify and Report Background Intelligence
Without basic intelligence about extremist groups, it is difficult to grasp the
significance of the information reported through the threat assessment process.
When Sgt. Warren Sweeney, who was in charge of the terrorist desk at NCIB
NSE,623 learned about the Khurana information from VPD Cst. Don McLean on
the day of the bombing, he had not previously been made aware of the role
of Manmohan Singh (the ISYF spokesperson who complained about the lack
of attacks on Indian officials) or Pushpinder Singh (the suspected terrorist
believed to be directing ISYF operations who replied with the “wait two weeks”
comment).624 Having such background information available in the threat
assessment system would have been necessary for NCIB to be able to appreciate
the full significance of the Khurana information itself.
Without information on the identity of the main participants in the Sikh extremist
movement and on the organizations to which they belonged, it was difficult
for NCIB to put the information it received in its proper context to assess the
seriousness of the threat. The VPD did have extensive knowledge of many of
the most important Sikh extremist players and organizations in British Columbia
616 Exhibit P-120(c), p. 1 (entry for Sept. 20, 1984: doc 526-3, p. 25) and (entry for Nov. 7, 1984: doc 526-3, p.
38).
617 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5449. See also Testimony of Warren Sweeney, vol.
25, May 8, 2007, p. 2595, indicating that it was important that this kind of information come to NCIB as
it affected the RCMP security offences mandate.
618 Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 239-3).
619 Exhibit P-120(c), pp. 1-2 (entry for Oct. 1984: doc 231-3, pp. 2-4) and p. 2 (entry for Oct. 23,1984: doc 7).
620 These instructions were issued on November 8, 1984: Exhibit P-120(c), p. 3 (entry for Nov. 8, 1984: doc
CivLit1).
621 See Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4107: Douglas, the divisional investigator,
continued to defend his view that he “…very much doubted the information as being provided by P1
and P2, and did not believe it to be “credible.”
622 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5449.
623 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2572.
624 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2641; Exhibit P-101 CAF0035, p. 28.
�Chapter III: What Went Wrong?
as well as of the connections among the individuals and groups involved.625
Although available to E Division NCIS members, this significant intelligence was
not reported to NCIB.626
NCIB Failure to Share Threat Information
The divisional units that were expected to investigate threat information and
to identify and report relevant information were not kept sufficiently informed
of the overall threat situation. RCMP documents convey an expectation that
the most useful threat information would be obtained from regular RCMP
units and other agencies “…who are well informed on the threat assessment
process” and in a position to obtain threat information.627 There is no evidence
that the members of divisional investigative units were provided on a routine
basis with threat information gathered by other RCMP units and analyzed at HQ,
even where such information was directly relevant to areas specifically being
investigated.
As Sweeney confirmed in his testimony, in order to identify the information
relevant to the threat assessment process, the Divisions needed to take into
account other information about their targets, about the general threat level,
about the possible ramifications of any planned action, as well as about the
national and international context.628 There does not, however, appear to have
been a meaningful passage of such information to the Divisions. NCIB had
access through RCMP central records to the CSIS threat assessments sent to
P Directorate,629 but only began to transmit the assessments routinely to the
divisional NSE units in April 1985, when it started to receive its own copies.630
There is no record of E Division NCIS having received the information contained
in an April 1985 CSIS threat assessment that a member of the Sikh Student
Federation had been arrested at Vancouver International Airport with the
barrel of an Uzi machine gun along with 100 rounds of ammunition in his
luggage.631 Had NCIS been advised, Sgt. Wayne Douglas, who was investigating
Sikh extremism in British Columbia, would have likely gone to the airport and
625
626
627
628
629
See Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces.
See Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces.
Exhibit P-101 CAC0495, p. 2.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2606, 2613.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2653-2655; Testimony of Warren Sweeney, vol.
26, May 9, 2007, 2692-2693.
630 See Exhibit P-101 CAA0147, CAB0207, CAB0851, pp. 3-8 and CAC0291, indicating the time when
NCIB began receiving copies of the CSIS TAs. About the usefulness of transmitting this information
to the Divisions, see Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2703. For an example
of a CSIS TA being sent to the Division by NCIB, see Exhibit P-101 CAA0160. The Commission find no
such examples before NCIB began to receive its own copies.
631 Exhibit P-101 CAB0207.
363
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Volume Two Part 1: Pre-Bombing
attempted to interview the individual for intelligence purposes.632 NCIB’s failure
to keep the Divisions informed made it difficult for the units to do any follow-up
investigations.
In April 1985, the E Division NCIS extremist/terrorist unit reported that very little
action had been taken in the November Plot investigation and that “…[t]here
has been no further information received from any sources that would indicate
this or any bombing of an Air India Plane will occur.”633 NCIB did not take any
steps to inform the divisional unit that there was, indeed, information about
threats to Air India suggesting the possibilities of hijacking or sabotage and that
the threat to Air India was considered high.634 It was suggested at the Inquiry
that this information was not communicated to E Division because the threats
related to Air India flights out of Toronto and Montreal and did not originate
from Vancouver.635 This approach to information sharing is inconsistent with
the basic premise that those who are to gather threat information need context
and background in order to be able to recognize relevant information and to
appreciate its significance.
Lack of Training and Clear Instructions
When the RCMP decided to create its own threat assessment process, it
provided no specific training to its members to help them with their new
responsibilities.
Sweeney testified that he received no training either before or after he left
the Security Service to join the NCIB NSE terrorist desk.636 Like other NCIB NSE
members, he was involved in receiving and transmitting threat information and
in following up on divisional investigations, but he never received any training
about the new RCMP threat assessment process.637 He received no training about
the role of CSIS before or after its creation, nor was there any briefing about the
CSIS Act and its effect on RCMP responsibilities. NCIB NSE personnel were given
no training about Sikh extremism, even if it was stated to be a counterterrorism
priority at the time.638
632 Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4057. He would have done similar follow-up
in relation to information contained in another CSIS threat assessment (Exhibit P-101 CAB0207), which
indicated that a “…self-admitted Sikh terrorist was arrested at the Vancouver International Airport” who
“…claimed to be a member of a cell within the Khalistan movement in India, which has received
terrorist and commando training sponsored by this movement.”: Testimony of Wayne Douglas, vol. 34,
May 28, 2007, pp. 4056-4057.
633 Exhibit P-120(c), p. 3 (entry for April 10, 1985: doc 526-3, p. 45).
634 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2612-2613. At the time, the amount of threat
information transmitted by Air India, though viewed by some as Air India’s way to obtain additional
security for free, was perceived as very important by Government officials, who went as far as to state
that every flight was preceded by a letter reporting a threat: Exhibit P-101 CAC0517, p. 2. While this
appears somewhat exaggerated in light of the documentary record before the Commission, it is clear
that NCIB perceived that much threat information was being transmitted by Air India and nevertheless
did not see fit to inform E Division, which indicated that it had “no information from any sources”.
635 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2613.
636 Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2722-2723.
637 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2566. See, generally, the November 1984 Plot
Chronology in Exhibit P-120(c), which Sgt. Sweeney followed up on: Testimony of Warren Sweeney, vol.
25, May 8, 2007, pp. 2593-2594.
638 Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2723-2725.
�Chapter III: What Went Wrong?
Sweeney also received no training about protective measures, including airport
security that might be applied to respond to the threat information NCIB NSE
members were to analyze. He explained in testimony that he was not expected
to know what the various airport security levels entailed, or to be aware of the
security measures applied by Airport Policing, since he did not work in Airport
Policing.639 An understanding of Protective Policing roles and responsibilities
would have been helpful in assessing the relevance of the threat information
and for identifying information in need of further investigation. Without such
understanding, NCIB NSE threat assessments would be of questionable utility
to those members who had to implement security measures in response to the
threats.
Members of the divisional NCIS units did not seem to have been provided with
any training as to the type of information they were expected to report for the
threat assessment process.640 They received little guidance about the type
of information which had to be shared with CSIS.641 It was suggested in July
1985 that divisional NSE units be “…tasked to undertake a liaison and training
program” to explain to members of other units in their Division the need to
look for and report threat-related information and to educate them about the
RCMP’s security offences mandate.642 This was not undertaken prior to the Air
India bombing. In fact, an Extremism/Terrorism course was only developed by
the RCMP Training Division years after the tragedy.643
HQ provided instructions to the Divisions in an attempt to explain the purpose
of the RCMP threat assessment process. These instructions stressed the fact
that RCMP members were to focus on “criminal intelligence.” The official
documentation referred to the need to provide threat assessments regarding
“violent and criminal activities” that may be directed against an assortment
of targets.644 The messages instructed members to identify and report all “…
suspected and known criminal intelligence information” about terrorism or
extremism,645 all information “…of a criminal threat assessment value,”646 and all
“…criminal extremist/terrorist information that would warrant consideration in
the threat assessment process.”647 The documents failed, however, to provide
any definition of what “criminal intelligence” was, or any further explanation
about what such information might look like.
Further, guidance provided through HQ instructions was often no clearer as to
the types of investigations RCMP members were expected to conduct in support
639 Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2735-2736, 2742.
640 See Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2581, 2605. Sweeney was not aware of any
training being available at the time. No evidence was presented to the Commission and no documents
were located, about any training.
641 See Section 3.5.3 (Pre-bombing), RCMP Failures in Sharing with CSIS.
642 Exhibit P-101 CAC0495, p. 3.
643 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2605.
644 Exhibit P-101 CAC0275, p. 2.
645 Exhibit P-101 CAC0286, p. 2.
646 Exhibit P-101 CAC0495, p. 5. See also Exhibit P-101 CAC0406, p. 3, referring to the Divisions being
familiar with the NSE role to provide criminal intelligence, and Exhibit P-101 CAC00278, pp. 3-4,
discussing the NSE interest for “…areas when violent and/or criminal activity surfaces.”
647 Exhibit P-101 CAC0495, p. 2.
365
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Volume Two Part 1: Pre-Bombing
of the threat assessment process. When CSIS was created, the E Division NCIS
terrorist/extremist unit in BC received no instructions to adjust its mandate, and
“…just plodded along as [they] always had.” The unit was originally called the
“Dissident Group Squad”, but the name was changed because “…headquarters
in Ottawa did not like the reference of Dissident Groups.” Douglas, the unit’s
head, testified that he was never comfortable with the new “Terrorist/Extremist”
moniker. He explained that the distinction between investigating individuals
and groups who could pose threats from a political versus a criminal perspective
was “a very fine line.”648
Because of this confusion, the NCIS unit at times appeared to be engaging in
activities consistent with a purely CSIS-type “security intelligence” investigation
and at other times failed to investigate what would appear to be clear and
important threats of criminal activity. In the course of his duties, Douglas
would sometimes go with his camera and “…shoot a couple of rolls of film”
of individuals who attended demonstrations, even without any indication of
criminal activities being planned or perpetrated.649 Nevertheless, despite the
fact that the RCMP had information that “Talwinder Singh Parmar is the subject
of an international warrant issued by the Indian Government for murder and is
considered to possess [sic] the greatest threat in Canada to Indian diplomatic
missions and personnel,”650 NCIS was not actively investigating Parmar’s activities.
Douglas told the Commission that the NCIS mandate related strictly to criminal
activities, and that there was a “…fine line [that] flows back and forth” between
Parmar’s political aspirations and possible criminal activities. He noted that CSIS
had been monitoring Parmar’s activities, and that the view within the RCMP was
that there was no point to duplicating effort.651
HQ provided the Divisions with explicit and implied warnings that some
information should not be pursued. The 1985 draft RCMP Guideline on National
Security Enforcement and Liaison instructed members to exercise discretion in
the application of the security offences mandate, keeping in mind unspecified
“underlying principles of the legislation.” The Guideline provided for the conduct
of intelligence operations and preventive action to be undertaken where there
was “a legitimate law enforcement requirement” based on information indicating
that prevention or detection of a criminal act was required. The operations were
to be terminated when the investigation was complete or when “…legitimate
law enforcement interest justifies their discontinuance.” Without specifics,
however, the RCMP members were left on their own to exercise “discretion” as
to which investigations were consistent with the “…general law enforcement
powers, authorities, principles and policies which have evolved with respect to
the prevention and detection of criminal conduct.”652
In response to CSIS’s expressed concerns, NCIB NSE sent a telex to the Divisions
indicating that assurances had been given that “…random interviews of ethnic
648
649
650
651
652
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4027-4028.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4039.
Exhibit P-101 CAB0221, p. 2.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4115-4116.
Exhibit P-101 CAA0039(i), pp. 8, 16-17.
�Chapter III: What Went Wrong?
communities for purposes of looking for information of a possible national
security interest,” are not within the RCMP’s mandate, and that interviews are
“…only conducted in furtherance of the criminal investigation of a criminal
situation or the investigation of a person suspected of a criminal offence.” It
was requested that the Divisions ensure that their personnel understand and
conform accordingly. K Division requested clarification, stating that “…surely we
can continue to contact our established sources for the purpose of providing
accurate/up-to-date threat assessments.”653
Without clear instructions from the center, there was significant inconsistency
in the types of activities and level of investigative initiative undertaken among
the NCIS groups, even within the same Division. Whereas the E Division
Terrorist/Extremist Unit did not undertake to develop sources,654 Surrey NCIS
worked proactively to develop intelligence by meeting with temple leaders and
individuals to find people who would provide information about the “potential
players”, and to develop a network of people in the community as a resource for
RCMP intelligence.655
Limited Investigative Capability
The information flow for the RCMP threat assessment process envisaged regular
investigative units of the Force collecting and investigating national security or
threat information which they would report to divisional NSE units. No additional
funding was provided for the regular investigative units to perform these new
functions.656 NCIS, which was responsible for collecting intelligence on major
criminal activities in the Divisions, including extremist/terrorist activities, was
expected to be particularly helpful to NSE in collecting threat information.657
The reality, however, as it related to Sikh extremism in British Columbia, was
quite different. The E Division NCIS and its intelligence unit investigating Sikh
extremism were not truly functional and were unable to fulfil the role envisaged
for them.
NCIS had limited human resources.658 Its collection of criminal intelligence on
extremism/terrorism was only undertaken on a “spasmodic basis”, as the focus
was mainly on traditional organized crime.659 There was very little continuity
of terrorist/extremist investigations, which usually lasted only for the time
when a problem situation was a high priority – for example, during the visit of
a dignitary.660 This meant that investigators did not have the opportunity to
build up significant and necessary expertise in a specific area. When an offence
or incident did occur, or there was otherwise a need for relevant information,
“…there [was] no reasonably comprehensive up-to-date police data base that
[could] readily be referred to.”661
653
654
655
656
657
658
659
660
661
Exhibit P-101 CAF0820, pp. 35, 56, 59.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4040.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9611-9613.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5446.
Exhibit P-101 CAC0495, p. 3.
Exhibit P-101 CAF0821, p. 11.
Exhibit P-101 CAF0821, p. 11.
Exhibit P-101 CAF0821, p. 11.
Exhibit P-101 CAF0821, p. 12.
367
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The exception to the pattern of disjointed and intermittent focus was the
Vancouver Integrated Intelligence Unit (VIIU) in E Division, where one or two
NCIS criminal intelligence members had been tasked for a number of years with
criminal extremist/terrorist responsibilities.662 However, NCIS members working
at VIIU often did not access or report the valuable intelligence gathered by
their colleagues from the VPD who also worked at VIIU, though it was generally
available to them.663
During the pre-bombing period, the Criminal Terrorist/Extremist Group headed
by Douglas at NCIS E Division was responsible for the entire province of British
Columbia. The group’s mandate was “…collecting intelligence on groups
or individuals that could pose a threat to the community and to Canada at
large.”664 The unit received and responded to requests for threat assessments
and information from Headquarters as well as from various detachments in the
BC region.
A number of factors led to serious deficiencies in the effectiveness of the
E Division NCIS Terrorist/Extremist group. First, the unit did not view itself as
fundamentally “investigative,” or “operational” which, in practical terms, meant
that it did not regularly take initiative to actively follow up on threats. Though
issues of Sikh extremism formed “…the predominance of the workload” from
the time of the Golden Temple, in the pre-bombing era members of the unit
never met with Talwinder Singh Parmar, Ajaib Singh Bagri or Surjan Singh Gill665
despite many indications of the real threat posed by these individuals.666 In June
1985, NCIS members finally interviewed Parmar and Gill, in cooperation with US
authorities, but this was only done as part of a “diffusion interviews” program
meant to dissuade Sikh extremists from taking action against Indian PM Rajiv
Gandhi during his upcoming visit to the US.667
When NCIS received information in April 1985 that Parmar’s group was the most
dangerous and was currently working on a “highly secret project,”668 the unit took
no steps to investigate further and find out what the project was.669 Similarly,
NCIS did not investigate the Khurana information and the “wait two weeks”
comment prior to the bombing.670 Although it was informed of the Duncan Blast
incident, NCIS did nothing to investigate it further. To be sure, CSIS did request
NCIS not to “…jeopardize the ongoing CSIS investigation by revealing specifics
of the Duncan incident or other details of the [VIIU] report” during diffusion
662 Exhibit P-101 CAF0821, p. 11. VPD members also worked at VIIU. For a review of the structure and
effectiveness of the integrated unit, see Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing
with Local Forces.
663 See Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces.
664 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4027-4029.
665 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4029-4030, 4042, 4074.
666 See, for example, CSIS TAs in Exhibit P-101 CAA0110 and CAB0221.
667 See Section 1.4 (Pre-bombing), Duncan Blast.
668 Exhibit P-101 CAC0290.
669 Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4153-4154. Douglas had no recollection of
this information and was not able to recall doing anything with respect to his investigations of Parmar
in response to this information: Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4058.
670 See Section 1.6 (Pre-bombing), Khurana Information.
�Chapter III: What Went Wrong?
interviews.671 This request does not, however, seem tantamount to barring any
NCIS investigation of the incident itself.672 CSIS’s request to be careful about
tipping off Parmar and Gill about what CSIS knew certainly would not have
stood in the way of a search of the area, as was done after the bombing.673
As late as June 14, 1985, E Division NCIS had to admit to NCIB that it was “…
unable to determine the potential for violence against the Indian Consulate or
its personnel in Vancouver” because it did not have “…access to intelligence
directly from the hard core Sikh extremists.”674 NCIS did not have sources in the
Sikh community. It did not have a source recruitment program and it was not
otherwise actively trying to develop sources during the pre-bombing period.675
Douglas indicated that cultural issues, including his impression that people in
the Indo-Canadian community were openly mistrustful of the police and were
fearful to cooperate with them,676 were impediments to source development.677
Meanwhile, the VPD, through its community policing approach, was able to gain
trust, develop sources and thereby receive a good deal of intelligence about Sikh
extremism.678 The RCMP apparently devoted little resources to such activities,
even if the lack of coded sources could be a “…significant handicap in these
types of investigations.”679 Some HQ NCIB members even felt that recruiting
sources for purposes of gathering information relevant to the threat assessment
process would have been outside the RCMP mandate.680 Jensen, on the other
hand, believed that gathering intelligence from sources in the community was
an integral part of intelligence-led policing and that divisional NCIS sections
needed to have sources in the community.681
In fact, only one RCMP member in British Columbia, at the Surrey Detachment,
attempted to use the community policing approach with the Sikh community
to recruit more sources.682 Sgt. Laurie MacDonell, who was working in the Surrey
NCIS unit in the pre-bombing period, testified that his unit worked proactively
to develop such sources, with the result that the Surrey NCIS unit was able to
develop important contacts within the Sikh community who provided insight in
terms of who the important extremists were. However, because of the reporting
structure of the NCIS units in British Columbia, the E Division NCIS Terrorist/
Extremist group at the divisional HQ would not necessarily have had access to
this information.
There were a number of NCIS units located within the BC region, including
Kamloops, Surrey, and Victoria. The focus of these units was on local community
671
672
673
674
675
676
677
678
679
680
681
682
Exhibit P-101 CAA0876, p. 1.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11310.
Exhibit P-101 CAA0276, pp. 2-3. See, generally, Section 1.4 (Pre-bombing), Duncan Blast.
Exhibit P-101 CAC0438, p. 2; Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2704-2705.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4040; Testimony of Warren Sweeney, vol. 26, May
9, 2007, pp. 2704-2706.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4040, 4109.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4109.
See Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4108-4110.
Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2705-2706.
Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1660-1661.
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4149, 4174.
369
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issues and not on the broader national and international implications of
terrorism. Investigators in these units nevertheless did come across information
in the course of their duties that touched on Sikh extremist issues. Surrey NCIS
was dealing with a large number of temple skirmishes and other criminal
activity that, while investigated as traditional crime, had significant national
security implications by virtue of their connection to Sikh extremism.683 When
information was generated in the E Division HQ NCIS unit and farmed out to
another NCIS unit in the Division for investigation, the information obtained
would generally be reported back to E Division NCIS. In other cases, NCIS units
in BC were not obliged to report their information touching on Sikh extremist
issues to E Division NCIS. Even information generated outside of Vancouver
relating to the Vancouver area684 was “not necessarily” funnelled through NCIS.685
The ability of E Division NCIS to identify potential terrorist/extremist trends in
the province was therefore limited, and the unit was unaware of significant
information about Sikh extremism in the BC area.
Because of the deficiencies in the flow of information and the lack of active
engagement in the Sikh community, the E Division NCIS Terrorist/Extremist
group had a limited understanding of the major Sikh extremist players in BC.
Douglas did not know about the threats Parmar made that “Sikhs will kill 50,000
Hindus.”686 While he “recognized the name” Bagri,687 he was unaware that Bagri
“…could be easily manipulated into committing a terrorist act,” or that Bagri
had “…toured a number of European countries with a view to galvanizing Sikh
extremist elements in order to launch a major attack against Indian and Hindu
interests.” He was similarly unfamiliar with the information that “Bagri was
planning to hijack an Air India jetliner during 1984 10 in order to demand the
release of seven hijackers.”688 Douglas indicated that he “…wasn’t too familiar
with Mr. [Surjan Singh] Gill,”689 who was identified by CSIS as being “…the brains
behind the Babbar Khalsa.”690
Lack of Centralization
In the years preceding and immediately following the Air India bombing, the
RCMP threat assessment structure was not organized in a manner to allow for
683 Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9609.
684 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4043, 4054-4055, 4065.
685 For example, a telex (Exhibit P-101 CAC0312) that was sent from Headquarters NCIB to C, O and E
Divisions on April 3, 1985 cites information as coming from “E” Division that “Several people
in the Indo-Canadian community believe that Consul General Sharma was sent to Ottawa by the
Indian government to incite the militants” and that “The Sikh Student Federation is planning
an unknown type of overt action in Vancouver against the Indian Consulate” and “The society known
as Babbar Khalsa is planning some overt action.” While this information would clearly relate to
both the mandate of Douglas’ unit and to the Vancouver area, Douglas had no recollection of this
information and indicated that it was possible that information like this would not have reached
his unit: Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4060-4061.
686 Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4051. The information was included in a CSIS
threat assessment dated October 26, 1984, which was provided to the RCMP P Directorate: Exhibit
P-101 CAA0110, p. 2.
687 Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4048.
688 Exhibit P-101 CAA0110, p. 3; Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4052-4053.
689 Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4053.
690 Exhibit P-101 CAA0110, p. 3.
�Chapter III: What Went Wrong?
sufficient central control over investigations of threats to national security or for
the timely receipt of relevant information.
Reporting Structure
The regular RCMP reporting structure was not modified when NSE units were
added to NCIS in the Divisions and to NCIB at HQ. Divisional NCIS sections
did not report directly to NCIB, but rather through the Criminal Investigations
Branch (CIB). This involved reporting up through the regular chain of command
within each Division, with the higher levels reporting to their counterparts at
HQ. The NSE unit essentially added a new layer in this reporting structure. RCMP
units coming across threat information were now to report the information to
this new unit rather than through the regular divisional chain of command. The
Divisional NCIS NSE unit was then to report the information to HQ NCIB NSE
through the DIO to the Criminal Operations Officer in charge of each Division.
This structure was ill-adapted to the threat assessment process because, unlike
the structure in place at CSIS (and previously at the RCMP Security Service),
it was not centralized or comprehensive. It did not allow NCIB NSE to obtain
information directly, which inevitably created delays in gathering threat
information and producing threat assessments.691
Delays
Both CSIS and the RCMP received information in October 1984 about a plot
to bomb an Air India aircraft (the November Plot information).692 On October
23, 1984, the Vancouver Police Department (VPD) met with CSIS and with an
RCMP member working at CISBC693 to advise them that Person 2 had provided
information about the plot. The following day, CSIS advised Airport Policing by
telephone, and then sent a telex to Airport Policing and VIP Security on October
26, 1984.694 On the RCMP side, E Division NCIS was advised of the Person 2
interview directly by the VPD.695 The information was not sent to NCIB until
October 26th.696 NCIB transmitted the information to P Directorate VIP Security on
October 30th,697 almost a week after the CSIS call to Airport Policing. NCIB never
did relay the information to Airport Policing. Sweeney explained that structural
differences between CSIS and the RCMP were partly responsible for the different
turnaround times. CSIS HQ would receive the information immediately, whereas
RCMP investigators had to “go through channels” to send the information to
Ottawa.698
691 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2569-2571; Exhibit P-101 CAC0278, p. 4;
Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2726.
692 See, generally, Exhibit P-120(c) and Section 1.1 (Pre-bombing), November 1984 Plot.
693 For a description of the CISBC structure and mandate, see Section 3.5.4 (Pre-bombing), RCMP Failures
in Sharing with Local Forces.
694 Exhibit P-120(c), p. 2 (entry for Oct. 23, 1984: doc 7 and entry for Oct. 26, 1984: doc 229-3, p. 5).
695 Exhibit P-120(c), pp. 1-2 (entry for Oct. 1984: doc 231-3, pp. 2-4). Note that the information was
discussed with Sgt. Douglas, who would pursue it.
696 Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 239-3).
697 Exhibit P-120(c), p. 2 (entry for Oct. 30, 1984: doc 526-3, p. 29).
698 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2572, 2637-2638.
371
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Threat information is usually time-sensitive. Delays can have serious, potentially
deadly consequences. In the November Plot case, the potential impact of the
delay caused by the RCMP reporting structure was eliminated because the
same information had been transmitted by CSIS much earlier. An effective threat
assessment system cannot rely on such fortuitous circumstances.
Senior echelons at NCIB understood that RCMP reporting procedures meant
that the HQ NSE Section would simply not be able to provide a true evaluation
of the threat without considerable advance notice that a threat assessment was
required.699 When DIOs complained in the spring of 1985 about short notice to
Divisions for threat information requests, NCIB asked that P Directorate provide
its requests further in advance700 and undertook to pass them on to the Divisions
as soon as received.701 The RCMP’s inability to provide threat assessments on
short notice seems simply to have been accepted as inevitable. Nothing was
done to adjust RCMP reporting procedures to allow the threat assessment
system to deal with circumstances where advance notice was not possible.
Lack of Direction of Investigative Effort
Because of the RCMP reporting structure, NCIB NSE was unable to direct the
investigative efforts of the Divisions in gathering threat information. The
investigative units reported through the Divisional chain of command, and the
role of NCIB was limited to trying to “…lead [the Divisions] in areas that [HQ] felt
were important.” Without formal authority to command divisional investigators,
who made their own decisions about the conduct of their investigations,702
NCIB could not coordinate investigations of national or international import,
or even make its own decisions about follow-up or further investigation. NCIB
could make suggestions to the investigators703 but, in general, it did not see its
role as proactive, and simply passed on information without asking questions.
Thus, in mid-June 1985, NCIB received a report stating that E Division was “…
unable to determine the potential for violence against the Indian Consulate or
its personnel in Vancouver.”704 NCIB simply transferred the “information” to P
Directorate and did not suggest any additional investigation.705
The regular RCMP reporting structure did not require ongoing, detailed updates.
As a result, NCIB did not receive complete information about the progress of
the Divisions’ investigations and, lacking the authority, could not formally
order the Divisions to provide more information. This minimized the guidance
NCIB could give to the Divisions in the conduct of their investigations. When
NCIB did attempt to provide guidance or requested updates, its requests were
699
700
701
702
703
704
705
Exhibit P-101 CAC0278, p. 4, CAC0406, p. 4.
Exhibit P-101 CAC0406, pp. 3-4.
Exhibit P-101 CAC0495, p. 2.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2578, 2609-2610.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2610-2611.
Exhibit P-101 CAC0438.
Exhibit P-101 CAC0442. See also Exhibit P-101 CAC0459, sent to VIP Security, which simply paraphrases
the information found in Exhibit P-101 CAC0444, received by NCIB from O Division.
�Chapter III: What Went Wrong?
often simply ignored by divisional investigators who continued to pursue their
inquiries in accordance with their own theory of the case and provided little
more than unexplained conclusions to NCIB.
The November 1984 Bomb Plot and the RCMP Reporting Structure
In many ways, the November 1984 bomb plot provided a perfect illustration of
the impact of the RCMP reporting structure on threat assessment.
When E Division NCIS reported the November Plot information to NCIB for the
first time on October 26, 1984, it did not inform NCIB that the same information
had previously been obtained independently from another source in September.
The Division’s message simply stated that the information had previously been
“reported” to Montreal authorities and had now “resurfaced.”706 The divisional
investigator, Douglas, advised NCIB of his view that the information was of
“totally unknown reliability”.707 He did not provide an explanation for this
conclusion. NCIB forwarded the information to VIP Security with the caveat that
its reliability was doubtful,708 without having had an opportunity to make its
own assessment and without knowing that the information originated from
two different sources: Person 1, who reported it to the RCMP in September,
and Person 2, who reported it to the VPD in October.709 E Division NCIS also
did not provide NCIB with complete information about the assessment made
by the VPD members who had interviewed Person 2 in October 1984.710 These
officers had expressed concern “…that this [November Plot] [was] a reality and
[could] be accomplished at some time.”711 The divisional investigator, who at the
time had not yet personally interviewed Person 2, only advised NCIB that the
information was of “totally unknown reliability”712 and that the VPD members
who interviewed Person 2 believed that it was suspect because Person 2 was
desperate to receive bail.713
When NCIB was finally informed of the existence of the earlier source for the
November Plot information on November 1, 1984,714 Sweeney, the NSE member
in charge of the terrorist desk, was of the view that the matter had to be
706 Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 239-3). E Division NCIS Sgt. Douglas confirmed that
when he reported to Headquarters that the information had “resurfaced,” he was aware that there were
two sources of this information: Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4087.
707 Exhibit P-120©, p. 2 (entry for Oct. 26, 1984: doc 239-3).
708 Exhibit P-120(c), p. 2 (entry for Oct. 30, 1984: doc 526-3, p. 29).
709 Exhibit P-120(c), p. 1 (entry for Sept. 20, 1984: doc 526-3, p. 26) and pp. 1-2 (entry for Oct. 1984: doc
231-3, pp. 2-4).
710 The VPD report containing this assessment was provided to E Division on October 23, 1984: see Exhibit
P-120(c), p. 2 (entry for Oct. 23, 1984: doc 7), stating that “a copy of interview” was provided and
the “report” passed with the understanding that only the intelligence about the airplane bombing
would be addressed. The information sent to NCIB by the Division on November 1, 1984 was clearly
based on the VPD report: See Exhibit P-120(c), p. 2 (entry for Nov. 1, 1984: doc 526-3, pp. 26-27).
711 See VPD report summarized at Exhibit P-120(c), pp. 1-2 (entry for Oct. 1984: doc 231-3, pp. 2-4). The
officers had also expressed the view that Person 2’s information was suspect and that Person 2
had other motives for providing it, but had not seen this as excluding the possibility that it was factual.
712 Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 239-3).
713 Exhibit P-120(c), p. 2 (entry for Nov. 1, 1984: doc 526-3, pp. 26-27).
714 Exhibit P-120(c), p. 1 (entry for Sept. 20, 1984: doc 526-3, p. 26).
373
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investigated further.715 Because NCIB could not conduct its own investigations,716
it had to rely on the divisional investigator to conduct these additional inquiries.
The investigator (Douglas) had already concluded that the information was not
reliable in spite of the fact that it was provided by two sources717 and had not
thought it necessary to report the information when he first received it.
On November 6, 1984, NCIB requested “on an urgent basis” that the divisional
unit provide regular updates on the investigation.718 On November 16th, NCIS
reported that checks had been conducted on certain associates of Person 2 and
that no connections to extremist groups had so far been established.719 The
Division did not provide the names of the associates who were the subject of
checks. As a result, NCIB could not research the central RCMP databases to find
out if any information unavailable at the Division could be found at HQ.720
On November 26th, NCIS provided further details of an interview with Person 2.
For the first time, NCIB learned that during the interview, Person 2’s lawyer had
alleged that Person 2 knew more about the plot than what he was telling the
police.721 Because of the decentralized RCMP structure and the limited authority
granted to NCIB, the HQ members did not see it as their role to decide whether
or how to investigate further Person 2’s possible knowledge.722
NCIS also advised in its November 26th message that it had learned from Person
2 that the East Indian males involved in the November Plot resided in what for
purposes of this report must be referred to as “x town”, located in what must
as well be referred to as “y province.” Divisional checks on Person 2’s associates
revealed that three of them had phone numbers from y province. NCIS promised
to provide NCIB with the subscriber information for those numbers, which it
was in the process of obtaining. NCIB subsequently requested that the NCIS of
x town be brought into the investigation once the identity of the subscribers
was ascertained.723 E Division NCIS did not provide this or any other information
about the investigation to NCIB for a number of months. On March 20, 1985,
four months after the last NCIS report, NCIB wrote to NCIS and to the E Division
DIO to request a full update as soon as possible.724 In response, NCIS did not
provide an update on the investigation and did not inform NCIB of the identity
of the x town subscribers, but simply stated on April 10th that “very little action”
had occurred in this matter and that there had “…been no further information
received from any sources that would indicate this or any bombing of an Air
India Plane will occur.”725
715 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2600-2601.
716 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2578.
717 Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 239-3 and entry for Oct. 30, 1984: doc 526-3, p. 29);
Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4107.
718 Exhibit P-120©, p. 3 (entry for Nov. 6, 1984: doc 526-3, p. 35).
719 Exhibit P-120(c), p. 3 (entry for Nov. 16, 1984: doc 253-3).
720 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2605-2609, 2629.
721 Exhibit P-120(c), p. 3 (entry for Nov. 26, 1984: doc 526-3, p. 40).
722 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2609-2610.
723 Exhibit P-120(c), p. 3 (entry for Nov. 26, 1984: doc 526-3, p. 40 and entry for Dec. 4, 1984: doc 526-3, p.
42).
724 Exhibit P-120(c), p. 3 (entry for March 20, 1985: doc 526-3, p. 44). It was noted in the telex that the last
correspondence received from NCIS was dated November 26, 1984.
725 Exhibit P-120(c), p. 3 (entry for April 10, 1985: doc 526-3, p. 45).
�Chapter III: What Went Wrong?
No further information about the November Plot investigation was provided
by E Division NCIS until the day of the Air India bombing, when NCIB requested
that NCIS interview Person 2 about the crash. NCIS conducted an interview and
advised NCIB on June 23rd that Person 2 “knew nothing” about the bombing. A
report about the interview was requested and promised, but the Division did
not provide any report or additional details until many months later.726 Though
NCIB was only informed that Person 2 knew nothing about the bombing, in fact,
during the interview, Person 2 had said that he would speak to the police only if
they were willing to deal with his pending charges.727 It was his lawyer who had
subsequently told the NCIS investigator during a telephone conversation on the
same day that Person 2 did not know anything about the crash.728
E Division NCIS provided no further substantive information about the November
Plot investigation to NCIB (which was now acting as the Coordination Center
for the national Air India Task Force)729 until December 17, 1985.730 NCIB made
numerous requests for information and updates about the investigation.731 It
also inquired about the identity of the x town subscribers that the Division was
to have obtained in November 1984 and provided to NCIB.732 These requests
remained unanswered, except for a telex in October 1985 stating that the
Division was compiling material about Person 2 and would reply to the HQ
requests for information once the material was obtained.733
Meanwhile, in July 1985, E Division had obtained a copy of a VPD report about
an interview with Person 2, where alleged November Plot conspirators were
named.734 The Division even noted at the time that the information provided
726 Exhibit P-120(c), pp. 3-4 (entry for June 23, 1985: doc 526-3, p. 13) and p. 5 (entry for Dec. 17, 1985: doc
526-3, pp. 63-65). A telex was said to have been dispatched about this conversation, but no record of
the telex could later be found.
727 Exhibit P-120(c), p. 4 (entry for June 1985: doc 526-3, p. 59) and p. 5 (entry for Dec. 17, 1985: doc 526-3,
pp. 63-65). Sweeney testified that he was aware at the time that Person 2 “want[ed] to deal”: Testimony
of Warren Sweeney, vol. 25, May 8, 2007, p. 2616.
728 Exhibit P-120(c), p. 4 (entry for June 1985: doc 526-3, p. 59) and p. 5 (entry for Dec. 17, 1985: doc 526-3,
pp. 63-65).
729 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2560. See also, generally, Exhibit P-101 CAF0055.
730 Exhibit P-120(c), p. 5 (entry for Dec. 17, 1985: doc 526-3, pp. 63-65). See also, generally, Exhibit P-120(c),
pp. 3-5.
731 Exhibit P-120(c), p. 4 (entry for Sept. 13, 1985: doc 526-3, p. 47, entry for Sept. 24, 1985: doc 526-3, p.
48 and entry for Oct. 2, 1985: doc 526-3, p. 49), pp. 4-5 (entry for Nov. 25, 1985: doc 526-3, p. 55) and p.
5 (entry for Dec. 11, 1985: doc 526-3, p. 58). See also Testimony of Warren Sweeney, vol. 25, May 8, 2007,
pp. 2618-2620, confirming that requests for updates continued to be sent as no response was obtained
from the Division.
732 This information was specifically requested on September 9, 1985: Exhibit P-120(c), p. 4 (entry for Sept.
9, 1985: doc 526-3, p. 46) and the follow-up telexes listed in the above footnote referred to this request
as well. The information was specifically requested one more time on December 11, 1985: Exhibit
P-120(c), p. 5 (entry for Dec. 11, 1985: doc 526-3, p. 58). Sweeney confirmed during his testimony
that the associates referred to in these requests as “…the three individuals who visited Person 2” and as
“Person 2’s associates” were in fact the same three individuals from y province whose subscriber
information was being obtained by E Division on November 26, 1984 and was to be forwarded to
NCIB as per Exhibit P-120(c), p. 3 (entry for Nov. 26, 1984: doc 526-3, p. 40): Testimony of Warren
Sweeney, vol. 25, May 8, 2007, pp. 2629-2630.
733 See Exhibit P-120(c), p. 4 (entry for Oct. 2, 1985: doc 526-3, p. 50).
734 Exhibit P-120(c), p. 4 (entry for July 10, 1985: doc 493-3 and entry for July 12, 1985: doc 494-3) and pp.
8-9 (entry for May 1986: doc 23), where Randhawa states that all the information he obtained was
forwarded to Douglas.
375
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by Person 2 was similar to information received from Person 1 in November
1984.735 This assessment and the new information about the identity of possible
November Plot conspirators was not transmitted to NCIB. The substance
of the information provided in July 1985 by Person 2 about the conspirators
was discussed for the first time in correspondence transmitted to HQ in April
1986, but neither the details of the interview nor the actual VPD report were
provided.736
In early December 1985, NCIB was still waiting for a response to its numerous
requests for updates and information. On December 6th, Sweeney met with
CSIS investigator David Ayre who used to work at the BC Region and had been
transferred to Ottawa.737 Because Ayre had been involved in the investigation of
the November Plot information with E Division investigator Douglas, Sweeney
asked him whether he knew the identity of the x town subscribers who were
Person 2’s associates.738 Three days later, Ayre provided NCIB with the names
of the associates and advised Sweeney that the E Division investigator was
in possession of the long distance tolls for Person 2’s phone number for the
months preceding his arrest and incarceration in 1984.739 This was the first time
NCIB learned about the telephone tolls.
Having now received from CSIS the information about the identity of the x
town subscribers which had been promised by E Division in November of the
previous year, Sweeney researched the RCMP HQ database and found that one
of the individuals was “…affiliated with what can be termed extremist/terrorist
groups within the Sikh community.”740 NCIB sent another request to E Division
on December 11, 1985, this time addressing it to the personal attention of
Superintendent Les Holmes, the officer in charge of the E Division Air India/Narita
Task Force. NCIB explained that as a result of information received from CSIS,
one of Person 2’s associates was identified as a conspirator to the plot to bomb
an Air India plane. NCIB stated that, to date, HQ had received no satisfactory
answers to any of its requests from NCIS and asked that a response be provided
as soon as possible.741
NCIS finally provided a response on December 17, 1985.742 For the first time, the
divisional investigator provided a written account of his June 1985 interview
with Person 2. Douglas also finally provided the names of Person 2’s x town
associates. He explained that when the associates’ identities were discovered,
the local police of x town had been contacted and had provided background
information on the individuals indicating that there was “…no known connection
or association to extremist groups.”743
735 Exhibit P-120(c), p. 4 (entry for July 12, 1985: doc 494-3) and generally p. 4 and following.
736 In Exhibit P-120(c), p. 7 (entry for April 2, 1986: doc 526-9, p. 95), the information is referred to as from
“confidential sources”. When an HQ analyst compiled all relevant correspondence on April 15, 1986, the
VPD report was not mentioned. See Exhibit P-120(c), p. 8 (entry for April 15, 1986: doc 526-3, pp. 1-22).
737 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2621.
738 Exhibit P-120(c), p. 5 (entry for Dec. 6, 1985: doc 526-3, p. 56); Testimony of Warren Sweeney, vol. 25,
May 8, 2007, pp. 2621-2622. See also Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2629-2630.
739 Exhibit P-120(c), p. 5 (entry for Dec. 6, 1985: doc 526-3, p. 56).
740 Exhibit P-120(c), p. 5 (entry for Dec. 6, 1985: doc 526-3, p. 56).
741 Exhibit P-120(c), p. 5 (entry for Dec. 11, 1985: doc 526-3, p. 58).
742 Exhibit P-120(c), p. 5 (entry for Dec. 17, 1985: doc 526-3, pp. 63-65).
743 Exhibit P-120(c), p. 5 (entry for Dec. 17, 1985: doc 526-3, pp. 63-65).
�Chapter III: What Went Wrong?
Douglas was asked to explain to the Commission why it took so long for him
to respond to Headquarters’ requests. He testified that it was “certainly most
unusual,” but that he was “at a loss” as to why it took so long. It appears that even
the decision about how long a divisional investigator should take to respond to
a request by HQ was made at the divisional level. Douglas explained that when
requests came into the Task Force, they were received by the administrative
people who assigned diary dates for response and then disseminated the
information. He stated: “I would think if this was me requesting information, I
hadn’t got after a couple [of days] I’d just pick up the phone and say, ‘hey what’s
the problem, what’s going on out here’ if it’s that important”744
In the context of the traditionally decentralized RCMP structure, it appears that
the HQ requests for updates, information and specific investigative steps were
seen in the Divisions as hindering the investigators’ work. As Sweeney explained,
RCMP members in the Divisions felt that HQ should let the investigators do their
job and that they would provide the information they felt was relevant when it
was obtained. This was especially true during the post-bombing period when
the E Division Air India Task Force was constantly receiving requests for updates
and information.745
Though frustrated by the lack of response from E Division,746 NCIB members had
little ability to take action to address the situation. According to Douglas, who
was the head of the NCIS Terrorist/Extremist Unit, NCIS “had a free rein” in terms
of its relationship with NCIB, so long as it operated within certain guidelines.747
Because E Division NCIS did not report to NCIB, all that NCIB could do to get
information was to contact the investigators’ commanding officer within the
Division or, after the establishment of HQ Air India Task Force Coordination
Center, to have the Officer in Charge (OIC), Chief Superintendent Belanger, sign
the request.748 Sweeney did, in fact, have to contact the OIC of the E Division
Task Force in December 1985 in order to obtain a response to NCIB requests that
had been left unanswered for months.749
Throughout the pre-bombing and early post-bombing investigation of the
November Plot information, NCIB was provided with incomplete information,
after significant delays. This lack of complete and timely information made it
impossible for NCIB to provide any useful contribution.
Without formal authority over divisional investigators, there was little NCIB
could do to press forward investigations in which divisional investigators
were not especially interested. Even when an analyst at the NCIB Coordination
Center for the Air India investigation became interested in the November Plot
744
745
746
747
748
749
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4098-4100.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2627.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2624.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4031.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2627-2628.
Exhibit P-120(c), p. 5 (entry for Dec. 11, 1985: doc 526-3, p. 58). Shortly after this message, a response
was finally received from the divisional investigator: See Exhibit P-120(c), p. 5 (entry for Dec. 17, 1985:
doc 526-3, pp. 63-65).
377
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Volume Two Part 1: Pre-Bombing
information and concluded that the matter needed to be re-examined in order
to ascertain possible connections with the Air India bombing,750 NCIB was unable
to obtain details for months about information in the Division’s possession. The
divisional investigator had all but discounted the matter from the start,751 and
it took the involvement of senior officers in the Division many months after the
Air India bombing, and long after the HQ analyst began to inquire about the
information, to get the file reviewed and to have potential conspirators to the
Plot interviewed.752 NCIB appears to have been essentially powerless to remedy
inaction at the Divisional level while, at the same time, it had no authority or
capability to conduct the type of investigation it thought to be necessary on its
own.
Inability to Assess Threat Information Centrally
The RCMP threat assessment structure made ongoing centralized comprehensive
assessment of intelligence and information in the Force’s possession impossible.
The RCMP threat assessment system was not set up to collect and process general
threat information on an ongoing basis, but rather was designed primarily to
respond to specific requests for assessments. NCIB sent information requests to
the Divisions in anticipation of specific known events or in reaction to information,
but did not generally receive reports about any threat information that divisional
NSE units collected on an ongoing basis from other units conducting relevant
investigations.753 Jensen explained that it would neither have been possible nor
desirable for all 22,000 RCMP members to report threat information to HQ on
an ongoing basis since that would have “…chok[ed] the whole system.”754 What
this meant, though, was that all information that was relevant to understand the
threat at a particular point in time was never available for immediate analysis in
one central location. NCIB had to request information from the Divisions every
time a threat assessment requirement arose. It is an inadequate explanation
that the amount of potentially relevant information would choke operations.
Surely the response should be to devise a better and more efficient system.
The reporting delays associated with the decentralized structure of the Force
slowed down the transmission and receipt of information for every request.
Without access to relevant threat information in real time, NCIB members could
not respond to the seriousness of the threat as it evolved and could not redirect
intelligence-gathering activities accordingly.755 The RCMP system was purely
reactive and generally unsuited to prevention on a broader, long-term scale.
750 See Exhibit P-120(c), p. 4 (entry for Sept. 13, 1985: doc 526-3, p. 47); Testimony of Warren Sweeney, vol.
25, May 8, 2007, p. 2617.
751 Douglas maintained the view that the November Plot information was unreliable throughout: See
Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 239-3, entry for Oct. 30, 1984: doc 526-3, p. 29 and
entry for Nov. 1, 1984: doc 526-3, pp. 26-27) and p. 6 (entry for Feb. 18, 1986: doc 526-3, pp. 74-75
and entry for March 5, 1986: doc 526-3, p. 86). See also Testimony of Wayne Douglas, vol. 34, May
28, 2007, p. 4107.
752 See Section 2.3.1 (Post-bombing), November 1984 Plot.
753 Efforts were at times made to encourage the divisional units to engage in this ongoing collection of
information: Exhibit P-101 CAC0283, pp. 2-3, CAC0495, p. 2.
754 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5448.
755 Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2726.
�Chapter III: What Went Wrong?
CSIS threat assessments did generally attempt to discuss the broader current
threat context, but they were not routinely transmitted to NCIB until April
1985.756 Before that time, P Directorate received both the CSIS and the NCIB
threat assessments, but did not automatically pass on the CSIS assessments to
NCIB. NCIB could have accessed these assessments through the RCMP central
records,757 but it was not in the practice of regularly searching those records to
ensure that its assessment of the threat situation took into account all available
information.758
The RCMP also received other threat information that was not provided to NCIB.
The HQ P Directorate received information about threats to Indian interests
and to Air India directly from the Department of External Affairs and from the
airline, but this information was often not transmitted to NCIB.759 The most
important example of such information that was never reported or transmitted
to NCIB was the June 1st Telex about threats to bomb Air India planes using
time-delayed devices.760 In some cases, this sort of information was not even
accessible to NCIB through central records as it was not reported to HQ by local
airport detachments.761 Divisional NSE units were instructed to liaise directly
with the VIP Security units in their Division, as these units would at times have
information not available to HQ.762 There is documentation that such liaison
occurred within the Divisions,763 but no indication that P Directorate information
was obtained and researched at the HQ level to prepare threat assessments.
The VIP Security Branch of P Directorate would at times receive reports
from divisional sections outlining demonstrations, threats and disruptions
experienced while protecting Indian officials.764 VIP Security could take special
measures in light of the nature of the threat, such as contacting the “bomb
squad” and requesting an explosives vapour detector sweep on diplomatic
premises, as was done on June 19, 1985 at the Indian High Commission in
Ottawa.765 Information on such measures and about the unfolding of events
involving Indian diplomats was relevant to the threat assessment process. It too,
however, was not routinely transmitted, or in some instances not transmitted at
all, to NCIB or incorporated in the threat assessment process.766
756
757
758
759
760
761
762
763
764
765
766
Exhibit P-101 CAA0147, CAB0207, CAB0851, pp. 3-8, CAC0291.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2653.
See, for example, Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2597-2598.
See the following documents, for which there is no record that the information was transmitted to
NCIB: Exhibit P-101 CAA0185, Exhibit P-101 CAC0293, Exhibit P-129; Testimony of Warren Sweeney, vol.
26, May 9, 2007, p. 2732, explaining that NCIB did not receive the June 1st Telex.
Exhibit P-101 CAA0185.
For example, a July 1984 telex (see Exhibit P-101 CAA0083, CAA0084) noting that an individual had “…
volunteered to carry a bomb in his accompanied baggage with a view to blowing up an Air India plane
in order to draw attention to the demands of the Sikhs.” See also Exhibit P-101 CAC0419, a June 7,
1985 telex indicating that “…enforcement of special measures to deal with increased threat of
hijacking and sabotage at airports by extremists should be continued till the end of June 85.”
See, generally, Section 3.5.3 (Pre-bombing), RCMP Failures in Sharing with CSIS.
Exhibit P-101 CAC0495, p. 4.
See, for example, Exhibit P-101 CAC0285, referring to a D Division NSE report which refers to
information found in Exhibit P-101 CAC0271, pp. 2-4, a report from D Division VIP Security to HQ
VIP Security.
See, for example, Exhibit P-101 CAC0233, CAC0271.
Exhibit P-101 CAC0441, p. 2; Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2717, 2719.
Sweeney specified NCIB would not be informed, for example, of the VIP decision to contact the “bomb
squad”: Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2717-2718.
379
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Volume Two Part 1: Pre-Bombing
Assessing and investigating threats to national security requires coordination
of potentially disparate pieces of information from a variety of sources which
must be pieced together and analyzed. Newly-gathered information can shed
light on information already collected, opening new avenues of investigation. A
high degree of centralization is necessary for such a process. The reporting gaps
in the RCMP structure, as well as NCIB’s failure to conduct regular searches of
central records,767 meant that the RCMP threat assessment process was seldom,
if ever, in possession of all the necessary information to make the necessary
linkages and connections to carry out its role.
Limited Analytical Capability
The NSE members tasked with collecting and assessing threat information often
had difficulty appreciating the significance of the information gathered. They
did not always see how it related to other information already in the RCMP’s
possession or understand what information required further investigation and
how such inquiries should be conducted.
In E Division, the NSE unit relied on the extremist/terrorist unit of the NCIS for
the collection and analysis of threat information.768 NCIS generally just gathered
information and forwarded it with comments to NCIB, relying on the HQ section
for analysis of the information. CIS BC could provide an analysis of some of the
threat information gathered.769 However, its primary focus was on organized
crime and the nature of the analysis it conducted was very basic and generally
only done upon request.770
E Division NCIS was often unable to analyze the information in its possession or
to use it to calibrate the potential for violence against Indian missions. In May
1985, when the threat to Indian interests in Canada was at a then all-time high,771
the E Division OIC Operations inexplicably wrote to HQ that “…the assessment
[of the threat to Indian interests] in this division at the present moment is at the
nil or low threat level”772 – this, in spite of the fact that Vancouver was considered
by CSIS to be a “…hotbed of [Sikh extremism] activity,”773 where many of the
most dangerous Sikh extremist organizations and individuals, such as Parmar
and the BK, as well as the ISYF, were operating.774 On June 14, 1985, shortly after
a prominent Sikh extremist commented at the Khurana meeting that something
767 The Commission saw no indication that the information received by P Directorate from DEA or Air India
was taken into account by NCIB. In some cases, NCIB members confirmed that they did not review
relevant threat information: See, for example, Testimony of Warren Sweeney, vol. 26, May 9, 2007,
p. 2732, confirming that he did not review the June 1st Telex.
768 Exhibit P-101 CAC0495, p. 3.
769 Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4032.
770 Final Submissions of the Attorney General of Canada, Vol. I, para. 87; Testimony of Bob Stubbings, vol.
33, May 24, 2007, p. 3933. About the structure and mandate of CISBC, see Section 3.5.4 (Pre-bombing),
RCMP Failures in Sharing with Local Forces.
771 See Section 1.12 (Pre-bombing), A “Crescendo” of Threats. CSIS, NCIB NSE and other sources indicated
that the threat was high: See Exhibit P-101 CAC0338.
772 Exhibit P-101 CAC0347.
773 Exhibit P-101 CAB0207, p. 2.
774 See, generally, Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces. See also April
1985 CSIS threat assessment: Exhibit P-101 CAB0221.
�Chapter III: What Went Wrong?
would be done in two weeks about the lack of attacks against Indian officials,775
E Division NCIS wrote to HQ that it had no intelligence indicating “…that violent
or criminal acts are planned for the Consulate or its personnel” and that it was
“…unable to determine the potential for violence against the Indian Consulate
or its personnel in Vancouver.”776
The weaknesses in the Divisions’ analysis were generally not remedied at the HQ
level. Despite documentary references to NCIB’s intended analytical role in the
new RCMP threat assessment process,777 NCIB NSE members did not see their role
as involving a critical assessment of the overall threat situation or of the specific
information received. Rather, they saw it as basically transmitting information to
P Directorate and to RCMP Liaison Officers in other jurisdictions.778 In general,
NCIB forwarded correspondence received from the Divisions without providing
any value added to the raw information.
Analysis of the November Plot Information
A graphic illustration of the limited analytic capacity of the RCMP threat
assessment system is found in the response to the November Plot information.
When the information was initially received by NCIB, the divisional investigator’s
assessment that it was doubtful was passed to VIP Security. NCIB stated in its
message to VIP Security that the information was forwarded “…in the event you
may have an interest or other information”, adding that other information had
surfaced “…casting serious doubts on the validity/reliability of the information”,
which appeared to be “fabricated.”779 These comments were not the result of an
independent analysis of the information, but were a repetition of the messages
and information received from E Division.780 At the time, NCIB only knew of
one source for the information: Person 2. It was not aware of a second source,
Person 1, who had earlier provided the same information. When NCIB did
learn that there were two sources,781 which was later said to make it “extremely
unlikely” that the information was fabricated,782 it did not question the Division’s
initial assessment of the information or contact P Directorate to update the
assessment. NCIB did not request any further investigation of the information
by the Division and seemed content to ask the Division only to provide updates
about its investigation.783
775 See Section 1.6 (Pre-bombing), Khurana Information. It is likely that NCIS was directly advised of this
information, which was also available in to NCIS in the VIIU files: See Section 3.5.4 (Pre-bombing), RCMP
Failures in Sharing with Local Forces.
776 Exhibit P-101 CAC0438. See, generally, Section 1.6 (Pre-bombing), Khurana Information.
777 See Exhibit P-101 CAC0283, p. 2. See also Exhibit P-120(c), p. 3 (entry for Nov. 8, 1984: doc CivLit1).
778 This is how Sweeney, who was in charge of the terrorist desk at NCIB NSE, described his role in
connection with the November Plot: Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2595.
779 Exhibit P-120(c), p. 2 (entry for Oct. 30, 1984: doc 526-3, p. 29).
780 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2596-2597.
781 Exhibit P-120(c), p. 2 (entry for Nov. 1, 1984: doc 526-3, pp. 26-27 and entry for Oct. 30, 1984: doc 526-3,
p. 29).
782 Exhibit P-120(c), p. 8 (entry for April 15, 1986: doc 526-3, pp. 1-22); Testimony of Warren Sweeney, vol.
25, May 8, 2007, pp. 2630-2632.
783 Exhibit P-120(c), p. 3 (entry for Nov. 6, 1984: doc 526-3, p. 35).
381
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Volume Two Part 1: Pre-Bombing
CSIS had access to less information, but took the threat more seriously from the
beginning. Even without being informed of the existence of another source, CSIS
concluded from the Person 2 information that there was “…a real possibility that
Sikhs will damage an Air India plane” and so advised Airport Policing.784 Sweeney,
who was following up the November Plot information, did not have the benefit
of the CSIS threat evaluation before sending the E Division assessment to VIP
Security.785
Aside from the poor information flow, the RCMP’s ability to assess the November
Plot threat was further impaired by tunnel vision that plagued both the divisional
NCIS and HQ NCIB. NCIB members believed that the threat “was over” once Person
2 had been arrested.786 In fact, the information received from Person 1 indicated
that the plot was only put “on hold” after Person 2’s arrest, and that Person 2
was actually making efforts to pursue the plot while in jail.787 Yet, NCIB waited
four months, until March 1985, to request an update when the Division stopped
providing information about the investigation after November 1984, and even
this update request was viewed as a simple routine follow-up matter.788 NCIB
did not appear to take this threat seriously, in spite of the obvious possibility
that the plot could still be executed, and in the face of information tending to
indicate that it might be.789
Even after the actual bombing of Air India Flight 182, the significance of the
November Plot information continued to be overlooked. On the day of the
bombing, neither the Division nor NCIB thought to pursue Person 2’s offer
to provide further information in exchange for an agreement or discussions
about the unrelated charges he was facing.790 Instead, they chose to take at
face value his lawyer’s assertion that Person 2 did not know anything about the
Air India crash, and viewed Person 2’s information with skepticism throughout
the investigation because he was seeking to bargain away his charges.791 It is
ironic in the extreme that Person 2’s offer was simply ignored in light of the fact
that the unique access to individuals facing criminal charges, who might wish to
trade valuable information in exchange for various benefits, was precisely cited
as one of the important advantages of the RCMP’s involvement in the threat
assessment process.792
784
785
786
787
788
789
790
791
792
Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 229-3, p. 5).
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2565, 2593-2594, 2597-2598.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2611, 2613-2614.
Exhibit P-120(c), p. 2 (entry for Nov. 1, 1984: doc 526-3, pp. 26-27). See Section 1.1 (Pre-bombing),
November 1984 Plot.
Exhibit P-120(c), p. 3 (entry for March 20, 1985: doc 526-3, p. 44); Testimony of Warren Sweeney, vol. 25,
May 8, 2007, p. 2611.
See Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2614, where Sweeney agrees that according
to the information available, it was possible that the November Plot could still be executed.
Though Person 2’s offer was not reported by NCIS immediately after the interview, Sweeney testified
that he was aware in that general time frame that Person 2 “…want[ed] to deal”: Testimony of Warren
Sweeney, vol. 25, May 8, 2007, p. 2616.
Exhibit P-120(c), pp. 3-4 (entry for June 23, 1985: doc 526-3, p. 13) and p. 4 (entry for June 1985:
doc 526-3, p. 59). See Section 2.3.1 (Post-bombing), November 1984 Plot and Section 1.1 (Prebombing), November 1984 Plot.
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5450-5451.
�Chapter III: What Went Wrong?
The potential significance of the November Plot information to the Air India
investigation was apparently not recognized until September 1985, over two
months after the bombing, when an analyst at the HQ Air India Task Force raised
the issue and asked that further information be obtained from the Division.793
This motivated NCIB to begin to request updates from E Division.794 The analyst
had joined NCIB after the bombing for purposes of the Air India investigation,
and had to review a significant volume of material before being able to recognize
the importance of the November Plot information. 795 Had NCIB NSE had a robust
analytical capability from the beginning, the obvious potential relevance of the
November Plot information likely would have been recognized earlier.
In any event, in spite of the Air India Task Force analyst’s interest, it appears
that the November Plot information continued to be viewed as not significant
by NCIB members and divisional investigators.796 Sweeney believed that the
information was being pursued only to “tie up loose ends” and that it could
not have anything to do with the Air India bombing.797 E Division simply
ignored NCIB’s requests for information. In 1986, when the RCMP finally did
pursue the November Plot “loose ends”, information was uncovered which
showed connections between the November Plot and the Air India bombing,
including connections between conspirators and sources for the November
Plot and Inderjit Singh Reyat.798 Person 1 also successfully passed a polygraph
test substantiating the information provided by Persons 1 and 2.799 Sweeney
testified that the new information obtained would have caused him to view
the November Plot issue as more significant in the early stages of the Air India
investigation,800 as would the fact that Person 2 had mentioned the possibility
of two planes being bombed before the Air India bombing took place,801
information which was available to the RCMP but which it never obtained.802
The information which would have established the significance of the November
Plot and its potential connection with the Air India bombing could only have
been obtained through further investigation and follow-up. Because of analytical
failures at the divisional and HQ levels, the issue was initially not considered to
be worth investigating, and the information did not surface until much later,
long after the Air India bombing had occurred and when the investigation was
already well under way.803
793 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2617.
794 Exhibit P-120(c), p. 4 (entry for Sept. 13, 1985: doc 526-3, p. 47 and subsequent telexes to the Division);
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2617.
795 Exhibit P-120(c), p. 8 (entry for April 15, 1986: doc 526-3, pp. 1-22).
796 See Section 2.3.1 (Post-bombing), November 1984 Plot.
797 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2617-2618.
798 See Section 2.3.1 (Post-bombing), November 1984 Plot.
799 Exhibit P-120(c), pp. 8-9 (entry for May 1986: doc 23).
800 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2633-2636.
801 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2639.
802 See Section 1.1 (Pre-bombing), November 1984 Plot.
803 See Section 2.3.1 (Post-bombing), November 1984 Plot.
383
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Duplication of Effort
The new RCMP threat assessment process created significant duplication of
effort with CSIS, often replicating the same functions for the same information,
often with no apparent value added.804
No effort was made to coordinate the new RCMP functions with CSIS’s work
in order to focus on information that the intelligence agency was not already
pursuing.805 RCMP Divisions were advised that their NSE units did not specifically
need to request information from CSIS when responding to requests for threat
information.806 While NSE was instructed to maintain close liaison with CSIS,
it was asked to “…check out threat assessments with CSIS” only where CSIS
could provide criminal investigative leads.807 In the meantime, the CSIS Threat
Assessment Unit (TAU) continued its own separate liaison with RCMP Protective
Policing.808 As a result, CSIS Regions and RCMP Divisions would often be sending
the same information for inclusion in threat assessments to the same RCMP P
Directorate.
In practice, many, if not most, RCMP threat assessments were identical to
the CSIS assessments, with both agencies relying on the same sources.809
Further, because of the RCMP decentralized structure, CSIS HQ often received
information from its Regions faster than NCIB did from its Divisions. As a result,
more information would generally be available at CSIS HQ than at NCIB.810 It
seems not only duplicative but pointless to have had the RCMP reviewing and
forwarding to P Directorate, through various divisional levels, information which
CSIS would have sent earlier in any event.811 Not surprisingly, RCMP divisional
officers complained about this inefficient use of their resources.812
Further, divisional NSE units were instructed to review various newspapers and
other publicly available materials to identify information “…of a criminal threat
assessment value.”813 Such open source materials were said to contain “preincident” indicators to reflect the level of tension in various communities and
to signal the possibility of law enforcement problems.814 This was precisely the
type of research that CSIS routinely performed in furtherance of its mandate
to advise of threats to Canada’s security. Information about potential “law
enforcement problems” relating to security offences would also necessarily
implicate the security of Canada and thus also fall within the CSIS mandate.
804
805
806
807
808
809
810
811
Exhibit P-101 CAC0406, p. 3.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2574-2576.
Exhibit P-101 CAC0495, p. 4.
Exhibit P-101 CAC0495, p. 4.
Exhibit P-101 CAA0039(i), p. 51.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2574.
Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2726-2727.
Once received by P Directorate, the information would become available to NCIB through RCMP
central records: Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2653-2655.
812 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2574; Exhibit P-101 CAC0406, p. 3.
813 Exhibit P-101 CAC0495, p. 5.
814 Exhibit P-101 CAC0495, pp. 4-5.
�Chapter III: What Went Wrong?
Hence, duplication was inevitable. It made no sense to have both agencies
review the same materials for the same purpose. With no explanation about the
nature of the information with “criminal threat assessment value”, as opposed to
the general threat assessment value CSIS was looking for, there was little hope
the work could be effectively coordinated at the regional level.
Definition of RCMP Role in the Threat Assessment Process
In 1986, Ron Atkey, Chairman of the Security Intelligence Review Committee
(SIRC), wrote the following margin notes about directives of the Solicitor General
on measures to improve CSIS/RCMP cooperation:
Until someone defines the difference between security
intelligence and criminal intelligence in this area of common
concern; … all this will represent is a papering over of the
cracks.815
The lack of a clear and universally accepted definition of the concept of “criminal
intelligence” and how it was to be distinguished from “security intelligence”
plagued the RCMP in its early attempts to adjust to the creation of CSIS. It was
largely because the concept was never properly understood or defined that the
RCMP was unable to find its proper place in assessing and responding to the
threat of Sikh extremism.
The threat assessment process set up by the RCMP was, in some respects,
based on undefined, and in some cases questionable, assumptions about the
respective RCMP and CSIS mandates. As a result, it was difficult for the RCMP
to develop a unified or coherent vision of the nature, scope and purpose of its
involvement in the threat assessment process and to adequately explain the
objectives of its threat assessment process to its members. This lack of clarity
had an impact on the RCMP’s ability to identify, report and investigate threat
information.
When the Government decided to create CSIS, there was a perception in the
RCMP that a gap was created which would prevent it from carrying out its
policing activities, in particular with respect to national security offences and
terrorism.816 Many in the RCMP felt that relying exclusively on CSIS for the Force’s
intelligence needs was neither realistic nor workable.817 Given its own mandate,
the Force saw that overlap was inevitable in the field of security offences.818 It was
believed that the RCMP needed to retain a complementary role in intelligence-
815 Exhibit P-101 CAA0484, p. 6. See also Testimony of Ronald Atkey, vol. 49, September 20, 2007, pp.
5981-5982.
816 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5358-5359, 5396.
817 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5360, 5373-5374; Testimony of Robert
Simmonds, vol. 74, November 8, 2007, pp. 9331-9332, 9338.
818 Exhibit P-101 CAC0030, pp. 2, 4.
385
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gathering for information connected to law enforcement activities.819 In
particular, Commissioner Simmonds indicated that no clear dividing line could
be drawn between the role and responsibilities of CSIS and the RCMP in the
realm of counterterrorism.820 Because terrorist acts are criminal,821 the RCMP
viewed terrorism-related intelligence-gathering work as part of its core law
enforcement mandate.822 Simmonds explained that in his view, the CSIS Act did
not give CSIS primacy in the area of intelligence-gathering relating to terrorism
and did not exclude the RCMP, since no legislative amendments limited the “…
traditional and needed role of the police force.”823
The RCMP adopted the concept of “criminal intelligence” to describe the new
role it intended to assume in intelligence-gathering and threat assessment.
As Atkey correctly perceived, the distinction between criminal and security
intelligence was untenable and incapable of definition. The new RCMP threat
assessment process appears simply to have assumed that members would
know the difference between “security intelligence” and “criminal intelligence”
when they saw it, even though the upper echelons of the Force understood
that there was no clear demarcation.824 The repeated use of equally undefined
concepts, such as “legitimate law enforcement interest”,825 to describe the scope
of RCMP intelligence-gathering activities did nothing to ease the confusion
about the role of the RCMP and its relationship to CSIS in the area of intelligence
collection.
Not surprisingly, members in the Divisions remained unsure of the RCMP’s
threat assessment mandate and its relationship to CSIS threat assessment.826 At
NCIB itself, there was initially no clear understanding of the role of NSE vis-à-vis
the CSIS TAU which continued to have a direct relationship with P Directorate,
the main consumer of threat assessments.827 P Directorate itself was uncertain
about the role that NCIB NSE was supposed to carry out and, as a result, did not
generally view NCIB as a resource for information or assessments.828
At times, the RCMP threat assessment process was misunderstood by those
very members in charge of implementing it. The NSE responsibility to collect
and report threat assessment information was not understood clearly within
the RCMP in light of NSE’s lack of an investigative role.829 At H Division, the DIO,
whose duties included assigning follow-up investigations of threat information
819 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5372.
820 Exhibit P-101 CAA0474, pp. 8-10; Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9345.
821 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2576. See also Testimony of Henry Jensen, vol.
18, March 7, 2007, p. 1666 and Exhibit P-101 CAA0474, p. 8, where Simmonds wrote “…we view
terrorists as criminals and we view their activities as crime.”
822 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2575-2576.
823 Testimony of Robert Simmonds, vol. 74, November 8, 2007, pp. 9328, 9351-9353.
824 Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1662. See also the Ministerial Directive
recognizing this: Exhibit P-101 CAA0081, p. 12.
825 Exhibit P-101 CAA0039(i), p. 16.
826 Exhibit P-101 CAC0406, p. 3.
827 Exhibit P-101 CAA0039(i), p. 51.
828 Exhibit P-101 CAC0278; Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2578; Testimony of R.E.
Muir, vol. 28, May 15, 2007, p. 2934; Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2809-2810,
2888.
829 Exhibit P-101 CAC0495, p. 2.
�Chapter III: What Went Wrong?
to appropriate investigative units at NSE’s request,830 was of the view that,
because of the lack of investigative mandate or capacity at NSE, the RCMP
was “totally dependent” on CSIS for intelligence collection and analysis.831
The Commanding Officer of the same Division, for his part, was under the
impression that the purpose for establishing RCMP units to collect intelligence
and investigate dissident individuals and groups832 was “…to replace the RCMP
Security Service that was lost when CSIS was established.”833
Some of the rationales invoked to explain the necessity of the new RCMP threat
assessment process also added to the confusion.
The security offences mandate conferred on the RCMP in the CSIS Act834 was
sometimes described as a “new” mandate involving additional responsibilities
and justifying new activities for the criminal operations side of the Force.835 In
fact, the security offences mandate was not truly new. The RCMP was always
responsible for investigating offences relating to national security as part
of its federal “security enforcement” duties and was always responsible for
a wide range of protective policing activities.836 The only practical difference
which resulted from the legislative statement in the CSIS Act was that the
RCMP was now granted primary jurisdiction nationwide, whereas traditionally
provincial or local forces had been responsible for law enforcement activities
in their respective jurisdictions for all offences.837 Further, the RCMP protective
policing responsibilities – sometimes portrayed as expanding and viewed as
requiring the Force to acquire its own threat assessment capacity because of an
increase in violent or potentially violent activities targeting protected persons
and missions838 – had also formed part of the RCMP’s responsibilities for a long
time and had not previously been seen as necessitating the creation of an
independent threat assessment process on the criminal operations side of the
Force.
CSIS’s mandate did not prevent it from continuing to provide the necessary threat
information and assessments which the Security Service used to provide,839
and the RCMP’s mandate, whether in relation to protective policing or “security
offences”, did not require it to perform this intelligence-gathering itself. The fact
830 Exhibit P-101 CAC0283, p. 6.
831 Exhibit P-101 CAA0531, p. 2.
832 This was said to have been proposed in a Commissioner’s Strategic Issues Paper: Exhibit P-101
CAA0144, p. 1. Note that the Strategic Issues Paper appears to be the document described in Exhibit
P-101 CAA0162 as a March 1985 draft Strategic Plan prepared by the Planning and Evaluation Branch.
833 Exhibit P-101 CAA0144, p. 1.
834 S.C. 1984, c. 21, s. 61(1).
835 See, for example, Exhibit P-101 CAC0286, p. 2 and Exhibit P-101 CAC0495, p. 5. The security offences
mandate was also perceived as conferring on the RCMP “…new and added responsibilities regarding
the protection of Canada’s Diplomatic Community,” in addition to the traditional RCMP protective
policing responsibilities with respect to foreign missions and personnel: Exhibit P-101 CAC0214, p. 2,
CAC0216(i), p. 2.
836 Exhibit P-101 CAA0081, pp. 3-4.
837 Exhibit P-101 CAA0081, p. 6; Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5398.
838 Exhibit P-101 CAC0283, pp. 4-5, CAC0495, p. 5.
839 According to the Minister, that mandate was, on the contrary, “…sufficiently broad to permit the
Service to satisfy RCMP security intelligence needs”: Exhibit P-101 CAA0081, pp. 8-9.
387
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that the Security Service had been taken away from the RCMP did not necessarily
have to create a gap in the threat assessment process. However, some gaps
did already exist in the pre-existing threat assessment process or could have
resulted from the creation of a separate intelligence agency. Unfortunately, the
new RCMP process did not address these issues.
Failure to Address Gaps
Long before the creation of CSIS, gaps were evident in the Security Service threat
assessment process. The Security Service in many respects operated separately
from the rest of the RCMP.840 It often did not have access to the information
gathered by the criminal operations side of the Force. As a result, for the four
years preceding the creation of CSIS, members of the Security Service Threat
Assessment Unit (TAU) had repeatedly requested a role for C Directorate (the
criminal operations side of the RCMP) in the threat assessment process. The TAU
members attempted to provide threat assessments “more or less” from a Force
“perspective”, but could not fully explore and report criminal aspects.841
Because the Security Service did not have access to threat information obtained
by the RCMP in the conduct of its regular policing activities, relevant information
was excluded from its threat assessment process. As a law enforcement agency,
the RCMP had unique access to information from a wide range of individuals
facing criminal charges and willing to trade information for various benefits
or advantages.842 Proven law enforcement approaches, such as the use of
undercover agents, informants, Criminal Code wiretaps and search warrants,
would inevitably gather intelligence which could serve to prevent terrorist
acts.843 None of this information would normally find its way into the Security
Service threat assessment process. The creation of an RCMP threat assessment
process after the Service’s separation from the Force would have been a perfect
opportunity to address this issue. Instead, the RCMP created a parallel structure
and, as it focused on its own requirements and had difficulty ensuring that
information was reported centrally in its own system, it did not always provide
CSIS with access to the security-related information its investigative units
obtained.
Without access to all relevant information, CSIS’s ability to assess the threat was
impaired. CSIS complained about what it viewed as the RCMP’s intention to
develop “…a completely parallel investigative capability.”844 SIRC also expressed
concerns about the potential RCMP parallel intelligence-gathering capability,
which could conflict with CSIS responsibilities and even represent a step
backward from the McDonald Commission.845 Wanting to ensure that it obtained
all the intelligence necessary to conduct its protective and preventative policing
840
841
842
843
844
845
Testimony of Robert Simmonds, vol. 74, November 8, 2007, pp. 9317-9318.
Exhibit P-101 CAC0275, p. 2.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5450.
Exhibit P-101 CAA0474, pp. 8-10.
Exhibit P-101 CAA0162, p. 3, CAA0293, p. 1, CAA0444, CAA0531, p. 1, CAC0029, CAC0030.
Exhibit P-101 CAA0474, CAA0507; Exhibit P-144: Security Intelligence Review Committee Annual
Report 1985-86, p. 7 [SIRC 1985-86 Annual Report].
�Chapter III: What Went Wrong?
operations, the RCMP actually missed the opportunity to resolve an operational
problem which could weaken the assessments of the intelligence agency on
which it was to rely.
Possibility of Delay
There were issues related to the creation of a separate intelligence agency which,
if left unaddressed, would compromise the utility of CSIS threat assessments to
the RCMP. One such issue was the possibility of delay.846 Security enforcement
could be carried out by the RCMP on the basis of CSIS intelligence, but the
information would have to be received in a timely manner.847 For protective
policing, delay could lead to the failure to take action in time. For “security
offences” investigations, delays could compromise the criminal investigative
tools needed for a subsequent prosecution.848 This real and important concern
was not resolved when the RCMP created its own threat assessment process. On
the contrary, the RCMP system often involved more delays in the reporting of
information than the CSIS system already in place.
Judicial Process Issues
Other potential issues with the reliance of the RCMP on CSIS threat
assessments were related to the judicial process.849 In cases where threats
materialized or conspiracies were hatched, the RCMP would be conducting
criminal investigations. If RCMP members sought search warrants or wiretap
authorizations under the Criminal Code, they could be legally required to disclose
any CSIS information in their possession.850 If CSIS then successfully objected
to having its information made public, it could jeopardize subsequent criminal
prosecutions.851 To the extent that the RCMP had to rely on CSIS information in
prosecutions, concerns could arise where the information was not collected in
accordance with applicable evidentiary standards.852 Such downstream issues,
involving subsequent use of CSIS threat assessment materials were not, strictly
speaking, relevant to the actual purpose of threat assessments for protective
policing or for preventive purposes, but were understandably of concern to the
RCMP.
846 The RCMP needed to receive information in a timely manner in order to be able to take any action
necessary: Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5361, 5372-5373; Testimony of Henry
Jensen, vol. 18, March 7, 2007, p. 1665. See also Exhibit P-101 CAA0474, p. 11, CAC0030, where
Simmonds expressed these concerns in August 1986, and Exhibit CAD0027, pp. 3-4, where the Solicitor
General expressed the same concerns in May 1985.
847 Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1674.
848 Exhibit P-101 CAD0027, p. 3.
849 Testimony of Robert Simmonds, vol. 74, November 8, 2007, pp. 9328, 9331.
850 See Section 4.4 (Post-bombing), CSIS Information in the Courtroom and Section 4.1 (Post-bombing),
Information Sharing and Cooperation in the Air India Investigation.
851 Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1657-1658; Testimony of Henry Jensen, vol. 44,
June 18, 2007, pp. 5366, 5369; Testimony of Robert Simmonds, vol. 74, November 8, 2007, pp.
9326-9327, 9329.
852 See Section 4.3.1 (Post-bombing), Tape Erasure and Section 4.3.2 (Post-bombing), Destruction of
Operational Notes.
389
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The issue of subsequent use of intelligence in the judicial process, which already
existed in the Security Service days,853 was not resolved through the creation of
the parallel RCMP threat assessment process. On the contrary, the issue became
extremely important in the RCMP post-bombing investigation.854 The model
envisaged in the CSIS Act and the Ministerial Directive attempted not only to
separate intelligence-gathering from criminal investigations and prosecution,
but also to avoid duplication. While this strict separation of mandates could
create problems in subsequent prosecutions, especially in light of legal
disclosure requirements, the creation of a separate RCMP system for assessing
“criminal intelligence”, as opposed to the “national security intelligence”, could
not achieve the twin goal of before-the-fact prevention through adequate threat
assessment and after-the-fact prosecution through access to evidence which
could be admissible in a court of law. As shown in the Air India investigation
itself, it was inevitable that CSIS would gather some information which could
be relevant to subsequent prosecutions, regardless of the existence of an RCMP
threat assessment process. Meanwhile, the parallel process deprived CSIS of the
opportunity to perform a global assessment of all relevant threat information.
Conclusion
The threat assessment process set up by the RCMP was not well-adapted to
gathering, centrally assessing and investigating threat information. It relied on
units that were not sufficiently trained or resourced to perform their intended
assessment role. The process was overly decentralized, which prevented the
adequate control of investigations. The RCMP reporting structure prevented the
Force from being able to respond to threat information in a timely manner. The
RCMP proved incapable of drawing on information already in its possession,
or of aggregating information from sources to which it had unique access, and
it brought no special analytical skills to bear in order to identify the national
security significance of information. RCMP threat assessments largely duplicated
CSIS’s work, to little positive effect and, in some cases, with negative results.
3.5 Information-Sharing Failures
3.5.1 CSIS/RCMP Relations and Information-Sharing Policies
Introduction
During the period immediately preceding the Air India bombing, information did
not always flow smoothly between CSIS and the RCMP. The agencies struggled
to make sense of the new legislation and policies focussed on separating their
mandates. They tried to implement information-sharing mechanisms within
the siloed intelligence system created by government. At times, the efforts of
individuals within each agency to maintain and improve information sharing,
despite legislative shackles and practical difficulties, were commendable. In
853 Testimony of Robert Simmonds, vol. 74, November 8, 2007, pp. 9326-9327.
854 See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
�Chapter III: What Went Wrong?
many other instances, however, members of both agencies seemed to lose
track of the higher purposes they were pursuing. Growing tensions, highlevel debates, mistrust and legalistic arguments often characterized the early
relationship between CSIS and the RCMP. Those tensions had an impact on the
amount of information exchanged and on the sources of information available
to CSIS.
CSIS/RCMP Information-Sharing Policies
Information sharing between the RCMP and CSIS was recognized as a major
area of concern during the CSIS transition. The development of the MOU for the
Transfer and Sharing of Information855 was one of the most important and most
contentious issues for the Security Intelligence Transition (SIT) Group.
In the Memorandum of Understanding (MOU), signed immediately after
the creation of CSIS on July 17, 1984, the two agencies agreed to share any
information relevant to each other’s roles and responsibilities as the information
became known or available, or upon request. The MOU clearly stated that neither
agency would have an unrestricted right of access to the records of the other
agency. The MOU assigned to the Solicitor General the role of adjudicator in the
case of information-sharing disagreements. While the MOU provided general
information-sharing principles, it left the responsibility for establishing specific
procedures to implement these principles to the CSIS Director and the RCMP
Commissioner.
Professor Wesley Wark described the situation set out by the 1984 MOU as a “…
silo arrangement …connected by an informational ramp”, in which information
flowed only one way: from CSIS to the RCMP.
CSIS was, in many respects, the tall silo, with its lofty strategic
intelligence gaze. The RCMP was the stumpy silo, engaged
on in-the-trenches tactical intelligence and case work. The
informational ramp flowed one-way.856
The Solicitor General, the Honourable Robert Kaplan, recognized the potential
for overlap and duplication between CSIS’s security intelligence function, as set
out by the CSIS Act, and the RCMP’s security enforcement function, as set out in
the Security Offences Act component of the same Act. While the main body of
the CSIS Act established CSIS as the agency charged with collecting intelligence,
the Security Offences Act (which began life as a part of the CSIS Act) assigned
the RCMP primary responsibility to perform peace officer duties in relation to
offences deemed to be threats to the security of Canada (security enforcement)
855 Exhibit P-101 CAA0076.
856 Wesley Wark, “The Intelligence-Law Enforcement Nexus: A study of co-operation between the
Canadian Security Intelligence Service and the Royal Canadian Mounted Police, 1984-2006, in
the Context of the Air India terrorist attack” in Vol. 1 of Research Studies: Threat Assessment RCMP/CSIS
Co-operation, p. 172.
391
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or offences against internationally protected persons (protective policing).
Minister Kaplan issued a Ministerial Directive on July 29, 1984 laying down six
principles to guide the discharge of the security responsibilities of CSIS and the
RCMP.857
• The RCMP will rely on CSIS for intelligence relevant to national
security offences;
• CSIS will pass to the RCMP intelligence relevant to RCMP security
enforcement and protective security responsibilities;
• The RCMP will pass to CSIS information relevant to the CSIS
mandate;
• The RCMP will be the primary recipient of security intelligence on
national security offences and responsible, where they consider it
necessary, for the passage of such intelligence to local enforcement
authorities;
• The RCMP and CSIS will consult and cooperate with each other with
respect to the conduct of security investigations;
• The RCMP and CSIS will conduct security investigations in
accordance with guidelines, standards and direction provided
by the Solicitor General.
The first principle clearly affirmed CSIS primacy in the field of security intelligence:
the RCMP would rely on CSIS for intelligence relevant to national security
offences. Another principle directed the RCMP to pass to CSIS information
relevant to its mandate.858 In effect, CSIS was intended to be a repository of
intelligence information, with the RCMP stripped of any mandate to undertake
security intelligence analysis. However, Minister Kaplan anticipated the need
for close liaison between CSIS and the RCMP to ensure that national security
measures were dealt with effectively and efficiently. The Ministerial Directive
authorized the RCMP Commissioner to establish a dedicated liaison unit to
facilitate information sharing.
In some ways, the Ministerial Directive859 illustrates the intention for a twoway information flow between CSIS and other agencies, including the RCMP,
envisioned by the CSIS Act. Yet, the CSIS Act, the MOU and the Kaplan directive
all also emphasize maintaining separation between the law enforcement
and security intelligence functions of the RCMP and CSIS. According to Wark,
857 Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1468-1469.
858 Exhibit P-101 CAF0030, pp. 9-10. See the related document focusing on the RCMP role in security
investigations at Exhibit P-101 CAA0081.
859 Exhibit P-101 CAF0030.
�Chapter III: What Went Wrong?
intelligence failures have been identified as inevitable consequences of
maintaining such separation.
The major weakness, in retrospect, of the 1984 MOU and the
Kaplan directive was in its emphasis on a linear, one-way
flow of intelligence from CSIS to the RCMP. Not only was CSIS
distinguished by way of its monopoly on threat assessments
and security intelligence, it was also assumed that the
RCMP would have relatively little to contribute of a security
intelligence nature from its own sources and knowledge …. [I]
n [the government’s] desire to separate out intelligence from
law enforcement, it created a system that was overly rigid, that
made sense in theory, but wasn’t going to make sense at the
end of the day, in practice. It took us a long time, I think, to
recognize the practical deficiencies of this theory, because we
were wedded to the theory – the theory itself.860
The Government of Canada had established a siloed intelligence system.861
The focus was on ensuring that the mandates and roles of CSIS and the RCMP
remained distinct and separate, in response to the recommendations of the
McDonald Commission. The policies called for cooperation, but failed to provide
the operational bridges to ensure efficient and effective cooperation between
these “siloed” agencies.862
Interagency Relations
Tensions often arose between the RCMP and the new intelligence agency
during the years following the creation of CSIS. The agencies became involved
in a number of long-running disputes over their mandates in the national
security field, which led to reluctance to share intelligence, both prior to the Air
India bombing and in its aftermath. The results were detrimental to the security
interests of Canada.
At the senior level, there were debates on matters of principle. The RCMP
perceived the “national enforcement” duties granted in the Security Offences
Act as powers that would require it to develop new intelligence collection
capabilities to support its investigations into national security offences. CSIS
expressed concern that RCMP intelligence-gathering activities infringed on its
mandate. The RCMP vigorously disagreed.863 The RCMP Deputy Commissioner
of Operations and the CSIS Director General of Foreign Liaison are recorded
as having a “…rather stark divergence of opinion” about the appropriate roles
for the two agencies in national security investigations, and about the RCMP’s
860
861
862
863
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1469-1470, 1475.
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1486.
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1486-1487.
See, for example, Exhibit P-101 CAA0444, CAA0531, p. 1, CAC0029, pp. 1-2. See also Testimony of Henry
Jensen, vol. 44, June 18, 2007, p. 5424.
393
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intention to develop what CSIS saw as a parallel investigative capability.864
Deputy Commissioner Henry Jensen thought the CSIS concerns were slightly
paranoid, and ultimately motivated by a fear that the RCMP might target CSIS
sources, reveal their identity or expose them to prosecution.865 High-level
correspondence passed between the agencies on this issue, with the Security
Intelligence Review Committee (SIRC) and the Solicitor General being informed
and participating.866
The RCMP concern was that it was not receiving the information it needed
from CSIS. Section 19 of the CSIS Act provided that “…the Service may disclose
information” to police, where the information could be used for “investigation
or prosecution” of offences.867 The MOU about the transfer and sharing of
information between CSIS and the RCMP provided that “CSIS shall provide …to
the RCMP as it becomes known/available” information relevant to a number of
RCMP responsibilities, including the investigation of criminal offences relating
to national security.868 The RCMP interpreted the MOU as making CSIS disclosure
mandatory, despite the discretion conferred by the CSIS Act.869 CSIS disagreed
and interpreted section 19 as permitting CSIS to disclose, but leaving the final
discretion in the hands of the CSIS Director.870 The discrepancy between the
MOU and the CSIS Act “…prompted operational confusion between the two
agencies on the obligation or discretion to share information,”871 and left a
dysfunctional system, one more susceptible to fail in the war on terror.
Debate arose because of the RCMP view, supported by a Cabinet decision, that
it was to play the role of an intermediary between CSIS and local police forces for
the purposes of passing on national security intelligence.872 CSIS rejected this
view because the Service feared that unless information could be exchanged
directly with local and provincial forces, the police agencies might hold back
important intelligence in the belief that CSIS was not being cooperative.873 CSIS
wanted to continue its direct and sustained exchanges of information with
local and provincial police forces,874 while the RCMP feared that such exchanges
would cut them out of the information loop and perhaps lead to local forces
acting unilaterally on the basis of CSIS information.875 The result was yet more
debate876 and high-level exchanges of correspondence,877 including RCMP
complaints that CSIS information transfers to local forces violated RCMP/CSIS
864
865
866
867
868
869
870
871
872
873
874
875
876
877
Exhibit P-101 CAA0293.
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5434-5435, 5453.
Exhibit P-101 CAA0474, CAC0029, CAC0030.
CSIS Act, S.C. 1984, c. 21, s. 19 (R.S.C. 1985, c-23, s. 19) [Emphasis added].
Exhibit P-101 CAA0076; Exhibit P-105, Tab 2 [Emphasis added].
Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1651, 1654-1656, 1676-1677.
See Section 4.0 (Post-bombing), The Evolution of the CSIS/RCMP Memoranda of Understanding.
Final Submissions of the Attorney General of Canada, Vol. I, para. 61.
Exhibit P-101 CAA0081, p. 3. See also Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5400-5401
and Exhibit P-101 CAA0039(i), p. 14, CAA0162, p. 1, CAB0189.
Exhibit P-101 CAA0154(i), p. 3; Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5398-5399.
Exhibit P-101 CAA0154(i), p. 3, CAA0162.
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5399, 5403.
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5400-5401. See Exhibit P-101 CAA0237 and
CAB0442, mentioning “interminable discussions leading merely nowhere.”
Exhibit P-101 CAA0131, CAA0277, CAB0169.
�Chapter III: What Went Wrong?
agreements.878 At times, the RCMP even opposed CSIS participation in Joint
Forces Operations, proposing instead that the RCMP act as an intermediary.879
There were tensions in the field as well. Sgt. Wayne Douglas, the Head of the NCIS
Terrorist/Extremist group at E Division, testified that while there may have been
some restrictions on the movement of information between criminal operations
and the Security Service section of the Force prior to the creation of CSIS, the
relationship was a very good one and there was a “…free flow of information.”
Members could go to the Security Service building anytime, sit down to have
an “informal chat” and move freely around the building – they were “…part of
the family”. After the creation of CSIS, however, requests for information had to
be made formally through the CSIS liaison. It took an unacceptable amount of
time to obtain the information, and then some of it would usually be “blacked
out”. Douglas explained that some RCMP members experienced “frustration”, or
felt “affronted”, when CSIS said it was unable to provide certain information to
the RCMP.880
Vancouver Police Department (VPD) members of the Vancouver Integrated
Intelligence Unit (VIIU), to which E Division NCIS was attached, noticed that
relations between CSIS and the RCMP appeared strained. Former VIIU member
Supt. Axel Hovbrender testified that there was a “…fundamental shift in attitude”
after the Security Service went over to CSIS. This new tension in RCMP/CSIS
relations impacted on the interagency sharing of intelligence and information
in the course of everyday operations in the Division.881 VPD members of the VIIU
felt that CSIS investigators often used them as a conduit to pass information to
the RCMP, because strained relations between CSIS and the RCMP made it more
difficult to transmit the information directly.882
Access to CPIC
CSIS access to the Canadian Police Information Computer (CPIC) became the
subject of acrimonious debate in the years following the creation of the new
agency,883 and led to comment in at least three annual reports from the Security
Intelligence Review Committee (SIRC).884
878 Exhibit P-101 CAB0189. Ultimately, CSIS took the position that where the RCMP claimed jurisdiction or
the Minister established that an investigation was covered by the Security Offences Act, CSIS
information would be forwarded exclusively to the RCMP, except where a Joint Forces Operation (JFO)
was in place, in which case it would be forwarded to all participants simultaneously. In all other
cases, all information would continue to be passed to the RCMP pursuant to the MOU, but CSIS could
also, at its discretion, pass information directly to local forces without using the RCMP as an
intermediary: See Exhibit P-101 CAA0054(i), CAA0162, pp. 6-7, CAA0237, pp. 1-2 and CAA0277, p. 1.
879 Exhibit P-101 CAA0162, p. 5.
880 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4036-4037, 4111-4112.
881 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3875, 3917-3918.
882 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3875, 3917.
883 Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1645.
884 Exhibit P-143: Security Intelligence Review Committee Annual Report 1984-85 [SIRC 1984-85 Anuual
Report], p. 13; Exhibit P-144: SIRC 1985-86 Annual Report, pp. 22-23; Exhibit P-145: Security Intelligence
Review Committee Annual Report 1986-1987, pp. 14-15 [SIRC 1986-87 Annual Report].
395
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CPIC, a computerized, radio-linked network available to police officers across
Canada, provided instant access to a wide range of information about individuals,
including criminal records, police records, missing persons, stolen property,
outstanding warrants, vehicle registration and driver’s licence information.885
CPIC made it possible for investigators interested in a particular target, or
“person of interest”, to be notified any time a police officer, who encountered
that person anywhere in the country, queried the name.886 As peace officers,
RCMP Security Service members had full access to CPIC and its data banks in
furtherance of their security intelligence probes.887
When CSIS was created, the CPIC access, formerly available to Security Service
members directly through their own terminals, ceased.888 The reason given was
that once Security Service personnel went over to CSIS, they became civilians,
not peace officers, and no longer qualified for access.889
SIRC believed that direct access to CPIC was essential for CSIS personnel to
carry out their functions,890 stating that immediate access to vehicle registration
information was invaluable in identifying surveillance targets.891 Without CPIC
access, CSIS personnel “…in hot pursuit of a suspected terrorist” could not obtain
needed information; at the same time, police officers throughout Canada could
use the CPIC terminals in their vehicles for the most trivial purposes, such as
enforcing anti-loitering bylaws.892 Bill Turner of CSIS also explained that it was
important to obtain criminal records information about persons CSIS intended
to approach to ensure that they had no history of violence so CSIS investigators
did not get into a violent situation.893
SIRC rejected the “peace officer” rationale for denying CSIS access to CPIC as “nitpicking”– if there was no problem in CPIC access for Security Service members,
there should be no problem in access for CSIS investigators doing exactly the
same job.894
Though access to CPIC was governed by the CPIC Advisory Committee, a board
of representatives from provincial, municipal and regional police forces,895 SIRC
885 Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1645-1647; Exhibit P-144: SIRC 1985-86 Annual
Report, p. 22; Exhibit P-145: SIRC 1986-87 Annual Report, p. 14.
886 Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1646. This could be done as a “silent hit”, without
notification to the officer making the encounter, who could be contacted at a later date to gather
additional information or intelligence.
887 Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1646-1647; Testimony of Henry Jensen, vol. 44,
June 18, 2007, p. 5381.
888 Exhibit P-143: SIRC 1984-85 Annual Report, p. 13.
889 Exhibit P-145: SIRC 1986-87 Annual Report, p. 14; Testimony of Henry Jensen, vol. 18, March 7, 2007, pp.
1645, 1648; Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5381.
890 Exhibit P-143: SIRC 1984-85 Annual Report, p. 13; Exhibit P-144: SIRC 1985-86 Annual Report, p. 22;
Exhibit P-145: SIRC 1986-87 Annual Report, p. 14.
891 Exhibit P-145: SIRC 1986-87 Annual Report, p. 14.
892 Exhibit P-145: SIRC 1986-87 Annual Report, p. 15.
893 Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8280-8282.
894 Exhibit P-145: SIRC 1986-87 Annual Report, pp. 14-15.
895 Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1645-1646; Testimony of Henry Jensen, vol. 44,
June 18, 2007, p. 5381.
�Chapter III: What Went Wrong?
was of the view that it was the RCMP that was responsible for the reluctance
to grant direct access to CPIC.896 In its 1986-87 Annual Report, SIRC cited
the difficulty in gaining access to CPIC as an example of agencies “…giving
priority … to parochial turf concerns”, again pointing the finger at the RCMP.897
Accurate or not, such allegations illustrate the level of interagency tension in
the relationship at the time.
As head of Law Enforcement Services, Jensen was mandated at the time with
addressing the CPIC issue on behalf of the RCMP. He testified that the RCMP
was not motivated by any “turf war” concerns898 and denied that the Force had
ever objected to direct CPIC access for CSIS.899 He pointed to objections from
municipal and provincial police forces as the cause for denying CPIC access
to CSIS.900 Jensen explained that the RCMP did not have a majority of votes
at the CPIC Committee, and was unable to win the support of local forces for
RCMP proposals to grant CSIS access. He stated that these proposals were
presented and rejected many times at annual CPIC Committee meetings.901 He
explained that, despite extraordinary steps by RCMP in support of CSIS access
(including obtaining a director position with the Canadian Association of Chiefs
of Police (CACP) for purposes of lobbying in favour of the proposal), it was not
until approximately four or five years after the creation of CSIS that the RCMP
proposal finally carried the majority on the issue.902
The full record about this matter is somewhat less straightforward. The RCMP’s
initial position was to support limited CSIS access to CPIC, confined to motor
vehicle information.903 The Force approached the CPIC Committee with this
proposal in September 1985904 and began to make arrangements for the
installation of terminals, anticipated for August 1986, once consent from the
provinces had been obtained. In 1986, the RCMP also agreed, after considering
the matter for some time, to raise the broader issue of CSIS access to criminal
records data at the next CPIC Advisory Committee meeting.905 Meanwhile,
however, SIRC entered the debate with strongly worded comments in its 1985896 SIRC wrote that the RCMP was a “major participant” in the CPIC Committee which continued to deny
direct CPIC access to CSIS: Exhibit P-144: SIRC 1985-86 Annual Report, p. 22.
897 Exhibit P-145: SIRC 1986-87 Annual Report, p. 15.
898 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5380-5381, 5452-5453.
899 Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1650. The RCMP was, on the contrary, “…anxious
for CSIS to have direct access” to CPIC: Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5393.
900 Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1648-1659. The issues included provincial
concerns about making driver’s licence and vehicle registration information available without the
assurance that it would only be used for legitimate law enforcement purposes.
901 Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1645-1646; Testimony of Henry Jensen, vol. 44,
June 18, 2007, pp. 5392-5393. See also Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5469,
indicating that the RCMP had made attempts to convince the CPIC Committee to grant access to
CSIS since 1984.
902 Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1671-1672; Testimony of Henry Jensen, vol. 44,
June 18, 2007, pp. 5393-5394, 5469.
903 This was after RCMP Identification Services and the CPIC Advisory Secretariat had recommended in
July 1985 that the RCMP Commissioner support CSIS’s approach for access to RCMP criminal history
and motor vehicle databases: Exhibit P-101 CAD0035, p. 3.
904 Exhibit P-101 CAA0398, CAD0035, p. 3.
905 Exhibit P-101 CAA0398, CAA0474, pp. 11-12.
397
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86 Report.906 In response, the RCMP Commissioner wrote to the Solicitor General
with a list of factors militating against more general direct access for CSIS. The
letter pointed out that, because they were not peace officers, CSIS personnel
would not have the necessary powers to fulfill the requirement that CPIC
information be verified prior to its use. Unlike peace officers, CSIS personnel had
no authority to fingerprint suspects, to stop vehicles to check their occupants
or to conduct interviews in the course of criminal investigations as means of
verification. Also mentioned was the fact that other police agencies provided
access to criminal records information for law enforcement and administration
of justice purposes only.907 Since they were not peace officers, CSIS personnel
had no mandate in either area.
When SIRC learned during its 1985-86 review that CSIS still did not have
direct access to CPIC, it recommended that the Solicitor General intervene
personally.908 As a result, the Solicitor General wrote to the RCMP Commissioner
in August 1986.909 He directed the RCMP to present and support a request to
the CPIC Advisory Committee for CSIS to have access to all CPIC databases for
the purposes of counterterrorism investigations, an initiative he described as
having been agreed upon between CSIS and the RCMP.910 As a result of this
Solicitor General directive, Jensen was instructed to gain the support of the
CPIC Committee, and he ultimately took steps to get involved with the CACP
and shepherd through the CSIS request for CPIC access.911
Nevertheless, the following year, SIRC was still describing CSIS access to CPIC as
“woefully inadequate”, since general access was limited to vehicle registration
databanks with only counterterrorism-related access being provided to other
databanks.912 The Review Committee also noted that, as of the end of the
1986-87 review period, the RCMP had only provided four of the long-awaited
CPIC terminals913 to CSIS and had still not made a terminal available at CSIS
Headquarters. According to SIRC, there was “no doubt” that the delay reflected
a “…continued reluctance to treat CSIS as an equal partner” on the part of the
RCMP.914 Whether accurate or not, the very fact of those allegations is indicative
of the difficulties in interagency relations at the time.
Conditions for RCMP Assistance to CSIS
Due to the lack of resources and the lack of proper advance planning when CSIS
was created, the new agency needed access, during its early years, to an array of
906 SIRC implied that the RCMP was responsible for the refusal to provide access to CSIS and was
purposefully delaying the installation of computer terminals for CSIS: Exhibit P-144: SIRC 1985-86
Annual Report, pp. 22-23.
907 Exhibit P-101 CAA0474, pp. 11-12.
908 Exhibit P-144: SIRC 1985-86 Annual Report, p. 22.
909 Exhibit P-101 CAC0031. The Solicitor General indicated that the SIRC 1985-86 Annual Report would
require a response from him in Parliament.
910 Exhibit P-101 CAC0031.
911 Exhibit P-101 CAC0032, p. 2; Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5395.
912 Exhibit P-145: SIRC 1986-87 Annual Report, pp. 14-15.
913 Exhibit P-144: SIRC 1985-86 Annual Report, p. 22.
914 Exhibit P-145: SIRC 1986-87 Annual Report, p. 15.
�Chapter III: What Went Wrong?
services and facilities available only through the RCMP.915 These CSIS needs, and
the way the RCMP sometimes responded to them, became an additional source
of tension between the agencies.
Before CSIS was granted direct access to CPIC, the RCMP provided indirect
access, as well as access to criminal records information from its operational
files.916 Pursuant to an agreement between the agencies, the RCMP would
provide CSIS with CPIC and RCMP records information upon request.917 Initially,
neither CPIC printouts nor copies of criminal records, including the photographs
they contained, were to be provided.918 This decision was modified within a
short time, with the RCMP concluding, on further review, that copies could be
provided.919
As a condition for providing access to the CPIC and RCMP records information,
the RCMP sometimes imposed reporting and record-keeping requirements that
were too onerous under the circumstances. The Force asked that its members
verify the purpose of the CSIS requests. The information was to be provided
only “…for investigation purposes consistent with that Service’s mandated
responsibilities pursuant to the CSIS Act”.920 Access was to be granted only to
CPIC information “…that [CSIS] legitimately required to perform their [sic]
responsibilities”.921 Access was to be determined on a case-by-case and “need-toknow” basis.922 RCMP detachments were instructed to provide CPIC assistance
to CSIS “…when they were satisfied it was a legitimate request”. Because of this
requirement, CSIS was asked to provide information showing that its requests
were made for “business purposes” and were “within their mandate”.923 The
RCMP then kept central records of the assistance provided to CSIS and logs of
the CSIS CPIC requests.924 Initially, CSIS was asked to provide an indication of the
purpose of its CPIC requests,925 but this requirement was soon abandoned.926
Instead, it was decided that the RCMP would log each CSIS request, noting the
name of the CSIS member making the request, the CSIS file number, if available,
915 See Section 3.3.1 (Pre-bombing), The Infancy of CSIS.
916 Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1648; Testimony of Henry Jensen, vol. 44, June
18, 2007, pp. 5381-5382. See also Exhibit P-143: SIRC 1984-85 Annual Report, p. 13; Exhibit
P-144: SIRC 1985-86 Annual Report, p. 22; Exhibit P-145: SIRC 1986-87 Annual Report, p. 15.
917 Exhibit P-101 CAA0039(i), p. 26, CAC0018, p. 1; Testimony of Henry Jensen, vol. 44, June 18, 2007, p.
5382. The interagency agreement did not involve the CPIC Advisory Committee: Testimony of
Henry Jensen, vol. 44, June 18, 2007, p. 5383.
918 Exhibit P-101 CAC0018, pp. 1-2; Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5383-5384.
Criminal records were not contained on CPIC per se, but a reference to their existence and nature was
included and other avenues then had to be pursued to obtain the actual records.
919 Exhibit P-101 CAC0022, CAC0026(i), p. 1. According to Jensen, this review resulted from the RCMP’s
attempt to be helpful to CSIS and to find a justification to make the access possible, following
consultation with legal services: Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5384-5387.
920 Exhibit P-101 CAA0039(i), pp. 24-25.
921 Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1648.
922 Exhibit P-101 CAA0039(i), p. 26, CAC0018, p. 1.
923 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5382.
924 Exhibit P-101 CAA0039(i), pp. 24, 28.
925 Exhibit P-101 CAC0027.
926 CSIS regions stopped including this information as of October 1984, though some RCMP members
objected: Exhibit P-101 CAC0027. The requirement was not included in the CSIS telex detailing the
procedure to follow for CPIC requests: Exhibit P-101 CAC0026(i), p. 1.
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and whether the result of the query was negative or positive.927 The log was
then provided to the CSIS regional director on a monthly basis for him to
audit the requests in order to ensure that they were made for legitimate CSIS
responsibilities.928 The RCMP retained copies of the forms it had CSIS fill out to
request CPIC and RCMP criminal records information as well as a record of the
information it released to CSIS.929
These RCMP requirements were problematic for CSIS in light of the highly
classified nature of its operations.930 The RCMP D Division Commanding
Officer expressed doubt that “CSIS will be particularly willing to give us much
information to identify their case files” and noted that, in any event, he was “…
not sure how we will know when the requested information relates to their
mandated responsibilities”.931 CSIS directed its employees, early on, to refrain
from including any operational file numbers on the RCMP request forms, since
the forms would be retained by the Force.932 According to Jensen, recording
information about the CSIS queries was necessary for audit purposes, to
ensure that the integrity of the CPIC system was protected and that no Privacy
Act violations were committed.933 The RCMP policed the requests of its own
members through a tracking system that could identify requestors, who could
then be held accountable if subsequent audit revealed that improper queries
were made.934 Requesting the information from CSIS was to serve the same
purpose.935
SIRC weighed in on this issue as well. Its 1986-87 Report states that the RCMP
system for providing indirect CPIC access to CSIS fostered “…an unwarranted
notion that CSIS is a junior partner to the RCMP,” and that it created unnecessary
delay for CSIS to obtain the information.936 As Turner testified, the requirement
to fill out a form and wait for the RCMP to provide CPIC information prevented
CSIS from “…seiz[ing] the opportunity” to approach individuals of interest
immediately, as the Service had to wait to obtain a response to its queries.937
In subsequent years, CSIS learned that the RCMP had used its records of CSIS
requests for access to CPIC for purposes other than auditing. Turner, who
learned about this when he was given access to a Crown database during the
preparation for the trial of Malik and Bagri,938 explained in testimony:
927
928
929
930
931
932
933
934
935
936
Exhibit P-101 CAA0039(i), pp. 28-29, CAC0018, p. 1.
Exhibit P-101 CAA0039(i), pp. 28-29, CAC0018, p. 1.
Exhibit P-101 CAA0039(i), p. 27, CAC0026(i), p. 2.
Exhibit P-101 CAC0018, p. 1.
Exhibit P-101 CAC0016, p. 1.
Exhibit P-101 CAC0026(i), p. 2.
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5383, 5470.
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5382-5383, 5470.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5470.
Exhibit P-145: SIRC 1986-87 Annual Report, p. 15. Jensen also recognized that the system probably
required more time for CSIS to complete its work: Testimony of Henry Jensen, vol. 44, June 18, 2007, p.
5387.
937 Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8280-8281.
938 Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8282-8283.
�Chapter III: What Went Wrong?
…we found out later they had an operation called Operation
Backtrack, I think it was called.
…
Well, what it entailed is, they would take our CPIC checks
and go out and use them as investigative leads. And in the
1980s there was a number of incidents which were somewhat
suspicious in that, we would be doing surveillance on a vehicle
and then decide to go and approach that person and find out
the RCMP had been there a day or two before us.939
In connection with its Air India investigation, the RCMP used the records of
CSIS CPIC requests to conduct a search of the CSIS queries from early 1985.
The names of the individuals queried were then carded by the RCMP, although
no further action appears to have been taken.940 The very possibility that the
RCMP could use its records to obtain information about CSIS operations would
understandably have given CSIS pause before it requested the CPIC information
it needed from the RCMP. As Turner explained, it “…created an atmosphere of
suspicion.”941 Former CSIS investigator Laurie testified that he often refrained
from including the names of potential sources on the lists sent to the RCMP
for CPIC and operational records checks, since he had in the past encountered
circumstances where the RCMP used the information on the CSIS lists to
approach potential CSIS sources, and this then made the CSIS approach more
difficult.942
The RCMP also requested and recorded information about CSIS warrants for the
interception of private communications (section 21 warrants) in order for the
Force to provide operational assistance in executing the warrants. The RCMP
had agreed to provide operational assistance when CSIS was created, but on
the condition that RCMP members would be able to view the CSIS warrant in
advance and maintain a record of all cases where assistance was rendered.943
This record contained information about the CSIS warrant, the CSIS operative
involved, the type of assistance rendered and even the type of investigation
being conducted by CSIS in connection with the warrant.944 The information
was used to enable the RCMP to understand the degree and level of support
provided to CSIS and to evaluate the need for resources accordingly.945
939
940
941
942
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8281.
Exhibit P-101 CAF0343(i), p. 79.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8281-8282.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7400-7402. Laurie explained that in cases
where the RCMP approached a potential source before CSIS, the source might be more reluctant
to speak with CSIS if the source was afraid of police. In cases where the RCMP approached a potential
source shortly after CSIS, the source might cease to cooperate out of fear that CSIS might provide
information about the source to the police.
943 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5374-5376; Exhibit P-192, paras. 1-3.
944 Exhibit P-192, paras. 3-4.
945 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5376-5377.
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Jensen explained that it was necessary for the RCMP to view the CSIS warrant,
prior to providing assistance, to ensure that RCMP members operated legally
and could be held accountable. He did, however, add that recording information
about CSIS investigations was also seen by the RCMP as a means to gain a better
understanding of CSIS operations and to avoid conflicts if possible.946 However
laudable the motive, requiring the new agency to provide sensitive information
in exchange for needed assistance would almost certainly create an atmosphere
of suspicion and hostility – one hardly conducive to efficient cooperation.
Conclusion
Interagency tensions affected the free flow of information between CSIS and
the RCMP during the pre-bombing period. Some of the formal informationsharing mechanisms put in place only created more debate because of their
rigidity and their intrusiveness into CSIS investigations. The system put in place
by government, overly focused on the separation of mandates, was less than
ideal to encourage close cooperation between the agencies. At times, rather
than make the best out of a bad situation, the agencies appear to have made the
situation even worse by adhering to inflexible positions in increasingly frequent
debates and conflicts.
3.5.2 CSIS Failures in Sharing with RCMP
Introduction
While CSIS often passed information to the RCMP, particularly in the threat
assessments it provided the Protective Policing Directorate (P Directorate),
not all information was shared. At times, CSIS limited information-sharing for
reasons of secrecy and to avoid “redundancy” in its TA product. In other cases,
CSIS failed to include in its TAs background information it had in its possession
that would have better allowed the RCMP to interpret the information being
provided. In the month preceding the Air India bombing, CSIS failed to include
crucial information in the threat assessments it provided to the RCMP.
Vague, Secretive or Incomplete Assessments
CSIS TAs tended to be concise and general. They would directly address the
particular threat that triggered the TA request, but often failed to include
background information that could assist in “connecting the dots”. The
conclusions CSIS reached about the level of the threat were not expressed in
terms that were meaningful to recipient agencies. Advice that the threat level
was high, medium or low provided little assistance to the RCMP in tailoring an
appropriate response to the threat.947
At times, information about the potential target of the threat (for example
Air India or an Indian mission, as opposed to “Indian interests in Canada”), its
946 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5377-5378, 5380.
947 See Section 3.3.6 (Pre-bombing), Lack of Meaningful Threat Assessments.
�Chapter III: What Went Wrong?
potential nature (for example hijacking or bombing) or its potential authors (for
example the names of Sikh extremists under investigation such as Parmar) was
simply missing from CSIS threat assessments.948 At other times, information was
deliberately omitted because of secrecy or “efficiency” concerns.
Similar to the practice with internal CSIS communications, sensitive information
received from foreign sources might not be included in CSIS’s threat assessments.
Often, allied agencies placed caveats on the use of their information, requiring
consent before CSIS could distribute the information to other agencies. The CSIS
threat assessment product was intended for general distribution among partner
agencies, and thus CSIS would not include this sensitive information. From CSIS’s
perspective, omitting the information was certainly less cumbersome than
attempting to request consent for its distribution. However, from the perspective
of the requesting agencies that were deprived of information, this was far from
ideal. The RCMP, in particular, was in charge of implementing security measures
in response to potential threats, and therefore needed as much precise and
detailed information as possible.949
Further, in disseminating its threat assessments, CSIS did not necessarily include
the information received from the requesting agency. John Henry, Head of the
CSIS Threat Assessment Unit (TAU), who was responsible for the transmission
of threat assessments between the RCMP and CSIS, explained that it would be
redundant or lead to circular reporting to repeat the underlying information
in the assessment.950 That being said, the fact remains that the source of the
underlying information could have been identified to avoid circular reporting.
Instead, the practice adopted resulted in assessments that provided only a
partial picture of the threat situation, and assumed that the TA consumer would
be aware from other sources of the underlying information which had been
omitted.
Crucial Information Missing in CSIS Threat Assessments
During the critical month of June 1985, CSIS issued more comprehensive TAs on
the Sikh extremist threat in Canada. However, even these TAs failed to include
mention of critical information that was in CSIS’s possession.
The Duncan Blast surveillance information, which indicated that Parmar and
Reyat were conducting suspicious experiments in the woods (at the time
mistakenly believed to involve the firing of a weapon), while provided to the
RCMP at the local level, was never included in a CSIS threat assessment.951 As
a result, RCMP Protective Policing was deprived of the benefit of CSIS’s analysis
of the reliability of this information and of its impact on the overall threat level.
Because the RCMP also failed to report the information internally, P Directorate
was, in fact, not even advised of its existence.
948
949
950
951
See Section 3.3.6 (Pre-bombing), Lack of Meaningful Threat Assessments.
See Section 3.3.6 (Pre-bombing), Lack of Meaningful Threat Assessments.
Testimony of John Henry, vol. 25, May 8, 2007, p. 2522.
See Section 1.4 (Pre-bombing), Duncan Blast.
403
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Information about a highly dangerous Sikh extremist possibly conducting
experiments with weapons, shortly before the Golden Temple attack anniversary
and the Gandhi visit to the US, undoubtedly would have been relevant to the
assessment of the security measures necessary to protect Indian diplomats.
RCMP P Directorate was entitled to expect that the CSIS TAU would provide
this type of highly relevant information, along with its assessment of the
threat, at the earliest opportunity. Whether CSIS’s failure to do so resulted from
an exaggerated focus on protecting the secrecy of its physical surveillance
operations,952 or whether it was the result of an analytical failure to recognize
the relevance of the information to the threat assessment process, it was a clear
failure on the Service’s part in its duty to keep the RCMP and other agencies
advised of important threat information.
Another failure occurred shortly before the bombing. On June 13, 1985,
CSIS received information from the Vancouver Police Department about the
comment made by Pushpinder Singh during the Khurana meeting, in response
to complaints about the lack of killings of Indian diplomats, that “…something
would be done in weeks.”953 CSIS waited four days before including this
information in a general threat assessment sent to the RCMP on June 18th. At
that time, CSIS reported the comment, but provided no information about the
identity of the Sikh extremist who authored it, nor about his leadership role in
the ISYF, a dangerous Sikh extremist organization, nor about his connections
with Parmar and the BK.954 CSIS also did not advise the RCMP of the date of the
Khurana meeting (June 12th), simply stating that it occurred “early in June.”955
This lack of detail made it impossible for the RCMP to determine the precise time
frame when this threat needed to be addressed, or to understand the seriousness
of the threat. The fact that the RCMP had access to the Khurana information
through other means cannot excuse CSIS’s failure to provide Protective Policing
with the information necessary to implement security measures in response to
this threat.
Conclusion
CSIS missed the opportunity to produce threat assessments that provided a
comprehensive description of the threat situation. In the interests of secrecy
and efficiency, CSIS failed to fulfill its role as a repository of threat information,
gathered across the government, on the basis of which one could draw critical
connections and conclusions.
3.5.3 RCMP Failures in Sharing with CSIS
Introduction
The RCMP often failed to share relevant information in its possession with
CSIS. Because of the prevailing tensions, information was sometimes passed
952
953
954
955
See Section 1.4 (Pre-bombing), Duncan Blast.
See Section 1.6 (Pre-bombing), Khurana Information.
See Section 1.6 (Pre-bombing), Khurana Information.
Exhibit P-101 CAB0321, p. 3.
�Chapter III: What Went Wrong?
indirectly between the agencies. This complicated internal dissemination and
analysis of the information received, and rendered the information exchanges
more inconsistent. RCMP sharing with the new intelligence agency was made
more difficult because the Force was unable to establish a workable liaison
process or to ensure that its members used the formal sharing mechanism it
attempted to implement.
The exchange of information with CSIS was often informal or ad hoc, and a great
deal of relevant information was never passed on because the RCMP was unable
to report it internally, or because its members were unable to understand the
importance of transmitting it to CSIS. As a result, the intelligence agency was
not provided with important threat information about Sikh extremism and,
specifically, about the threat of attacks against Air India.
Liaison Program and Informal Exchanges
After the creation of CSIS, the RCMP established a formal liaison program. The
newly-created divisional National Security Enforcement (NSE) units and HQ NSE
Section were designated to act as the points of contact with CSIS.956 The NSE units
were established for the purpose of collecting, coordinating and disseminating
national security criminal intelligence between the RCMP and CSIS.957 They were
to act as the conduit between CSIS and the RCMP to ensure that the transfer of
information, whether criminal or biographical data, flowed smoothly between
the two agencies. The NSE units also kept records of the information shared and
were thus the official channel for the transfer of information.958
It was expected that RCMP members would report security-related information
to NSE units for inclusion in the RCMP threat assessment process and for
communication to CSIS.959 However, the members received little guidance
about what information was to be shared with CSIS. They were instructed to
report any “security intelligence information” they came across to NSE for
eventual communication to CSIS,960 but were never told what was meant by the
term. The closest explanation of the CSIS mandate may have been in a draft
guideline which stated that the information sought by CSIS normally related
to a list of foreign countries,961 and that this type of information would most
likely be acquired by RCMP members having contact with or “knowledge of”
persons from the listed countries.962 The guideline stated that such contact
could occur through membership in an organization, or attendance at social
functions or academic classes by a national of a listed country, or by residing in
close proximity to such a national.963
956
957
958
959
960
961
962
963
Exhibit P-101 CAA0039(i), pp. 14, 50, CAC0286, pp. 2-3, CAF0824, p. 6.
Exhibit P-101 CAA0335, p. 7, CAC0286, pp. 2-3.
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5600.
See, generally, Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and
Process.
Exhibit P-101 CAA0039(i), pp. 31-32.
Exhibit P-101 CAA0039(i), pp. 30-31.
Exhibit P-101 CAA0039(i), pp. 30-31.
Exhibit P-101 CAA0039(i), pp. 30-31.
405
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Further, despite the establishment of the official liaison program, significant
information continued to be shared through informal channels, without flowing
through the NSE units. Sgt. Mike Roth, who was the head of the NSE Unit in E
Division, testified that this was a “sore point” for him. He explained that while
he was “…tasked to head up a liaison unit and to keep track of the information
that would go back and forth,” this system did not work in practice.964 Although
E Division NCIS member Sgt. Wayne Douglas felt that informal contacts and the
free flow of information were cut back because requests for information had
to be made through the CSIS liaison,965 individuals within CSIS and the RCMP
continued to rely on their informal contacts, and information continued to be
transferred without being routed through the liaison unit.966 The Duncan Blast
surveillance information was never provided by CSIS directly to the divisional
NSE member.967 Instead, it was transmitted to the Duncan Detachment968 and to
the VPD members of the VIIU.969
The limited success of the NSE Unit at E Division as a conduit for sharing
information between the two agencies was not unique. During an August 1985
Canada-wide special CSIS operational meeting, the participants found that there
were “…varying degrees of cooperation depending upon the region and the
RCMP section involved”, but unanimously agreed “…that the NSE liaison group
created by the RCMP to deal with CSIS was not a viable or effective means of
channelling intelligence/information to either the RCMP or CSIS”.970
Roth testified that he did not attempt to force CSIS or RCMP members to use his
unit as the route to exchange information, because he was “…more interested
in ensuring that the information would flow freely throughout the province,
between the RCMP and CSIS”.971 Having said that, Roth did recognize that a
particular piece of information could be valuable to the operations of multiple
RCMP units, and for that reason a central unit receiving and disseminating
the information was necessary.972 When the information was not transferred
through the formal liaison process, there was no mechanism to ensure that all
those who needed it received it.
When information was shared informally, the creation of written records and the
reporting of the information became entirely dependent on the individual officer
receiving the information. Information exchanged through informal channels
was often passed verbally with no records being prepared, with the result that
the information was often useful only to the individual member receiving it.
This had a negative impact on the RCMP’s ability to analyze its information
964
965
966
967
968
969
970
971
972
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5604.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4036-4037.
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5604.
Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5605-5606.
Exhibit P-101 CAA0193.
Exhibit P-101 CAA0196. See, generally, Section 1.4 (Pre-bombing), Duncan Blast.
Exhibit P-101 CAB0495.
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5604.
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5641.
�Chapter III: What Went Wrong?
centrally, and it prevented the Force from taking advantage of information
provided by CSIS to enrich its global knowledge base. In the context of the
Air India investigation, the RCMP undertook regular file reviews to assess prior
information in light of new developments and to find new leads. The absence of
records about the information that had been passed informally meant that, later,
analysts did not have access to a significant volume of potentially important
information. Further, because informal exchanges depend on personal working
relationships, the flow of information could vary when the individuals involved
changed.973
Failures to Share Information Relevant to the Threat of Sikh Extremism
Because of gaps in training about the threat assessment process, about the role
of CSIS and about the nature of the “security intelligence information” members
were expected to report,974 the RCMP was unable to provide CSIS with all the
information it needed, even when it was in RCMP possession. Having created
its own parallel threat assessment process, the RCMP considered its TA requests
to CSIS as requests for the Service’s information about a situation, to add to the
RCMP base of knowledge but not for the purpose of allowing CSIS to perform
the central analysis of all information. The RCMP (rather than CSIS) took it upon
itself to combine the information received from CSIS with the RCMP information
for a final threat assessment.975
Further, much of the information relevant to the threat of Sikh extremism was
never reported and never centrally processed at the RCMP.976 As a result, it
could not be provided to the liaison units and was not shared with CSIS. As an
example, the information received from Person 1 in September 1984 about the
November Plot to bomb an Air India aircraft was not reported to the NSE unit
and, hence, was not shared with CSIS.977
The RCMP had access to a great deal of information about threats to Air India
and received numerous threat warnings against the airline, in some cases
specifically referring to the threat of bombing.978 Often, this information was
not shared with CSIS. The information about threats to Air India received by the
973 VPD Detective McLean, for example, explained that he observed a decrease in VPD information sharing
with CSIS and the RCMP when the individuals involved in the investigation of Sikh extremism at CSIS
and VIIU during the pre-bombing period changed: Testimony of Don McLean, vol. 21, May 1, 2007, pp.
2029-2031.
974 Exhibit P-101 CAA0039(i), pp. 31-32; Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2724-2725.
About the lack of general training respecting the role of CSIS and the threat assessment process,
see Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
975 See, generally, Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and
Process.
976 See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
977 Information about the November Plot was first learned by E Division in September 1984: Exhibit P-120
(c), p. 1 (entry for Sept. 20, 1984: doc 526-3, p. 26), but was only reported to NCIB NSE on October
26th, when it was received by the VPD from another source: Exhibit P-120(c), p. 2 (entry for Oct. 26,
1984: doc 239-3). See Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2595.
978 See, for example, Exhibit P-101 CAC0517, p. 2, indicating that threat warnings were received prior to
each flight, and Exhibit P-101 CAA0185: the June 1st Telex.
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RCMP Protective Policing Directorate (P Directorate), which was responsible for
VIP Security and Airport Policing,979 was often not transmitted to NSE and hence
could not be shared through the formal liaison process.980
P Directorate did have its own, direct liaison with the CSIS Threat Assessment
Unit. However, the Protective Policing officers did not consistently share the
threat information they received with CSIS, even if they were the very individuals
who relied on CSIS threat assessments to carry out their own functions.
The Acting Officer in Charge at HQ Airport Policing indicated that he would
generally pass some threat information on to CSIS,981 but would not transmit
other information,982 either because he believed that CSIS already had the
information or because he otherwise saw “no need” to share it.983 In addition, any
information about threats to Air India received by RCMP Airport detachments,
but not reported to P Directorate at HQ, would obviously be unavailable to be
shared with CSIS.
In May 1985, RCMP Airport Policing, at least at the detachment level, received an
Air India telex warning about plans for violent activities by terrorists during the
first week of June 1985 and about the possibility that civil aviation “…in Punjab
and elsewhere” could be a target. It recommended particular vigilance with
respect to registered baggage and items such as transistors and cameras. This
extremely important telex does not appear to have been shared with CSIS.984
Information received in July 1984 that an individual had “…volunteered to carry
a bomb in his accompanied baggage with a view to blowing up an Air India
plane in order to draw attention to the demands of the Sikhs” was apparently
never reported to the HQ P Directorate, and hence was not shared with CSIS.985
October 1984 information that a statement was made during an All India Sikh
979 Air India generally liaised with RCMP Airport Policing officials at the airport level. Air India threats
were sometimes sent by local officials to the Airport Policing Branch at Headquarters, which
would seek a threat assessment from CSIS in response to this information. Information from the
Department of External Affairs was often shared at the Headquarters level, being passed by
DEA’s Office of Protocol to P Directorate personnel: See Section 4.4 (Pre-bombing), Failures in Sharing
of Information.
980 See the following documents, for which there is no record that the information was transmitted to
NSE: Exhibit P-101 CAA0185, CAC0293; Exhibit P-129; Testimony of Warren Sweeney, vol. 26,
May 9, 2007, p. 2732, explaining that NCIB did not receive the June 1st Telex. See, generally, Section 3.4
(Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
981 See, for example, the information in Exhibit P-101 CAA0084, CAC0129.
982 See, for example,the information in Exhibit P-101 CAA0045.
983 See Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2831-2832, explaining that some
information was shared and some was not, and p. 2865, explaining that he saw no need to share the
June 1st Telex. He also testified, however, that if he had received all the Air India threats that were
“…coming in at fast numbers and after about the third or fourth, I might be – ‘Well, let’s make sure that
they are getting it,’ and I would write them”: Testimony of J.B. MacDonald, vol. 27, May 14, 2007,
p. 2839. He did not recall this ever having occurred: Testimony of J.B. MacDonald, vol. 27, May 14, 2007,
pp. 2839-2840.
984 Exhibit P-101 CAA0161, CAA0164. A handwritten note on the cover letter to the telex, which was sent
from Air India to the OIC at Toronto’s Pearson Detachment, instructs the recipient to share the telex
with RCMP’s P Directorate, Airport Policing Branch, though there is no other record that it was, in
fact, sent or received by Headquarters. There is no indication that the information was provided
to CSIS.
985 Exhibit P-101 CAA0083, CAA0084.
�Chapter III: What Went Wrong?
Student Federation meeting that there would be “…one hijacking of an Indian
aircraft every month,” and that a committee involving Ajaib Singh Bagri had
been constituted to plan the hijackings, was also not reported.986 Fortunately,
CSIS was able to obtain this information from other sources,987 but this was in
spite of the system.
The most important failure to transmit threat information was the June 1st Telex
received by the RCMP from Air India. It will be recalled that this telex warned of
“…the likelihood of sabotage attempts being undertaken by Sikh extremists by
placing time/delay devised [sic] etc in the aircraft of registered baggage,” and
also mentioned plans to set up “…suicide squads who may attempt to blow up
an aircraft.”988 This information was received by the HQ Airport Policing Branch
on June 5th, 989 but it was not shared with NSE and hence could not be passed to
CSIS through this channel.990 As a result of the information in the June 1st Telex,
Airport Policing did seek a threat assessment from CSIS,991 but saw “no need” to
provide the telex, or the threat information it contained, to CSIS along with that
request.992 In its responding threat assessment, CSIS could only state that, while
the threat against all Indian interests was generally high, it was not aware of any
specific threat to Air India.993
The June 1st Telex was described by the former CSIS employees who testified
at this Inquiry as information that would have been important in their threat
assessment process.994 Like most retrospective analysis, threat assessments are
largely speculative, and the true impact of CSIS’s not having been informed of
the June 1st Telex and of other threat information can never be known.995 What
is clear, however, is that the failure of the RCMP to transmit such seemingly
crucial information to CSIS illustrates the gaps in the RCMP understanding of
the nature and value of the CSIS threat assessment process, and demonstrates
the depth of the RCMP failure to share information with CSIS.
Conclusion
The RCMP’s information sharing with CSIS during the pre-bombing period,
especially in connection with the threat assessment process, was not optimal.
Internal weaknesses in the RCMP’s ability to identify, report and disseminate
information, coupled with gaps in training about the threat assessment process
and about CSIS’s role, severely hampered the Force’s ability to share relevant
threat information, including important information about threats to Air India,
with CSIS.
986
987
988
989
990
991
992
993
994
995
Exhibit P-101 CAA0096, CAA0097.
Exhibit P-101 CAA0110, p. 3.
Exhibit P-101 CAA0185.
Exhibit P-101 CAA0208.
Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2732.
Exhibit P-101 CAA0198.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2813, 2865.
Exhibit P-101 CAA0199.
See Section 1.2 (Pre-bombing), June 1st Telex.
Final Submissions of the Attorney General of Canada, Vol. II, para. 191.
409
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Despite the formalized liaison process for information sharing with CSIS,
inconsistencies remained in the amount of information shared, the timing of
the exchanges, and the reporting of the information received. Informal channels
which could circumvent the inefficient liaison process carried with them the
price of information remaining inaccessible to the system as a whole.
3.5.4 RCMP Failures in Sharing with Local Forces
The Importance of Local Police Forces to the Threat Assessment Process
Police officers working with provincial or municipal police forces had the
capacity to contribute significantly to the RCMP’s pre-bombing assessment
and investigation of the threat of Sikh extremism. As readily acknowledged by
RCMP Deputy Commissioner Henry Jensen, the officers “closest to the ground”
were likely to have the most access to relevant information, and their notebooks
would generally contain “a wealth of intelligence.”996 As such, local police forces
were “very crucial elements” for the overall effectiveness of the new RCMP
threat assessment process as “…important sources of threat assessment related
information.”997 This was particularly true about Sikh extremism in Vancouver,
where local police had successfully used a community policing approach to
gain access to numerous sources in the Sikh community, from whom they had
been able to obtain a wealth of intelligence about Sikh extremist organizations
and individuals – information that was not accessible to the RCMP.
Unfortunately, the RCMP was unable to achieve sufficient integration with
local forces and to share information efficiently with them. As a result, the
RCMP was deprived of their valuable intelligence, especially in connection with
Sikh extremism. Acrimonious jurisdictional debates with local forces across
the country about the nature and extent of the new RCMP security offences
mandate, and the manner in which security intelligence could be shared,
caused tensions in the relationships that were likely to affect information flow.
In Vancouver, where relations were less strained, the RCMP was nevertheless
unable to take full advantage of the extensive knowledge of the Vancouver
Police Department (VPD), in spite of an attempt to create integrated structures
to facilitate sharing.
RCMP members often failed to appreciate the importance of keeping members
of local forces sufficiently informed and, at times, applied an overly rigid
approach to the handling of classified information. Provincial and municipal
police officers were not kept informed on a routine basis of the overall threat
information in the possession of the RCMP, even when that information was
directly relevant to the specific areas these forces were investigating. The result
was that their ability to recognize the significance of the information to which
they had access was impaired, as was their capacity to gather the intelligence,
and some information that could have been made readily available by local
forces was lost to the threat assessment process.
996 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5422.
997 Exhibit P-101 CAC0495, p. 3.
�Chapter III: What Went Wrong?
RCMP Security Offences Mandate and Relations with Local Forces
When CSIS was created, the Security Offences Act, which gave primacy to the
RCMP for criminal offences “…arising out of conduct constituting a threat to
the security of Canada” or targeting … “internationally protected person[s],” was
enacted as Part IV of the CSIS Act.998 As a result, the RCMP acquired jurisdiction
in an area traditionally reserved to provincial and municipal forces in locations
where they were the police of jurisdiction.999 Local forces had previously
expressed their opposition to the proposed expansion of RCMP jurisdiction,1000
and the Security Offences Act was initially not well accepted, creating tensions in
the relations between the RCMP and local forces.1001
Tensions increased in light of a Cabinet decision designating the RCMP as
the primary recipient of CSIS intelligence about security offences and as the
intermediary between CSIS and local forces.1002 The RCMP took the position
that this meant CSIS intelligence had to be sent first, and exclusively, to the
RCMP. The RCMP would then disseminate the information on an “…as deemed
necessary basis,”1003 and involve other police forces “…to the extent it should.”1004
To CSIS, the RCMP position was akin to a claim of “exclusive” jurisdiction, since
the RCMP reserved the sole discretion to decide what CSIS intelligence to pass
on to which law enforcement agencies, and when. Not surprisingly, local forces
representatives also took issue with the RCMP position, and generally wanted
to maintain direct and sustained contact with CSIS.1005 The local forces were
also concerned about the type of matters over which the RCMP intended to
exercise its new security offences primary jurisdiction, fearing that the RCMP
would attempt to get involved in purely local matters.1006 Initial meetings
about the topic were difficult.1007 The Ontario police forces favoured use of joint
forces operations (JFOs) to resolve issues of jurisdiction.1008 While the RCMP
also generally favoured the JFO approach,1009 it did have some reservations and
concerns about local police taking control of investigations and acting without
consulting the RCMP.1010 Similarly, while not opposed in principle, the RCMP
998 Exhibit P-107: Security Offences Act,ss. 57, 61. See also Testimony of Henry Jensen, vol. 44, June 18, 2007,
p. 5398.
999 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5398.
1000 Exhibit P-101 CAA0162, p. 4.
1001 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5398, 5401.
1002 Exhibit P-101 CAA0081, p. 3. See also Exhibit P-101 CAA0162, p. 1, CAA0237, p. 1, CAB0189, CAA0039(i),
p. 14; Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5400-5401.
1003 Exhibit P-101 CAA0154(i), p. 3.
1004 Exhibit P-101 CAB0189, p. 1.
1005 Exhibit P-101 CAA0162, pp. 2, 4.
1006 See, for example, Exhibit P-101 CAB0422, p. 3, where a perception among members of the Canadian
Association of Chiefs of Police that the RCMP would be investigating threats to provincial legislators
or municipal representatives was discussed.
1007 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5400-5401; Exhibit P-101 CAA0237, p. 1,
mentioning … “interminable discussions leading merely nowhere.”
1008 Exhibit P-101 CAB0422, p. 1.
1009 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5399, 5402.
1010 Exhibit P-101 CAA0154(i), p. 2; Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5403. The
draft RCMP Guideline only provided that the Force would “normally” conduct security investigations
in cooperation with local police and that this would be done as part of a formal JFO “under certain
circumstances”: Exhibit P-101 CAA0039(i), p. 12.
411
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was less enthusiastic than local forces were about direct CSIS participation in
JFOs,1011 sometimes preferring to act as an intermediary between the JFO and
CSIS.1012 In all cases, whether a JFO was formed or not, the RCMP intended
to exercise “…its primary responsibility for the investigation” where security
offences were involved.1013
Relations were particularly tense with the Ontario and Quebec provincial and
municipal police forces.1014 Conflict arose with respect to some of the joint
investigations being conducted. The Ottawa City Police (OCP) specifically
requested that CSIS intelligence relating to an investigation conducted by a joint
RCMP-OCP task force be passed on directly, at the same time as it was transferred
to the RCMP.1015 This proposal was met with strong opposition from the RCMP,
who argued that this made it impossible to coordinate the investigation.1016
The Ontario Provincial Police (OPP) also expressed concerns about joint forces
investigations relating to terrorism conducted with the RCMP O Division.
According to the OPP, the RCMP had demonstrated an “…unwillingness to share
intelligence with other police forces” and an “attitude” of “…taking over areas of
investigation,” and such issues had ultimately been resolved only through direct
contact with CSIS. In general, the OPP was “…unhappy with the RCMP approach”
in areas of mutual responsibility like security offences and terrorism.1017
RCMP Commissioner Robert Simmonds recognized that local forces would have
a “…very important and active role” to play if a terrorist incident occurred in their
jurisdiction, and that they would need CSIS information in order to perform their
functions.1018 Yet, the application of the rules surrounding the classification of
information, and the adherence to caveats, often prevented local forces from
receiving relevant information.1019 Because provincial and municipal police
officers “…for the most part [were] not security-cleared,” sometimes the RCMP
simply did not pass certain intelligence on to them.1020 The delays, and refusals
to provide that information, which arose as a result of information protection
concerns, made relations with provincial and municipal forces more difficult
for the RCMP, as they created the impression that the RCMP was purposefully
withholding information.1021 The constant jurisdictional debates as well as
1011
1012
1013
1014
1015
1016
1017
1018
1019
1020
Exhibit P-101 CAB0422, p. 3; Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5399, 5401-5402.
Exhibit P-101 CAA0162, p. 5.
Exhibit P-101 CAA0039(i), p. 12.
Exhibit P-101 CAA0162, p. 4; Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5405-5406.
Exhibit P-101 CAA0131.
Exhibit P-101 CAB0189; Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5403.
Exhibit P-101 CAB0422, pp. 1-3.
Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9333.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5399.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5399. As the security clearance process was
lengthy and difficult, local forces constables could not easily be security-cleared to a level sufficient to
allow them to receive information relevant to the investigations they could be involved in: See
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5404-5405. Further, when CSIS placed caveats
on the information it provided to the RCMP, CSIS consent had to be obtained by the RCMP prior to
passing on the information to local forces: Testimony of Henry Jensen, vol. 44, June 18, 2007, pp.
5399-5400.
1021 Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5400.
�Chapter III: What Went Wrong?
the local forces’ perception that the RCMP was reluctant to share and prone to
take an overly controlling approach, were unlikely to lead to the free flow of
information necessary to enable the RCMP to receive, assess and respond to all
the relevant threat information collected by local police officers.
Relations with the Vancouver Police Department
In British Columbia, where the Sikh extremism threat was prominent, RCMP
relations with local police were less tense. Since a spirit of cooperation generally
prevailed, CSIS information could be passed on to local forces directly without
attracting jurisdictional concerns or debates about RCMP primacy.1022 However,
even in Vancouver, the RCMP still had difficulty achieving complete and open
sharing of information and inclusive decision-making. While an attempt
was made to implement an integrated policing model, the actual sharing of
information was often insufficient.
Formal Liaison and Integrated Units
The RCMP and the Vancouver Police Department (VPD) were both involved in
the provincial Coordinated Law Enforcement Unit (CLEU), in charge of setting
priorities and coordinating law enforcement activities.1023 Direct liaison was also
maintained between the local force and the RCMP about protective policing
operations. The VPD Operational Auxiliary Section (OAS) and the RCMP E
Division VIP section were in regular contact to coordinate protective deployment
issues.1024
In terms of intelligence gathering, the VPD and the RCMP E Division NCIS both
participated in the Vancouver Integrated Intelligence Unit (VIIU).1025 In 198485, VIIU’s work was focussed mostly on organized crime and organized criminal
groups. A sub-component of VIIU, the terrorist/extremist unit, focussed on street
disorder and demonstrations and prepared threat assessments for VIP visits in
Vancouver.1026 That unit was also responsible for monitoring groups prone to
violence based on political motivations and “…groups or individuals that could
pose a threat to the community and to Canada at large.” The two members of
the Criminal Terrorist/Extremist Group of the RCMP E Division NCIS, who had
jurisdiction over the entire province of British Columbia, worked at the VIIU
terrorist/extremist unit alongside two members of the VPD.1027
1022 Exhibit P-101 CAA0162, p. 5.
1023 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3876-3877. In light of the province-wide
mandate of CLEU, the RCMP played a more significant role in operational decisions: Testimony of Axel
Hovbrender, vol. 33, May 24, 2007, p. 3877. The RCMP is the police of jurisdiction in the province
of British Columbia, except in municipalities such as Vancouver which have their own police force.
1024 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3901-3902.
1025 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3870, 3871; Testimony of Henry Jensen, vol.
44, June 18, 2007, p. 5423.
1026 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3870. For this purpose, VPD members of VIIU
maintained direct contact with the VPD protective unit (OAS): Testimony of Axel Hovbrender, vol.
33, May 24, 2007, pp. 3901-3902, 3925-3926.
1027 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4029, 4034; Testimony of Axel Hovbrender, vol.
33, May 24, 2007, pp. 3870, 3872.
413
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The terrorist/extremist unit of VIIU was not as integrated as it could have
been.1028 The RCMP and VPD members worked in parallel, with each agency
keeping its own separate filing system, reporting through its own separate
chain of command, and pursuing its own separate mandate. The RCMP and
VPD members did not conduct common operations or work together on
integrated files, but rather each organization usually conducted its own
independent investigations.1029 They generally did not share sources, task each
other with providing assistance, or coordinate their activities.1030 This lack of
integration resulted in lost opportunities in terms of intelligence gathering for
both agencies.1031 The consequences were particularly serious for the RCMP, in
terms of its ability to assess and respond to the threat of Sikh extremism prior
to the Air India bombing. The RCMP lost opportunities to benefit from the VPD
information and to share its own information to assist the VPD in gathering more
information. Since the VPD had developed a more extensive understanding
of Sikh extremism in British Columbia, and had access to more sources in the
community, the RCMP might have been in a better position to gather sufficient
information to prevent the bombing if it had taken advantage of the VPD’s
potential contribution to the fullest extent possible.
Investigation of Sikh Extremism in Vancouver
The VPD members of VIIU personally investigated Sikh extremism and also
received information gathered by other VPD units. The VPD had a special unit
called the Indo-Canadian Liaison Team (ICLT) which assisted the Vancouver IndoCanadian community with a wide range of issues. The ICLT’s functions included:
redirecting domestic violence matters to appropriate agencies; providing
security for elections at temples; dealing with disputes or issues which arose
in ashrams (Hindu temples) or gurdwaras (Sikh temples); and assisting VPD
detectives conducting investigations in the Indo-Canadian community. The ICLT
was also involved in addressing some of the community issues associated with
Sikh extremism, such as threats and intimidation. As a result of its community
policing approach, it was able to collect intelligence information about Sikh
extremists operating in the Lower Mainland of British Columbia.1032
During the period preceding the Air India bombing, ICLT members liaised with
temple and business leaders from the community, analyzed local media content
and essentially integrated themselves into the community. The ICLT spent a
great deal of time in the community, discussing current issues with community
members and familiarizing themselves with the language and traditions of
1028 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3920.
1029 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3871-3873; Testimony of Wayne Douglas, vol.
34, May 28, 2007, p. 4030.
1030 Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4033; Testimony of Axel Hovbrender, vol. 33,
May 24, 2007, pp. 3872-3873, 3877-3878. On occasion, the VPD members made specific requests for
information about Sikh communities located in areas outside of VPD jurisdiction, such as Surrey,
but they eventually established their own relations with the RCMP Detachments involved and
communicated with them directly: Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 38773878.
1031 Axel Hovbrender, who was a VPD member of VIIU between 1982 and 1986, indicated that in light of
the limited resources available, “…working together in a cooperative and collaborative way is always
a benefit”: Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3920.
1032 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1988-1989, 2021.
�Chapter III: What Went Wrong?
the community. They were able to gain the community’s trust and to become
accepted. VPD Cst. Don McLean explained in testimony that, eventually, ICLT
members could walk into any temple, at any time, in uniform, and speak to
anyone present without any problem. As a result of this relationship of trust, the
ICLT gained access to sources and informants in the community who provided
information about Sikh extremism.1033
The ICLT had access to sources among both moderates and extremists. McLean
explained that the view supporting the violent overthrow of the Government
of India was only held by a few individuals in the community, and that they
used threats and force to attempt to gain support for their position.1034 By
investigating numerous cases of threats, intimidation and assaults against
moderates in the Sikh community, and even bringing some cases to successful
prosecution, the ICLT continued to gain trust and received more information.1035
ICLT members could even task members of the Vancouver Sikh community
with developing sources in other communities in order to receive information
about prominent BC extremists when they travelled to other jurisdictions.1036
In this manner, ICLT member McLean was able to learn on June 27, 1985 that,
approximately two weeks before the Air India bombing, members of a Toronto
Sikh temple associated with the Babbar Khalsa were told not to fly Air India, as
it would be unsafe to do so.1037
The ICLT reported all of the intelligence information it received about Sikh
extremism to the VPD members of VIIU.1038 As a result of the information they
received, VPD members of VIIU became interested in the issue as early as
1983.1039 For the most part, they processed the information gathered by the
ICLT, but they also developed a few community sources of their own.1040 In
the aftermath of the Golden Temple attack in June 1984, the VPD was able to
accumulate a significant amount of information and to develop an in-depth
knowledge of the main Sikh extremist organizations and individuals active
in British Columbia. The local force was aware early on of the activities of
prominent Sikh extremists who were advocating violence, such as Talwinder
Singh Parmar, Ajaib Singh Bagri and Surjan Singh Gill, and of their leadership
role in the Babbar Khalsa (BK).1041 The VPD was also aware of the activities of
1033 Testimony of Don McLean, vol. 21, May 1, 2007, p. 2023; Testimony of Don McLean, vol. 35, May 29,
2007, pp. 4123-4126, 4149, 4171.
1034 Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4131, 4137.
1035 Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4130-4131; Testimony of Axel Hovbrender, vol.
33, May 24, 2007, pp. 3883-3884.
1036 Testimony of Don McLean, vol. 35, May 29, 2007, p. 4133; Testimony of Don McLean, vol. 21, May 1,
2007, p. 2016.
1037 Exhibit P-404, p. 3; Exhibit P-101 CAA0281, p. 1.
1038 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1994-1995; Testimony of Don McLean, vol. 35, May
29, 2007, pp. 4126-4127.
1039 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3871. See also, Testimony of Don McLean, vol.
21, May 1, 2007, pp. 2021-2022.
1040 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3878, 3895-3896. Hovbrender did indicate,
though, that his sources provided mostly information that was generally known in the community
and not specific or actionable in a criminal investigation: Testimony of Axel Hovbrender, vol. 33, May
24, 2007, pp. 3896-3897.
1041 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1996-1997; Testimony of Don McLean, vol. 35, May
29, 2007, pp. 4126-4127, 4141-4143. See also, Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp.
3884-3888, 3890, 3898.
415
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the International Sikh Youth Federation (ISYF),1042 a Sikh extremist organization
with a significant membership and heavy involvement in acts of violence and
intimidation in the community.1043 It knew specifically of the leadership role
played in that organization by Pushpinder Singh, an extremist recently arrived
from India in 1985.1044 VPD members had information about connections among
Sikh extremist individuals and organizations. They were aware of a connection
between ISYF spokesperson Manmohan Singh and BK member Surjan Singh
Gill,1045 and also obtained information indicating that Ripudaman Singh Malik
was a close associate of Parmar’s and was financially supporting him.1046
In January 1985, VPD members of VIIU and ICLT members prepared a
comprehensive analysis of the VPD’s information about Sikh extremism, in
collaboration with a CLEU analyst.1047 This intelligence document contained a
flow chart of significant events, including demonstrations, threats and violent
offences, as well as lists and charts identifying and describing linkages among
Sikh extremist individuals and organizations known to the VPD.1048 The document
also included approximately one hundred profile sheets for prominent Sikh
extremists and individuals associated with extremist organizations who had “…a
high threat potential to use criminal acts and violence as a means of achieving
their (potential) goals.”1049
Meanwhile, the RCMP E Division NCIS, whose Terrorist/Extremist Group was
investigating Sikh extremism and working with the VPD at VIIU, did not use a
community policing approach. Generally, E Division NCIS found the community
mistrustful of police and unwilling to cooperate.1050 In fact, NCIS did not have
sources in the Sikh community and was not actively trying to develop such
sources. As a result, the RCMP did not have access to the same type of valuable
intelligence about Sikh extremism that the ICLT was collecting and often had
1042 Formerly known as the Sikh Student Federation (SSF): See Exhibit P-101 CAB0360, p. 5.
1043 Testimony of Don McLean, vol. 35, May 29, 2007, p. 4129; Testimony of Axel Hovbrender, vol. 33, May
24, 2007, p. 3887.
1044 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1997, 2001; Exhibit P-101 CAB0306, p. 2. McLean
described Pushpinder Singh as a “terrorist”: Exhibit P-101 CAC0487, p. 5.
1045 Testimony of Don McLean, vol. 35, May 29, 2007, p. 4143.
1046 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3886.
1047 Exhibit P-391, document 124 (Public Production # 3254); Testimony of Don McLean, vol. 35, May
29, 2007, pp. 4132-4133; Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3879-3881,
3882-3884: The purpose of the document was to assist VPD, RCMP and CLEU management in
operational decisions and future investigations. It was used by the VPD to provide context for analysis
of incoming intelligence and to orient ongoing intelligence-gathering activities and criminal
investigations relating to threats and intimidation in the community.
1048 Exhibit P-391, document 124 (Public Production # 3254); Testimony of Don McLean, vol. 35, May 29,
2007, p. 4132; Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3881.
1049 Exhibit P-391, document 124 (Public Production # 3254), p. 5. Ten such profile sheets are included at
pp. 89-98 of the document. The others were not produced in the version of the document provided to
the Commission.
1050 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4040, 4109. McLean has testified that no other
police force in British Columbia was using the community policing approach at the time, except
for one RCMP officer who was working at the Surrey Detachment: Testimony of Don McLean, vol.
35, May 29, 2007, pp. 4149, 4174.
�Chapter III: What Went Wrong?
to rely on the ICLT for information.1051 The RCMP found itself having to resort to
the ICLT’s assistance outside of the VPD’s territorial jurisdiction. In one case, an
assault in Duncan, the RCMP had no leads and turned the investigation over to
the ICLT, which had previously obtained information about the assault and was
able to bring the case to court and obtain a conviction.1052
Despite the high level of intimidation in the Vancouver Sikh community, and the
generalized fear of reprisals against those who cooperated with police,1053 the
ICLT always continued to receive information.1054 In general, the VPD members
of VIIU, with the support of the ICLT, gathered much more information about
Sikh extremism than the RCMP members of VIIU, who were less able to devote
priority attention to the issue.1055
Information Sharing and Cooperation Failures
Information Exchange and Access to Files
Information was mostly shared between the VPD and RCMP members of VIIU in
an informal manner, in the context of the everyday discussions that took place
between the individual members who were working in the same office space.
All information received by the VPD members was documented and preserved
in the VPD files kept at VIIU. The VPD VIIU files were searchable through a manual
index card system and were fully accessible to the RCMP members of VIIU.1056
The RCMP, on the other hand, did not provide free and complete access to its
VIIU files.1057 RCMP VIIU member Sgt. Wayne Douglas testified that access to the
RCMP files was “readily available,” without providing more detail.1058 However,
VPD member of VIIU, Supt. Axel Hovbrender, explained that the RCMP files were
kept separately in an office that the VPD members could not access. He added
that the separate filing systems were a concern among VPD managers at VIIU,
and that the lack of access to RCMP files was viewed by some as a symptom
of a more general lack of RCMP sharing with municipal forces.1059 Douglas did
admit that the RCMP kept their filing cabinets locked more than the VPD did “for
security reasons.”1060 This is consistent with the general RCMP approach towards
1051 Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4040.
1052 Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4129-4130, 4168-4169.
1053 Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4131-4132. McLean compared the level of
intimidation to that found in communities suffering intimidation from organized criminal groups.
1054 In general, however, the sources who spoke with the ICLT provided their information confidentially,
on the understanding that their identity would remain protected: Testimony of Don McLean, vol.
35, May 29, 2007, pp. 4171-4172.
1055 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3878. The RCMP NCIS Terrorist/Extremist unit
had “…lots of other files to look after,” which made it difficult, resource-wise and time-wise, to engage
in active source development in the Sikh community: Testimony of Wayne Douglas, vol. 34, May
28, 2007, p. 4109.
1056 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3872-3874; Testimony of Wayne Douglas, vol.
34, May 28, 2007, pp. 4030, 4040.
1057 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3874.
1058 Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4030.
1059 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3874, 3878-3879, 3923.
1060 Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4030.
417
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caveats and classification,1061 and, in particular, with the RCMP’s concern about
the lack of security clearance of municipal officers.1062 In the case of the VIIU, the
impact of the lack of access is evident because much of the relevant information
in the possession of the RCMP was not known to the VPD.
RCMP Failures to Share Information with the VPD
At the operational level, relations were very collegial between the VPD and
the RCMP members of the VIIU Terrorist/Extremist unit. As a result of the good
working relationship, the VPD members believed that they were receiving all
the information they needed from their RCMP colleagues through their regular
informal exchanges. Hence, they did not specifically request access to the RCMP
files that were kept in a separate area.1063 Even the RCMP members of VIIU were
apparently under the impression that they discussed all of the information they
were aware of with their VPD colleagues.1064 In fact, however, relevant RCMP
information was not always shared with the VPD members of VIIU.
VPD members were not advised of the October 1984 information received
by the RCMP from External Affairs indicating that the ISYF was planning to
hijack an Air India aircraft and that Bagri was nominated on a committee to
plan the attack.1065 Information about the 1984 BK threat to kidnap or kill the
Indian Consul General in Vancouver, and about the BK’s threatening letters,
postmarked in Vancouver and sent to high officials in India, was also not shared
with the VPD members of VIIU.1066 The RCMP members did not advise their VPD
colleagues of the arrest of an ISYF member with parts of an Uzi machine gun at
Vancouver airport in March 1985, or of the fact that the remaining parts of the
weapon were discovered on the suspect’s travelling companion in London.1067
The RCMP also did not advise the VPD members of the April 1985 information
indicating that Parmar’s group was “…working on a highly secret project,”1068 or
of the information received in late June 1985 about a plot by four Sikhs from
Vancouver Island to purchase automatic weapons and hand grenades and to
commit criminal acts with possible political overtones.1069 Similarly, when the
RCMP received information in May 1985 about a plot by extremists to bomb the
Indian Consulate in Vancouver on June 6, 1985,1070 it was not provided to VPD
members of VIIU or to the ICLT.1071
1061 See, generally, Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3916, 3924. See also Volume
One, The Inquiry Process, for a discussion of the national security “over-claiming” by Government
agencies.
1062 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5399, 5404-5405.
1063 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3872, 3874-3875, 3923-3924.
1064 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4118-4119.
1065 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3887; Exhibit P-101 CAA0103, CAA0099.
1066 Exhibit P-101 CAC0317; Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3904.
1067 Exhibit P-101 CAB0207, p. 2, CAC0291; Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 38903892.
1068 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3902-3903; Testimony of Don McLean, vol.
35, May 29, 2007, pp. 4134-4135; Exhibit P-101 CAC0290, p. 3.
1069 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3900-3901; Exhibit P-101 CAB0329.
1070 Exhibit P-101 CAC0364, p. 2.
1071 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3900; Testimony of Don McLean, vol. 35, May
29, 2007, pp. 4135-4137.
�Chapter III: What Went Wrong?
Douglas did not advise his VPD colleagues of the information received by the
RCMP from Person 1 in September 1984 about a plot to bomb an Air India aircraft
(the November Plot information). The VPD members of VIIU only found out about
this plot when the same information was subsequently provided to another
VPD unit by Person 2.1072 Douglas was aware of the Person 2 information,1073
and would most likely have had discussions about it with his VPD colleagues at
VIIU, but nevertheless did not advise them that similar information had been
received from a different source in the past.1074
VIIU also did not have access to relevant information because of gaps in internal
RCMP information sharing. In instances where RCMP members of VIIU were not
themselves provided with all relevant information in the RCMP’s possession,
they could not share it with their VPD colleagues. This was the case for the CSIS
threat assessments prior to April 1985, and for threat information received by the
RCMP Protective Policing Directorate from DEA or Air India.1075 As a result, the
VPD members of VIIU were not provided with the information contained in the
October 1984 CSIS threat assessment which detailed threats made by Parmar
to kill Hindus.1076 This information pointed to threats of a different nature from
the threats against the Indian Government and its representatives, which were
generally known to the VPD. It would have assisted the VPD in its intelligencegathering activities.1077 Further, the November 1984 information about a plot to
kidnap the Indian Consul General in Vancouver or Toronto, which was known to E
Division VIP security, was not passed to the VPD.1078 The VIP Security information
indicating that the Vancouver ISYF was planning to physically assault the Indian
Consul General and other members of the Vancouver Consulate on April 13,
1985, naming ISYF spokesperson Manmohan Singh as one of the individuals “…
entrusted with the task,” was also never provided to the VPD members of VIIU.1079
Similarly, the June 1st Telex about threats to bomb Air India planes using timedelayed devices, like most of the threat information received from the airline,
was not shared with the VPD.1080
ICLT member McLean testified that he was, in fact, never provided with any
information about threats to Air India.1081 As a result, he was prevented from
exploring all possible avenues of investigation with respect to the Khurana
1072 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3904-3905; Exhibit P-391, document 124
(Public Production # 3254), p. 64.
1073 Exhibit P-120(c), p. 1 (entry for Oct., 1984: doc 231-3, pp. 2-4).
1074 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3905.
1075 See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
1076 Exhibit P-101 CAA0110, pp. 2-3; Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3889-3890.
1077 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3889.
1078 Exhibit P-101 CAB0169; Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3901-3902. The
information may have been passed on to the VPD OAS and then not relayed to VIIU: Testimony of Axel
Hovbrender, vol. 33, May 24, 2007, pp. 3902, 3926.
1079 Exhibit P-101 CAC0293; Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3892-3893.
Hovbrender indicated that the VPD members of VIIU were never made aware of information this
specific with respect to threats against the Consul General on a specific date.
1080 Exhibit P-101 CAA0185. The telex was not transmitted to NCIB at HQ: Testimony of Warren Sweeney,
vol. 26, May 9, 2007, p. 2732, and hence could not be disseminated to the divisional NCIS section.
1081 Testimony of Don McLean, vol. 21, May 1, 2007, p. 2012. Even the November Plot information from
Person 2, which was included in the VPD analytical document (Exhibit P-391, document 124 (Public
Production # 3254), p. 64) was not transmitted to McLean by either the RCMP or the VPD.
419
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Volume Two Part 1: Pre-Bombing
information about ISYF leader Pushpinder Singh’s comment that something
would happen in two weeks.1082 While the VPD members of VIIU or of the
ICLT were not responsible for airport policing or for the protection of Indian
missions,1083 the VPD needed access to the RCMP threat information in order to
better identify, report, assess and further investigate the information that could
come from its sources. As Hovbrender explained, information is the “life-blood
of intelligence.” Having as much information as possible is essential, from an
intelligence perspective, to discern patterns and make the appropriate analysis.
The RCMP tended to protect or classify its information more strictly, and did
not share it freely. While there could be valid reasons to protect information,
the RCMP failure to share more openly with the VPD prevented the groundlevel officers, who had the most access to sources of information, from using
that access to obtain additional threat information, and from analyzing and
understanding relevant threat patterns.1084
If the RCMP had sought to act as the exclusive intermediary for the passage of
CSIS information about Sikh extremism to local forces, as it was contemplating
doing in May 1985,1085 the situation would have been even more difficult. As it
was, the VPD was able to obtain at least some information from CSIS, such as the
Duncan Blast surveillance information,1086 and did maintain its close liaison with
the intelligence agency.1087 Whatever the merits of making the RCMP the primary
recipient of CSIS intelligence in cases with a potential national scope,1088 this
approach would only be beneficial if there was a sufficient flow of information
to the officers with the most ability to gather additional information, regardless
of the police force to which they belonged.
RCMP Failures to Access and Report VPD Information
The VPD members of VIIU attempted to provide their RCMP colleagues with all
the relevant information in their possession during the course of their informal
discussions, directing them to relevant VPD files where necessary.1089 However,
the RCMP members of VIIU often did not report to RCMP Headquarters the VPD
information which was conveyed to them or available in the VPD files.
The internal procedures in place at the RCMP did not provide for exchanges of
reports at the desk level. The RCMP members of VIIU working at the operational
level were not expected to take the initiative of researching VPD files to find
relevant information.1090 Instead, the VPD VIIU reports were reviewed at a more
senior RCMP level, where the decision was taken about whether to disseminate
1082
1083
1084
1085
1086
1087
1088
1089
1090
See Section 1.6 (Pre-bombing), Khurana Information.
Testimony of Don McLean, vol. 35, May 29, 2007, p. 4170.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3916.
See Exhibit P-101 CAA0154(i), p. 3, where the RCMP suggests that the Sikh extremist problem should
be recognized as involving its security offences mandate.
Testimony of Don McLean, vol. 35, May 29, 2007, p. 4139; Exhibit P-403; Exhibit P-101 CAA0196.
Testimony of Don McLean, vol. 35, May 29, 2007, p. 4128; Testimony of Axel Hovbrender, vol. 33, May
24, 2007, p. 3876. See, for example, Exhibit P-101 CAB0048.
Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9333.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3872, 3874.
See, generally, Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4033-4035.
�Chapter III: What Went Wrong?
them to operational personnel as deemed necessary. Because of this structure,
the sharing of information was not always timely1091 and, as observed in the case
of information relevant to the threat of Sikh extremism, because the relevance
of the information was not always recognized, it was not always disseminated
within the RCMP.
It appears that RCMP E Division members only began to recognize the value of
VPD information after the Air India bombing, when this information was finally
reported in detail and used in the course of the investigation. Shortly after the
bombing, the RCMP took copies of all Sikh extremism-related VPD reports found
at VIIU and at the ICLT, and asked ICLT member McLean to provide briefings
about Sikh militants in the community and Sikh extremists who were most likely
involved in the bombing.1092 At the time, McLean spoke about the Khurana
information, which, in light of the Pushpinder Singh comment two weeks before
the bombing that something would happen in two weeks, tended to indicate
ISYF members could be involved.1093 Details of the Khurana information were
then provided to RCMP HQ by E Division on June 25th and RCMP members of
VIIU began to investigate local factions of the ISYF.1094
The Khurana information had not been reported to HQ before the bombing,1095
even though it was available to RCMP VIIU members as of June 13th in a report
sent to the VPD VIIU members, and would most likely have been discussed with
the RCMP members as well.1096 Instead, on June 14th, E Division NCIS advised HQ
that it had no intelligence indicating violent or criminal acts were planned for
the Consulate and was “…unable to determine the potential for violence” against
Indian officials in Vancouver.1097 Similarly, information obtained by Hovbrender,
that the leader of the BK International in London had stated in 1984 that anyone
who flew Air India would be killed in Britain or in India by the BK, was included
in an RCMP affidavit in support of a wiretap application in connection with the
Air India investigation in 1996. The information had been available at VIIU since
early June 1985.1098 There is no indication that it was accessed or reported by
the RCMP members of VIIU prior to the bombing.
The RCMP members of VIIU also did not access or report the general intelligence
gathered by their VPD colleagues which identified the main players in the BC
1091 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4034, 4113.
1092 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1986, 2037; Testimony of Don McLean, vol. 35, May
29, 2007, pp. 4143-4144, 4157-4159.
1093 Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4143-4144. See, generally, Exhibit P-101
CAC0487, CAA0249.
1094 Exhibit P-101 CAA0249.
1095 RCMP HQ NCIB member Sgt. Sweeney testified that he only learned about this information on the
day of the bombing from VPD Cst. McLean: Testimony of Warren Sweeney, vol. 25, May 8, 2007, p.
2641; Exhibit P-101 CAF0035, p. 28.
1096 See report submitted to VIIU on June 13: Exhibit P-101 CAC0487; Testimony of Don McLean, vol. 21,
May 1, 2007, pp. 2000-2001. About the likelihood of the information having been discussed, see
Testimony of Don McLean, vol. 21, May 1, 2007, p. 2026; Testimony of Warren Sweeney, vol. 25, May 8,
2007, pp. 2641-2642; Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4070.
1097 Exhibit P-101 CAC0438, p. 2.
1098 Exhibit P-101 CAD0180, pp. 20-21.
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Sikh extremist movement and the possible connections among extremist
individuals.1099 Douglas was unaware of the importance of many of the players
in the movement and did not know about many of the threats they issued.1100
RCMP HQ was not provided with this background intelligence and was not
aware, for example, of the identity and role of ISYF leader Pushpinder Singh and
ISYF spokesperson Manmohan Singh.1101 The RCMP members of VIIU also did
not report to RCMP HQ the information about possible connections between
the ISYF and the BK, two of the most militant and dangerous Sikh extremist
organizations. These linkages were suggested by the Khurana meeting, where
a connection between Parmar and Pushpinder Singh was identified,1102 and
found in the VIIU report about the Duncan Blast surveillance, where an early
June 1985 meeting at the residence of Surjan Singh Gill involving BK and ISYF
members was discussed.1103 Similarly, the October 1984 VPD information
indicating that Ripudaman Singh Malik was financially supporting Parmar was
not reported to RCMP HQ prior to the bombing.1104 The RCMP VIIU members
had access to the VPD general intelligence and could consult the analytical VPD
document containing profile sheets and link charts,1105 but they apparently did
not appreciate the importance of developing their own understanding of the
Sikh extremist movement and of reporting this knowledge to RCMP HQ.
Since CSIS sometimes used the VPD members of VIIU as an indirect conduit
to pass on information to the RCMP,1106 the failure of RCMP VIIU members to
access VPD information and files might have deprived the RCMP of information
which CSIS intended it to have. CSIS provided complete details of its Duncan
1099 In fact, members of the NCIS E Division Terrorist/Extremist unit had a very poor understanding of the
main Sikh extremist players in the pre-bombing period. For example, Douglas, who was the head
of the unit, testified that he “recognized the name” Ajaib Singh Bagri, but was unaware of significant
threat information indicating the dangers he posed. Moreover, Douglas was “not too familiar”
with Surjan Singh Gill: See Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4048, 4051-4053.
1100 See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
1101 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2641. See, generally, Section 3.4 (Pre-bombing),
Deficiencies in RCMP Threat Assessment Structure and Process (under the heading Failures to Identify
and Report Background Intelligence).
1102 Exhibit P-101 CAC0487, p. 4. The report was available in the VPD VIIU files and the information was
most likely discussed with the RCMP members: Testimony of Don McLean, vol. 21, May 1, 2007, p.
2026; Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2641-2642; Testimony of
Wayne Douglas, vol. 34, May 28, 2007, p. 4070.
1103 Exhibit P-101 CAA0196, p. 2. The report was available in the VPD VIIU files and the information was
most likely discussed with the RCMP members: Testimony of Axel Hovbrender, vol. 33, May 24, 2007,
p. 3907; Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4033-4034. See also Exhibit P-101
CAA0876, indicating that a briefing was provided to NCIS members about the report.
1104 The information was shared with the RCMP during informal discussions at VIIU: Testimony of Axel
Hovbrender, vol. 33, May 24, 2007, p. 3886. We find no indication in the record that it was reported
and Malik did not become a key suspect in the Air India investigation until many years after the
bombing.
1105 Former RCMP member of VIIU Sgt. Douglas could not recall whether he saw the document before
or after the Air India bombing: Testimony of Wayne Douglas, vol. 34, May 28, 2007, p. 4035. The
document was not only available in the VPD files, but was formally passed on to RCMP E Division NCIS
and to CISBC: Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3882, 3918. Because CLEU
approval was required to prepare the analysis, the RCMP would also have been aware of the existence
and purpose of the document: Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3880.
1106 See Section 3.5.3 (Pre-bombing), RCMP Failures in Sharing with CSIS.
�Chapter III: What Went Wrong?
Blast surveillance information to the VPD.1107 The information was included
in a VIIU report prepared on June 6, 1985, only two days after the Duncan
Blast.1108 This report was fully accessible to the RCMP members of VIIU, the
information it contained was most likely discussed informally with them during
the following days, and a briefing about the report was provided by the VPD
to RCMP members who were to conduct diffusion interviews with Parmar and
Gill.1109 The information was not reported to RCMP HQ, and any benefit of the
CSIS information was lost to the RCMP because of the failure of the members
of the integrated unit to access, research, recognize and report relevant VPD
information.
Deficiencies in Information Exchange Mechanisms
At VIIU, there was no written policy or formal mechanism for sharing of
information. Where information was passed verbally, as was often the case,
1110
written records of the information exchanged were generally not kept. This
made it difficult, if not impossible, for officers to later track what information
had been passed.1111 This lack of formalized process impacted on the agencies’
ability to report internally the information received for central analysis. The
benefit from the VPD information to the RCMP as a whole depended on the
individual officer receiving the information deciding to include it in a report or
other record. This reliance on individual discretion and ad hoc decisions had
a negative impact on the RCMP’s overall ability to assess and respond to the
threat of Sikh extremism.
As was the case with RCMP/CSIS information sharing, information exchanges
depended on personal working relationships. The amount of information shared
could vary when the individuals involved changed. McLean explained that he
observed a decrease in VPD information sharing with CSIS and the RCMP when
the individuals involved in the investigation of Sikh extremism at CSIS and at
VIIU during the pre-bombing period changed.1112 Without a more formalized
process, such inconsistencies were inevitable.
Failure to Coordinate Investigations
Because the VPD and RCMP members of VIIU did not conduct common operations
or work together on integrated files,1113 opportunities were lost to coordinate
the investigation of information about the threat of Sikh extremism. No attempt
1107 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3906. See, generally, Section 1.4 (Prebombing), Duncan Blast.
1108 Exhibit P-101 CAA0196.
1109 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3907; Testimony of Wayne Douglas, vol. 34,
May 28, 2007, pp. 4033-4034; Exhibit P-101 CAA0876. See Section 1.4 (Pre-bombing), Duncan Blast.
1110 This was the case at VIIU: Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3872. ICLT members
also occasionally had informal discussions with RCMP members, though they generally expected their
information to be shared with the RCMP through the discussions held at VIIU: Testimony of Don
McLean, vol. 21, May 1, 2007, p. 2029; Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4127, 4129,
4167-4168.
1111 Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4112-4113.
1112 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2029-2031.
1113 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3872-3873, 3877-3878.
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was made to coordinate the investigation of the Khurana information, as the
RCMP expressed no interest in investigating it prior to the bombing and left
the VPD to conduct its own inquiries without requesting follow-up reports.1114
ICLT members were not consulted, in any way, prior to the diffusion interviews
of Parmar and Surjan Singh Gill in preparation for the Gandhi visit to the US,
and were not even aware of the interviews.1115 Given their knowledge and their
reputation in the community, the participation of ICLT members in these and
other RCMP investigative initiatives, at a time when the Air India bombing plot
was most likely in the final planning stages, would clearly have been helpful.
Failures to Manage and Access Information from the Criminal Intelligence
Service of British Columbia
During the period preceding the Air India bombing, significant information
about the threat of Sikh extremism was shared by members of the VPD with
an organization called the Criminal Intelligence Service of British Columbia (CIS
BC). A number of important CIS BC documents – including the report by the VPD
about its October 1984 interview of Person 2 in connection with the November
Plot information1116 and the VIIU report on the Duncan Blast1117 – were not
accessed by RCMP investigators until significantly after the bombing, if at all.
Given the nature and status of the CIS BC organization in 1985, the information
should have been obtained by the RCMP.
In 1985, CIS BC operated under the umbrella of the Criminal Intelligence Service
of Canada.1118 The Criminal Intelligence Service of Canada was a program that
“…encompassed all the criminal intelligence units of the various provincial and
municipal forces in Canada, devoted to organized crime.”1119 Each province had
a provincial CIS bureau, which collected information and reports provided to it
by feeder law enforcement organizations, including municipal forces and RCMP
detachments. The organization served as a repository of criminal intelligence
information on individuals and businesses of interest,1120 which could be
searched and accessed by law enforcement personnel.1121 The contribution
of information by municipal forces was voluntary, and not all municipal forces
sent their information to the bureau. Within the RCMP, NCIS units were regular
1114 See Section 1.6 (Pre-bombing), Khurana Information.
1115 Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4139, 4156-4157. Exhibit P-101 CAA0871, p. 1,
CAA0876.
1116 Exhibit P-120(c), p. 1, (entry for Oct., 1984: doc 231-3, pp. 2-4).
1117 Exhibit P-101 CAA0196.
1118 Testimony of Bob Stubbings, vol. 33, May 24, 2007, p. 3929.
1119 Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1644.
1120 Testimony of Bob Stubbings, vol. 33, May 24, 2007, p. 3929.
1121 When officers wanted to obtain information about particular individuals or groups, they could
contact CIS BC through their intelligence unit and obtain access to the material in CIS BC’s holdings:
Testimony of Bob Stubbings, vol. 33, May 24, 2007, p. 3932.
�Chapter III: What Went Wrong?
contributors of information to the organization.1122 While CIS was mainly
focused on organized crime, it would occasionally receive information about
terrorist/extremist issues.1123
CIS BC was located at RCMP E Division Headquarters in Vancouver,1124 and, at the
time, it was part of the RCMP structure and staffed and administered entirely by
RCMP employees. According to the RCMP Organizational Chart for the period
following the creation of CSIS, the Director of CIS reported to the RCMP Deputy
Commissioner Operations.1125 It also appears that at least some members of
the VPD at the time viewed CIS BC as a branch of the RCMP.1126 However, the
members who administered CIS BC strove, as much as possible, to operate it as
an independent provincial bureau.1127 Over time, apparently, there evolved a
functional independence for CIS BC, with different police forces assigning their
personnel to staff the bureau, and the organization came to be recognized as a
type of “mini-Interpol.”1128
CIS BC organized its information using an index card system. When reports
were received, CIS BC officials would read through the reports and create cards
for individuals and groups not yet in the CIS BC database, and add additional
references for individuals already in the system.1129 Certain information would
also be loaded, by CIS BC and other CIS provincial units, into a searchable
national database called the Automated Criminal Intelligence Information
System (ACIIS). If a search was done on ACIIS, biographical information that
was inputted by other provinces would also show up, and there would be a
mechanism to allow investigators to contact the other CIS units to obtain the
information in their holdings. However, not all the names and information for
individuals identified by CIS BC (or other provincial bureaus) and indexed locally
were entered onto ACIIS. Former RCMP Corporal Bob Stubbings, who worked at
CIS BC from December 1980 until June 1985, explained that, while individuals
like Surjan Singh Gill and Talwinder Singh Parmar were carded, as indicated in
the Duncan Blast VIIU report, there was no indication that those names had
been inputted onto ACIIS.1130
Douglas, who headed the RCMP E Division NCIS Terrorist/Extremist Group,
testified that he remembered making “…frequent trips to CIS BC on numerous
1122 Testimony of Bob Stubbings, vol. 33, May 24, 2007, p. 3930.
1123 At the same time, according to an October 1984 report, CIS BC had no separate file relating to the
Indo-Canadian community, which meant that it was not necessarily a resource to which one could
refer to easily to obtain a general overview of criminal extremist activity or prominent extremist
members in that community: Exhibit P-391, document 124 (Public Production # 3254), p. 14. CIS BC
also conducted some analytical work, mainly limited to basic linkage analysis, upon request by
various units: Testimony of Bob Stubbings, vol. 33, May 24, 2007, p. 3933.
1124 Testimony of Bob Stubbings, vol. 33, May 24, 2007, p. 3931.
1125 Exhibit P-110; Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1642-1643.
1126 For example, there is a reference in a VPD Investigation Report respecting a meeting that was held to
discuss the VPD’s recent investigation of Person 2, where the officer noted that he met with “RCMP CIS
BC”: P-120(c), p. 2, (entry for Oct., 23, 1984: doc 7).
1127 Testimony of Bob Stubbings, vol. 33, May 24, 2007, p. 3930.
1128 Testimony of Rick Crook, vol. 20, April 30, 2007, pp. 1923-1924.
1129 Testimony of Bob Stubbings, vol. 33, May 24, 2007, p. 3936.
1130 Testimony of Bob Stubbings, vol. 33, May 24, 2007, pp. 3929, 3931, 3933-3934, 3939.
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things.”1131 Nevertheless, it appears that important information was not
consulted in the pre-bombing period, despite the fact that CIS BC files were
readily accessible, that CIS BC was housed in the same building as NCIS, and that
it was staffed entirely by RCMP members.1132
On October 23, 1984, the VPD provided CIS BC with a copy of the report about
the interview of Person 2 that had been conducted by Detectives Crook and
Warwick,1133 during which Person 2 disclosed detailed information about an
alleged plot to bomb two Air India aircraft.1134 The report indicated that the
interview had been taped and that there could be “two bombs” involved. It
also implied that the plot might still go ahead, whether or not Person 2 was
in custody, a fact of which Douglas, who was responsible for the investigation
of the November Plot, was unaware.1135 There is no indication that this report
was accessed by RCMP NCIS investigators in the pre-bombing period. In fact,
there is no evidence that RCMP investigators at any point, either before the
bombing or in the years immediately following, requested the transcript of the
taped interview from the VPD.1136 Had this information been reviewed at the
time, including the alleged possibility of two planes being involved (which was
unknown to Douglas until very recently,)1137 the RCMP might have taken the
post-bombing investigation of the November Plot more seriously.1138
The VPD VIIU Duncan Blast report, which contained details of the CSIS surveillance
of Parmar on June 4, 1985, as well as other contextual threat information,1139 was
received by CIS BC on June 10th.1140 From that date it was fully accessible to the
RCMP.1141 There is no indication that this report was, in fact, accessed by RCMP
members in the pre-bombing period. At the time the VIIU report was received
by CIS BC, information about Talwinder Singh Parmar, Surjan Singh Gill, and the
Babbar Khalsa was already within the CIS BC database.1142 This was all important
intelligence information that the RCMP could, and should, have reviewed.
Conclusion
In jurisdictions where there were tensions in the RCMP relations with local police
forces, there would inevitably have been a negative impact on the receipt by the
RCMP of information from those officers, who were often closest to the ground,
with the most access to relevant information. Even where relations were less
strained, as in Vancouver, the RCMP did not freely share its information nor did
1131
1132
1133
1134
1135
1136
1137
1138
1139
1140
1141
1142
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4032-4033.
Testimony of Bob Stubbings, vol. 33, May 24, 2007, p. 3929.
Exhibit P-120(c), p. 1 (entry for Oct., 1984: doc 231-3, pp. 2-4).
Exhibit P-121, pp. 3-4.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4085, 4094.
See Exhibit P-121.
Testimony of Wayne Douglas, vol. 34, May 28, 2007, pp. 4085, 4094.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2639.
Exhibit P-101 CAA0196.
Exhibit P-101 CAA0862.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3907.
Testimony of Bob Stubbings, vol. 33, May 24, 2007, pp. 3936-3937.
�Chapter III: What Went Wrong?
it access the local police information available. Where information was actually
shared, the RCMP often did not effectively coordinate follow-up or keep proper
records.
3.6 Lack of Government-Wide Coordination in the Threat
Assessment Process
The “Mosaic Effect” as a Danger and as a Positive Resource
The “mosaic effect” is a well-known concept in intelligence and security
communities. It is commonly invoked as a reason to exempt information from
disclosure. The effect refers to the possibility that a seemingly innocuous piece
of information can be pieced together with others to reveal a sensitive matter
not apparent from any of the individual pieces. The Attorney General of Canada
(AGC), in its opening statement, highlighted the threat of the mosaic effect in
relation to national security.
Sensitivity of information [is] often only apparent to those
who are aware of the underlying context … in the hands
of an informed reader apparently trivial or unrelated
pieces of information … can be used to construct a more
comprehensive picture when compared with information
already known by the recipient or available from another
source.1143
The AGC warned that the mosaic effect could be used by those hoping to do
harm to the national security interests of Canada. However, the mosaic effect
can also be deployed positively by the Canadian intelligence community to
protect those very same interests. Careful analysis of information reviewed by
the Commission reveals that, in the period leading up to the Air India and Narita
bombings, a lack of effective communication deprived CSIS – whose role it was
to piece such information together – of the opportunity to do so. This meant
that the threat assessments produced by CSIS analysts from the information
that was actually passed to them were not as fully-informed as they might have
been. In turn, reasonable precautions that might have been implemented by
protective agencies had they received fully-informed threat assessments were
not put into place.
Various government agencies and police forces had information that, if pieced
together, could have provided a comprehensive picture of the intentions of Sikh
extremists in 1985. However, these agencies failed to share their information
openly with CSIS, the agency assigned the exclusive authority to collect security
intelligence and produce threat assessments to advise all of government.1144 At
1143 Statement by Barney Brucker, Transcripts, vol. 12, November 6, 2006, p. 1064.
1144 This principle was set out in the 1984 MOU (Exhibit P-101 CAA0076) and 1984 Ministerial Directive
issued by Solicitor General Robert Kaplan (Exhibit P-101 CAF0030, pp. 9-10).
427
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Volume Two Part 1: Pre-Bombing
the creation of CSIS, the Government of Canada appears to have assumed that
other agencies would have relatively little to contribute of security intelligence
value from their own sources and knowledge, and thus, little operational
guidance was provided to ensure the proper transfer of the information to
CSIS.1145
Gordon Osbaldeston1146 made note of this deficiency in his 1987 report:
…despite some improvements that have been made since
separation, strategic intelligence is still inadequate. A
complaint often heard was that CSIS tended to produce threat
assessments in a vacuum, assessments could have benefited
from assistance available elsewhere in the intelligence
community.1147
Professor Martin Rudner, one of Canada’s leading experts in the field of
intelligence and international terrorism,1148 characterized the intelligence
system in Canada as essentially “routine collection-led.”
In Canada, [our intelligence system] is essentially collectionled. This is the notion that the various components of the
Intelligence community, the Security Intelligence Service,
that’s CSIS, the community – the Communications Security
Establishment, that’s our signals agency; the RCMP, FINTRAC,
each of them goes about their business with diligence, no
question; competence, no question. But it’s routine business.
Each of them does the job as they understand it and each of
them collects the Intelligence that they routinely decide to
collect, and that’s what constitutes in fact the collection of
Intelligence in Canada.1149
Rudner testified that the problem with this system is that the agencies routinely
collect information but share it only when its perceived relevance meets special
criteria upon which one can justify conducting an investigation.1150 Each agency
collects information in a silo without a sufficiently detailed awareness of the
priorities of the other agencies. No one agency has the capacity to “connect
1145 Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1468-1469, 1486-1487.
1146 Gordon Osbaldeston headed the Independent Advisory Team which produced an October 1987
report, “People and Process in Transition”, for the Solicitor General on CSIS recruitment and
operational policies (Exhibit P-101 CAA0569).
1147 Exhibit P-101 CAA0569, p. 19.
1148 Testimony of Martin Rudner, vol. 92, December 10, 2007, p. 12209.
1149 Testimony of Martin Rudner, vol. 92, December 10, 2007, p. 12243.
1150 Testimony of Martin Rudner, vol. 92, December 10, 2007, p. 12244.
�Chapter III: What Went Wrong?
the dots” to see the complete picture created by the intelligence collected by
the various agencies and to link together all the activities required for an all-ofgovernment approach to intervening in the terrorism cycle.1151
It should have been clear that other agencies would collect information
relevant to national security. Despite this, the Government of Canada failed to
provide meaningful guidance on how and when to share information with CSIS,
resulting in a situation where agencies were expending tremendous efforts to
collect bits of information that ultimately never went anywhere. This lack of
government-wide coordination in the threat assessment process deprived CSIS
of the ability to put together the pieces of the mosaic in order to produce threat
assessments which were fully informed by the information gathered across the
government.
Collecting the Pieces of the Puzzle
The CSIS Act assigned CSIS the primary responsibility for advising the
Government of threats to the security of Canada.1152 To ensure that CSIS
produced comprehensive threat assessments, the Act allowed CSIS to enter into
cooperative information-sharing agreements with police forces across Canada
and with other federal and provincial government departments.1153
The Office of the Solicitor General produced a document in 19841154 to illustrate
the responsibilities and cooperative arrangements envisioned by the CSIS Act.
The chart, shown in Figure 1, illustrates the intended two-way information
flow between CSIS and other agencies, including the RCMP, other government
departments, local police forces and foreign agencies.1155 In effect, CSIS was
intended to be the repository for all sourced intelligence information from which
it could draw to produce the most comprehensive and informed assessments to
advise the Government on threats to national security.
1151
1152
1153
1154
1155
Testimony of Martin Rudner, vol. 92, December 10, 2007, p. 12245; Exhibit P-101 CAF0063, p. 4.
CSIS Act, s. 12.
CSIS Act, s. 17.
Exhibit P-101 CAF0030.
Exhibit P-101 CAF0030, p. 14.
429
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Volume Two Part 1: Pre-Bombing
THE CSIS ACT AND THE CANADIAN
SECURITY SYSTEM
“SECURITY INTELLIGENCE” “PROTECTIVE SECURITY”
CANADIAN
SECURITY
INTELLIGENCE
SERVICE
THREATS TO
THE
SECURITY OF
CANADA
LOCAL
POLICE
“SECURITY ENFORCEMENT”
ROYAL CANADIAN
MOUNTED POLICE
- EDP Security
- protection from
physical or
electronic intrusion
- security to VIP’s
foreign diplomats &
property
- emergency situations
ATTORNEY
GENERAL OF
CANADA
- SECURITY OFFENCES ACT
- Internationally protected person
- conduct constituting a threat to
the security of Canada
- OFFICAL SECRETS ACT
- WAR MEASURES ACT
FOREIGN
AGENCIES
INSPECTOR
GENERAL
SECURITY
INTELLIGENCE
REVIEW
COMMITTEE
DEPARTMENTS
LOCAL
POLICE
- CRIMINAL CODE
- SECURITY ASSESSMENTS - PERSONNEL SCREENING
- IMMIGRATION & CITIZENSHIP ACTS - VISA VETTING
- RELEVANT SECURITY THREATS - PNG’S ETC.
Figure 1: Division of National Security Responsibilities outlined by the
CSIS Act
CSIS threat assessments would have been strengthened by an ability to draw on
the knowledge of the Government of Canada as a whole. In the pre-bombing
eriod, CSIS was able to draw on only limited resources for the investigation of the
serious emerging threat of Sikh extremism.1156 It had few, if any, sources within
the Canadian Sikh community, particularly in the BC Region. Any additional
information would have enhanced CSIS’s understanding of the Sikh extremist
phenomenon.
1156 See Section 3.3.3 (Pre-bombing), Failure to Allocate Resources.
�Chapter III: What Went Wrong?
Several government agencies and police forces were collecting information,
which was potentially relevant to CSIS’s threat assessments, from sources that
were often otherwise unavailable to the Service.1157 The Department of External
Affairs provided the RCMP and CSIS with the mass of threat information received
from the Government of India (GOI) in the year prior to the bombings.1158 This
foreign intelligence was critical and, at times, the sole source of information on
the Sikh extremist threat – both within and outside Canada. CSIS often initially
learned about important threat information through foreign intelligence,
including the identity and possible role of Talwinder Singh Parmar and the fact
of the very existence of the Babbar Khalsa in Canada. Local police forces, such
as the Vancouver Police Department (VPD), could provide an essential “on-theground” perspective gained through their community policing role. The VPD had
an outreach unit, the Indo-Canadian Liaison Team (ICLT), which was responsible
for attending to the policing needs of the Sikh community.1159 The VPD’s access
to the community helped compensate for CSIS’s lack of human sources in the
pre-bombing period. Through its sources, the VPD gathered and passed critical
information to CSIS, including the November 1984 bomb plot information and
the ‘wait two weeks’ comment at the Khurana meeting.1160 Transport Canada
received information from foreign aviation security organizations,1161 airports
and airlines,1162 including Air India. The RCMP would often obtain information
relevant to national security threats while carrying out its security enforcement
and protective policing mandates. The Communications Security Establishment
(CSE) collected Signals Intelligence (SIGINT), an important source of timely
information on the diplomatic, military, economic, security and commercial
activities, intentions and capabilities of foreign governments, individuals and
corporations. Other agencies, including the Department of National Defence
(DND), Canada Employment and Immigration Commission (CEIC) and Revenue
Canada, provided specialized intelligence in their respective fields.
The Failure to Put the Pieces Together
While it was clear that other agencies were collecting relevant threat
information, there was a lack of consistent criteria to guide when information
should be passed to CSIS. Worse, information was generally passed to CSIS
through informal channels. Each agency perceived its information-sharing
responsibilities differently, resulting in inconsistent and ad hoc practices for
sharing information with CSIS.
Some agencies took an entirely open approach to information sharing. The
VPD relationship with CSIS fostered the most effective information-sharing
practices. The Indo-Canadian Liaison Team dealt directly with CSIS BC Region
investigators to ensure that relevant information was identified and passed
1157
1158
1159
1160
See Section 2.0 (Pre-bombing), The Intelligence Cycle and Intelligence Community.
See Section 2.2 (Pre-bombing), Failure to Appreciate the Nature and Seriousness of the Threat.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3764.
See Section 1.1 (Pre-bombing), November 1984 Plot and Section 1.6 (Pre-bombing), Khurana
Information.
1161 These organizations include the ICAO and US Federal Aviation Administration.
1162 Exhibit P-101 CAF0551, p. 4.
431
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in a timely manner.1163 External Affairs diligently passed the abundance of
threat information transmitted to it by the GOI to the RCMP VIP Security
Branch. Transport Canada placed considerable importance on the analysis
and assessment of threats as provided by CSIS,1164 and often forwarded threat
information it received to the RCMP Airport Policing Branch. The RCMP Protective
Policing Directorate (VIP Security and Airport Policing) liaised directly with CSIS
to request threat assessments relevant to RCMP protective duties. Both External
Affairs and Transport Canada appear to have operated with the understanding
that the information they passed to the RCMP would be passed to CSIS through
the threat assessment process. It is logical that the RCMP should have passed on
all the threat information to CSIS regardless of whether the originating agency
specifically requested this transfer. However, failures in the RCMP’s informationsharing practices opened up the possibility that full and complete sharing with
CSIS of third agency information did not occur.
The RCMP often failed to share relevant information with CSIS.1165 At times
this failure was inadvertent, as RCMP officers lacked training about the nature
of intelligence that needed to be passed to CSIS. Also, the RCMP often failed
to process information centrally, with the result that the RCMP liaison units
responsible for sharing information with CSIS were themselves not even
cognizant of relevant information in the RCMP’s possession. At other times, the
failure to share relevant information with CSIS resulted from the RCMP perception
that it, not CSIS, would combine the information for a final assessment.1166 When
the RCMP requested threat assessments from CSIS, the Force did not always
share the underlying information that had triggered the requests because
RCMP Protective Policing members failed to understand CSIS’s need for such
information.
The most deficient system of dissemination was that employed by CSE. While
other agencies failed to share information due to a lack of formal procedures or
a lack of adherence to these procedures (when they existed), the CSE’s formal
system of dissemination itself was seriously flawed. SIGINT is considered highly
sensitive and CSE maintained exclusive control over its dissemination within
the Government of Canada. In the pre-bombing period, the CSIS Sikh Desk
received its SIGINT reporting through a CSE liaison officer, Pierre LaCompte. Each
morning LaCompte searched the CSE database, which contained, on average,
approximately 1,000 new reports each weekday,1167 and brought reports that he
considered relevant to CSIS premises for review by the Sikh Desk analysts. The
Desk analysts had to return the reports to LaCompte immediately after reading
them, and were warned to treat the information with extreme caution.1168 The
major flaw in this system was that the determination of what was relevant
1163
1164
1165
1166
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3764.
Exhibit P-364, p. 2.
See Section 3.5.3 (Pre-bombing), RCMP Failures in Sharing with CSIS.
See, generally, Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and
Process.
1167 Testimony of Pierre LaCompte, vol. 90, December 6, 2007, p. 11914.
1168 Testimony of Bob Burgoyne, vol. 30, May 17, 2007, pp. 3406-3408.
�Chapter III: What Went Wrong?
for CSIS purposes was left to an official of the CSE, an organization that was
deliberately geared to collect, but not to analyze, intelligence information.1169
LaCompte was a junior CSE officer who made the important decision on what
information should and should not be disseminated to CSIS, informed only by
brief meetings with Sikh Desk analysts to identify general search parameters.
LaCompte performed this task not only for CSIS, but also the Solicitor General’s
office and, at times, the RCMP.1170 With this wide range of clients, LaCompte
could not have been aware of the details nor the latest developments in the
Sikh extremism file, and easily could have missed the nuances in the information
available in the CSE database.
A general lack of interdepartmental dialogue hampered the ability of all
agencies to provide context for the information that was to be passed or to gain
an awareness of CSIS’s investigations, which might better have enabled them
to identify relevant information in their holdings. External Affairs and Transport
Canada did not generally pass their information directly to CSIS and, thus, there
was little opportunity for any dialogue that could have allowed CSIS to benefit
from these agencies’ perspectives on the context behind the information
passed. There was no forum for CSIS HQ Sikh Desk analysts to “brainstorm” with
government agencies and police forces about the Sikh extremist threat.1171 This
situation is somewhat ironic in light of the commonly pronounced concern by the
RCMP that CSIS lacked the ability to identify “criminality” and, hence, information
that needed to be passed to the RCMP. Brief reflection would have indicated that
a lack of information about the RCMP’s interests and investigations, combined
with limited access to RCMP information, would have made the identification
of “criminality” even more difficult for CSIS. It should also have been clear that
the reciprocal situation would be equally problematic: i.e. that other agencies
would lack the expertise and knowledge to identify information in their
holdings relevant to CSIS’s sensitive and secretive investigations. Agencies
were collecting information “for collection’s sake”; significant collection efforts
undertaken by these agencies, particularly the CSE, were effectively wasted as
relevant information languished unshared in their holdings due to an inability
to identify its importance to CSIS investigations.
CSIS itself appeared not to recognize the importance of other agencies’
information to its own threat assessment product. In making its assessments,
CSIS would draw on the information from its own resources, but did not explicitly
ask other agencies for any relevant information they might have had.1172 John
Henry, Head of the CSIS Threat Assessment Unit (TAU), was responsible for the
transmission of threat assessments between the RCMP and CSIS. He testified
that he “hoped” that the agencies requesting threat assessments would send
information relevant to the threat assessment on their own initiative, or that the
1169 Testimony of William Sheahan, vol. 90, December 6, 2007, p. 11902; Testimony of Pierre LaCompte, vol.
90, December 6, 2007, p. 11926.
1170 Testimony of Pierre LaCompte, vol. 90, December 6, 2007, p. 11914.
1171 Testimony of Bob Burgoyne, vol. 31, May 22, 2007, p. 3491. Burgoyne noted that CSIS BC Region
investigators had excellent contacts within the police services and reported back to CSIS HQ.
However, the Sikh Desk analysts at HQ who drafted the TAs had no direct contact.
1172 Testimony of John Henry, vol. 25, May 8, 2007, pp. 2540-2541.
433
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CSIS operational desk preparing the threat assessment would inquire to see if
other government agencies held relevant information.1173 In the pre-bombing
period, there was no sign that CSIS vigorously addressed the lack of information
sharing by other agencies.
The end result was a situation in which CSIS was the central intelligence agency,
with an abundance of threat information of unknown reliability from the Indian
government, few resources to corroborate this information through its own
investigations and little assistance from other agencies. This situation made the
sheer volume of threat information from the Indian government appear as if it
was “crying wolf,” particularly in light of the lack of corroborating information
from other sources. The deficiencies in CSIS’s own investigation1174 could have
been mitigated by the full and open sharing of information by other government
agencies and police forces. Had information been properly shared, CSIS might
have been in a better position to evaluate the significance of information that
was already in its possession, instead of being forced to interpret a mosaic with
several pieces missing and some areas overly represented. More significantly,
however, with regard to the most important information in relation to threats to
Air India in the year leading up to the bombings, CSIS appears to have been in
possession of none of the pieces of the mosaic.
The Missing Pieces
The first incident in which the mosaic effect might have been applied relates
to the November 1984 Bomb Plot.1175 Information that Sikh extremists were
organizing to put a bomb on an Air India plane was first obtained through
Person 1 by the RCMP’s Vancouver Drug Squad (VDS) in September 1984. The
RCMP VDS did not share this information with its own HQ, nor did it share it with
outside agencies, despite its clear relevance to the mandates of both Transport
Canada and CSIS. Over a month later, the VPD obtained similar information from
an independent source, Person 2, and informed an RCMP member of CIS BC and
a CSIS BC Region member on October 23rd. Effectively, the bomb plot, known
to the RCMP since mid-September 1984, reached CSIS only in late October
1984 through another source. Even then, the RCMP E Division NCIS Extremist/
Terrorist Section was aware that the Person 2 information had also previously
been provided by another, independent source (Person 1), and did not advise
CSIS of the corroboration.
Several threats were made that action would be taken against Air India during
the month of October. Knowledge of the November 1984 plot information
obtained by the RCMP in September would have been clearly relevant in this
tense climate. In early October, the GOI warned of the threat that Sikh extremists
in foreign countries would stage a spectacular event to coincide with the Hindu
1173 Testimony of John Henry, vol. 25, May 8, 2007, pp. 2541-2542.
1174 See Section 3.3.3 (Pre-bombing), Failure to Allocate Resources.
1175 See Section 1.1 (Pre-bombing), November 1984 Plot and Exhibit P-120(c): November 1984 Plot –
Chronology.
�Chapter III: What Went Wrong?
festivals that month.1176 The blowing up of an Air India plane was listed as a
possible means of attack.1177 The GOI warned that Bagri was planning to attack
an Air India plane in October.1178 The GOI further warned that Sikh extremists in
London had decided to hijack an Air India flight specifically in North America.
On October 17th, the RCMP requested a TA from CSIS on the basis of this
information, but failed to pass on the November 1984 plot information as it
had not been transmitted internally within the RCMP to the Protective Policing
Branch that made the TA request.1179 On October 22nd, CSIS provided a TA
concluding that the possibility of a hijacking in Canada was remote, but could
not be ruled out.1180 The TA noted that CSIS had no independent information to
corroborate the threats. Days later, after CSIS received the November 1984 plot
information from the VPD, it issued an updated TA concluding that “…there is a
real possibility that Sikhs will damage an Air India plane.”1181
This radical change in the CSIS assessment of the risk from “remote” to “a real
possibility” demonstrates the dramatic influence of new information in CSIS
threat assessments. Had the RCMP passed information about the November
1984 bomb plot to CSIS in September, CSIS would have undoubtedly viewed the
threats of actions to be taken in October with more urgency, and pursued more
vigorously its investigation into these threats. Conversely, the change in the
CSIS position also demonstrates the potential for a real threat to be discounted
because of an important piece of information not being passed on for CSIS to
consider.
In any event, no hijacking or sabotage of an Air India airplane occurred in
October or November of 1984, so that in the short term, there were no disastrous
consequences from the failure to pass on relevant information. However, the
RCMP continued to discount the information it received, which indicated that
the bomb plot had been postponed rather than abandoned, when Person 2 was
incarcerated in October 1984.1182 This lax attitude led to growing internal RCMP
indifference to any kind of follow-up. It may also account for the RCMP’s failure to
pass along to CSIS this information and previous information – only discovered
in 1986 in RCMP files – indicating that Person 1 had made statements to police
in September 1984 about a man in Duncan who could manufacture “nitro” for
blowing up an Air India flight. These latter two pieces of the possible mosaic
were particularly relevant to CSIS’s ability to understand the threat, as they were
to the subsequent police investigations.
The most striking instance of the failure to benefit from the mosaic effect is
the oft-discussed June 1st Telex.1183 The RCMP obtained this critical information
1176
1177
1178
1179
1180
1181
1182
Exhibit P-101 CAA0101, p. 1.
Exhibit P-101 CAA0101, p. 1.
Exhibit P-101 CAA0097, CAA0101, p. 2.
Exhibit P-101 CAA0103.
Exhibit P-101 CAB0149.
Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 229-3, p. 5).
See Section 1.1 (Pre-bombing), November 1984 Plot and Exhibit P-120(c): November 1984 Plot –
Chronology.
1183 See Section 1.2 (Pre-bombing), June 1st Telex.
435
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warning all Air India stations of the threat by Sikh extremists of sabotage attempts
by time/delay devices or explosives in registered baggage and calling for the
implementation of five counter-sabotage measures.1184 The RCMP detachment
at Toronto’s Pearson Airport received the June 1st Telex from Air India officials and
passed the information to the RCMP HQ Airport Policing Branch. The Airport
Policing Branch responded by requesting an updated threat assessment from
CSIS, but failed to pass the actual June 1st Telex to CSIS. At the Inquiry, CSIS HQ
Sikh Desk analysts confirmed that they had never seen the information in the
June 1st Telex. CSIS issued a TA in response to the RCMP request based on the
information in its possession. Without the benefit of this new information, CSIS
concluded that the “threat potential” to Air India was “high,” but that it was not
aware of any “specific threats” at the time.1185
CSE received information independently that corroborated the underlying
information in the June 1st Telex, indicating that specific security measures
were to be undertaken by all Air India stations both within and outside of India
during June 1985. Shortly after the RCMP received a copy of the June 1st Telex
through Air India, separate CSE information indicated an increase in specific
security measures, substantially similar to those listed in the June 1st Telex,
which were being undertaken at Indian airports in light of threats of hijackings
and bombings by Sikh extremists. Security audits were being undertaken at
several Indian airports in response to this threat. Other CSE information at the
time noted that the GOI had recently shown an increased interest in the security
of airports against the Sikh terrorist threat in the month of June 1985.
There is no record that any of this information was passed on by CSE to CSIS or
to any Canadian government personnel. William (“Bill”) Sheahan, who serviced
high-level DEA clients with specific interests in Sikh extremist issues, maintained
weekly distribution notes, none of which mentioned any of these documents.
LaCompte, who delivered CSE reports to the CSIS Sikh Desk, recalled the
November 1984 plot when asked about relevant reporting immediately after
the bombings, but did not recall these more recent relevant documents.
The failure by the RCMP to pass on the June 1st Telex is difficult to understand.
It deprived CSIS of a clear and direct warning, attributed to the intelligence
section of India’s state-owned airline, that Sikh extremists were targeting Air
India flights for sabotage. The only reason cited by Sgt. J.B. (“Joe”) MacDonald of
RCMP HQ Airport Policing for not passing the June 1st Telex was that he saw “no
need” to share the information with CSIS.1186
Evidence before the Commission indicates that at times there was a perception
among RCMP and Transport officials that threat warnings sent by Air India, such
as the June 1st Telex, were provided simply for the purpose of obtaining additional
security for Air India flights at no extra cost.1187 This sort of reasoning would
have been put into question, if not refuted altogether, by the CSE information
that the GOI was assiduously pursuing these very same security upgrades for
1184
1185
1186
1187
Exhibit P-101 CAA0185.
Exhibit P-101 CAA0199.
See Section 1.2 (Pre-bombing), June 1st Telex.
See Section 1.2 (Pre-bombing), June 1st Telex.
�Chapter III: What Went Wrong?
Air India flights, both inside and outside India, because of fears of violence
from extremists and undertaking real measures in response to the threat. At
the time, all Indian airports and major airlines were nationalized. The cost of
any requirement to implement increased security at Indian airports would have
been borne by the Indian government. Thus, a call for increased security at
Indian airports could not have been an attempt to obtain security for free. Had
CSIS been able to analyze the June 1st Telex in light of the CSE information, it
might have been able to warn the RCMP that both pieces of information likely
related to a bona fide threat.
In the end, of course, CSIS had none of the information in question: neither
the June 1st Telex, nor any of the CSE information about the increased security
measures in Indian airports. Each of these items of information might have
seemed relatively inconclusive or ambiguous on its own. However, when pieced
together by a trained analyst, a much clearer, and undoubtedly alarming, picture
probably would have been discerned.
Had CSIS been given the additional information, namely, that the November
Bomb Plot had only been postponed, as well as the information about the man
in Duncan who could manufacture “nitro” for blowing up an aircraft in flight,
an even clearer mosaic pattern should have emerged. The pattern would have
pointed to the seriousness of the threat to Air India as well as to the potential that
it could involve sabotage and not only hijacking, the concealment of a bomb in
checked baggage as the possible mode of sabotage, and the real possibility
that the focus of an attack against an Air India plane might be in Canada, carried
out by Canadian residents.
It is, of course, also possible that, even if the June 1st Telex and the CSE information
had been passed to CSIS, the Sikh desk would still have been unable to “connect
the dots”, or that the pattern would have been lost amid other information given
to CSIS. The critical point is that CSIS never had the opportunity to assemble the
mosaic because those key pieces were never given to it.
As a result, when CSIS issued its final TA1188 before the bombings on June 18,
1985, it made no reference to the threat to Air India or to any aviation security
threats, and had little more to report other than that the general threat was only
“slightly less serious”, a conclusion apparently reached on the basis of what they
thought to be common sense.
The failure to coordinate government-wide information led to a situation where
the lack of information-sharing with CSIS by various agencies resulted in CSIS
returning a virtually meaningless threat assessment in the critical week before
the bombings. Critical information remained siloed within each agency’s
holdings, robbing CSIS of the opportunity to effectively carry out its mandate to
assemble the puzzle for the benefit of national security.
1188 Exhibit P-101 CAB0321.
437
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Why Was the Information Not Passed to CSIS?
There has never been an official explanation for the failure of the RCMP to send
the June 1st Telex to CSIS at the time that it asked CSIS for an updated assessment
of the threat against Air India, aside from MacDonald’s testimony that he saw “no
need” to share the information. The threat assessment update request was made
in direct response to the RCMP’s having been given the telex by Air India, and
the (inaccurate) representation by the RCMP to the Honourable Bob Rae that it
had passed the telex on to CSIS along with the update request demonstrates,
if nothing else, the obvious conclusion that it should have been passed on, as
the Attorney General of Canada conceded in its Final Submissions.1189 Against
the backdrop of erratic RCMP internal communications and poor training about
the threat assessment process and the nature of intelligence that needed to be
passed to CSIS,1190 the failure to communicate externally is not surprising.
As for the failure of CSE to communicate potentially relevant information,
the explanation seems clearer and seems to be rooted in a faulty structural
design. CSE was deliberately given a mandate to collect signals intelligence
(defined earlier) but not to analyze it. As such, it was structurally incapable of
determining for itself the relevance of all but the most obvious intelligence it
might collect, having instead to rely on general relevance criteria and markers
provided by CSIS, the RCMP, DEA, or other clients. This would seem like a recipe
for almost certainly missing at least some of the relevant information that might
not fit exactly within the predetermined criteria. LaCompte testified that, in his
daily search, he would look for reports “…impacting on Canadian security.”1191
Using the limiter “Canadian security” had the potential to miss capturing threat
information warning of similar threat situations in other countries that could
have provided context to threats in Canada. In June 1985, several CSE reports
indicated several threats to major Indian targets were being made by Sikh
extremists and the GOI was taking steps to verify and respond to these threats.
In fact, as warned, bombings did occur at major public locations in India. After
the Air India Flight 182 and Narita bombings, reporting continued to emphasize
the importance of implementing specific security measures in light of the
ongoing terrorist threat, specifically referencing the instructions to increase
airport security measures sent to all Air India stations worldwide nearly one
month prior. None of this reporting appears to have been disseminated outside
of CSE. All this information represents more missing pieces of the puzzle.
Recognition of the Lack of Coordination
The Canadian government recognized the deficiency in the lack of governmentwide coordination in the threat assessment process in the pre-bombing period.
A May 31, 1985 report of the PCO Intelligence and Security Coordinator1192
1189
1190
1191
1192
See Section 1.2 (Pre-bombing), June 1st Telex.
See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
Testimony of Pierre LaCompte, vol. 90, December 6, 2007, p. 11914.
The Intelligence and Security Coordinator position was created in February 1985 and filled by Blair
Seaborn. Seaborn also acted as Chair for the Interdepartmental Committee on Security and
Intelligence (ICSI), a high level interdepartmental committee mandated to produce policy-neutral
threat assessments. See Section 2.0 (Pre-bombing), The Intelligence Cycle and Intelligence
Community, for more detailed information.
�Chapter III: What Went Wrong?
recognized the “…obvious need for greater interdepartmental coordination.”
It recommended the establishment of frequent interdepartmental reviews of
threat assessments by a group composed of External Affairs, CSIS, RCMP, CSE,
PCO and DND (and CEIC and Transport Canada as required).1193
In May 1985, an ad hoc working group on Sikh terrorism was formed by External
Affairs under the direction of James Bartleman, with participation from several
agencies including the RCMP, CSIS, CSE and the Solicitor General. Its mandate
was to ensure that all relevant material was looked at, and that nothing “…
fell between the cracks.”1194 William Warden, who was the Canadian High
Commissioner in New Delhi from 1983 to 1986, was in Canada in May 1985
and attended the early meetings of the ad hoc working group. He felt that the
meetings showed the first attempt by the government machinery to coordinate
the knowledge of various agencies:
[I]n May ’85, when I attended that meeting … I was
underwhelmed in the sense that the issue had been around
– for months at that point, and my feeling at that time was,
why didn’t we do this months ago instead of waiting until
May of ’85? But nonetheless, I have to say that by May of ’85,
I did feel that finally the machinery was starting to get its act
together, and in fact information was coming in, … there was
a lot of close interaction on the part of the agencies; the Indian
Government had its excellent sources in Canada, the CSIS, the
RCMP, and people were starting to pull together.1195
These efforts show that the Government of Canada was acting to correct the
known deficiency in the threat assessment process. The failure to pass on the
relevant information described in this section demonstrates that these actions
came too late to affect the Government’s assessment of the Sikh extremist threat
before the Air India and Narita bombings.
Conclusion
The lack of coordination in the threat assessment process between CSIS and other
intelligence collection agencies within the Government of Canada deprived
CSIS of information that might have allowed CSIS to apply the mosaic effect.
CSIS was (and continues to be) aware of the dangers of the mosaic effect, using
it as a basis for protecting certain sensitive information from dissemination.
However, this very technique could have led to a dramatic benefit for the threat
assessment process, if CSIS had been provided with relevant information held
by other government agencies.
1193 Exhibit P-101 CAF0060.
1194 Testimony of James Bartleman, vol. 22, May 3, 2007, p. 2105; Testimony of William Warden, vol. 24, May
7, 2007, p. 2427; Exhibit P-101 CAA0017.
1195 Testimony of William Warden, vol. 24, May 7, 2007, pp. 2388, 2413, 2427.
439
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Several government agencies were collecting and disseminating intelligence
relevant to CSIS’s investigation of Sikh extremism. Because of a lack of
clear guidance from the Government of Canada about when and how this
information should be passed on to strengthen CSIS’s threat assessment
product, information-sharing practices were inconsistent across government
agencies and police forces. The VPD had the best information-sharing practices,
consulting directly with CSIS and sharing important information. External
Affairs and Transport Canada’s information-sharing systems were hampered by
the fact that they relied on the RCMP to pass information to CSIS. The RCMP
and CSE clearly limited the information they shared with CSIS. The RCMP failed
to share largely because of internal communication breakdowns and a lack of
training and, at times, because of its perception that it, not CSIS, would produce
the final threat assessment. CSE often failed to share information because its
system to identify and disseminate relevant information was fundamentally
flawed. CSE personnel were tasked to identify relevant information but did not
have the analytical capacity or the requisite knowledge of CSIS’s intelligence
investigations. The result was that relevant information could, and did, remain
unnoticed within CSE holdings.
The major deficiency was that these front-line collection agencies made
determinations about the relevance of information without in-depth knowledge
of CSIS’s investigations. The collectors would only pass intelligence that had
reached a threshold of being obviously relevant. This system would inevitably
result in missed opportunities to apply the mosaic effect, opportunities which
might have allowed CSIS to put together a more complete picture of the facts.
A better method of dissemination would have been to have personnel with
knowledge of CSIS investigations and programs review the collected intelligence
and select the relevant material. Such personnel would have been far more
qualified to assess the relevancy of intelligence information. Unfortunately,
such a system was not in place in 1985, and critical information like the June
1st Telex and related CSE information was not made available to inform the CSIS
assessment of the threat to Air India.
The evidence shows that the Government of Canada was aware of the need
to improve communications and coordination among agencies with regard to
threat assessment and threat response in the pre-bombing period. However,
the Government was slow to improve this recognized deficiency. Ultimately,
the silos within the various agencies created a system where each agency could
claim to be adequately carrying out its mandate, while still allowing intelligence
failures to occur as a result of the lack of coordination of the respective
mandates. In effect, while each agency was doing its job, it was the structure
of this overarching system that allowed information-sharing failures to occur.
These failures impaired the Government’s ability properly to assess the threat
of Sikh extremism.
The undeniable conclusion from the foregoing is that had information been
efficiently shared among agencies rather than being retained in various silos,
CSIS would have been able to assemble enough of the “mosaic” to provide a
well-informed threat assessment to the RCMP. This might have been useful in a
criminal investigation context, and might have prevented the destruction of Air
India Flight 182 and the murder of 329 people.
�VOLUME TWO
PART 1: PRE-BOMBING
CHAPTER IV: RESPONDING TO THE THREAT
4.0 Threat-Response Regime in 1985
An effective threat-response regime is one that accurately assesses and
appropriately responds to the relevant risk. The likelihood of a given threat being
carried out and the damage that could be caused as a result are the essential
elements of risk.
The ability to assess the likelihood of a threat occurring depends on an
understanding of all relevant threat information, including a calibration of the
intent and capability of the source of the threat, as well as an understanding
of the relevant operational factors. For example, an assassin with a rifle and
a strong desire to shoot a particular politician might generally pose a “high”
threat to that politician. However, factors such as the event that the politician
will attend, including the size and accessibility of the venue, whether it is public
or by invitation only, and the nature of access others will have to the politician,
all factor into the probability of the threat being successfully carried out. This
assessment requires the ability to gather information quickly, share it with those
responsible for analyzing it, and provide the assessment and salient facts to
those charged with implementing the necessary response.
In a context of limited resources, an efficient system will also target its resources
strategically to minimize the harm that may occur in the eventuality that
various threats are carried out. For example, it may be justified for officials
to allocate resources to a moderate threat of bombing in priority to a high
threat of vandalism. The ability to address the relevant risk will depend on the
tools on hand that can be accessed to respond in an appropriate manner. For
example, the ability to prevent a would-be terrorist from releasing toxic gas on
a city subway will depend on a number of factors, including the technologies
available to detect such gas, the sophistication of protocols in place to conduct
effective searches for toxins, and the level of training of the individuals carrying
out those searches.
Relative to intelligence, protective policing issues will necessarily intersect with
issues of national security. The same factors, both symbolic and strategic, that
make certain individuals, locations, and modes of transport important objects of
protection, also make them attractive targets for terrorist attack. It is important
that this is understood within the protective policing regime so that structures
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are in place to support the sharing and collection of information, to enable
all actors within the regime to contribute to and benefit from the collective
understanding of the relevant threats. Further, as the nature and level of the
threat in relation to any protective policing mandate are not static, the system in
place must have built-in flexibility so that implementers can tailor the level and
type of protective deployment to address the relevant risk.
The threat-response regime in 1985 did not adequately incorporate the concept
of risk assessment into its operations. There were serious deficiencies within the
protective security regime in the appreciation of the threat of Sikh extremism
and its connection to the threat to Air India. This lack of appreciation was, in
large part, due to a lack of understanding by personnel in the regime about the
nature and value of intelligence and its relevance to their individual tasks and,
more generally, its relevance to the efficacy of the system. Further impacting on
this situation were inconsistent, insecure, and uncoordinated communications,
excessive secrecy, and disagreements over expenses and over the question of
which entity or organization had the ultimate decision-making authority in
times of crisis. Moreover, the systems in place did not allow for a tailoring of the
protective responses to the nature of the threats at issue. Measures were applied
in an unthinking manner and with no purpose. There was no consideration of
whether they were necessary or sufficient. The lack of awareness of risk allowed
for a system to remain in place that was unresponsive to a serious and known
threat – the threat of bombing.
The ability of the parties within the threat-response regime to share relevant
information, coordinate their efforts, and implement a targeted response are
integral functions for any such system, and these functions will be explored in
detail in this chapter.
4.1 General Obligations and Relationship to the Threat Level
The government has a duty to keep its citizens safe and to protect them from
those who would try to further their own political goals by causing harm to the
innocent. While the government can create arrangements that allow for certain
protective duties to be performed by private entities, circumstances of a greater
known risk will logically require a greater involvement by the government, either
directly, or by way of training, monitoring, and supervision of those involved, to
ensure that appropriate measures to protect are being taken.
In 1985, the RCMP had protective security duties for domestic dignitaries,
including the Prime Minister and Members of Parliament, as well as for foreign
dignitaries who were internationally protected persons under the Vienna
Convention and, later, under the Criminal Code of Canada.1 In terms of aviation
security, Transport Canada, and the RCMP by contract, had the responsibility
for the security of the airport as well as a role, in conjunction with airlines more
generally, for the protection of civil aviation security, including the protection
1
Testimony of Lloyd Hickman, vol. 18, March 7, 2007, pp. 1680-1681.
�Chapter IV: Responding to the Threat
of the aircraft, luggage and cargo. The duties varied with the level and nature of
the threat posed to the airline.
The Aeronautics Act was, and still is, the primary authority for the regulation
of civil aviation in Canada. The Aeronautics Act gives the Minister of Transport
the overall responsibility and authority for the “…supervision of all matters
connected with aeronautics.”2 Transport Canada, as owner and operator of
Canada’s major airports, with the responsibility for providing security services
for air carriers, entered into agreements for service with the RCMP.3 The services
of the RCMP in connection with airport policing were to be funded by the
Ministry of Transport.
In 1985, the RCMP was mandated to perform specific police and security
duties at designated airports, pursuant to the National Airport Policing and
Security Program (NAPSP), which came into effect in 1972 with the signing
of the Transport Canada/RCMP “Memorandum of Agreement.”4 The main
purpose of this agreement was the “…protection of civil aviation”, and airport
policing detachments were established at ten designated international and
eight domestic airports, including Toronto’s Pearson International Airport and
Montreal’s Mirabel Airport.5 Some of the main airport policing duties performed
by the RCMP, pursuant to the Memorandum of Agreement, included:
• guarding against unauthorized entry, sabotage, theft, fire or
damage6 – including the protection of, and security for, airlines
landing at the airport, and also the physical facilities of the airport
itself;7
• collection, evaluation and dissemination of intelligence information
concerning national and international threats to civil aviation;8
• responding to requests for assistance respecting passenger and
luggage check-in;9
• acting as first responders to criminal incidents;10 and
2
3
4
5
6
7
8
9
10
Aeronautics Act, R.S.C. 1985, c. A-2, s. 4.2.
Exhibit P-101 CAA0335, p. 8.
A 1972 Memorandum of Agreement between the RCMP and Transport Canada set out the RCMP’s roles
and responsibilities for airport policing: See Exhibit P-101 CAA0001. This Memorandum of Agreement
was amended in 1975 (Exhibit P-101 CAA0003) and again in 1979 (Exhibit P-101 CAA0005).
Exhibit P-101 CAC0528, pp. 6-8.
Exhibit P-101 CAF0014.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3176. See also Exhibit P-101 CAA0182, which
indicates that with respect to aircraft access, the RCMP had the responsibility to provide continuous 24
hour/7 days a week patrols, including continuous 24 hour/7 days a week vehicle and/or foot patrols of
the airside area at Mirabel, Dorval, Toronto and Vancouver International Airports.
Exhibit P-101 CAA0335, p. 8.
Exhibit P-101 CAA0182.
Exhibit P-101 CAC0281.
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• formulating, disseminating and auditing standard RCMP policy in
such areas as the development and maintenance of airport
emergency procedures, including those for bomb threats, and
the use of police service dog teams at airports.11
At RCMP Headquarters, the Airport Policing Branch, which was housed within
the Protective Policing Directorate (P Directorate), served as the policy centre
for airport policing. The Director of Protective Policing oversaw the VIP Security
Branch and the Airport Policing Branch and other branches within the Protective
Policing Directorate. The policy centre was responsible for resolving disputes with
Transport Canada when such disputes could not be solved locally or regionally,12
and for dealing with any policy that had to be written or changed.13
The HQ Airport Policing Branch was intended to be a central hub for CSIS threat
assessments.14 Upon receipt of threat information, which could come from
multiple sources, the Airport Policing Branch would request and receive threat
assessments from CSIS in order to set security levels at affected airports.15 The
Airport Policing Branch also had the role of liaising with both the RCMP airport
detachments and with Transport Canada to ensure that all who had a stake in
the security regime were apprised of pertinent threat information. Operationally,
the airport detachments reported to the divisions.16
The security regime for the safety and security of passengers, baggage and
cargo was premised on complementary roles for air carriers, the RCMP and
Transport Canada. The regulations in place at the time imposed obligations
on airlines to establish systems to carry out routine searching and surveillance
of persons, baggage and cargo by mechanical or electronic devices.17 Air
11
12
13
14
15
16
17
Exhibit P-101 CAA0182.
Testimony of J.B. MacDonald , vol. 27, May 14, 2007, p. 2764.
Testimony of J.B. MacDonald , vol. 27, May 14, 2007, pp. 2870-2871.
Final Submissions of the Attorney General of Canada, Vol. II, para. 28. See also Exhibit P-101 CAF0561:
An example of Transport Canada requesting that RCMP Airport Policing Branch request from
the Security Service an updated threat assessment respecting the political threat to Canadian civil
aviation targets.
Final Submissions of the Attorney General of Canada, Vol. II, para. 95.
Testimony of J.B. MacDonald , vol. 27, May 14, 2007, p. 2892.
Foreign Aircraft Security Measures Regulations, S.O.R./76-593, as am., s. 3(1) [Foreign Aircraft Security
Measures Regulations]. Air carriers were also required to submit to the Minister a written description
of the security measures they had established (Foreign Aircraft Security Measures Order, S.O.R./76631; Civil Aviation Security Measures Order, S.O.R./74-227). But the AGC also argued that “…the
Aeronautics Act contemplated that the onus for aircraft security would rest on the owners and
operators of those aircraft”, citing the provisions that authorized regulations requiring the owner
or operator to establish security measures for, inter alia, the search of persons, baggage, and cargo:
Final Submissions of the Attorney General of Canada, Vol. II, paras. 47, 49. However, the Aeronautics
Act was at that time, in fact, neutral with respect to the onus for aircraft security. While sections
5.1(1) and 5.1(1.2) provided authority for regulations placing obligations on air carriers to carry
out searches or other security measures, section 5.1(2) provided for regulations requiring that
the Minister of Transport carry out such measures “...in lieu of or in addition to the security measures
required pursuant to subsection (1) or (1.2)”: Aeronautics Act, R.S.C. 1970, c. A-3, as am. by S.C. 1973-74,
c. 20, s.1. Therefore, while there were regulations enacted pursuant to sections 5.1(1) and (1.2)
placing some obligations on air carriers to provide for systems of searches for baggage, it is incorrect
to state that the Act somehow contemplated that the onus for aircraft security would rest on owners or
operators or to interpret the fact of the limited regulations that were enacted as somehow derogating
from the overall obligation on the Minister for the “…supervision of all matters connected with
aeronautics.”
�Chapter IV: Responding to the Threat
carriers were also required to control access to the airside of the airports, and
to establish procedures to protect against unauthorized access to aircraft,18 as
well as systems to ensure that no unauthorized baggage or cargo were loaded
aboard aircraft.19
At the airport, Transport Canada’s Airport Manager had the generalized
responsibility to protect civil aviation operations from acts of terrorism,20 and
maintained overall jurisdiction at the airport.21 As the “…on-site minister’s
representative and ‘landlord’ [the airport Manager had] a responsibility to protect
government property and users of the airport to the extent possible.”22 Transport
Canada was responsible for ensuring that there were resources available to
respond to the needs of civil aviation, or to the requirements of air carriers.23 It
was to provide the security screening equipment used by air carriers to search
persons, personal belongings and carry-on baggage, and to set out technical
requirements and standards for screening equipment in internal departmental
publications.24 Transport Canada also provided guidelines to carriers to help
identify items in a passenger’s possession that could be dangerous.25
While air carriers undertook routine passenger and baggage check-in duties,
as well as cargo and aircraft loading, the RCMP would provide assistance with
security where the need was identified,26 with the response of the RCMP varying
with the nature of the incident.27 Thus, at Pearson and Mirabel airports, the
RCMP provided the services of a police services dog, trained to identify traces of
many different explosives with its keen sense of smell, to aid in the detection of
explosive devices that might be concealed in suspicious luggage. Similarly, the
RCMP had provided a police presence in the baggage room for the inaugural
Air India flight at Pearson, which was operating under an increased security
level,28 and there would usually be an RCMP dogmaster in the baggage area at
Mirabel for Air India flights.29 The dogmaster would also be used to search the
18
19
20
21
22
23
24
25
26
27
28
29
Exhibit P-157, p. 23.
Civil Aviation Security Measures Regulations, S.O.R./74-226. Foreign carriers like Air India were required
to “…establish, maintain and carry out” these security regulations under a parallel set of regulations:
Foreign Aircraft Security Measures Regulations, s. 3(1).
Final Submissions of the Attorney General of Canada, Vol. II, para. 120.
Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3087-3088.
Exhibit P-101 CAF0084, p. 3.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3178.
Exhibit P-101 CAF0813, pp. 4-5.
Exhibit P-101 CAF0160, p. 23.
Exhibit P-101 CAA0335.
Exhibit P-101 CAA0182.
Exhibit P-101 CAA0148: At an April 18, 1985 meeting between representatives of the RCMP, Transport
Canada, Air India and Peel Regional Police, an Air India representative “…advised that he would
like RCMP presence the same as for inaugural flight, e.g. at check-in desks, at Bridge Head, on apron
and in Baggage Room.” [Emphasis added] See also Exhibit P-101 CAF0586, p. 2. The same presence was
requested with respect to a threat received from the Assistant Indian High Commissioner indicating
an unconfirmed report that Air India Flight 181 would be hijacked on April 13, 1985: Exhibit P-101
CAC0309, CAC0528, p. 36. However, the RCMP denied this request to maintain a presence in the
baggage room but indicated to Air India that members would be ready to respond should they
be summoned by Burns: Exhibit P-101 CAA0148.
Exhibit P-101 CAF0811, p. 6.
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airplane and luggage when a “specific threat” was received by the airline.30 While
there were obligations on air carriers to establish systems to protect against
unauthorized access to their aircraft, the RCMP, under a normal operating level
of security, provided intermittent inspections of aircraft and activities on the
surrounding apron. In circumstances of increased threat, the RCMP increased its
involvement in aircraft protection and surveillance, providing services such as
escorting the plane from the runway to the gate.31
While under normal conditions there were certain requirements placed on the
air carrier for aircraft and baggage security, such requirements did not preclude
or hinder a more active role for government in circumstances of heightened
threat to an air carrier.
The regulations in place at the time confirmed that government airport officials
retained an important overall discretion respecting the safety and security of
a flight. In fact, section 813 of the Air Regulations32 specifically contemplated
an override, whereby Transport Canada33 had wide discretion to take any
action necessary to ensure that an aircraft would not depart in circumstances
considered by the government to be dangerous. Section 813 provides:
Where the Minister has reason to believe, upon complaint
or otherwise, that an aircraft within Canada is intended or
is about to proceed upon a flight in contravention of these
Regulations or while in a condition unfit for flight, he may
make such directions and take such action by way of the
provisional detention of the aircraft or otherwise as he deems
necessary, for the purpose of causing the circumstances
relating to the flight to be investigated, or the aircraft to be
detained until such time as he is satisfied that the Regulations
are being complied with or until such alterations or repairs as
he deems necessary to render the aircraft fit for flying have
been made.34
The ability to detain an airplane in circumstances in which there was concern for
the safety of the flight meant that the government had the ability to override the
will of the airline if circumstances warranted. A Memorandum of Understanding
signed in November 1982 between Transport Canada and the RCMP confirms
that the RCMP had delegated authority to enforce section 813.35 Furthermore, it
appears that the phrase “unfit for flight” was given a wide interpretation in terms
30
31
32
33
34
35
See Section 4.3 (Pre-bombing), The Role of the “Specific Threat” in the 1985 Threat-Response Regime.
Exhibit P-101 CAA0025.
C.R.C. 1978, c. 2.
Or the Minister’s designate: s. 838 specifies that “A reference in these Regulations to the Minister
includes, in relation to any particular power, duty or function of the Minister under these Regulations,
a reference to any person authorized by the Minister to exercise or perform such power, duty or
function.”: Air Regulations, C.R.C. 1978, c. 2 [Air Regulations].
Air Regulations, s. 813 [Emphasis added].
Exhibit P-101 CAC0090, p. 6.
�Chapter IV: Responding to the Threat
of the circumstances in which detention could be ordered. For example, Chern
Heed, a member of the CATSA Act Review Advisory Panel, who had served as the
General Airport Manager both at Vancouver International Airport and Pearson,
testified that he had ordered that a plane be detained where he felt conditions
were too icy for safe departure. He also confirmed that there were a number of
persons in authority, including the pilot and RCMP and Transport officials, who
could exercise their discretion to prevent the departure of a flight.36
Air India, as part of its security plan, applied more security measures than
did other foreign air carriers. Such measures, including the use of an X-ray
machine and a PD4 sniffer device, were not required by the government37
and compliance was not monitored.38 The fact that Air India voluntarily took
on additional measures cannot be taken to have lessened any obligations that
would otherwise be placed on the government in response to a heightened
threat situation.
4.2 Structural Issues in Protective Policing and Airport Security
4.2.1 RCMP-Transport Canada Relationship
Joint Responsibility for Airport Security
Airport security in 1985 was the joint responsibility of Transport Canada and the
RCMP. Each depended upon the specialized functions of the other to establish
a comprehensive security, intelligence, and operational structure capable
of protecting major airports across the country, along with the airlines and
millions of travellers. Unfortunately, the relationship between the organizations
was imperfect at best, fraught with overlap and confusion over their respective
duties, disagreements over questions of authority, budgetary disputes, and
failures to effectively cooperate, coordinate, and share information. This flawed
relationship would have significant repercussions for aviation security in general
and Air India in particular.
Under Canada’s National Airport Policing and Security Program (NAPSP),39
the requirements and standards for the NAPSP were established by Transport
Canada. Transport Canada negotiated with the RCMP to obtain the human
resources needed to fulfill the policing and security requirements for Canada’s
major airports.40 A Memorandum of Agreement (MOA) was signed between
the agencies that set out their basic responsibilities.41 Transport Canada was
responsible for ensuring that there were sufficient resources available to respond
36
37
38
39
40
41
Testimony of the CATSA Act Review Advisory Panel, vol. 36, May 30, 2007, pp. 4383-4385.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3200-3201.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3198-3200. See Section 4.7 (Pre-bombing),
Transport Canada Policy Gaps and Implementation Deficiencies.
Exhibit P-101 CAF0638.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3242-3243.
Exhibit P-101 CAA0005.
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to the needs of civil aviation and the air carrier requirements.42 The RCMP, in
turn, provided Transport Canada with information regarding the threats facing
aviation. Threats to aviation security were reviewed annually by the RCMP (later
by CSIS), and submitted to Transport Canada as part of an annual RCMP report on
policing and security at airports. RCMP members provided briefings on relevant
threats at meetings of the National Civil Aviation Security Committee.43 The
RCMP Airport Policing Branch also liaised with Transport Canada on a regular
basis and acted as a central locus for threat assessments.44
MOA: Local Budgets and Local Realities
Airport Policing budgets, which set out the person-year requirements for the
RCMP detachment at an airport, were negotiated annually at the airport level
between Transport Canada and RCMP officials.45 Dale Mattson, who was the
Transport Canada Safety and Security Manager for Toronto’s Pearson airport,
said he negotiated the budget based on his understanding of the threat level
and the security requirements of the day, which were relayed to him by the Civil
Aviation Security Branch, as well as the Airports Branch at Transport Canada’s
Headquarters.46 Through consultation with the RCMP, a level of security coverage
was decided upon that was felt to be appropriate to address the security issues
of the day and to meet all the elements of the MOA between the agencies.47
In the pre-bombing period, there was significant pressure on local airport
managers to control their spending, which resulted in local restraints being
applied to their budgets.48 Mattson testified that there were always requirements
to “ensure efficiencies” in Transport Canada’s programs and that “…we were
always looking for opportunities to reduce costs.”49 The MOA between the RCMP
and Transport Canada specifically addressed this issue and gave the RCMP a
“trump card,”50 namely section 12(b)(i), that could be used to override Transport
Canada’s discretion to increase or decrease RCMP personnel at the airport:
12. Numbers and locations of Airport Police and Security Details and
established manpower requirements shall be as mutually agreed to
by the RCMP and the Department:
a) for the purpose of this Agreement and subject to the terms
herein, the RCMP shall provide and maintain police and
security services at designated airports during the term of this
Agreement;
42
43
44
45
46
47
48
49
50
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3178.
Final Submissions of the Attorney General of Canada, Vol. II, para. 94.
Final Submissions of the Attorney General of Canada, Vol. II, para. 28.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3215-3216.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3178-3179, 3254.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3215-3216.
Exhibit P-101 CAA0034.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3253.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3243.
�Chapter IV: Responding to the Threat
b) police and security services at designated airports may be
increased or decreased at the request of the Department, but:
i) a decrease shall not reduce the police and security
service to a level less than necessary, in the opinion
of the Commissioner, to carry out the duties required
under this Agreement.51 [Emphasis added]
However, it is not clear whether the RCMP actively invoked this “trump card,”
despite the fact that there was significant concern within the RCMP that airport
policing personnel would be cut to a level where it would “…not have the
resources to supply the extra security required/requested by the various foreign
airlines.”52 In fact, in some areas, this level had already been reached.53
Whereas budgets were negotiated locally, these negotiations were done within
the framework of a single, generally worded MOA that governed the relationship
between Transport Canada and the RCMP at all detachments in Canada.54 As
pointed out by Supt. Gary Clarke, who was the OIC at Pearson airport at the
time, in his November 1984 memorandum to the OIC Protective Policing, the
problem was that “…all Airports in Canada are not the same and requirements
for each Airport are different.”55 Of particular concern to Clarke was that local
demands at Pearson airport, the “…largest and busiest in Canada,” were such
that the actual duties performed by the RCMP detachment there were not
reflected in the MOA at the time and, further, that officers were increasingly
taking on police-like duties (as opposed to purely security duties) that were
technically outside the scope of the MOA.56 These duties included drug seizures,
accident investigations, and Federal Statute cases that the forces with “…prime
jurisdiction cannot or will not investigate.”57 As a result, there was a need for
ongoing training to “better equip” airport policing members at Pearson and to
“increase their professionalism.”58 It was felt that current agreements were open
to “…wide interpretation and are too broad for today’s needs” and that they
hindered “…the development of a good day to day working relationship” with
Transport Canada.59
Thus, the suggestion was made that the national program either be “…brought
into line with the original intent or allowed to expand to meet todays [sic]
needs.”60 Or, if such a change could not occur, Clarke suggested that there be
a “local ‘Memorandum of Understanding’ or ‘Plan of Operation for Policing and
51
52
53
54
55
56
57
58
59
60
Exhibit P-101 CAA0005, p. 11.
Exhibit P-101 CAA0034.
Exhibit P-101 CAA0034.
Exhibit P-101 CAC0107, p. 2.
Exhibit P-101 CAC0107, p. 2.
Exhibit P-101 CAC0107.
Exhibit P-101 CAC0107, p. 5.
Exhibit P-101 CAC0107, p. 4.
Exhibit P-101 CAC0107, p. 6.
Exhibit P-101 CAC0107, p. 4.
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Security’ between the RCMP and Transport Canada at Pearson which would
reflect the actual conditions and needs of that airport.”61
In response to the suggestion that the MOA be adjusted to reflect the trends of
the day, RCMP Headquarters responded that Legal Services had indicated that
a more specifically worded MOA would be “too restrictive,” and that the airport
detachments were never meant to be investigative units and, therefore, any
move to extend their roles should not be permitted.62 It is clear that in the prebombing period, the RCMP was concerned about the possibility of Transport
Canada demanding a more restrictive MOA, and was concerned that the already
limited role of airport policing could be further curtailed should the RCMP make
any waves in terms of renegotiating the MOA:63
The duties of the Airport Special Constables are anything but
exciting and our Airport Detachment Commanders, 2 i/c’s, etc.
feel that by cooperating with local police forces and permitting
the Special Constables to investigate certain occurrences that
it improves their morale and gives them a feeling of worth.
I will not argue with this from that point of view, however, it
could end up in a situation where person years would be cut
and Transport Canada demanding a more restrictive type
MOA. We must prevent this from happening at all costs….64
And further:
The Force’s involvement in the NAPSP is indeed quite unique.
We are bound by the terms of the MOT/RCMP Memorandum of
Agreement and we must learn to live with this and the reviews
of the program as long as Transport Canada is responsible for
100% of our costs. If it were possible to expand the role of the
Airport Special Constables, it could have detrimental effects
to the Force. A case in point being the requests of “H” and “J”
Divisions to have Special Constables perform Highway Patrol
Duties. The requests were turned down, however, the Province
of New Brunswick now has their own Highway Patrol in place
and our role is diminishing there.65
The ability of the RCMP to respond to local needs was therefore somewhat
hindered by a lack of flexibility in its formal arrangements with Transport
Canada. However, the failure of the RCMP to address this issue head-on was
also apparently caused, to some extent, by its own concern that by asking for
more, it could end up with less.
61
62
63
64
65
Exhibit P-101 CAC0107, p. 5.
Exhibit P-101 CAC0281, p. 3.
Exhibit P-101 CAC0281.
Exhibit P-101 CAC0281, p. 3.
Exhibit P-101 CAC0281, p. 5.
�Chapter IV: Responding to the Threat
Operational Decisions at Airports
Once the local budget had been agreed on by Transport Canada and RCMP
officials, the RCMP was generally able to manage its own day-to-day deployment
locally, without the input of Transport Canada.66 That the operations of the
RCMP detachment at the airport were to come under the exclusive direction of
the member in charge of the airport detachment was specifically contemplated
in s. 10 of the MOA at the time:
The Police and Security Detail at the airport will come under
the exclusive direction of the member in charge of the Police
and Security Detail, or the person acting in his place, who will
instruct them as to their duties and responsibilities.67
At the same time, s. 5 of the MOA provided that the RCMP was to keep local
Transport Canada officials apprised of relevant information concerning the
provision of police and security services:
On matters of policy pertaining to the provision of police and security
services by the Police and Security Detail the following will apply:
(a) the member in charge of the Police and Security Detail will
consult regularly with the Manager68 or his designate to ensure
harmonious interfacing between the Police and Security Detail
and airport operations….69
The RCMP detachment had flexibility to redeploy human resources from tasks
of a lower to a higher priority. Responses to “specific” or heightened threats
were usually handled within the resources that were at the airport,70 and, as
such, Transport Canada would not generally need to pay for the additional
deployment with respect to, for instance, a “specific threat.” At times, however,
the threat level necessitated additional local expenditure, beyond what was
budgeted for overtime payment for RCMP airport personnel required to meet
the local security needs, for example. In such cases, the agreement of Transport
Canada was required to release the requisite additional funds to the RCMP.71
Thus, budgetary decisions, dependent on Transport Canada, could impact
the operational ability of the RCMP to deploy resources as it saw fit. Later, in
June 1985, when a dispute erupted at Pearson over the payment by Transport
Canada for additional security in response to a heightened threat, RCMP officials
66
67
68
69
70
71
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3214.
Exhibit P-101 CAA0005, p. 10.
“Manager” is defined in the MOA as “Airport Manager.”
Exhibit P-101 CAA0005, p. 8.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3215-3216, 3253.
Exhibit P-101 CAA0240, p. 3.
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would view the refusal by Transport Canada to release funds upon request to
be a default from the MOA, s. 10, which provided the RCMP with the ability to
exclusively direct the Police and Security Detail.72
When a request for additional security was presented, local Transport Canada
officials would pass their concerns up to the Civil Aviation Security Branch and
ask whether these requirements were valid, and whether additional resources
should be provided.73 Mattson testified that he understood that this was a
decision made through consultation between the RCMP and Transport Canada
at the Headquarters level.74 In the case of security decisions respecting Air India,
Mattson said he relied on the advice that he received from his Headquarters,
which is where the experts were who were charged with assessing the threat. In
1985, there were only two airlines, including Air India, that were the subject of
ongoing security threats.75
Mattson testified that the Civil Aviation Security Branch at Headquarters
would inform officials on the ground about whether, from Transport Canada’s
perspective, the additional resources could be funded, and would indicate what
was expected of officials at the site with respect to the introduction of security
measures. It is important to note that Transport Canada Headquarters had the
ability to impose additional procedures that were deemed necessary to address
the relevant threat.76 This fact underscores the importance of having structures
in place to ensure the appropriate sharing of information within and among
agencies. Unfortunately, deficiencies in that sharing of information resulted in
significant impediments to implementing adequate, responsive measures that
would meet the threat.
Transport Canada/RCMP Disputes Affect Aviation and Airport Security
The relationship between Transport Canada and the RCMP, although formalized
in a written MOA, was nevertheless the subject of multiple disputes and
misunderstandings in the period leading up to the bombing of Air India Flight 182.
As this discussion and the following sections make clear, these disagreements
would have profound implications for aviation security in general and airport
security in particular.
4.2.2 RCMP Protective Policing
Mandate and Operations: Need for Centralization
In 1985, the RCMP’s Protective Policing mandate involved, among other things,
the protection of international VIPs, foreign missions, designated airports
72
73
74
75
76
Exhibit P-101 CAC0445, p. 7. See Section 4.5 (Pre-bombing), Failures in Coordination between
Transport Canada and the RCMP.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3231-3232.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3214.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3248-3249.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3215.
�Chapter IV: Responding to the Threat
and Canadian dignitaries. It was a mandate that necessarily intersected with
national security issues, such as the threat of Sikh extremism or the ArmenianTurkish conflict. Threat information relevant to protective operations came from
many sources. Protectees, including Indian diplomats and Air India, were often
objects of threats, and were thereby a source of threat information for the RCMP.
It is crucial that on-the-ground threat information be channelled into a central
threat assessment regime, so that each threat can be assessed individually in
the context of the broader threat and intelligence landscape, while at the same
time adding to that knowledge base. The need for centralization also arises from
the need for appropriate dissemination of threat and intelligence information.
Threats or intelligence received in one locale may have important protective
policing implications for another. It is therefore important that a central unit
within Protective Policing, with an understanding of the operational need and
of the larger threat context, have the ability to direct relevant information in
order to properly sensitize those on the ground locally.
In order to be effective in collecting and disseminating threat information, it is
necessary to have at least a basic appreciation of operational on-the-ground
situations across the country. This, in turn, means that there must be some
duty to report centrally on local protective policing conditions. At the same
time, given that the central unit will necessarily have access to a significantly
larger pool of information than the individual divisional units, and given the
often highly sensitive political implications associated with protective policing
operations, it is essential that the central unit have the authority to direct and
redeploy resources, and to coordinate protective operations of individual units,
should the need arise.
Failure to Centralize Protective Policing Adequately in the Pre-Bombing Era
In the pre-bombing era, RCMP Protective Policing had, notionally, a centralized
structure for threat and intelligence reporting. In the case of Airport Policing,
the airport detachments had direct interaction with the Headquarters Airport
Policing Branch, to which they sent threat information, and through which
they received intelligence assessments from CSIS and direction for the level of
security to be applied in relation to these threats.
However, despite this notional structure, the structure actually in place was
decentralized. The Airport Policing Branch, and the P Directorate more
generally, were set up as non-operational policy centres, and fundamentally
administrative.77 The actual airport detachments were under the operational
line command of the Criminal Operations Officer (CROPS) in charge of each
Division.78
77
78
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2893. As stated by Commissioner Robert
Simmonds, at the time, RCMP Headquarters was normally “…fundamentally an administrative
headquarters”: Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9365.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2892.
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Similarly, the VIP security sections, responsible for protective operations in
each division, were administered out of the division headquarters.79 Each VIP
security section had an officer in charge, who reported up through the Criminal
Operations Officer.80 The separation of operational matters from policy matters,
combined with the de facto decentralized Airport Policing reporting structure,
was ill-conceived and led to deficiencies in the implementation of protective
security measures.
First, categorizing Headquarters’ functions, including dissemination of threat
information and setting of security levels, as “policy”, as opposed to “operational
functions”, was simply a misunderstanding of their purpose and effect. What
Headquarters did was translate threat information into operational directives,
based on an application of the VIP or Airport Policing security grid, for
implementation by those on the ground. This meant that Headquarters played
an (unacknowledged) operational function, but did not actually have operational
line authority. The result was that the detachments had no direct obligation
to report back about how Headquarters’ directives had been implemented,
and Headquarters had no real authority to ensure that its directives were
appropriately carried out. As a consequence, the Airport Policing Branch was
not notified of breaches of its own directives. For example, Sgt. J.B. (“Joe”)
MacDonald, Acting OIC of Headquarters Airport Policing Branch, who ordered
that level 4 security be put in place for Pearson airport, was unaware that the
dogmaster had not been available at Pearson on the night of the bombing,
despite the fact that the presence of the dogmaster was required to properly
implement level 4 security.81 The absence of reporting obligations on the part of
the detachments, and the disconnect between so-called policy and operational
matters, meant that Headquarters could not tailor its directives, or modify its
“policies,” in line with operational realities.
The problem of the disconnect between policy and operational matters is
illustrated by the episode of the PD4 sniffer test. On January 18, 1985, a meeting
took place at Pearson airport involving RCMP S/Sgt Robin Ward and Sgt. Gary
Carlson, the RCMP dogmaster for Pearson, along with a representative of
Transport Canada, and officials from Air India and Peel Regional Police. The PD4
sniffer device was presented by a representative of Air India and Carlson tested
its effectiveness using a vial of gunpowder. He found that the device was totally
ineffective. He performed a second test of the device on the following day in
the presence of Ward. Again, the device proved to be unresponsive.82 After the
first test, Carlson informed Air India that the PD4 was not an effective method
of checking suitcases for explosives.83 Carlson had training and expertise in
the detection of explosives.84 His opinion that Air India was using a device that
79
80
81
82
83
84
Testimony of Lloyd Hickman, vol. 18, March 7, 2007, p. 1690.
Testimony of Lloyd Hickman, vol. 18, March 7, 2007, p. 1685.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2863. See Section 4.6 (Pre-bombing), RCMP
Implementation Deficiencies in the Threat-Response Regime.
Exhibit P-101 CAC0268.
Exhibit P-101 CAC0268.
Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 2992.
�Chapter IV: Responding to the Threat
effectively provided no protection in terms of the detection of explosives was
clearly a significant piece of operational information directly relevant to the
effectiveness of the protection in place for Air India. Not surprisingly, however,
given the structures in place at the time, it does not appear that this information
was ever communicated to RCMP Headquarters in the pre-bombing period.
Given the role of Headquarters in translating CSIS intelligence about threats
into operational directives, the information regarding the effectiveness of
the tools on hand at Pearson, especially regarding their ability to respond to
hidden explosives, should have been available to be taken into consideration
by Headquarters in its security deployment directives, especially in light of the
threat information about possible bombings at that time.
Another problem posed by the lack of centralization within Protective Policing
was that threat and intelligence information was being directly communicated
between the airport detachments (or the VIP security units at the divisions)85
and Headquarters. This meant that the Divisional COs were not necessarily
sensitized to the threat environment or to the needs of protective operations.
By June 1984, concern about the political implications of the threat level and the
need for greater protection for Indian diplomats and missions had reached the
highest levels of government. On June 12, 1984, Marcel Masse, Under Secretary
of State for External Affairs, wrote to Henry Jensen, Deputy Commissioner
Criminal Operations of the RCMP, to raise concerns about the need to protect,
and to be seen to protect, Indian personnel and premises.86 In response to this
concern, the Director of Protective Policing instructed Supt. R.E. Muir, the OIC
VIP Security Branch at the time, to take immediate action to increase the level
of security for Indian diplomats and missions in Ottawa, Toronto and Vancouver,
using armed RCMP personnel and marked vehicles.87 On June 13, 1984, VIP
Security Branch ordered that the divisions implement security in line with these
instructions.88 On August 20, 1984, Muir wrote to the divisions indicating that
it was imperative that Headquarters be advised immediately of any incident
relating to Indian property and personnel and, further, that “…this situation
is now receiving attention at the highest levels of government and, therefore,
we must be prepared to account for, at a moment’s notice, any action we have
undertaken.”89
Despite the extreme concern displayed at higher levels about the threat, it does
not appear that a similar awareness or level of concern percolated down to
the divisional level. On August 27, 1984, the Deputy Commissioner of Criminal
Operations wrote to the Director of Protective Policing (with a copy to Muir)
indicating:
85
86
87
88
89
Final Submissions of the Attorney General of Canada, Vol. I, para. 84; Testimony of Gary Clarke, vol. 28,
May 15, 2007, p. 3032.
Exhibit P-101 CAC0131.
Exhibit P-101 CAC0138.
Exhibit P-101 CAC0135.
Exhibit P-101 CAC0207.
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It seems to me that we are under resourcing in our planning
for the various public events at which Indian Diplomats are
present. I wonder if our Divisions are sufficiently sensitized in
this regard bearing in mind our new responsibilities under Part
4 of the CSIS Act.
He went on to specify:
I would like you to draft a letter to all divisions pointing out the
implications for Canada if Indian diplomats, or for that matter,
any diplomat is not adequately protected. The flag ceremony
in Vancouver is a good example of where we should have
had the Counsel General’s home well protected…. I have the
impression your VIP Branch communicates with VIP sections
and divisions and in the process the CIBO and CO are not
taking the interest and initiative that they should.
Written below this text is a direction, presumably to Muir, from the Director of
Protective Policing, stating, “The message is clear – Protect. Please draft suitable
letter.”90 [Emphasis in original]
On September 4, 1984, Jensen signed a letter that was sent to all divisions about
the protection of foreign mission personnel and property in Canada, indicating
concern with recent events in which a senior Indian diplomat was attacked
and damage to Indian mission property was sustained. Jensen emphasized the
importance of adequate security being put in place to protect, pursuant to the
RCMP’s Part IV duties under the CSIS Act, and also for diplomatic relations with
India.91
The problem of the lack of sensitization of the divisions about the level of
threat was further compounded by the fact that additional RCMP security
requirements could be a drain on other federal units at the divisional level. The
nature and seriousness of any local threat, and therefore the level of demand
for Protective Policing services, would inevitably vary over time. As a result, in
1985, during high levels of threat, the need for Protective Policing personnel at
times exceeded the permanent local complement at a given VIP section. When
this occurred, additional personnel had to be drawn from other federal duties
performed by the RCMP at the divisional level. In addition to being a drain on the
resources available for other duties, the requirement to draw on other sections
also had cost implications for the RCMP. The RCMP facilitated the placement of
guards at missions and as escorts for foreign diplomats, but the cost of these
private security guards was assumed by the Department of External Affairs.
However, in situations of high threat, private guards were at times replaced
by RCMP officers from other federal units. The cost of providing RCMP security
90
91
Exhibit P-101 CAC0214; Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5417-5419.
Exhibit P-101 CAC0216(i).
�Chapter IV: Responding to the Threat
guards was borne by the RCMP.92 When additional personnel were needed
for protective duties, since Headquarters did not have line authority, it was
necessary for Headquarters to go through the divisional Commanding Officers
to effect any additional mobilization. Drawing personnel from other areas of
federal policing, and the long-term use of RCMP officers for security, could be
disruptive and costly for divisions,93 and at times “…caused friction between …
Headquarters branch setting that level and the field divisions who had to carry
it out….”94
This type of pressure, emanating from the divisions, may help explain why,
less than a month after Muir was instructed to write a letter to the divisions
about the level of concern for Indian diplomats and property and the need for
adequate security, he wrote on October 1, 1984, to Michael F. Doyle, Deputy
Chief of Protocol at DEA, recommending that security for Indian missions and
personnel in Canada be decreased. 95 The memo stated that, for three months,
since June 6, 1984, approximately 75 RCMP members had been providing
accommodation/site security and escorts to Indian diplomatic personnel.
He described the provision of additional security as being “…at considerable
financial cost” and serving to “…severely [reduce] our human resources required
for our other responsibilities.” It appears that the request to decrease security
was denied, but on October 30, 1984, VIP Security Branch again wrote to DEA
to request permission to replace RCMP officers with private security guards in
Ottawa, Toronto, and Vancouver.96 Due to the assassination of Indira Gandhi
on October 31, 1984, it was again decided that no lessening of security should
occur.97 Nevertheless, the request to decrease security was again repeated, just
over one month later, on December 3, 1984.98
Approximately five months later, on May 16, 1985, as the threats to Indian
personnel and interests were rising, crescendo-like, to a peak,99 the OIC for E
Division (in British Columbia, the base of Talwinder Singh Parmar and other
members of the BK) wrote a message to Headquarters:
Please be advised that efforts are being made in this division
to comply with the instructions embodied in your telex. With
a view to dealing with other operational requirements in this
division, E Division is requesting knowledge as to the specifics
regarding the threat, which has produced the need for this
security upgrading. The reason for this request is that the
assessment in this division at the present moment is at the
nil or low threat level. Further, this Division requests specific
92
93
94
95
96
97
98
99
Testimony of R.E. Muir, vol. 28, May 15, 2007, p. 2981.
Testimony of R.E. Muir, vol. 28, May 15, 2007, p. 2982.
Testimony of Lloyd Hickman, vol. 18, March 7, 2007, p. 1696.
Exhibit P-101 CAC0222.
This request is referenced in Exhibit P-101 CAC0255.
Exhibit P-101 CAC0241, CAC0243.
Exhibit P-101 CAC0255.
See Section 1.12 (Pre-bombing), A “Crescendo” of Threats.
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instructions as to the implementation of special “O” counter
surveillance. That is, is there a specific threat against the Indian
consulate in Vancouver that demands that other Division,
Special “O”, priorities be abandoned or deferred for these
purposes. Your reply is awaited prior to implementation of
special “O” counter surveillance.100
The reply from Headquarters came the next day:
Regret we cannot agree threat re Indian Mission & Personnel
in ur [sic] Division is presently at “nil or low threat level.” CSIS –
NCIB/NSE plus several other reliable sources state otherwise
and as a consequence you were asked to strengthen security
by utilizing RCMP personnel until further notice. Re: Request
for Special “O” counter-surveillance, although we appreciate
you have other important priorities, we ask as a minimum
selective counter-surveillance measure be instituted on the
movements of consul general…. Your cooperation in this and
like matters is appreciated.101
Clearly, there was a significant disconnect in the perception of the threat
between Headquarters and the division. Equally clear is the fact that the
divisions did not simply carry out directives of Headquarters. Instead, the local
implementation of Headquarters directives was a matter of negotiation with
the divisions, given Headquarters’ lack of formal authority over the divisions.
Those in charge of deciding at the divisional level were obviously not informed
of the relevant circumstances, and Headquarters made little effort to correct the
situation, as shown by the lack of explanation of the nature and seriousness of
the threat requiring counter-surveillance.
Within airport policing, there is evidence of similar resistance to the deployment
of additional resources at the divisional level. In June 1985, the O Division
OIC Criminal Operations, C/Supt. D.H. Heaton, became involved in arranging
for resources to meet the additional airport policing requirements for RCMP
personnel due to the level 4 security ordered for Air India’s protection at
Pearson. On June 7, 1985, he wrote to the Director of Protective Policing at
Headquarters:
Request clarification. To avoid any confusion, drug personnel
were not/not used to provide security on 85-06-01. At
my direction, Airport Policing personnel utilized on the
understanding we would address overtime issue later. We
cannot keep redeploying other personnel for such duties.
100 Exhibit P-101 CAC0347.
101 Exhibit P-101 CAC0338.
�Chapter IV: Responding to the Threat
In my view, Airport Security [is the] responsibility of Airport
Policing and if we do not feel security necessary, then no
personnel should be provided.… I possess no information on
which to base decision on tomorrow’s flight other than fact
added security requested [by] external affairs.102
It would appear that there were at least three structural disincentives to
adequate divisional deployment of additional required personnel. First, the
ultimate authority to decide on deployment decisions did not reside with those
in charge of receiving threat information, and, therefore, deployment decisions
would not necessarily reflect sensitivity to the seriousness of the threat. Second,
deployment of additional RCMP personnel for protective policing, at least in the
case of VIP security, was a resource drain on other federal units. To the extent
that there were limited human resources within the RCMP at the time, divisional
COs would have to draw on personnel already actively engaged in other duties.
Finally, to the extent that additional RCMP personnel had to be drawn from
other federal units, the Force would also suffer a financial drain.
Impact of Resource Constraints on the Effectiveness of Airport Policing
Without sufficient resources, any commitment to effective aviation security
will be severely curtailed. In 1985, the Airport Policing program was under
considerable financial strain. There had been cutbacks to airport policing at
Headquarters,103 and the Airport Policing program was “…constantly being
bombarded with reductions in staff.”104 Jensen testified about his perception of
the state of airport policing at the time:
MR. JENSEN: …you must know what the limited mandate of
airport policing was in those days. It involved a ramp patrol
to keep traffic moving, taxis in order and so on; a special and
constant uniform presence within the terminal itself; and then,
there would be a patrol car unit outside on the apron to make
sure that nobody is tampering externally with aircraft that are
going to depart. And then the occasional stroll around the
perimeter.
Now that was the extent of airport policing within the RCMP that had been
downsized by government over three successive years – I don’t know ’76, ’78
and beyond.
102 Exhibit P-101 CAA0202. In this vein, it is significant that deployment decisions respecting the RCMP
police service dogs also fell to the divisional OIC Operations: Testimony of Dale Mattson, vol. 29, May
16, 2007, p. 3245. One situation in which this structure could have had important consequences
is in the context of an emergency bomb threat. The RCMP Emergency Manual in force at the time for
Pearson Airport provided that when the Toronto explosives detection dog was unavailable, the
RCMP should consider the use of the Montreal Airport’s police dog team, upon approval of the OIC
Ops. NCO: Exhibit P-101 CAC0310, p. 16.
103 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2869.
104 Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3078.
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MR. SHORE: ’84 (eighty-four.)
MR. JENSEN: Yes. So, you know, it wasn’t a very effective
means of dealing with very much; it was designed as an antihijacking measure.105
According to an internal Transport Canada document dated April 23, 1985, the
resources allocated to RCMP Airport Policing had been decreased by 57 per
cent over a 12-year period.106 In 1973, there were approximately 118 passengers
travelling per day per RCMP member deployed; by 1983 that number had risen
to 262 passengers per day per RCMP member.
Yet further cutbacks were being contemplated at this time. Paul Sheppard, the
Director of Civil Aviation Security for Transport Canada, forcefully argued against
a proposal from the Office of the Auditor General to save costs by further reducing
the police “visibility” at federal airports. He emphasized that Canada was already
viewed as a “weak link” in aviation security by the international community. In
his view, other alternatives should have been examined, including questioning
why the RCMP was not mandated to police federal facilities directly rather than
under contract, which is paid for out of the budget of each airport manager. In
his view, these accounting practices had led to “difficulties over the years.”107
The type of “difficulties” that arose from the nature of the relationship between
RCMP and Transport Canada is alluded to in a May 1983 memorandum, written
by the OIC of the Airport Security Branch, in which he expressed concerns that
the reductions in staff would affect security and safety levels:108
One of the biggest problems facing Airport Policing is
our diminishing human resource levels. The problem is
more enhanced by the present budgetary restraints which
effects [sic] all levels of government. Continuous pressure
on local Airport Managers to control their spending, results
in local restraints being applied to adjust their budgets.
One of the unfortunate results of such measures is that our
Airport Detachment resources levels are continuously being
scrutinized. The end result of cutting our personnel is that a
level will eventually be reached where we will not have the
resources to supply the extra security required/requested by
the various foreign airlines. When this happens, any airlines
requesting “extra” security measures will be required to hire
private security guards to perform that function and our
personnel will “respond” to requests for assistance. In some
areas, these levels have already been reached.109
105
106
107
108
109
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5460-5461.
Exhibit P-101 CAF0660.
Exhibit P-101 CAF0660.
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3078.
Exhibit P-101 CAA0034.
�Chapter IV: Responding to the Threat
The dynamic created in this climate was such that Transport Canada, which
was responsible for payment for the RCMP’s protective security services, was
under continuing pressure to cut spending. At the same time, the RCMP, which
had the information necessary to understand the threat and the necessary
response, could not independently determine its own resource allocation for
this function.
The under-resourcing of airport policing was likely a symptom of government’s
failure to appreciate the real threat posed by terrorism to aviation security at
the time. This was also a possible cause of the scant attention paid to airport
policing by other branches within the RCMP, and by other agencies, in 1985.
A comparison between the staffing of Headquarters Airport Policing Branch and
the resources allocated to the VIP Security Branch is telling.110 Whereas the OIC
of the VIP Security Branch held the rank of Superintendent, and the Branch was
staffed by seven to nine members, the OIC of the Airport Policing Branch held
the lower rank of Inspector, and presided over a two-man operation. Indeed,
when the OIC was away, the position of Acting OIC was held by a Sergeant – a
rank several grades lower than that of Inspector. Decisions on the rank attached
to the OIC of a particular branch were, in fact, significant for resource allocation
because a lower-rank position was less expensive, and because lower-ranked
officers were able to command fewer subordinates.
The decisions about the staffing and rank for the Branch would also have
an effect on the ability to ensure its directives were carried out. The effect of
the RCMP’s paramilitary rank structure on internal RCMP behaviour was very
significant in 1985. As S/Sgt. Robert Wall explained:
In a paramilitary organization you do as you’re told by your
superiors, and that’s sort of where it lay and that’s the way we
operated.111
It is interesting to note that, in fact, Sgt. MacDonald was outranked by individuals
working at the airport detachment.112 This, combined with the lack of official
line authority over the detachments, may have had further implications for the
ability of Headquarters to have its directives enforced.
The low profile of Airport Policing in 1985, combined with the RCMP’s failure to
appreciate its potential role in national security issues, may help to explain some
of the deficiencies of information and intelligence flow into Airport Policing
Branch, including failures of flow within P Directorate itself.113 They may also
have contributed to the failure to consult or involve Airport Policing in pressing
national security issues, including the failure to involve Airport Policing in the
work of the Ad Hoc Committee on Sikh Extremism.114
110
111
112
113
114
Testimony of R.E. Muir, vol. 28, May 15, 2007, p. 2978.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9671.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2877.
See Section 4.4 (Pre-bombing), Failures in Sharing of Information.
Testimony of R.E. Muir, vol. 28, May 15, 2007, p. 2973.
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The view within the RCMP of the limited effectiveness or utility of the airport
detachment, combined with the perception of the duties of airport special
constables, described by MacDonald as, “…anything but exciting,”115 could only
have added to the morale problems alluded to in RCMP correspondence.116
Indeed, the RCMP special constables, who performed airport policing functions,
were not generally held in high esteem, and were often referred to as “security
guards” by airport workers.117 While they were peace officers, took the same
written exam as regular constables and had the same qualifications regarding
firearms, special constables were differentiated from regular members in a
number of ways that seemed to lower their prestige. They underwent less
demanding physical training than regular constables, did not get to wear the red
serge, and were generally older.118 Low morale caused by such factors may, in
turn, help explain some of the performance deficits observed in 1985, including
a lack of initiative and lax approach to security duties.119
Failure to Coordinate Effectively
Headquarters Airport Policing Branch did not ensure that all affected
detachments had access to all relevant threat/intelligence information, nor did
it attempt to harmonize the security provided across the country in relation to a
particular threat. Thus, even though Air India was being afforded level 4 security
at Mirabel Airport for most of the first half of 1985, at the Pearson detachment
only routine security patrols were in place, except when additional security was
provided on April 6, 1985 and in June. The same weekly Air India flight stopped
at Pearson and Mirabel. There was simply no intelligence-based justification for
such different levels of protection at the two airports.120
The failure to coordinate is also illustrated by Headquarters’ failure to disseminate
important intelligence to those who needed it. The June 1st Telex, which had
been forwarded to HQ Airport Policing Branch by the Pearson detachment, does
not appear to have been shared with detachments at other airports, including
Mirabel. This is difficult to understand or justify, because Mirabel was the first
destination of Flight 182 after it left Pearson. Nor was the June 1st Telex sent
to other RCMP detachments at airports that may have had flights connecting
with Air India in Toronto, including, of course, the detachment at Vancouver
airport, the originating point for CP Air Flight 060, onto which the bomb was
first placed, and which was the connecting flight to Air India Flight 182, onto
which the bomb was ultimately loaded.
Failure to Monitor
The Airport Policing Branch appears to have made no effort to monitor the
implementation of its directives. MacDonald testified that he did not think such
115
116
117
118
119
120
Exhibit P-101 CAC0281.
See, for example, Exhibit P-101 CAC0281, p. 3.
Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3692.
Testimony of Bob Stubbings, vol. 33, May 24, 2007, pp. 3940-3941.
See Section 2.4 (Pre-bombing), Security Culture at Canada’s Airports.
See further discussion of this incident in Section 4.3 (Pre-bombing), The Role of the “Specific Threat” in
the 1985 Threat-Response Regime.
�Chapter IV: Responding to the Threat
monitoring was necessary, stating “…we have an inspector at both places and
staff sergeants and men who are doing the job and I don’t think that I have to
go down and make sure they do what I tell them. We at least hope they do it.”121
Headquarters, as the “policy centre,” was simply not concerned with on-theground operations, even though it was expected to make operational decisions
about the security level. Because this role was not understood and the structure
gave no actual authority to Headquarters, such decisions were neither enforced
nor enforceable by Headquarters Airport Policing. While there is no evidence to
suggest that the detachments generally ignored the directives of Headquarters,
it is clear that there were significant instances where detachments did derogate
without notice to Headquarters.122
4.2.3 Transport Canada Structural Issues
Clearance Issues
An integral component of a successful aviation security partnership between
Transport Canada, the RCMP, CSIS, and the air carriers would naturally be the
ability to share information and coordinate a response quickly. Impeding this
relationship, unfortunately, was the lack of secure means of communication,
along with security clearance issues, that served to block effective communication
and cooperation between Transport Canada and the RCMP.
As discussed in Section 4.4 (Pre-bombing), Failures in Sharing of Information,
Transport Canada did not have a secure means of disseminating classified
information to the regions and airports. Transport Canada was aware of the
need for a centralized analysis and communications hub, along with national
alert standards and measures to rectify these problems. Transport Canada’s
alert levels system had been developed for terrorist threats for the 1976
Olympic Games in Montreal, and there were “…no standard terms or definitions
for a government alert system.”123 Creating a national standard would have
eliminated much of the confusion that existed when a threat was received,124
and would have greatly reduced the need to transmit classified documents. An
airport that received notice that a maximum or high alert threat existed could
take the action or actions prescribed by uniform airport and airline security
programs.125
In addition to the lack of a secure structure for distributing security information,
it was also noted in the report of the CATSA Act Review Advisory Panel that “…
no formal arrangements for the exchange of intelligence on aviation security
between Transport Canada headquarters and its airports, air carriers, and
law enforcement agencies, existed in 1985.”126 Even with proper channels of
121
122
123
124
125
126
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2877.
See Section 4.6 (Pre-bombing), RCMP Implementation Deficiencies in the Threat-Response Regime.
Exhibit P-101 CAF0084, p. 1.
Exhibit P-364, pp. 2-3.
Exhibit P-364, p. 3.
Exhibit P-101 CAF0160, p. 45.
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communication, the Panel concluded that intelligence failures, such as the
failure to properly disseminate the June 1st Telex,127 might still have persisted,
due to excessive secrecy and the “need-to-know” principle, which prevented
information from reaching those on the front lines who would be making critical
decisions.128
In that vein, a Transport Canada briefing document from August 1985 stated that
“…the dissemination of classified intelligence to non-security cleared personnel
like airline officials and contracted security screening guards presents a major
problem and requires ‘sanitation’ of the material.”129
Transport Canada required its own employees to undergo background and
criminal record checks in order to obtain security clearance. At Pearson
International Airport in Toronto, the airport manager, Ed Warrick, held Top Secret
clearance in 1985. Dale Mattson, the airport’s Safety and Security Manager, held
the lower Secret clearance.130 Transport Canada had also considered it important
to ensure that the air carriers’ representatives had security clearance, so that
they would be entitled to see classified materials pertaining to airport security.
In 1984, Transport Canada contacted the air carriers through the industry’s
agency, the Air Transport Association of Canada (ATAC), to inquire whether they
would be interested in obtaining new security clearances in order to receive
classified threat assessments directly.131 Unfortunately, this offer was declined.
On the other hand, the front-line employees and contractors of the air carriers,
working at airports across Canada, were not subject to criminal record checks or
credit checks, and were not granted any form of security clearance. This included
the private security officers responsible for screening the travelling public and
their baggage,132 as well as the aircraft groomers, catering staff, and others with
access to aircraft and sensitive airport areas.133 Without official security checks
for these airport workers, it was almost impossible to screen out potential
employees with a history of theft or other fraudulent criminal behaviour, with
severe financial difficulties which could leave them susceptible to bribery, or
who had links to extremist organizations. As noted in Section 2.4 (Pre-bombing),
Security Culture at Canada’s Airports, for example, an investigation of the
janitorial staff at Vancouver International Airport, which was conducted after
the bombing of Air India Flight 182, revealed that a number of individuals with
almost unlimited access to the airport had links to extremist Sikh organizations,
such as the Babbar Khalsa and the International Sikh Youth Federation.
In the 1970s, Transport Canada gave consideration to creating a program
to conduct security checks for all private airport and airline employees with
127
128
129
130
131
132
133
See Section 1.2 (Pre-bombing), June 1st Telex.
Exhibit P-157, p. 50.
Exhibit P-364, p. 2.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3236.
Exhibit P-101 CAF0083, p. 1.
Exhibit P-157, p. 55.
See, for example, Testimony of Brian Simpson, vol. 32, May 23, 2007, p. 3649.
�Chapter IV: Responding to the Threat
restricted area passes and access control passes.134 In 1979, however, Transport
Canada concluded that it lacked the authority to require fingerprints and
personal history forms from airline and airport personnel, and that the RCMP
(including the Security Service) lacked the authority to provide Transport Canada
with information obtained through security checks. As such, it was decided that
the aviation industry companies themselves would bear responsibility for any
reliability checks.135 Paradoxically, access to the airport’s restricted areas was
frequently denied to government officials with Top Secret clearance, but access
to these same areas was regularly granted to “…sometimes quite transient
[airport] workers who could have any type of questionable background.”136
Despite the fact that airports were high-security environments under an increasing
threat of sabotage in the 1980s, it was not easy to obtain security clearances
for even those few airport personnel required to have them. According to the
testimony of Henry Jensen, even the process for basic clearances was difficult
and time-consuming and “a major problem” due to the volume of requests
and the turnover of personnel.137 Professor Reg Whitaker testified about the
obstacles caused by these clearance issues, noting that the “overtime dispute”
between Transport Canada and the RCMP that was precipitated by a request
from Air India for increased security coverage in June 1985, was exacerbated by
the fact that the RCMP possessed intelligence that, due to its classified nature,
could not be shared with Transport Canada officials at Pearson.
Whitaker told the Commission that, because officials at certain airports lacked
the appropriate security clearance in 1985, the situation was essentially “…
trust us, but we can’t tell you the specifics.”138 He went on to say that there are
means today to convey intelligence in an unclassified but usable form to frontline workers even if they lack clearance to see the original documents.139 The
difficulty in obtaining security clearance for officials at airports was endemic
in this period, and generally precluded the transmission of information. This
created a substantial barrier to the effective and timely dissemination of threat
intelligence to personnel concerned.
At a meeting of the National Aviation Security Committee that was convened a
few months after the bombing, the problem of access to security information
was revisited. The ATAC representative recommended that ATAC and the air
carriers be provided with regular threat assessments every three months.140 He
was concerned by the delays in receiving intelligence encountered by those
with a need to know that resulted from constraints on disseminating classified
information. He also stressed that it was important that security managers for
the air carriers be advised immediately of threats, and that assessments try to
pinpoint where the threat was likely to materialize.141
134
135
136
137
138
139
Exhibit P-364, p. 5.
Exhibit P-364, p. 6.
Exhibit P-364, p. 5. See also Section 2.4 (Pre-bombing), Security Culture at Canada’s Airports.
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5404-5405.
Testimony of Reg Whitaker, vol. 36, May 30, 2007, p. 4365.
Testimony of Reg Whitaker, vol. 36, May 30, 2007, pp. 4364-4365. See also Volume Four of this Report:
Chapter III, Section 3.4, Use of Intelligence in Aviation Security.
140 Exhibit P-101 CAF0162, p. 3.
141 Exhibit P-101 CAF0162, p. 3.
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The August 1985 Transport Canada briefing note also had new-found emphasis
on the need to screen and clear airport staff. Recognizing that previous Transport
Canada studies had resulted in the decision not to run subversive indices and
fingerprint checks on staff with airside access, because of high turnover and lack
of perceived legal authority, it stated “…this might have been a good decision
during periods of low threat but now it must be challenged.”142
Of course, this was never a “good decision.” As established in Section 2.3.1 (Prebombing), Recognition of the Threat of Sabotage and Weaknesses in the Ability
to Respond, the emerging threat of sabotage was well-understood by authorities
in the early 1980s. The incidence of hijacking, which had been the predominant
threat in the 1960s and early 1970s, had dramatically declined because the
security measures that were put into place to address that threat were so
effective. The changing threat environment did little to focus attention on the
next looming threat (sabotage, including bombing of aircraft), however, and the
lack of hijacking incidents in Canada contributed to growing complacency on
the ground and increased difficulty in justifying the expenditure of additional
resources. The lack of a purposive approach to security and the underutilization
of intelligence-based threat assessments resulted in a general misunderstanding
of risk at this time. As a result, there was an enduring perception that the level
of risk did not warrant the time and expense required to implement security
measures like background, credit and criminal record checks for airport staff
as a condition of employment. The Air India disaster and the subsequent
investigation proved that, in fact, the threat was so high and security so porous
at airports that this and many other measures were badly overdue.
What is also apparent is that the communication, threat assessment, and airport
security structures in place in 1985 were not designed with the need for rapid,
national responses to intelligence-based threats to civil aviation in mind, and
were therefore inadequate for the task.
Resource Issues
Like other government agencies, Transport Canada did not have limitless
resources in the years leading up to the bombing of Air India Flight 182, and
faced constraints with respect to budgets and person-years. Transport Canada
obtained its annual budget from the Treasury Board, and a significant concern
was that, as acts of unlawful interference with civil aviation continued to
decrease in Canada, it would become increasingly difficult to justify increases in
its security expenditures.143 Even existing funding levels for Transport Canada’s
security expenditures were expected to come under growing scrutiny in a fiscal
climate of cost-cutting; they would be seen as a prime candidate for savings
in the “…continuing absence of a clearly perceived threat.”144 Mattson testified
that managing the National Airport Policing and Security Program was a major
expenditure for Transport Canada, and there was always an expectation that
142 Exhibit P-364, p. 6.
143 Exhibit P-101 CAF0774, p. 41.
144 Exhibit P-101 CAF0774, p. 22.
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officials and other personnel would work to ensure efficiency and reduce costs
in implementing this and other programs.145
The cost-cutting pressure included a spring 1985 recommendation, in an audit
report from the Office of the Auditor General, to save money by reducing the
RCMP contingent at Canada’s major airports by 50 per cent and replacing them
with commissionaires and private security guards.146 The Auditor General’s Office
urged this measure, arguing that “…these challenges have to be met to reduce
security costs to a level closer to aviation industry’s standards and maintain
them in balance with security risks to civil aviation.” Transport Canada was put
in the position of having to forcefully argue against such cuts from an aviation
security perspective, noting that, at the time, Canada was seen as a “weak link”
internationally,147 and that the RCMP members projected professionalism in a
way that private security guards did not.148
The department was aware, of course, that with the decreasing threat of
hijacking, there was a “…tendency to relax and say ‘it’s all over’,” and look for costcutting opportunities.149 Transport Canada asserted, in its defence, that it had
already been able to effect a “significant reduction” in the RCMP staff at Canadian
airports,150 saving some $7 million and considerable person-year expenditures
over the previous 10 years, including the elimination of all 40 RCMP members
from Canada’s eight major domestic airports.151 Despite these cuts, Canada had
an obligation to maintain certain basic security levels, as part of its international
commitments to the International Civil Aviation Organization (ICAO). Transport
Canada’s Director of the Civil Aviation Security branch suggested to the Audit
Director in his reply that, if cutting costs was a concern, he should instead
examine the feasibility of having the RCMP police airports directly out of its own
operating budget.152
At that time, the RCMP provided its services at the airports under contracts
which were funded by the operating budgets of each airport manager, a
practice which the official pointed out “…led to difficulties over the years.”153 In
June 1985, it was discovered that Transport Canada had actually neglected to
include any funding for RCMP overtime security costs in that year’s budget for
Pearson Airport.154
Another specific resource issue facing Transport Canada in the pre-bombing
period was that it lacked the capital funds to build hold-room facilities, and
to enable air carriers to screen passengers with electronic equipment at all
145
146
147
148
149
150
151
152
153
154
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3253.
Exhibit P-101 CAF0655, pp. 5, 23.
Exhibit P-101 CAF0660, p. 1.
Exhibit P-101 CAF0659, p. 1.
Exhibit P-101 CAF0659, p. 1.
Exhibit P-101 CAF0660, p. 2.
Exhibit P-101 CAF0661, p. 1.
Exhibit P-101 CAF0660, p. 2.
Exhibit P-101 CAF0660, p. 2.
This oversight, and the ensuing dispute between the agencies over a request from Air India for
increased RCMP protection, is discussed in Section 4.5 (Pre-bombing), Failures in Coordination
between Transport Canada and the RCMP.
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airports.155 Adequate facilities were also not always available for small carriers and
general aviation, meaning that the unscreened passengers from these aircraft
would arrive and then mix with screened “sterile” passengers at airports.
Additionally, Transport Canada lacked the resources to staff a sufficient number
of Dangerous Goods and Civil Aviation Inspectors. As a result, it had almost no
ability to inspect air carriers to ensure their compliance with Canadian security
regulations and the carriers’ own security programs. As discussed in Section 4.7
(Pre-bombing), Transport Canada Policy Gaps and Implementation Deficiencies,
there were so few inspectors that a 1984 report revealed that there were no
security inspections conducted at all in three out of Canada’s six regions, and,
in the remaining three regions, inspectors had only managed to complete
between zero and ten per cent of the expected workload.156
No company or agency will likely ever have limitless resources. The financial
constraints faced by Transport Canada, including the pressure to cut costs
and expenses wherever possible, necessitated budgetary choices that had
an adverse impact on security. However, an effective threat-response regime
utilizes finite resources in a manner that prioritizes its targets based on the
greatest need. This requires comprehensive intelligence-gathering, appropriate
sharing and sound threat analysis – functions which, as discussed throughout
this chapter, were hindered by resource allocation, infrastructure, policy, and
personality issues. As a consequence, fundamental security functions, such
as the inspections conducted by the Dangerous Goods and Civil Aviation
Inspectors, were severely under-resourced. It was not until this work ground to
a halt, as a direct consequence of the inspection workload, that additional funds
were made available to hire more personnel.
4.3 The Role of the “Specific Threat” in the 1985 Threat-Response
Regime
Specificity and Threat Response
Given the significant volume of threats received by the Government of Canada
in the pre-bombing period, many of which related to threats against Air India,157
and some of which even specified the mode of sabotage that ultimately
brought down Air India Flight 182,158 the obvious question that has been raised
time and again is: why was more not done to prevent the bombing? The answer
consistently provided by the Government of Canada, in the immediate aftermath
of the bombing, and stretching through to this Inquiry, was that there was no
“specific threat” to Air India. But is the existence of a “specific threat” really a
relevant factor in assessing the pre-bombing security response?
155 Exhibit P-101 CAF0774, p. 21.
156 Exhibit P-101 CAF0654.
157 See, for example, Exhibit P-101 CAA0084, CAA0149, CAC0339 and Exhibit P-120(c): November 1984 Plot
– Chronology.
158 See, for example, Exhibit P-101 CAA0161 and CAA0185.
�Chapter IV: Responding to the Threat
The concept of the “specificity” of threats is an important one for intelligence
and protective security. There exist innumerable possible situations in which
terrorists could attempt to exploit vulnerabilities in our society in order to carry
out their designs. Against this backdrop is the reality of the finite resources
available to intelligence and law enforcement agencies to detect and prevent
these plans from actually being carried out. The greater the ability to pinpoint
the intended time, place and means by which a threat may be carried out, the
easier it is for appropriate resources to be deployed for a sensitive and rapid
protective response. At the same time, while specificity can indicate to officials
how to tailor their protective response to meet the threat, the effectiveness
or sensitivity of that response will depend on the tools available to protective
officers.159
As well, the specificity of a given threat is not necessarily tied to the probability
that a threat will, in fact, be carried out and is unrelated to the extent of harm
that could result. While the specificity of a threat is a useful and necessary tool
for protective decisions, these decisions cannot be made rationally without a
consideration of the underlying risk, which will dictate the justification for the
extent and nature of deployment in relation to the specificity of the threat. For
example, if intelligence and circumstances dictate that there is a very high risk
that a nuclear power station, somewhere in Canada, will be sabotaged at some
time in the next month, given the extent of harm that could result, the fact
that the precise reactor and date is unknown would hardly be a justification for
anything less than an extremely robust level of protective security deployment
at all stations in Canada. On the other hand, a threat that a named individual
in a particular location was going to point a laser at the moon at 8 PM next
Tuesday for the purpose of blowing it up, while very specific, would not likely
cause officials much concern.
At the same time, even in circumstances of high risk, in the face of a very
diffuse and undefined threat it may be impossible for a meaningful protective
deployment response to be implemented. For example, if information was
received that indicated a high risk that terrorists would undertake to injure a
significant number of innocent people in Canada in the next month, the lack
of specificity would make it very difficult to implement any manner of useful
response. Should authorities deploy resources to guard schools? Malls? Trains?
Water supplies? In this context, the most sensitive response is to investigate to
find out more about the threat.
“Specificity” was a prominent concept within the protective intelligence and
security regime in Canada in 1985. In the VIP Security context, threats identifying
a target and a time frame would allow officers to target resources to a particular
embassy or VIP, in order to provide responsive protection.160 In the aviation
security context, the concept of specificity, or “specific threat,” also played a
very significant role. The term “specific threat” in the aviation security context is
159 For further explanation of this concept, see Section 4.0 (Pre-bombing), Threat-Response Regime in
1985.
160 See Testimony of Lloyd Hickman, vol. 18, March 7, 2007, pp. 1699-1700.
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rooted in the European experience and the significant terrorist activity that had
been taking place there. The European airlines were receiving phone-in bomb
threats with a high frequency and, at the time, needed a rational way to sort out
hoaxes and pranks from threats that required further consideration. Recipients
of these phoned-in threats were trained to try to get as much information as
possible from the caller so that the veracity of the threats could be assessed.
Management would then assess the information and make a decision about
what action to take. They were looking for specificity.161 However, the concept
of “specific threat” was never intended to be, and should never be, applied
pursuant to a strict definition, and by its nature, the concept is not easily reduced
to a single coherent set of criteria. The appropriate response, with regard to the
specificity of the threat, will naturally depend to a certain extent on numerous
context-specific factors not easily reducible to a succinct definition.
In the pre-bombing era, the concept of “specific threat” was used pervasively,
but inconsistently, with the result that there was no shared understanding of
the concept across government. Moreover, it was often used in practice as an allor-nothing trigger, whereby if a particular threat was not found to be “specific”
enough, no protective action was taken – regardless of the risk involved. The
concept was also applied mechanically, as a trigger for non-responsive measures.
Ultimately, the use of the concept of specificity was not appropriately used as a
device for sensitive protective deployment. Actors in the system became slaves
to the tool – where the quest for a “specific threat” impeded the proper analysis
and response to the threat.
From the date of the bombing, the concept of “specific threat” has been taken
out of context and has served as an alibi for the lack of appropriate response in
relation to Air India Flight 182. Under the actual regime in place, the “specific
threat” concept had very limited formal importance and was often used because
of a misunderstanding of the concept and of the regime. The continued use of
the “specific threat” concept as an alibi perpetuates this misunderstanding and
must be abandoned to allow for a true critical assessment of the threat-response
regime that was actually in place.
The lack of sensitive protective response for Air India Flight 182 was not due to a
lack of detail, or specificity, in the threats that were received by the Government
of Canada. The problem was an ill-conceived threat-response regime that
wrongly substituted a rigid notion of specificity for a true analysis of the risk and
a tailored response.
Use of the Term “Specific Threat” Across Government
The claim that there had been no “specific threat” to Air India Flight 182 was
repeatedly emphasized in various forums by government officials, past and
present. At this Inquiry, RCMP members involved in threat assessment and
in airport security stated categorically that the RCMP never received any
information about a “specific threat” to Air India.162 Witnesses from other
161 Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4425-4426.
162 Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2719, 2737, 2741; Testimony of Gary Clarke, vol.
28, May 15, 2007, p. 3083.
�Chapter IV: Responding to the Threat
government agencies repeated this assertion. Robert (“Bob”) Burgoyne, Glen
Gartshore and Russ Upton, formerly with CSIS, and Gordon Smith, formerly
with the Department of External Affairs, were all asked by Attorney General of
Canada counsel whether they knew of a specific threat to Air India Flight 182.
All witnesses replied that they had no knowledge of such a threat. This position
of there having been no “specific threat” to Air India was reiterated numerous
times in the Attorney General of Canada (AGC) Final Submissions. For example:
• “At no time prior to the bombing did CSIS obtain information about
a specific threat to an Air India flight.”163
• “As expressed elsewhere in these submissions, contrary to the
testimony of Mr. Bartleman no information was received by DEA
indicating a specific threat to the June 22, 1985 Air India flight.”164
• “The CATSA Panel correctly determined that at the time of the
bombing of Flight 182, neither Transport Canada nor the RCMP
were aware of any specific threat against Air India.”165
Despite their forceful insistence that there had been no “specific threat,”
Government witnesses were unable to provide any consistent definition of that
term.
According to Sgt. Warren Sweeney, who had been a member of the RCMP
Security Service before joining the RCMP National Criminal Intelligence Branch
(NCIB) at the creation of CSIS, a “specific threat” meant a threat specifying a date,
a time and an event that would happen. He distinguished such a “specific threat”
from a “general high threat,” which he said meant information from sources
within the community that something may happen and the protected person or
interest may be targeted. According to Sweeney, in order to qualify as “specific,”
a threat would have to specify not only the date and time, but the specific plane
targeted (or other specific target), as well as some indication of the identity of
the authors of the planned attack, though this indication could be as vague
as “Sikh extremists.” The threat would also have to be “…backed with other
information and other intelligence.” The information had to be independently
confirmed and not originate from a “single source,” no matter how specific it
appeared on its face.166
In contrast, Supt. Gary Clarke, who in 1985 was the OIC RCMP Protective Policing
at O Division and, prior to that, the OIC at Pearson Airport detachment, considered
the information that “…an unknown male with an Iranian voice warned that the
163
164
165
166
Final Submissions of the Attorney General of Canada, Vol. I, para. 105.
Final Submissions of the Attorney General of Canada, Vol. I, para. 147.
Final Submissions of the Attorney General of Canada, Vol. II, para. 124.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2564 and Testimony of Warren Sweeney, vol. 26,
May 9, 2007, pp. 2716-2717, 2742-2743. See Exhibit P-101 CAA0149 and Sgt. Sweeney’s explanation
that the threat level and protection level would have been raised if the RCMP had other sources
confirming the information: Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2716.
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Air India Flight 181, 1984 September 01, would be hijacked,”167 to be “…specific
because it gives a time, a location, an aircraft number and a plane.”168 From his
perspective, a threat could be “specific” on its face, without the requirement for
any corroboration.
CSIS also made use of the concept of “specific threat.” For CSIS, a “specific threat”
required “specific intelligence,” indicating the existence of a “very definite plot.”
“Specific threats” were to be distinguished from “General Ongoing Threats,” which
related to threats existing, and likely to continue, over time. CSIS documentation
explains that “specific threats” could arise in an area of General Ongoing Threat,
but would be distinguished because “…something definite [was] planned.” Using
this system to characterize threats was said to be advantageous because, in time,
“…certain elements [would] automatically fall into the 1st category [i.e. that of
General Ongoing Threats].”169 Also, according to John Henry, who was with the
CSIS Threat Assessment Unit (TAU) in 1985, for a threat to become a “specific
threat,” both specificity170 and corroboration171 were required. He admitted that
the specificity threshold was extremely high; it would have to be “no ifs, ands, or
buts,” rather information outlining when, where, to whom and how. It had to be
something that CSIS could pass on and the RCMP could act upon.172
“Specific threat” is a concept also used by Transport Canada. According to its
1984 Manual entitled “Policy, Standards, and Guidelines for the Development of
an Airport Disaster/Emergency Plan and the Conduct of Exercises at Transport
Canada Airports,” a “specific threat” is “…a statement giving time of activation,
location, type of bomb, or even complete details.”173 Dale Mattson, Transport
Canada’s Manager of Safety and Security at Pearson Airport in 1985, confirmed
that this definition was used, but added that it does not cover all the elements
because “…there [was] other criteria that was also used, and because you are
not always going to get these items, but there may be other components that
you evaluated and said yes, that meets our understanding of [what] the specific
threat is.”174
A somewhat more relaxed definition, found in the RCMP’s Emergency
Procedures Manual for Pearson, states that a “specific threat” means “…detailed
information will be supplied by the perpetrator regarding the target and
possible detonation.”175 These Transport Canada and RCMP definitions depend
on the level of detail provided on the face of that particular threat and mean
that a threat can be deemed to be “specific” based on a single source. For that
reason, they are incompatible with the definitions supplied by Sweeney and
Henry with their added requirement of corroboration.
167
168
169
170
171
172
173
174
175
Exhibit P-101 CAA0234, p. 3.
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3060.
Exhibit P-101 CAC0275, p. 4.
Testimony of John Henry, vol. 25, May 8, 2007, p. 2538.
Testimony of John Henry, vol. 25, May 8, 2007, p. 2516. See also Testimony of Bob Burgoyne, vol. 31,
May 22, 2007, p. 3460.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2512, 2538.
Exhibit P-101 CAF0077, pp. 7-8.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3220-3221.
Exhibit P-101 CAC0310.
�Chapter IV: Responding to the Threat
Because of the lack of a uniform definition of “specific threat” within the
Government of Canada, information about threats to Air India was sometimes
characterized differently by the different individuals involved in the threat
assessment process and the implementation of security measures. For
example, the Department of External Affairs transmitted information to the
RCMP about a plan to hijack Air India Flight 181 to Toronto on Saturday, April
13, 1985.176 This threat information was deemed not to be “specific” in internal
RCMP documents,177 though some limited additional security measures were
implemented in response.178 Sweeney also indicated this was not a “specific
threat,” because the information came from only one source.179 However, Clarke
indicated, “I would consider that a specific threat; absolutely.”180
Henry stated that the April 13, 1985 threat was “…leading in the direction”
of being a specific threat. However, corroboration would be required before
it would be classified as specific.181 Meanwhile, Gordon Smith, who was
the Deputy Minister, Political Affairs at the Department of External Affairs,
considered the April 13th threat to be specific, but discounted its importance to
the Government of Canada, as it was an inbound flight for which there was little
they could do.182
Though witnesses before the Inquiry have indicated that the RCMP “…took
every threat seriously” and “…took the appropriate action on each and every
flight,” the existence of intelligence that an airline may be targeted and that
something may happen was excluded from the “specific threat” category and
included in the “general high threat” category,183 which was believed to require
less extensive security measures. Also, throughout the Government documents
relating to threats against Indian interests prior to the bombing, there is
language such as “…intelligence has not surfaced a specific threat” but “…there
is a very distinct possibility of violence” and a “definite threat.”184 These types of
“definite” threats, involving a “distinct possibility of violence,” were treated like
all other general high threats, requiring no special, additional security measures
because they were said to constitute “non-specific threats.”
Essentially, it appears that, regardless of how much intelligence there was
from “sources within the community” that Air India may be a target and that
something may happen, if the information was not seen to meet the rigid
criteria of “specific threat,” the additional security measures which were believed
to be available in such cases would not be applied. In effect, the “specific threat”
concept was used as a trigger, or an assumed trigger, for deployment decisions,
without any consideration or analysis of the underlying risk.
176
177
178
179
180
181
182
183
184
Exhibit P-101 CAA0149.
Exhibit P-101 CAA0169.
Exhibit P-101 CAC0517, p. 3.
Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2716.
Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3058-3059.
Testimony of John Henry, vol. 25, May 8, 2007, pp. 2515-2516.
Testimony of Gordon Smith, vol. 24, May 7, 2007, p. 2456.
Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2740, 2742-2743.
Exhibit P-101 CAC0285.
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“Specific Threat” and the June 1st Telex
The narrowness of the Government position is aptly illustrated by its application
to the June 1st Telex.185 That document from Air India warned of time-delayed
devices being used to bomb an Air India flight in June 1985. Both Sweeney186
and Clarke187 denied that this information constituted a “specific threat,” even
though it provides information on the target, the means, the time frame and the
perpetrators. Mahendra Saxena, Air India’s Senior Security Officer, on the other
hand, thought that the telex was a “specific threat,” and the fact that no specific
flight was identified was not relevant, since Air India only had one flight in and
out of Canada each week.188 This would seem to be a much more common
sense view, especially in light of the harm that could be caused by the sabotage
of a flight, and the fact that, in June 1985, participants in the protective regime
had no doubt that “…something was going to happen.”189 Along these lines, the
need for a response was also supported by Rodney Wallis who argued:
In the case of Air India, which was operating under a high
threat situation, operating with a once-a-week service out of
Canada where there was a known element at war with the
Indian government and anything that represented the Indian
government and I have mentioned before the symbol on the
tail of the airplane. We will say that’s an Indian government.
So they were operating under this high risk situation with a
once-a-week flight and the difference between that operation
and specific threat becomes blurred. It becomes merged. You
could argue it becomes one and the same thing.
…
Specific threat or high risk, I would expect it to be the same
response under those circumstances.190
Dr. William Leiss, an expert in the area of risk communication and risk
management, testified before the Inquiry. During his testimony, he was
provided with certain facts in relation to the June 1st Telex and was asked for
his opinion on how he would classify the June 1st Telex with reference to a risk
matrix, a tool that is used to classify the level of risk on the basis of probability
and consequence of a threat.191
185 Exhibit P-101 CAA0185.
186 Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2732, 2752-2753. Sweeney stated on numerous
occasions that the RCMP had no information indicating a “specific threat” to Air India: See, for example,
Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2719, 2737, 2741.
187 Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3054-3056.
188 Exhibit P-365, p. 3.
189 See Exhibit P-101 CAA0240, p. 2, CAC0445, p. 5 and Testimony of Gary Clarke, vol. 28, May 15, 2007, pp.
3040-3046, 3085-3086.
190 Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4426-4427.
191 Exhibit P-361, Tab 1, Appendix D.
�Chapter IV: Responding to the Threat
Leiss expressed the view that the information contained in the June 1st Telex “…
should have leapt off the page.” Leiss put particular emphasis on the fact that
the June 1st Telex was received in circumstances of a “risk situation,” such that it
would “…put you actually off the end of the scale in terms of the use of the risk
matrix,” given the fact that the threat “…of an attack on Air India specifically of
this kind would have been certainly elevated by that point given everything
you knew.” Leiss testified that in the business of airline security, it is “…extremely
rare to get such a specific piece of information,” and would “…raise your level of
concern to the highest possible level,” so that in terms of response “…you would
be at that point basically pulling out the stops.” The June 1st Telex “…would have
justified almost any risk control measure you can imagine including grounding
those flights” until investigators had the chance to consult with authorities in
India about their source of information.192
Leiss said he would be “amazed” if this had been viewed as “…just another piece
of information.” In light of the specificity and high-risk situation, Leiss wanted to
know, “Why didn’t the alarm bells go off everywhere and what did the RCMP do
with the information? Do we know? Did they share it?”193 As the Commission
heard during the course of the hearings, the RCMP did not share the June 1st
Telex with either Transport Canada or with CSIS.194 Furthermore, in light of this
information, there were no adjustments to the security measures already in
place at the time this telex was received.
Leiss clarified that he viewed the deficiencies in relation to the sharing and
response to the June 1st Telex to be failures in “shared responsibility,” which
included failures in terms of Air India’s “corporate responsibility.” For Air India
to simply pass on the June 1st Telex without making efforts to find out what
would be done with the information seemed “bizarre.”195 A reasonable course of
action, in his view, would be to:
…insist on having an immediate meeting, a further dialogue
of trying to see whether you could actually work out a
common plan and … say “what can Air India and the Canadian
Government and police forces do together to lower the risk
that’s involved. Or, what other options do we have to control
the risk involved?”196
In cross-examination, counsel for the Attorney General of Canada pursued a
line of questioning that involved highlighting additional documents Dr. Leiss
was unaware of prior to his testimony, as the documents had not previously
been shown to him. Leiss fairly conceded that he had not seen other documents
pertaining to the June 1st Telex and had not seen the document itself. He would
therefore need to understand the pattern of information flow in order to properly
192
193
194
195
196
Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11981-11983.
Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11981-11983.
See Section 1.2 (Pre-bombing), June 1st Telex.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 12024.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 12025.
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assess the impact of the June 1st Telex.197 In the exigencies of the moment, reexamination on these issues was not practicable. In its Final Submissions, the
Attorney General of Canada submitted that, given the fact that Leiss had testified
without the benefit of these additional materials, his opinions in relation to the
June 1st Telex should therefore be accorded little weight.198
Subsequent to his testimony, Leiss was provided with significant background
material in relation to the June 1st Telex and the threat environment at the time.
Such materials included, among other documents, the Air India disclosure
documents pursuant to subpoena,199 the June 1st Telex and associated
documents, and Air India telexes received by Canadian authorities relating to
the period of June 1984 to June 1985.200 Allowing Dr. Leiss the opportunity to
acquaint himself with the body of relevant historical information and asking
him whether and how it changed his view was, in the view of this Commission,
a practicable and fair way to address the concerns expressed by the AGC in
cross-examination and in its Final Submissions. After a thorough review of these
documents, Leiss provided the Commission with an Affidavit, sworn on August
20, 2008, reaffirming all of his opinions expressed in his original testimony,
without modification. Particularly, he reconfirmed his statements in relation to
the June 1st Telex.201
The AGC strongly opposed the entering of the Leiss Affidavit into evidence
and was provided with the opportunity to provide further submissions or
documentation in response. However, no further response or documentation
in relation to the Leiss Affidavit was received by this Commission until the AGC
responded to the Supplementary Submissions of Families Groups, AIVFA, Family
Interests Party and Air India Cabin Crew Association et al, on December 23,
2008.
Use of “Specific Threat” by Participants in Airport Policing
The extent to which the distorted use of the concept of specificity interfered with
rational decision-making in the protective security regime is aptly illustrated by
the way participants within Airport Policing used the concept in 1985. In 1985,
the RCMP aviation security threat-response system contemplated five levels of
security, with each level corresponding to specified RCMP deployment at the
airport level.202
Only Mirabel Airport was operating at level 4 security throughout 1985, contrary
to the RCMP Submission to the Honourable Bob Rae, which implied that level
4 security was being applied for all of Air India’s Canadian operations.203 In fact,
until June 1985, Air India in Toronto was only being provided with level 1 security
measures, the minimum possible level of security that the RCMP could provide.
197
198
199
200
201
202
203
Testimony of William Leiss, vol. 91, December 7, 2007, pp. 12035-12037.
Final Submissions of the Attorney General of Canada, Vol. II, paras. 469-470.
Exhibit P-284.
See Exhibit P-433: Affidavit of William Leiss and Two supporting Tabs (Tab 3 and 7).
Exhibit P-433: Affidavit of William Leiss and Two supporting Tabs (Tab 3 and 7).
Exhibit P-101 CAA0025.
Exhibit P-101 CAA0335, p. 8.
�Chapter IV: Responding to the Threat
The only exceptions, prior to June, were for the inaugural flight on January 19,
1985, and the April 6, 1985 flight.204 During this period, as noted in Government
documentation, almost every Air India flight was preceded by a threat.205 It was
only when External Affairs intervened on May 31, 1985, to request that the level
of security for Air India in Toronto be made consistent with that provided in
Montreal,206 that the RCMP finally increased Air India security at Pearson to the
same level as at Mirabel.207 In his evidence, Supt. R.E. Muir, who was the Officer
in Charge, VIP Security Branch, admitted that he would have expected, given the
fact that the same Air India flight stopped at both Pearson and Mirabel, that the
airline would have been afforded the same level of security at both locations,
and that it was likely that at the end of May, Air India in Toronto was operating
at an inadequate level of security.208
A partial explanation for this inadequate security at Pearson may lie in the
inappropriate use of the “specific threat” concept by local officials. For example,
on May 29, 1985, Air India provided the RCMP Pearson detachment with a telex,
dated May 25, 1985, indicating that “…terrorist in Punjab reportedly planning
violent activities for a week from June one 1985. Possibility of their making
civil aviation as target in Punjab and elsewhere cannot be ruled out.”209 The
memorandum contended that “…items like [transistors] two-in-one cameras
cakes tinned [items] of food should not repeat not be allowed until and unless
checking staff fully satisfied about their contents,” and that “…airlines must keep
utmost vigilance on registered baggage.”210 A handwritten note on the cover
letter, likely written by the OIC of the Pearson detachment, states:
“This seems a non-specific threat.… It does not seem to
warrant extra security.” [Emphasis in original]211
The author of this handwritten note was applying an all-or-nothing threshold,
and using a rigid concept of specificity to deny the provision of any additional
security – this, despite the fact that this threat indicated a narrow time period,
that measures were suggested that would be responsive to the nature of the
threat, that Air India was only operating one flight out of Canada a week, that
local personnel had access to information that the Montreal flight was operating
at level 4 security,212 and that this threat was received at a time when the threat
to Indian missions and personnel was considered by CSIS and the RCMP to be
high.213
204
205
206
207
208
209
210
211
Exhibit P-101 CAA0169, CAF0010, p. 1.
Exhibit P-101 CAC0517.
Exhibit P-101 CAA0166.
Exhibit P-101 CAA0169.
Testimony of R.E. Muir, vol. 28, May 15, 2007, p. 2946.
Exhibit P-101 CAA0161, CAA0164.
Exhibit P-101 CAA0161.
Exhibit P-101 CAA0164. While the same handwritten instructions indicated that S/Sgt Ward was to
send the telex to RCMP Headquarters, there is no indication that CSIS was provided with it.
212 Exhibit P-101 CAA0335, p. 8.
213 See Exhibit P-101 CAB0851, CAC0331, CAC0338.
477
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The narrow and strict understanding of the “specific threat” concept by airport
officials interfered with their ability to properly assess threat information.
Believing that the sole criterion of importance for deployment decisions was
the specificity of the information in an individual threat, local personnel, at
least at Pearson, often assessed each individual threat as discrete and without
connection to the larger phenomenon of Sikh extremism. They were under
the impression that it was appropriate for them to make protective security
decisions based solely on individual threats. For example, dealing with the June
1st Telex, Inspector William Dawson wrote to Headquarters that he did not think
that extra security was warranted on the strength of the information in the
telex.214 However, when threats were received by the RCMP from Air India, DEA,
or other sources, officials were supposed to channel the information to CSIS,
so that the information could be analyzed and assessed against CSIS’s entire
database, and attempts could be made to corroborate any threat information.215
When threat information is corroborated, this logically increases the likelihood,
and therefore the risk, that the actual threat will be carried out. This type of
information would be of obvious relevance to those people attempting to make
deployment decisions in relation to any given threat.
While the exercise of analyzing a threat to determine whether or not it was
“specific” was always meant to be a purposive and contextual one, in practice, the
concept fell victim to rigid and unthinking application. The misunderstanding is
well illustrated by the dispute that occurred between the RCMP and Transport
Canada in June of 1985 over payment of overtime for additional RCMP security.
The security level for Pearson airport had been raised by the RCMP to level 4 for
the June 1st flight, and this level had been maintained throughout June. However,
due to an oversight, Transport Canada had not budgeted for overtime costs for
additional security. A resolution could not be arrived at between officials at the
airport level. In an attempt to convince Transport Canada to authorize payment
for overtime, Supt. Clarke, who was working at the Divisional Protective Policing
policy centre at the time, met with Transport Canada officials at Pearson
airport. While Clarke had received significant intelligence that, in the RCMP’s
view, warranted the additional security, he could not share this information
because of its classification216 Transport Canada declined payment for the use
of extra RCMP personnel, citing the fact that they considered the threat to be
“non-specific.” In noting the explanation he received with respect to Transport
Canada’s classification of threats, Clarke wrote:
At the present time, Transport Canada has categorized threats
as being “specific” or “non-specific.” Their interpretation of
“specific” is when a threat is received indicating that Air
India Flight 123, scheduled to arrive on 85-06-01 has a bomb
214 Exhibit P-101 CAA0208.
215 See Testimony of John Henry, vol. 25, May 8, 2007, p. 2516 and Final Submissions of the Attorney
General of Canada, Vol. II, para. 189. In fact, CSIS incorporated the criterion of corroboration into
its own definition of “specific threat.”
216 Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3046.
�Chapter IV: Responding to the Threat
planted on board and will go off when the aircraft reached
15,000 feet or so. The “non-specific” nature of this threat,
bearing in mind that Transport Canada was not privy to the
intelligence on file, was such that Transport Canada did not see
the need to employ extra security staff.217
Clarke disagreed with the Transport Canada decision, but not with the
appropriateness of the “specific threat” criterion (though perhaps defined
differently) used to arrive at it. He tried to convince Transport Canada to pay for
the overtime needed to implement level 4 security for Air India flights by pointing
out that in the case of the June 1st flight, “…the threat [had been] considered
specific enough to employ three (3) off duty airport special constables.”218
Eventually, the issue of overtime payment was settled, and Transport Canada
Headquarters apparently agreed to pay for the additional security. However,
while this dispute was elevated to the highest levels of the RCMP and Transport
Canada, it does not appear that at any point officials gave real consideration
to what exactly they were fighting about. This led to the absurd situation
where the “specificity” of the undisclosed threat was the subject of arguments
in the abstract – which is in complete contradiction to the actual purpose of
the concept. The lamentable result was that the additional security the RCMP
expended so much energy arguing for turned out to be increased protection
against hijacking. This, despite the fact that the late May/early June intelligence,
on which security staffing decisions should have been made, indicated that
there was a significant threat of bombs being placed in registered luggage.219
Similarly, when the RCMP received additional intelligence, after the increased
security was already in place, that “…something was going to happen,”220 this
intelligence was used to resolve the pre-existing conflict about payment, but
does not appear to have led to any substantive analysis of whether the extra
security already in place was sufficient to meet the new, or enhanced, threat.
As though there was not already enough confusion about the meaning and
implications of the “specific threat” concept, matters were further muddied by
the fact that CSIS had its own, independent use of this term in the intelligence
context. In CSIS’s view, for a threat to be categorized as “specific,” a certain degree
of corroboration was required as an element of its specificity.221 Therefore, in order
to achieve the designation of “specific threat,” the analysis had to go outside the
context of an individual threat, and examine the wider context for verification.
Sgt. J.B. (“Joe”) MacDonald, who was responsible for setting the security level on
the basis of CSIS intelligence assessments, was under the impression that the
CSIS concept of “specific threat” had relevance to his enterprise. In explaining
his decision to implement level 4 security for Pearson in June, MacDonald stated
217
218
219
220
221
Exhibit P-101 CAC0445.
Exhibit P-101 CAC0445, p. 4 [Emphasis added].
See, for example, Exhibit P-101 CAA0161, CAA0185.
Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3040, 3044-3047, 3085-3086.
See Final Submissions of the Attorney General of Canada, Vol. I, p. 49, note 97.
479
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that in his view, this level, as opposed to level 5, the highest RCMP level, was
appropriate, as he had received information from CSIS that the threat was “high,”
or “serious,” but that there was “nothing specific.” MacDonald then implied that,
in his view, level 5 security would be reserved for instances in which CSIS gave
an indication that there was a specific threat, where CSIS gave some indication
“…that a hijacking, a bombing or whatever would happen here, then, and they
gave us that.”222
The difference in deployment between levels 4 and 5 was nearly insignificant,
amounting to the use of an additional airline vehicle stationed airside, and
another that would follow an RCMP patrol car when the escort of the aircraft
was underway.223 MacDonald agreed that this was not a “big difference.”224 What
this points to, however, is not that an appropriate test was applied, because it
was not, but rather that no level of specificity would have helped, given the
inadequate regime and the failure of the regime to adjust to the real threat –
the threat of bombing. In adopting a mechanical translation of the category of
threat into security levels, using the degree of specificity as the criterion without
regard to the protective purpose of the exercise or to whether the measures
related to operational need, the RCMP demonstrated a failure to appreciate the
inherent risk analysis necessary to translate threat information into operational
deployment.
What the foregoing shows is that the use of the “specific threat” concept in the
pre-bombing period was “…ill-adapted for a terrorist situation.”225 As explained
by Dr. Jacques Bourgault, “…not many terrorist groups tell that they will blow
a plane on a given date, with a given flight number.”226 While an analysis of
specificity is useful in that it allows for a better prioritization and tailoring of the
protective response to the threat, the concept was often used as an unreasonably
high threshold for totally non-responsive measures.
The Limited Relevance of “Specific Threat” in the 1985 Threat-Response
Regime
The Government’s insistent focus on the concept of “specific threat” has served as
a significant distraction, and has further perpetuated the confusion surrounding
the actual regimes in place in 1985. It has also made the critical assessment of
their adequacies more difficult. The reality is that under the regime in place in
1985, “specific threat” was not a relevant criterion for the appropriate protective
security response to the types of threats that were being received in relation
to Air India. In some cases, decisions about increases in security (or not) were
made on the basis of this inapplicable criterion. Worse, even where the threat
intelligence was properly interpreted as requiring a heightened protective
response, the security measures dictated by the existing “threat level” protocol
222
223
224
225
226
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2774-2776.
Exhibit P-101 CAA0025.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2791-2792.
Testimony of Chern Heed, vol. 36, May 30, 2007, p. 4355.
Testimony of Jacques Bourgault, vol. 36, May 30, 2007, p. 4355.
�Chapter IV: Responding to the Threat
simply did not provide for any level of deployment that would have been
sensitive to the threat of a bomb in registered luggage.
“Specific Threat” Applied Only in an Emergency Bomb Threat Context
A “specific threat,” as the concept was formally defined in the regime, was
generally received on the day of the flight, and often by phone.227 If it was
determined that the threat was “specific,” an emergency protocol was put into
action, which involved moving the aircraft to a secure zone, and then offloading
the passengers and taking them to a secure terminal. The dogmaster would
then enter the aircraft with his dog to search the interior, and during that period
the airline crew would offload the luggage and the RCMP Hand Search team
would assist in setting the bags out on the tarmac to facilitate the search of the
luggage by the RCMP explosives sniffer dog. The RCMP Hand Search team would
also search the aircraft in areas where the dogmaster was unable to reach, and
would oversee a process of passenger-baggage matching.228 At the end of the
passenger-baggage matching process, any leftover bags were then considered
suspect bags, to be removed to an isolation area.229 Eventually, claimed luggage
would be reloaded onto the plane and passengers would reboard for resumption
of their departure. This emergency protocol was highly effective in its ability to
detect luggage containing bombs.230
In the emergency protocol, the assessment of whether or not a call-in threat was
“specific” depended on the degree of detail in relation to the intended target
and detonation time that was provided by the caller. Generally this assessment
had to be done on the spot, so that an immediate decision could be made about
whether or not to implement the emergency measures.231 Transport Canada’s
1984 Manual provides a definition of the term “specific threat” in relation to a
bomb threat:232
Bomb Threat – normally divided into two categories:
a) a specific threat – a statement giving time of activation,
location, type of bomb, or even complete details;
227 Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3195; Testimony of Gary Clarke, vol. 28, May 15,
2007, p. 3052. See also the Transport Canada guidelines setting out standards for the development of
emergency procedures: Exhibit P-101 CAF0077, p. 32. In relation to call-in bomb threats, the manual
states, “It is crucial that there be an immediate assessment of a bomb threat.”
228 Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3020-3021.
229 Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3222-3223.
230 This procedure was consistent with the RCMP’s assessment of the most effective means at the time
to secure baggage against explosives. CATSA concluded that had this protocol been employed at
Pearson Airport in June 1985, the bomb would likely have been detected: Exhibit P-101 CAF0160, p. 41.
231 Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3221.
232 Exhibit P-101 CAF0077. The Attorney General of Canada submitted that the meaning of “specific threat”
in the aviation security regime is “further delineated” by this definition: Final Submissions of the
Attorney General of Canada, Vol. II, para. 118.
481
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Volume Two Part I: Pre-Bombing
b) a non-specific threat – in which the caller makes a single
statement that there is a bomb on an aircraft, in the terminal
building, or on airport property.233
The emergency context234 in which this definition is relevant explains the lack
of a requirement for corroboration in the “specific threat” definitions set out in
the Transport Canada and RCMP emergency procedures manuals. This protocol
and the application of the “specific threat” criterion were only relevant in such a
time-sensitive situation, where circumstances did not allow for the engagement
of the intelligence assessment process.235
When a threat was found to be “specific,” RCMP and Transport Canada officials
would take over.236 While the air carrier played an important role in assessing
the threat in such situations, the assessment of the threat was done with the
involvement of RCMP and Transport Canada officials. When the airline received
a call-in bomb threat, RCMP and Transport Canada representatives would assess
the information based on threat assessment criteria in use at the airport. The
definition of “specific” and “non-specific” as set out above was not meant to be
exhaustive of the actual criteria used to gauge the veracity of the threat – for
example, overheard laughter on the phone might be an indicator of a prank.237
Measures were taken either to initiate a complete bomb threat search procedure
or, if the information was deemed to be “non-specific,” for government officials
to “…stand back and let the air carrier make the final decision as to the action
that they were going to take.”238
To ensure that air carriers, who often were the recipients of the call-in threats,
reported relevant threat information to Government officials, section 812 of the
Air Regulations imposed certain obligations on air carriers:
233 Exhibit P-101 CAF0077, pp. 7-8 [Emphasis added]. A similar, though not identical, definition is also
provided in the RCMP Emergency Procedures Protocol for Pearson Airport: “a) Non-Specific: A
general type of threat to which no specific information is given in relation to the target or detonation
time. b) Specific: 1. Detailed information will be supplied by the perpetrator regarding the target
and possible detonation; 2. Bomb threats are usually projected at commercial aircraft and
property; and 3. The best method of search is an organized, combined effort utilizing the PSD Unit and
the trained Hand Search Team.”: See Exhibit P-101 CAC0310, p. 13 [RCMP Emergency Protocol for
Pearson].
234 The RCMP Emergency Protocol for Pearson, which outlines the protocols to be implemented when
a “specific threat” is received, sets out the following possible scenarios in which this protocol could be
triggered: when the aircraft is in the air or taxiing away from the terminal, when the aircraft is at the
finger with passengers and cargo onboard, and when the aircraft is already in flight. All of these
situations are clearly time-sensitive emergencies, where passengers and luggage are already onboard
the aircraft. See Exhibit P-101 CAC0310: RCMP Emergency Protocol for Pearson.
235 Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3221.
236 Exhibit P-101 CAA0118; Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3221.
237 Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3194-3195, 3220.
238 Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3194-3195. The assessment would also be done
in consultation with the airline. The Transport Canada standards manual states that “…the air carrier
has the responsibility to determine whether the bomb threat is or is not against a specific aircraft
or flight.”: Exhibit P-101 CAF0077, p. 31. Dale Mattson’s testimony clarifies that the threat assessment
responsibility did not derogate from Government officials’ overriding responsibility in this respect.
�Chapter IV: Responding to the Threat
812 (1) Where the owner or operator of an aircraft receives or is
informed of a threat considered to be against the safety of a specific
aircraft or flight, he shall immediately take all such measures as are
reasonably necessary to ensure the safety of the aircraft and the
protection of the passengers and crew members, including:
a) in every case, advising the appropriate police and aerodrome
authorities and the pilot-in-command of the aircraft of the
circumstances of the threat; and
b) in the case where the aircraft is on the ground, ensuring that
i) the aircraft is moved to a place of safety on the
aerodrome, as directed by the aerodrome authorities,
and
ii) the aircraft, the passengers and their personal
belongings and the baggage, goods and cargo on
board the aircraft are examined.
Section 812 was a safeguard. It was not intended to derogate from the
overall supervisory and decision-making authority of Transport Canada and
its delegates. For example, wide discretion was given to Transport Canada to
take any action necessary, including detention of the aircraft, where an aircraft
intended to depart while in contravention of the Regulations or while it was
“unfit for flight.”239 This discretion could be exercised by the Government to
ensure that section 812 was properly implemented, including to ensure that an
air carrier had appropriately assessed or responded to a threat. The Government
was often in the best position to understand and assess a given threat: it was
responsible to collect, assess, and disseminate threat information,240 and had
more access to intelligence channels. Because of classification issues, there
was significant relevant information that the airline could not know. In 1985,
threat information flowed in through many sources, including CSE, CSIS or the
Department of External Affairs. Such information would often be “caveated”
(meaning that it could not be utilized for certain purposes or disseminated
without the consent of the originating party) or highly classified.241 This led to
situations like the dispute over payment for overtime for additional security
at Pearson airport, where the RCMP was unable to share the highly classified
intelligence it received with Transport Canada (and therefore presumably with
airline) officials.242 It would make little sense if government officials did not have
a responsibility to intervene where they had important information that the air
carrier could not possess.
239
240
241
242
See Air Regulations, s. 813.
Exhibit P-101 CAA0335, p. 8.
See Exhibit P-101 CAF0083.
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3044.
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In any event, section 812 only had application in the limited emergency
circumstance of a call-in or time-sensitive bomb threat. It had no relevance to
the threats that Air India and the Government of Canada received in relation
to Air India in the immediate pre-bombing period. The RCMP used a separate
protocol for threats received outside these emergency circumstances.
The “non-emergency” protocol was intended for circumstances when threat
information was received, for example, from DEA, Air India, or other sources,
where there was sufficient time to engage the threat assessment process. In
these circumstances, RCMP headquarters Airport Policing Branch would transfer
the information to CSIS for assessment. Based on CSIS’s assessment of the level
of threat, the OIC, Airport Policing Branch would apply a security grid, originally
developed at Mirabel and applied at Pearson and Mirabel in 1985,243,244 to set
a level of security, from level 1 to 5, to be applied by the local RCMP airport
detachments for a particular flight.245 Security level 1 was always in effect.246 At
increasing levels of security, additional measures came into play. For example,
at security level 1, the RCMP provided, among other things, continuous patrol of
the apron, intermittent inspections of the aircraft and patrolled sterile zones in
the departure and arrival areas and the mezzanine. At level 3, the grid called for
the RCMP to “…use the services of the dogmaster” and to provide a “…constant
watch of passenger screening check point used by the airline during the time the
counter is open.”247 Importantly, the protocol itself248 did not mention “specific
threat” criteria. To the extent that the “specific threat” concept was used by those
involved in implementation, this was due to a misunderstanding of the regime.
Threat-Response Protocols Non-Responsive to the Nature of the Threat
Deficiencies in the Emergency Protocol
While the RCMP manual in use at Pearson indicates that the optimal method of
search for an emergency bomb threat was a combination of the RCMP police
243 Exhibit P-101 CAA0025. In 1985, this grid was applied at both Mirabel and Pearson airports: Testimony
of Gary Clarke, vol. 28, May 15, 2007, p. 3112. While there is correspondence indicating that it was
decided in May 1983 not to use this grid as a national policy at that time (Exhibit P-101 CAA0034),
Sgt. MacDonald, who was the acting OIC of the Airport Policing Branch responsible for setting
security levels in 1985, confirmed that in fact, the grid was adopted and used nationally: Testimony
of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2765-2766. This is also consistent with the RCMP
Submission to the Honourable Bob Rae, which suggested that the five-level security protocol was
an RCMP-wide policy: Exhibit P-101 CAA0335, p. 8.
244 During cross-examination, Supt. Clarke appeared to accept Government counsel’s suggestion, based
on the 1983 correspondence, that there was no national policy, even in 1985, and he therefore
concluded that the grid must have been only a guideline: Testimony of Gary Clarke, vol. 28, May
15, 2007, pp. 3098-3099. He also stated that this particular document was not a national policy
since it was labelled “Mirabel,” and “…[i]f it was a national policy, it would show Headquarters
Ottawa on it.” Nevertheless, and regardless of the characterization of the particular document,
Supt. Clarke did confirm that this very security grid was applied for “…all other airports, right across
Canada” (Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3099) and reiterated that the grid was, in
fact, applied at Pearson (Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3112).
245 Once Headquarters set the level of security, the corresponding measures, as set out in the grid, were
considered by Headquarters to be the mandatory minimum deployment to be effected by the airport
detachments: See Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2770-2771.
246 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2767.
247 Exhibit P-101 CAA0025.
248 Exhibit P-101 CAA0025.
�Chapter IV: Responding to the Threat
dog and the trained Hand Search Team,249 the manual does contemplate the
situation in which the Toronto Police Service Dog (PSD) is not available. The
Pearson Emergency Manual provides:
• When PSD not reasonable [sic] available and conditions warrant an
immediate search, commence searching without PSD Team.
• When PSD not available, commence search with Hand Search Team
only.
• When Toronto PSD (Explosives) not available and PSD required,
consider use of Montreal Airport PSD Team upon approval of O. i/c/
Ops. NCO.250
Where there was no available explosives sniffer dog, as was the case on June 22,
1985, this meant that the RCMP Hand Search Team would be used alone and, if
the emergency protocol was triggered, the Team would oversee the process of
baggage-passenger matching, and conduct a search of the aircraft as described
above.
The Final Submissions of the Attorney General of Canada argue that use of
the RCMP Hand Search Team alone was a “sufficient back-up.”251 As discussed
in Section 2.3.3 (Pre-bombing), Over-Reliance on Technology, we now know
that the use of passenger-baggage reconciliation would have almost certainly
identified the luggage containing explosives on June 22, 1985. This does not
mean that the use of the Hand Search Team was sufficient backup for a trained
explosives detection dog, however, because as Mattson noted, the technique of
passenger-baggage matching was premised on the assumption that “…anyone
who was getting on board that flight was not going to jeopardize their own life.”252
This is the reason that the optimal method was to use the RCMP dogmaster, in
addition to the Hand Search Team, since that would provide a safeguard against
would-be suicide bombers. Both Mattson and Carlson confirmed that it was not
the role of the Hand Search Team to actually open and hand search luggage; nor
was the Team trained to do so.253,254 This fact is significant in light of the existence
of important threat information in June 1985, suggesting that saboteurs could
effect their plan by means of suicide bombing. The June 1st Telex, provided to
the RCMP by Air India in early June 1985, states:
249
250
251
252
253
Exhibit P-101 CAC0310, p. 13.
Exhibit P-101 CAC0310, p. 16.
Final Submissions of the Attorney General of Canada, Vol. II, para. 242.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3223.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3222, 3224, 3261-3263; Testimony of Gary
Carlson, vol. 28, May 15, 2007, pp. 3000-3001. Carlson stated that in 1985 he estimated that he would
be called into the airport in relation to bomb threats an average of 100 times per year, and in his
two years at Pearson, his team never hand searched luggage.
254 Exhibit P-101 CAF0160, p. 52. There was some confusion arising out of the testimony of Gary Clarke,
who testified that he thought the role of the Hand Search Team was to open and search the luggage.
However, this testimony is contradicted by persuasive evidence from both RCMP and Transport
officials, as well as common sense (in light of the training and equipment provided to RCMP airport
personnel).
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It is also learnt that Sikh extremists are planning to setup
suicide squads who may attempt to blow up an aircraft by
smuggling in of explosives in the registered or carry-on
baggage.255
Accordingly, passenger-baggage reconciliation by the Hand Search Team
would not have been enough to respond to the threat of suicide bombing. It
was a clear deficiency, given the threat information in circulation at the time,
for the RCMP protocol not to provide for effective back-up protection against
suicide bombing in the event that explosives sniffer dogs were unavailable. A
protocol calling for members to open luggage and to perform hand searches256
of the contents would have gone some way in helping to identify explosives or
suspicious items that were known to be used to conceal explosives – including
radios, cameras and other electronic equipment.257
In any event, none of these measures – including passenger-baggage
reconciliation, dog search, or hand search – were even attempted, since
the relevant intelligence at the time, including the June 1st Telex, was not
viewed as relating to “emergency threats” or “specific threats”.
Deficiencies in the Non-Emergency Protocol
The security levels grid itself was rigid and provided no scope to tailor the
deployment to the nature of the threat. The measures contemplated by the grid
were essentially oriented towards the prevention of hijacking – for example,
providing escort and surveillance of the plane, patrol of passenger departure
and arrival areas, and identification of all armed guards. In 1985, this orientation,
combined with the rigidity of the grid, was particularly problematic, given the
fact that particular threats of sabotage by checking luggage containing bombs
aboard aircraft had been received, and that the threat of sabotage in general
was by that time understood to have surpassed the threat of hijacking as the
most pressing threat to aviation security.258 Regardless of the content of the
threats and of CSIS intelligence assessments, RCMP Headquarters mechanically
applied the grid, based on the CSIS categorization of the threat, to effect security
deployment directives, without in any way tailoring the response to the actual
nature of the threat.
The inadequacy of the regime is highlighted by the fact that a prank caller, who
happened to call into an airline office with very specific details, could trigger
255 Exhibit P-101 CAA0185 [Emphasis added].
256 The technique and limitations of the method of hand searching are discussed in Chapter V (Prebombing), The Day of the Bombing.
257 See, for example, Exhibit P-101 CAA0161, which contains a telex from Air India Headquarters dated
May 21, 1985, warning that “…items like [transistors] two-in-one cameras cakes tinned [items]
of food etc. should not repeat not be allowed until and unless checking staff fully satisfied about
their contents.” See also Air India telex dated April 22, 1985 indicating that “…weapons, explosives
and other dangerous devices … may be cleverly hidden, particular attention should be paid to
cameras, electronic equipment and parcels”: Exhibit P-284, Tab 50.
258 See Section 2.3.1 (Pre-bombing), Recognition of the Threat of Sabotage and Weaknesses in the Ability
to Respond.
�Chapter IV: Responding to the Threat
extensive mobilization of resources, including highly sensitive anti-sabotage
measures. But a threat passed through the intelligence stream and assessed as
“high” by CSIS – as the result of a more rigorous analysis based on a large body
of contextual threat information and open to checks such as corroboration259 –
would essentially result in no effective anti-sabotage deployment or protection
by the RCMP. The effect of this scheme was that RCMP protective measures
implemented at the airport increased in relation to the level of threat, but
what was offered was increasing protection against hijacking, regardless of the
nature of the relevant threat. Moreover, the use of the level of “threat” as the
determining factor in protective deployment decisions obscured the relevance
of “risk.” Risk did not form a part of the analysis in responding to non-emergency
threats – a clear deficiency in the regime.
Post-Bombing – “Specific Threat” Becomes the Alibi
Immediately after the bombing, the Government of Canada took a defensive
stance, arguing publicly that there had been no “specific threat” to Air India.
On the very day of the bombing, June 23, 1985, the Department of External
Affairs sent a telex to Delhi which set out Transport Canada’s already-formed
position on security measures connected with Air India’s baggage handling,
with the notation “…you may wish to draw on following points to answer GOI
[Government of India] or Indian Press enquiries.”260 The telex went on to state:
Had the air carrier deemed there was a specific threat to that
flight, Air Regulation 812 calls for them to notify Transport
Canada and the police. Had there been a specific threat, the
aircraft would have been moved 150M from the terminal bldg
and all bags would have been opened i.e. the emergency
procedures would have been followed.
Leaving aside the issue of the correctness of this statement in terms of its
description of responsibilities and procedures,261 the statement does fairly
situate the concept of “specific threat,” making it clear that the context is that
of an emergency – that is, the aircraft is already on the tarmac with boarded
luggage and passengers. With time, any such nuances became blurred and
the Government’s constant reiteration of this concept became the defensive
response of the Attorney General of Canada to the lack of protection afforded to
Air India. For example, a Transport Canada briefing note, dated June 27, 1985,262
reads:
259 See Final Submissions of the Attorney General of Canada, Vol. I, p. 49, note 97.
260 Exhibit P-101 CAE0209. See also Exhibit P-101 CAF0057, p. 43: On June 23, 1985, C Division responded
to a request from Headquarters for an explanation of the “three bags” incident at Mirabel Airport and
indicated that there had been “no special information” about a “specific threat.”
261 As noted earlier, the RCMP protocol at Pearson did not call for the opening of luggage as part of the
emergency procedures.
262 Exhibit P-101 CAF0809.
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Transport Canada Security Manual calls for full hand baggage
inspections when a specific threat to a flight is received. Air
India did not indicate a specific threat to Flight 182. RCMP
confirm that they received no special request for special
security because of specific threat to Flight 182. Additional
assistance was requested for the month of June for all Air
India flights. Additional assistance was provided by Transport
Canada and the RCMP.263
This statement begins to blur the distinction between the two regimes in place,
using the concept of “specific threat” as though it were the trigger for “special
security,” a term used to describe measures put in place in the context of the
non-emergency regime.264 Special security for Air India was, in fact, requested
for the month of June in response to non-emergency threats received through
the Indian High Commission and through Air India Headquarters in Bombay.
The exact text quoted above was copied verbatim in daily briefing notes
throughout June and July,265 and this repetition and reinforcement may help
explain how the notion of “specific threat” became so quickly and firmly
embedded in the Government of Canada position.
The overall defensive stance taken by the Government in the immediate
aftermath of the bombing is reflected in internal documents that increasingly
point to the lack of “specific threat” to explain away security failures. At a meeting
that was held on January 7, 1986, attended by Ivan Whitehall, Counsel for the
Government of Canada in the civil litigation action launched by the families,
Bruce Stockfish, Counsel for the Ministry of Transport, and government officials
from the RCMP and the Ministry of Transport, a number of issues pertaining to
the security regime in place on June 22, 1985, were discussed. The memorandum
describing the discussion notes:
Whitehall asked what powers the government i.e. MOT/RCMP
had to prevent an aircraft from departing if it was judged that
conditions on board were unsafe. Bruce Stockfish stated that
Section 812 of Air Regulations empowers the government
to detain an unsafe plane, however, there must be a specific
threat to that plane. There was no/no specific threat to Air India
181/182 on 85-06-22.266
263 Exhibit P-101 CAF0809, p. 4 [Emphasis in original].
264 See, for example, Exhibit P-101 CAA0240, p. 2, where Supt. Clarke wrote “…specific intelligence was
received by the RCMP which indicated that special security precautions should be taken on all Air India
Flights to and from Canada” [Emphasis added] and Exhibit P-101 CAA0229, pp. 2-3, where in an
internal DEA telex written just after the bombing it is written: “In discussions with Indians CDA fully
acknowledged that a series of requests for special security measures for Air India flights had been
received over recent weeks.” [Emphasis added].
265 See, for example, Exhibit P-101 CAF0810, CAF0811 and CAF0812.
266 Exhibit P-101 CAC0517, p. 3.
�Chapter IV: Responding to the Threat
In reality, the Government of Canada was not powerless to intervene in the
aircraft’s departure absent a “specific threat.” There was nothing in section 812
of the Air Regulations that required a “specific threat” before an unsafe plane
could be detained.267
The same lines that were used within Government and with the media were
also used with the families of the victims. On July 22, 1985, just one month after
the bombing, at a meeting of government officials with representatives of the
families, Paul Sheppard, Director of Civil Aviation Security in the Ministry of
Transport, told the families:
With respect to Air India flight 182, there was no threat to
that specific flight on June 22nd in relation to sabotage. Had
there been a specific threat to that flight, additional security
measures would have been imposed on Air India by Transport
Canada and law enforcement authorities.268
In its Final Submissions, the Attorney General of Canada continues the confusion.
Dealing with the June lst Telex,269 which stated270 that “…assessment of threat
received from intelligence agencies reveal the likelihood of sabotage attempts
being undertaken by Sikh extremists by placing time/delay devices etc. in the
aircraft or registered baggage,” the Attorney General of Canada Submissions
argue:
The June 1st telex was tragically accurate, but warning as it did
all Air India operations for an entire month, it was not a specific
threat to Flight 182.271
…
The June 1st telex did not contain a specific threat against
Flight 182. As these submissions have already canvassed, a
“specific threat” is information that points to a certain flight as
an identifiable target. The June 1st telex was not directed solely
against the weekly Air India flight from Canada – rather it was
sent from Bombay to all Air India offices worldwide. It was
directed to all Air India flights operating in June 1985.272
The discussion of whether the June 1st Telex was “specific” is entirely beside the
point. Under the 1985 aviation security regime, in response to a “specific threat,”
the airplane was to be moved to a place of safety, the luggage and passengers
267 See above in this chapter: s. 813 of the Air Regulations provided that the Government had wide
discretion to take any action necessary to ensure that an aircraft would not depart in circumstances
considered by the Government to be dangerous.
268 Exhibit P-101 CAF0819, p. 11.
269 Exhibit P-101 CAA0185.
270 Exhibit P-101 CAA0184.
271 Final Submissions of the Attorney General of Canada, Vol. II, para. 198.
272 Final Submissions of the Attorney General of Canada, Vol. II, para. 192.
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offloaded, the explosives sniffer dog was to search the luggage and a process
of passenger-baggage matching was to be conducted. Consider now, taking
the Attorney General of Canada approach, how this would play out if the telex
were “specific” as to the June 22nd date. Given that the threat was received
well in advance of the flight, and knowing this information, would the proper
RCMP response have been to have the passengers and luggage loaded, then
to have the plane moved to a place of safety, and then to have implemented
the emergency protocol? The characterization of the telex as not “specific” does
not answer the question of whether the security measures implemented were
adequate to respond to this threat.
Over time, it appears that “specific threat” has become a malleable concept,
whose contours have been adjusted to fit the need to justify the deficiencies
in the response to individual threats, as well as to the cumulative body of prebombing threats. At its furthest reach, the focus on “specific threat” has allowed
a conclusion that the lack of a “specific threat” – however defined – meant that
there was no intelligence at all about threats to Air India. In a “lessons learned”
document written in 1986 by a member of the HQ Air India Task Force,273 the
RCMP maintained that prior to the bombing, it had “…no intelligence of a
direct threat to Air India or Indian missions/personnel” and “…no indications
that Air India would be the target” in the context of the general high threat
in June 1985.274 This statement flies in the face of the wealth of pre-bombing
information about threats to Air India and Indian interests in Canada in evidence
before the Inquiry. In his testimony at the Inquiry, the author of the document,
Sgt. Sweeney, explained that he made the statement because there were no
“specific threats” against Air India.275
Conclusion
In spite of the Government’s insistence throughout this Inquiry that there was
no “specific threat” to Air India, it appears that no coherent definition of the
concept, at least as used within government, could be provided. Further, the
concept was irrelevant to the actual protection of Air India Flight 182 in the
aviation security regime in place. Where the concept was used, it was because
of a misunderstanding of the regime, and it was turned into an all-or-nothing
trigger that was inappropriate in a non-emergency context. Post-bombing, the
Government continued to rely on the concept as an alibi for the deficiencies in
security at Pearson and Mirabel and, over time, it became the basis for an even
broader allegation that the security community had no threat information about
Air India. The failure of the Government to adequately respond to the threats
it received had nothing to do with their specificity. The problem was a threatresponse regime that failed to incorporate any manner of risk analysis to assess
adequately or respond to the actual threat at issue – the threat of bombing.
273 Exhibit P-101 CAF0055; Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2706-2707.
274 Exhibit P-101 CAF0055, p. 3.
275 Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2708, 2719.
�Chapter IV: Responding to the Threat
4.4 Failures in Sharing of Information
A Failure to Communicate Critical Information
A recurrent theme in the evidence presented at the Commission hearings, and
in this Report, is the failure to pass on critical information when it was needed.
Among the most striking examples was the fact that, prior to the bombing,
both the RCMP and Transport Canada received information about threats but
often did not see the need to advise each other, or other agencies or carriers,
of the pertinent information. Transport Canada recognized this potential
deficiency, but did not advocate for the creation of a centralized and consistent
system for sharing information. Air India, similarly, had committed to sharing
all threat information with all of the relevant agencies but failed to distribute
some of the most important information about the risk to its flights with key
partners in security. The CATSA Act Review Advisory Panel found that the poor
communication among officials of the RCMP, Transport Canada personnel
at Pearson and Air India was one of many human failures leading up to the
bombing of Air India Flight 182.276
The failures to share information appropriately between agencies and to
coordinate effectively were exacerbated by the fact that there were significant
deficiencies in the agencies’ internal handling of information, as well as in their
systems for directing and processing such information. These interagency and
intra-agency information-sharing failures greatly impeded their capacity to
make quick decisions and implement sensitive operational responses to the
threat.
Transport Canada’s Internal Communications Structure
Deficiencies in Formal Structures for Sharing of Information
Prior to the bombing, there were no formal agreements “…for the exchange of
security information and intelligence between Transport Canada headquarters,
airports and airlines with intelligence and law enforcement agencies.” Security
information was passed along informally, with Transport Canada and RCMP
officials relying on an “old boys’ network,” built on personalities and past
relationships.277
With regard to intelligence and threat assessments in civil aviation security, the
RCMP Security Service was originally responsible for analyzing intelligence and
providing threat assessments. These were then cleared at Transport Canada HQ
and disseminated to other Transport Canada officials, air carrier employees and
RCMP airport detachments. After July 1984, the threat assessment responsibility
moved to CSIS, but the RCMP Airport Policing Branch retained a role in requesting
and disseminating threat assessments.
276 Exhibit P-157, p. 45.
277 Exhibit P-364, p. 1.
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In the early 1980s, Transport Canada recognized that it required a central point
for the analysis and dissemination of security intelligence. A report describing
the office of a new National Civil Aviation Security Coordinator emphasized that
“…the prompt and orderly transmission of threat information to all concerned
is vital to the success of any programme for the prevention of Acts against Civil
Aviation.” The hub of the inward and outward flow of information would be the
Director General of Civil Aeronautics. The Deputy Coordinator would be the
Director of the Civil Aviation Security Branch of Transport Canada. The scope of
interest was to be the collection, evaluation, and dissemination of information
concerning any planned activity or indicated threat against civil aviation, and
the identification of activities and groups who might be suspected of planning
to hijack or place a bomb or incendiary device on an aircraft, or commit an act
of sabotage.278
According to this Transport Canada report, “…persons who become
knowledgeable of information of the type described above should report it by
the fastest means available to the National Civil Aviation Security Coordinator”
or, alternatively, to the nearest Transport Canada facility. Transport Canada HQ
would then analyze the information and, “…if appropriate, the information will
then be forwarded to the local airport, airline and law enforcement authorities
who have an active interest.”279
Transport Canada received intelligence and intelligence assessments from many
different sources.280 While the RCMP Security Service had been the sole agency
analyzing threat intelligence between 1973 and 1984, the advent of CSIS added
another layer of complexity.281 The dissemination of information by the Director
of Civil Aviation Security would be determined “…by judgment and experience
as to those people who have a ‘need-to-know’.”282 Urgent matters were to be
handled by telephone calls.
Unfortunately, in practice, these links did not provide the smoothly-functioning
central point of contact originally envisioned by Transport Canada. In the absence
of clearly defined channels and procedures, networks remained informal, vague,
and haphazard. Communications were susceptible to misunderstandings and
personality conflicts – an acknowledged weakness of the often informal and
personality-driven relationships between the law enforcement and security
intelligence communities that continues to this day.283 With respect to the
sharing of intelligence between the RCMP and Transport Canada, the problems
278 Exhibit P-101 CAF0551, pp. 1-2.
279 Exhibit P-101 CAF0551, p. 3.
280 Exhibit P-364, p. 1. These sources included CSIS, the RCMP, the Communications Security Establishment
(CSE), the Intelligence Advisory Committee, External Affairs, the Solicitor General, the United States
Federal Aviation Administration (FAA), and “…other foreign government civil aviation security officials,
Canadian and Foreign air carrier security officials and Transport Canada Regional and Airport officials.”
They communicated with the Director of Departmental Security and the Director of Civil Aviation
Security at Transport Canada.
281 Exhibit P-157, pp. 45-46.
282 Exhibit P-364, p. 1.
283 See, for example, Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6251-6252.
�Chapter IV: Responding to the Threat
multiplied because, as was emphasized by the CATSA Act Review Advisory Panel
in its Report, “…in the absence of clear lines of authority and responsibility,
mistrust and misunderstanding caused breakdowns.”284 This meant that twoway sharing of pertinent security information between the agencies was
inconsistent.
Lack of Secure National Communications System
As a further complicating factor, Transport Canada lacked a secure national
communications system, requiring it to rely on the assistance of the RCMP
in disseminating classified intelligence to personnel at airports.285 In a
memorandum dated March 19, 1985, Paul Sheppard, the Director of Civil Aviation
Security, commented that this weakness posed a significant problem.286 If it was
necessary to disseminate classified intelligence in hard copy, the message would
need to be sent through the RCMP telex system to an airport such as Mirabel
or Pearson, where the Transport Canada security officers would be contacted
by telephone and told the information was on its way.287 Sheppard wrote that
a secure network was needed to link Transport Canada HQ to each region and
major airport, but no steps had been taken to implement such a system before
the bombing.
As a consequence, major airports sometimes lacked timely access to security
intelligence, and Transport Canada’s unstructured relationship with the RCMP
did little to remedy the matter. An April 1985 security exercise review at Pearson
airport highlighted the fact that Transport Canada could not send classified
information to Pearson because there was no secure telephone or telex system
in place. According to the Transport Canada officials at Pearson, “…the RCMP
Airport Detachment have a secure communications system and are often in
receipt of such information well in advance; however, RCMP are often reluctant
to pass this type of information on to us.”288
In the assessments conducted after the bombing, Transport Canada recognized
that a national standard for aviation alerts, which defined the measures to be
implemented for a given threat level, would eliminate much of the confusion
that was encountered whenever a threat to civil aviation was received.289 A
national system would also have the advantage of eliminating the need to
transmit classified documents. When a high or maximum alert threat was
declared, airport managers and air carriers would know what action to take.
Deficiencies in Sharing of Information with Airports
The problem created by the absence of consistent national alert levels and
security measures was exacerbated by the absence of policies, prior to the
284
285
286
287
288
289
Exhibit P-157, p. 70.
Exhibit P-364, p. 1.
Exhibit P-101 CAF0083.
Exhibit P-364, p. 1.
Exhibit P-101 CAF0585, p. 5.
Exhibit P-364, pp. 2-3.
493
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bombing of Air India Flight 182, about sharing threat information with airports.
Information was compartmentalized and segregated, without consideration
for the fact that passengers, baggage and cargo across the country would be
connecting to high-risk flights and airports from low-risk ones. The danger
presented by interlined bags simply went unseen. The CATSA Act Review
Advisory Panel referred to this lack of vision as “the myopia syndrome.”290 For
example, neither CP Air nor any officials at Vancouver International Airport
were advised of the high threat situation facing Air India in June 1985, and no
thought had been given to doing so. CP Air’s security measures for high threat
situations were therefore not in force at Vancouver International Airport on June
22, 1985.
Examining a case study of the threat assessment communication system from
this period, the CATSA Act Review Advisory Panel concluded that “…a number
of observations can be drawn from this case study, none of them particularly
flattering to the principals.” In particular, the lack of secure communications
channels led to potential delays in response during threat situations, and the
interface between Transport Canada HQ and the air carriers, the airports, and
the intelligence and policing agencies “…seemed uncertain, ad hoc.”291 That
uncertain system was made even more problematic because the “need-to-know”
principle governed dissemination, resulting in officials having inconsistent
access to important threat information that could significantly impact the state
of security and the ultimate response to a threat.
Even after the bombing, communications remained as chaotic and uncoordinated.
In July 1985, CSIS informed senior Transport Canada officials at headquarters
that it would be distributing important threat intelligence information.292 This
information was picked up by the officials from the CSIS office and forwarded
to the RCMP Director of Protective Policing. The threat related to four airports,
but the intelligence was to be passed on further to the RCMP Airport Policing
detachments at all 10 Class 1 airports. Unfortunately, only two of these airports
had secure telex terminals. The four affected airports were therefore contacted
by telephone and told that the RCMP had details of a threat warranting elevated
security, and it was recommended that the airports call emergency meetings
of their respective airport security committees. Representatives of two airlines
were also contacted and told to contact the RCMP regarding the threat.
When CSIS obtained additional information concerning the threat, Transport
Canada officials at the four affected airports were contacted by telephone
and told that their respective RCMP Airport Policing detachments had further
details.293 Although the local Transport Canada officials were told that the
messages would be available for pickup at specific locations, the messages
were not received, and in the ensuing confusion a flurry of telephone calls were
made back and forth among the airports, Transport Canada HQ and the RCMP.
290
291
292
293
Exhibit P-157, p. 69.
Exhibit P-157, p. 47.
Exhibit P-364, p. 3.
Exhibit P-364, p. 3.
�Chapter IV: Responding to the Threat
The following day, some of Transport Canada’s regional headquarters and some
airports were still in the dark about the threat, and local RCMP detachments
were reluctant to divulge the details.294 Meanwhile, at one of the four affected
airports, an emergency meeting of the airport security committee was
convened, and air carrier representatives, with no security experience, attended
the meeting. Although the RCMP Inspector in attendance warned those present
about the need for security to safeguard the intelligence, one of the air carrier
representatives forwarded messages containing extremely sensitive details
onwards.
Similarly, in a September 1985 meeting of the National Civil Aviation Security
Committee in Ottawa, John Cook, Transport Canada’s Manager of Policy and
Intelligence for the Civil Aviation Security branch, highlighted communications
problems that had resulted in poor coordination and cooperation among
members of law enforcement agencies, the air carriers, and Transport Canada.
The major problem areas causing the breakdowns were the lack of a secure
communications system, and new and inexperienced personnel who were
unfamiliar with their duties.295
Deficiencies in Coordination and Sharing of Information between the
RCMP and Transport Canada
Transport Canada was very concerned about unilateral decisions made by the
RCMP to relay intelligence to airports and airport personnel. In an April 1985
memorandum, Sheppard noted that due to the RCMP’s distinguished reputation,
foreign government and air carrier officials often approached it directly with
threat information. The RCMP would then frequently act without any discussion
of the situation with Transport Canada, as it considered such information to be
a purely police matter.296 Airport managers, on the other hand, felt that they
should be informed of potential threats by Transport Canada HQ, and not by
the RCMP.297
Sheppard’s memorandum raises issues both in terms of the appropriate sharing
of information, as well as the coordination of security measures. The RCMP, as part
of its obligations to collect, evaluate and disseminate intelligence information
concerning national and international threats to civil aviation,298 was to ensure
that Transport Canada was made aware of all relevant threat information. As
well, pursuant to the Memorandum of Agreement (MOA) between the agencies,
the RCMP was required to consult regularly with the Transport Canada Airport
General Managers.299 It was important for Transport Canada to be aware of
relevant threat information so that additional measures or procedures could be
imposed, if necessitated by the nature of the threat.
294
295
296
297
298
299
Exhibit P-364, p. 3.
Exhibit P-101 CAF0162, p. 10.
Exhibit P-101 CAF0084, p. 2.
Exhibit P-364, p. 2.
Exhibit P-101 CAA0335, p. 8.
“Manager” is defined in the MOA as “Airport Manager.”
495
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At Pearson airport, in particular, these local breakdowns in communication and
sentiments of mistrust between the two agencies appeared to occur frequently.
Supt. Clarke testified that when an engine failed on Air India’s June 8, 1985,
flight from Pearson,300 the Airport General Manager did not notify the RCMP of
this breakdown.301 As he explained:
…there was a little bit of a breakdown in communication
as well because – when the engine on the aircraft went out
of service, the airline had to come back to Lester B. Pearson
International Airport. Unfortunately, the General Manager
didn’t convey that to the RCMP. We didn’t know the aircraft was
coming back because of the engine. The engine [sic] had to be
taken to a hangar and the engine removed. We weren’t told
that.
…
Maybe he didn’t consider it important.302
In actual fact, an RCMP internal document indicates that neither Transport Canada
nor the RCMP were notified by Air India about this incident.303 Nevertheless,
the misperception and ill will regarding this incident (which still persists within
RCMP folklore today) is a reflection of the level of tension and the perception of
a lack of cooperation in 1985.
In its Final Submissions, the Attorney General of Canada argued that the evidence
before the Commission demonstrates that the various players in aviation
security “…cooperated and communicated with each other continuously about
the threats to civil aviation in general, and against Air India specifically.”304 It is
not disputed that there was ongoing communication and cooperation between
the RCMP and Transport Canada. The problem that emerges is the failure to
have a formal and consistent method of communication and dissemination
of information to all relevant parties as needed. Structures were simply not in
place to enable this to occur. Transport Canada and the RCMP had access to
different pools of intelligence and did not always effectively share information.
Their ability to provide a coordinated operational response to aviation security
threats was correspondingly compromised.
RCMP Internal Information Sharing Failures
The complex communications arrangement between Transport Canada and
the RCMP suffered from a lack of clear policy and procedure, and resulted
300
301
302
303
304
Exhibit P-101 CAF0010, p. 3.
Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3065-3066.
Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3065-3066.
Exhibit P-101 CAF0586, pp. 6-7.
Final Submissions of the Attorney General of Canada, Vol. II, para. 90. Dale Mattson’s testimony
regarding the threat assessment process was cited as an example of this continuous communication.
�Chapter IV: Responding to the Threat
in confusion. These communications failures were exacerbated by the fact
that, even within the RCMP, there appeared to be little in the way of a formal
structure for reporting and disseminating threats to aviation security. This was
exemplified by the fact that threat information concerning aviation security was
not consistently reported to the Airport Policing Branch when relevant threats
were received by other branches of the RCMP.
Information Sharing Failures within Airport Policing
Air India shared significant threat information with RCMP airport detachments.
These threats were often transmitted from Air India headquarters in Bombay
to local Air India representatives in Toronto and Montreal, who would in turn
forward the threats to RCMP airport detachment officials. On receipt of such
information, the airport detachments often failed to transmit it to the RCMP
Headquarters Airport Policing Branch. From the perspective of Headquarters,
if a request for extra security in response to a threat could be resolved locally, it
was not necessary for Headquarters to be informed of the threat.305 For example,
the fact that the airport detachments did not send Headquarters information
from Air India about the need for attention to be paid to “…cameras, electronic
equipments and parcels carried as hand baggage,”306 or about a terrorist group
in Europe intent on exploding a device on an international airline in flight by
placing an explosive inside a suitcase,307 was not of concern to the acting OIC
of the Airport Policing Branch as, in his view, the issues could be dealt with
locally.308
Similarly, a July 1984 telex noting that an individual had “…volunteered to carry
a bomb in his accompanied baggage with a view to blowing up an Air India
plane in order to draw attention to the demands of the Sikhs,”309 was apparently
never forwarded to RCMP Headquarters; nor was an October 1984 telex
indicating that a statement had been made, at a meeting organized by the All
India Sikh Student Federation, that there would be “…one hijacking of an Indian
aircraft every month,” and that a committee, including Ajaib Singh Bagri, had
been formed to draw up the plans for the hijacking;310 nor was a June 7, 1985
telex, indicating that “…enforcement of special measures to deal with increased
threat of hijacking and sabotage at airports by extremists should be continued
till the end of June 85.”311
The Airport Policing Branch acted as the trigger for the production of CSIS threat
assessments, which the Branch requested upon receipt of threat information.312
305
306
307
308
309
310
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2839.
Exhibit P-101 CAA0024 (February 1983).
Exhibit P-101 CAA0045 (May 1984).
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2826-2828.
Exhibit P-101 CAA0083, CAA0084.
Exhibit P-101 CAA0096, CAA0097. Note that both of these telexes were, in fact, passed from Air India
to Transport Canada Headquarters. Again, there is no evidence of this threat being forwarded to CSIS,
so it is not possible to determine whether CSIS would have received this information through channels
other than the RCMP.
311 Exhibit P-101 CAC0419.
312 Final Submissions of the Attorney General of Canada, Vol. II, para. 28.
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If the Airport Policing Branch was not receiving relevant threat information, and
was therefore not passing it on to CSIS, the entire process was weakened and
its potential usefulness was compromised.313 The Airport Policing Branch also
performed a number of other functions that required a free flow of relevant
threat information, including its specific mandate to set security levels for
implementation at Canadian airports in relation to threats.314
Just as important was the fact that, because RCMP Headquarters was not
receiving all threats, it could not properly disseminate relevant threat
information to other airport detachments that might be affected, such as those
with flights connecting to Air India. The general threat information provided
by Air India, such as information that a terrorist group in Europe intended to
place an explosive inside a suitcase on an international flight, would have been
relevant to all detachments at airports with international flights.
The more long-term response role of the Airport Policing Branch was affected
by the fact that it was not receiving all relevant threats. This would have been
significant in terms of its ability to expand knowledge of the threat environment
respecting aviation security, which would in turn affect its ability to create
responsive policies and protocols in line with the airport policing mandate.
RCMP protocols at the time were targeted towards the prevention of hijacking,
even though the RCMP recognized that there were strong indications that the
most significant threat to aviation security was moving towards sabotage.315
There was nothing to prevent the RCMP from modifying the existing protocols
in light of this new reality.
Failures in Sharing between VIP Security Branch and Airport Policing Branch
In 1984/85, CSIS produced a number of types of threat assessments. Many
threat assessments were created in response to a particular threat, but CSIS also
produced threat assessments of a more long-term, or strategic, nature, such as
those that gave an overview of the climate of Sikh extremism in Canada. CSIS
would produce this type of threat assessment periodically and send it to a
number of clients, including the RCMP VIP Security Branch. A significant number
of each type of threat assessment did not get passed by VIP Security Branch to
the Airport Policing Branch, despite the potential relevance to its mandate.
On October 26, 1984, a CSIS threat assessment, sent to VIP Security Branch
but not forwarded to Airport Policing, cited press reports alleging that: a Sikh
extremist leader was planning to organize “suicide squads” in Canada and the
United Kingdom in order to “get even” with Indian Prime Minister Gandhi;316
that Ajaib Singh Bagri had been assessed as someone who could be easily
manipulated into committing a terrorist act; and that there were reports that
313
314
315
316
See Section 3.5.3 (Pre-bombing), RCMP Failures in Sharing with CSIS.
Final Submissions of the Attorney General of Canada, Vol. II, para. 102.
Exhibit P-101 CAF0163, p. 5.
Exhibit P-101 CAA0110, para. 7.
�Chapter IV: Responding to the Threat
he was planning to hijack an Air India jetliner during October 1984.317 Sgt.
J.B. (“Joe”) MacDonald testified that, if he had been in the process of setting a
security level, this information would have been helpful to him.318
An April 1, 1985, threat assessment319 that was sent from CSIS to VIP Security
Branch, but not forwarded to Airport Policing, indicated that the threat against
Indian missions in Canada was “high,” and detailed an incident at Vancouver
International Airport where a member of the Sikh Student Federation was found
to have hidden the barrel of an Uzi machine gun, along with ammunition, in his
suitcase.
An important June 18, 1985 threat assessment, also apparently not forwarded
to Airport Policing, indicated that: “…militant Sikh factions are quietly arming
themselves,” and that “…two Windsor Sikhs are known to have purchased an
Uzi machine-gun in Detroit which it is believed was brought back to Canada,”
that at a meeting in early June, a Sikh activist indicated that in two weeks they
would “…show the community they are serious,” and that the threat was only
slightly less serious than at the time of the last assessment.320 Along the same
lines, Airport Policing did not receive significant information about the BK or
the ISYF.321
Significant threat information from other sources was similarly not shared with
Airport Policing. Information originating with Air India that “…20 Sikhs planning
suicide attack on Air India at Mirabel on Saturday 84.06.16,” was received by
officials at DEA, Transport Canada, and the RCMP VIP Security Branch, but not
sent to Airport Policing Branch.322 On August 7, 1984, a letter was sent from A
Division to VIP Security Branch, quoting a letter to the Prime Minister of Canada,
stating that Boeing planes leaving Montreal, London and the USA could be
bombed.323 MacDonald confirmed that he had not seen this information before.
When Supt. Muir was asked at the Inquiry whether he would have expected
the August 1984 threat to blow up Air India aircraft departing from Montreal,
London and the United States to have been delivered down the hall to Airport
Policing, he could only reply “…it seems to me it should have.”324
317
318
319
320
321
Exhibit P-101 CAA0110, para. 11.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2842-2843.
Exhibit P-101 CAB0207.
Exhibit P-101 CAA0180.
For example, a December 12, 1984 TA (Exhibit P-101 CAB0173) sent to VIP indicates that the October
26, 1984 TA (Exhibit P-101 CAA0110) is still valid and that CSIS is zeroing in on the main individuals.
(The October TA was the telex indicating Bagri, Parmar and Gill are the most dangerous Sikh extremists
in Canada). In addition, Exhibit P-101 CAB0221, dated April 25, 1985, indicates that Parmar is the most
important threat to Indian missions and personnel. This TA was received by VIP Security Branch
and was also quoted in full and sent out in an NCIB/NSE TA: Exhibit P-101 CAC0317 (which was also not
sent to Airport Policing Branch).
322 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2831. It is notable that in response to this threat,
though the Security Service and DEA were unable to corroborate this information, the Air India Station
Manager at Mirabel implemented additional safety measures, including the hand search of all checked
luggage. Transport Canada officials also ensured that RCMP at the Mirabel detachment were aware of
this information and would implement additional security measures, including ensuring the availability
and use of the explosives sniffer dog: Exhibit P-101 CAF0161.
323 Exhibit P-101 CAC0193.
324 Testimony of R.E. Muir, vol. 27, May 14, 2007, p. 2914. See also Testimony of R.E. Muir, vol. 28, May 15,
2007, pp. 2958-2960.
499
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Information from the Indian High Commission regarding “…recent incidents
involving explosions in the public transport system in Delhi and a few other
places in India,”325 appears to have been seen by VIP Security Branch, but not
Airport Policing.326 Such information, which pointed to the fact that Sikh
extremists were increasingly targeting modes of transportation and using
sabotage by bombing, would have clearly been important for Airport Policing’s
understanding of possible targets and modes of attack.
Finally, while VIP Security Branch and Airport Policing were located on the same
floor at Headquarters and misdirected correspondence and other “glitches”
could ostensibly have been avoided if officers “…walked down the hall,”327
nevertheless, significant information was frequently not shared. In the absence
of formal protocols for sharing,328 decisions about whether information should
be shared and with whom, were left to personal discretion 329 or “judgment
calls.”330 Even in the absence of any bad intent, the appropriate exercise of such
discretion would necessarily depend on an ability to identify the relevance of
information to the mandate of other branches or participants. The evidence is
overwhelming that a pervasive lack of understanding of the nature of the threat
severely compromised the ability of recipients to make this analysis.
Passing on information in this discretionary and casual manner requires extensive
knowledge of the subject matter in order to decide what will be important to
share. Despite Muir’s past experience with Airport Policing, however, there
were gaps in his knowledge. He did not know that Air India was owned by the
Government of India and that, accordingly, it could be a surrogate target for
terrorism. Moreover, the VIP Security Branch did not have an ongoing dialogue
or relationship with Transport Canada.331
The security levels for airports such as Pearson were set by the OIC of the Airport
Policing Branch at RCMP headquarters – in June 1985, this was MacDonald’s
responsibility.332 This meant it was vital for MacDonald to have access to all
relevant information concerning aviation security.
In its Final Submissions, the Attorney General of Canada contended that the
informality demonstrated by the evidence regarding the communication of
threat information “…may seem lax by today’s standards, but it is important
to bear in mind that the state of communications and office functionality was
very different in 1985 than it is today. There were no facsimile machines, limited
325 Exhibit P-101 CAC0325.
326 Exhibit P-101 CAC0327.
327 Testimony of R.E. Muir, vol. 27, May 14, 2007, pp. 2910-2913. Muir testified that “[I]nformation coming to
the VIP Security Branch would be shared with the Airport Policing Branch if there was a perceived
need” and “…[t]he desk officer, the desk NCO would just walk down the hall and if he didn’t, I would be
very concerned and surprised.”
328 Testimony of R.E. Muir, vol. 27, May 14, 2007, p. 2914.
329 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2867.
330 Testimony of R.E. Muir, vol. 28, May 15, 2007, p. 2933.
331 Testimony of R.E. Muir, vol. 28, May 15, 2007, p. 2979.
332 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2767.
�Chapter IV: Responding to the Threat
computer use, and paper files.”333 However, at the time, before the proliferation
of the email and facsimile transmissions that dominate today’s means of
telecommunications, telexes were in wide use, and these provided quick
connections, while allowing for direction on the classification and intended
distribution of the information within.
What is clear is that this “informal” method was an imperfect process, frequently
resulting in misdirected and missing information. It lacked clarity, consistency,
and accountability. It was reliant on relationships rather than sound procedure
and practice. The consequence for all the agencies involved was that the picture
of the threat to aviation security was frequently incomplete.
Failures in Sharing between National Criminal Intelligence Branch and
Airport Policing
In the same way that failures in information sharing within P Directorate
appear to have been rooted in a lack of understanding of the relevance of Sikh
extremism, or of the national security dimension to the work of airport policing,
a similar dynamic may account for the failures of National Criminal Intelligence
Branch (NCIB) to direct relevant threat assessments to Airport Policing.
When NCIB received information about the November Plot, it was sent to VIP
Security,334 but not to the Airport Policing Branch, even though the information
explicitly referred to a plot to bomb an Air India plane. Sgt. Warren Sweeney, from
NCIB, indicated that, from his perspective, getting information into the hands of
Airport Policing was a “…P Directorate issue to deal with.”335 By contrast, even
though it generally did not send its general threat assessments about Indian
interests in Canada to Airport Policing, CSIS did nevertheless send the November
Plot information to both Airport Policing and VIP Security.336 On May 27, 1985,
CSIS sent a threat assessment to VIP Security Branch as well as to NCIB (NSE).337
That same day, NCIB forwarded this CSIS threat assessment, in full, to the COs of
all the divisions, but notably, did not send a copy to the Airport Policing Branch
– and there is no indication that Airport Policing ever received a copy of this
telex. The assessment contained information of potentially crucial relevance to
Airport Policing, including: that a prominent Sikh activist had made statements
that the names of Sikhs who refused to boycott Air India flights would be put
on a “hit list”; that a member of the ISYF was recently arrested at the Vancouver
International Airport and that a search of his luggage had revealed the barrel
of a sub-machine gun and 100 rounds of ammunition; and that there was an
unsubstantiated report that a leading member of the ISYF was involved in a
conspiracy to hijack an aircraft.338
333
334
335
336
337
338
Final Submissions of the Attorney General of Canada, Vol. II, para. 99.
Exhibit P-120(c), p. 2 (entry for Oct. 30, 1984: doc 526-3, p. 29).
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2596.
Exhibit P-120(c), p. 2 (entry for Oct. 26, 1984: doc 229-3, p. 5).
Exhibit P-101 CAB0236.
Exhibit P-101 CAA0160, pp. 4-5.
501
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The protective focus within the RCMP was heavily, and almost exclusively,
directed to Indian diplomatic missions, largely precluding any real appreciation
of the potential threat of sabotage to Air India planes. On May 31, 1985, NCIB
sent a telex to VIP Security Branch and the divisions indicating that information
had been received from the Winnipeg Police Department on that day, from a
source who had allegedly spoken with the persons involved, that Sikh terrorists
were going to plant bombs at the office of the High Commissioner in Ottawa
and the Indian consulate in Vancouver on June 6, 1985.339 On June 3, 1985,
the RCMP met with the source in Winnipeg, who alleged that a conversation
was overheard indicating that “…there could be a bombing or other retaliatory
action on 6 June 1985.” The RCMP officer, in his report on the interview, wrote:
It is our belief that info supplied by this subject could
very possibly be correct however what actions/if any are
not known or persons involved are not known. Necessary
precautions should be taken around Indian Embassy and High
Commission’s office.340
When NCIB reported on the results of the Winnipeg interview, the information
was reported to VIP Security Branch, and not to Airport Policing.341 This omission
makes no sense in light of the intelligence then circulating about bomb threats
to Air India, the information that Sikhs could increasingly direct attention to
“softer targets,” including Air India, due to the high security around mission
property and personnel,342 and the incidents of weapons transported by Sikh
terrorists through airports. It does, however, confirm the widespread myopia of
the law enforcement community as discussed throughout this chapter.
Information Sharing between Air India and Government Agencies
Air India did not apprise the companies providing its security and ground
handling services of the severe risk to its flights in June 1985. Transport Canada
and the RCMP did not alert other airports or carriers that would be feeding
passengers and baggage to Air India at Pearson and Mirabel from other parts
of the country. This problem was undoubtedly exacerbated by the fact that
Transport Canada lacked a secure national communications system and that
the air carriers and members of the Air Transport Association of Canada (ATAC)
did not have the necessary clearance to receive classified information. Transport
Canada asked ATAC and selected Canadian air carrier officials whether they
wanted security clearances, but the offer was declined.343
339 Exhibit P-101 CAC0364.
340 Exhibit P-101 CAC0383.
341 Exhibit P-101 CAC0397. Prior to the involvement of NCIB, the officer in Winnipeg who received an
initial call from the source reported that the bomb threat was in relation to the Indian Embassy in
Ottawa and Vancouver: Exhibit P-101 CAC0364. This may also help account for the RCMP’s later
seemingly exclusive focus on mission properties.
342 Exhibit P-101 CAC0133.
343 Exhibit P-367, p. 2.
�Chapter IV: Responding to the Threat
At the local airport detachment level, Air India representatives were inconsistent
in transmitting threat information to RCMP and Transport Canada officials.
At a meeting in January 1985, Air India’s Senior Security and Safety Officer
had promised that both Transport Canada and the RCMP would be provided
with notices of all threats received by Air India,344 but there were a number of
instances in which threat information was not properly relayed.
When Air India received threat information from sources such as the Indian High
Commission or its head offices abroad, it was normally forwarded to the RCMP
airport detachment and Transport Canada officials at Mirabel by Ashwani Sarwal,
Air India’s Assistant Airport Manager.345 Once Air India commenced operations
at Pearson Airport in January 1985, however, that opened a secondary line of
communications, which also received intelligence and threat information that
needed to be passed on to a second RCMP detachment and Airport General
Manager. The threat itself expanded as well. At the January 1985 meeting
with Transport Canada and the RCMP, Mahendra Saxena noted that Air India
responded to roughly three threats a day in New York, and expected even more
security problems in Toronto due to its larger Sikh population.346 These factors
meant that communications became increasingly decentralized and, as will be
demonstrated, as information passed back and forth, Air India did not always
keep all parties properly apprised of each new threat.
Up until 1985, Sarwal had been Air India’s primary contact with Transport Canada
and RCMP officials. In the spring of 1985, as the Assistant Airport Manager for
both Mirabel and Pearson airports, he continued to correspond with officials
in Ottawa, Toronto and Montreal. But, starting in May and June 1985, threat
information was also being relayed by Herbert Vaney, the Area Sales Manager
for Toronto. Vaney disseminated a number of remarkable threat intelligence
reports from his office in this short period. It is unclear why Vaney was required
to do so. His official duties involved dealing with travel agents, promoting
tourism in India, providing public relations to the East Indian community,
and administering the Toronto office. Although he was not involved in airport
management or security, Vaney testified that he would act as a conduit for
threat information. He forwarded messages and attended security meetings
when this was requested of him, but according to Vaney, his role was a very
passive one.347
Vaney testified that, to the best of his recollection, he would have passed on any
intelligence relating to threats to Air India in June 1985:
344 Exhibit P-101 CAA0118, p. 5.
345 A standard example is Exhibit P-101 CAF0587, where RCMP and Transport Canada officials are sent
copies of a letter from the Indian High Commission by Sarwal. See also Exhibit P-101 CAF0564,
CAF0568, CAF0573, CAF0574, CAF0575, CAF0577, CAF0578, CAF0579 and CAF0580, in which telexes
are seemingly routinely forwarded to these authorities by Sarwal.
346 Exhibit P-101 CAA0118, p. 5.
347 Testimony of Herbert Vaney, vol. 89, December 5, 2007, pp. 11624, 11630.
503
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This is based on standing instructions to me, acting as a
conduit. Whenever the information came in on threats, it
would be passed on to various people. For example, there
is a list of addressees, and there must have been standing
instructions on file to pass on the information.348
On May 27, 1985, Vaney sent a letter to the Metropolitan Toronto Police to
advise that Air India had received information that “…extremist elements might
try to indulge in sensational acts such as hijacking of Air India aircrafts etc.”349
Vaney enclosed an earlier letter that had been sent by Sarwal to authorities at
Mirabel and Pearson airports as well as to local police and Transport Canada
headquarters.350 He requested that the security coverage of Air India’s offices
around Toronto, including at Pearson, be increased. He sent copies of the
message to a number of other agencies, including Peel Regional Police, the
RCMP Airport Policing Detachment at Pearson, the Transport Canada Airport
General Manager at Pearson, and the Transport Canada Security Manager at
Pearson. Vaney testified that he had sent this message based on his standing
instructions, and the addressees were from a list on file.351
There is some indication that Vaney would wait for instructions from Saxena
before forwarding a given piece of intelligence or at least before he forwarded
the intelligence to additional recipients beyond the RCMP. This meant that
other critical parties to Air India’s security efforts, such as Burns International
Security or Transport Canada, would not necessarily be advised of threats to
the airline. On May 29, 1985, Vaney forwarded a telex to the RCMP Airport
Policing Detachment at Pearson, as well as to Burns International Security and
Sarwal.352 The telex warned of potential acts of hijacking or sabotage against
aircraft in the week following June 1st, and directed strict security measures for
all Air India flights. When asked why he forwarded that particular message to
Burns, Vaney replied, “I can assume only that Mr. Saxena asked me to copy it
to them.”353 When asked why the June 1st Telex, which also directed very strict
and specific security measures, was not copied to Burns when Vaney had sent a
copy to the RCMP Airport Policing Detachment on June 3rd,354 he replied that, in
general, Burns was not copied on such communications, and that he did so only
on Saxena’s instructions.355 Doing so would actually be an exceptional case. This
is a troubling omission, as Burns International Security provided the guards who
screened passengers, examined baggage, and guarded Air India’s aircraft.
348
349
350
351
352
Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11632.
Exhibit P-101 CAA0159.
See Exhibit P-129.
Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11632.
Exhibit P-101 CAA0164. The telex itself is at Exhibit P-101 CAA0161. According to handwritten notes on
the forwarding letter, a request was made to share it with Mattson.
353 Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11641.
354 See Exhibit P-101 CAA0184. This letter, dated June 3, 1985, was written by Vaney and forwarded the
June 1st Telex to the RCMP.
355 Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11641.
�Chapter IV: Responding to the Threat
On June 7, 1985, Vaney sent another letter to the OIC of the RCMP Airport
Policing detachment at Pearson.356 This message forwarded a letter from May
15th from Air India’s Chief Vigilance and Security Manager in Bombay, as well as
a June 6th telex received from their Bombay headquarters, indicating that the
stringent security measures directed in the June 1st Telex should continue being
implemented until the end of June.357 No other addressees were included on
this correspondence.
At a January 1985 meeting, Saxena made a commitment to ensure that all threat
information would be relayed to both Transport Canada and the RCMP.358 In a
letter to Air India’s Regional Director for the USA and Canada shortly afterwards,
he repeated that “Transport Canada expects that threats of any type received
by airlines should [be sent] to Transport Canada to help proper evaluation and
suitable action.”359 In light of this responsibility, the fact that the documents
forwarded by Vaney were not consistently shared with both entities is clearly a
breakdown in communications. Intelligence was no longer being appropriately
disseminated. Thus it was nearly impossible for the key parties to accurately and
consistently assess the severity of the threat to Air India.
A Singular Miscommunication: The June 1st Telex
The saga of the document that came to be known as the June 1st Telex is a
key example of a critical intelligence failure.360 Despite Air India’s high threat
status and the strict imposition of tight security measures by its headquarters,
the airline neglected to provide this information to either Transport Canada or
Burns International Security. The document was provided only to the RCMP, who
did not disseminate it further. Consequently, the most vital threat information
regarding Air India in 1985 did not reach many of those most concerned with
it.
The document, sent to all Air India stations on June 1, 1985, contained a threat
advisory from Air India’s Chief of Vigilance and Security Manager in Bombay. It
was based on intelligence obtained by the Government of India, and reported
that Sikh extremists were likely to sabotage Air India aircraft by means of timedelayed explosives being placed in the cabin or in checked baggage. It directed
all Air India stations to ensure the “…meticulous implementation of countersabotage measures for flights at all airports.”361 These measures included the
random physical inspections of checked baggage, and the inspection of checked
baggage using explosives detection dogs or explosives detection devices.
On June 3, Vaney forwarded a copy of the same document to the RCMP Pearson
detachment.362 Despite Saxena’s assurance that both the RCMP and Transport
356
357
358
359
360
361
362
Exhibit P-101 CAA0204.
Exhibit P-101 CAA0205.
Exhibit P-101 CAA0118, p. 5.
Exhibit P-284, Tab 13, p. 2.
See Section 1.2 (Pre-bombing), June 1st Telex.
Exhibit P-101 CAA0185.
Exhibit P-101 CAA0184.
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Canada would be advised of all threats, Vaney did not send a copy to any
Transport Canada officials. No one at Air India appears to have forwarded the
telex to Air Canada or Burns International Security, despite the fact that Air India
had contracted with these companies to handle its baggage and to provide
security.
Vaney testified that since the June 1st Telex had been sent to all of Air India’s
stations, he assumed that Air India’s officials at Montreal or New York would
follow up on the security matters themselves. For his part, he was not involved
in any of the discussions about obtaining additional security from the RCMP or
imposing security measures. He had no knowledge of Air India’s security plan,
and strenuously denied he acted in any security capacity other than as a conduit
of information.363
According to Vaney, security matters were discussed on a strict need to know
basis within Air India in 1985, and this approach obviously limited who was kept
informed about the threats to the airline.364 It is profoundly unfortunate that
the information contained in the June 1st Telex was not more widely shared. It is
difficult to conceive of a decision-making process that would conclude that Air
Canada, Burns International Security, and Transport Canada would not have a
need to know, although it is highly likely that Vaney was not alone in assuming
that someone within Air India would follow up on the threat information received
that month. In any event, neither Air India nor the RCMP shared a copy of the
June 1st Telex with Transport Canada officials.365 The result of these failures was
that throughout June 1985, Transport Canada was completely unaware of this
threat and of the extreme security measures called for in response. As discussed
in Section 3.5.3 (Pre-bombing), RCMP Failures in Sharing with CSIS, neither
agency shared the June 1st Telex with CSIS either.
On June 5, 1985, Inspector Bill Dawson, OIC of the Pearson detachment, sent
a message by telex to the RCMP Headquarters Airport Policing Branch.366 He
did not provide it to any Transport Canada officials at the airport or at their
headquarters. Sgt. MacDonald, the senior non-commissioned officer (NCO) and
acting OIC of the Airport Policing Branch of P Directorate at RCMP Headquarters,
responded by requesting a threat assessment from CSIS on June 6.367 He noted
that the last threat assessment, received in October 1984 following a request
from the RCMP VIP Security Branch of P Directorate,368 had indicated that the
threat was high, but non-specific.369 He did not provide a copy of the June 1st
Telex to CSIS,370 nor did he provide a copy to any of the other RCMP airport
detachments, or to Transport Canada.
363
364
365
366
367
368
369
370
Testimony of Herbert Vaney, vol. 89, December 5, 2007, pp. 11644-11649.
Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11649.
See Section 1.2 (Pre-bombing), June 1st Telex.
Exhibit P-101 CAF0589.
Exhibit P-101 CAA0198.
See handwritten notes at the bottom of Exhibit P-101 CAA0099.
Exhibit P-101 CAA0198.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2817-2818.
�Chapter IV: Responding to the Threat
Although it was provided to the RCMP on two occasions, the June 1st Telex
simply did not go where it was needed, because of a lack of formal informationsharing policies and protocols. As a result, it was not part of any assessment of
the threat in June 1985. The Attorney General of Canada also admitted that “…
the dissemination of information was imperfect.”371 This is an understatement.
There were no policies or procedures in place for sharing such information.
Because CSIS did not obtain a copy of the June 1st Telex at this time, the
subsequent threat assessment was both incomplete and misleading.372 The
result of these decisions was that, throughout June 1985, Transport Canada was
completely unaware of this threat and the extreme security measures called for
in response.
The CATSA Act Review Advisory Panel noted that, among the failures in the
sharing of information in the pre-bombing period, the failure to keep relevant
air carriers apprised of relevant threat information was key, and noted:
This somewhat tangled tale highlights a crucial chain of
intelligence communication. Even where intelligence was
available in advance that gave warning of the kind of threat
that tragically materialized on June 23, 1985, the linkage
to those bodies with capacity to take appropriate security
measures remained problematic.… If all carriers in Canada
with flights connecting to Air India had been warned that Air
India was under special security alert, the CP Air Agent [who
permitted the fatal bag to be interlined to Air India Flight 182]
might have exercised more caution.373
The latter point – failure to warn other carriers that were interlining passengers
and baggage to Air India Flight 182 – is an important one. Clearly, Air India itself
bears some of the responsibility for this striking failure to share information.
The problems illustrated by the manner in which Air India shared the information
contained in the June 1st Telex with interested government officials was also a
function of Air India’s own internal structural problems. As discussed in “Air India
Personnel – Confusion about Duties”, in Chapter V (Pre-bombing), The Day of
the Bombing, many of Air India’s local communications and security decisions
were made in the context of an organization that lacked clear lines of authority
amongst its officials. The events that took place at Pearson and Mirabel airports
on June 22, 1985, and the conflicting claims made by Air India officials as to
who had final authority for the decisions made that day, are a good illustration
of these difficulties.
371 Final Submissions of the Attorney General of Canada, Vol. II, para. 92.
372 The CSIS threat assessment can be found at Exhibit P-101 CAA0199. It reads: “Currently, CSIS assess
the threat potential to all Indian Missions in Canada as high. This is also intended to include Air India.
CSIS, however, is not/not aware of any specific threat to the airline.”
373 Exhibit P-157, p. 50.
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Conclusion
Discussing the intelligence failures that led up to the bombing of Air India Flight
182, Professor Reg Whitaker testified that:
When you get down to the front line, that is to the airport and
the air carriers and the question of whether there were specific
or non-specific threat[s] against a particular airline such as Air
India, it did become clear in our analysis of how the decision
was made not to declare Air India 182 as a specific threat that,
there really was a serious lack of clear authority and clear lines
of communication to bring the various threat assessments
that were out there and to bring them to bear right there at
the airport where the decision had to be made. That there was
far too much ad hoc and a sense that – and in the aftermath,
of course, that there could be a great deal of passing of
responsibility and blame off on others because there had not
been a clear delineation of authority.374
In its Final Submissions, the Attorney General of Canada submitted that “…
the developing state of technology led to a greater reliance on relationships,
the telephone and verbal briefings.”375 What the evidence demonstrates,
however, is that reliance on informal methods of communication introduces
frailty and volatility into a system that requires consistent, efficient and reliable
communication. The evident communications failures leading up to and
following the bombing of Air India Flight 182 were often directly caused by this
entrenched informality.
Without well-defined communications and reporting structures for relaying
critical threat information, the ability to analyze, assess, and respond to
intelligence regarding danger to civil aviation is severely weakened. In 1985,
this weakness abounded, due to the informal, relationship-driven, and ad
hoc channels linking Air India, the RCMP, Transport Canada, and CSIS to one
another and to their other vital partners in aviation security, such as airports,
airlines, and Burns International Security. These structural and organizational
deficiencies were unacceptable in light of the magnitude of the threat at the
time. Combined with excessive secrecy, personality conflicts, organizational
chaos, and a climate of security myopia, the communications failures could only
continue to increase.
4.5 Failures in Coordination between Transport Canada and the
RCMP
Introduction
Operating and protecting Canada’s major airports requires the joint efforts
of all the involved parties, including government, police, the airlines, and the
374 Testimony of Reg Whitaker, vol. 36, May 30, 2007, pp. 4311-4312.
375 Final Submissions of the Attorney General of Canada, Vol. II, para. 99.
�Chapter IV: Responding to the Threat
travelling public. As it functioned in June 1985, aviation security depended on
the collaboration of Transport Canada and the RCMP. Transport Canada owned
and operated Canada’s major airports and was Canada’s aviation authority,
regulating airlines and air travel; the RCMP provided law enforcement services
with respect to aviation security matters, as well as intelligence and information
distribution services. It was essential, therefore, that each agency clearly
understood these roles and responsibilities, and had the ability to work with
the other in an effective and efficient manner in order to maintain effective
aviation security and the capacity to respond quickly to emerging threats. There
were, unfortunately, numerous problems in the relationship between Transport
Canada and the RCMP that hindered this collaboration, including excessive
secrecy, personality conflicts, confusion over duties, and miscommunication.
These difficulties, illustrated by the sad example of the June 1985 “overtime
dispute,” compromised the ability of these agencies to effectively coordinate
and respond to threats to the safety of airlines like Air India.
Airport Officials’ Understanding of Duties and Authority
A high degree of cooperation between RCMP and Transport Canada officials
was required to ensure that the aviation security threat-response regime
functioned effectively. However the effective coordination between these two
large bureaucratic agencies posed significant challenges to airport policing
in the pre-bombing period. Supt. Gary Clarke, as the OIC at Pearson airport,
wrote:
This Detachment serves two masters, that is the RCMP and
Transport Canada, as do all Airport Policing Detachments, and
this creates more than the usual management problems. The
regular changing policy, procedures and guidelines of the
Force can differ from the needs and expectations of Transport
Canada and this sometimes defaults us from the provisions of
the MOA.376
At times, there was also confusion about the responsibilities for decisionmaking, as well as formal impediments to the ability of RCMP and Transport
Canada officials to share all relevant threat information. These issues led to
deficiencies in the harmonious implementation of security measures prior to
the Air India bombings. Not all RCMP officials understood the important role
of Transport Canada in assessing and responding to a threat. For example, Sgt.
J.B. (“Joe”) MacDonald testified that he understood that the determination of
the appropriate level of security was entirely an RCMP responsibility. From
his perspective, the Airport Policing Branch set the level of security to be
implemented on the ground, and Transport Canada paid for that deployment.377
Similarly, Clarke testified that it was an RCMP responsibility to determine the
threat levels, though RCMP officers could speak to Transport Canada officials, in
376 Exhibit P-101 CAC0107, p. 6. The “MOA” was the memorandum of agreement between the RCMP and
Transport Canada in relation to airport security.
377 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2857.
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general terms, as to why additional security was required.378 Clarke testified that
he was not aware of whether Transport Canada itself did threat assessments
or provided threat assessments to his Transport Canada counterpart at the
airport.379
Transport Canada did not share the opinion that security levels and responses
were entirely an RCMP responsibility. Indeed, Transport Canada officials seemed
to bristle at the RCMP’s efforts to take such unilateral steps. In the minutes of an
April 1985 meeting at Pearson airport, it was noted that Dale Mattson, Manager
for Safety and Security at Pearson:
…reiterated the fact that the RCMP and [Peel Police] jointly
prepared a security plan for PIA without consulting Transport
Canada. This situation was not acceptable as Transport Canada
is responsible for the escalation of security procedures on
the Airport Site. [Mr. Mattson] will write directly to Inspector
Dawson of [sic] RCMP, clearly indicating Transport Canada’s
position with respect to the security or policing of the Airport
Facility.380
At the meeting, Mattson also remarked that during a recent emergency situation,
the RCMP had “…attempted to take control of the situation entirely and on
several occasions escalated security measures without prior consultation with
Transport Canada.”381 He insisted that since Pearson was a Transport Canada
facility, it was, in fact, Transport Canada’s sole responsibility to implement
emergency measures, and that Transport Canada did not need to take any
direction from police or any other outside agencies. The Transport Canada
officials present agreed that they would investigate the question as to who had
authority in emergency situations, and determine to what extent Transport
Canada was required to take orders from the police during terrorist incidents.
The fact that neither Transport Canada nor RCMP officials understood the
complementary role played by the other in terms of responding to the threat,
may explain some of the deficiencies in terms of the sharing of information that
occurred between the RCMP and Transport Canada. This lack of understanding,
combined with the fact that caveats and security clearance issues prevented
RCMP officials from freely sharing relevant threat information with Transport
Canada officials, led to local conflict at the airport and created the potential for
gaps in security.
June 1985 Dispute between the Agencies
In the late May/early June 1985 period leading up to the bombing, there were a
number of significant failures in terms of the sharing of relevant intelligence and
378
379
380
381
Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3040-3041.
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3041.
Exhibit P-101 CAF0585, p. 6.
Exhibit P-101 CAF0585, p. 2.
�Chapter IV: Responding to the Threat
the coordination of security measures with respect to airport policing between
Transport Canada and the RCMP. Communications difficulties also arose
between Transport Canada and the RCMP as a consequence of jurisdictional
disputes. These disputes were fueled by the absence of a formal communications
structure, by personality conflicts and by difficulties encountered in sharing and
accessing intelligence and classified information.
Viewed against the backdrop of the already-brewing issues relating to the
sharing of information and to the coordination of security measures between
RCMP and Transport Canada officials, the events that unfolded in the immediate
pre-bombing period were not entirely unpredictable. Most of these failures are
simply illustrations of problems that had been identified earlier by the agencies
themselves.
In June 1985, Air India requested increased protection from the RCMP at
Pearson during the month of June. A dispute arose between Transport Canada
and RCMP over the payment of the necessary overtime to the RCMP members
required. Transport Canada felt that insufficient intelligence existed to justify
the concern and the expense. On the other hand, the RCMP felt that the security
classification of the intelligence it possessed prevented it from sharing that
information with Transport Canada officials.
Meanwhile, the Department of External Affairs requested an increase in Air
India’s security coverage.382 In response, RCMP headquarters had ordered
that level 4 security383 be implemented for Air India’s flights out of Pearson
during the month of June.384 As noted below, it does not appear that Transport
Canada Headquarters was involved in, or was even aware of, this decision. A
subsequent CSIS threat assessment confirmed a high threat to Air India.385
The implementation of level 4 security at the time meant that the operational
resources for the RCMP airport detachment would not be sufficient to maintain
regular security for the airport as well as the enhanced security coverage for
Air India flights. Additional off-duty officers would be required on an overtime
basis. Overtime funding for RCMP members deployed at airports was the
responsibility of Transport Canada, and the RCMP relied entirely on these funds
for such deployments.386 The matter quickly reached an impasse.
Chief Superintendent D.H. Heaton, OIC of Criminal Operations for the RCMP O
Division, had growing concerns that Transport Canada officials were too closely
involved in the daily operational direction of the RCMP at the airport.387 He
believed that Transport Canada’s Manager for Safety and Security at Pearson
382 Exhibit P-101 CAA0166.
383 Exhibit P-101 CAA0025. This document is an RCMP checklist setting out the applicable security
measures for given levels for major airports like Pearson and Mirabel. Level 4 was the secondhighest airport security level, demanding measures such as the use of the RCMP explosives detection
dog team, a constant watch at the affected airline’s passenger screening checkpoint whenever it
was open, and surveillance of the aircraft during boarding and departure.
384 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2787-2789.
385 Exhibit P-101 CAA0199.
386 Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3037.
387 Exhibit P-101 CAC0407.
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was unduly interfering with security operations. Gary Clarke, who in June 1985
was the OIC of Protective Policing at the O Division in Toronto, was charged
with resolving the dispute. Clarke had previously been the OIC of the Security
and Policing detail at Pearson airport, and continued to be responsible for
VIP travel and federal security at Pearson, as well as policies and procedures
for the Airport Policing Program.388 On cross-examination, Clarke agreed with
the characterization of level 4 security measures as a high level of security that
would not be in effect on many flights; it was in response to a rare and dangerous
situation.389 It was not something that would be imposed simply because an
airline requested it.390
On June 14, 1985, Clarke met with Inspector Dawson to discuss the difficulties
encountered with Transport Canada’s representatives at Pearson. Given this
high and unusual security level, it was seen as essential to resolve the overtime
dispute at Pearson.391 In his notes, Clarke described the essence of the matter:
Transport Canada is adamant that with the knowledge they
are privy to, they do not consider it necessary to place extra
RCMP security personnel on Air India flights. Unfortunately,
the Airport General Manager is not aware of the serious threat
against Indian people and property at this particular time.392
According to Clarke, one reason for the impasse was that it was unlikely that
Transport Canada was aware that the RCMP was operating at an elevated
security level for Air India’s flights in June 1985.393 Moreover, based on his
conversations with Dale Mattson and Ed Warrick, the Airport General Manager,
Clarke concluded that Transport Canada did not even consider the threat
against Air India to be very high. The RCMP on the other hand had received a
communiqué from External Affairs requesting additional security for Air India
flights, and possessed intelligence that pointed to a heightened threat against
Air India.394 The classified nature of the security intelligence in the RCMP’s
possession meant that Clarke was unable to share it with the Transport Canada
officials at Pearson.395 All that Clarke would do was inform Warrick that in relation
to the June 1st flight “…the threat was considered specific enough to employ
three (3) off-duty airport special constables.”396
Further compounding the difficulties between Transport Canada and the RCMP
was the fact that the RCMP felt that Transport Canada was reneging on the
terms of the memorandum of agreement between the two agencies in refusing
388
389
390
391
392
393
394
395
396
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3030.
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3064.
Exhibit P-101 CAC0445, p. 4.
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3036.
Exhibit P-101 CAC0439, p. 2.
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3039.
Exhibit P-101 CAC0445, p. 4.
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3040.
Exhibit P-101 CAC0445, p. 4.
�Chapter IV: Responding to the Threat
to authorize overtime funding.397 From the perspective of the RCMP, the
deployment of its own personnel to provide airport security was fully justified,
based on the intelligence in its possession, and any decision on how to deploy
those members was for the RCMP alone to make.
Clarke met with Warrick on June 19, 1985. He felt that it was essential that Warrick
agree to pay out the overtime needed for the additional officers providing
security for Air India. According to Clarke:
It was essential that he know where we were coming from and
why we were doing the things that we were doing. I didn’t
want to be specific and tell him about the threat assessments
that we were receiving and it seemed to be, at that time, they
were almost on a daily basis, these threat assessments that
were coming in. The one just prior to this, and I am talking
about the threat assessment prior to the 19th, it left no doubt
in our mind that something was going to happen. Where or
when or what, it was not that definite. But I wanted to let him
know that if we are going to do our job at the Airport, then you
have to listen to us on matters of this type of security.
We had to have the personnel. I told him about the differences
of opinion with the Safety & Security Officer [Mr. Mattson]
in our daily operations. And I know it was a – it was almost a
one-on-one situation with our Detachment and the Safety &
Security Officer.398
The Attorney General of Canada submitted that this problem was resolved once
Clarke met with Warrick,399 but this is a simplistic view of the situation. While
Warrick agreed with Clarke’s rationale in principle, he personally was unable to
authorize any overtime pay at that time. Warrick informed Clarke that, through
an oversight, Transport Canada had failed to provide for emergency overtime
costs in that year’s annual policing budget.400 Warrick would require approval
from Transport Canada headquarters in Ottawa, and directed Mattson to contact
headquarters with the request. He agreed that, for the time being, the added
detail of RCMP members should continue to provide enhanced security to Air
India flights; but what remained unresolved were the organizational failures
that had given rise to the dispute in the first place.
Security Clearance Issues
It is apparent from this episode that a number of obstacles hindered good
relationships and effective communication between Transport Canada and the
397 Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3042-3043.
398 Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3044-3045.
399 Final Submissions of the Attorney General of Canada, Vol. II, para. 172 (citing the testimony of Gary
Clarke, vol. 28, May 15, 2007, p. 3045).
400 Exhibit P-101 CAC0445, p. 5. See also Exhibit P-101 CAA0239, p. 3.
513
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RCMP. Clarke noted that the chain of command for the matter of deployment
rested with a subordinate of Warrick, namely Mattson, who, in his opinion,
failed to recognize the seriousness of the threat.401 According to the Attorney
General of Canada, this dispute may have been exacerbated by the fact that
Mattson did not have the security clearance to view the assessments that were
used by the RCMP in setting the security level. The Attorney General of Canada
maintains, however, that “Transport Canada officials at headquarters could view
the document, and they would assess Transport Canada’s response.”402
The assertion by the Attorney General of Canada that Transport Canada officials
at headquarters could view such classified documents is not completely
consistent with the facts. Mattson was testifying specifically about why he did
not see the June 1st Telex. He was not referring to the highly classified intelligence
possessed by the RCMP during the overtime dispute. In point of fact, there is no
indication in the evidence that officials at Transport Canada had access to, or
were provided information concerning, that classified intelligence. As a matter
of fact, Transport Canada headquarters itself was also not provided with a copy
of the June 1st Telex.403
The above contention only raises further questions. The RCMP was unwilling or
unable to share the “highly classified” intelligence it possessed with Mattson; but
his superior, Warrick, had Top Secret security clearance.404 It is therefore puzzling
why Transport Canada officials “at headquarters” would be in a position to view
this intelligence, but Warrick would not. The contradiction is resolved by Clarke’s
testimony that the information was subject to a restriction that prevented it
from being shared outside the RCMP.405 In actual fact then, no one at Transport
Canada could be given this information, even those who possessed the highest
security clearances, because the intelligence caveats prevented dissemination.
These communications barriers do not support the conclusion that officials at
Transport Canada headquarters were necessarily better informed about security
intelligence than those who worked at the airports.
Could the Dispute Have Been Avoided by Sharing the Information?
In its Final Submissions, the Attorney General of Canada noted that the CATSA Act
Review Advisory Panel “…stated that sharing this information likely would not
have avoided the dispute.”406 That may be, but the Panel’s conclusion is based
on faulty information. The CATSA Act Review Advisory Panel assumed that the
intelligence in question was a CSIS threat assessment included in a telex dated
June 18, 1985, marked as “Secret.”407 That telex discussed a general threat to
401 Exhibit P-101 CAA0239, p. 2.
402 Final Submissions of the Attorney General of Canada, Vol. II, para. 173 (citing the testimony of Dale
Mattson, vol. 29, May 16, 2007, p. 3243).
403 See Section 1.2 (Pre-bombing), June 1st Telex.
404 Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3236. Mattson had a Secret security clearance level
in 1985.
405 Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3039-3040.
406 Final Submissions of the Attorney General of Canada, Vol. II, para. 173 (citing Exhibit P-157, p. 43).
407 Exhibit P-157, p. 43. The telex in question can be found in evidence at Exhibit P-101 CAA0220.
�Chapter IV: Responding to the Threat
Indian interests relating to the anniversary of the attack on the Golden Temple,
and Indian Prime Minister Rajiv Gandhi’s visit to the United States. Both events
had passed without incident, but the signs that this threat had not significantly
abated included the observation that “…militant Sikh factions” were “…quietly
arming themselves for reasons we can only speculate at this time.”408
The telex also noted that, at a meeting of Sikh extremists in Vancouver in early
June, an attendee had complained about the lack of aggressive action being
taken against India, and that another attendee had reportedly replied “…that
they should wait two weeks to see something.”409 There was no mention of
Air India in the threat assessment. Overall, the assessment suggested that the
heightened security imposed for these events would mean that terrorist acts
might have been deferred until security returned to normal, and that the threat
was “…only slightly less serious than at the time of our last assessment.”410
If this was the highly classified intelligence Clarke referred to, then it is doubtful
that Transport Canada’s position would have been changed by seeing it. For a
number of reasons, however, it is highly unlikely that the intelligence possessed
by the RCMP in question consisted of this simple threat assessment. For one
thing, Clarke’s notes of the dispute begin with his briefing with Dawson on
June 14, 1985, four days before the CSIS threat assessment was distributed, and
even then he refers to knowledge of “…a serious threat against Indian people
and property”.411 Moreover, the CSIS document was only classified as Secret, a
security clearance level that Mattson possessed in 1985. Accordingly, both he
and Warrick would have been cleared to see the document. Finally, the June
18th telex had been distributed to Transport Canada headquarters along with
a number of other agencies, whereas Clarke wrote in his notes and provided
testimony that only the RCMP was privy to the intelligence concerning the
threat to Air India.
Since the Panel’s assumption about the intelligence that the RCMP possessed
and could not divulge to Transport Canada is erroneous, its conclusion about
the potential importance of that information is similarly flawed.
The CATSA Act Review Advisory Panel also concluded that the overtime dispute
was irrelevant with respect to the Air India disaster. This conclusion is also open
to question. The overtime dispute was undeniably a symptom of the larger
difficulties in RCMP-Transport Canada relations, which were caused by confusion
and conflict over their respective responsibilities and an unclear strategy for
effectively and consistently sharing intelligence information. The Attorney
General of Canada, in fact, quite fairly conceded that the overtime issue exposed
difficulties in the way Transport Canada and the RCMP communicated about
408
409
410
411
Exhibit P-101 CAA0220, p. 2.
Exhibit P-101 CAA0220, p. 3.
Exhibit P-101 CAA0220, p. 4.
Exhibit P-101 CAC0439, p. 2.
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threat levels in 1985.412 With respect to the larger issue of the dynamic between
Transport Canada and the RCMP, the CATSA Act Review Advisory Panel was
generally very critical of this problematic relationship and commented that:
There was something quite wrong with a system that failed
to make clear the final authority on interpreting threats and
setting appropriate security measures, while at the same
time denying two key participants in the process – Transport
Canada and the air carriers – full access to the available
intelligence.413
The CATSA Act Review Advisory Panel did correctly suggest that the overtime
dispute seemed to be “…more of a pretext for a deeper difference of opinion
over who was in charge of security at the airport.”414 These disputes may have
played a large role in the RCMP’s failure to share the June 1st Telex with Transport
Canada, and there can be no question that this failure in particular was extremely
relevant to the Air India disaster.
The Impact of Interpersonal Conflicts
Acrimonious personal relationships significantly impeded the relationship
between Transport Canada and the RCMP Airport Policing Detachment at
Pearson. Days after the bombing, Clarke noted that, immediately following his
meeting with Warrick, Mattson continued to reject the notion that Air India
required any additional security in June 1985, and “…became quite agitated
when confronted with the breakdown in communication between himself
and Insp. Dawson.”415 Clarke’s memorandum added that he got the distinct
impression that Mattson “…had more important matters to worry about then
[sic] placing extra policemen on a non-specific threat detail. This meeting was
curt and totally non-productive.”416
Although Warrick believed relations between Transport Canada staff and the
RCMP were very good, Clarke obtained the opposite point of view from Dawson.
He learned that “…the relationship between the Airport Safety and Security
Manager and the [OIC of ] T.L.B.P.I.A. Detachment is rather tense at this particular
moment,”417 and that the situation had interfered with the development of a good
working relationship. The level of communication was not seen as compatible
with the level of safety and security required at Pearson. In particular, it was
important that top security officials meet regularly, but such meetings had not
been occurring due to the “…impasse which has prevented the development of
good interpersonal relations….”418
412
413
414
415
416
417
418
Final Submissions of the Attorney General of Canada, Vol. II, para. 175.
Exhibit P-157, pp. 43-44. See also Testimony of Reg Whitaker, vol. 36, May 30, 2007, pp. 4310-4311.
Exhibit P-157, p. 52.
Exhibit P-101 CAA0239, p. 3.
Exhibit P-101 CAA0239, p. 3.
Exhibit P-101 CAA0239, p. 4.
Exhibit P-101 CAA0239, p. 5.
�Chapter IV: Responding to the Threat
Conclusion
Transport Canada and the RCMP had a flawed and, at times, tumultuous
relationship, marked by disputes, which were fueled by questions of authority
over decision-making, as well as budgeting, intelligence sharing, and personality
conflicts. The agencies frequently failed to coordinate, communicate, and work
together at the operational level on matters of airport security. They could not
even reach a consensus on the question of whether to escalate the security
coverage for Air India in June 1985 without repeated discussions – an impasse
which was the fruit of these overarching failures, and which was exacerbated
by disagreements over the severity of the threat and by the agencies’ differing
access to pertinent intelligence. Transport Canada officials also tended to
inflexibly discount threats that they did not regard as sufficiently specific. These
difficulties, caused by structural, bureaucratic, and personality-driven conflicts,
compromised the ability of the RCMP and Transport Canada to provide thorough
and effective security at Canada’s airports, and diminished their capacity to
quickly and decisively respond to changing intelligence and heightened threats
to the air carriers.
4.6 RCMP Implementation Deficiencies in the Threat-Response
Regime
Lack of Knowledge of Applicable Measures by Those Involved
Even today, confusion remains about the actual security regime in place in 1985
and how it was meant to function. In its Final Submissions, the Attorney General
of Canada was unable to state whether or not the security grid, the document
that outlined the nature of the RCMP response in relation to a given level of
threat, was policy, and claims that there is ongoing uncertainty as to the meaning
of certain measures dictated by the grid.419 There can be no doubt that, at the
time, there was a general vagueness surrounding the aviation security regime
in place. This lack of clarity and the corresponding lack of training provided for
individuals in the interpretation and implementation of the protocols mark
important deficiencies in the aviation security regime in the pre-bombing era.
The security grid had important implications for RCMP security deployment at
Mirabel and Pearson airports. However, the purpose and effect of this protocol
were not well understood by participants in the aviation security regime.420
Sgt. J.B. (“Joe”) MacDonald, the officer responsible in the spring of 1985 for
actually setting the security levels at Headquarters, was unable to explain the
meaning of the very directives he issued. He was, for example, unable to explain
what was meant by the security level requirement to “…use the services of the
dogmaster,”421 though he speculated that it might be so that “…they’d make
sure he wasn’t off training somewhere else or that he would be close by if they
needed him.”422
419 Final Submissions of the Attorney General of Canada, Vol. II, paras. 107-114, 248.
420 Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3214.
421 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2861. See measures in Exhibit P-101 CAA0025,
level 3 and above.
422 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2863.
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Headquarters considered the implementation, by the detachments, of security
levels set by Headquarters to be mandatory. MacDonald explained that the
measures associated with a particular level, which he would set, would be the
minimum deployment that the detachment would do.423 However, it is not clear
whether the detachments understood the directives as having the same effect.
For example, Supt. Gary Clarke, who had worked as the OIC at the Pearson
detachment, was under the impression that the measures outlined in the grid
might only have the effect of being “guidelines.”424
In addition to those who knew about the RCMP security levels system but had
misunderstandings about its status and effect, there were many key participants
in the system who were not even aware of the existence of this protocol. S/Sgt.
Gary Carlson, who was the dogmaster responsible for Pearson airport, testified
that he was not familiar with the security levels set by Airport Policing Branch.425
He was away on training with his dog, Thor, on June 22, 1985, despite the fact
that level 4 security required the presence of the dogmaster at the airport. The
direction for Carlson to attend the training in Vancouver would have come from
his supervisor at the divisional Headquarters.426 It seems probable that, like
Carlson, his supervisor would have been unaware of the security level system, or
of the fact that the dogmaster was required to be available because of the level
4 security in effect at the time, and that no one saw fit to notify the division of
this requirement.
Equally troubling was the fact that Transport Canada was not routinely informed
of the security level at which the RCMP was operating,427 and did not itself use
the five-level RCMP security system. In his testimony, Dale Mattson stated that he
was not familiar with the RCMP security grid and that he saw it as an operational
document confined to the RCMP.428 This disconnect had obvious consequences
for the ability of the RCMP and Transport Canada to take a harmonized approach
to their complementary roles, and could only have increased the risk of security
gaps. In fact, Clarke, who was the OIC Protective Policing, O Division, testified
that his impression was that, in June 1985, Transport Canada may have been
operating at a lower level of security than was the RCMP.429
Clarke also testified that the RCMP supervisor at the airport would speak with
the airline supervisor prior to the flight to inform him or her of the level of
security that had been put into effect for that particular flight. But it would not
be the RCMP’s responsibility to explain to the airline what the levels meant or
the services that the RCMP could provide, since they “…should have known what
423
424
425
426
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2770-2771.
Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3098-3099.
Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 2999.
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3057. Carlson testified that he had been advised
probably a month to six weeks in advance that he had to go for this training. He booked his flights and
made arrangements for travel himself. His arrangements were made at a time, therefore, prior to level
4 security being in effect.
427 Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3213.
428 Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3214.
429 Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3039.
�Chapter IV: Responding to the Threat
the levels were.” Given the extreme confusion about security levels even within
the RCMP itself, the assumption that the airline would understand this internal
RCMP policy seems, at best, questionable. Clarke also indicated that the RCMP
would not generally speak to the individuals inspecting the bags for a particular
at-risk flight to let them know that they should be extra vigilant. Nor, according
to Clarke, would the RCMP inform the airline ticket counter about the level of the
threat, as the airline would be presumed to know that information – information
that in his view was of the sort that should have been communicated through
Air India staff. As Clarke stated, “…that was not our mandate to tell them what
their job was.”430
Failure to Adopt an Analytical or Strategic Approach
The setting of security levels at Headquarters was conducted as a mechanical,
largely unreflective, exercise. The Airport Policing Branch did not attempt to
understand the phenomenon of Sikh extremism, nor did it make attempts to
situate the threats received in this broader context:
MR. KAPOOR: Okay. Now as a general proposition in this
time frame as I say, marking it in ’84 to ’85 until the flight is
bombed, what was your understanding or appreciation of Sikh
extremism relative to other extremist movements? How much
of your time was spent dealing with this problem?
MR. MacDONALD: Well, as I stated before, we – and you did
as well, we’re not analytical there. It would just be what we
received or received from CSIS or whatever. Then there would
be probably an immediate requirement as in the case of – it
wasn’t CSIS, but the information External Affairs was asking for
it and we put it on the 1st and then the threat assessment to
cover the last four weeks.431
At the same time, the Airport Policing Branch made no effort to analyze the
intelligence assessments provided by CSIS in order to tailor its directives to the
nature of the particular threats:
MR. KAPOOR: …would you analyze and do any work-up from
a threat assessment, as an officer in charge?
MR. MacDONALD: It was pretty well done when you got it. It
outlined the threat and then you just had to take the action
from that. In this case, do you have to bring in a particular level
here to give complete coverage concerning the level of the
threat?432
430 Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3079-3080, 3089.
431 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2832.
432 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2772.
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The non-analytical approach taken by the RCMP in turn relates to the broader
lack of appreciation for the value or use of intelligence. An April 1, 1985, threat
assessment,433 sent by CSIS to VIP Security Branch, classified the threat against
Indian missions in Canada as “high,” and specifically detailed an incident at
Vancouver International Airport where a member of the Sikh Student Federation
was found to have hidden the barrel of a Uzi machine gun, along with ammunition,
in his suitcase. This information was not sent to Headquarters Airport Policing,
and consequently was also not transmitted to airport detachments. MacDonald
indicated that this information would not have been of particular use for him,
and further, that he did not see how it could be of value to those on the ground
at the airport detachments:
MR. KAPOOR: Now sir, I appreciate this doesn’t go directly to
an airport or an airline, but given what we’ve learned about
Sikh extremism and the connection to transporting a weapon
in luggage, would this be the kind of thing you would expect
to receive or not?
MR. MacDONALD: If received, it would be basically as an
information.
MR. KAPOOR: Okay. And again, to be clear, that’s because it
doesn’t refer to a present threat or a future threat. It refers to a
past event.
MR. MacDONALD: Yes, – it’s just giving some information on
this individual being picked up with a part weapon and the
other guy having the other half.
MR. KAPOOR: Okay. Would it be the kind of piece of
information though, that would be useful to get to the ground
level for the detachment, so that they can notify the carrier,
that is Air India, of this situation so that they can be more
vigilant in assessing and checking baggage?
MR. MacDONALD: I don’t know if it would help them. No, I
don’t know exactly if that would help them or not.434
On the ground, the airport detachments did not seem to understand the value
of a coordinated or centralized structure, and often failed to send up relevant
threat information that was received locally, thereby depriving CSIS and all others
who depended on CSIS intelligence.435 As MacDonald’s comments indicate, the
RCMP Airport Policing Branch did not see that it had a role in monitoring threat
433 Exhibit P-101 CAB0207.
434 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2844.
435 See Section 3.5.3 (Pre-bombing), RCMP Failures in Sharing with CSIS and Section 3.4 (Pre-bombing),
Deficiencies in RCMP Threat Assessment Structure and Process.
�Chapter IV: Responding to the Threat
trends. Headquarters did not see that an analysis of past events, or threats,
would have value in terms of predicting future events. The fact that the RCMP
non-emergency protocol was oriented towards anti-hijacking was a product of
the threat trends at the time it was initially created. The failure of Airport Policing
to see itself as having any analytical role meant that the RCMP was limited in its
capacity to use information strategically to understand changing threat trends
and to adopt more responsive policies.
Headquarters did not have a clear understanding of the actual tools or local
protocols at the airport detachments in place to respond to threats, and this
further limited its ability to issue directives calibrated to the particular threat.
MacDonald testified that he had no personal knowledge of what the backup
provisions would have been, for either Mirabel or for Pearson, in the absence
of a dogmaster.436 This only makes sense if, as was the case in 1985, the role
of Headquarters as a “policy” unit, was seen as divorced from operational
functions.
Failure to Recognize that Air India was a Government-Owned Airline
In 1985, the implications of Sikh extremism for aviation security were not well
understood within the Government of Canada. This lack of understanding may
explain some of the key failures in the flow of information within the RCMP, as
well as the misperception at the time of the seriousness of the threat to Air India.
Officers within the Protective Policing Branch were unaware that Air India was
owned by the Indian government and was, therefore, an important potential
target for Sikh extremists. From the CSIS perspective, this connection was clear
and important. As early as March 1984, the RCMP Security Service provided
Airport Policing with an overview of threats to civil aviation, stating in part:
The threat to Air India and its facilities in Canada is dependent
upon the Sikh communities’ perception of political events
in India. A number of demonstrations against the Indian
government in Canada have taken place and a spillover of the
violence in India against the Sikhs may impact on Air India
and/or its facilities in Canada.437
The Security Service was quite clear that the threats to “Indian interests,”
discussed in its assessments, were also meant to apply to Air India. Thus, a June
1984 threat assessment from the Security Service, sent to VIP Security Branch
and to Airport Policing Branch, states that “…Indian interests in Canada including
Air India offices and flights remains high.” The assessment continues that “…
there is possibility that Sikh extremists might now direct their attentions to Air
India offices and flights,” due to the perception that these are “softer target[s],” as
compared to the visible security afforded to mission property and personnel.438
436 Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2895.
437 Exhibit P-101 CAC0105.
438 Exhibit P-101 CAC0133 (June 12, 1984).
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Despite this intelligence, MacDonald testified that he would not have drawn a
connection between Indian interests and the security of Air India flights:
MR. KAPOOR: We have heard evidence from in particular, a
fellow named Henry, that Indian interests or Indian missions,
when used in a CSIS or Security Service threat assessment,
were meant to include Air India, the airline. Does that accord
with your recollection of how you read those documents back
in ’84 and ’85?
MR. MacDONALD: That’s not my understanding … they would
have to specify.
MR. KAPOOR: …and when you say that, you mean if a threat
assessment would use the language of Indian missions or
Indian interests, from your perspective sir, would that include
Air India?
MR. MacDONALD: I wouldn’t expect I’d see it. I wouldn’t think
it would include Air India.439
When MacDonald requested a CSIS threat assessment about threats to Air India
on June 6, 1985, he wrote:
Last threat assessment Oct 84 indicating threat level high but
no specific threat to Air India in Canada. Plse advise by telex
ASAP if there is any change. We have had a number of requests
from the airline for extra security.440
CSIS replied to MacDonald’s request, indicating that:
CSIS assess the threat potential to all Indian missions in Canada
as high. This is also intended to include Air India.441
MacDonald’s reference to “…last threat assessment October 84” appears to refer
to an October 26, 1984, threat assessment, where CSIS indicated the potential
for Sikh extremists “…damaging an Air India aeroplane is real.”442 There were,
however, a significant number of CSIS threat assessments after October 1984
that continued to indicate that the threat to Indian interests remained high,443
439
440
441
442
443
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2809.
Exhibit P-101 CAA0198.
Exhibit P-101 CAA0199.
Exhibit P-101 CAB0154.
See, for example, Exhibit P-101 CAA0142, CAB0156, CAB0218.
�Chapter IV: Responding to the Threat
including a CSIS assessment dated April 12, 1985, that the possibility of action
being taken against an Air India airplane could not be ruled out, though CSIS
had no information to suggest there would actually be an incident.444 At the very
least, this would suggest that relevant threat assessments were not reaching
airport policing on a regular basis, or that the relevance to the security of Air
India of whatever intelligence did make it through was not clearly appreciated.
Indeed, MacDonald testified that he would not have expected to receive CSIS
threat assessments that did not specifically mention airports.445
Superintendent R.E. Muir, the OIC VIP Security Branch, testified that he too was
unaware of the fact that Air India was government-owned:
MR. KAPOOR: Did you appreciate in those days that Air India
was a government-owned airline?
MR. MUIR: No, I did not.
MR. KAPOOR: Did you have any sense that from the
perspective of the material that you saw, the perspective that
Air India at least was closely aligned to the Government of
India as far as the extremists were concerned?
MR. MUIR: I can’t say that that was my perception.446
There were a number of other instances where the connection was explicitly
made in CSIS correspondence.447 It seems clear that the significance of CSIS
threat assessments to the security of Air India was not clearly appreciated.
Hence, important information/intelligence did not get passed from VIP Security
to Airport Policing and/or its relevance on the ground was not understood.
Failure to Adjust to Individuals as Source of Threat
The RCMP also does not appear to have appreciated the significance of
information from CSIS about individual Sikh extremists whom CSIS believed to
pose significant protective security threats within Canada. In the pre-bombing
period, CSIS provided RCMP Protective Policing with information about
444
445
446
447
Exhibit P-101 CAB0218.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2840.
Testimony of R.E. Muir, vol. 28, May 15, 2007, p. 2921.
A June 7, 1984 CSIS threat assessment that was copied to VIP Security Branch indicated that the
Secretary of State for External Affairs indicated that there was serious concern “…over the
need to safeguard the security and functioning of the Indian diplomatic apparatus in Canada. The
Indian government has also, at the highest level, expressed its concern to our High Commissioner
in New Delhi. We will thus press the police forces for very extensive security protection for Indian
facilities, including not/not only the High Commission and consulates but also the homes of vulnerable
Indian diplomats and certain other obvious targets, e.g. Air India offices.”: See Exhibit P-101 CAC0118.
In addition, a report that was provided to the Canadian government on June 19, 1985 indicated that
“…the pattern of threats and attacks by Sikh extremist[s] in the past include inter alia Air India aircraft
and facilities.”: See Exhibit P-101 CAE0223, p. 3.
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individuals it considered to be the main protagonists in the Sikh extremist threat.
However, Protective Policing appears to have made no attempt to track these
individuals, nor did Protective Policing appear to understand how information
about these individuals could be of value to its operations. Ajaib Singh Bagri and
Talwinder Singh Parmar travelled extensively in the months leading up to the
bombing. Bagri, in particular, had also been identified as a potential hijacking
threat.448 In an October 22, 1984 threat assessment sent to Airport Policing and
VIP Security, CSIS expressed concern that:
…two of the principals one of which was mentioned in your
message, (Bagra) [sic] cannot be presently located. Latest
information indicated that they were in Eastern Canada
(Toronto) as late as 1984 10 14, but to date have not been
located. In summary, we believe that the possibility of a
hijacking in Canada is remote but knowing the character
make-up of Sikhs, we can not rule out this possibility.449
Nothing, however, was done by Protective Policing or Airport Policing in relation
to the travel of these individuals. There were no efforts to connect with CSIS or
RCMP surveillance so as to alert Airport Policing when individuals, identified as
posing a protective security threat, were passing through the airports. Similarly,
the Airport Policing Branch did not take steps to inform or educate the airport
detachments about the identity of individuals identified by CSIS as posing such
threats.
These failures are particularly significant when viewed in the light of CSIS’s
understanding of the importance of information about these individuals.
In internal CSIS correspondence, dated October 26, 1984, just prior to their
providing RCMP VIP Security Branch with a comprehensive threat assessment,
it is stated:
We are specific in our information to “P” Directorate to give
them some sense of the point we have reached in this matter
– that is that we are now looking to specific individuals as the
source of the threat to Indian diplomatic interests.
…
Basically, we continue to assess the threat as high as a result of
the actions of the individuals mentioned.450
And similarly, in an April 25, 1985, threat assessment451 sent to the VIP Security
Branch, CSIS indicated:
448
449
450
451
Exhibit P-101 CAA0097, CAA0110.
Exhibit P-101 CAB0148.
Exhibit P-101 CAA0105.
Exhibit P-101 CAB0221.
�Chapter IV: Responding to the Threat
One of the leaders of the Babbar Khalsa, Talwinder Singh
Parmar is the subject of an international warrant issued by the
Indian Government for murder and is considered to possess
the greatest threat in Canada to Indian diplomatic missions
and personnel.452
In CSIS’s view, the greatest threat was posed by Ajaib Singh Bagri, Talwinder Singh
Parmar, and Surjan Singh Gill. The disconnect between CSIS’s understanding
of the importance of particular individuals as the source of the threat, and
the utility of this information as perceived by the RCMP, is evident from Muir’s
testimony. He was asked about the October 26, 1984, CSIS threat assessment453
sent to his Branch, which provides an overview of the major Sikh extremist
groups in Canada and identifies Parmar, Bagri, and Gill as advocates of violence.
While agreeing that it was important to have a general understanding of who
the players were, Muir stated:
I did not sort those out to be very honest with you. There may
have been mention of certain individuals, but those individuals
really were not the people that – I was particularly concerned
with.454
Similarly, when asked about threat information relating to Ajaib Singh Bagri’s
purported involvement in drawing up plans to hijack an Air India flight,
MacDonald, A/OIC of Airport Policing Branch, did not see any need to be
personally alerted to this type of information. He was also unable to recall
whether, in 1984/85, he had a working understanding of what the Babbar
Khalsa was, and could not recall whether the Babbar Khalsa and/or the ISYF
had prominence in the work that he was doing, apart from other groups.455 The
lack of importance that Protective Policing placed on the identity of individuals
who posed threats was at odds with CSIS’s approach to the threat, and meant
that there would inevitably be important gaps or missed opportunities in the
RCMP’s protective policing response to the threat identified by CSIS.
In the VIP Security context, the VIP Security Branch had developed a mechanism
by which it could track certain individuals who posed threats to VIPs. This system
was called the VIP Surveillance Subject Program. The program was described in
a document referred to in the hearings as the “Purdy Report”:456
VIP Security branch maintains a monitoring system of persons
considered potential threats to foreign representatives posted
in Canada.
…
452
453
454
455
456
Exhibit P-101 CAB0221, p. 2.
Exhibit P-101 CAA0110.
Testimony of R.E. Muir, vol. 28, May 15, 2007, p. 2922.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2845.
Exhibit P-130.
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Upon identifying an individual as a potential VIP Security
threat, the reporting member forwards an assessment report,
Form 975, and photograph to Division headquarters. The
CIB officer reviews the report and if in agreement, forwards
report to VIP Security branch. If the branch concurs with the
Division’s recommendation the subject is entered in the CPIC
observation category.
According to Inspector Lloyd Hickman, this system was designed in such a way
that, if a police officer anywhere in Canada happened to check this person for a
driver’s license, or otherwise review him or her on the system, a notation would
show up that the VIP Security Branch had an interest in him or her. However,
the system was designed so that nothing of a confidential nature could be
placed on the system and, generally, intelligence about serious “terrorist-type
threats” always came in a classified form. The system was not designed to
track individuals under investigation, but rather it was an open system, meant
mainly to track letter writers or “unbalanced” individuals. The rationale for not
entering individuals like Parmar into the system was that, since all police officers
in Canada would have had access to that information, “…there was a lot more
chance of that getting out.”457
In effect, the insistence on secrecy, and a lack of imagination as to an alternative
tracking system for security threats, meant that information about individuals
who were known security threats was unavailable to those whose role it was
to protect individuals and property from precisely those sorts of threats. The
system in place was very limited, using only CPIC checks, and no other databases,
and had no links of any sort to, for example, CSIS threat assessments, let alone
CSIS or RCMP surveillance, even of a declassified nature. Therefore, despite
the significant body of threat information that was passed through Protective
Policing about individuals who posed security threats, including Talwinder
Singh Parmar, Ajaib Singh Bagri, and Surjan Singh Gill, there were no adequate
mechanisms in place to make any practical use of this information to enhance
protective policing measures.
Failures in Implementation of RCMP Security Measures
RCMP Breached Policy by Authorizing Travel of Dogmaster
The fact that Carlson, the RCMP dogmaster for Pearson airport, was authorized
to go on training without providing for a backup dog and dogmaster team is
illustrative of multiple policy failures. What little policy existed was not only
inadequate, but was frequently not properly understood or properly applied by
the RCMP. At the time of the bombing (and for the entire month of June 1985),
the Air India flights were subject to RCMP level 4 security.458 The RCMP security
level grid that was provided to the Commission by the Attorney General of
Canada indicates that, at level 3 security and above, the RCMP was to “…use the
457 Testimony of Lloyd Hickman, vol. 34, May 28, 2007, pp. 3983, 3986.
458 Final Submissions of the Attorney General of Canada, Vol. II, para. 115.
�Chapter IV: Responding to the Threat
services of the dogmaster.”459 Carlson, however, testified that on June 22, 1985,
and contrary to what is implied in the RCMP Submission to the Honourable Bob
Rae,460 there was no dogmaster available for duty at Pearson airport, as he had
been sent to Vancouver with his dog, Thor, for training.
In its Final Submissions, the Attorney General of Canada argued that it is “…
unclear to this day” what the grid signifies by “…use the services of the
dogmaster.”461 RCMP documentation entered into evidence at this Inquiry
contradicts this claim and clearly explains the meaning of this requirement. An
internal Montreal RCMP document, dated July 12, 1984, describes the measures
mandated for level 4 security, pursuant to the security grid.462 The measures
employed at Mirabel in relation to level 4 security are described as follows:463
As described in Appendix “A”, level 4 security calls for increased
surveillance of the plane parked on the apron and of activities
in the arrival, departure and airline ticket counter areas.
Moreover, the supervisor of the team on duty must meet the
airline representative before the arrival or departure of the
aircraft for information regarding ongoing security operations.
This security level also means that a police dog and his master
will usually check any suspect luggage or package and will
search the passenger section of the aircraft before takeoff.
In fact, the safety measures mandated by level 4 security were reiterated in the
RCMP Submission to the Honourable Bob Rae as follows:
From June 16, 1984 to June 22, 1985, as a result of escalating violence in India,
the security measures for Air India were increased to level four. These measures
included:
• Increased RCMP surveillance of the Air India aircraft on apron area;
• RCMP monitoring of the Air India arrival, departure and ticket
counter area;
• RCMP supervisor liaison with Air India representative regarding
security operations prior to the arrival or departure of the aircraft;
and
459
460
461
462
463
Exhibit P-101 CAA0025.
Exhibit P-101 CAA0335, pp. 8-9.
Final Submissions of the Attorney General of Canada, Vol. II, para. 248.
Exhibit P-101 CAA0061.
This memorandum is a typed document with handwritten corrections. The document is cited with the
corrections. The corrections made to the original are stylistic and do not alter the meaning or scope of
the described duties in relation to level 4 security.
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• RCMP dog master checking any reported suspect luggage or
package and searching the passenger section of the Air India
aircraft before departure.464
It seems quite clear that level 4 security required at a minimum that the
dogmaster be present at the airport in order to search the passenger section of
the Air India aircraft prior to departure, as well as to check any suspect luggage.
The authorization by the RCMP of Carlson’s absence from Pearson airport during
a period in which level 4 security was in place without provision of a backup
dog, was inconsistent with the RCMP security grid protocol.
The Attorney General of Canada submitted that the authorization of Carlson’s
absence from Pearson was not a breach of RCMP policy, as training was
necessary to keep the dog effective.465 While training was clearly an important
duty, the RCMP manual guiding security operations addresses the issue directly
and states: “These security duties must be considered on a priority basis
among our operations. In case where other similar duties must be carried out
simultaneously, distribute your personnel according to the most vulnerable and
priority basis posts and duties.”466 Clarke confirmed that when operating at level
4 security, personnel should be placed on security duties mandated by level 4 in
priority to other duties, including training.467
The Attorney General of Canada also submitted that the meaning of the
security grid obligation to “…use the services of a dog master” is unclear, since
dogs were used (and the presence of the dogmaster was required) whenever
there was a specific threat and not in other circumstances. This assertion is not
accurate. There were a number of distinct circumstances in which use was made
of the services of the dogmaster.468 Of particular significance in the context
of this Inquiry are the following three circumstances: in the context of a callin “specific” bomb threat;469 when suspicious luggage was identified;470 and
in response to level 3 security (or above).471 The Attorney General of Canada
464
465
466
467
468
Exhibit P-101 CAA0335, pp. 8-9.
Final Submissions of the Attorney General of Canada, Vol. II, para. 242.
Exhibit P-101 CAA0026.
Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3073-3074.
The report of the CATSA Act Review Advisory Panel states “[Canine units] were primarily employed
to search for explosives in the terminal building following a bomb threat, search aircraft for bombs, and
check unattended bags left in the terminal building. Their use for screening regular checked baggage
was limited to screening suspect bags. On the rare occasions when a specific threat was made
against an aircraft with passengers already on board, the aircraft would have been directed to an
isolated area of the airport, emptied of both passengers and luggage, and a dog would be brought in
to sniff all the bags lined up on the tarmac.”: Exhibit P-101 CAF0160, p. 15. In addition, Gary Carlson
specified that his “…responsibilities were to assist the members of the detachment with my expertise
being a bomb-dog handler. I would respond to any bomb threats, suspicious packages, anything to do
with explosives and very seldom did I ever get the opportunity to use my dog as a general duty
dog, but I was available if that so came about as well. Some of my duties also, I assisted other agencies
with my dog as he was a bomb dog.”: Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 2988-2989.
See also Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3190-3191.
469 See Section 4.3 (Pre-bombing), The Role of the “Specific Threat” in the 1985 Threat-Response Regime.
470 Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 2996.
471 Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2672-2673.
�Chapter IV: Responding to the Threat
blurs the distinction among these three situations. Further, Mattson confirmed
that the RCMP had discretion to use the dog in whatever capacity they felt was
appropriate.472
There should have been a dogmaster available at both Pearson and Mirabel.
The dogmaster and his dog should have searched the passenger section of
the aircraft, the suspicious luggage identified at Mirabel and/or any bags that
triggered a response from the PD4 sniffer at Pearson and, arguably, all bags at
Pearson that could not be X-rayed. None of this happened.
Sûreté du Québec (SQ) Dogmaster at Mirabel did not Search Passenger Area
of Aircraft
Level 4 security was in effect for Air India at Montreal’s Mirabel airport. While
the RCMP dogmaster usually on duty at Mirabel was away on training, Mirabel
employed Serge Carignan of the SQ to cover the regular dogmaster’s duties.
Despite level 4 being in effect, and contrary to the RCMP Submission to the
Honourable Bob Rae,473 it is clear that Carignan “…never did search the passenger
section of the Air India aircraft before departure,”474 as Flight 182 had departed
before the arrival of Carignan and his dog. The failure of the RCMP to ensure
the presence of Carignan at the airport to perform this function was another
implementation failure with respect to the RCMP security levels.
RCMP Failed to Check Up on Airline Security Measures and Operations
Continuously
The RCMP security grid provides that at levels 2 and above, “An RCMP supervisor
meets with the airline representative for each operation in order to obtain any
additional information pertinent to each security operation.”475 In terms of
the nature of the obligation imposed by this measure, Clarke confirmed that
at level 4, it would be the duty of the RCMP supervisor to meet with the Air
India representative on a continual basis to see if operations were running
smoothly.476
Clarke confirmed that the RCMP supervisor should be aware of breakdowns in
equipment and had an obligation to check from time to time before the plane
left to find out what was going on.477 This obligation makes sense in light of
472
473
474
475
476
477
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3191.
Exhibit P-101 CAA0335, p. 9.
Testimony of Serge Carignan, vol. 26, May 9, 2007, p. 2672.
Exhibit P-101 CAA0025.
Testimony of Gary Clarke, vol. 28, May 15, 2007, pp. 3062-3064.
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3067. When Sgt. MacDonald was asked about this
obligation, he stated that on the one hand, he thought that the supervisor would likely have had
contact with Air India “quite often,” but he also stated that he thought that the RCMP likely had to
meet with Air India only before the operation and that it was Air India’s responsibility to let the RCMP
know if anything went wrong. However, MacDonald also stated that he didn’t know what the
process was and he thought that someone who had worked at the airport could explain it. Given
that Clarke had been the OIC at Pearson Airport, he was in a better position to understand how
the obligations were interpreted on the ground: Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp.
2901-2902.
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the overall discretion that RCMP and Transport Canada officials had at the
airport, even to detain a plane if there were concerns about it embarking in
unsafe circumstances, or where the air carrier may have failed to comply with
air regulations then in place. In order to exercise this discretion appropriately,
officials would need to be able to assess on an ongoing basis what an air carrier
was doing to ensure safety and security.
Seen from this perspective, the insistence in the Attorney General of Canada’s
Final Submissions that the RCMP was unaware of various June 22nd security
failures attributed to Air India or Burns International Security, does not absolve
the RCMP of its responsibility. Rather, it provides confirmation that it failed
in its monitoring obligations. For example, baggage screening for Air India
Flight 181 in Toronto started at approximately 2:30 PM local time. The X-ray
machine reportedly operated intermittently for some period before it became
unserviceable, at approximately 4:45 PM,478 at a point where only about 50 to 75
per cent of the baggage had been screened.479 The screening was completed
using the PD4 sniffer device about an hour later, but the flight did not depart
Pearson airport until 8:15 PM.480 Clearly therefore, during the two-hour period
before the X-ray machine broke down entirely, there were already indications
of issues with its efficacy. After the shutdown, there was one hour during which
Burns security was using (or misusing) the PD4 sniffer, and approximately two and
a half hours more prior to the plane’s departure. Had the RCMP been monitoring
Air India’s security operations, it would have had several hours during which to
become aware of the failure of the X-ray machine and the use of the ineffective
PD4 sniffer. Nevertheless, with respect to the breakdown of the X-ray machine
at Pearson, the Attorney General of Canada argued:
When the x-ray machine broke down, Mr. Desouza of Air India
instructed Burns staff to continue screening using only the
PD-4 sniffer. He did this notwithstanding the RCMP’s warnings
that the PD-4 was ineffective. No one from Burns or Air India
informed the RCMP that there were problems screening
luggage. Mr. Vaney, Mr. Yodh and Mr. Desouza were all present,
but it is unclear who was ultimately in charge. There does
not seem to have been any discussion about what back-up
procedures to adopt.481
and
The Air India and Burns employees who were screening the
luggage for Flight 182 never requested the dogmaster’s
assistance or informed the RCMP that the x-ray had broken
down. It was their responsibility to do this since their role was
“…to design and implement security systems for passenger
and baggage screening.”482
478
479
480
481
482
Exhibit P-101 CAF0160, p. 37.
Exhibit P-436: Civil Aviation Security Dossier.
Exhibit P-101 CAF0160, p. 37.
Final Submissions of the Attorney General of Canada, Vol. II, para. 230.
Final Submissions of the Attorney General of Canada, Vol. II, para. 256.
�Chapter IV: Responding to the Threat
In the circumstances, it is not a proper conclusion to vindicate the RCMP on the
basis of its ignorance. Similarly, with respect to the three suspect bags that were
identified at Mirabel airport, the Attorney General of Canada argues:
Air India did not notify the RCMP (or Transport Canada) about
the suspect luggage, despite the fact that Air Canada advised
them to do so. Finally, at 10:00 pm, Air Canada informed the
RCMP that there were 3 suspect bags. A few minutes later,
an RCMP officer came to the baggage area and requested to
speak with an Air India official, who asked him to wait l0-15
minutes. When the Air India officer arrived, he informed the
RCMP officer that Flight 182 had departed already.483
Here again, the timeline does not exonerate the RCMP. The first suspect suitcase
was identified at some time between 7:00 to 7:50 PM, and Air India was notified
approximately 15 to 20 minutes afterwards. This suitcase, and the two others
that were subsequently identified, were left in the baggage area next to the X-ray
machine without supervision. This means that, prior to Air Canada informing
the RCMP of the suspect bags, there was a space of over two hours during
which the RCMP could have learned of the existence of the suspect luggage
had it conducted any sort of patrol of the baggage area, or liaised with Air India
officials.484
4.7 Transport Canada Policy Gaps and Implementation Deficiencies
Weak monitoring and enforcement of airport and air carrier security
compromised Canada’s civil aviation security in the 1980s. The evidence indicates
that, despite there being no legislative requirements to do so, Transport Canada
had committed to policies mandating that it approve and thoroughly monitor
air carrier security plans. Unfortunately, the inspection and enforcement regime
itself was so under-resourced and toothless that carriers such as Air India were
given little guidance regarding serious flaws in their security programs.
Obligations Respecting Air Carrier Security Measures
As a member state of the International Civil Aviation Organization (ICAO)
and a signatory to Annex 17 to the Chicago Convention on International Civil
Aviation,485 Canada was required to appoint an authority responsible for the
development, implementation and maintenance of its national civil aviation
security program.486 As the responsible aviation authority for Canada, Transport
Canada was obliged to ensure that airports and air carriers developed and
implemented security programs.
483 Final Submissions of the Attorney General of Canada, Vol. II, para. 238.
484 Exhibit P-101 CAF0087.
485 Exhibit P-152: International Standards and Recommended Practices – Security: Safeguarding International
Civil Aviation Against Acts of Unlawful Interference – Annex 17 to the Convention on International Civil
Aviation – Second Edition – October 1981 [Exhibit P-152: Annex 17, 2nd ed.].
486 Exhibit P-152: Annex 17, 2nd ed., p. 8.
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At the time of the bombing, the regulations made pursuant to the Aeronautics
Act required both foreign and domestic air carriers to establish, maintain and
carry out certain security measures at airports. The onus was on the air carrier
to implement systems for passenger and baggage screening.487 As discussed
in detail in Section 2.3.2 (Pre-bombing), Failure to Push Through Responsive
Regulations, the air carriers were required to file written descriptions of their
security measures under the Civil Aviation Security Measures Regulations and the
Foreign Aircraft Security Measures Regulations in place in 1985.
This regulatory scheme was significantly flawed, due to oversight and
enforcement failures. The regulations did not include a process for approval
of these air carrier security plans by the Minister of Transport. While Transport
Canada was ultimately responsible for the safety of airline operations in Canada
and enforcing the security provisions of Annex 17, it seemed that, from Transport
Canada’s perspective, as long as the security plan met the basic and vague
requirements outlined in the regulations, it was a valid security program.
Neither the Aeronautics Act nor its regulations made it an offence for an air carrier
to fail to comply with its own filed security program. Instead, as the owner and
operator of Canada’s major airports, Transport Canada could set policies regarding
screening and provide facilities and equipment in the expectation that they
would be used by the air carriers. In keeping with ICAO recommendations that
passenger and baggage screening be aided by inspection equipment wherever
possible,488 Transport Canada purchased and maintained metal detectors and
X-ray machines that were used to screen passengers and carry-on baggage
prior to boarding. Nevertheless, the Aeronautics Act and its regulations afforded
Transport Canada no more ability to force an air carrier to screen its carry-on
baggage by X-ray than to screen its checked baggage – which, as is discussed
later, Transport Canada considered to be a completely voluntary measure. These
measures were not prescribed by law. An air carrier that did not comply with
its security program could be warned in writing, or its right to fly into and out
of Canadian airports could be suspended, but there was no formal sanction
in-between. This meant that a carrier’s compliance with any of the terms of
its security programs was, effectively, voluntary.489 These weaknesses were
identified when the aviation security regulations were drafted in the 1970s,490
but it would not be until after the bombing that expanded regulations would
be enacted to remedy these deficiencies.
The CATSA Act Review Advisory Panel found that the Minister of Transport had
no formal legal authority to approve or reject an air carrier’s security plan, and
the Attorney General of Canada also emphasized the absence of an explicit
mandate within the legislative scheme to “…approve, monitor, or enforce
security programmes.”491 There is, however, ample evidence that Transport
487
488
489
490
491
Exhibit P-157, p. 19.
Exhibit P-152: Attachment to Annex 17, 2nd ed.: Extracts from Annex 9, p. 15.
Exhibit P-101 CAF0593, p. 6.
Exhibit P-101 CAF0774, p. 18.
Final Submissions of the Attorney General of Canada, Vol. II, para. 55.
�Chapter IV: Responding to the Threat
Canada took an active role with respect to the air carrier security plans, and that
it was obliged to do so because of its international commitments to aviation
security.
Pursuant to the standards established by Annex 17 (2nd ed.), Transport Canada was
required to ensure that air carriers applied their security plans “…in proportion
to the threat to international civil aviation and its facilities as known to the State,”
and also to “…ensure that such a programme is compatible with the prescribed
aerodrome security programme.”492 Canada’s security program requirements for
foreign and domestic air carriers were imposed as a result. It should be noted
that the ICAO standards were imposed upon the member states by virtue of their
status as signatories, and not upon the individual air carriers within those states.
Among other standards and obligations, Canada was required to designate an
authority to develop, implement and maintain a national civil aviation security
program. Transport Canada was, and is, Canada’s aviation authority, with
oversight over the national civil aviation security program and obligations to
ensure safe air travel through regulation. Accordingly, even though Canada’s
legislation did not provide for an explicit mandate to approve the air carrier
security measures, Transport Canada was nevertheless obliged under Annex
17 to review and comment upon the security programs in a meaningful way
once they were received, and to monitor the carriers’ implementation of those
programs to ensure that the measures were properly applied in proportion to
the threats of the time.
Approval of the Air India Security Program
Following a request from the National Civil Aviation Security Coordinator, Air
India first submitted its security plan to Transport Canada in December 1982,
as it prepared to commence weekly flights in Canada based out of Mirabel
International Airport.493 The Foreign Aircraft Security Measures Regulations were
subsequently updated to include Air India in the schedule of affected air carriers
required to submit written descriptions of their security measures to Transport
Canada. In the spring of 1983, following a thorough review, Paul Sheppard, the
Director of Transport Canada’s Civil Aviation Security branch, wrote to Ashwani
Sarwal, Air India’s Assistant Manager, regarding the security program. Although
in most respects the plan more than satisfied the minimal requirements set out
in the regulations, Sheppard pointed out a number of small problem areas that
needed to be addressed in a revised version of the plan. For example, Sheppard
directed Air India to remove a reference to searches of visitors entering the
sterile area of an airport, as Canadian regulations only provided for searching
passengers.494 There were also problems with a section discussing the
transportation of firearms, weapons and other dangerous articles in an aircraft
cargo hold, which Sheppard sought to correct. Finally, Sheppard pointed out
that the security plan suggested that Transport Canada officials had the power
to authorize diplomatic bodyguards to carry firearms aboard an aircraft, which
was incorrect.
492 Exhibit P-152: Annex 17, 2nd ed., s. 5.1.1.
493 Exhibit P-101 CAF0778.
494 Exhibit P-101 CAF0779, p. 1.
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Volume Two Part I: Pre-Bombing
Sheppard concluded:
Upon receiving the amendments concerning these
paragraphs, I am sure that the remainder of the security
program will be considered satisfactory and meet the
requirements of Canadian law.495
In February 1984, Air India amended its security program and advised Transport
Canada of the changes that had been made.496 Sheppard sent a letter to Sarwal
stating that following a detailed review of the plan, “…we have concluded
that it is a commendable program that meets the requirements of Canadian
legislation.”497 In its Final Submissions, the Attorney General of Canada conceded
that this represented an “informal approval” of Air India’s security program by
Transport Canada.498
As Air India prepared to expand its operations to Toronto’s Pearson International
Airport, its security plan was again the subject of discussion at Transport
Canada. Dale Mattson, then the Transport Canada Safety and Security Manager
at Pearson, chaired a meeting of the Airport Security Committee at Pearson
airport, where it was noted that Air India would be implementing secondary
security measures for its checked baggage in light of the threat.499 Mattson
testified that this referred to X-ray screening of checked baggage prior to it
being loaded aboard aircraft.500 This was not a widely practiced aviation security
measure at the time, but airlines, such as El Al, that faced high-risk threats had
successfully implemented it at other Canadian airports501 in the past.502 Air India
was also required to submit another copy of its security plan to Mattson and,
through him, to Transport Canada headquarters before its flights to and from
Toronto commenced in January 1985.503 On January 11, 1985, a copy of Air
India’s 1982 security plan was sent to Mattson, along with a list of additional
security measures that Air India proposed to implement as part of its Toronto
operation.504 The updated security plan confirmed that Air India would be
examining its checked baggage by X-ray or by means of the PD4 explosives
detection device, or by both.
Several Transport Canada policy documents refer to the approval of air carrier
security plans. For instance, following the 1973 amendments to the Aeronautics
Act which instituted a wave of new aviation security requirements, Transport
Canada’s Director General of Civil Aeronautics circulated an aviation notice that
495
496
497
498
499
500
501
502
503
504
Exhibit P-101 CAF0779, p. 2.
Exhibit P-134.
Exhibit P-134.
Final Submissions of the Attorney General of Canada, Vol. II, para. 154.
Exhibit P-101 CAF0082, p. 5.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3184.
Exhibit P-101 CAF0552, p. 5.
Exhibit P-101 CAF0082, p. 5.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3181.
Exhibit P-101 CAA0119.
�Chapter IV: Responding to the Threat
provided some guidance to the carriers, who were “…asked to produce a detailed
Security Program in writing for the approval of the Minister.”505 The guidance
material was relatively general in nature, as it was nothing more than a list of
topics that should be addressed in the security programs, but the emphasis on
Ministerial approval is significant.
Another Transport Canada policy document, describing the Aircraft and Transport
Protection System, set out the minimum acceptable security requirements for
airports.506 The first version of this document was released in October 1981,
and an amended and updated version was released in December 1984. The
document discussed the classification of Canadian airports, and the airport and
air carrier security requirements for each. A Class I airport, for example, included
international and major national airports. What is especially remarkable about
this document is its discussion of air carrier requirements in the context of their
security programs for each airport classification.
With respect to Class I airports, the minimum air carrier security requirements
were:
a) Each enplaning passenger except transfer passengers to
other Canadian destinations that have been satisfactorily
screened in accordance with Canadian standards and
deplaned into a sterile area must undergo search by persons or
electronic devices in accordance with procedures described in
the air carrier’s approved security program.
…
d) Prevent checked baggage and cargo from being loaded
aboard its aircraft unless handled in accordance with
procedures described in the air carrier’s approved security
program.507
For each subsequent airport class, this document also makes explicit reference
to the requirement that these searches be handled in accordance with “…the air
carrier’s approved security program.”508
The implication of these documents is clear. Given Canada’s legal obligations to
the ICAO, Sheppard advising Air India of problems with its security plan, and the
documents that expressly speak of Ministerial approval for air carrier security
plans, it is safe to say that Transport Canada was not merely a passive recipient
of these plans, or, at least, that it was not meant to be. Just as Transport Canada
made it a policy to actively monitor the carriers’ compliance with their written
505
506
507
508
Exhibit P-165, Tab 8.
Exhibit P-101 CAF0650.
Exhibit P-101 CAF0650, p. 4.
Exhibit P-101 CAF0650, pp. 4, 6-8, 10.
535
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Volume Two Part I: Pre-Bombing
security plans, despite the fact that the legislative scheme did not contain a
mandate for enforcement (as discussed later), it also evidently had a policy of
actively reviewing and approving the carriers’ security plans when they were
filed. This suggests that the written security plans, like the one filed by Air India
in 1982 and amended in 1985, were in fact endorsed by Transport Canada.
This prospect raises important questions in light of some of the most problematic
aspects of Air India’s security plan, such as its decision to rely on the ineffective
PD4 explosives detection device as the sole backup for its checked baggage
X-ray machines. If Transport Canada approved Air India’s security plan, but
subsequently concluded that the PD4 was unreliable, why did it not take any
steps to recommend Air India amend its security plan and ensure that the
device was not used at all? This was a matter that required both oversight and
enforcement.
Monitoring Air Carrier Security
Transport Canada’s Civil Aviation Security Branch was responsible, on behalf of
the National Civil Aviation Security Coordinator, for overseeing the airport and air
carrier security systems in place in Canada. It had also committed to a program
of comprehensive audits of air carrier security plans on a system-wide basis.509
Among the audits was a spring 1984 review of CP Air’s security program.510 The
audit examined matters such as the carrier’s contracts for security services, the
training of CP Air’s security personnel and flight crews, and its procedures and
responses for bomb threats, and made a number of recommendations for both
the airline and Transport Canada to consider and act on.
The audit report included considerable discussion of CP Air’s checked baggage
security measures during high threat situations. Bomb threats had increased in
number in 1984 and were of growing concern.511 CP Air was aware of the threat
of sabotage to aircraft, and had implemented passenger-baggage reconciliation
systems for use at large airports such as Toronto’s Pearson airport.512 The audit
report noted that the CP Air system worked very well and that it ensured that
no bag was put aboard the aircraft unless the passenger was aboard. The report
went further, concluding that “…it caused some slight delay but it would not be
an impossible situation in the event that we did run into high threat situations
in Canada.”513 Among its recommendations was a suggestion that Transport
Canada develop means to improve threat management procedures, including
faster but more thorough searches and the development of electronic devices
at airports for use by air carriers in searching.514
The fact that Transport Canada concerned itself so thoroughly with the
various aspects of CP Air’s security operations, including passenger-baggage
509
510
511
512
513
514
Exhibit P-101 CAF0654, p. 9.
Exhibit P-101 CAF0637.
Exhibit P-101 CAF0637, p. 1.
Exhibit P-101 CAF0637, p. 18.
Exhibit P-101 CAF0637, pp. 18-19.
Exhibit P-101 CAF0637, pp. 2-3.
�Chapter IV: Responding to the Threat
reconciliation, is a good indication of its broad aviation security responsibilities
and priorities, legislated or not. Although Transport Canada and the carriers
placed great emphasis on the threat of hijacking in the 1970s and 1980s, the
recognition that sabotage was a growing threat was reflected in the audit,
which was not limited to anti-hijacking measures such as pre-board screening
of passengers and carry-on baggage. Unfortunately, when it came to Air India,
there was little such monitoring, auditing or oversight, despite Transport
Canada’s clearly stated intentions to do so.
Air India’s first flight out of Pearson airport departed on January 19, 1985. On
January 21, 1985, Mattson met with RCMP S/Sgt. Ward for a debriefing on Air
India’s security operations for the flight.515 No Air India or Burns International
Security representatives were present at this meeting. The minutes of the
debriefing indicated that Air India’s secondary security screening of passengers
and carry-on baggage had been carried out as outlined in the security plan,
but secondary screening of checked baggage by X-ray was not done because
the X-ray machine had not yet been delivered. Instead, the PD4 was deployed,
and the minutes included a note that, when tested, the device proved to be
“totally ineffective” in the opinion of the RCMP explosives detection dogmaster
and members of the Peel Regional Explosives Detection Unit. With respect to
X-ray searches of checked baggage, it was decided that “…a further analysis of
this procedure will be carried out once the X-ray is installed and in operation.”
The minutes of the debriefing ended with the note that, “We will continue to
monitor Air India’s operations over the next month, after which we will carry out
another analysis of their operation to ensure that the measures and procedures
which they have established remain appropriate.”516
On February 14th, John Cook, the Acting Director of Civil Aviation Security for
Transport Canada, wrote to Sarwal regarding Air India’s security requirements at
Pearson.517 Cook noted that Air India, RCMP and Transport Canada officials met
at Pearson and agreed on the security plan for Air India’s Toronto operations.
Cook also stated that, with respect to Air India’s security plan:
Mr. Dale Mattson, Transport Canada’s Manager of Safety and
Security at the airport has confirmed that Air India’s operations
are being monitored to ensure the measures and procedures
established are appropriate to meet the perceived threat.
You will be advised at once should any changes be deemed
necessary.518
These documents can only be taken to mean that Transport Canada officials
were to be actively observing and analyzing Air India’s security measures.
The continuing high threat to the airline was well understood, as was the
ineffectiveness of the legislated civil aviation security regime in reducing the
515
516
517
518
Exhibit P-101 CAA0121.
Exhibit P-101 CAA0121, pp. 2-3.
Exhibit P-101 CAF0032.
Exhibit P-101 CAF0032.
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risk posed by terrorist acts of sabotage. Mattson testified, however, that he
monitored Air India’s security measures for the first flight on January 19th, but no
others.519 According to Mattson, the Transport Canada staff at Pearson airport
had no capacity or instructions to inspect or monitor Air India’s security:
The airport managers did not have security officers to perform
that function. We were very limited in resources. I had myself
and one security officer, one policing officer. We were totally
committed at the time to administrating the overall program
as we have discussed over the last day.
…
And the only time that we were able to assist in the monitoring
process was if there had been an event or if we’d be especially
requested to do so by the Civil Aviation Security Branch at
Headquarters.520
There was, in fact, considerable inconsistency and uncertainty in the day-today interaction of the Transport Canada security officials and the air carrier
security programs at Canada’s major airports. Some security staff would monitor
passenger screening systems and other major activities such as air carriers’
handling of checked baggage and cargo on a daily basis, but no formal roles
or responsibilities had been set in this regard, and thus actual monitoring of air
carrier security by airport officials varied widely.521
Mattson testified that he believed any monitoring that did occur did not
include any examination of whether Air India was complying with its security
plan. He believed that Transport Canada’s monitoring of an air carrier’s security
operations extended only to those requirements set out in the aeronautics
legislation. According to Mattson, any measures other than those prescribed
by the regulations were not challenged or monitored, as they were merely
optional measures.522 Indeed, if Air India had not updated its security plan in
1985 to include screening checked baggage, or had subsequently decided to
stop X-raying checked bags altogether, Mattson testified that he would have
nevertheless viewed the program as sufficient.523
On January 21, 1985, Mattson was informed that the PD4 had failed a second test
conducted by the RCMP, while it was being used to inspect checked baggage for
Air India’s inaugural flight.524 The RCMP officers also informed Transport Canada
HQ of the failure, although no one at Air India was advised of the results of the
second test. Mattson testified that he was aware that after two failed tests the
519
520
521
522
523
524
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3199-3200.
Testimony of Dale Mattson, vol. 30, May 17, 2007, p. 3387.
Exhibit P-101 CAF0654, p. 4.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3199-3201.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3201.
Exhibit P-101 CAC0528, pp. 33-34.
�Chapter IV: Responding to the Threat
RCMP lacked faith in the ability of the PD4 to successfully detect explosives,
but he did not see it as his role to warn Air India against using it.525 There is
also no evidence that Transport Canada informed Air India that the PD4 had
failed a second test, or that Transport Canada recommended Air India amend its
approved security plan in light of the device’s severe flaws:
MR. SHORE: Do you recall at anytime between January 19th,
1985 and the bombing of Air India Flight 182, that at anytime
there was a notice with respect to a deficiency that may had
been addressed at the regional level of the problems that we
obviously have now heard more about?
MR. MATTSON: And you’re saying directly towards Air India?
MR. SHORE: Yes.
MR. MATTSON: I am not aware of any.526
Mattson was asked the question why, ifTransport Canada was wholly unconcerned
with Air India’s “optional” security measures such as X-ray examination of checked
baggage, did the January 21st debriefing make extensive reference to Air India’s
checked baggage security? Mattson’s response to this question was that:
We had an interest in that we felt it necessary to advise our
Headquarters of the fact, again, that the equipment that Air
India had said they were going to use to carry out checked
baggage inspection, did not seem to be performing as per the
RCMP view of what was needed to check bags.
But as far as being in a position to say that they couldn’t use
it, we were not, because it was not part of the CIV AV Security
Plan that had been approved by Civil Aviation at Headquarters.
They were aware. We brought it to their attention again and we
received no direction with respect to increasing or directing Air
India to carry out any other type of screening procedure.527
Mattson reiterated his opinion that, as the use of devices like the PD4 to search
checked baggage was a measure above and beyond what was called for by
the minimum standards set by the security regulations, the matter was entirely
within Air India’s purview.528 He conceded, however, that where an airline like Air
India relied on a device that Transport Canada believed to be manifestly unfit for
its intended security function, “…it would matter in that we would want to bring
525
526
527
528
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3205.
Testimony of Dale Mattson, vol. 30, May 17, 2007, p. 3389.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3211.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3212-3213.
539
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Volume Two Part I: Pre-Bombing
it to their attention that what they felt was meeting their requirements, from
our evaluation, was falling below their expectations.”529 Nevertheless, Mattson
did not recall ever relaying this concern to Air India.530
The contention that air carriers had to meet certain minimum standards, and that
Transport Canada was powerless to enforce (and thus monitor and comment
upon) any “optional” measures that exceeded these standards, is something of
a red herring. In reality, there was very little that Transport Canada could do
to ensure that an air carrier complied with any part of its security plan, due
to the absence of civil enforcement mechanisms. Most of Transport Canada’s
security requirements and standards for aviation security measures at airports,
such as passenger screening, were set out in internal policy and administrative
publications rather than in regulations.531
There were no detailed “minimum standards” for matters such as baggage
searches contained within the legislation beyond the requirement that carriers
have in place “…systems of surveillance of persons, personal belongings,
baggage, goods and cargo by persons or by mechanical or electronic devices.”532
This requirement applied equally to Air India’s decision to screen carry-on
baggage by X-ray and to its decision to screen checked baggage by X-ray or
PD4. Transport Canada had as much ability and obligation to approve, comment
upon, or monitor checked baggage screening as carry-on baggage screening.
As such, any suggestion that Transport Canada had no role in “…monitoring
those extra measures”533 requires an acknowledgment that Transport Canada
also had no legislated role in monitoring any other aspect of a carrier’s security
plan. Because this gap in Canada’s aviation security regime was well-recognized
at the time, hindsight is not necessary to conclude that this reveals a strikingly
poor policy framework.
In January 1986, a meeting was convened at the Department of Justice to
discuss Air India’s security at the time of the bombing. The minutes indicate
that Sheppard was asked about Transport Canada’s enforcement abilities. His
responses should be noted:
1) Was there a systematic check of airlines adhering to MOT security
plans?
- No.
2) Was there any monitoring of Air India’s security plan?
- No.
529
530
531
532
533
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3212.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3213.
Exhibit P-138, p. 11.
Foreign Aircraft Security Measures Regulations, s. 3(1).
Final Submissions of the Attorney General of Canada, Vol. II, para. 161.
�Chapter IV: Responding to the Threat
3) What happens if something is found wrong?
- Notify airline of deficiency, but there is no authority to take any
action (nothing between written reprimand and death penalty).534
The “death penalty” refers to the revocation of an air carrier’s operating privileges
in Canada, meaning its aircraft could no longer take off or land at Canadian
airports.
Notwithstanding the notable security requirements that could not be enforced
at all, failing to obey a regulation made under the authority of the Aeronautics
Act in June 1985 was an offence punishable by a fine of up to $5000, or one
year of imprisonment, or both. For the airlines, however, such penalties were
unrealistic. The fines were not substantial enough to have a punitive impact on
such large businesses, and the airlines as corporate “persons” were obviously
not liable to imprisonment. In contrast, the modern Aeronautics Act can impose
significant fines against corporations as well as individuals, and also provides
for the possibility of punishments, such as forfeiture of aircraft, on conviction for
certain indictable offences.
This simplistic and anemic regulatory scheme, within a civil aviation security
regime premised upon voluntary compliance, made enforcement all but
impossible. It underscored the vital importance of good relationships and
communications between government, industry, and law enforcement, as well
as frequent and thorough inspections. Nothing less would ensure that air carriers
were living up to their commitments to the public, and that Canada was living
up to its own commitments to the international civil aviation community.
Civil Aviation Inspection
In February 1984, Sheppard sent a letter to Sarwal regarding Air India’s security
program, which had recently been amended by Air India and approved by
Transport Canada.535 Sheppard reminded Sarwal that Air India should be
continually reviewing its own security program in order to ensure that it
appropriately reflected the security of the airports it operated out of, and asked
that Air India report any proposed changes to Transport Canada. Sheppard also
highlighted Transport Canada’s intended oversight mechanism, adding:
In an effort to attain standardization of security procedures
in Canada, as well as to confirm that requirements are being
met, Transport Canada officials will be monitoring, from time
to time, and evaluating the air carrier security programs. Any
matter requiring corrective action by your company will be
brought to your attention.536
534 Exhibit P-101 CAC0517.
535 Exhibit P-134.
536 Exhibit P-134.
541
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Volume Two Part I: Pre-Bombing
Transport Canada made it a policy under the National Civil Aviation Security
Program to conduct semi-annual security reviews of all the air carriers that were
required to file a security plan under the regulations.537 The policy called for
Transport Canada’s regional Dangerous Goods and Civil Aviation Inspectors to
conduct reviews at each airport, focusing on the air carrier security programs
and assessing the adequacy of the measures that had been established by the
programs. In doing so, the inspectors were to conduct operational evaluations
of the measures established by the programs, as well as an evaluation of the
techniques employed and the skill of the personnel carrying out the security
functions of the program.538 The inspections also extended to an evaluation of
the training programs for screening personnel employed by the carriers.
The inspectors used the two-part Civil Aviation Security Inspection Checklist
to evaluate airport security plans and air carrier security plans. The checklist
included security aspects that were to be examined, and required the inspector
to indicate whether the measure was or was not being performed. In the course
of their duties, the inspectors would direct the airport or air carrier’s attention to
any security deficiencies or recommendations. If a concern could not be resolved
at the regional level, Transport Canada required that a copy of the security
checklist be forwarded to the National Civil Aviation Security Coordinator at
headquarters in Ottawa.539
Unfortunately, these security inspections did not proceed as intended. The
resources that were allocated for aviation security from the inception of the
National Civil Aviation Security Program were fundamentally inadequate to
meet the program requirements.540 According to a Transport Canada report,
“…the major impact from the lack of resources was felt in areas of monitoring/
inspections of airports and air carriers to ensure compliance with security
regulations and policies, the investigation of security incidents/infraction [sic]
and the related training support.”541 The CATSA Act Review Advisory Panel noted
that, during the period of 1972 to 1985, Transport Canada employed only 11
security inspectors across its six regions to enforce both aviation security
regulations as well as regulations governing the transportation of dangerous
goods. The inspectors were, not surprisingly, “thinly stretched” during this
period, as their duties required monitoring of roughly ten Canadian air carriers
and 60 foreign air carriers at the approximately 100 airports542 spread across the
country.543
A study conducted in the early 1980s found that “…there was too much workload
in any region for one person to cover the Dangerous Goods areas let alone the
civil aviation security responsibilities.”544
537
538
539
540
541
542
543
544
Exhibit P-101 CAF0151, p. 26.
Exhibit P-101 CAF0151, p. 26.
Exhibit P-101 CAF0151, pp. 26, 39-42, 43-45.
Exhibit P-101 CAF0593, pp. 5-6.
Exhibit P-101 CAF0593, p. 6.
Exhibit P-101 CAF0593, p. 1.
Exhibit P-157, pp. 21-22.
Exhibit P-101 CAF0593, p. 7.
�Chapter IV: Responding to the Threat
In the fall of 1984, Transport Canada’s Evaluation Branch conducted an
assessment of Canada’s civil aviation security program which indicated that, in
three regions, the regulatory inspectors had conducted no security inspections.
In three other regions, there was only limited testing using the headquarters
checklist, and the inspectors spent little time testing the system in order to see
where faults lay.545 Moreover, in June 1985, A.B. McIntosh, Transport Canada’s
Manager of Air Carrier Security, reported that the lack of inspection resources
was such that, for each region, the inspectors were only able to complete “…0%
to 10% of the estimated workload.”546 Transport Canada had obtained resources
to provide an additional inspector for each region before the end of 1985, but
its inspection targets remained modest in light of the magnitude of the task.
McIntosh stated that the goal was to achieve 100% inspection of all air carriers
in each region by 1990.547
According to Mattson, what security monitoring of the air carriers there was at
Pearson tended to be reactive rather than regular or preventive:
The regional security officer would come out and carry out an
inspection or he would receive information either from the
airport management group or we would get information from
operations or observe something ourselves or a complaint
from another source may be issued that the carrier was not
complying. We would raise this with the regional civil aviation
security officer and his first initiative would be to come out and
meet with the air carrier, identify the problem, verify that it was
valid and at that point get a commitment from them that they
would correct their procedure and resolve it locally.
If, in fact there was objection to doing that, then he would
escalate it to the Civil Aviation Branch at Headquarters level
where it may go to a level where they decided that they were
either going to take some sanctions to get some financially or
otherwise, and I’m not sure just what criteria they use to make
that determination.548
In light of these facts, it is not at all surprising that Professor Reg Whitaker, of
the CATSA Act Review Advisory Panel, testified that Transport Canada’s oversight
of the carriers was “essentially nonexistent”549 prior to the bombing of Air India
Flight 182, and that “…despite the fact that [Transport Canada] had made certain
undertakings, … to monitor from time to time, they simply did not.”550
545
546
547
548
549
550
Exhibit P-101 CAF0654.
Exhibit P-101 CAF0593, p. 1.
Exhibit P-101 CAF0593, p. 1.
Testimony of Dale Mattson, vol. 30, May 17, 2007, p. 3389.
Testimony of Reg Whitaker, vol. 36, May 30, 2007, p. 4366.
Testimony of Reg Whitaker, vol. 36, May 30, 2007, p. 4366.
543
�544
Volume Two Part I: Pre-Bombing
The lack of resources for inspections meant that it was difficult to achieve
uniform monitoring and inspections from region to region, to conduct
investigations of security incidents, and to provide security training, assistance,
and advice. Given that many air carriers operated in more than one region in
Canada, Transport Canada was concerned about these deficiencies resulting
in air carriers adopting inconsistent and inappropriate security measures and,
worse, compounding enforcement difficulties. Transport Canada also lacked
any resources to conduct security inspections at foreign airports from which air
carriers departed for Canada,551 meaning that there was no way to confirm that
the carriers were complying with Canadian security regulations when outside
Canada or that information provided by the carriers in their security programs
was accurate.
Today, civil aviation safety inspectors and security inspectors conduct reviews
at foreign airports before Transport Canada will issue a Foreign Air Operator
Certificate to a foreign carrier seeking to operate in Canada; and the Offshore
Inspection Security Program periodically follows up by sending teams of
security specialists to verify that the measures remain in practice.552 Canada also
sends inspection teams to airports in other states prior to allowing air carriers
to conduct new flights between Canada and that state.553 These audits are
essential components of Canada’s bilateral operating agreements with other
states. In 1985, however, Transport Canada was forced to rely on third parties
to provide this information due to its limited resources – a circumstance that it
considered to be inappropriate.
With the air carriers continually balancing security against the competing
interests of customer satisfaction and cost-effectiveness, Transport Canada’s
inability to regularly inspect air carrier security, or to enforce penalties for
violations of either the legislation or the carrier’s own security programs,
could hardly encourage either vigilance or competence at Canada’s airports.
For example, in 1984, McIntosh distributed a memorandum to the regional
inspectors advising that recent observations of security checkpoints at major
airports revealed a number of security breaches caused by carelessness or
inattentiveness. Individuals were entering air screening checkpoints and
proceeding into sterile areas without being checked to verify that they were
actually bona fide passengers, and airline and flight crew personnel were
passing through security checkpoints without displaying their identification
cards.554 McIntosh stated that an attitude of complacency was extending into
areas of aviation security, and that these were but a few examples of how it
would emerge. Reflecting the necessary compromises inherent in a voluntary
security regime that lacked any enforcement mechanisms, McIntosh requested
that the inspectors target the larger airports in their regions “…and draw the
responsible air carriers [sic] attention to any shortcomings in the agreed upon
551
552
553
554
Exhibit P-101 CAF0593, pp. 9-10.
Testimony of Jean Barrette, vol. 37, May 31, 2007, pp. 4540-4541.
Testimony of Jim Marriott, vol. 39, June 4, 2007, pp. 4737-4738.
Exhibit P-101 CAF0570, p. 1.
�Chapter IV: Responding to the Threat
security system that are observed.”555 Section 2.4 (Pre-bombing), Security
Culture at Canada’s Airports, addresses in detail the woeful security culture of
this period.
Enforcement Failures Following the Bombing
The bombing of Air India Flight 182 was a tragedy that placed a renewed
scrutiny on aviation security in Canada and around the world, and raised many
questions about checked baggage security, the threat of sabotage, and Canada’s
readiness to meet the threat of terrorism. As officials, experts and investigators
examined the incident, in an effort to uncover the causes of the disaster and
identify solutions to prevent such acts from occurring again, the weaknesses in
Canada’s aviation security regulation and monitoring systems were quickly laid
bare.
A prominent flaw was Transport Canada’s lack of meaningful oversight over
air carrier security programs, and Air India’s security program in particular. An
RCMP report concerning the preliminary investigation of the security measures
in place at Pearson airport on June 22, 1985 remarked that “…it appears that
Air India did meet the requirements of the Foreign Aircraft Security Measures
Regulations at [Lester B. Pearson International Airport] on the 22 June 1985. There
are obvious weaknesses in the system i.e., lack of training evident in regards to
Burns Security Personnel however, it is still a system, good, bad or indifferent.
Our Regulations simply require a ‘system’ with no measure of quality.”556
In the same vein, Transport Canada investigated the possibility that the airlines
had failed to comply fully with their security plans, and that this had contributed
to the failure to prevent the bombing. It was concluded that CP Air had violated
its own security plan by interlining the checked bag belonging to “M. Singh” to
Delhi.557 Despite this finding, any breaches by Air India or CP Air of their own
security plans were under the voluntary compliance regime.558 Therefore, no
enforcement action was possible.559 The only action that could be taken against
CP Air following the bombing was the writing of a letter “…pointing out their
responsibility in complying with established security measures.”560
Although in many respects the bombing represented a sea change in terms
of aviation security, and shook government and industry alike into taking a
comprehensive and purposive approach to preventing acts of sabotage, there
was nevertheless some resistance to the security measures called for immediately
after the bombing. Transport Canada issued ministerial directives on June 23,
1985 that called upon international carriers to implement thorough baggage
searches and holds on cargo for each flight. The measures caused delays, and
the delays were expensive.
555
556
557
558
559
560
Exhibit P-101 CAF0570, p. 2.
Exhibit P-101 CAF0143, p. 17.
Exhibit P-101 CAF0611.
Exhibit P-101 CAF0612.
Exhibit P-101 CAF0554, p. 3.
Exhibit P-101 CAF0612.
545
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Volume Two Part I: Pre-Bombing
In a meeting of the National Civil Aviation Security Committee in September
1985, the representative of the Air Transport Association of Canada expressed
his great concern about the “costly measures” that were being implemented
“…in spite of the record in Canada in the last 10 years,”561 arguing that Canada
should focus on correcting what went wrong on June 22, 1985 rather than trying
to close “…all the holes.” One airline put its cost concerns into direct action. In
October 1985, Lufthansa refused to comply with the requirement to search
checked baggage for its flights at Mirabel.562 Although the Aeronautics Act was
amended days after the bombing, Transport Canada remained utterly unable to
sanction this flagrant breach of security as the measures were not part of any
regulation or order. Until the new aviation security regulations were imposed,
Transport Canada remained powerless in fundamental security matters as a
direct consequence of short-sighted policy choices.
Conclusion
Vigilance is the cornerstone of any successful security regime, and it is required
of both those providing the security within that regime, and those overseeing it.
Without continual and thorough monitoring of the air carriers, airport personnel,
and security staff within that system, carelessness and complacency can flourish.
Errors that occur will propagate unchecked without review, testing, and corrective
feedback and, worse, any deliberate decisions to cut corners or ignore specific
components of the security system may go unnoticed. The evidence indicates
that prior to the bombing of Air India Flight 182, Transport Canada had a duty
to approve and oversee air carrier security programs as part of its obligations as
Canada’s representative at the ICAO, and that it had developed policies obliging
it to do so. Unfortunately, no legislation empowered it or required it to meet that
duty. Transport Canada also made it a policy to conduct inspections of airport
and air carrier security, but failed to provide sufficient resources to follow through
with that commitment. As a result, air carriers such as Air India were not subject
to critical oversight, and worrisome components of Air India’s security program,
such as its unwarranted reliance on the useless PD4 to inspect checked baggage
for explosives, were allowed to pass without comment.
561 Exhibit P-101 CAF0162, p. 4.
562 Exhibit P-101 CAF0608, p. 5.
�VOLUME TWO
PART 1: PRE-BOMBING
CHAPTER V: THE DAY OF THE BOMBING
5.0 CP Air Checked In Unaccompanied Luggage
The suitcases containing the bombs that exploded aboard Air India Flight 182
and at Narita Airport were first checked aboard two CP Air flights at Vancouver
International Airport on June 22, 1985.1 Early that Saturday morning, an unknown
man of Indian descent entered the line for the CP Air check-in counter. It was a
busy morning, and the line of passengers waiting to check in and board was a
long one.2 When the unknown man reached the front of the line, he was served
by CP Air passenger service agent Jeanne Adams (now Jeanne Bakermans). He
presented a ticket bearing the name “M. Singh,” and sought to check in himself
and one suitcase.
Adams checked the ticket and the CP Air reservation system and noted that
“M. Singh” had a reservation for CP Air Flight 060 to Toronto, with a waitlisted
connection from Toronto to Mirabel aboard Air India Flight 181, and from
Mirabel to Delhi aboard Flight 182.3 Adams then affixed an orange checked
baggage tag indicating that the bag was to be offloaded at Toronto’s Lester B.
Pearson International Airport (Pearson).4 The individual holding the ticket for
“M. Singh” was not satisfied with this, however, and insisted that Adams check
his bag directly to Delhi.
A long discussion ensued, in which “M. Singh” became increasingly agitated.
Another traveller, waiting in line behind the unknown man, was able to overhear
Adams repeatedly explain that she was unable to check his bag directly to his
destination in Delhi because he did not have a reservation for the flight.5 In
reply, the man claimed that he did have a reservation for the flight and that he
had paid the full cost of a business fare in order to obtain it.
Adams could find no indication of a reservation to Delhi. As time dragged on,
however, and the line for her counter grew longer on that busy morning, she
made a fateful decision. The unknown man stated that he would go and find
his brother who apparently knew more about the reservation. The prospect of
holding up the line any further for this adamant man was too much. She relented,
1
2
3
4
5
Exhibit P-157, p. 30.
Exhibit P-101 CAF0667, p. 1.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 19.
Exhibit P-101 CAF0667, p. 1.
Exhibit P-101 CAF0786.
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Volume Two Part 1: Pre-Bombing
and tagged his bag for direct interline delivery to Delhi, telling him several times
that he would have to confirm with Air India that he had a reservation for Flight
181/182 when he arrived at Pearson.6
Tagging the suitcase for interline delivery to Delhi meant that when CP Air Flight
060 reached Pearson, the bag would be offloaded from that flight and sent to
Air India’s baggage handlers for loading directly aboard Air India Flight 181/182.
This eliminated the need for the passenger to collect it in person off the baggage
carousel at Pearson and check it again at the Air India counter. Tagging the bag
in this way, without a reservation for the Air India flights, was contrary to both
CP Air’s own security program and industry practice.
The traveller, known only as “M. Singh,” was issued a boarding pass for seat 10B
aboard CP Air Flight 060. The flight was airborne by 9:18 AM, en route to Toronto
with a bomb aboard. “M. Singh” ’s luggage left Vancouver on that flight, but
he did not. His flight coupon was never collected at the gate, and his seat was
empty when the plane departed.7 Finally, “M. Singh” did not attempt to check in
at Pearson at any time that day.8
At some point that morning, Adams also checked a bag belonging to a traveller
holding a ticket in the name of “L. Singh.” He was assigned seat 38H aboard
CP Air Flight 003 to Tokyo’s Narita Airport.9 His bag was interline tagged to a
connecting Air India flight departing from that airport, as he had a reservation
for that flight. When CP Air Flight 003 departed, the traveller known as “L. Singh”
was not aboard. His flight coupon was also not collected at the gate, and the
seat assigned to him was empty.10
Failure to Flag Suspicious Behaviour
In August 1985, CP Air’s Passenger Service Manager wrote a letter to the RCMP to
defend CP Air’s security arrangements prior to the bombings of Air India Flight
182 and at Narita airport, as well as to confirm the security measures in effect
afterwards. Among his assertions was the claim that, prior to the bombing, CP
Air was following measures for identifying potential problem passengers, such
as “…agitated behaviour, one-way tickets, cash payment, late bookings, etc.”11
Strikingly, however, no red flags were raised when the tickets were booked on
June 19, 1985 for a June 22nd flight. Nor was any notice paid to the fact that the
reservations for the tickets were changed to different names the next day. The
initial reservations had been under the names Jaswand Singh and Mohinderbel
Singh, but were changed to “M. Singh” and “L. Singh” when the tickets were paid
for on June 20th.12 Additionally, the flight reservation for “L. Singh” was changed
6
7
8
9
10
11
12
Exhibit P-101 CAF0667, p. 2.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 20.
Exhibit P-164, p. 35.
Exhibit P-167, pp. 4-5.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 21-22.
Exhibit P-101 CAF0691.
Exhibit P-167, p. 3.
�Chapter V: The Day of the Bombing
to a one-way ticket on June 20th. The “M. Singh” ticket from Vancouver to Toronto
to Delhi had previously been reserved as a one-way ticket.13 Finally, the tickets
for “L. Singh” and “M. Singh” were both paid for in cash on June 20th.14
According to the testimony of Rodney Wallis, an aviation expert who was IATA’s
Director of Security between 1980 and 1991, European airlines were much more
alert to the risks posed by passengers purchasing one-way tickets, particularly
with cash, due to strict immigration rules set down by the United States. Due
to that nation’s concerns about illegal immigration, the European air carriers
would be fined $1000 each time they delivered a passenger to the US who was
subsequently refused entry. As a result, the airlines were extremely vigilant,
and were continually devising strategies to reduce this problem. One strategy
focused on training front-line staff, who came face to face with passengers,
regarding common warning signs. One particular flag emphasized in their
training was the passenger who attempted to purchase a one-way ticket with
cash – these were viewed as being very high-risk by the European airlines.
Wallis noted that although the European air carriers’ focus was on illegal
immigration, it was still the case that the conduct of a passenger such as “M.
Singh,” who was intent on doing harm and was behaving very suspiciously, would
immediately stand out to the ticket agents and passenger agents at a European
airport in 1985. Wallis said that the staff at check-in counters developed a “sixth
sense” for signs of trouble from passengers:
But they were being exposed to it a great deal. So had this
happened in Europe, the potential was that red flags would
have been raised. Certainly when you got to the airport, if
someone had behaved like Singh had behaved, I would have
expected the agent to have called the supervisor if they felt
they couldn’t deal with the subject themselves. Many of them
were quite tough. You know, they had been used to handling
difficult passengers. This was just another difficult passenger,
but if they needed support, they would go to a supervisor. That
would have rung at the airport not so much alarm bells, but it
would tell you something is not right. What is this man going
on about? Or you might just call the supervisor because you
wanted to get rid of him anyways because he’s difficult.15
CP Air Security Requirements
Unlike Air India, CP Air was operating at a normal threat level in June 1985,16 and
took no additional security measures at the airport, such as X-raying checked
13
14
15
16
Exhibit P-283, Tab 12.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 7-16.
Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5022-5023.
Exhibit P-157, p. 30.
549
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Volume Two Part 1: Pre-Bombing
baggage.17 The airline had been given no information regarding the fact that
Air India was operating under a high threat, and took no special precautions
concerning interlined passengers and baggage. CP Air had, however, responded
to a number of bomb threats in Canada in the past and was handling an
increasing number of threats in the 1980s.18 The failure to warn the other air
carriers in Canada about the threat to Air India in June 1985 was an unfortunate
omission on the part of Air India and the government agencies responsible for
aviation security. As the CATSA Act Review Advisory Panel noted in its report,
the CP Air passenger agent might have exercised more caution when “M. Singh”
insisted his bag be directly interlined to Delhi through Air India if she had known
of the danger.19
The CP Air Security Program in place in 198520 had been given de facto approval
by Transport Canada in 1978, according to the CATSA Act Review Advisory
Panel.21 According to a Transport Canada audit, the program instituted a “…
very acceptable system and procedures in place for combating possible acts of
unlawful interference with aviation.”22
CP Air’s Security Program did not authorize passenger agents to directly tag an
article of checked baggage to a final destination in situations such as that of “M.
Singh.” The requirements for checked baggage were set out as follows:
A. Procedures for Identification and Handling of Baggage
Passengers checking baggage must present to an airline agent
a valid ticket to the destination to which the bag is being
checked. On acceptance, the checked bag is identified with
a baggage tag which shows the destination of the bag and
a serialized number which matches the number on a stub
portion which is then attached to the passenger portion of the
airline ticket.
…
C. Procedures for Unaccompanied Baggage
Unaccompanied baggage normally shall not be carried, but
when carried for specific reasons such as missed connections,
etc., will be handled in the same manner as a cargo shipment.23
17
18
19
20
21
22
23
Exhibit P-101 CAF0691.
Exhibit P-101 CAF0637, p. 1.
Exhibit P-157, p. 50.
Exhibit P-101 CAF0761.
Exhibit P-157, p. 31.
Exhibit P-101 CAF0637, p. 1.
Exhibit P-101 CAF0761, p. 5.
�Chapter V: The Day of the Bombing
Under the heading Predeparture Screening Procedures for Passengers and Carry-on
Baggage, CP Air’s Security Program also established requirements for offloading
checked baggage in certain situations. If a passenger refused to be screened,
he or she would be denied boarding and his or her checked baggage would
be removed. Additionally, it stated that “…if a passenger who has checked in
for a flight decides not to travel, or is refused passage for any reason, his/her
checked baggage shall be removed from that flight under the direction of
the Airport Service Supervisor on duty.”24 An earlier draft of CP Air’s Security
Program, produced in 1974, also included the requirement to offload checked
baggage when a passenger who had checked in decided not to travel. In that
draft, however, this provision was included under the plan’s checked baggage
security measures.25
It is unclear whether this measure was meant to impose a requirement for
general passenger-baggage reconciliation, but it does seem to apply perfectly
to the circumstances of “M. Singh” and “L. Singh,” who checked in and checked
bags aboard their flights, but did not go to the departure gate to board (such
passengers are referred to in the aviation industry as “no show” passengers).26
CP Air was certainly aware of the immense value of this security measure in
preventing acts of sabotage. Moreover, during the 1980s, CP Air implemented
passenger-baggage reconciliation at major airports during threat situations.
Transport Canada noted that the reconciliation system worked well, and that it
ensured that no checked baggage would be loaded aboard the aircraft until it
was confirmed that the passenger it belonged to was also aboard.27
In an August 1985 letter to the Vancouver Airport detachment of the RCMP, CP
Air’s Passenger Service Manager insisted that, prior to the bombing, all CP Air
flights were “…reconciled to ensure that all passengers had boarded.”28 With
respect to the two June 22nd flights, however, this statement is incorrect. Two
passengers had not boarded their respective flights, and yet their failure to
board apparently prompted no action on CP Air’s part. Their bags were not
offloaded prior to departure, and no attempt was made to notify Air India.
Industry Practice
Wallis testified that the airlines relied on one another for a large variety of
complex transactions, including booking passengers from one airline to
another and ground handling at different locations. For this reason, the industry
had agreed upon a set of recommended practices and procedures that all the
carriers could rely on.29 Many of these practices and procedures were contained
within the IATA Airport Handling Manual,30 along with documents such as the
IATA Interline Traffic Agreement.31
24
25
26
27
28
29
30
31
Exhibit P-101 CAF0761, p. 3.
Exhibit P-101 CAF0557, p. 6.
Testimony of Chern Heed, vol. 36, May 30, 2007, p. 4341.
Exhibit P-101 CAF0637, pp. 6, 18.
Exhibit P-101 CAF0691.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4393-4395.
Exhibit P-158.
Exhibit P-159.
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T.N. Kumar of Air India testified that he believed Air India was entitled to expect
that CP Air would comply with section 4.1.5 of the IATA Airport Handling Manual’s
recommended practices, which provided that, under normal conditions,
air carriers should ensure that all baggage loaded onto a flight, aside from
expedited baggage, belonged to passengers who were travelling on the flight
itself.32 Moreover, according to Wallis, “…if one was receiving passengers and
baggage from one airline, you would assume that the recommended practices
were in fact being followed by that carrier. It was more than an act of faith ... it
was a commercial agreement.”33
Rajesh Chopra, Air India’s Manager for Canadian Operations, also testified
that, when “M. Singh” was issued a boarding pass by CP Air and checked his
bag aboard Flight 060, in keeping with the IATA agreements and industry
practice, CP Air should have provided a passenger transfer manifest to Air India
advising of a connecting passenger and baggage. Instead, Air India received “no
intimation” of either a connecting passenger or of baggage coming to Pearson
airport.34 On that same point, Kumar testified that he could not find any record
of such a manifest/memorandum in his records.35 Wallis testified that the use of
passenger transfer manifests between airlines was “spasmodic” in 1985, but was
certainly good practice and good customer service.36 Had Air India received a
passenger transfer manifest indicating that “M. Singh” had not boarded CP Air
Flight 060, but that his checked bag was aboard, Air India would have offloaded
the bag.37
Additionally, CP Air was remiss in failing to notify Air India of the fact that neither
“L. Singh” nor “M. Singh” had boarded their flights. Chern Heed of the CATSA Act
Review Advisory Panel testified that it should have been obvious to CP Air that
when Flight 060 departed, the passenger known as “M. Singh” was not aboard.
According to Heed, the practice at the time meant that Air India should have
been alerted to the fact that “M. Singh” was a “no show.”38 Neither the CATSA Act
Review Advisory Panel nor Commission counsel could find any indication that
this had been done.
Similarly, the IATA Interline Passenger Reservations Procedure provided that:
[W]henever a passenger is known to be a no-show on a
flight of a Member, such Member shall promptly recommend
cancellation of all space of which it has knowledge, and shall
indicate the reason for recommendation of cancellation …
provided that any onward carrier so notified may cancel or not
as it elects.39
32
33
34
35
36
37
38
39
Exhibit P-158, p. 3.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4394-4395.
Testimony of Rajesh Chopra, vol. 37, May 31, 2007, pp. 4390-4391.
Testimony of T.N. Kumar, vol. 37, May 31, 2007, p. 4392.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4392.
Testimony of Rajesh Chopra, vol. 37, May 31, 2007, pp. 4403-4404.
Testimony of Chern Heed, vol. 36, May 30, 2007, pp. 4327, 4352.
Exhibit P-159, p 26.
�Chapter V: The Day of the Bombing
At best, Air India’s systems indicated that there was one waitlisted passenger
from CP Air Flight 060 at Pearson. Wallis testified that, in 1985, airline reservation
systems were linked by a well-established, industry-owned system, and that
this allowed the reservation systems to communicate with each other instantly.
This is how Adams was able to repeatedly verify that “M. Singh” did not have a
reservation for Air India Flight 181/182. Wallis confirmed that what was lacking
at that time, unfortunately, were the linkages between the airlines’ reservation
systems and their departure control systems.40 Additionally, according to
Chopra, Air India did not make a practice of keeping a waitlist manifest at the
airport. Air India relied instead on a passenger name list, composed of the
names of confirmed passengers. Consequently, “M. Singh” was simply a “ghost
passenger,”41 whose existence was unknown to Air India personnel at the airport.
Further, as discussed in the following section, Air India had no systems in place
to detect the ownerless, interlined bag. This meant that the bag entered Air
India’s baggage system without notice.
Conclusion
In its report, the CATSA Act Review Advisory Panel wrote about a number of
“human failures” that contributed to the bombing of Air India Flight 182.42 As the
Panel noted, even complex systems, such as an aviation security program, cannot
account for every situation. At some point, individuals must make decisions
based on their own judgment and experience. These decisions, however, will be
affected by the human failings that impact upon better judgment, such as stress,
fatigue, anger, inattention, and prejudice. Thus, the CP Air passenger agent
relented in the face of an adamant, loud passenger and a long and growing
lineup, and checked the “M. Singh” bag for interlining to Delhi.
Other failures also contributed to the flawed handling of this interlined bag. The
regulatory regime and security awareness culture were both starkly deficient in
this period, and actions took place in the context of strong pressure to please
customers and a subdued attention to security. CP Air failed to comply with its
own security plan and took no steps to remove the bag checked by “M. Singh”
when he did not board the aircraft. It also failed to comply with industry practice
and did not inform Air India of the “no show” passenger. Additionally, neither Air
India nor the government agencies had informed the other airlines of the threat
to the airline in June 1985, resulting in few people having any reason to believe
that the situation was other than “business as usual”.
One individual making a very human mistake resulted in a bomb being loaded
aboard Air India Flight 182. As discussed throughout this Report, however, a
myriad of regulatory, policy, and organizational failures contributed to this
mistake and also prevented the bomb from being detected and removed.
40
41
42
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4399-4400.
Testimony of Rajesh Chopra, vol. 37, May 31, 2007, pp. 4397-4398.
Exhibit P-157, p. 68.
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5.1 Unaccompanied Bag “Infiltrated” Air India’s System
When CP Air Flight 060 arrived at 4:20 PM at Pearson, the bag of “M. Singh” was
offloaded by a CP Air ground handling crew with the other articles of checked
baggage aboard. It was the only bag to be interlined from this flight to Air
India.43 A driver from Consolidated Aviation Fuelling and Services (CAFAS)
picked up the bag at Terminal 1, and delivered it to Air Canada personnel at
Terminal 2.44 From there it was sent on to Air India’s baggage handling area for
security screening by X-ray.45 From the perspective of the CAFAS driver and the
ground handling personnel, the interlined bag would have appeared perfectly
normal and commonplace.46 It had a valid tag, and Air Canada had been given
no information about the threat to Air India or special instructions on how to
handle interlined bags.
Interlined baggage was a common and foreseeable fact of life for any airline,
and the bag checked by “M. Singh” was not the only interlined bag that was
loaded aboard the Air India aircraft Kanishka at Pearson. According to a
manifest for Flight 181 that was compiled by investigators after the bombing
and included in the Canadian Aviation Safety Board’s submissions to the Kirpal
Inquiry, twenty-one other passengers from connecting flights out of Saskatoon,
Winnipeg, Edmonton and Vancouver boarded the aircraft at Pearson, along
with their checked bags.47 “M. Singh” was the only standby passenger out of
this list of connecting passengers. Accordingly, it is almost certain that all of
their checked bags would have been tagged for interlining to Air India as per
industry practice, and then sent to Air India’s baggage handling area from the
connecting Air Canada flights.
The Air India security program prescribed actions regarding baggage handling
according to either“normal”or“emergency”conditions. Under normal conditions,
item 4.1.1 of the Air India security program stated that “…unaccompanied
baggage must be associated with bona fide passengers and documents before
it is boarded.” Under the program, emergency conditions applied in situations
involving danger or threat to a specified flight or series of flights over a specific
period, and the emergency measures were to be taken “…when increased or
heightened security is warranted.”48 The emergency measures of Air India’s
security program were applicable in June 1985.49
The emergency measures of the Air India security plan, intended for a high
threat level, imposed the following additional requirements:
43
44
45
46
47
48
49
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 23-25.
Exhibit P-167, p. 7.
Exhibit P-283, Tab 32, p. 3.
Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5024-5025.
Exhibit P-167, p. 5.
Exhibit P-284, Tab 68, pp. 17, 21.
See Testimony of T.N. Kumar, vol. 37, May 31, 2007, p. 4406.
�Chapter V: The Day of the Bombing
a) …ensure that only the bona fide baggage carrying a valid baggage
tag with a pre-determined code number is loaded into the container
or in the aircraft.
b) The baggage trolleys carrying baggage to the aircraft shall be
escorted.
c) All unaccompanied baggage shall be held over for 24 hours prior to
dispatch or shall be subjected to 100% examination.
d) Checked-in baggages [sic] belonging to “No Shows” shall not be
loaded into the aircraft.
e) All unaccompanied baggage shall be inspected physically or held
for 24 hours prior to forwarding.50
T.N. Kumar of Air India testified that the interlined baggage for “M. Singh” was
not “unaccompanied,” from the perspective of Air India, but “unauthorized.”51
An “unaccompanied” bag was a bag that the airline was aware of and that was
associated with a travelling passenger, such as a bag that had been misdirected
at the airport and flown to its owner’s destination on a later flight.52 Because Air
India had not received a passenger transfer manifest indicating that a waitlisted
passenger was arriving from a connecting flight with checked baggage, it only
passively received the interlined bag via Air Canada’s ground handlers. In this
instance, Air India had no information in its own system to indicate that the “M.
Singh” bag was present and being loaded aboard Flight 182.
The “unauthorized” entry of the “M. Singh” bag into Air India’s baggage system
does not absolve Air India of its responsibility for failing to detect and remove
the bag. Under the Foreign Aircraft Security Measures Regulations, Air India was
required to design a security program that would prevent bags, goods and cargo
from being placed aboard one of its aircraft unless authorized by the owner or
operator.53 Its program did not address the threat posed by interlined bags. The
very fact that an “unauthorized” bag could be placed aboard the aircraft without
Air India’s knowledge is evidence of that system’s failure.
Air India identified “no show” passengers by matching the number of coupons
collected against the number of boarding cards issued. If a passenger failed
50
51
52
53
Exhibit P-183, Tab 68, p. 21.
Testimony of T.N. Kumar, vol. 37, May 31, 2007, pp. 4406-4407. See also Testimony of Rodney Wallis,
vol. 37, May 31, 2007, p. 4408. This is discussed in detail in Section 2.3.3 (Pre-bombing), Over-Reliance
on Technology.
Exhibit P-168.
Foreign Aircraft Security Measures Regulations, S.O.R./76-593, s. 3(1)(f ).
555
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to board, they would be paged at the gate and, if they did not report, their
luggage would be offloaded.54 Aside from this step, however, Air India made
no other attempts to ensure that only checked baggage belonging to travelling
passengers came aboard the flight. Had Air India implemented passengerbaggage reconciliation for its flights in June 1985, the “M. Singh” bag would
almost certainly have been removed.
5.2 No Dogmaster on Duty at Pearson and Mirabel International
Airports
Air India’s operations at Pearson and Mirabel were under a state of high alert in
June 1985. Due to the mounting threat of violence from Sikh extremists seeking
to target Indian interests and symbols in Canada, Air India had requested and
received additional security coverage from Transport Canada and the RCMP for
the month of June. The RCMP had, in fact, decided that the threat to Air India was
so great that it had imposed level 4 security measures, its second highest airport
security level, for Air India’s operations at Pearson during the entire month.55
This security level had already been imposed for Air India’s operations at Mirabel,
and had been at that level for over a year by the time of the bombing.56
The RCMP airport security levels were set out in an RCMP checklist that had been
developed at Mirabel in 1983, and specified the applicable security measures
for given levels.57 According to J.B. (“Joe”) MacDonald, the RCMP officer at the
Airport Policing Branch at RCMP Headquarters who set airport security levels in
1985, the checklist was used as a national standard.58 Levels 3 and 4 mandated
the use of the RCMP explosives detection dog team.59 This level entailed the
presence of the explosives dog detection team to search the passenger section
of the aircraft, as well as any suspect luggage, prior to departure. The explosives
detection dog unit would also be used in circumstances of a so-called “specific
threat,” during which the dog would also sniff all of the luggage, spread out on
the tarmac, and all bags would be matched to the passengers on the aircraft.60
The RCMP dog handler generally had the final say on how the dog would be
deployed.61
On June 1, 1985, Air India’s head office in Bombay sent a telex to Air India
stations around the world, specifically warning of the possibility of time-delayed
explosive devices being placed aboard Air India aircraft or in checked baggage.62
The telex called for the meticulous implementation of anti-sabotage measures
for all Air India flights, recommending that explosives detection dogs and
54
55
56
57
58
59
60
61
62
Exhibit P-283, Tab 26, p. 2.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2787-2789.
Exhibit P-101 CAC0528, p. 10.
Exhibit P-101 CAA0025.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2765-2766.
Exhibit P-101 CAA0025.
See Section 4.3 (Pre-bombing), The Role of the “Specific Threat” in the 1985 Threat-Response Regime,
for further discussion of these threat-response protocols.
Exhibit P-101 CAC0310, p. 16.
Exhibit P-101 CAA0185.
�Chapter V: The Day of the Bombing
electronic explosives detection devices be used to screen checked baggage in
light of the threat. The message also recommended random physical searches of
checked bags, especially where explosives detection devices were not available.
A few days later, Air India sent a follow-up telex advising that these measures
should be applied for the entire month of June.63
As the CATSA Act Review Advisory Panel noted in its report, the use of explosives
detection dogs was a particularly effective means of finding explosives
concealed in the airport terminal building, on aircraft, in baggage and cargo,
and outdoors.64 A study conducted after the 1976 Olympic Games concluded
that a combination of an explosives detection dog and a search team was 92
per cent accurate in finding hidden explosives.65 The dogs did have limitations,
however, such as the requirement for rest breaks after 20 to 30 minutes of
searching, and the need for continual training and testing.66 Nevertheless, the
explosives detection dogs were a proven and well-used resource, with no match
to be found among the technological tools available at the time. Explosives
detection dogs were readily capable of locating such explosives as dynamite,
nitroglycerine, TNT, RDX, Semtex, DNT, and plastic explosives.67 Even today,
explosives detection dogs are an effective tool and are more affordable than
many of the sophisticated detection systems available.68
There were a small number of canine units available that were trained to identify
explosives at airports in Canada in 1985. Most of the teams were from the RCMP,
although some police forces also employed explosives detection dog teams.
The teams were principally used to search the terminal building and aircraft
for explosive devices during bomb threats, and to check unattended bags and
other suspicious packages left in the terminal building.69 An airline could also
call on the dog team if it found a suspicious piece of checked baggage.70 Finally,
the Panel noted that in the event a specific threat against a flight was received,
the entire plane would be emptied of both passengers and baggage, and the
dog would be brought in to sniff the baggage spread out on the tarmac.71
The threat of explosives concealed aboard aircraft or in the airport buildings
was becoming of increasing concern in 1985. Gary Carlson, who was an RCMP
Constable and dogmaster at Pearson airport between November 1983 and
November 1985, testified that, at the time of the bombing of Air India Flight
182, he and his dog, Thor, would answer approximately 100 calls a year to search
for explosives at the airport.72
63
64
65
66
67
68
69
70
71
72
Exhibit P-101 CAA0205.
Exhibit P-157, p. 25.
Exhibit P-101 CAC0517, p. 3.
Exhibit P-157, p. 25.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3016-3017.
Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5006. In comparison, the extensive flaws of the
PD4, the explosives detection device used by Air India on June 22, 1985, are explored in detail in
Section 2.3.3 (Pre-bombing), Over-Reliance on Technology.
Exhibit P-157, p. 25.
Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 2996.
Exhibit P-157, p. 25.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 2988-2989, 3005.
557
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On June 22, 1985, however, the RCMP explosives detection dog teams for the
detachments at Pearson73 and Mirabel74 airports were away at a training course
in Vancouver. In fact, all of the RCMP bomb dogs from across the country
were there. The RCMP and the Sûreté du Québec (SQ) had an arrangement to
supplement each other’s explosives sniffer dogs at Mirabel in case one was not
available. Pearson, on the other hand, had only one dog available in June 1985.75
The RCMP’s operational manual for major incidents, disasters and emergencies
at Pearson recommended that when the Pearson dog team was unavailable
and the use of an explosives detection dog was required, the Mirabel RCMP
team should be considered as a replacement.76 As the Mirabel team was also
unavailable, Pearson had no coverage on June 22, 1985.
Carlson also testified that there were no other dogs available to replace him
when he and his dog, Thor, left for the training course:
There was no other bomb dog in the area from Peel Regional
to Toronto Metro. Back in those days, Toronto Metro didn’t
even have dogs. So that was not a possibility and Peel Regional
did not have bomb dogs. They had four dogs and they didn’t
have bomb dog capability. So the only provision was then
set out through our policy that we would utilize hand search
teams and the use of Peel Regional Bomb Squad to assist
in any suspicious – or packages that might come up or any
package we deemed might be an explosive device.77
Carlson and Thor flew to Vancouver on the morning of June 21, 1985, just a day
before the bombing. Carlson agreed with the proposition put to him on crossexamination that Pearson was not as safe when he and Thor were absent.78
Searches for Explosives
Normally, Carlson was on call for the RCMP whenever suspicious packages or
bags were found, or an airline required additional assistance. Carlson testified
that he had been called to search the interior and contents of large planes like
the Boeing 747 before, giving the example of bomb threats that had been made
against Wardair flights in the 1980s. Carlson and Thor would be called in to check
the plane for explosives once it returned to the airport and taxied to a secure
zone.79 The emergency protocol required the passengers to be taken off the
aircraft and bused to a secure terminal.80 In following these protocols, Carlson
73
74
75
76
77
78
79
80
Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 2999.
Testimony of Serge Carignan, vol. 26, May 9, 2007, p. 2665.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 2989-2990, 3018.
Exhibit P-101 CAC0310, p. 16.
Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 3000.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3007, 3013.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3005, 3020.
This is discussed in detail in Section 4.3 (Pre-bombing), The Role of the “Specific Threat” in the 1985
Threat-Response Regime.
�Chapter V: The Day of the Bombing
would enter the aircraft and have Thor search the interior, while the ground
crews unloaded the luggage and the hand search team arranged the luggage
on the tarmac in a series of rows to facilitate the dog’s subsequent search of the
bags.81
Once he and Thor had finished searching the most likely locations in the interior
of the aircraft, which took approximately half an hour, they would proceed to
the luggage. Carlson would encourage and motivate Thor during the searches
by hiding “dummy” samples of explosives for the dog to find. While he and Thor
examined the baggage, the RCMP hand search teams would go aboard the
aircraft and finish searching the areas of the cabin that were less accessible to
the dog, such as the overhead cabins.82 Finally, the passengers would return and
claim their bags. Claimed baggage would be loaded back aboard the aircraft,
while unclaimed bags would be considered suspect and removed.
Carlson was asked how he and Thor would have conducted a search for explosives
if they had been at Pearson on June 22, 1985, and had been asked to search the
checked baggage for Air India Flight 181/182 in light of the failure of the X-ray
machine.83 He testified that, as outlined earlier, he would have required that the
flight’s luggage be unloaded from its containers for Thor to inspect. He said:
A flight of this magnitude, and I would assume a 747 would
have roughly 400 passengers on it, everybody carrying roughly
two pieces of luggage, with 800 pieces of luggage, that would
require a space of approximately three feet between each
piece of luggage for Thor to wind his way through. Utilizing
any air currents, all the detection, he’d be detecting any odours
coming out of these suitcases. So it wasn’t a matter that we
could go to the luggage cart and go through it, nor could we
utilize any air currents from a dog walking on the suitcase.
Often you see drug dogs being able to utilize that; the scent
comes out much better. So that wasn’t an option due to safety
reasons. He requires a lot more time. So we would have to find
an area that’s long enough for him to wind his way through,
working upwards of 100 to 125 bags at a time, and then he’d
be required to rest, which would take him say 20-25 minutes to
work that luggage, to do it thoroughly, and then he’d require
time to rest, and then he’d be able to do another say 125 bags
again.84
81
82
83
84
Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 3020.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3020-3021.
Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 3001.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3001-3002.
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When asked what would have happened had he been called knowing that a
large part of the baggage had been X-rayed, Carlson said he would not have
felt it necessary to search those bags and would have concentrated on the
bags that had not been scanned. Assuming 50 per cent of the bags had been
screened by security employees using the X-ray machine, with 50 per cent of
the bags remaining, he testified, “I’m guessing an hour-and-a-half to two hours
quite possibly, yes.” Carlson noted that the search would have taken even less
time if one assumed the plane was not completely full at Pearson, since it was
picking up more passengers at Mirabel.85 Carlson also said that he would have
had more time to search as a result of the delay caused while a fifth engine
pod86 was being mounted onto the wing of the aircraft.87
On cross-examination, Carlson further clarified that it would have taken him
“…less than 20 minutes” to examine the 60 to 70 pieces of baggage that were
estimated to have not been checked by X-ray.88
Hand Search Teams as a Replacement
Carlson agreed that, given that level 4 security measures were in effect at Pearson,
and that this called for the use of the dogmaster, additional steps would have
been necessary to minimize the security consequences of his absence.89 In the
absence of the Pearson explosives detection dog team, the options were to call
in the Mirabel team or, as prescribed in the RCMP operational manual, to use
“hand search teams”.90
Carlson testified that he and Detective Fred Lemieux of the Peel Regional Police
Force had trained a number of RCMP personnel to locate explosives devices, but
not to handle them or defuse them.91 The hand search teams would be available
to assist in searches during every shift if the need arose. They participated in
searches of the aircraft interior, and of suspicious packages. Carlson testified
that, in his two years at the airport, the hand search teams had never searched
the checked baggage for a flight.92
There was some confusion as to the precise role of the hand search team on the
part of one witness, but the evidence is that hand search teams did not open
checked baggage.93 Dale Mattson, Pearson’s Manager of Safety and Security in
85
86
87
88
89
90
91
92
93
In fact, 202 passengers boarded at Pearson for the flight to India, with the remaining 105 joining at
Mirabel. See Exhibit P-164, pp. 36, 43.
The aircraft had a lengthy delay at Pearson because of difficulties encountered in mounting a fifth
engine pod to its wing. The engine had failed on a prior flight and was being returned to India for
servicing. Several crates of engine parts were also loaded aboard. It took longer than expected
to complete the loading and installation.
Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 3002.
Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 3018.
Testimony of Gary Carlson, vol. 28, May 15, 2007, p. 3007.
Exhibit P-101 CAC0310, p. 16.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3023-3024. See also Section 4.6 (Pre-bombing),
RCMP Implementation Deficiencies in the Threat-Response Regime.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3000-3001.
This is discussed in Section 4.6 (Pre-bombing), RCMP Implementation Deficiencies in the ThreatResponse Regime.
�Chapter V: The Day of the Bombing
1985, testified that the hand search teams were, instead, special constables who
were trained to work in conjunction with the dog. Their job would be to arrange
the luggage for the sniffer dog to meander through in searching for explosives,
and to search the cabin of the aircraft. They would also be used in passengerbaggage reconciliation efforts, during which they arranged the luggage along
the tarmac to be identified by the passengers. As noted earlier, once the dog had
cleared the bags and passengers had claimed all their baggage, any unclaimed
baggage would then be removed. When asked whether the hand search teams
actually opened and searched luggage, Mattson replied, “No, they do not.”94
In the absence of the explosives detection dog, then, the hand search team
would be called upon only to search the interior of the aircraft and to line up the
checked baggage to be identified by the passengers,95 in a form of passengerbaggage reconciliation.96 As with other passenger-baggage reconciliation
systems, any unclaimed baggage would be treated as suspect.
Air India, conversely, had conducted manual searches of checked baggage in the
past. In June 1984, Air India was under threat of attack from Sikh extremists97 that
was very similar to the threat in June 1985. In response, the Station Manager at
Mirabel implemented physical searches of checked baggage for the next three
weekly flights. A sniffer dog was also called in for use and made available to
search for explosives hidden within the lockers, baggage, cargo, and aboard the
aircraft.98 Air India did not use X-ray machines for screening checked baggage
at that point, and it is sadly ironic that the allure of expedient searches, made
possible with technological tools, ruled out any apparent interest in conducting
the manual searches again. Chern Heed of the CATSA Act Review Advisory Panel
testified that searches of checked baggage conducted by carriers were timeconsuming undertakings,99 making the prospect highly unattractive, if quick
and easy methods (even if unproven or unreliable), such as X-ray machines and
PD4 explosives detection devices, were available.
Had Air India contacted the RCMP on June 22, 1985, seeking the assistance
of the explosives detection dog or the hand search team, and the RCMP had
agreed to provide the assistance of the hand search team in the absence of a
specific threat, good use could still have been made of their services. The act
of matching passengers to baggage alone would have singled out the bag
checked in at Vancouver International Airport by “M. Singh”. As an unclaimed
bag, it would have been treated as suspicious and handled accordingly.
Air India headquarters had recommended random physical searches of
checked baggage for the month of June 1985, and the airline was remiss in
failing to implement these searches at Pearson and Mirabel. The Commission
94
95
96
97
98
99
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3222-3223.
Testimony of Dale Mattson, vol. 29, May 16, 2007, p. 3250.
See Section 4.6 (Pre-bombing), RCMP Implementation Deficiencies in the Threat-Response Regime.
Exhibit P-101 CAF0161.
Exhibit P-101 CAF0161, p. 2.
Testimony of Chern Heed, vol. 36, May 30, 2007, p. 4340.
561
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heard evidence that manual searches of luggage would have been much more
effective if the inspection included the disassembly of electronic devices, given
that a search of bags might only reveal an apparently innocuous device such
as a stereo tuner that would not necessarily hint at the bomb hidden within.
Air India was, in fact, aware that explosives could be concealed in this manner.
It was already common in 1985 for terrorists to conceal bombs in seemingly
innocent electronic devices such as radios.100 An Air India telex dated April
22, 1985, warned about a threat from Sikh extremists and recommended that
special attention be given to cameras, electronic equipment and parcels during
searches of carry-on baggage, as explosives could be “cleverly hidden” within
them.101
Additionally, the statement of Dorothy Gilbert, the Burns International Security
terminal manager at Pearson, indicated that, in the spring of 1985, Ashwani Sarwal
had instructed her to ensure that the Burns employees were on the lookout for
unusual boxes and bags.102 She recommended that the Burns personnel actually
click the shutter release buttons of cameras as well as turn on all radios to ensure
that these worked and were not being used to conceal explosives. Sarwal liked
the idea, and the searches had been conducted accordingly for each flight in
the three weeks prior to the disaster. Had Air India instructed Burns Security to
open and search 25 to 30 per cent of its checked baggage as directed, it would
have been possible that even a well-hidden explosive device would not have
been overlooked. Although it would actually have been unwise to physically
test objects that potentially contained explosives, a search of checked baggage
by Burns personnel could have flagged suspicious items to be drawn to the
attention of the authorities.
Decision to Send All Explosives Detection Dogs Away at Once
On June 23, 1985, as news of the bombing of Air India Flight 182 reached a
stunned nation, Carlson and Thor were recalled back to Pearson.103 It is
regrettable that they were taken away from their duties at Pearson in the first
place.
Air India was under a heightened alert for the entire month of June, 1985. In fact,
it was under the RCMP’s second-highest alert level. MacDonald testified that in
light of the threat level in place, he would be “…very surprised if they then let
the dog go on training.” He did not feel that the team should have been sent
away under those circumstances, unless there was a backup dog available from
the local police force of jurisdiction, as was done with the SQ dog at Mirabel.104
Additionally, Air India only had flights out of Pearson and Mirabel once a week,
on Saturdays. Carlson and Thor departed for British Columbia on the morning
100
101
102
103
104
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4416-4419.
Exhibit P-284, Tab 50.
Exhibit P-101 CAF0801.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3011-3012.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, pp. 2875-2876.
�Chapter V: The Day of the Bombing
of Friday, June 21st, leaving the next day’s flight without any coverage. Carlson
testified that he would likely have informed his superior of the fact that he
would be attending the upcoming training conference sometime in the period
of one month to six weeks in advance, at a time when Air India was not under
such a heightened alert at Pearson.105 By the time the conference approached,
however, the security situation had changed considerably.
With the RCMP’s level 4 security measures in place at Pearson, it was necessary
to have an explosives detection dog available. It was unreasonable to send
the only available explosives detection dog away one day before the next Air
India flight. Although the dogs required continual training, the high alert set
for Air India’s operations at Pearson and Mirabel ought to have weighed heavily
against sending the dog teams away when there was no possibility of a backup
unit for Pearson.
Pearson’s RCMP detachment sent a telex to RCMP headquarters on June 23,
1985, advising that, in light of the bombing, the explosives detection team had
been recalled. The RCMP was also providing additional uniformed personnel
at the airport to deal with any suspicious persons at the check-in counters, as
well as to provide support to air carrier security personnel.106 The telex added
that the detachment was considering requesting the provision of a second
explosives dog team, and subsequent documents indicate that, by June 26, 1985,
that request had in fact been made, and the second explosives detection dog
was already being used at the airport.107 This raises the natural question: if the
training of one or more of the dog units could be suspended to meet emergency
needs after the bombing, why was it not done before the bombing?
In July 1985, the continuing tense security situation meant that the RCMP
explosives detection dogs were now frequently used; a report from Mirabel
stated that the volume of bomb threats and suspicious bags had reached the
point where the dog was fast approaching the limits of its ability to work.108 In
fact, the Airport General Manager wrote to Transport Canada headquarters and
stated that another dog would be required. He added that just one of eight X-ray
machines required for examining checked baggage had been delivered, and
that, in light of the circumstances, he required the additional units as soon as
possible. This is a good indication that the small number of explosives detection
dogs available in 1985 was not sufficient to meet the needs of civil aviation
security during periods of threat, and warranted the training and deployment
of additional dog teams to meet such needs and serve as backups in the event
that the threat level increased and existing teams were overtaxed.
Air India Did Not Request Searches
At a January 1985 meeting convened by Air India, Transport Canada and RCMP
officials met with Mahendra Saxena, Air India’s Senior Security Officer, to discuss
105
106
107
108
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3013-3014.
Exhibit P-101 CAF0557, p. 44.
Exhibit P-101 CAF0676, p. 3.
Exhibit P-101 CAF0687, p. 2.
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the airline’s pending operations out of Pearson. Saxena expressed great interest
in the use of an explosives detection dog for inspecting checked baggage, and
stated that Air India would like to have the RCMP explosives detection dog
examine Air India’s checked baggage prior to each flight. Mattson replied that
Transport Canada was not prepared to grant this request. He indicated that
the explosives detection dog could be used if Air India found a suspicious bag.
He added that if the dog did not detect any explosives, the police would still
open the bag. If the dog did detect explosives, it would likely be necessary to
evacuate the area.109
Air India’s security program called for the use of an X-ray machine at Pearson and
at Mirabel to examine checked baggage for explosives before any bags would
be loaded aboard their aircraft. Air India also employed an electronic explosives
detection device, the PD4, and used it as a backup if the X-ray machine was broken
or not available.110 Carlson was present at the January 18, 1985 demonstration
of the PD4 and witnessed the device’s remarkably poor performance.111 Carlson
and the other police officers present expressed their lack of confidence in the
effectiveness of the device to the Air India representatives present. Carlson
emphasized that he and his explosives detection dog Thor would be available
at any time to check all suspicious bags.
The next day, Carlson conducted an impromptu test while the PD4 was being
used by Burns International Security employees to screen checked baggage for
Air India’s first flight out of Pearson airport. It totally failed to detect a sample
of plastic explosives. Carlson offered his services and those of Thor to the
Burns personnel. In a statement made to investigators after the bombing, he
indicated that his orders were to comply with any Air India requests for the use
of the dog.112 Carlson was always eager to obtain work for Thor and gain as
much experience as possible. Despite his offers to help, Carlson was never asked
to assist with any Air India flights between its inaugural flight from Toronto on
January 19, 1985 and the day of the bombing.113
On June 22, 1985, at approximately 4:45 PM, the X-ray machine being used
by Burns personnel to search Air India’s checked baggage for explosives
malfunctioned.114 By the time of the malfunction, approximately 50 to 75 per
cent of the checked baggage had been examined by X-ray. John D’Souza, the Air
India Security Officer, learned of the malfunction while making his rounds. He
directed the Burns officers to use the PD4 to screen the remainder of the checked
baggage for explosives, providing only a cursory demonstration of its use.115
No bags were opened and searched manually, despite Air India headquarters
having specifically called for this measure to be taken for all flights in June,116
109
110
111
112
113
114
115
116
Exhibit P-101 CAA0118, p. 4.
Exhibit P-101 CAA0119, p. 1.
Exhibit P-101 CAC0268, p. 2.
Exhibit P-101 CAC0268, p. 2.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3006, 3019.
Exhibit P-157, p. 37.
Exhibit P-101 CAF0143, p. 3.
Exhibit P-101 CAA0185.
�Chapter V: The Day of the Bombing
and despite a spring 1985 warning from the Government of India to all Indian
airlines to be vigilant in applying anti-sabotage measures. In fact, the spring
1985 message specifically urged that 25 to 30 per cent of all checked bags be
opened and searched, even when X-ray machines were used for screening.117
There is no evidence that D’Souza requested the use of an explosives detection
dog or that he notified the RCMP of any difficulties with the X-ray machine. He
does not mention taking either action in his written statements for the RCMP
investigation after the bombing.118 D’Souza is now deceased.
There is some evidence that the PD4 may have reacted loudly to one bag
in particular.119 The Burns employees had never used the device before,
however, and their unfamiliarity with it meant that they were not in a position
to understand what the noises it made may have indicated. Although some
of the Burns employees stated that the device “beeped” at certain points, it
always made some noise, and such sounds required interpretation. Their lack
of experience rendered them incapable of appreciating that any noises from
the device could be significant warning signs. In any case, the bag in question
was cleared for loading aboard the Kanishka because it did not cause the PD4
to make the same loud, piercing noise that it had when D’Souza lit a match
to demonstrate how it worked.120 The Burns personnel did not mention this
bag until after the bombing, when RCMP investigators asked about Air India’s
checked baggage screening at Pearson.
Delays at Mirabel
When Air India Flight 181/182 arrived at Mirabel at 9:10 PM on June 22, 1985, it
was one hour and 25 minutes behind schedule.121 The delay was due primarily
to the mounting of the fifth engine pod to be returned to India for repairs.
Despite these delays, there was no thought given to using this additional time
in the high threat environment to conduct more rigorous searches of the bags
or to reconcile each bag to a travelling passenger. To the contrary, the focus was
to reduce the delay and minimize the expense of the additional fees that were
accruing to Air India.
D’Souza and another Air India official left Pearson and travelled to Mirabel aboard
Flight 181.122 On arrival, they were informed that three suspicious bags had
been found by Burns employees screening checked baggage by X-ray.123 None
of the passengers were called to come and identify the bags, even though this
response was called for by Air India’s security program.124 Additionally, no one
117 Exhibit P-101 CAC0419, p. 5.
118 See Exhibit P-101 CAF0093 and CAF0531.
119 See, for example, Exhibit P-101 CAF0159, p. 3. See also Section 2.3.3 (Pre-bombing), Over-Reliance on
Technology.
120 Exhibit P-101 CAF0159, p. 3.
121 Exhibit P-101 CAB0434, p. 4.
122 Section 1.11 (Pre-bombing), The Cost of Delay – Testimony of Daniel Lalonde, discusses the events at
Mirabel Airport on June 22, 1985.
123 Exhibit P-101 CAF0093, p. 4.
124 Exhibit P-101 CAA0118, p. 2.
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at Air India notified the RCMP about this discovery although Mirabel had an SQ
explosives detection dog unit available. By the time the RCMP were aware of the
suspicious bags, Air India Flight 182 had departed. There is evidence suggesting
that Air India’s concerns over the high costs and passenger inconvenience
incurred by delays were a factor in the decision to clear Air India Flight 182 for
departure without taking further security precautions.125
The SQ dog team arrived after the flight’s departure and examined the three
suspicious bags left off the plane. The explosives detection dog, Arko, did not
detect any explosives in the bags. Arko’s handler, Serge Carignan, has been
haunted by the tragedy. He testified that he believed that if he had been called
in earlier and given an opportunity to inspect the unaccompanied checked
baggage aboard Flight 182, that the bomb would have been found.126
Although Carlson should have been called in prior to each Air India flight from
Pearson during the month of June, 1985 to search the cabin of the Air India
aircraft prior to the flight’s departure, when asked whether he had been called
in for any of those flights during that month (when the level 4 security measures
that stipulated the dogmaster should be utilized were in effect), Carlson testified:
“I specifically remember not being required to be there for those flights.”127
Similarly, Carignan, who was the SQ dogmaster filling in at Mirabel on June 22,
1985, testified he had not been called in to search any Air India aircraft.128
Conclusion
It is not clear whether Air India personnel had been made aware of the absence of
the explosives detection dog from Pearson airport on June 22, 1985, or whether
this fact had any impact on the decision not to seek assistance from the RCMP
when the X-ray machine at Pearson failed. There can be no doubt, however, that
Air India should have given serious consideration to doing so. Air India wasted
a genuine opportunity to prevent the bombing by failing to take the prudent
actions that were called for in light of the severe threat the airline faced, such
as conducting manual searches of checked baggage and passenger-baggage
reconciliation. For its part, the RCMP did Air India a grave disservice by sending
its only available explosives detection dog away during a period of severe threat
to the airline.
5.3 Lack of Surveillance of Air India Aircraft
The heightened threat faced by Air India in June 1985 demanded constant
vigilance from Air India, Burns International Security, and the RCMP. The airline
had been directed by its head office to implement meticulously a stringent
list of anti-sabotage measures,129 and had requested, and received, additional
125
126
127
128
129
See, for example, Testimony of Daniel Lalonde, vol. 29, May 16, 2007, pp. 3122, 3129.
Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2669, 2671, 2678.
Testimony of Gary Carlson, vol. 28, May 15, 2007, pp. 3026-3027.
Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2671-2672.
See Exhibit P-101 CAA0185.
�Chapter V: The Day of the Bombing
assistance from the RCMP in protecting its aircraft and airport operations. Gary
Clarke, who in 1985 was in charge of Protective Policing at O Division in Toronto,
testified that the threat to the airline could not have been much higher that
June.130
Due to the threat of sabotage and hijacking, the physical protection and
surveillance of Air India’s aircraft were as important to the safety of each flight
as checked baggage security and pre-board screening. In fact, the emergency
procedures for Air India’s security program dictated that the aircraft should be
guarded around the clock.131 There is no doubt these emergency procedures
were applicable in June 1985,132 but they were not always observed. One example
of this faltering attention occurred on the evening of June 8, 1985, when the Air
India flight arriving at Pearson encountered engine trouble. The aircraft could
not continue its flight to Mirabel, so it was towed to an Air Canada hangar area
and left for 24 hours. For the entire period, the aircraft was left unguarded in an
area accessible to the public.133
Prior to the bombing of Air India Flight 182, the security awareness culture in
North America was marked by complacency.134 The incidence of hijacking had
greatly decreased since the 1970s and, although a new threat of sabotage had
clearly emerged, airport personnel were complacent about it. A pervasive feeling
that “it cannot happen here” flourished. The threat was at a peak in June 1985, but,
on the day of the bombing, the lack of focus and direction among those charged
with keeping Air India’s aircraft and passengers safe was still evident. Security
at Pearson airport was lax in many significant respects.135 One of the lapses
centred on the fact that many of those providing security at Pearson, as well as
at airports around the country, were inexperienced, inattentive, incompetent or
unfocused. What was missing was a purposive approach to providing security.
Many security guards and RCMP officers went through the routine of providing
security, without being focused on what they were guarding against or for what
they should be alert.
Brian Simpson was a student working full-time for Air Canada that summer
and, when reporting for work, on June 22, 1985, he saw the recently arrived
Kanishka. He testified that, as a cabin cleaner, he was driven by curiosity to go
aboard Flight 181/182 to see the condition of such a large plane after a long
international flight. He admitted that he was not supposed to be inside the
aircraft, and that he would not have approached the aircraft if he had seen
any RCMP officers or security guards nearby. He saw no one, however, and
emphasized that the relaxed security environment was such that there would
have been no repercussions or stigma had he been caught aboard the plane,
even by his own supervisor. Simpson testified that he approached the Kanishka
130
131
132
133
134
135
Testimony of Gary Clarke, vol. 28, May 15, 2007, p. 3085.
Exhibit P-284, Tab 48, p. 20.
Testimony of T.N. Kumar, vol. 37, May 31, 2007, p. 4406.
Exhibit P-101 CAC0439, pp. 3-4.
See Section 2.4 (Pre-bombing), Security Culture at Canada’s Airports.
This is discussed in detail in Section 1.9 (Pre-bombing), Mr. Simpson’s Visit to the Air India Aircraft.
567
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through the airside corridor, and that when he boarded the plane he saw no
one guarding the bridge door, or the main entry door of the aircraft, and he
saw no guards or other personnel inside the aircraft. He wandered about and
eventually visited the cockpit, where he took a seat in the captain’s chair. He was
aboard for approximately 10 minutes.136
Simpson saw nothing suspicious or out of the ordinary; he voluntarily reported
to the Commission about the events of that day, as he was critical of the very
lax attitude towards security at the time. He testified that the secure door
combinations were widely known, had not been changed in many years, and
were easy to figure out.137 He had even seen door codes for various bridge
doors written on the wall near the lock.
Simpson’s testimony was corroborated by a written statement from one of the
CP Air Flight Kitchens employees, Vincent Ezoua.138 Ezoua noted that, as he was
going upstairs to the first class area of the plane on the day of the bombing,
he saw a young man coming down the stairs whom he had never seen before.
Aside from Ezoua, however, no one present and providing security that day
noted any unauthorized persons. There were no systems in place for Air India
flights to record who boarded an aircraft or for what reason. If we accept the
argument that the Burns guards or RCMP members were present at the aircraft
door or the bridgehead, it is difficult to understand why he was not challenged.
Simpson stated that he often kept his pass in his pocket instead of displaying it
as required, yet was not asked for it. He had been questioned about his ID only
twice in the twelve years he worked at the airport, starting in 1973. He was not
assigned to work aboard the flight, and should not have been allowed aboard,
but he blended into the background and escaped notice.
5.4 Air India Personnel – Confusion about Duties
The action and inaction of Air India officials with respect to the high threat
level against the airline in June 1985, the malfunction of the X-ray machine at
Pearson airport on June 22, 1985, and the discovery of three suspicious bags
at Mirabel later that day, were events that were exacerbated by “organizational
chaos”139 within the airline’s reporting structure. The confusion is highlighted
in an RCMP investigative status report, dated January 6, 1986, which states, “A
number of discrepancies exist in the statements of Vaney and other senior Air
India personnel, and it appears that no airline employee was prepared to accept
the position and responsibilities of airport manager on the date in question.”140
Air India’s station manager for Pearson and Mirabel airports in 1985 was Ashwani
Sarwal. From the time Air India had begun operations in Canada in 1982, Sarwal
was the representative most frequently in contact with Transport Canada and
136
137
138
139
140
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3641-3643, 3645, 3649.
Testimony of Brian Simpson, vol. 32, May 23, 2007, pp. 3643, 3651-3652, 3677, 3691.
Exhibit P-395, p. 74.
Final Submissions of Raj Anand on behalf of Lata Pada’s group, paras. 38-45.
Exhibit P-101 CAF0537, p. 7.
�Chapter V: The Day of the Bombing
RCMP officials. He frequently forwarded security intelligence reports to both
agencies. On June 22, 1985, he was away on vacation.141 In his absence, a
number of Air India officials were present at both airports that day. Even today,
there is great confusion about who was ultimately in authority. It is clear from
the statements and testimony of those involved that few of the key Air India
employees were certain of their responsibilities or those of their colleagues, and
each made assumptions about what the others were doing. Once the bombing
occurred, blame was rapidly passed back and forth for decisions made that day,
and those involved denied that they were the ones responsible for, or capable
of, making the security decisions required.
Air India Organization
Rajesh Chopra, Air India’s Duty Officer at Delhi airport in 1985, testified that Air
India’s organizational structure in 1985 was roughly as follows.142 Ramesh Puri
was Air India’s Canadian Manager, supervising Canadian operations. He reported
to Air India’s Regional Manager in New York. Mahendra Saxena was Air India’s
Security Manager, based out of John F. Kennedy (JFK) Airport in New York. There
was no security manager in Canada. John D’Souza was an Air India Security
Officer who reported to Saxena. He was responsible for Air India’s flights out of
New York and the once-weekly flights from Canada. Aswhani Sarwal was the Air
India station manager for Mirabel; he was also responsible for Pearson airport.
Herb Vaney was Air India’s Area Sales Manager in Toronto. Divyang Yodh was Air
India’s Passenger Service Supervisor at JFK airport. He was on duty at Pearson
and Mirabel airports on June 22, 1985, replacing Sarwal.143 Derek Menezes was
the Air India Area Sales Manager in Montreal.144 Finally, Jainul Abid was the Air
India Traffic Manager and Sales Representative on duty at Mirabel airport on
June 22, 1985.145
John D’Souza
John D’Souza was on duty at Pearson and Mirabel on June 22, 1985.146 He provided
a written statement to the RCMP after the bombing in which he admitted he
had been assigned to supervise the security measures taken at Toronto for
Flight 181/182. In his capacity as Security Officer, he made the decision to have
Burns personnel use the PD4 to examine Air India’s checked baggage when the
X-ray machine at Pearson failed. He stated that he had asked Vaney whether it
was possible to have the machine repaired, and was told that, because it was
a weekend, no service would be available until the coming Monday.147 After
giving a cursory demonstration on the use of the PD4 to the Burns personnel
141 Exhibit P-167, pp. 6, 19.
142 Testimony of Rajesh Chopra, vol. 37, May 31, 2007, p. 4390; Testimony of Rajesh Chopra, vol. 43, June
14, 2007, pp. 5330-5332, 5335 and Testimony of Rajesh Chopra, vol. 89, December 5, 2007, p. 11730.
143 Exhibit P-101 CAF0442, p. 2.
144 Exhibit P-101 CAF0793.
145 Exhibit P-101 CAF0092, p. 3.
146 Exhibit P-101 CAF0531.
147 Exhibit P-101 CAF0531, pp. 2-3.
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at Pearson, D’Souza then travelled to Mirabel aboard Flight 181. There, he was
met by Abid, who informed him of three suspicious bags that had been found
by Burns personnel.148 It was D’Souza who decided that the bags would not
be loaded aboard the flight and, according to the testimony of Daniel Lalonde,
made the decision to clear the flight for departure because of his concern over
the high costs incurred by the growing delay.149
In his written statement to the RCMP, however, D’Souza indicated that it was
Vaney who was ultimately in charge of Air India’s operations as the station
head on June 22, 1985.150 Moreover, with respect to the three suspicious bags
incident at Mirabel, D’Souza minimized his role in the decision to clear Air India
Flight 182 for departure without notifying the RCMP or having the passengers
deplane to identify the suspicious bags. He stated that the decision to allow the
plane to take off was made jointly by Abid, Yodh, Thimiri Rajendra (the Air India
engineer who supervised the installation of the fifth engine pod), and the Air
Canada duty officer and his staff. D’Souza emphatically disavowed any personal
responsibility for the decision, insisting that he felt that, even before he had
arrived at Mirabel and assessed the situation, the decision to clear the flight had
already been made. D’Souza stated that he believed Abid had made up his mind
not to conduct any searches for explosives or hold up the flight any further since
the flight was so delayed.151 This should be contrasted with Lalonde’s testimony
that D’Souza was very concerned about the expenses incurred by the delayed
flight, and his decision to clear it for departure in light of those concerns.152
D’Souza also made no attempt to contact the owners of the bags and have the
bags identified because they were already on their way to the aircraft, “…and
could not have been brought back easily.”153 This statement is problematic in
light of the following facts. D’Souza’s statement would only be accurate if he
and Yodh had not heard about the suspicious bags until after the passengers
had already departed for boarding. In fact, Abid indicated in his statement
that, after the aircraft had arrived at Mirabel (or was “on block”), he and Yodh
accompanied the passengers to Air India Flight 182 aboard a passenger transfer
vehicle (PTV). This is important because Yodh, who had come up from New
York and arrived on the Air India flight from Pearson with D’Souza, was present
when Abid advised D’Souza of the suspicious bags at the Air Canada counter.154
As such, it can only be the case that the passengers boarded the aircraft after
Yodh and D’Souza had arrived and spoken with Abid at the Air Canada counter.
D’Souza therefore knew of the suspect bags before the passengers were sent to
the aircraft aboard the PTV.
148
149
150
151
152
153
154
Exhibit P-101 CAF0093.
See, for example, Testimony of Daniel Lalonde, vol. 29, May 16, 2007, pp. 3122, 3129.
Exhibit P-101 CAF0531, p. 5.
Exhibit P-101 CAF0093, pp. 13-14.
See Section 1.11 (Pre-bombing), The Cost of Delay – Testimony of Daniel Lalonde.
Exhibit P-101 CAF0093, pp. 4-5.
Exhibit P-101 CAF0092, pp. 4-5.
�Chapter V: The Day of the Bombing
Chopra testified that between D’Souza and Yodh, D’Souza was responsible for
the security side of Air India’s operations. Yodh, as the acting airport manager,
was ultimately responsible for the decision to release the aircraft for departure,
but this decision required the approval of D’Souza as the security officer.155
D’Souza acknowledged in his written statement that he had the authority to
recall the aircraft and could have done so if he believed there was anything
harmful aboard. In spite of the suspect suitcases and the strict security measures
that he had been asked to implement for the month of June, D’Souza did not
recall the aircraft because he had no suspicion that there was anything harmful
on the flight.156 Given the events at the airports that day and the prevailing
security conditions, it is difficult to comprehend how he could have had no
suspicion of potential danger to the aircraft or its passengers.
D’Souza is no longer alive to provide clarification. The fact remains that he did
not take any steps to have the passengers identify their bags, and his explanation
for his failure to do so is inconsistent with the evidentiary record.
Herbert Vaney
Herbert Vaney was Air India’s Area Sales Manager for Toronto in 1985. He
reported to Puri.157 The statement Vaney provided to the RCMP gave an entirely
different account of Air India’s hierarchy on the day of the bombing. According
to Vaney’s statement, no one employed by Air India reported to him that day.
He stated that they would instead report to the acting airport manager, namely
Yodh. Vaney was clear in asserting that Yodh was in charge at Pearson airport
that day.158 In his testimony, Vaney again disputed the statements made by
the other Air India representatives that he was in authority on the day of the
bombing. Vaney testified that he was normally preoccupied with his duties in
sales, which he described as promoting tourism to India, as well as “…trying to
obtain business in the Indian community and the general administration of the
Toronto office.”159
Vaney contradicted Yodh’s 1985 written statement that he (Vaney) was in charge
on June 22nd and had the final say on security decisions.160 Vaney also disputed
the assertion, made by Air India Traffic Sales Representative Rui Filipe de Jesus in
his 1985 written statement, that Vaney was the individual “overall in charge” that
day.161 Vaney reiterated that he had nothing to do with security decisions.
According to Vaney, he did not deal with security information as part of his duties,
although in the spring of 1985 he forwarded a number of reports regarding
155
156
157
158
159
160
161
Testimony of Rajesh Chopra, vol. 89, December 5, 2007, pp. 11730-11731, 11733-11734.
Exhibit P-101 CAF0093, p. 14.
Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11625.
Exhibit P-101 CAF0533, p. 5.
Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11624.
Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11666.
Exhibit P-101 CAF0530.
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Air India’s security to different Canadian agencies. His testimony was that he
had a very passive role in security matters when they arose, describing himself
as merely a “conduit” of threat information.162 He indicated he had standing
instructions from Saxena to forward threat information to the concerned
agencies. Although Vaney indicated he had been provided with a standard list
of addressees,163 his correspondence was not routed consistently, and it seems
more likely that he would forward the threat reports on a case-by-case basis.164
Vaney represented Air India at a number of meetings discussing security for
the airline. Vaney testified that he attended these meetings whenever he
was told to, but did not believe it was a part of his duties to attend securityrelated meetings that were held in Toronto.165 He attended the meeting held
on January 18, 1985 with members of Transport Canada, the RCMP and the Peel
Regional Police Force to discuss Air India’s security requirements for its flights
out of Pearson, and to demonstrate the PD4 explosives detection device. 166
The PD4 performed poorly during the demonstration, and the police officers
present indicated to Sarwal and Vaney that they did not feel Air India should
rely on it to search checked baggage. Although he did not dispute that he was
there, Vaney did not recall being at the January 18, 1985 demonstration of the
PD4 sniffer, and did not recall any discussion about the efficacy of the device.167
Vaney oversaw some matters at the airport as well. When the X-ray machine
used by Air India to screen checked baggage malfunctioned on June 8, 1985,
Vaney obtained service from Corrigan Instrumentation Services, and sent a
telex to Puri to follow up on their telephone conversations and advise him of the
technician’s findings.168 He stated that the foot mat on the X-ray machine had
four breaks in its electrical wiring and the wiring would need to be replaced. He
advised Puri that he had authorized the repairs to ensure that the X-ray would
be ready for the next flight on the coming Saturday.
Vaney was at Pearson airport on June 22, 1985, when the checked baggage X-ray
machine again malfunctioned during the examination of baggage destined for
Flight 181/182. Vaney recalled in his testimony that D’Souza approached him and
Yodh at the airport to inform them of what had happened. D’Souza confirmed
that there was no one available to service the machine on the weekend. Vaney
testified that he would not have taken part in any discussion about security or
what to do next. He only recalled that D’Souza informed Yodh and himself of
the malfunction, and that D’Souza indicated he would have the remainder of
the checked baggage screened with the PD4.169 There was no discussion at that
time of the PD4’s considerable limitations, and both D’Souza and Yodh were
very matter-of-fact about the situation.
162 Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11632.
163 Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11632.
164 The erratic distribution of such information from Vaney’s office is discussed in detail in Section 4.4 (Prebombing), Failures in Sharing of Information.
165 Testimony of Herbert Vaney, vol. 89, December 5, 2007, pp. 11628-11630.
166 This is highlighted in Section 2.3.3 (Pre-bombing), Over-Reliance on Technology.
167 Testimony of Herbert Vaney, vol. 89, December 5, 2007, pp. 11651, 11687-11688.
168 Exhibit P-284, Tab 61.
169 Testimony of Herbert Vaney, vol. 89, December 5, 2007, pp. 11651-11656.
�Chapter V: The Day of the Bombing
Vaney also attended a meeting convened by the RCMP on May 30, 1985. The
meeting was called to discuss the security measures that would be required
in light of the string of telexes forwarded by Air India. But Vaney did not recall
being there and indicated that this was not his usual function.170
It is unclear why Vaney, if his evidence is accurate, was involved in security
matters for Air India at all. He testified that he was not regularly briefed on
security, and was not familiar with Air India’s security program or its current
security measures.171 He also did not follow up with the agencies to ensure that
appropriate action was being taken. When asked why he was being directed to
forward threat information to the authorities, given that it seemed to be more
properly Sarwal’s role, Vaney replied:
Oh, he would probably do it also. You have the [Toronto]
station over here, an administrative function and in this case,
during that period, I guess more was better than less.… Why
one would pass it on? I see nothing wrong with it. This is part
of the task, the administrative task one has to do.172
Some Air India officials may have assumed that Vaney had a more active role
in airport matters, however, and may even have expected him to take on a
leadership or managing role. For example, Vaney sent a telex to Air India’s New
York office on June 18, 1985, indicating that he had learned that Sarwal, who
managed the flights at Pearson and Mirabel each week, would be away.173 Sarwal
would thus be unavailable for the June 22nd flight, and Vaney requested that
someone be assigned to fill in as the airport manager for that flight. Although
he received a reply on June 20th from a Mr. Misra indicating that Yodh would be
arriving to handle the June 22nd flight, he also received a reply on June 21st from
N. L. Mital, the New York-based Regional Director for the US and Canada, which
conveyed apparent frustration with Vaney’s request:
Vaney as advised earlier please confirm that you are attending
our flight every Saturday at airport. Furthermore I personally
feel that it is not necessary for us to send a supervisor from
JFK every Saturday. We commenced operations to Pearson on
January 19, 1985 and you now should be fully conversant with
airport handling/procedures, etc. If you still feel unsure then
I would be happy to arrange for you to come down to JFK for
two or three days and get a suitable briefing from Mr. Misra to
help you in handling the one flight a week which you have.174
170
171
172
173
174
Testimony of Herbert Vaney, vol. 89, December 5, 2007, pp. 11629-11630.
Testimony of Herbert Vaney, vol. 89, December 5, 2007, pp. 11646-11647.
Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11644.
Exhibit P-101 CAF0533, p. 9.
Exhibit P-101 CAF0533, p. 8. Note that the text of the telex is abbreviated in some places (e.g. “PLS” for
“please” and “ACK” for “acknowledge”) and the quoted passage has been rendered in plain language.
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In fairness to Vaney, he was not trained in security procedures and was kept
very busy with sales in Toronto. He testified that 75 per cent of Air India’s 1985
Canadian sales revenue came from the Toronto market.175 Vaney maintained
that his duties at the airport were confined to sales, promotion, public relations
and general administrative duties. Chopra described Vaney’s duties similarly.176
Vaney testified that it was his opinion that Mital was asking him to go to the
airport to engage in public relations work for the flight,177 although this seems at
odds with the tone and content of Mital’s message. Indeed, Vaney testified that
Mital’s remarks with respect to “airport handing/procedures” actually referred to
the duties normally assumed by the airport manager. This suggests that Mital
believed there was no need to send someone to replace Sarwal because he
expected that Vaney was, by that point, “fully conversant” with the procedures.
After the bombing, Vaney’s role continued to involve more duties than merely
sales, public relations, and office administration. For example, he requested
a report from Corrigan Instrumentation Services, the company that provided
maintenance for the X-ray machine at Pearson, regarding its malfunction on the
day of the bombing.178 This again suggests Air India’s personnel based in Canada
would take on multiple roles as needed.
What can be concluded with respect to Vaney is that, even though his duties
were focused on sales and promotion rather than airport operations or security,
he was asked, and expected, to do more. The Air India officials outside Canada
in all likelihood viewed him as a Toronto-based counterpart to Sarwal. Air
India apparently expected him to juggle competing priorities and fill multiple
roles, despite the fact that he had little practical knowledge of the demanding
security requirements for Air India’s flights. Conversely, Vaney maintained that
his understanding was that he was not in a position of final authority on June
22, 1985, and that Yodh was filling in as airport manager.
These conflicting expectations are good examples of the organizational
confusion within Air India as it strove to meet the heavy operational burden of
expanding its services to a second major Canadian city.
Divyang Yodh
The statements given by Divyang Yodh to the RCMP investigators after the
bombing provide yet another perspective on the organizational question.179
Yodh indicated that he did not ordinarily work on the Toronto-Mirabel-Delhi
flight. He was a passenger service agent from New York, and he replaced Sarwal
at Pearson on June 22, 1985 because Sarwal was away on vacation. According to
Yodh, however, his duties were limited to addressing “…any last minute problems
which the crew may have regarding passengers, and traffic handling.”
175
176
177
178
179
Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11674.
Testimony of Rajesh Chopra, vol. 43, June 14, 2007, p. 5330.
Testimony of Herbert Vaney, vol. 89, December 5, 2007, p. 11660.
Exhibit P-101 CAF0529.
Exhibit P-101 CAF0442 and CAF0795.
�Chapter V: The Day of the Bombing
Despite the fact that he was at Pearson and Mirabel to replace Sarwal, he stated
that he was nevertheless not in charge at Toronto, and that he answered to
Vaney.180 When asked who from Air India was performing Sarwal’s duties on that
day, Yodh replied that he did not know. He reiterated his belief that Vaney was
responsible for Air India’s operations in Toronto on that day, and stated that if
he had any problems at Mirabel, he would discuss them with Derek Menezes,
who he stated “…was the senior man at the Mirabel airport.”181 He was clearly
unwilling to accept having any position of responsibility with respect to Air India
Flight 181/182. In fairness, an RCMP overview of the various accounts from the
Air India officials suggested that it was possible that when he was told to go
to Toronto, Yodh had not been told he would be filling in for Sarwal as airport
manager, and instead assumed he would perform the duties he had performed
in the past.182
Jainul Abid
According to the statement made by Jainul Abid to the RCMP, he was on duty on
June 22, 1985 at Mirabel as Air India’s Traffic and Sales Representative. In addition
to sales, his responsibilities included preparing boarding passes, supervising
the check-in counter, allocating seats for pre-arranged seating, updating meal
information, attending to VIPs and supervising the flight’s loading plan for
baggage and cargo. He also assisted Yodh, who he stated was in charge of the
departure of Flight 182.183
At approximately 8:30 PM, Abid was informed by an Air Canada representative
that the contents of three checked suitcases could not be identified on the
X-ray machine being used by Burns Security in the baggage area, and that they
were, accordingly, being treated as suspicious. Abid decided to wait for Yodh
and D’Souza to arrive at Mirabel and let them take any action that was needed.
Abid informed Yodh and D’Souza about the situation when they arrived at the
airport, but, to his knowledge, neither Yodh nor D’Souza reported to the police
or airport officials about the three suspect cases containing unidentifiable
objects.184 Abid himself did not advise the RCMP185 or any other officials about
the three suspect suitcases.186
In his testimony about the events at Mirabel on June 22, 1985, Abid stated that,
normally, he worked at Air India’s offices in downtown Montreal conducting
sales, but went to Mirabel once a week to fulfill traffic duties for each flight.
When the three suspicious bags were found, Abid was the only Air India
representative at the airport.187 In keeping with the multi-tasking environment
seemingly expected of Air India officials, Abid testified that in the absence of
the other officials, he would perform their tasks in addition to his own until they
arrived.
180
181
182
183
184
185
186
187
Exhibit P-101 CAF0442, p. 2.
Exhibit P-101 CAF0795, pp. 2-3.
Exhibit P-101 CAF0802, p. 1.
Exhibit P-101 CAF0092, p. 3.
Exhibit P-101 CAF0092, pp. 5, 7.
Exhibit P-101 CAE0249, p. 8.
Testimony of Jainul Abid, vol. 89, December 5, 2007, pp. 11719-11721.
Testimony of Jainul Abid, vol. 89, December 5, 2007, pp. 11694-11695.
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Abid acknowledged that Sarwal’s absence added some confusion to the
handling of the flight, however, and that he was not certain about precisely
what would be expected of him until the others arrived. He did not take any
action with respect to the suspicious bags other than having them held off the
aircraft. He believed that Burns security would handle the matter appropriately
until D’Souza arrived. He told the Commission that Yodh also mentioned “in
passing” that the X-ray machine at Pearson had malfunctioned.188
Abid professed no part in the decision to hold the bags off the flight without
having them identified by the passengers or in the decision to clear the flight
for departure before the authorities were notified. In particular, he rejected
the assertion made in D’Souza’s written statement that he had any part in
the decision to allow Flight 182 to depart.189 He reiterated that, as the station
manager that night, Yodh was the decision-maker. According to Abid, his only
involvement was to confirm the passenger head counts and confirm that there
were not any “no show” passengers at Mirabel.
Abid also disputed D’Souza’s assertion that he had made up his mind not to
search the aircraft even before D’Souza had arrived at Mirabel. Abid’s view of the
Air India hierarchy at Mirabel was that Yodh had final authority over the flight,
and D’Souza was responsible for all security decisions concerning the flight. He
believed that it would have been up to D’Souza to notify the RCMP or Transport
Canada about the situation. As far as his own place in Air India’s reporting
structure, Abid repeatedly denied that he had any role in the decision-making
process. In essence, his testimony was that he was told what to do by the airport
manager, and he did it.190
Ashwani Sarwal
Ashwani Sarwal’s statement provides some clarification. It indicated that Yodh
was filling in for him at Mirabel, along with the Air India Area Sales Manager
at Mirabel, Menezes. When asked by the RCMP who the “boss” was at Pearson
airport on June 22, 1985, Sarwal replied “Mr. Vaney.”191 This may mean that Vaney
was in charge at Pearson, while Yodh, who flew to Mirabel with D’Souza, may
have been the acting manager in conjunction with Menezes at Mirabel. This
is a speculative scenario but it is one that makes some sense of the conflicting
evidence.
Sarwal also stated that security supervision was not a part of the airport
manager’s duties, and that this was the responsibility of Air India’s local security
officer. On the Air India flights to Mirabel and Delhi on June 1 and 15, 1985, the
security officer was a Mr. Polanki.192 On June 22, 1985, the security officer was
John D’Souza.
188
189
190
191
192
Testimony of Jainul Abid, vol. 89, December 5, 2007, pp. 11696-11697, 11704-11710.
Testimony of Jainul Abid, vol. 89, December 5, 2007, pp. 11699-11701.
Testimony of Jainul Abid, vol. 89, December 5, 2007, pp. 11701-11702, 11711-11712.
Exhibit P-101 CAF0534, pp. 4-5.
Exhibit P-101 CAF0534, pp. 6, 8. The Air India flight on June 8, 1985 did not proceed to Mirabel because
of an engine malfunction that resulted in the engine being removed and loaded aboard Flight 181/182
on June 22, 1985.
�Chapter V: The Day of the Bombing
Derek Menezes
Just as Vaney was the Area Sales Manager at Toronto, Derek Menezes was Air
India’s Area Sales Manager for Eastern Canada at Montreal. According to his
1985 statement to the RCMP, Menezes stated that Yodh was replacing Sarwal
as airport manager at Mirabel for the June 22, 1985 flight. Menezes stated
that Yodh was responsible for traffic handling for the flight, which comprised
the check-in of passengers and baggage, the loading of baggage, cargo and
mail onto the aircraft, as well as approving the load and balance charts that
indicated the weight distribution in the aircraft, and, finally, for overseeing the
catering service. According to Menezes, security matters for the flight were the
responsibility of the security officer, D’Souza.193 Menezes added that, to the best
of his knowledge, a security decision made by the security officer could not be
overridden by the airport manager.
As for his own role, Menezes stated that he was present at the airport for a purely
public relations function, as well as to provide assistance to Yodh.194 He stated
that he was completely unaware of the three suspicious bags that had been
found by Burns personnel on June 22nd, and he did not go into the baggage
handling area or aboard the aircraft.
Conclusion
Despite the confusing and often contradictory information regarding Air India’s
organization in the spring of 1985, a basic picture emerges as to the most likely
organizational structure that existed on June 22, 1985 – or, at least, as to the
structure that was intended. Air India seemed to believe that Vaney was a
capable substitute for Sarwal as airport manager in Toronto. His duties were
certainly broader than sales and public relations, and he often filled a role
played by Sarwal, such as attending security meetings and forwarding threat
intelligence to Canadian authorities. Moreover, the correspondence from Mital
at New York indicates that much was expected of him. Nevertheless, at Vaney’s
request, Yodh was sent to assist him at Pearson in Sarwal’s absence.
D’Souza was in charge of security operations at both Pearson and Mirabel, and
although he answered to the airport manager, he evidently made the security
decisions regarding the use of the PD4 and the handling of the three suspicious
bags, and his concurrence seemed to be essential for other major decisions,
such as the decision to clear Air India Flight 182 for departure.
When the Kanishka departed Pearson airport on the evening of June 22, 1985,
D’Souza and Yodh were aboard. Vaney remained at Pearson. On arrival at Mirabel,
D’Souza continued his duties as security officer. Yodh, now in conjunction
with Menezes, oversaw the operations for the final leg of the flight as airport
manager.
193 Exhibit P-101 CAF0793, pp. 2-3.
194 Exhibit P-101 CAF0793, p. 3.
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Nonetheless, Air India’s reporting structure was poorly defined and confusing.
While it is possible that some of the confusion is the result of various attempts
to deny any of the blame for the poor decisions made on June 22, 1985, the
evidence suggests that the Air India officials present that day were unclear as
to who was actually in charge. The RCMP investigators who interviewed the Air
India representatives even considered the possibility that “…it may well be that
no one was acting in this capacity [as airport manager] on 85-06-22 through
poor communication and/or misunderstanding of the assigned duties.”195
The Air India representatives were expected to fill multiple roles as needed, and
this led to increased confusion as to the final lines of authority. In that confused
state, the airline’s officials were unwilling to accept any of the responsibility or
the blame for the poor security decisions made that day, and in the aftermath
of the tragedy, they further clouded the picture in their efforts to absolve
themselves and spread the responsibility to others.
5.5 Breakdown of the X-ray Machine and Use of the PD4
Owing to the risk of sabotage that Air India faced because of increased Sikh
extremist activity and worrisome intelligence reports, particularly since the
attack on the Golden Temple in June 1984, Air India’s security program required
that its checked baggage be searched prior to loading onto the aircraft. This
was to minimize the risk of a concealed explosive device making its way onto a
flight.196 Air India relied upon Burns Security personnel at Pearson and Mirabel
for these searches.
Air India’s backup for the X-ray machine was the Graseby Dynamics PD4-C
(PD4) explosives detection device, a hand-held electronic unit that examined
air samples for explosive vapours. The PD4 was supplied by Air India and it was
under its control when not in use.197 Security personnel would pass the device
along the seam of a piece of luggage and the device would, in principle, make
a loud, high pitched noise if it detected explosive compounds. Prior to relying
on the X-ray and PD4, however, Air India responded to bomb threats by simpler
but more time-consuming methods, such as manually opening and searching
each article of checked baggage before it would be loaded onto the aircraft.
Air India had done so with success on prior occasions, including three flights in
June 1984.198
The PD4 was a flawed device that should not have been relied on to detect
explosives under any circumstances.199 Tests conducted by the RCMP200 revealed
that the PD4 was unreliable and inadequately sensitive for the critical role it was
expected to play in Air India’s security. Two Air India officials, Ashwani Sarwal and
195
196
197
198
199
200
Exhibit P-101 CAF0802, p. 1.
Exhibit P-101 CAF0119.
Exhibit P-101 CAF0801, p. 3.
Exhibit P-101 CAF0161, p. 2.
This is discussed extensively in Section 2.3.3 (Pre-bombing), Over-Reliance on Technology.
Exhibit P-101 CAC0268, p. 2.
�Chapter V: The Day of the Bombing
Herbert Vaney, were present at one demonstration. After witnessing the poor
performance of the PD4, the RCMP cautioned Air India against the use of the
PD4.201 Nick Cartwright testified that laboratory tests conducted by the RCMP
also indicated that it was unreliable and unsuitable for use.202 Another expert,
Timothy Sheldon, concluded in 1988 that it was not effective as anything other
than a deterrent.203 While it could charitably be said about the PD4 that using it
when the X-ray malfunctioned or was unavailable was “…certainly better than
not doing anything,”204 in reality it was appreciably worse because it imparted a
false sense of security.
When the X-ray machine malfunctioned at Toronto airport on June 22nd, the Air
India security officer, D’Souza, instructed the Burns personnel to use the PD4
sniffer, despite the fact that Air India was aware of the device’s shortcomings in
detecting explosives.205 Air India did not notify the RCMP or Transport Canada
of the failure of the X-ray machine, or of their decision to use the PD4 to screen
the remaining checked baggage. The Air India flight was running over an hour
late, and there is evidence that D’Souza’s decisions that day were the result of
a focus on avoiding any further expensive delays.206 The flight was being held
up due to a series of difficulties encountered in loading engine parts into the
aircraft’s cargo hold and mounting a fifth engine on its wing. The engine and its
components were to be taken back to India for repairs.
D’Souza had demonstrated the PD4 in a cursory fashion by holding a lit match
near the device, causing it to react by making a loud, shrill noise. As noted
above, the Burns security officers were not otherwise experienced with the
PD4, and did not realize that its alarm sound varied in pitch depending on the
concentration of explosive vapour detected.207
There are conflicting accounts of what happened once the X-ray scanner failed
and Burns security personnel began using the PD4 sniffer to inspect checked
baggage. After the bombing, James Post, the Burns employee who used the
PD4, stated that the PD4 did not react to any baggage, but that it made a “beep”
when switched on and off.208 Other Burns personnel who were present told
RCMP investigators that the PD4 did react to a bag by making noise, but that the
bag was put aboard the aircraft anyway.209 The Burns employees’ unfamiliarity
with the PD4 and its inherent unreliability meant that any opportunity to avert
the bombing by examining checked baggage was squandered when its use was
authorized. A much more effective technique, known as passenger-baggage
reconciliation, involved linking each bag to a passenger travelling on the aircraft
201
202
203
204
205
206
207
208
209
Exhibit P-101 CAA0369, p. 2.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5108-5109.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 30.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5152.
Exhibit P-101 CAF0531, p. 3.
See Section 1.11 (Pre-bombing), The Cost of Delay – Testimony of Daniel Lalonde.
Exhibit P-410.
Exhibit P-101 CAF0156, p. 2.
Exhibit P-101 CAF0159, p. 3.
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before it was loaded aboard. 210 This was a time-consuming method, but it was
without doubt the single most effective means of identifying an unaccompanied
checked bag, such as the one carrying the bomb that destroyed Air India Flight
182. Such a system might well have segregated the bag carrying the bomb, as
no passenger would have been associated with it.
After the bombing, the cause of the X-ray machine’s failure was not fully
determined, but the most likely reason was that the device was moved back and
forth each week as Air India prepared for the Saturday flight. This movement
was criticized as “unwise at best” by the president of the company that serviced
the X-ray machine.211
Air India relied on technological tools like X-ray machines and PD4 sniffers to
speed the screening process for checked baggage despite having good reasons
to doubt their reliability and effectiveness. When the X-ray machine failed, Air
India’s security officer opted to have the remainder of the baggage screened by
PD4 rather than by slower but more effective methods like passenger-baggage
reconciliation. A theme that repeats throughout this Report is that Air India was
overly concerned with the expenses and customer inconvenience caused by
delay. It was not alone in this regard; many air carriers in North America placed
customer satisfaction ahead of security in this period.212 The bombing of Air
India Flight 182 was the tragic wake-up call for an entire industry.
5.6 Handling of the Three Suspect Bags Incident at Mirabel
Daniel Lalonde, who worked for Burns International Security at Mirabel in 1985,
was assisting with the examination of checked baggage by X-ray on June 22nd.
Lalonde testified that, during the screening process, three bags were flagged as
suspicious because their contents could not be identified on the X-ray image.
This suggested that they might contain explosive devices. Lalonde was present
when the suspect bags were found. He had no idea of who should be contacted
or what to do in the case of the discovery of suspicious checked bags. He had
received only limited training, and that was only in the context of carry-on
baggage.213
When Abid, the Air India representative on duty, was informed of the bags, he
had the three bags held off the flight and did nothing further. Two more Air
India representatives, Yodh and D’Souza, would be arriving aboard Flight 181
from Pearson, and Abid decided to leave the matter up to D’Souza, Air India’s
security officer. Air India’s security program required it to take specific action
when suspicious bags were found. The passengers would have to be called off
the plane to identify and open their bags; if the passengers could not be located,
210
211
212
213
Section 2.3.3 (Pre-bombing), Over-Reliance on Technology, describes this process in detail.
Exhibit P-101 CAF0529, p. 3.
Exhibit P-157, p. 72.
Testimony of Daniel Lalonde, vol. 29, May 16, 2007, pp. 3120, 3136, 3139. Lalonde’s observations and
testimony are discussed in greater detail in Section 1.11 (Pre-bombing), The Cost of Delay – Testimony
of Daniel Lalonde.
�Chapter V: The Day of the Bombing
then the RCMP would have to be contacted and an explosives detection dog
brought in to examine the bags. No one at Air India took either of these steps
that evening.214
The written statement of Serge Goyer, an Air Canada employee who had been
informed of the suspicious bags, stated that he had advised Abid to contact
the RCMP about them. When Abid did not do so, Goyer contacted the RCMP
himself at 10:00 PM and advised them about the three bags.215 It was too late
for the RCMP to assist, however, as within minutes of the call to the RCMP, Air
India Flight 182 was airborne.216 An RCMP officer, Special Constable Guy De La
Boursodière, responded to the call at approximately 10:10 PM and went to the
baggage room only to find, to his surprise, that the three suspicious bags –
which at that point were still believed to potentially contain explosive devices
– had been left unattended.217
RCMP Sgt. J. Normand Leblanc learned of the three suspicious bags from De
La Boursodière, and he also went to the Air India baggage area.218 Leblanc and
De La Boursodière met Lalonde when he returned shortly afterwards. They
requested the presence of an Air India representative, and were told that the
security officer could not attend immediately.219 At approximately 10:25 PM,
D’Souza and Abid arrived.220 The bags were run through the X-ray machine again
and, as the images remained ambiguous, Leblanc asked D’Souza to have the
bags identified by their owners. It was at that point that he was informed that
the plane had already departed. Leblanc asked why the RCMP had not been
advised of the suspicious bags much sooner, but he received no answer from
either D’Souza or Abid. Leblanc decided not to have the plane recalled to the
airport, however, as the suspicious bags were not aboard and they were aware
of no other danger to the plane.221 There was no discussion at this point of the
failed X-ray machine at Pearson or the use of the ineffective PD4 for examining
the checked baggage there.
The RCMP contacted the SQ dog handler, Serge Carignan, and requested that
he and his explosives detection dog, Arko, come to the airport to examine the
suspicious bags. The dog checked the bags with negative results. Carignan has
been haunted by the bombing, and testified that he believed that he should
have been called to search the baggage before the aircraft departed. When
asked what he thought would have happened had he and the explosives
detection dog Arko been able to search the unaccompanied baggage on the
flight, he expressed his belief that they would have found the explosives.
214
215
216
217
218
219
220
221
Exhibit P-101 CAA0118, p. 2.
Exhibit P-101 CAF0787.
Exhibit P-101 CAF0091, p. 2.
Exhibit P-101 CAA0226, p. 1, CAF0095.
Exhibit P-101 CAF0095, p. 3.
Exhibit P-101 CAA0226, pp. 1-2.
Exhibit P-101 CAF0089, p. 10, CAF0095, p. 3.
Exhibit P-101 CAF0095, pp. 2-3.
581
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5.7 The Bombing of Air India Flight 182
At 07:14 Greenwich Mean Time (GMT) on the morning of June 23, 1985, Air India
Flight 182 vanished from radar.222 The Boeing 747 aircraft (known as Kanishka)
disintegrated in mid-air, at an altitude of 31,000 feet, as a result of an explosion
in its aft baggage hold. Its wreckage crashed into the ocean approximately 110
miles off the coast of Cork, Ireland. All 307 passengers and 22 crewmembers
died.
The flight had entered Irish airspace at 07:06 GMT, and the flight crew engaged
in routine communication with Shannon Air Traffic Control. Its last recorded
communication was received at 07:09 GMT.223 When the flight vanished from
radar, Shannon Air Traffic Control sent a number of messages in the hope of reestablishing contact with the aircraft, but to no avail. At 07:30 GMT, Shannon
Air Traffic Control advised the Marine Rescue Coordination Centre of the
apparent loss of the flight.224 Search and rescue operations commenced shortly
afterwards, when a “PAN” urgency signal225 directed all ships in the area to look
for signs of wreckage, and, subsequently, an SOS was issued, directing them to
converge on the location of the disaster for search and rescue operations.226 The
SOS message indicated that an Air India jumbo jet with more than 300 people
aboard had been lost.
Wreckage was spotted by the crew of the cargo ship Laurentian Forest, the first
of 19 vessels to arrive at the scene, at 09:13 GMT.227 The ship was on its way
from the St. Lawrence River to Dublin, Ireland, and was 22 nautical miles away
from where the Kanishka had vanished.228 Mark Stagg, a young officer aboard
the Laurentian Forest, was on watch that morning when the urgency signal
was received. He advised the master of the Laurentian Forest of the situation,
and the decision was made to turn the ship around and move to the position
given in the broadcast to join the search efforts. This decision was made despite
the fact that the initial message had not identified the missing aircraft and
had mistakenly reported its altitude as 3000 feet, giving the impression that a
small aircraft had gone down into the water. Stagg emphasized that Captain
Roddy McDougall made a brave decision in diverting the ship under these
circumstances, as there was no obligation to do so.229 Thankfully, he was more
concerned with a potential rescue and less concerned about saving fuel and
arriving at port on time. Had it been otherwise, the Laurentian Forest would
have been much further away from the crash area by the time the subsequent
SOS message was received.230
222
223
224
225
226
227
228
229
230
Exhibit P-167, p. 2.
Exhibit P-157, p. 39.
Exhibit P-164, p. 5.
A PAN or “pan-pan” urgency broadcast is a warning of a vessel in distress but is distinct from a call of
“mayday” or “SOS” in that it does not indicate that those aboard are in grave or imminent danger.
Exhibit P-164, p. 10.
Exhibit P-164, p. 63.
Statement of Mark Stagg, Transcripts, vol. 3, September 27, 2006, p. 330.
Statement of Mark Stagg, Transcripts, vol. 3, September 27, 2006, pp. 331-332.
Statement of Mark Stagg, Transcripts, vol. 3, September 27, 2006, pp. 331-332.
�Chapter V: The Day of the Bombing
It was an overcast morning with intermittent rain and squalls and limited
visibility. Every available hand from the Laurentian Forest’s crew of 26 was called
out to keep watch. Stagg described the crew’s feeling of optimism that survivors
would be found.231 As the ship approached the last reported position of the
Kanishka, the surface of the water grew slick with aircraft fuel and was strewn
with floating wreckage. They sighted the first three bodies in the water at 09:40
GMT.232 The Laurentian Forest lowered its main lifeboat for use in the recovery
of bodies and wreckage and proceeded full steam ahead, its crew still hopeful
of finding survivors. The enormity of the incident became apparent as the ship
passed through some 30 bodies floating in the water.233 Stagg felt sick, hit with
a sense of shock and dismay. When it was concluded that there were unlikely
to be any survivors, the Laurentian Forest altered course again. The ship turned
around and returned to the location of its lifeboat, where a crew of searchers
were recovering bodies and wreckage. The recovery operations in that area
then continued. Sea King helicopters arrived shortly afterwards to assist, and
began lowering bodies onto the decks of the Laurentian Forest and the Aisling,
an Irish naval patrol ship that arrived later that morning. A number of civilian
vessels joined in the search as the day wore on.
The efforts of the crew of the Laurentian Forest, and those of the other ships
and aircraft that participated in the search and recovery mission, were heroic.
Many civilians, as well as members of the British Royal Air Force and the Irish
Offshore Navy Patrol, risked their lives in the recovery effort. A lifeboat launched
from Valentia, Ireland, travelled far outside its normal 50-mile range to assist.234
Several vessels were damaged by impacts with the debris during the operation,
and divers from the Aisling repeatedly entered the frigid water despite rough
seas, foul weather and a report of sharks in the area.235 The psychological toll
on the searchers was profound, with many exhibiting strong symptoms of posttraumatic stress disorder in the months and years that followed. Many have
never received any form of counselling, and most continue to be haunted by
the memories of the carnage they found in the water.
The recovery efforts were difficult physically, and emotionally exhausting. Not
only were the conditions hostile, but the bodies were covered in fuel and very
slippery. Few of those participating in the search had experience in recovering
bodies from the water, and none were prepared for a task of this magnitude,
working without relief or hope. Some of the bodies had been stripped of their
clothing by the fall. Many showed signs of traumatic injuries, or were partially
dismembered. One body was split nearly in two and had to be abandoned
because it was only being held together by its intestines, and these were spilling
out and entangling the rescue equipment when the RAF winchman attempted
to retrieve it.236 Understandably, the small bodies of children and infants had
the greatest impact on the sailors and airmen:
231
232
233
234
235
236
Statement of Mark Stagg, Transcripts, vol. 3, September 27, 2006, p. 333.
Exhibit P-164, p. 63.
Statement of Mark Stagg, Transcripts, vol. 3, September 27, 2006, pp. 333-334.
Statement of Seanie Murphy, Transcripts, vol. 3, September 27, 2006, pp. 270-271.
Exhibit P-18.
Exhibit P-1, p. 3.
583
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A winchman is lowered late morning. This is unusual. He is
carrying something, and this has usually been wreckage. This
time it’s a baby. He is crying as he passes me this bundle. He
leans his head to mine and shouts above the noise of the
helicopter, “Sorry” and then he is gone. I looked down into the
towel and he or she is perfect and beautiful.
…
I rested my cheek on the baby’s head and it was cold, so cold.
I didn’t know what to do next. I put the baby in a plastic bag.
It is six-feet long and a little soul lies at the bottom and is
insignificant and I feel guilty.
Sitting here now with all of you, I cannot begin to describe the
utter wrongness of putting children into plastic bags. These
words taste foul in my mouth and I can never escape how bad I
felt then and how bad I feel now.237
The recovery operation continued long into the night and throughout the
following day. The bodies of the victims were brought to Cork Hospital, Ireland,
where a temporary morgue was assembled for post-mortem examinations and
identification by family members. Despite the strenuous efforts of all those who
participated in the recovery operation, the bodies of just 131 of the 329 victims
of the bombing of Air India Flight 182 were recovered.238
Some comfort was brought to the families of the victims in their time of grief
by the generosity and hospitality of the people of Cork, Ireland.239 These people
rendered all possible assistance to the recovery effort. They welcomed the
families of the victims into their village and their homes. The children of Cork
brought flowers for the coffins of the victims. The Commission heard many
stories from the victims’ family members of the great compassion shown to
them as well as their feelings of enduring gratitude.240
5.8 The Bombing at Narita
CP Air Flight 003 arrived at Narita, Japan at 05:41 GMT on June 23, 1985, 14
minutes ahead of schedule.241 The flight had originated in Vancouver. The
airport’s baggage handlers had offloaded the aircraft’s baggage containers, and
moved them to the baggage handling area. The baggage handlers removed all
237
238
239
240
Statement of Mark Stagg, Transcripts, vol. 3, September 27, 2006, pp. 338-339.
Exhibit P-164, pp. 66-68.
Exhibit P-164, p. 193.
A collection of these can be found in statements within Commission of Inquiry into the Investigation of
the Bombing of Air India Flight 182, The Families Remember, (Ottawa: Public Works and Government
Services Canada, 2007) pp. 93-97.
241 Exhibit D-1: Dossier 1, “Background and Summary of the Facts”, p. 12.
�Chapter V: The Day of the Bombing
baggage from Flight 003, and were in the process of unloading the remaining
interlined bags when a bomb hidden in a bag still in the container exploded at
06:15 GMT. Two of the Japanese baggage handlers, Hideharu Koda and Hideo
Asano, were killed instantly, and four others were injured. There is no doubt that
the bag was intended to be loaded aboard Air India Flight 301, from Narita to
Bangkok, Thailand. Had the bomb exploded while that aircraft was in flight, the
results would have been the same as for Flight 182.
5.9 Conclusion
The loss of 331 innocent lives on June 23, 1985 is unforgettable. These deaths
were the result of reprehensible deeds by murderous zealots. In the midst of
sorrow, horror, anger and fear, however, were acts of heroism, generosity, and
respect. Strangers from Canada, India, the United Kingdom and Japan worked
to recover bodies and comfort the families of the victims. The goodwill and
solace flowing from such acts of friendship continue to this day.
585
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�
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PDF Text
Text
Air India Flight 182
A Canadian Tragedy
VOLUME TWO
Part 2: Post-Bombing
�©Her Majesty the Queen in Right of Canada, represented by the
Minister of Public Works and Government Services, 2010
Cat. No: CP32-89/2-2010E
ISBN: 978-0-660-19926-9
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
K1A 0S5
Telephone: (613) 941-5995 or 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Publications@pwgsc.gc.ca
Internet: www.publications.gc.ca
�Volume Two Part 2: Post-Bombing
VOLUME TWO
PART 2: POST-BOMBING INVESTIGATION
AND RESPONSE
TABLE OF CONTENTS
CHAPTER I: HUMAN SOURCES: APPROACH TO SOURCES AND WITNESS
PROTECTION
1.0
1.1
1.2
1.3
1.4
1.5
1.6
Introduction
Mr. A
Tara Singh Hayer
Ms. E
Mr. Z
Ms. D
Atwal Warrant Source
5
12
29
85
202
212
227
CHAPTER II: RCMP POST-BOMBING
2.0
2.1
2.2
2.3
Set-up and Structure of the Federal Task Force
Centralization/Decentralization
The RCMP Investigation: Red Tape and Yellow Tape
The Usual Suspects versus “Alternate Theories”
2.3.1 November 1984 Plot
2.3.2 Mr. Z
2.3.3 The Purported Parmar Confession
2.3.4 The Khurana Tape
233
254
261
279
279
290
297
316
CHAPTER III: CSIS POST-BOMBING
3.0 The CSIS Investigation
339
CHAPTER IV: CSIS/RCMP INFORMATION SHARING
4.0 The Evolution of the CSIS/RCMP Memoranda of Understanding
4.1 Information Sharing and Cooperation in the Air India
Investigation
4.2 The Liaison Officers Program
4.3 The Preservation of CSIS “Evidence”
355
363
421
433
�Volume Two Part 2: Post-Bombing
4.3.1 Tape Erasure
4.3.2 Destruction of Operational Notes
4.4 CSIS Information in the Courtroom
4.4.1 The Reyat Trial and the BC Crown
Prosecutor Perspective
4.4.2 The Air India Trial
4.5 Recent Cooperation and Information-Sharing Mechanisms
433
467
475
475
517
522
CHAPTER V: THE OVERALL GOVERNMENT RESPONSE TO THE AIR INDIA
BOMBING
5.0 Introduction
5.1 Early Government Response
5.2 Government Attempts to Avoid/Delay Reviews or Inquiries and
Government Response to External Review
5.3 1995 Anniversary and Renewed Interest in a Public Inquiry
5.4 The Prosecution of Malik, Bagri and Reyat
5.5 2003 Calls for an Inquiry
5.6 The Rae Review
5.7 The Present Commission of Inquiry
5.8 Conclusion: Learning From Past Mistakes
545
545
564
596
601
606
606
619
641
�VOLUME TWO
PART 2: POST-BOMBING INVESTIGATION AND RESPONSE
CHAPTER I: HUMAN SOURCES: APPROACH TO SOURCES AND WITNESS
PROTECTION
1.0 Introduction
The RCMP: Difficulty Recruiting Sources in the Sikh Community
When Air India Flight 182 exploded off the coast of Ireland on June 23, 1985,
much of the key forensic evidence settled hundreds of metres under the sea.
At the same time, there was a widespread view that numerous members
of the tight-knit Canadian Sikh community held key knowledge about the
perpetrators of the crime.1 If the RCMP could get them to talk, it could begin to
build a case against the perpetrators. Thus it was crucial for the RCMP to make
active efforts to gain access to the Sikh community and build trust.2 However,
the difficulty recruiting sources and witnesses in the Sikh community is often
cited by the RCMP as one of the main challenges faced by the Force in the Air
India investigation.3
The RCMP began its investigation at a significant disadvantage. Prior to the
bombing, the RCMP did not have access to many sources who could provide
information about Sikh extremism and threats to Indian interests.4 After the
bombing, members of the Task Force were essentially starting at “ground zero”
in terms of their understanding of the Sikh community and culture.5 According
to retired RCMP Commissioner Norman Inkster, when the investigation got
underway there were “…perhaps one maybe two, but certainly not more” people
in the RCMP who actually spoke Punjabi. Officers could not communicate with
the community in a language that they were comfortable with, and there was
“…a significant lack of understanding of the culture.”6 While many in the Sikh
community held strong views about the Air India bombing, they were afraid
to cooperate with police, believing that they would end up being forced to
participate in a court proceeding, endangering themselves and their families in
Canada and in India.7
1
2
3
4
5
6
7
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7825-7826; Exhibit P-101 CAF0411,
p. 4.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7826.
See, for example, Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2705, confirming that gaining
access to the Sikh community was an issue for the RCMP in its investigation of Sikh extremism.
Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2728-2729.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11587.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10314.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7396-7397.
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Early on in the Air India investigation, the RCMP found that it had difficulty
obtaining information from the Sikh community. In August 1985, the RCMP
stated, in an affidavit in support of an application for authorization to intercept
private communications, that the wiretap was necessary because conventional
investigative methods had been unsuccessful to date, and were “…likely to be
unsuccessful, due to the nature of the East Indian community and their peoples’
unwillingness to co-operate with this investigation,” noting that “…other efforts
to infiltrate this community have failed at the outset.”8
Many members of the community were specifically concerned about the
possibility that the Government of India could become aware that they were
providing information to police and that there could be ramifications for their
relatives in India.9 In a briefing to the RCMP, a CSIS investigator who provided
information about Sikh extremism and the Sikh culture noted that, in some
cases, members of the community could resort to dishonesty when questioned
by police because of past experiences with Indian police and fear of reprisals
against family members in India.10 In this context, the “full-scale liaison” the
RCMP sought to establish with Indian authorities to “…coordinate the timely
flow of pertinent information” relating to the Air India case11 could negatively
impact the RCMP’s ability to gain trust in the community. For instance, following
the “Kaloe incident” in 1986, a perception took hold in the Sikh community that
the death of Balbir Singh Kaloe at the hands of Indian authorities was a result
of information supplied to India by Canadian authorities. This had a significant
impact on the Sikh community’s trust of Canadian authorities.12
The CSIS Approach versus the RCMP Approach
CSIS investigators were often more successful than the RCMP in obtaining
information from individuals in the community during the post-bombing
period. They could tell community members clearly from the start that they
were not the police. When individuals agreed to speak with CSIS, they often did
so on the condition – explicit or implicit – that their information not go to the
police.13
CSIS investigators adjusted their approach, depending on the person they went
to meet. At times, they would use an approach intended to resemble that of
the police, which CSIS investigator William Dean (“Willie”) Laurie described as
having “two large male[s]” impress upon the individual that they were from the
government and that there was something the individual could do to assist. More
often, however, they stressed that they were not the police and explained that
they wanted to obtain information so that “…at least somebody in government
8
9
10
11
12
13
Exhibit P-101 CAA0310, p. 7.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3897.
Exhibit P-101 CAA0313, pp. 2-3.
Exhibit P-101 CAF0057, p. 38.
See Section 2.3.3 (Post-bombing), The Purported Parmar Confession, where the “Kaloe incident” is
discussed.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7396-7397.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
knows what actually transpired, and so that we can develop information that
will prevent another event like this from happening.” They tried to empathize
with individuals who genuinely wanted to help.14
CSIS investigators were not under as much time pressure as the RCMP to obtain
information and could afford to be patient with sources. They approached
sources one-on-one, as opposed to the RCMP, which generally had two officers
meeting individuals.15 Laurie felt this could have a significant impact on the
sources’ willingness to talk:
MR. BOXALL: [I]t may be that when persons are ready to talk
that can be just as much a factor as to [whom they are] talking
to?
MR. LAURIE: Yes. And I would add to that the method that the
people go to talk.
…
If two of me had gone, it might very well be that I wouldn’t
have been as successful as I was.16
Laurie also explained that he generally did not take notes during his interviews,
unlike “…the way the police might do it”, because “…if I have notes it is going to
cramp and … no one is going to open up if they see me taking a record.”17
Another CSIS investigator, Neil Eshleman, testified that his approach – which
was similar to that of others in CSIS – was first to be relatively informed on the
issues of the community. To that end, CSIS investigators made significant efforts
to educate themselves about issues of concern to the community, reading as
much as they could from both public and classified information. They learned
about the views of the community regarding the Government of India, and
about Sikh extremism in general.18
In the experience of CSIS investigators, this was not the approach taken by the
RCMP officers involved in the Air India investigation. Eshleman testified that
when he tried to explain to the RCMP investigators the nuances of community
attitudes towards the Sikh separatist movement, Sikh extremism and the
bombing, they showed little interest, not viewing the information as relevant
to their immediate criminal investigation.19 Indeed, the RCMP often failed to
14
15
16
17
18
19
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7402-7403.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7404.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7534.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7414.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9383.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9383. See, generally, Section 4.1 (Postbombing), Information Sharing and Cooperation in the Air India Investigation.
7
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Volume Two: Part 2: Post-Bombing
appreciate the overall value of more general CSIS intelligence. A member of the
RCMP HQ Task Force who prepared a report about the difficulties encountered
during the first year of the Air India investigation wrote:
Anything [CSIS] gave us was of no value to this investigation,
i.e. we do not need to know the historical background of the
Sikhs or the reasons why they are waging terrorism, to solve a
criminal act. Nice to know does not equal need to know.20
It also appeared to other observers that the RCMP did not take into account
the sensitivities of the community or modify its standard approach when
attempting to gather information from individuals in the Sikh community.
Cst. Don McLean, who worked in the Vancouver Police Department’s (VPD)
Indo-Canadian Liaison Team and gained the community’s trust prior to the
bombing, stated that, from what he could observe, the RCMP used the “usual
police methods” of knocking on doors and simply requesting information. He
commented that this approach met with some resistance from the community,
and that most community members therefore preferred to speak with his unit.
He felt that the RCMP approach to the community was not very successful in
terms of source development and he advised the RCMP of the problem. McLean
himself continued to receive information from his sources in the community
after the bombing, even though he was a police officer, and he indicated that he
observed no change in the community’s willingness to cooperate with him.21
In light of the magnitude of the Air India tragedy, the RCMP often took the
view that individuals with important criminal information were duty bound
to cooperate with police.22 Inkster commented that if a source with important
criminal information is someone who is “in Canada”:
…that Canadian has an obligation to be helpful to law
enforcement and, if necessary, appear before court as a
witness and I’m not sure that one should get the choice as to
whether or not you could do that and say “No, I’m not prepared
to do that.”23
Many CSIS investigators felt that the RCMP approach was overly intimidating:
20
21
22
23
Exhibit P-101 CAF0055, p. 7.
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4147-4148, 4161-4162.
See, for example, the RCMP approach to Ms. E after 1995, discussed in Section 1.3 (Post-bombing),
Ms. E.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10366.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
MR. LAURIE: …sometimes we were familiar with people
who had been interviewed by the RCMP, ostensibly for the
same purpose, and they were so intimidated that they could
– even if they wanted to help, they were convinced that they
shouldn’t help because they didn’t want to be involved with
people who treated them that way.
MR. KAPOOR: Which way?
MR. LAURIE: As though they had to participate, that they
were being forced into it, that they were being pushed under
duress perhaps to assist because you must know something
and we are the police after all, and we can make trouble for
you perhaps, or something like that. You know, we know
somebody in your family who has had trouble with the law,
blah, blah, blah, that sort of thing. It’s not something that ever
worked for people on my desk.24
RCMP S/Sgt. Bart Blachford, who is currently the lead Air India investigator
at RCMP E Division, explained that the differences in approach between the
agencies often related to the different goals pursued:
Well CSIS has a different end goal. They are looking for a longterm relationship and continuing flow of intelligence. We are
trying to develop a witness for a criminal prosecution….25
He added that the RCMP, when approaching a person as a potential witness,
would never promise complete anonymity, because “…if you’re going to be a
witness, you will have to testify.”26 On the other hand, S/Sgt. Robert Solvason,
who had experience in source development for the RCMP, explained that
confidential informants, even if they never testify, can also be of assistance to
the RCMP in obtaining evidence through other means.27
The difference in approach may also have been influenced by the experience
each agency had in dealing with its “usual sources.” Inkster testified that CSIS
works in a “…very, very different milieu in terms of their sources.” According to
him, CSIS sources are often “…business people, well-established individuals,”
whom CSIS wants to “develop” and use “…over the very long term, years; years
and years.” It is therefore “extraordinarily important” to CSIS that their sources
not be exposed because it could do “…real harm to them,” particularly if those
individuals come from small communities where they can be “…easily identified
and perhaps harmed”, and this is why CSIS is so “…extraordinarily protective of
their sources.”28
24
25
26
27
28
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7403-7404.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7840-7841.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7841.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11556-11557.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10364.
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Volume Two: Part 2: Post-Bombing
According to Inkster, the RCMP, by contrast, deals in the “criminal domain,” “…
oftentimes with a very different person.”29 He explained that an informant:
…could be someone who is just trying to put the competition
out of business; trying to get even or settle a vendetta – or to
make more money so – they’re providing information relative
to crime and those involved in crime for a whole variety of
interests, some of them oftentimes self-serving.30
The work of both CSIS and the RCMP was also complicated by the fact that there
were many organizations conducting investigations and attempting to obtain
information from the community, including the RCMP, CSIS, the VPD and even the
Government of India intelligence agency, RAW.31 This overlap created confusion
for community members about the agency with which they were supposed to
speak.32 CSIS witnesses testified that their work in the community became more
difficult when the RCMP began to conduct its own community interviews. The
CSIS investigators would often try to interview someone, only to be told “…your
people were here the other day,” referring to the RCMP. The community saw the
RCMP and CSIS as one and the same and, despite explanations, had “…extreme
difficulty sorting the reality of that out.”33 As a result, the community’s fear of
being exposed in a court process if they provided information to the authorities
at times hindered CSIS’s ability to obtain information, and not just the RCMP’s.
Air India Sources and Witnesses: The Consequences of Overlap
For a number of reasons, many of the key Air India sources (and, in some cases,
eventual witnesses) initially spoke to CSIS and not to the RCMP. As a logical
consequence of the RCMP’s focus on prosecution, the Force often took the view
that CSIS was required to turn over these sources to the RCMP and to cease
contact with them. Inkster testified that, in his view, where there has been a
serious crime and there is a CSIS source with information about that crime, the
needs of law enforcement should take precedence and “…it has to go into the
hands of the police, in my judgment.”34 His predecessor, Robert Simmonds, held
similar views, indicating that if a source had information pertaining to a criminal
offence and was willing to talk, “…clearly somehow or other … it should be
exploited by the Crown to use that evidence….”35
One reason for this position was the RCMP’s concern that a source might
become “contaminated” as a result of prolonged exposure to CSIS. What this
means is that, as the source is questioned, “…he or she will become more wise
and competent – in terms of what it is that they are going to say.” Therefore,
29
30
31
32
33
34
35
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10364.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10364.
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4148, 4161. RAW stands for Research and Analysis
Wing.
Testimony of Don McLean, vol. 35, May 29, 2007, p. 4161.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, p. 9458.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10367.
Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9349.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
from a police perspective, a “law enforcement officer” needs to speak with
that individual about what she or he knows in the light of an ongoing criminal
investigation and eventual prosecution. This is something you “…can’t have
someone else do” for you. In Inkster’s view, “…the sooner the police get access
to that witness to have that discussion, the better.”36
Similarly, the RCMP was concerned about CSIS’s ability to recognize and
appropriately deal with criminal information. Inkster testified that if someone
is going to investigate that crime, “…presumably that person has to have peace
officer status,” and therefore “…it’s got to get into the hands of the RCMP or
some other police department in an expeditious and usable way.” Inkster stated
that his concern was “…who’s going to make that determination; one, that this
is a crime and secondly, how does that concern about the crime balance off with
the security interests of CSIS and the informant?”37
For its part, CSIS had concerns about the impact of the RCMP’s approach on CSIS’s
own goals and mandate. For example, RCMP attempts to approach individuals
of interest to CSIS, or individuals who had already provided information to CSIS,
could create problems for the Service. Laurie explained that, in some cases,
his work in trying to approach a source was made more difficult because the
police had discovered his plans and made the approach first.38 Individuals
were then more reluctant to speak with CSIS. Also, if the RCMP approached a
source immediately after CSIS had visited, the source might think that CSIS had
reported their information to the police, a belief that would then cause them
to become less willing to cooperate.39 If the RCMP simply took over relations
with a CSIS source on the basis of a possibility that criminal information might
be obtained, CSIS might never be in a position to obtain any intelligence in the
source’s possession.
As will be illustrated in the six stories that follow, the issue of potential sources
or witnesses having contact with, and value for, both CSIS and the RCMP, was a
problem that arose numerous times in the Air India investigation. This overlap
brought to the fore some of the problems posed by each agency’s perceptions
and assumptions about its own mandate and the manner in which it was to
carry out that mandate.
As these stories illustrate, some of the most vexing issues arose in circumstances
where individuals who became RCMP witnesses had prior dealings with CSIS that
compromised the evidentiary value of their testimony or created difficulties for
the Crown in carrying out its disclosure obligations. Equally frustrating from the
point of view of CSIS was the fact that, in most cases, if not all, the consequence
of CSIS sources becoming potential witnesses was to deprive the Service of any
future intelligence from these individuals, whether or not they were ultimately
witnesses at trial.
36
37
38
39
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10367.
Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10364-10365.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7400.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7400-7401. See discussion of this issue in
Section 1.1 (Post-bombing), Mr. A and Section 1.3 (Post-bombing), Ms. E.
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Volume Two: Part 2: Post-Bombing
1.1 Mr. A
Introduction
“The purposes of the two agencies in attempting to speak to Mr. A were fundamentally
at odds: CSIS was interested in his long term potential as someone well-connected
to a world that they need to develop intelligence in; the RCMP was interested in
developing evidence that would be admissible in a court of law.”1
Were these two “purposes” necessarily in conflict?
Mr. A was an individual who came to be considered, by both agencies, as an
extremely promising lead in the Air India investigation. He was very important
for CSIS’s long-term investigations, as he claimed he could get close to Talwinder
Singh Parmar and Ajaib Singh Bagri, and was willing to be tasked by CSIS.2 For
the RCMP, he offered potentially crucial information with regard to the Air India
bombing. The agencies wrangled for primary control of Mr. A – to the detriment
of all. In the end, neither agency was able to benefit from Mr. A’s information.
The Mr. A story is seen through the testimony of Neil Eshleman of CSIS and S/Sgt.
Robert Wall of the RCMP, along with the assistance of documents – in particular
an Agreed Statement, which summarizes key documents related to Mr. A.3
RCMP and CSIS Both Have an Interest in Mr. A
Mr. A simultaneously came to the attention of CSIS and the RCMP through third
party sources, including an institution which, by agreement with the Government
of Canada, has been termed the “Third Party” for the purpose of this Inquiry. The
Third Party had previous direct dealings with Mr. A, who had offered to provide
the Third Party with information about the Air India bombing, contingent on
certain conditions being met. A deal had been worked out, but the deal expired
and the detailed information Mr. A claimed to have was not provided to the
Third Party.4
Some of the information gleaned by the Third Party was shared with CSIS and
the RCMP. Shortly after that, a meeting was held between the RCMP and CSIS,
where the agencies realized they had received the same information about Mr.
A, and each wanted to pursue an interview with him. An initial agreement was
reached whereby CSIS would interview him first, and then the RCMP would
provide questions to CSIS to ask Mr. A on the RCMP’s behalf. RCMP investigators
were to be privy to the results of the CSIS interview, and it was agreed that if the
RCMP investigators still felt that it was necessary to interview Mr. A, they would
do so.5
1
2
3
4
5
Final Submissions of the Attorney General of Canada, Vol. I, para. 273.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9423.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9375-9453; Testimony of Robert Wall, vol.
76, November 15, 2007, pp. 9656-9716; Exhibit P-291.
Exhibit P-291, items 1, 3, 34.
Exhibit P-291, item 1.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The key question that the RCMP wanted answered was: “what information was
Mr. A trying to give to other authorities regarding Air India?”6
CSIS Reports on the Information it Learned from Mr. A
Shortly afterwards, CSIS investigator Neil Eshleman, who was a specialist in
the area of source handling and had considerable experience with CT human
sources,7 met with Mr. A. During the interview, Mr. A was asked the questions
suggested by the RCMP.8 As well, in order to prove his bona fides, Mr. A offered
some information which he stated could be verified by the Third Party, and
which, in fact, was ultimately verified.9
CSIS wrote back to the RCMP about Mr. A’s answers to the RCMP’s questions. In
relation to the information he had tried to provide to other authorities about
Air India, CSIS reported that Mr. A provided a “…vague outline without names,
dates or places which he was using as bait. A deal was then worked out with
other authorities but the deal expired and the authorities were given nothing.”
CSIS did not pass the information to the RCMP for corroboration.10
In further correspondence to the RCMP provided soon after this, CSIS clarified
that Mr. A had supplied the “…same vague information to CSIS that was
in the possession of the Third Party. CSIS is in the process of analyzing the
information,” and that the information was all “hearsay and circumstantial,” but
that Mr. A appeared to be telling the truth. By the time CSIS had provided this
second, clarifying correspondence to the RCMP about Mr. A’s information, CSIS
had received caveated correspondence from the Third Party which indicated
that some of the Mr. A information had been corroborated.11 Due to the caveat
placed on the information by the Third Party, this information was again not
shared with the RCMP.
In internal CSIS correspondence detailing the information CSIS learned from Mr.
A, it was recorded that the source had provided CSIS with “detailed information”
in relation to the Air India bombing “without naming names.”12 However this
information was not reported to the RCMP at this time.
CSIS Reports Detailed Information but Hides Mr. A’s Identity from the RCMP
After the first interview, Eshleman was tasked by CSIS management to
develop Mr. A as a source, and through their meetings Eshleman developed a
“reasonable comfort factor” and “rapport” with Mr. A.13 However, from the outset
of his interaction with Canadian authorities, Mr. A expressed concerns about
6
7
8
9
10
11
12
13
Exhibit P-291, item 1.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9376.
Exhibit P-291, item 2.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9418-9419.
Exhibit P-291, item 3.
Exhibit P-291, items 5, 6.
Exhibit P-291, item 2.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9420.
13
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Volume Two: Part 2: Post-Bombing
his personal safety. Mr. A wanted to know what guarantee CSIS could provide
that everything he said would be kept confidential and that he would not be
exposed. He was concerned about being double-crossed by CSIS and by the
Government of Canada, and felt that cooperating with Canadian authorities
could get him killed. He wanted an agreement with the Government of Canada
that the information would not be used against him and that he would not
have to appear in court to give evidence. It appears that Mr. A’s concerns were
not unreasonable, as these concerns were shared by CSIS. Further, there were
ultimately indications that, due to the involvement of various agencies, Mr. A’s
identity had been compromised.14
To further complicate the matter, Mr. A indicated to Eshleman that he was not
willing to give up his information without a benefit for himself. He asked for
certain considerations, including “…assistance from the government with
certain problems that he had”,15 before he would provide further information.
In light of the value of his information, Eshleman felt that Mr. A’s demands were
reasonable, but needed approval from further up the chain of command. In fact,
Eshleman quickly came to believe that Mr. A “…had the single most potential of
all sources” that CSIS had come into contact with up to that point.16 For CSIS, Mr.
A was the most valuable kind of human source: one who had access to a closed
group, the Babbar Khalsa, and who was willing to be tasked by CSIS. Not only
that, but Mr. A claimed to have particular information relating to the bombing.
Despite the agreement that had been reached earlier with the RCMP, CSIS gave
Mr. A its usual assurances of confidentiality, and proceeded to treat him as a
confidential human source. No other agreements were made.17
The result of this assurance was that, while CSIS shared some of the details of
these meetings with the RCMP, CSIS did not reveal to the RCMP that certain Air
India information was coming from Mr. A, and instead referred to the information
as coming from a “…source of unknown reliability.” CSIS reported that it was
negotiating with the “source,” in an effort to reach an agreement to have him
disclose further information. This left the RCMP speculating about whether
this information had, in fact, come from Mr. A, or whether this information was
from another independent and corroborative source. An RCMP analyst who
reviewed the information provided by CSIS sent inquiries to CSIS in relation to
this information.18 The confusion over the source led to friction between CSIS
and the RCMP. The RCMP wanted to clarify the identity of the source and to be
provided with greater detail about the information.19
Three weeks after the information was provided by CSIS, RCMP analysts
Margaret Purdy and Terry Goral met with CSIS to discuss the status of the RCMP’s
inquiries related to Air India. The RCMP had done its own analysis of the “source”
14
15
16
17
18
19
Exhibit P-291, items 4, 10, 23, 42, 63.
Final Submissions of the Attorney General of Canada, Vol. I, para. 265. The assistance was also referred
to throughout the Mr. A chronology as a “reward.”
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9420, 9447.
Exhibit P-291, items 54, 82.
Exhibit P-291, items 4, 9.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9420.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
information and the RCMP provided this report to CSIS. CSIS was unwilling to
divulge the source’s identity and indicated that the Director General of Counter
Terrorism at CSIS Headquarters was reconsidering his stance on providing
information in relation to the Third Party’s involvement and on revealing the
source’s identity. The RCMP felt it was “essential” that CSIS divulge the source’s
identity and provide a full assessment of its dealings with the source. Purdy also
requested permission to contact the Third Party. CSIS replied that it would have
to check whether this would be possible.20
The RCMP complained that its inquiries were “stymied” due to a lack of access to
the source or to the Third Party information. It is clear that the RCMP, at least in
part, blamed CSIS for the fact that there was not more information forthcoming.
At the same time, the Third Party expressed to CSIS its extreme concern for
the protection of its information. This led to an internal CSIS directive that no
information should be passed from the Third Party without the Third Party’s
express written consent.21
Internal requests were made within CSIS that consent be requested from the
Third Party to release information to the RCMP. CSIS recognized the “definite
criminal aspects” of the case and the “…need for a thorough police investigation,”
and cited these factors as making it important that relevant Third Party material
be released to the RCMP. In the meantime, CSIS began an analysis of information
received from the Third Party.22
CSIS was apparently successful in urging the Third Party to lift its caveats, as some
time after meeting with representatives of the Third Party, CSIS passed the Third
Party information to the RCMP. However, the telex conveying the information,
consistent with CSIS’s earlier correspondence about its own interactions with
Mr. A, indicated that the information was from a “source,” without naming Mr.
A or providing the details regarding how the Third Party came into possession
of the Mr. A information. When the RCMP was provided with the original Third
Party information a few months later, they complained that a considerable
amount of information contained in the original had been deleted from CSIS’s
sanitized version.23
RCMP and CSIS Argue for Control
Competition between CSIS and the RCMP
After CSIS passed the sanitized version of the Third Party information to the
RCMP, CSIS Headquarters advised the BC Region that CSIS and the RCMP had
agreed that CSIS would take the lead role in developing intelligence related to
Air India.24 However, it does not appear that this agreement, if it ever existed,
lasted long.
20
21
22
23
24
Exhibit P-291, item 9.
Exhibit P-291, items 14, 16, 18.
Exhibit P-291, items 7, 8, 11.
Exhibit P-291, items 5, 11, 12, 48.
Exhibit P-291, item 17.
15
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Volume Two: Part 2: Post-Bombing
One week later, a meeting was held between RCMP and CSIS members to
discuss the Mr. A information, during which the RCMP expressed the view that
it should take the lead, as the Air India bombing was a criminal investigation.
CSIS disagreed and felt that it had to protect “their source.” While CSIS provided
assurances to the RCMP that any information it had developed on its own had
been passed on to the RCMP and that anything passed by the Third Party that
was not protected by caveats had also been shared, the RCMP had doubts that
it had received all relevant information and wanted to know why information
was being withheld. It was agreed at the meeting that the RCMP and CSIS would
jointly develop questions to be sent to the Third Party through CSIS. However,
the Third Party complained about the questions posed by the RCMP and
indicated that it was not prepared to lift caveats to pass information to a police
force at the time. The Third Party also felt that the RCMP questions “…had little
background or reasons to support them.”25
Shortly after the meeting, and contrary to the agreement that had been reached
at that time, the RCMP made a direct approach to the Third Party in order to
uncover sensitive CSIS information.26
The climate of distrust and competition between CSIS and the RCMP that had
been brewing over the Mr. A issue came to a head in the lead-up to a multi-agency
conference that was organized to discuss the Mr. A information. The conference
was to include CSIS, the RCMP and other agencies, including the Third Party. In
advance of the conference, CSIS and the RCMP were both conducting analysis
on their information in relation to Mr. A to be presented at the conference.27
CSIS wrote that it was intending to prepare an analysis of the information since
“…[we] control most of the intelligence.” In internal correspondence, Michael
Gareau, Head of the Sikh Desk at the time, indicated that he wanted CSIS
information removed from an RCMP analytical report which was to be presented
at the conference, and that CSIS wanted to use the CSIS information in its own
analysis, in order to present it itself.28
At the same time, the RCMP expressed concern that CSIS’s forthcoming major
analytical report not be presented at the upcoming conference as “…it would
put RCMP in an awkward position of having to disagree with some of the
analysis.” One RCMP analyst expressed the view that “…CSIS have interpreted
certain things to suit themselves.” It was stated that the “…RCMP should not let
CSIS put [its] theories forward at the conference if the RCMP does not support
or cannot sanction the follow-up inquiries at the field level.” The analyst wrote
that it was anticipated that any criticism voiced by the RCMP regarding the CSIS
report, or suggestions that there was too much speculation, would be met with
CSIS’s “standard reply”: “…we’re in the speculation business.”29
25
26
27
28
29
Exhibit P-291, items 19, 21.
Exhibit P-291, item 25.
Exhibit P-291, items 20, 32.
Exhibit P-291, items 20, 26.
Exhibit P-291, items 27, 29.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The CSIS analysis, presented by Bill Dexter, an analyst on the Sikh Desk, provided
a timeline and names of individuals suspected of involvement in the Air India
bombing, based on information from Mr. A and other sources. The report
concluded by suggesting the “weakest links” in the conspiracy. This analysis was
provided to the RCMP. Rather than disseminating the CSIS report within the
RCMP, along with any caveats about its concerns about CSIS’s analysis, the RCMP
made a decision to suppress the CSIS report entirely until the RCMP “…had a
chance to examine it thoroughly,” as the RCMP did not want to “…send the field
units off on false leads.”30
An account of what occurred at the conference indicates that the climate of
competition that was seen in the lead-up to the conference had not abated.
According to CSIS correspondence, the proposed agenda was not followed at
the conference, CSIS was not asked to present its paper, and at no time did the
RCMP even refer to CSIS. CSIS quickly realized that its comments were not to be
heard.31
At the end of the conference, it was agreed that two RCMP officers who were
familiar with the file would be selected to review the information in possession
of the Third Party to search for leads and for any information that could further
the RCMP’s investigation. Cpl. Les Hammett and Sgt. Mike Atkinson were
selected to do the review. Atkinson, in his report, noted that the information had
been provided by Mr. A to the Third Party in circumstances that did not require
Mr. A to give specific details or names. He further noted that the Third Party’s
information lacked sufficient detail to allow for appropriate follow-up. He felt
that the source himself could provide considerably more detailed information –
such as the identification of the parties to conversations and meetings – which
would facilitate the necessary follow-up investigation.32
Two days later, RCMP Headquarters complained to CSIS Headquarters that
information had been withheld for two months – a criticism that CSIS denied.
CSIS countered that it had needed the Third Party to lift the caveats on the
information and “…furthermore, it had taken CSIS that long for Mr. Dexter to
put his analysis together.” CSIS further commented that, while the RCMP is CSIS’s
main client, “…RCMP needs should not be placed above CSIS’s need to advise
the Government of Canada about threats.”33
The RCMP was also dissatisfied with the type of information it received from
CSIS in relation to Mr. A, stating that it needed “raw data” and not “opinions and
profiles” from a “…CSIS point of view.” It was decided that RCMP E Division would
“go locally,” meaning that it would request information from the CSIS regional
level, rather than Headquarters, to try to get access to the raw data, including
actual surveillance notes.34
30
31
32
33
34
Exhibit P-291, items 29, 32, 40.
Exhibit P-291, item 37.
Exhibit P-291, items 35, 51.
Exhibit P-291, item 37.
Exhibit P-291, item 46.
17
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Volume Two: Part 2: Post-Bombing
In particular, the RCMP wanted the raw data for the interview conducted the
previous winter. Consequently, a new request was initiated and a meeting was
held between local RCMP and CSIS members to discuss the issue. CSIS said that
it had “…given over all their information regarding the source.” Eventually, the
RCMP’s local inquiries with CSIS resulted in the passing over of one additional
document, a verbatim transcript of CSIS’s last interview of Mr. A, which was the
only material left in CSIS’s possession available to the RCMP. It was subsequently
learned that CSIS had destroyed its notes from its interviews of Mr. A.35
Frustrated by the manner in which information had been shared by CSIS and
the Third Party, an RCMP analyst wrote to the OIC Special Projects to complain
about the lack of access to the Mr. A information. The analyst wrote that the
reports that had been received the week before showed that a large amount of
information had been withheld by CSIS and the Third Party and that they had
been “unduly circumspect” in their sharing of information. The analyst wrote
that this had created difficulties for the RCMP in its attempt to confirm the
information related to Mr. A. The RCMP analyst calculated that the RCMP had
lost three months of investigation time due to the caveats imposed by other
agencies and due to the negotiations regarding those caveats.36
In CSIS’s view, the RCMP’s perception that there was a lack of cooperation was
a matter of its own faulty internal reporting. For example, early in the Mr. A
narrative, E Division received the information about the interviews of Mr. A
from CSIS at the local level but did not send the information to Headquarters
until two months later. In internal CSIS correspondence, CSIS Headquarters
requested to be informed of any requests from the RCMP so that it could brief
RCMP Headquarters of CSIS’s continuous cooperation, as it was felt that RCMP E
Division was not informing RCMP Headquarters of CSIS’s cooperation, but was
informing RCMP HQ of perceived problems that were “non existent.”37
CSIS to Turn Over Investigation to the RCMP
The RCMP was of the view that it was “imperative” that the RCMP gain direct
access to Mr. A,38 and felt that he could provide “significant information.”39
Though CSIS refused to divulge Mr. A’s identity to the RCMP, Eshleman did
receive instructions to “…convince Mr. A of the necessity for him to have direct
contact with the RCMP because of the nature of his information.” Mr. A rebuffed
Eshleman’s attempts, repeating, “…in no uncertain terms,” that he “…was not
going to be involved in the court process, he was not going to be a witness, and
he did not want to have contact with the RCMP.”40
The RCMP’s insistence on exclusive access was, from their perspective, an
“…attempt to preserve Mr. A and his information as potential evidence in a
35
36
37
38
39
40
Exhibit P-291, items 54, 56, 63.
Exhibit P-291, item 48.
Exhibit P-291, items 22, 54.
Exhibit P-291, items 34, 45, 58.
Exhibit P-291, item 49.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9422.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
courtroom.”41 Eshleman understood that if a source had direct evidence, CSIS’s
involvement could contaminate the witness due to the fact that, at times, CSIS
provided information to its sources when it tasked them. Contamination may
also occur where sources are offered benefits, which may be seen by courts as
an inducement. However, CSIS never made any promises with regard to the
benefits Mr. A was seeking, as that approval never came. As a consequence, Mr.
A never fully revealed his information to CSIS. However, it was a CSIS tactic and
policy to promise confidentiality. As Eshleman stated, “I think the only promise I
really deliver, and do my very best to keep my word on it and gain that person’s
trust, is the promise of confidentiality.” This approach enabled Eshleman to
extract what information he could in the first place. However, Mr. A’s identity
was now at the heart of the RCMP-CSIS conflict. According to Eshleman, if he
could convince Mr. A to deal directly with the RCMP, then that would solve the
dilemma of confidentiality. But if Mr. A persisted in shunning the RCMP, then
Eshleman felt he could not reveal the source’s identity.42
Ultimately, a decision was made at the very senior levels of management to
have Mr. A turned over to the RCMP. Eshleman’s hands were tied; the decision to
hand over Mr. A to the RCMP and to break the CSIS promise of confidentiality,
despite concerns for the source’s safety, the long-term viability of the source,
and the source’s distinct desire to avoid contact with the police, had been made.
It was a “done deal.”43 CSIS BC Region was to facilitate an introduction of RCMP
E Division to Mr. A.44
The RCMP’s Approach to Mr. A
The RCMP Operational Plan
E Division investigators liaised with local CSIS members to discuss the approach
that would be made to Mr. A. Ray Kobzey, a CSIS BC Region investigator, spoke
with Hammett and indicated that CSIS planned to “pre-programme” Mr. A,
rather than having the RCMP approach Mr. A cold – meaning that CSIS would
meet with him first to try to encourage him to speak with the RCMP. It was felt
that this approach might allow CSIS to continue its association with Mr. A after
the RCMP approach.45
In preparation for the introduction, E Division was asked to identify members
who would be responsible for handling and interviewing Mr. A. The RCMP felt
that it was “imperative” that Atkinson, one of the members who had reviewed
the Third Party files, be part of the interview team, given his knowledge of the
file. Headquarters agreed that Atkinson should be an integral participant in the
interview of Mr. A, and requested that the CO of O Division authorize his travel
to Vancouver.46
41
42
43
44
45
46
Final Submissions of the Attorney General of Canada, Vol. I, para. 264.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9425, 9447.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9446.
Exhibit P-291, item 42.
Exhibit P-291, item 52.
Exhibit P-291, items 49, 56, 57.
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Volume Two: Part 2: Post-Bombing
The OIC Operations officer stressed that the RCMP investigators responsible
for the initial interview of Mr. A must have an understanding of all previous
discussions held between the source and CSIS and, in particular, with respect
to the source’s ultimate purpose, which was to secure a reward. E Division was
directed to submit an operational plan regarding how the RCMP would approach
the source and to indicate the questions that would be put to the subject. A
continuation report by S/Sgt. Robert Wall indicates that the instructions were
for the RCMP to treat the meeting with Mr. A as an “opening interview.” Officers
were to put questions to Mr. A and to “…allow him to do as much talking as
possible.”47
CSIS provided the RCMP with an assessment of Mr. A. It was felt that the RCMP
would have “…only one shot at Mr. A” and that the approach should be “…
mature and professional.” In a similar assessment, the Third Party indicated that
if the RCMP was to go ahead with an interview of Mr. A, it was probably a “oneshot effort,” and that it would therefore be important for the RCMP to review all
information, including assessments of Mr. A prior to the interview.48
When CSIS contacted Mr. A, he advised that he would only be available on
a specific date,49 as after that date he would be moving out of the E Division
jurisdiction.50 Atkinson would not be available to participate in the interview
of Mr. A in the time frame laid out by Mr. A. However, Assistant Commissioner
Norman Belanger directed that Wall fill in for Atkinson and that he and Hammett
proceed with the interview on the specified date,51 despite the fact that Wall
had very limited knowledge about Mr. A.52 Hammett expressed concern that
the RCMP would be losing an advantage by not having Atkinson there, and that
the RCMP was “stampeding” itself into doing something it was not “…prepared
to do.” The result of this directive was that, the night before the attempted
introduction to Mr. A, Hammett had to rush to try to get Wall ready for the
interview.53
It was agreed that CSIS would arrange a meeting with Mr. A and “…impress
upon him” the role of the RCMP in the criminal investigation of the Air India
bombing. If Mr. A refused to speak to the RCMP, he would be put under
surveillance overnight and the RCMP would then approach him the next day.
RCMP Headquarters also indicated that E Division was to attempt to confirm Mr.
A’s truthfulness through a polygraph which would be “…conducted immediately
after Mr. A has agreed to be examined.” Mr. A was to be approached on the basis
of the Third Party information. It was agreed that the RCMP would delay its
approach to Mr. A after CSIS’s meeting with him to help preserve his viability as
a long-term source for CSIS.54 The agreement assumed that an interval might
47
48
49
50
51
52
53
54
Exhibit P-291, items 58, 59.
Exhibit P-291, items 31, 38.
Exhibit P-291, item 61.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9689; Exhibit P-291, item 66.
Exhibit P-291, items 60, 61.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9680-9681.
Exhibit P-291, item 63.
Exhibit P-291, items 49, 60, 63, 65.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
preserve CSIS’s good reputation with Mr. A. However, Eshleman did not believe
this would salvage their reputation once Mr. A refused to speak with the police
and was approached anyway.55
CSIS’s Meeting with Mr. A
As planned, Eshleman met with Mr. A and explained to him that CSIS wanted to
maintain a long-term relationship with him, but that the bombing of Air India
was a criminal investigation and was a matter within the RCMP’s responsibility.56
However, this meeting did not have the desired consequences, and the results
proved dire for CSIS’s ability to profit from its relationship with Mr. A. Mr. A once
again refused to cooperate with the police, and Eshleman told Mr. A that if this
was his position, his instructions were to “…cease [his] contact with him.” Mr. A
maintained his position and Mr. A “…walked out the door and that was the end
of all potential with that source.”57
Indeed, that was the last contact Eshleman ever had with Mr. A.
The order to transfer Mr. A to the RCMP had a significant and negative impact
on CSIS morale. As “…CSIS lives through sources of information,” it was
“exasperating” and harmful to motivation to have developed Mr. A and then
to have been ordered to relinquish him. This was especially so because, while
Eshleman initially thought that Mr. A could be a witness, he believed that it was
the intelligence he offered that was of real value.58
As well, the manner in which the transfer occurred placed considerable stress
on the CSIS handler. The RCMP, skeptical of Eshleman’s intention to “relinquish
control” and to actually convince Mr. A to speak with the police, asked to be
provided with corroboration that he had indeed used his best efforts to do
so. Eshleman felt this showed that certain members of the RCMP lacked trust
in Eshleman.59 The RCMP, though, was satisfied that its case had been well
presented by CSIS.60
The RCMP’s Meeting with Mr. A
While the RCMP knew of Mr. A’s extreme fear for his personal safety and
consequent reluctance to speak with police, its rushed pursuit of “evidence” led
to an approach to Mr. A in a manner that was not sensitive to these concerns and
that ultimately compromised its own goals. As well, the RCMP itself had noted
well before its interview of Mr. A that it “…will have to be in a position to meet
or negotiate [Mr. A’s] conditions in order to obtain the necessary information
55
56
57
58
59
60
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9427.
Exhibit P-291, item 63.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9426.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9421, 9436.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9428.
Exhibit P-291, item 63.
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Volume Two: Part 2: Post-Bombing
to carry this investigation further.”61 Nevertheless, E Division was instructed by
Headquarters that “no promises or threats” were to be used in the approach to
Mr. A.62
Following the Eshleman interview, Mr. A was placed under surveillance
overnight63 and, at 9:25 AM the next morning, Wall and Hammett approached
Mr. A’s home, unannounced. The approach taken by the RCMP significantly
differed from CSIS’s view of the appropriate course of action. Approaching Mr. A
at his home would put Mr. A in an uncomfortable position, as there were other
people in the residence who would not likely have approved of his cooperation
with police. According to CSIS, such an approach would run counter to
the objective of developing a good rapport with Mr. A. Indeed, Mr. A’s own
subsequent statements confirmed similar concerns about the manner in which
he had been approached by the RCMP.64 In his testimony, Eshleman commented
on the advisability of a cold approach to Mr. A. Eshelman stated that, given Mr.
A’s “significant ego” and sense of “self-importance,” this may not have been the
“wisest undertaking.”65
Wall and Hammett approached the home of Mr. A in an unmarked van. When
they knocked on the door, a young man came to the entrance and Hammett
asked to see Mr. A.66 When Mr. A came to the door, the officers identified
themselves by showing their ID badges. Mr. A advised that he was not interested
in speaking with the RCMP and indicated that he was busy. However, after some
persuasion, he finally agreed to meet with the RCMP at the RCMP station, but
told the officers to come back in an hour as he needed time to get ready.67
The officers picked up Mr. A at 11 AM in the van.68 Wall’s recollection was that
Hammett was driving with Mr. A in the middle seat and Wall in the rear seat,
or the reverse thereof. The drive from Mr. A’s home to the RCMP’s provincial
Headquarters took approximately 20 minutes, and during the drive, there was
not much conversation.69
Mr. A was brought to the rear of E Division Headquarters and led into an interview
room for “a conversation” with the officers. Wall’s agreement with Belanger was
that the officers would try and get Mr. A to the point where Mr. A could be taken
“…on the fast elevator upstairs” into Belanger’s office.70 But the officers would
not make any promises “…until they were sure what [Mr. A] had to offer was of
value.”71 Mr. A was not to be promised anything, but if Mr. A put forth a package
with “…specific details, dates/times etc,” Wall would take it to his superiors.72
61
62
63
64
65
66
67
68
69
70
71
72
Exhibit P-291, item 34. This contrasts with the belief of the AGC that it was only with “hindsight”
that it became “…clear that unless his demands were met Mr. A would not be forthcoming” with further
information: Final Submissions of the Attorney General of Canada, Vol. I, para. 271.
Exhibit P-291, items 34, 49, 58.
Exhibit P-291, item 65.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9430-9431.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9432.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9683.
Exhibit P-291, item 63.
Exhibit P-291, item 63.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9684.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9685-9686.
Final Submissions of the Attorney General of Canada, Vol. I, para. 266.
Exhibit P-291, item 65.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The interview commenced at 11:20 AM. Mr. A asked for some water, which
was provided. Wall began with a formal introduction, telling Mr. A that he was
there on a voluntary basis. Hammett indicated that he wanted to put specific
questions to Mr. A.73 Mr. A stated that he was not prepared to comment, and
that CSIS already knew everything. After some questioning, Mr. A attempted to
explain his motivation and outlook, and the RCMP “interrupted” him to “…bring
him back to the main issue” – this despite the earlier plan to allow Mr. A the
freedom to “…do as much talking as possible.”74
Mr. A refused to talk and, a mere 15 minutes later, the RCMP decided to drive
Mr. A home. On the way home, Mr. A “…had a change of heart,” and began to
speak to the officers. He said that the RCMP should have called ahead to make
an appointment. He had concerns that people were going to ask him what he
was doing talking to the police. He said that he did not want to lie, but that he
could be “an outcast.” He indicated that he feared that if he did talk to police, his
life would be in jeopardy.75
Mr. A claimed that he had provided valuable information to the Third Party.
When pressed for specifics, he would not say what it was that he had given. Wall
suggested that Mr. A did not tell the RCMP anything because he “…didn’t have
any knowledge.”76 It is unclear from the evidence whether this was said to Mr.
A for the purpose of provoking him into disclosing more information, or if this
was the officer’s actual assessment of the source’s potential.77 If the reason was
the former, it did not produce the desired result. The RCMP interview report
concluded that “Mr. A doesn’t have specific information that would assist the
investigation. He definitely would not be a witness. He fears that if he talked his
life would be in danger.” The officers went on to conclude that Mr. A was of “…
no [immediate] benefit” for the RCMP at that time, though perhaps he had some
use for CSIS.78
Mr. A’s lack of candour may have been a result of the tactics used by the RCMP.
Picking Mr. A up at his residence, taking him to a police station, and interviewing
him as if he were a suspect were all tactics that were likely to backfire when
trying to build a rapport. Similarly, if Mr. A had wanted to start talking about
his motivation and outlook, then he should have been encouraged to speak.
As Eshleman stated, in this sort of interview, “…what you’re really trying to do is
simply get him to talk, and the more he talks, the better it is.”79 Cutting him off
and “bringing him back” to the subject at hand could only have been damaging
to the development of a good rapport.
When Mr. A moved a few days after the RCMP’s interview with him, E Division
took the view that “…nothing further needs to be done in E Div,” with respect to
the Mr. A issue.80
73
74
75
76
77
78
79
80
Exhibit P-291, item 63; Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9686.
Exhibit P-291, items 58, 63, 65.
Exhibit P-291, items 63, 65.
Exhibit P-291, item 63.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9687.
Exhibit P-291, item 65.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9432, 9434.
Exhibit P-291, item 66.
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Volume Two: Part 2: Post-Bombing
At the Hearings, Wall was asked why there was no attempt to try to secure
intelligence from Mr. A, even if no “evidence” could be obtained. While he could
not specifically recall his rationale, his explanation is revealing of the mindset
at the time: “We were conducting a criminal investigation, and we needed
evidence as opposed to intelligence, I guess.”81
Once again this view contrasted greatly with that of CSIS. Eshleman stated:
[Y]ou’re talking about a person who has potential and access
to individuals that certainly the RCMP were interested in
as far as Air India [was concerned], and CSIS was definitely
interested in him in regards to the access that he had to the
extremist milieu. So I wouldn’t have reached that conclusion
that he would be of no benefit to the RCMP. That’s premature.
There was just – it was too soon to say that, regardless of his
attitude.82
RCMP Analysts Question E Division’s Conclusions
The view that Mr. A was not of use to the RCMP, based on Wall and Hammett’s
interview, was communicated to Headquarters and was also shared with other
agencies. For example, the Third Party, which evidently relied on this RCMP
assessment in its own report, stated that “…after a thorough interrogation by
[Sgt. Wall and Cpl. Hammett], Mr. A finally admitted that he did not have any
direct knowledge of the AI incident, nor possible involvement by the Sikhs he
had identified.”83
However, Eshleman’s view of the prematurity of the RCMP investigators’
conclusion was also shared by some within the RCMP. RCMP analysts familiar
with the issue had some difficulty accepting the investigators’ conclusions in
light of the very cursory interview that had been conducted. Margaret Purdy
wrote to the OIC National Security Offences Task Force (NSOTF) indicating that,
despite E Division’s assessment of Mr. A, she did not think that the RCMP could
“…abandon all avenues of investigation associated with Mr. A.” While she was
hesitant to comment on the investigators’ assessment without seeing the full
interview report, she had some “…difficulty understanding how they could pass
judgment on his claims when he refused to discuss these claims with RCMP
investigators.” Years later, as part of the file review conducted when Gary Bass
took over the Air India investigation in 1995, Cpl. Robert Ginn formed a similar
opinion: the information he reviewed “…did little to dispel the notion that Mr.
A’s information was accurate.” His view was that officers Wall and Hammett “…
basically wrote Mr. A off during a fifteen minute interview.”84
81
82
83
84
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9688.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9435.
Exhibit P-291, item 73.
Exhibit P-291, items 64, 82.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Despite E Division’s conclusions about the usefulness of Mr. A to the Force,
at the RCMP’s request, CSIS refrained from contacting Mr. A. When the RCMP
indicated that it would again attempt to interview Mr. A after Mr. A had moved
from E Division jurisdiction, CSIS agreed to continue to refrain from contacting
him until the RCMP informed CSIS that it no longer had an interest in Mr. A.85
The Second RCMP Interview with Mr. A
A second interview of Mr. A, conducted by Atkinson and Cpl. Larry Cottell, was
conducted more in line with the original plan – i.e., treating the meeting as
an “opening interview” and allowing Mr. A to speak freely. The interview was
lengthy, and Mr. A was permitted to discuss criminal and non-criminal matters.86
Given that the move of Mr. A was obviously not an impediment to the RCMP’s
ability to meet with him, it is difficult to understand why the first interview of
Mr. A had to be conducted under such rushed and far-from-ideal circumstances
– especially when the potential for negative consequences was so high and so
clearly foreseeable.
In his second interview, Mr. A indicated that he could identify all those involved in
Air India, and would cooperate if given anonymity and a reward. He also named
individuals involved in Sikh extremism. Again, he emphasized that he would not
be a witness, as his testimony was “indirect” and he feared for his life.87
Atkinson’s assessment was that Mr. A “…appears honest and did not seem to
exaggerate the facts.” Atkinson concluded that his information “…is not going
to put people in jail,” but “…it may be of value in answering questions and
providing further leads.” He stated that it was difficult to judge the value of his
information until such time as more of it was disclosed.88
Mr. A never wavered from his demands – anonymity and a reward. Mr. A’s
conditions were sent to Headquarters for consideration.89
The Government Debates the Issue of a Reward
Internal RCMP correspondence indicates that HQ’s opinion was that Mr. A had
potential as a source of information “vital to the file” and that the RCMP should
not be put off by his negotiation tactics.90
Ultimately, however, the RCMP took the position that it would not “…buy a pigin-a-poke,”91 meaning that it would not make any promises until they were sure
85
86
87
88
89
90
91
Exhibit P-291, item 67.
Exhibit P-291, items 58, 68.
Exhibit P-291, item 68.
Exhibit P-291, item 68.
Exhibit P-291, item 68.
Exhibit P-291, item 69.
Exhibit P-291, item 69.
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Volume Two: Part 2: Post-Bombing
that what Mr. A had to offer was of “value.”92 It is clear that the RCMP’s view of
“value” was narrow: evidence admissible in a court of law. Intelligence which
could possibly provide new avenues of investigation was not a consideration for
the RCMP. According to the AGC,
If it turned out that Mr. A did indeed have evidence which
could potentially be used in a criminal prosecution, it was
the responsibility of the RCMP to ensure that the viability of
that evidence be preserved for the future. Making promises,
providing rewards, and accepting the word of a source of
unknown reliability would be ideal conditions for an abuse of
process application, or at the very least a finding by the trier of
fact that the evidence is unreliable and incredible and must be
rejected.93
Not surprisingly given the position taken, and in light of the fact that the
RCMP knew in advance that Mr. A would not divulge his information without
concessions, the RCMP ended up with neither intelligence nor evidence to
advance its investigation.
With regard to the benefit sought by Mr. A, one of the government agencies
stated that they would reluctantly support the reward, but only after a thorough
consideration of whether the information provided by Mr. A was “vital.” However,
that agency also asked other government agencies to note that the Third Party
had “…already rejected Mr. A’s information” prior to his coming to the agencies’
attention. This view of events may be due to incomplete interagency reporting.
There is considerable uncertainty surrounding Mr. A’s initial “agreement” with
the Third Party. According to the Inquiry’s record, a deal had been worked out
with other authorities, but the deal expired and the Third Party was not given
the detailed information Mr. A purported to have. It is not known why the deal
was allowed to expire, but there is no indication that it reflected a decision on Mr.
A’s part to withhold his information. RCMP officers who reviewed the Third Party
files noted that Mr. A was not required to provide details to the Third Party as a
condition of the agreement, and they had the impression, based on this review
of the Third party information, that the source could provide “…considerably
more detailed information.” Indeed, the RCMP felt that any dismissal by the
Third Party of Mr. A’s information would have been premature.94 It appears that,
at the time the benefit was being considered, the government agencies may
have erroneously relied on the belief that the Third Party had already rejected
Mr. A’s information. In the end, the government agencies never approved the
benefit sought. When asked at the Inquiry whether the requests made by Mr. A
were reasonable, Eshleman replied:
92
93
94
Final Submissions of the Attorney General of Canada, Vol. I, para. 266.
Final Submissions of the Attorney General of Canada, Vol. I, para. 268.
Exhibit P-291, items 3, 48, 51, 70.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Yes, I think they were reasonable and, yes, I think that – he
would have moved this investigation forward significantly and
it was simply a lost opportunity; pretty tragic, actually.95
The RCMP Rejects Mr. A’s Further Offer of Information
Fourteen months after the second RCMP interview, Mr. A came forward to
CSIS with new information about recent Sikh extremist activity and with
new information on Air India. Mr. A asked that his identity as a source not be
revealed to anyone by CSIS. CSIS responded that it would protect information he
provided that was not of a criminal nature, but that Mr. A had already established
a relationship with the RCMP of his own volition. Given the way in which the Mr.
A narrative unfolded, this is a questionable statement. In any event, CSIS passed
information about this offer to the RCMP.96
According to internal RCMP correspondence, Mr. A had information in relation
to another Sikh extremist event, as well as information suggesting that the
same people responsible for the Air India bombing were planning something
in Canada. Mr. A offered to involve himself in conversations with other people
which the RCMP could tape and to involve himself in conversations with
individuals, which would show their involvement in Air India. However, the
RCMP declined this offer. In correspondence from an RCMP analyst to the OIC of
the National Security Offences Task Force, it was suggested that “…before this
line of investigation takes place that Mr. A must be more forthcoming with his
knowledge, impressions, unidentified persons and unidentified conversations.”
The analyst felt that the RCMP had “…dealt with Mr. A in the past with poor
results,”stating further that Mr. A was“…an opportunist and his motivation always
seems to be personal.”97 It appears that the RCMP passed up this opportunity to
uncover potentially significant information about the Air India bombing.
Conclusion
The Mr. A story is, in the words of Eshleman, one of “…lost opportunity that
shouldn’t have occurred and it was detrimental to both organizations.”98 Not
only did the RCMP fail to benefit from Mr. A’s information, but the manner in
which Mr. A was dealt with by Canadian agencies – first by CSIS, who promised
him anonymity and then reneged on that agreement, and then by the RCMP,
who insisted on direct and exclusive access to Mr. A and then prematurely
discounted his value – meant that the benefit of Mr. A’s information was lost
to the Canadian government as a whole. The perceived conflicting “purposes”
of the two agencies reveals a more fundamental problem at hand. In the
counterterrorism context, the purpose of any institution’s involvement must
be to contribute to a safer Canada. This point is missed when agencies act in
95
96
97
98
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9447.
Exhibit P-291, items 77, 78.
Exhibit P-291, item 79.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9436.
27
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Volume Two: Part 2: Post-Bombing
isolation and in furtherance of their own perceived mandates to the exclusion
of all others, which is what occurred in the Mr. A narrative.
The Mr. A story is an illustration of how the differences in the agencies’ perception
of their mandates led to their markedly different approaches to sources. CSIS
viewed human sources as one of its greatest assets, to be relied upon for longterm quality intelligence, and therefore to be nurtured and protected to the
greatest extent possible. The RCMP was focused on the prosecution imperative
and expected sources to be turned into witnesses who would appear in public
before a court of law. Further, while the RCMP had a certain level of comfort
dealing with informants facing criminal charges who, it was felt, provided
reliable information,99 the RCMP expected its sources, outside of this penal
context, to act with a complete lack of self-interest. The result was an overly
skeptical approach to sources which led the RCMP to miss opportunities to gain
intelligence and to further its investigation.
The RCMP’s rigid view of its own mandate paralyzed its investigation with respect
to Mr. A. Mr. A was an individual who would not help authorities without certain
assurances, which CSIS was unable to give and which, in the RCMP’s view, posed
difficulties for his utility as a witness. The RCMP could not see a way out of this
dilemma: Mr. A would not assist the RCMP without his requirements being
met, and if his requirements were met, his value as a witness – in the RCMP’s
view – would be nullified. Whether or not this “nullification” was a necessary
consequence, the RCMP did not even seem to consider the possibility that the
“intelligence” Mr. A could offer might add value to its investigation apart from
any immediate evidentiary purpose.
The RCMP also showed disregard for CSIS’s interest in Mr. A. Its public and
aggressive approach to Mr. A illustrated a certain indifference to the potential
long-term utility of Mr. A toward the fulfillment of CSIS’s mandate. In demanding
sole and direct access to Mr. A, the RCMP missed an opportunity to capitalize
on the goodwill that CSIS had garnered with Mr. A, which might have enabled
them to benefit from further information he could have provided through CSIS.
The RCMP’s aggressive all-or-nothing approach to Mr. A is also indicative of its
approach to sources as criminals and not as assets.
In the case of CSIS, it stayed squarely focused on its own intelligence-gathering
imperative. Despite its earlier agreement with the RCMP to share information
learned in the course of its interview with Mr. A, and in spite of the fact that the
criminal importance of Mr. A’s information was obvious to CSIS,100 CSIS turned
Mr. A into a source and withheld information, including information about Mr.
A’s identity. In addition, CSIS failed to modify its usual practices and, for example,
continued to destroy its interview notes, which could have led to problems later
if Mr. A’s information had ultimately been used in the prosecution.
99 Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5450-5451.
100 Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9421.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The AGC submissions state that all reasonable steps were taken “…to get Mr.
A’s evidence, to investigate his claims, to attempt to corroborate the little
information he did provide.”101 To the contrary, the Mr. A narrative shows that
these efforts, on an institutional level, were greatly lacking.
The ultimate value of Mr. A’s information is an open question, since he would
not disclose the entirety of his information without being awarded the benefit
he sought. However, after a review of all the available information, including
information not available to Eshleman, and classified information that cannot
be discussed here, what can be said is that the information he did provide has
never been contradicted.
1.2 Tara Singh Hayer
Introduction
Tara Singh Hayer was a Canadian newspaper publisher. He was a “Sikh by religion”
and was born and raised in the Punjab state of India. He immigrated to Canada
in 1970 at 34 years of age. In Canada he worked as a miner, teacher, truck driver
and manager of a trucking firm before becoming a full-time journalist. In 1978,
he established a community newspaper, the Indo-Canadian Times, and built it
into the leading Punjabi-language newspaper in North America. The weekly
newspaper was printed in Surrey, British Columbia, and distributed in Canada,
the United States and England.102
Throughout his career, Hayer often reported about “…tensions between the
Government of India and Sikhs both in Canada and abroad who promote
a separate country status for the Punjab area of India which would be called
Khalistan.” He was described at various times as a “…strong supporter of the
Khalistan movement,” “…a harsh critic of the Indian Government” and “…a
constant critic of the Sikh community’s leadership.” His criticism also extended
to leaders of extremist organizations “…promot[ing] Khalistan through violent
means”, such as the Babbar Khalsa (BK).103 Hayer was outspoken in his rejection
of violence and never wavered in his commitment to tolerance, peace and
understanding between cultural communities. He consistently railed against
members of the Sikh community who would use violent means to further their
goal of a separate state of Khalistan in India.104
In 1992, Hayer was honoured with the commemorative medal on the 125th
Anniversary of Canada, and received a certificate of appreciation from the
RCMP. He also received the Journalist Award from the Municipality of Surrey for
his courageous and outstanding contribution to Punjabi journalism in Canada,
as well as the International Award of Distinction for Journalism from the
International Association of Punjabi Authors and Artists. In 1995, he received
the Order of British Columbia.
101
102
103
104
Final Submissions of the Attorney General of Canada, Vol. I, para. 270.
Exhibit P-431, p. 1.
Exhibit P-431, p. 1; HMTQ v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 24.
Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9528-9530.
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After the Air India disaster, Hayer had contact with both CSIS and the RCMP. He
provided information about an admission which Ajaib Singh Bagri was said to
have made in England about his involvement in the bombing. After many years,
Hayer finally agreed to become a witness in the Air India case. However, he was
murdered before the prosecution began.
Hayer had long been the victim of repeated threats, violence and intimidation.
In January 1986, a bomb was left at the print shop for the newspaper run by
Hayer. Still, he was unwilling to stop speaking out in support of his beliefs.
This, according to one of the RCMP members who interacted with Hayer,
made it difficult to provide protection for him. Hayer did not want “hands-on
protection.” He wanted to continue to be free “…to publish his articles and run
his newspaper and carry on his life” in as normal a manner as possible. There was
a constant threat to Hayer at the time, as his articles drew negative attention
from the groups he criticized.105
In August of 1988, Hayer survived an attempt on his life that left him paralyzed
in a wheelchair. On November 18, 1998, Hayer was shot to death while getting
out of his car in the garage of his home in Surrey, BC.106
Another publisher, Hayer’s friend Tarsem Singh Purewal, who owned the British
newspaper Desh Pardesh (DP), and who was also believed to be aware of Bagri’s
admission about his involvement in Air India, was murdered in England in 1995.
To this date, neither murder has been solved.
David (“Dave”) Hayer, son of the late Tara Singh Hayer, and a sitting member
of the BC Legislature for the riding of Surrey-Tynehead and the Parliamentary
Secretary for Multiculturalism and Immigration, testified at the Inquiry with his
wife, Isabelle (Martinez) Hayer. Their testimony took place on what would have
been Tara Singh Hayer’s 71st birthday.107
Tara Singh Hayer’s story illustrates some of the CSIS/RCMP cooperation
issues that arose in the Air India investigation when both agencies received
information from the same individual. Most importantly, the history of Hayer’s
and his family’s dealings with police demonstrates serious deficiencies in the
RCMP’s ability to deal with, and protect, an individual who was in possession
of information that was vital to the Air India investigation, and who was willing
to assist the RCMP, though not necessarily on the RCMP’s terms. The Force was
unable to take full advantage of the help Hayer could offer. It also failed to
ensure that those involved in his protection and in the investigation into his
attempted murder had a sufficient understanding of the full context, and this,
in turn, impacted on their ability to respond properly to the threats to Hayer and
to coordinate protection with the investigation.
105 Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9530, 9653-9654.
106 Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9529.
107 Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9528-9529.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Contacts with CSIS and Initial Sharing of Information
After the bombing of Air India Flight 182, Hayer became a community contact
for CSIS.108
Neil Eshleman was an investigator at the CSIS BC Region who was assigned to
the task force formed by CSIS in the months immediately following the bombing
to assist the RCMP in its investigation. His responsibilities there included
conducting community interviews and developing sources. Eshleman spoke to
Hayer on a number of occasions.109 He testified:
Mr. Hayer was one of many individuals that we had
approached. He was, from a community contact point of
view, an ideal individual. He was a newspaper person; he was
informed on the community; he understood the dynamics
of the community; he had reasonable general insight into
the various factions of the Sikh extremism issues that were
reported in his newspaper; he was an interesting person to talk
with.110
Eshleman explained that community contacts were “…really just members of the
community, be it executive in the temples, be it well-informed businesspersons
within the community.” In order to acquire information about the Sikh
community, CSIS investigators first spoke to community members to obtain
general information, and to send a message to the community about CSIS’s
interest and role. Those “community contacts” could be distinguished from CSIS
sources, whose level of reliability or credibility had been established through
CSIS procedures and who might be tasked by CSIS to take certain actions.
Community contacts could provide insight about what was happening in the
community, and they could direct CSIS to other knowledgeable individuals who
might have insight or information.111
Because of his profession as a reporter, Hayer not only agreed, at times, to have
informal discussions with Eshleman about the dynamics of the community, but
also he was interested in reporting about the CSIS investigations. This caused
Eshleman to be “particularly careful” in his discussions with Hayer.112
Eshleman made it clear to Hayer that their discussions would remain confidential.
He maintained a level of trust and developed a rapport such that, eventually,
Hayer felt comfortable enough to reveal information, which he had learned
during a trip to England, that had “…a direct bearing on the Air India incident.”
Eshleman explained that the information was then “…passed to the RCMP to
develop as they saw fit.”113
108
109
110
111
112
113
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9380, 9405.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9376-9377, 9408.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9405.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9379-9380, 9407, 9409-9410.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9405-9407.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9408-9409.
31
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Volume Two: Part 2: Post-Bombing
However, CSIS initially received Hayer’s information second hand, and was not
aware at first that Hayer was the individual in possession of the information.
On March 14, 1986, CSIS HQ wrote to RCMP HQ with news that the Service
had obtained information about the Air India crash.114 Russell Upton, the Chief
of the South Asia CT Desk, reported that, according to the information, Ajaib
Singh Bagri, the “…leader of the Babbar Khalsa in the Kamloops BC area, would
have informed associates that he was responsible for delivering the bag to the
Vancouver International Airport.” Upton indicated that Bagri was reported to
have said that he “…turned the bag over” to someone who worked at the airport
“…who in turn checked it in through CP Air.” Bagri was also alleged to have said
that Surjan Singh Gill was initially designated to take the bag to the airport but,
because he had changed his mind, Bagri had to do it. The information received
by CSIS indicated that, after the bombing, Parmar had considered killing Gill
because he was a “weak link,” but decided against doing so to avoid unwanted
attention.115
Upton’s message concluded that the information, if accurate, raised “…many
possible scenarios that could explain how the luggage was boarded and
who was involved.” Upton asked for RCMP HQ’s “analysis and views” on the
information. He added that the CSIS BC Region would provide a full briefing to
the RCMP E Division Air India Task Force, and noted that CSIS was prepared “…
to extend the fullest cooperation on this matter.” He stated, however, that “…the
source of this information is a delicately placed one and no action should be
taken to endanger this source.”116
On the same day, March 14, 1986, RCMP HQ forwarded the CSIS message to
the E Division Air Disaster Task Force and asked that the Task Force provide its
views. In the evening, Eshleman and his colleague J. Richard (“Dick”) Redfern
presented the information to Supt. Les Holmes, the OIC of the E Division Task
Force and other members.117
On March 19, 1986, Eshleman and Redfern visited the E Division Task Force again
and provided a report to Holmes.118 The report elaborated on the details of the
information already presented on March 14th and provided CSIS’s analysis.119 It
stated that CSIS had received information on March 9, 1986, indicating that Bagri
was the “…individual primarily responsible” for dropping off at the airport the
bag that caused the Air India explosion. According to the information, Bagri had
admitted this during a trip to London, England. He reportedly said that he had
to deliver the bag because Gill had changed his mind suddenly and resigned
from the BK. Bagri apparently added that Parmar and his associates decided
after the bombing that Gill was a liability who had to be killed, but “…it was
114
115
116
117
118
119
Exhibit P-101 CAA0418(i).
Exhibit P-101 CAA0418(i), pp. 1-2.
Exhibit P-101 CAA0418(i), p. 2.
Exhibit P-101 CAA0420(i).
Exhibit P-101 CAA0436(i), p. 1.
Exhibit P-101 CAF0444.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
then voiced” that “…killing Gill would bring unwanted attention on the Babbar
Khalsa at a most inopportune time.”120
The CSIS report indicated that the individual in possession of the information
received it while in England in November 1985. At the time, CSIS still did not
know that this person was Tara Singh Hayer. The report then provided an
analysis of the importance of Bagri’s admission of using someone at the airport
to check in the bag in light of the existing information available. The statement
from Jeanne (“Jeannie”) Adams, the CP Air ticket agent who had checked in the
suspect luggage, was summarized, and it was noted that the Unidentified Male
(UM) who insisted that the bag be interlined had mentioned that he would “…
go get [his] brother” when the agent initially refused.121 CSIS then noted that
Bagri had a brother, Amrik Singh Bagri, who was “…believed to be a janitor /
cleaner” at Vancouver International Airport, whose description was close to the
description provided by Adams of the UM who checked the bag, and whose
photo was similar to the sketch prepared on the basis of Adams’ recollection.122
CSIS also reported that, according to its information, Ajaib Bagri was absent from
his work from the afternoon of Friday, June 21st to the afternoon of Monday,
June 24th and that his vehicle was seen at Parmar’s residence in the evening
of June 21st. The description of driver and passengers was not recorded on
that occasion, however, but simply noted as “UM, UF [unidentified female] and
child.” CSIS added that Ajaib Bagri was in London, England in October 1985, a
few weeks before the individual in possession of the information was there, and
that this would have made it possible, in terms of time frame, for the individual
to have heard about the statements made by Bagri.123
CSIS noted that “…one of the major questions that has remained unanswered
throughout [the Air India] investigation” was the identity of the persons who
checked the suspect bags. Given the new information and the information
previously available, including Bagri’s “probable presence” in Vancouver on June
22nd, his brother’s employment and the comment by the UM about getting his
brother, CSIS concluded that it was “…very likely that Ajaib and Amrik S. Bagri
are the individuals who were responsible for delivering and checking in at least
one of the bags responsible for the aircraft disasters.” If Amrik Bagri was the UM
that Adams dealt with, he would be specifically responsible for the downing of
Air India Flight 182. CSIS speculated that Ajaib Bagri and his brother “…may also
be responsible for the delivery [later that morning] of the second bag” which
caused the Narita explosion, but noted that there was “…no information at this
time to substantiate this.” Further, if Amrik Bagri was the person who checked
the first bag, CSIS felt he most likely did not personally check the second one,
as Adams would have remembered him, and therefore it may have been Ajaib
Bagri himself who checked it – if he was involved in delivering it.124
120 Exhibit P-101 CAF0444, p. 2.
121 Exhibit P-101 CAF0444, pp. 2-3.
122 Exhibit P-101 CAF0444, pp. 3, 5. It should be noted, however, that Adams provided several different
descriptions, was never certain about her recollections of the UM’s appearance and indicated that the
composite drawing prepared was wrong: See Section 2.3.2 (Post-bombing), Mr. Z.
123 Exhibit P-101 CAF0444, p. 3.
124 Exhibit P-101 CAF0444, pp. 3-4.
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Volume Two: Part 2: Post-Bombing
CSIS noted that the “…weakness of this scenario,” which had already been
discussed with the RCMP during the March 14th briefing, was that it would
not make sense for the BK to use someone working at the airport, who could
easily be recognized by the ticket agent, to check the bag. However, since CSIS
surveillance had observed Gill visiting Parmar on the morning of June 21st and
handing him an envelope, it was possible that Gill backed out within a few
hours, and that since only “…a select few [were] in the know,” this forced Parmar
to select Ajaib Bagri as an alternative. Since Bagri spoke broken English, he may
not have been comfortable checking in the bag himself and may have asked
his brother’s assistance, without his brother having been involved in the earlier
planning stages. In fact, CSIS felt that it was likely that Amrik Bagri did not know
what was in the bag, but was simply told by Ajaib Bagri to interline it on Air
India, and that this would explain why he was not concerned about having
an argument with the ticket agent and thereby bringing attention to himself,
and also why he was not worried about mentioning that he would go get his
brother.125 The CSIS report cautioned:
It is stressed that this noted scenario is speculation, however
it does fit the limited pieces of information we currently
possess.126
CSIS added that it was also possible that Amrik Bagri was “…in on the planning
of these bombings,” in which case he made a “…great mistake by arguing with
Adams, thus inviting attention to himself.”127
In conclusion, CSIS listed the “…areas that must be addressed,” including trying
to have Adams identify Amrik Bagri in a photo lineup, making inquiries about
Amrik Bagri’s work schedule and activities on June 22nd, making inquiries to his
co-workers about his attitude and about whether he had shaved his moustache
during the relevant time period, and conducting interviews of Gill and the Bagri
brothers “…in the manner most conducive to success.” CSIS added that it had
a “…certain insight into Gill and his attitudes due to various sources targeted
against him,” and that Gill did appear to be a “weak link” with knowledge of
the events. The Service offered to provide its opinion on Gill’s “attitude and
approachability” prior to RCMP investigators approaching him.128
Eshleman and Redfern transmitted a copy of the report and analysis to CSIS
HQ, noting that it was “…very well received by Supt. Holmes, with favourable
comments on the information and analysis.”129
On March 20, 1986, RCMP HQ advised the E Division Task Force that a meeting
had been held at CSIS’s request on the previous day to “explore the possibilities”
created by the new CSIS information. CSIS representatives Archie Barr and
Chris Scowen had met with RCMP D/Comm. Norman Inkster, D/Comm. Henry
125
126
127
128
129
Exhibit P-101 CAF0444, pp. 4-5.
Exhibit P-101 CAF0444, p. 5.
Exhibit P-101 CAF0444, p. 5.
Exhibit P-101 CAF0444, pp. 5-6.
Exhibit P-101 CAF0444, p. 9.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Jensen and C/Supt. Norman Belanger, in charge of the national RCMP Air India
Task Force, and had advised that CSIS was not yet aware of the identity of the
individual who was actually in possession of the information about Ajaib Bagri.
A “direct meeting” between CSIS and this individual could be possible, but only if
“…a guarantee of complete anonymity” was extended. The CSIS representatives
explained that the individual wanted “…no contact with police” at the time.130
During the HQ meeting, it was agreed that CSIS would extend the guarantee
of anonymity to the individual. This would facilitate the identification and first
contact. It was also agreed that the first meeting would be “…carried out by CSIS
alone.” If the “…knowledge and credibility” of the individual met “reasonable
expectations,” the initiative of introducing an RCMP investigator at the second
meeting would be developed. If the initiative was successful, the second meeting
could then involve both CSIS and the RCMP. RCMP HQ advised E Division that
the CSIS BC Region Director had already been tasked accordingly.131
After the HQ meeting, CSIS conducted its interview with the individual in
possession of the information, Tara Singh Hayer. CSIS HQ then wrote to RCMP
HQ to report the results of the interview. At that time, CSIS did not disclose
Hayer’s identity, but only reported the information that was learned during
the interview. CSIS advised that the individual interviewed was friends with
Tarsem Singh Purewal, a Sikh separatist who owned the British newspaper
Desh Pardesh (DP) and who gave coverage to “…a wide spectrum of militants
and groups advocating a separate state,” including the Babbar Khalsa. The BK
had for some time frequented the DP offices, and the individual interviewed
advised CSIS that, in late October or early November 1985, Bagri visited the DP
and attended a small drinking party where he sat with four or five others and
engaged in conversation. When the topic of the Air India/Narita bombings came
up, Bagri admitted his involvement and told of a meeting at Parmar’s home,
where the “…material was laid out.” The meeting involved Parmar, Bagri, Gill and
a person who worked at the airport. The person interviewed did not know when
the meeting took place or who the airport employee was. He thought that the
“material” which was laid out referred to the explosive devices, but it could have
been the plans.132
Bagri was also alleged to have said that Gill was the person designated to “…
transport the explosives, hidden in luggage, to the airport” but who had gone
home after the meeting and, “…soon after, if not immediately,” had resigned
from the BK. Bagri commented that Gill was “…too scared to participate” and
that he had to deliver the luggage himself in his car. Bagri was said to have also
admitted that he wanted Gill killed because he was the “weak link,” but that
Parmar had “…vetoed the idea after some consideration,” not wanting to bring
undue attention to themselves. The person interviewed explained that Purewal
was not in on this conversation with Bagri as he was in other parts of the DP
offices, and that Bagri’s comments were repeated to him by an Unidentified
Male unknown to him.133
130
131
132
133
Exhibit P-101 CAA0424(i).
Exhibit P-101 CAA0424(i).
Exhibit P-290, Admission 1, p. 1.
Exhibit P-290, Admission 1, p. 1.
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Volume Two: Part 2: Post-Bombing
CSIS reported that the person interviewed understood that his knowledge “was
hearsay,” and did not want to get involved in the court process, though he was
willing to tell CSIS about the information. CSIS added that the individual had
stated that if his name was released after the interview, he would not discuss the
information again, as he felt that “…his personal safety would be jeopardized if
it became known that he had provided information to the authorities.” In fact,
CSIS reported that, in order for the interview to continue, the Service had to
reiterate “on several occasions” that the individual’s “security and confidentiality”
were important to CSIS. CSIS wrote that the individual interviewed said that he
did not want to speak to the RCMP, in part because of a belief that “…Canadian
police and courts would not be able to effectively solve the crime,” but that CSIS
could transmit to the RCMP “…what information was necessary about what he
learned in England.”134
As it turns out, Hayer was already in contact with the RCMP and provided his
information directly to the Force during the same period.
Contact with the RCMP – Attempted Bombing of Modern Printing in 1986
In January 1986, a bomb was left at the offices of Modern Printing House, where
Hayer’s newspaper the Indo-Canadian Times was prepared for mailing.135 The
RCMP Surrey Detachment initially took charge of the investigation into this
incident, which could have been an attempt on Hayer’s life.136 On January 26,
1986, members of Surrey’s Explosive Detection Unit went to Modern Printing
and disarmed the explosive device. Later that morning, officers from the Serious
Crimes Unit of the Surrey General Investigation Section (GIS) took over the
investigation. When questioned, Hayer told police that he was often criticized
by readers for the various articles he printed and that, as a result of an article he
had reproduced in December 1985 dealing with the infiltration of Indian agents
into the ISYF, he had received phone calls threatening to murder him and to
blow up his house. These threats had not been reported to the police.137
The investigation into the attempted bombing of Modern Printing was
eventually transferred to two members of the Surrey Detachment National
Crime Intelligence Section (NCIS): Corporal Robert Solvason and his partner,
Constable Laurie MacDonell. The officers became the “…main point[s] of
contact” between the RCMP and Hayer.138
Solvason had begun to work at the Surrey Detachment in 1978, and in 1980
he was transferred to NCIS. As a result of his previous experience in general
investigations and intelligence units in the RCMP, he had developed “…
considerable experience and expertise in the development and handling of
134 Exhibit P-290, Admission 1, pp. 1-2.
135 Exhibit P-101 CAF0464; Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11559, 1160811609.
136 Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11559.
137 Exhibit P101 CAF0464, pp. 2-3.
138 Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11557, 11559; Testimony of Laurie
MacDonell, vol. 76, November 15, 2007, pp. 9608, 9611-9613, 9616.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
sources.” He was seconded to the Air India Task Force in 1985, but also continued
to carry out his duties at the Surrey Detachment NCIS. After the Modern
Printing incident, Solvason was released from the Air India Task Force back to
Surrey NCIS to work on the Indo-Canadian Times investigation. He assisted the
investigators with the matter, and ultimately took over the investigation and
began communicating with Hayer.139
Over time, Solvason and MacDonell built up a good rapport with Hayer and had
frequent contact with him. MacDonell explained that he looked to Hayer as a
resource to help educate him in the “…ways of the community and situations
that were arising.”140 Solvason testified that, throughout his dealings with him,
Hayer never asked for money or any reward or other favours.141 He explained
that Hayer was never an agent for the RCMP, and described his relationship with
him and his perception of Hayer’s motivations:
MR. FREIMAN: Did you consider him to be under your control,
an agent for you?
S/SGT. SOLVASON: No. No, he’s – Mr. Hayer was a – I spent a
lot of time talking to him and I had respect for him because he
was motivated by his ideologies. He never got anything from
the RCMP. He didn’t ask for anything and if something was
offered, he’d probably refuse it. He believed strongly in Canada
and Canada as a place for old problems didn’t – had no place.
In other words, things from India – we had to start fresh and
make it a better place to live and that it was everybody’s duty
to assist in that. He had principles. He was a very brave man. He
paid the price for it.142
Solvason emphasized that Hayer “…didn’t receive anything from the RCMP or
anybody else I’m aware of.”143
Eventually, Hayer told Solvason and MacDonell about some information that
he had obtained from Tarsem Singh Purewal, the “…owner/operator of a Sikh
weekly newspaper called the Desh Pardesh in Southall, England.” Hayer said that
Purewal informed him that Bagri had been in England after the Air India disaster
and, in speaking with “…a number of individuals at the Desh Pardesh office,” had
“…admitted to his role or his responsibility for the Air India disaster.”144
MacDonell confirmed during his testimony before the Inquiry that the
information received by Solvason and himself from Hayer was similar to the
information provided to the RCMP by CSIS in the spring of 1986. MacDonell,
139
140
141
142
143
144
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11545, 11559.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9616-9617, 9653.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11560.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11560-11561.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11593.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11559-11560.
37
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Volume Two: Part 2: Post-Bombing
however, was never advised that CSIS had received the information, and he
had no knowledge of the ongoing dialogue between the agencies about this
matter.145
Sorting Out the Confusion: RCMP Takes the Lead
It took some time for the RCMP to sort through its own information and to realize
that it was receiving separately the same information that was being provided
by CSIS. In the meantime, acrimonious debates took place between the agencies
because of CSIS’s initial reluctance to reveal the identity of Hayer, in light of his
insistence on confidentiality during the interview. As it turns out, the RCMP was
fighting for access to an individual who had already developed a good rapport
with its own officers and provided them with the same information he gave CSIS,
and CSIS was fighting to protect the identity of an individual already known to
the RCMP.
To complicate matters, the RCMP also received information similar to the Hayer
information from another source, only a short time after CSIS provided the
RCMP with its report on its interview with Hayer, at the time refusing to identify
him. On April 15, 1986, Insp. John Hoadley and Cpl. Don Brost of the E Division
Task Force received information from a “casual source,” who advised that Surjan
Singh Gill had been “…part of the planning and purchase of the tickets for L. and
M. Singh,” but had backed out at the last minute.146 As a result, according to the
casual source, Parmar had Ajaib Bagri deliver the baggage to the airport, where
he turned it over to his brother Amrik Bagri, a janitor at the airport. The casual
source even pointed out that Amrik Bagri’s description matched the description
given by Jeannie Adams.147 The RCMP did not immediately make the connection
between this information and the information it was receiving from CSIS.
Meanwhile, in Surrey, Solvason and MacDonell were continuing their contacts
with Hayer. It is not known exactly when he revealed his information about
Bagri’s alleged admissions in England. In testimony, MacDonell could only
confirm that the information was received at some point prior to May 16,
1986, since officer notes showed that Solvason discussed it with Air India Task
Force members on that date.148 Other references in the documents produced
before the Inquiry tend to indicate that the information was, in fact, received in
April. On April 9th, a meeting had been held between the Surrey Detachment
and CSIS about this matter,149 and on April 24th, a Surrey NCIS report referred
to information “…that Bagris[sic] had been informing people that he placed
the bomb himself.”150 MacDonell explained in testimony that, at Surrey NCIS,
the information provided by Hayer was immediately recognized as “…quite
significant for the Air India investigation.” The officers would have immediately
145
146
147
148
149
150
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9618, 9625, 9629.
Exhibit P-101 CAA0436(i), p. 4, CAF0445, p. 7.
Exhibit P-101 CAF0445, p. 7.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9620-9621; Exhibit P-101 CAF0507, p. 3.
Exhibit P-101 CAA0443(i), p. 1.
Exhibit P-101 CAA0440(i), p. 2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
advised their line officer, who, in most cases, would have contacted the District
Intelligence Officer (DIO) and then the Air India Task Force. MacDonell recalled
preparing a report about the Hayer information, and he explained that the DIO
would have been in charge of disseminating the report.151
Because MacDonell was not aware of the discussions that were taking place
with CSIS about information very similar to Hayer’s information, he could not
advise the Air India Task Force directly that the identity of the person providing
the information to CSIS might already have been known to the Force. However,
he felt that, given the urgency and importance of the information, it would have
been passed verbally within the Division before a report was even prepared.152
Sgt. Robert Wall, second-in-command at the Task Force, could not recall exactly
when he was advised that Solvason and MacDonell had received information
from Hayer about admissions made by Bagri while in England, and recalled “…
only in general terms” that he eventually obtained the information.153
Whether it was because of an ineffective information flow between HQ and the
Division, difficulties in disseminating the information within the Division, or
a failure to recognize the connection between the information received from
various sources, the RCMP did not understand in April that its investigators were
already speaking with the individual interviewed by CSIS, or that the Force was
also receiving similar information from a separate, “casual source.”
On April 23, 1986, RCMP HQ wrote to the E Division Task Force and advised
that, since CSIS had provided information about its interview, “…numerous
discussions between the highest levels of both services” had taken place. The
Force had adopted the position, and was “insistent,” that RCMP investigators
required direct access to the individual that CSIS had interviewed. This direct
contact was said to be necessary for the following reasons: the seriousness of
the “…allegations and crimes involved”; the need to “…neutralize the filtering
effect” which was felt to result from the information being received through
CSIS; the RCMP’s intention to “…explore the first possible penetration” into the
groups believed to be responsible for the bombings; the need to “…assess from
a police perspective” the validity of the information; and the need to subject
the individual “…to a complete police debriefing with the aim of probing and
clarifying all pertinent issues and assessing the motivation, knowledge and
credibility” of the individual. HQ advised the Division that, in its discussions with
CSIS, the RCMP had extended a guarantee to protect the individual’s identity,
unless he turned out to be “…criminally involved as a participant or witness to
the incidents being investigated.”154
CSIS took the position that the consent of the individual was required before an
RCMP introduction could be undertaken. The RCMP responded that, should the
Service not obtain the individual’s consent, “…other options would be pursued,”
based on the RCMP’s own knowledge of this matter. Following those discussions,
151
152
153
154
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9618-9620.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9619-9620, 9629.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9690-9691, 9694.
Exhibit P-101 CAA0434(i), pp. 1-2.
39
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Volume Two: Part 2: Post-Bombing
CSIS met with Hayer to discuss the “RCMP access,” but felt that the meeting “…
was not conducive to discussing this issue.” As a result, CSIS planned to address
the matter again with the individual during an upcoming meeting.155
In the meantime, RCMP HQ asked the E Division Task Force in its April 23rd message
“…not/not to initiate any divisional action based on the CSIS information.” HQ
reported that the issue of direct RCMP access to the individual in possession of
the information was expected to be resolved soon at the HQ level. Depending
on the response received from CSIS, the “…possible investigative options” would
be examined, and appropriate action would be taken.156
On April 30, 1986, the E Division Task Force wrote to HQ to advise of the receipt
of the CSIS analytical report which had been provided to Supt. Holmes on March
19th. The Task Force provided a summary of the report, and advised that RCMP
investigators had confirmed Amrik Bagri’s employment as a janitor at Vancouver
Airport, but had also learned that he was suspended from work between June
2nd and July 3rd, 1985. Task Force investigators had also observed similarities
between photos of Amrik Bagri and the composite sketch prepared on the basis
of Jeannie Adams’ description.157 The Task Force reported:
To date, we have not been able to substantiate any further
information provided by C.S.I.S. or account the movements
of Amrik Bagri during June 1985. This aspect is still being
investigated; we are not hopeful in gaining any further info.158
The Task Force further noted that CSIS surveillance and RCMP long distance tolls
confirmed frequent contact between Parmar and Ajaib Bagri, including around
the time of the bombing. It then advised HQ, apparently for the first time, that
Hoadley and Brost had received information from a “casual source” that was “…
very coincidental to the information provided by CSIS BC Region.”159
The Task Force noted that its review of the information available created
“…considerable concern as to the validity and accuracy” of the recent CSIS
information. The investigative unit complained that it was“…regrettable that little
progress has been permitted to further the possibilities initially demonstrated
when CSIS surfaced their information” and added that “…as recent as 86-04-23,”
Eshleman of CSIS had been requesting copies of various statements obtained
during the investigation. To the Task Force, the information it was reporting
to HQ demonstrated “…in some way the difficulty in establishing sound, wellthought-out investigative initiatives and strategies.” The Task Force concluded
that it now had “…considerable information to reassess” before “…determining
what investigative initiatives can be pursued to further this investigation.”160
155
156
157
158
159
160
Exhibit P-101 CAA0434(i), p. 2.
Exhibit P-101 CAA0434(i), p. 2.
Exhibit P-101 CAA0436(i), pp. 1-2.
Exhibit P-101 CAA0436(i), p. 2.
Exhibit P-101 CAA0436(i), pp. 2, 4.
Exhibit P-101 CAA0436(i), p. 5.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
On May 2, 1986, RCMP HQ wrote to the E Division Task Force that, “…given
the situation here in HQ,” there was an “urgent requirement” for the Task Force
“…to supply, in clear and concise terms,” a comprehensive account of the
information received by Hoadley and Brost from the casual source. HQ asked
a series of detailed questions about the information. HQ noted that there were
“substantial differences” between the information obtained by Hoadley and
the CSIS information about allegations that Bagri was involved in the bombing.
HQ also specifically asked the Task Force to elaborate on the “…Surrey NCIS
information that Bagri has been informing people that he placed the bomb
himself.” HQ asked the Division to explain “what action” it was planning to take
to substantiate or refute Bagri’s claim, and requested an urgent reply.161
On May 6, 1986, HQ wrote to the divisional Task Force again, asking it to provide
the information previously requested, as it was “urgently required.”162
On May 8, 1986, the casual source who had provided information to Hoadley
and Brost was questioned again by Brost about the information.163
On May 10, 1986, the Division wrote to HQ and advised that on May 6th, a
meeting had been held with Messrs. Randil Claxton, Ken Osborne and Joe Wickie
of the CSIS BC Region. Several “related aspects” of the Air India investigation had
been discussed, but the main purpose was to obtain additional details from CSIS
about the information indicating that Bagri was involved in the bombing. The
Division reported that CSIS “…were unable to provide any further information”,
but confirmed that the original source of their information was “…one and the
same” as the person met by Hoadley and Brost. CSIS also confirmed that the
individual actually in possession of the information, whom they had finally
interviewed (i.e. Hayer), was “…insistent in not meeting with the RCMP.” No
additional information could be obtained from CSIS. The Task Force reported
that they discussed with the CSIS BC Region representatives their intention “…
to vigorously pursue” additional information or evidence through the RCMP
casual source.164
In response to HQ’s May 2nd questions, the Division advised that the identity of
the person in possession of the information (referred to as the “sub-source” in
the HQ telex) was unknown, as well as the association between that individual
and the person met by Hoadley and Brost, or whether either of them personally
knew Bagri. It was also not known how the information was obtained by
these individuals or when, but the Task Force noted that CSIS had indicated
having initially received the information on March 9, 1986.165 Finally, about the
information from Surrey NCIS, indicating that Bagri had been saying that he
placed the bomb himself, the Task Force simply advised that the information was
included in the Surrey NCIS report dated April 24th and provided the reference
for the report.166
161
162
163
164
165
166
Exhibit P-101 CAA0437(i).
Exhibit P-101 CAA0438.
Exhibit P-101 CAF0445, p. 7.
Exhibit P-101 CAA0440(i), p. 1.
Exhibit P-101 CAA0440(i), p. 2.
Exhibit P-101 CAA0440(i), p. 2. This Surrey NCIS report was not produced before the Inquiry.
41
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Volume Two: Part 2: Post-Bombing
On May 16, 1986, C/Supt. Belanger, the OIC of Special Projects at RCMP HQ (which
included the national Air India investigation), met with Scowen of CSIS HQ. At
that time, Belanger informed Scowen of the “…latest developments in Surrey,”
which had given the RCMP direct access to the individual in possession of the
information originally obtained by CSIS about Bagri’s admissions in England. It
was now known, by both agencies, that this individual was Tara Singh Hayer.167
Belanger explained to Scowen that the RCMP E Division Task Force had also
received information similar to the Hayer information (from the casual source),
except that the England incident had not been mentioned. Scowen indicated
that the CSIS BC Region had confirmed, as was suspected by the RCMP, that
the initial information received by CSIS, in fact, had the same origin as the
information received by the Task Force.168
Now that this was sorted out, and since Hayer was “now willing” to assist the
RCMP, Belanger requested that CSIS “…withdraw to preserve the integrity
of the criminal investigation” as well as to “…minimize the physical security
consideration” for Hayer. Scowen agreed, indicating that he would instruct the
CSIS BC Region to withdraw after a concluding interview with Hayer.169
On the same day at the E Division Task Force, Wall noted that “…CSIS accepted
our proposal re: Solvason’s source.” Solvason then went to the offices of the Task
Force in Vancouver and was advised of the agreement struck with CSIS about
his source. Wall made some notes about the Hayer information, indicating that
“[Purewal] in England knows everything,” and noted the names of the Desh
Pardesh employees who allegedly heard the Bagri admissions according to the
CSIS information. He then noted that Solvason would proceed with his dealings
with Hayer.170
MacDonell testified that, after the information was received from Hayer, Solvason
“…worked closely with the Air India Task Force” and personally communicated
directly with the Task Force on a regular basis.171
As for CSIS, Eshleman testified that this was the end of his involvement with
Hayer as a community contact. He explained:
It became very apparent that that information was potentially
very significant to the Air India investigation, and the RCMP
stepped in, if you may, and through agreement, if you wish to
describe it as that, had us cease our contact with Mr. Hayer and
they developed that contact on their own.172
167
168
169
170
171
172
Exhibit P-101 CAA0443(i), p. 1.
Exhibit P-290, Admission 2.
Exhibit P-101 CAA0443(i), pp. 1-2.
Exhibit P-101 CAF0507, pp. 2-4.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9625.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9409.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
On June 4, 1986, RCMP HQ sent a telex to the E Division Task Force and to
Solvason, the Non-Commissioned Officer (NCO) in charge of Surrey NCIS.
The telex reproduced in full two of CSIS’s earlier messages about the Hayer
information, and asked for clarification about a number of differences identified
between the information received from CSIS and the information which Surrey
NCIS had received from Hayer.173 HQ inquired about the number of individuals
present when Bagri made his admissions and the identity of those individuals,
and asked about the fact that, according to the CSIS information, Hayer had
learned about Bagri’s comments from an UM recently arrived from India, whereas
the Surrey NCIS reports stated that Hayer had obtained the information from
Purewal himself. HQ requested an urgent response, to be received within two
days.174 The documentary record produced to this Inquiry is silent as to what
response was provided by the Division.
On July 23, 1986, Solvason and the Operations Support Officer of the Surrey
Detachment, Insp. R.E. O’Connor, provided a report to the OIC of the E Division
National Security Offences Task Force (NSOTF), which was the unit now in
charge of the Air India investigation. The officers referred to two previous RCMP
HQ telexes, and indicated they were submitting their report “…for clarification
of our position” with Hayer.175 Hayer was not identified in the report, since the
RCMP had decided, because of the nature of the information he provided about
Air India and in order to protect his security, to take all necessary measures to
ensure that his identity was not revealed to anyone but the few RCMP members
directly involved with him.176
O’Connor and Solvason described Hayer as “…a practicing Sikh, whose interests
and motivations are the well-being of the Sikh community.” They indicated
that Hayer recognized that terrorist activity in the community did not further
the cause of Sikhs in Canada or elsewhere, and that “…with this premise being
established,” he “…resolved to improve the circumstances of the Sikh people”
and was “…highly motivated towards finding a solution to terrorist activity.”177
However, O’Connor and Solvason noted that Hayer, while very eager to assist
the RCMP approximately two months earlier, had since become “…increasingly
withdrawn and disillusioned” about the possibility of combating terrorism
and improving the circumstances of Sikh people through cooperation with
the police. A “…general frustration with the Canadian system of laws and
immigration” was cited as contributing to Hayer’s sentiment. He “optimistically
perceive[d]” the Canadian Government as a “lame duck,” in part because of
recent cases where bail had been granted to terrorists and charges withdrawn,
as well as because of the legal restrictions on police investigations of terrorist
incidents generally. Hayer was described as having a “limited understanding”
of the Canadian system, as it was a “radical departure” from the Indian system.
173
174
175
176
177
Exhibit P-101 CAA0448; Exhibit P-290, Admission 3.
Exhibit P-290, Admission 3.
Exhibit P-101 CAF0751, p. 1.
Exhibit P-408, Admission 9.
Exhibit P-101 CAF0751, p. 1.
43
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Volume Two: Part 2: Post-Bombing
He suggested that the Government had been “…ineffective in dealing with the
terrorist problem.” O’Connor concluded that Hayer had “…observed the course
of action taken and as a result, arrived at his current opinions.”178
O’Connor and Solvason reiterated that Hayer was not motivated “…by financial
or other considerations,” and noted that it was “unlikely” that he was “…making
any effort to manipulate events or invent material.” They noted that he was “…a
very powerful and influential Sikh leader in his own right,” and that he perceived
himself as “…a major figure in the Khalistan or Punjab government,” leading him
to believe that he had to “…maintain credibility for future diplomatic status.”
The officers reported that it was more likely that Hayer considered the police
“…ineffective in any circumstances” and that he could withhold knowledge he
had “…because of frustration or perceived incompetence on the part of the
police.”179
Finally, the officers expressed concern about the two RCMP HQ telexes referred
to at the beginning of the report because the identity of Hayer could have been
“…determined by examining the substance of these Telexes” which had been
distributed broadly to E Division and O and C Divisions. O’Connor specified
that he had concerns that “…the manner in which the information is analyzed
and reported” in the HQ telexes left “no doubt” as to who Hayer was. He was
concerned that this was directly contrary to the RCMP decision to protect
Hayer’s identity at all times.180
On September 27, 1986, Solvason and MacDonell met with Hayer and obtained
additional details about his information on Bagri’s admissions in England.181
The investigators noted in their report that Hayer appeared to be withholding
information about the Air India disaster. They stated that they had pointed out
to him that it was “…not difficult to theorize as to who may be responsible,
however at this point we’re in the position of seeking information of a [sic]
evidentiary value.”182
The First Plan for Travel to England with Hayer
After Solvason began speaking regularly with Hayer and, after he had provided
his information about Air India, Hayer expressed a willingness to consider
providing assistance to the RCMP. He said that he was going to England, where
he would be talking to Purewal again. Solvason asked him if he would be willing
to wear a recording device or body pack during this conversation, and Hayer
agreed.183
178
179
180
181
182
183
Exhibit P-101 CAF0751, pp. 2, 4.
Exhibit P-101 CAF0751, pp. 2-3.
Exhibit P-101 CAF0751, pp. 2, 4.
Exhibit P-101 CAF0445, p. 6, CAF0752, p. 2.
Exhibit P-101 CAF0752, p. 6.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11559-11560.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
On May 22, 1986, Solvason visited the offices of the E Division Task Force, and
Wall noted that Solvason had a “…proposal put together suggesting [Hayer] go
to London England re: [Purewal].”184
At the Inquiry, Solvason testified that he did not receive the response he hoped
about his plan to travel to England with Hayer:
MR. FREIMAN: Do you remember, sir, whether you received
authorization in a timely fashion to allow you to coordinate
with Mr. Hayer’s plans?
S/SGT. SOLVASON: No, I didn’t. They just seemed to – I don’t
know what happened to the plan, there was just – no decision
had been made yet. That’s what I was told....185
Solvason could not recall the details of how the events unfolded, but he felt
that there was not “…too much enthusiasm for this in ranks above [him] or in
people in a position to make it happen.” He added that “…perhaps beyond
the local management there could have been a different perception of that.”186
MacDonell was present when Solvason discussed the possible trip to England
with Hayer, and he also recalled that organizing the trip was “a long process.”187
Solvason testified that after initially submitting his plan, he did not hear back
for a long time, and then received “…two or three phone calls” at his residence
on a weekend from Belanger, the OIC of the Task Force at RCMP HQ.188 At that
time, not only was the RCMP prepared to grant authorization for the travel, but
Solvason explained that the Force wanted the plan to happen immediately:
Well, he wanted [me] to go immediately to England … as in
that day and I told him that I didn’t think that the – Mr. Hayer
was prepared to go that day. He had his plans and we would
have to be flexible in terms of accommodating those plans and
– so I think he wanted me to contact Mr. Hayer and confirm
that and I may have done that.189
When Solvason advised that Hayer was not prepared to simply “…drop
everything and travel on that day,” Belanger was “disappointed.” According to
Solvason, Hayer essentially said he was willing to help, but that he was not be
willing to travel instantly on the RCMP’s schedule, and that if the RCMP did not
want his help, “…well then that’s your problem sort of thing.”190
184
185
186
187
188
189
190
Exhibit P-101 CAF0507, p. 6.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11562.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11562-11563, 11585.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9621-9622.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11562.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11562.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11562-11563, 11592-11593.
45
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Volume Two: Part 2: Post-Bombing
After Solvason’s testimony, the Attorney General of Canada (AGC) provided
additional documents to the Commission, which neither Solvason nor
MacDonell had an opportunity to review prior to their testimony. The AGC
argued that the documents contradicted Solvason’s testimony that he had not
received approval for travel with Hayer in a timely fashion, and showed that,
to the contrary, approval was granted within days.191 In fact, the additional
documents confirmed Solvason’s testimony, and provided further details
consistent with Solvason’s impressions about the impact of the RCMP’s lack of
scheduling flexibility on Hayer’s willingness to travel. While RCMP HQ did grant
approval for the travel plan a few days after the request was sent, the divisional
authorities took months before sending the request to HQ. The documentary
record provided to the Inquiry indicates that, in September 1986, the E Division
Task Force had not yet provided a response to Solvason’s travel proposal,
although it was aware of the plan since May 1986.
A September 1986 E Division internal memorandum noted that Hayer was
planning a trip to England, and that the RCMP was hoping that he would
agree to assist the Force “…by meeting with [Purewal] and possibly carrying a
bodypack.” The memorandum stated that Solvason had advised members of the
Task Force that Holmes, the OIC of the Task Force, was aware of the project “…but
had not yet made a decision on whether it could go ahead.” The memorandum
also noted that the RCMP was in possession of independent information that
indicated that Purewal had been talking to others about Bagri’s involvement in
Air India. The entire matter was to be discussed with Holmes.192 A handwritten
note in the margin indicated:
Wall will see2.
Holmes on Monday,
86-9-29. Does
not feel Hayer
is reliable.193
It is not known who at E Division had doubts about Hayer’s reliability or why.
Wall testified that he did not personally believe that Hayer was unreliable, but
rather felt that Hayer’s assistance could be useful to the RCMP investigation.194
Solvason emphasized that he had “…no problems with the reliability of Mr.
Hayer’s statements or his commitment to assist [the RCMP].”195 MacDonell also
thought that Hayer was “very reliable” and added that “…he was, in my opinion,
a very honest man and very committed to his beliefs.”196
As of September 27, 1986, Hayer was still planning to travel to England. In
return for his willingness to assist the RCMP, Hayer indicated that he expected
the RCMP to be diligent in its duties, in particular with respect to Harpal Singh
191
192
193
194
195
196
Supplemental Submissions of the Attorney General of Canada, October 29, 2008, paras. 2-4.
Exhibit P-290, Admission 4.
Exhibit P-290, Admission 4.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9700.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11564.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9623.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Nagra, an individual who was later prosecuted on the basis of evidence gathered
by Solvason for a conspiracy to bring a known Sikh extremist into the country
under a false identity.197 Hayer stated that he was “…definitely going to England
within the near future.” He suggested that audio devices could be implanted in
his hotel room and he could then bring Purewal to his room “…for the purpose of
extracting information relative to the Air India disaster.” Solvason and MacDonell
suggested that Purewal should be encouraged to provide information of
evidentiary value, since he seemed to have direct evidence linking Bagri to the
Air India bombing.198
The Division eventually approved Solvason’s plan for travel. An official request
for authority to travel was sent to HQ,199 indicating that Hayer was willing to
meet with Purewal “…in an effort to learn intimate details concerning the
Air India disaster” and had agreed to using a transmitter or audio devices in
a hotel room. Solvason was to accompany Hayer to England to coordinate
the operation, obtain evidence of Bagri’s admissions and identify unknown
participants such as the “…persons delivering the explosives.” An interview
with Purewal, to “…gain information by conventional means” and to assess his
potential as a future witness was also planned.200 The plan had received the
support of E Division senior management201 and the request sent to HQ stated
that Hayer had been found to be reliable.202 It mentioned that Purewal had in
the past been interviewed “…on an unofficial basis,” and had then confirmed
that he had met with Bagri in England and had a “confidential discussion” about
Air India, the details of which he would not divulge. The request noted that this
clearly supported the intelligence from Hayer.203
The Acting RCMP Commissioner approved the request for “…permission to
perform police duties outside of Canada” on October 10, 1986. The form
submitted by the OIC of the RCMP HQ Task Force, Belanger, in order to obtain
this approval, stressed that the “…investigative advances that the proposed
travel could yield cannot be overestimated,” as little direct evidence in support of
criminal accusations against the perpetrators of Air India had been accumulated
during the last 15 months of “intense investigation.” While other avenues were
being pursued in the case, the investigation of Bagri’s inculpatory statements
was “…deemed to have the greatest potential evidentiary value.” The form also
mentioned that the RCMP’s efforts so far tended to support the theory that
Bagri was directly implicated.204
Because of the “critical nature” of the travel and because of the need to obtain
the “…full cooperation of British law enforcement officials,” the HQ travel request
proposed that Belanger be authorized to travel with Solvason and Hayer. The
197
198
199
200
201
202
203
204
See Section 2.2 (Post-bombing), The RCMP Investigation: Red Tape and Yellow Tape.
Exhibit P-101 CAF0752, pp. 5-8.
Exhibit P-290, Admission 5.
Exhibit P-101 CAF0732, p. 1.
Exhibit P-101 CAF0732, p. 2.
Exhibit P-290, Admission 5.
Exhibit P-101 CAF0732, p. 2.
Exhibit P-101 CAF0714, pp. 1-2.
47
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Volume Two: Part 2: Post-Bombing
travel dates were listed as October 15th or 16th, but it was noted that they were
contingent upon Hayer’s “…availability and travel plans” and, as a result, could
“vary slightly.”205
On October 14, 1986, Solvason wrote to HQ following two telephone
conversations he had with Belanger, one on Friday, October 10th, and the other
on Monday, October 13th. Solvason reported that he had contacted Hayer on
October 14th to finalize travel arrangements. Hayer had then explained that
his primary purpose in travelling to England was to obtain affidavits from two
individuals in support of his position in civil proceedings launched by Harjinder
Pal Singh Nagra. He added that because his solicitor had been unable to
review the file and prepare the materials, his travel plans were now delayed.
However, Solvason reported that Hayer “…re-affirmed his commitment towards
the proposed meeting with Tarsem Singh [Purewal]” and discussed his travel
arrangements.206
In his message to HQ, Solvason noted that Hayer, though he agreed to contact
his solicitor to expedite the process, appeared “…sensitive towards urgings to
press forward and make firm travel dates.” Solvason recommended that it was
“…advisable to remain flexible” and to accommodate Hayer in order to achieve
“full exploitation” of the planned operation. He emphasized that Hayer had
reaffirmed his commitment to the operation, though he could not provide a firm
date for its implementation.207 He noted that Hayer was “…sensitive towards
what he views as undue pressure in this regard.”208 Solvason wrote that he would
be trying to “tactfully” encourage Hayer to pursue his course of action “…with
firm travel plans at his earliest convenience.”209
Also on October 14, 1986, RCMP HQ transmitted Solvason’s update to the RCMP
Liaison Officer (LO) in London, and advised of the “86-10-21 (tentative)” travel
plans for Belanger, Solvason and Hayer. The LO was told he would be given
as much advance notice as possible and was asked to inquire about potential
problems with the suggested “technical coverage” (i.e., recording) for Hayer’s
conversation with Purewal. HQ noted that Solvason had been requested to
provide “…an investigational appreciation” of the tasks he planned to pursue
during the trip, and that this would be forwarded to the LO.210
The LO in London replied that day, indicating that “…before discussing in depth”
the HQ revised plan for travel with the RCMP’s contacts at New Scotland Yard
Special Branch (NSY SB), it was necessary to clarify a number of points. The LO
explained that it was “very important” for the RCMP to “…firmly commit ourselves
to specific proposals” before presenting them to NSY SB, because of “…past
experiences of numerous last minute changes in operational plans which led to
some embarrassments to us.” He added that, in the case of the Hayer project, the
205
206
207
208
209
210
Exhibit P-101 CAF0714, p. 2.
Exhibit P-101 CAF0728, pp. 1-2.
Exhibit P-101 CAF0728, pp. 1-2.
Exhibit P-101 CAF0728, p. 2 [Emphasis added].
Exhibit P-101 CAF0728, p. 2.
Exhibit P-101 CAF0733, pp. 1-2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
RCMP was “…breaking new ground with the UK authorities.”211 He reported that
he had advised NSY SB that, “…for reasons beyond our control,” the operation
had been delayed.212 Before holding further discussions with NSY SB, the LO
requested additional information about a series of questions relating to the
conduct of the operation.213 He also asked that Solvason “immediately” submit
his outline of the tasks to accomplish, as it was vital to the LO’s discussions. The
LO noted that he anticipated “full co-operation” from NSY SB, but that answers
to his questions were required to enable him to respond to the questions that
would “undoubtedly arise” during his discussions with the UK authorities.214
Belanger then spoke with the LO and noted that it was understood that the
Purewal/Hayer initiative “…fell within the criminal intelligence gathering mode,”
but that if that was successful, a direct interview with Purewal and others could
be attempted “…within the evidence gathering mode,” with the “blessing and
participation” of NSY SB. From his conversation with the LO, Belanger understood
that the LO would “…do nothing else” until he received the E Division operational
plan.215
The RCMP LO telex was then forwarded to Solvason for “urgent attention.” HQ
requested answers to the LO’s questions, and, in particular, asked for the “…
complete operational plan to include all investigational initiatives which are to
be pursued in the U.K.” HQ suggested content for the operational plan216 and
explained that:
The requirement of being extremely meticulous in our
preparation for dealing with the UK authorities is based upon a
particularly delicate situation involving our working in concert
with various sectors of the British Services involved (NSY and
BSS).217
Solvason responded on October 15, 1986.218 He cautioned that Hayer had
expressed a concern about “…protecting his involvement,” and would therefore
be reluctant to expand knowledge of the operation to individuals other than
those directly involved, “…without demonstrated cause and justification.”219
Solvason addressed the LO’s questions where possible,220 but concluded his
message by indicating that:
211
212
213
214
215
216
217
218
219
220
Exhibit P-101 CAF0735, p. 1.
Exhibit P-101 CAF0734, p. 1, CAF0735, p. 1.
Exhibit P-101 CAF0734, pp. 1-2, CAF0735, p. 2.
Exhibit P-101 CAF0735, p. 3.
Exhibit P-101 CAF0736, pp. 1-2.
Exhibit P-101 CAF0734, pp. 1, 3.
Exhibit P-101 CAF0734, p. 3. BSS is the abbreviation for the British Secret Service.
Exhibit P-101 CAF0737.
Exhibit P-101 CAF0737, pp. 1-2.
Exhibit P-101 CAF0737, p. 1.
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Volume Two: Part 2: Post-Bombing
Because of the very tenuous nature of this initiative it is not/
not possible to be definitive beyond the foregoing. Any action
other than that outlined will be dictated by the result of the
initial interview and the decision to conduct subsequent
interviews can only be made after consultation with ‘E’ Div
NSOTF in concert with NSY (SB).221
The response was transmitted to the LO on October 16th.222
On October 17, 1986, O’Connor advised HQ that Hayer had reported that his
solicitor had still not prepared his case, and that as a result, Hayer would not be
able to “…forecast travel dates” before October 23rd or 24th. O’Connor added,
“…as comment on these developments,” that it was natural to have “…some
scepticism or reservations towards [Hayer]’s statements regarding delay,” but
that “…it would not be prudent to assume this in absence of evidence to support
that and without circumstances making this more apparent.” He concluded that,
“…at this point, [Hayer] re-affirms his commitment to co-operate,” and that “…
this will ultimately be put to the test within a relatively short period of time.”223
HQ forwarded a copy of the telex to the RCMP LO in London.224
The E Division Task Force transmitted to HQ a Surrey NCIS “investigational
planning report” about the planned trip to England during the following days.225
The start date for the operation was listed as “A.S.A.P.”226
On October 22, 1986, during a meeting between CSIS HQ and RCMP HQ,
Belanger stated that Hayer was “…showing some reluctance” to be involved in
the projected travel to England, but that Solvason felt that he would agree to
go to London within the next two weeks. Belanger explained that if Hayer did
not “…make up his mind” by then, the RCMP would likely abort the plan, travel
to the UK without Hayer and conduct “…whatever interviews can be carried
out.”227
On October 24, 1986, the OIC of the Surrey Detachment advised HQ that Hayer
had indicated the day before that he had “…re-considered his proposed role
for travel to England.” The OIC reported that Hayer “…was critical of police,” and
that it was apparent that he had had “…second thoughts regarding the travel”
and did not wish to be placed “…in the position of being an agent or informant
for the RCMP.” As a result, the OIC noted that consideration would have to be
given to implementing the “…revised operational plan, as suggested by C/Supt.
Belanger.”228
221
222
223
224
225
226
227
Exhibit P-101 CAF0737, p. 2.
Exhibit P-101 CAF0738.
Exhibit P-101 CAF0739.
Exhibit P-101 CAF0740.
Exhibit P-101 CAF0741, CAF0742.
Exhibit P-101 CAF0741, p. 2.
Exhibit P-101 CAB0680, p. 2. This document, unlike the other documents reviewed here, was available
and entered into evidence before the Inquiry prior to Solvason’s testimony.
228 Exhibit P-101 CAF0727.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
In November 1986, the RCMP attitude towards Hayer changed. During a
meeting with CSIS, the RCMP stated that the agencies had to “compare notes”
to determine “…what kind of game Mr. Hayer was playing” with respect to the
information he provided to CSIS and the RCMP about the Air India disaster.229
During another meeting, the RCMP stated that Hayer “…got ‘cold feet’ and
decided against going to London for the RCMP,” and that “…since then … they
have had little to do with him.” The Force added that “Mr. Hayer is an opportunist
and that he is motivated by his own personal interests.”230
Solvason strongly disagreed with this interpretation of the events:
MR. FREIMAN: Do you accept the accuracy of the statement
that Mr. Hayer got cold feet and decided against going to
London for the RCMP?
S/SGT. SOLVASON: No, I don’t think that’s accurate at all. There
seems – perhaps somebody misunderstood but Mr. Hayer
was not an agent; he was not an employee; he’s not going to
take orders and do whatever, whenever at our direction. But
he would assist us concurrent to his own interests. He’s not
an opportunist and he’s only motivated to his own personal
interests the same way as we all are. He had a business to
operate, and he had family concerns, and things like that.231
Solvason was never advised that RCMP management questioned Hayer’s
motivations because the travel plan did not proceed, nor was he involved in any
meetings where this was discussed. He continued to feel that Hayer was reliable
because he would “…do what he said he would do,” but he was not going to be
“…somebody else’s guy and do whatever somebody wanted at their whim.”232
MacDonell found the statement – that Hayer was an opportunist and that the
RCMP had very little to do with him since he got “cold feet” about going to
England – “surprising.” He explained that, at the time, he was still in Surrey and
he was still maintaining regular contact with Hayer, as was Solvason.233
In December 1986, Solvason forwarded a report about Hayer to HQ and to the
E Division Task Force. He noted that the information provided by Hayer was
reliable, but that Hayer was “…subject to radical mood changes” and that his “…
dependability was limited in terms of being tasked.”234
On December 16, 1986, the E Division Task Force advised HQ that Hayer had
told MacDonell that he had again made plans to travel to the UK, this time in
229
230
231
232
233
234
Exhibit P-408, Admission 10.
Exhibit P-290, Admission 7.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11563.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11564, 11593.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9624.
Exhibit P-408, Admission 11.
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January 1987. The Task Force reported that Hayer provided detailed information
about his intended itinerary and indicated that he was prepared to assist the
RCMP in attempting to gather information about Air India and to report it to
the RCMP upon his return. The E Division Task Force noted that, because of
Hayer’s “…radical mood changes and unpredictability,” he had to be considered
“of questionable reliability,” and therefore the Task Force had “no intention” of
reactivating the original plan for travel with Hayer.235
On February 3, 1987, Solvason and MacDonell prepared a report about
information provided to them by Hayer on January 31, 1987. They indicated
that Hayer had advised that, during his recent trip to England, he had attended
the Desh Pardesh offices to meet with Purewal in order to “…learn more
information from Purewal as to the conspiracy centering about the Air India
disaster.” However, he could not “…steer the conversation in the intended
direction,” mostly because many employees stayed overnight at the office
because of inclement weather, and the lack of privacy “…precluded sensitive
topics of conversations.” Hayer told the officers that he might consider returning
to England in April, “…at which time conditions may be more favourable for a
meeting with Purewal.” Solvason and MacDonell transmitted this report to HQ
and to the E Division Task Force. They both commented that it had been their
experience that the information provided by Hayer was reliable.236
In April 1987, E Division again requested authorization to have Solvason travel to
England with Hayer. When the Division first wrote to HQ about the new proposed
trip, it noted that a “similar proposal” had been approved by HQ in October 1986,
but that it was not carried out “…because of scheduling difficulties.”237 At HQ,
the OIC who had oversight over the national Air India investigation prepared
a memorandum detailing the history of the previous attempt to arrange travel
with Hayer. He noted that the need for the cooperation of NYB SB was “…the
cause of some confusion” at the time of the October 1986 plan. He recounted
the position adopted by E Division when Hayer travelled in January, and added
that Hayer had provided “nothing new” after that trip.238 In conclusion, the
memorandum stated:
We [at RCMP HQ] do not know why ‘E’ Div now considers
[Mr. Hayer] reliable enough to be tasked when Dec last they
determined he was not and considered him self serving.239
E Division provided an explanation and additional information to answer the
HQ concerns.240 The DIO for E Division wrote that the “questionable reliability”
mention in the December 1986 telex was “…a poor choice of words.” In fact, he
explained that it was used simply to describe Hayer’s “…reluctance to become
235
236
237
238
239
240
Exhibit P-101 CAF0755.
Exhibit P-101 CAF0754, pp. 3-5.
Exhibit P-101 CAF0746.
Exhibit P-101 CAF0748, pp. 1-3.
Exhibit P-101 CAF0748, p. 3.
Exhibit P-101 CAF0747, CAF0748, p. 3.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
involved as an agent under our continual direction.” He added that the events
leading up to the “questionable reliability” assessment “…revolved around dates
in October 1986 when then C/Supt. Belanger was available to travel to London,
however were not convenient to [Hayer].” Ultimately, the DIO explained, Hayer
“…decline[d] his offer of assistance because of scheduling difficulties,” but later
did travel to London, though he was precluded from having discussions with
Purewal “…because of a severe snow storm.” The DIO added that Hayer had “…a
certain reservation about the Canadian justice system, because of its inability to
move quickly,” but that “recent developments” in the case had “…renewed his
faith.”241
CSIS Concerns Left Unaddressed
The RCMP plan to travel to England with Hayer raised concerns for CSIS. The
Service was not advised immediately, and felt that the RCMP was putting Hayer’s
safety at risk, as well as compromising his potential usefulness for both agencies,
and that the Force was not consulting CSIS sufficiently about its dealings with
foreign agencies.
On October 14, 1986, RCMP HQ wrote to the RCMP LO in London that “…in the
spirit of continued cooperation,” it was HQ’s intention to advise CSIS and the
British Secret Service (BSS), within the next few days through the CSIS Security
Liaison Officer (SLO), of the “pertinent details” relating to the RCMP’s proposed
travel with Hayer.242 On October 15th, Belanger had a telephone conversation
with the LO. Because the projected trip to England involved plans which fell
“…within the criminal intelligence gathering mode,” and others which fell “…
within the evidence gathering mode” and were to involve law enforcement
authorities, it was agreed that the LO would advise British law enforcement
(NSY SB), and that NSY SB would then inform the BSS.243 Only after HQ received
confirmation that the BSS had been advised through this channel would HQ
“officially inform” CSIS. In the meantime, however, HQ could bring CSIS into the
picture “informally.”244
On October 16, 1986, RCMP HQ member Rick Phelan attended a meeting with
Chris Scowen and Mike Gareau of CSIS HQ. Scowen and Gareau were informally
made aware of the RCMP plan to travel to England with Hayer and “…undertook
to guard the information until they receive formal notification from [the RCMP],
so Brits can be properly brought in through L.O. Ldn.” In general, the CSIS
members expressed the view that the RCMP had had “…great success with
whatever it was ‘E’ Div. used to convince [Hayer] to cooperate with [the RCMP] in
the first place, given that he was originally adamantly opposed to dealing with
RCMP.” The information that Hayer had provided to CSIS and to the RCMP was
discussed and some differences were noted, particularly about the identity of
241
242
243
244
Exhibit P-101 CAF0747.
Exhibit P-101 CAF0733, p. 3.
Exhibit P-101 CAF0736.
Exhibit P-101 CAF0736, p. 3.
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the persons who overheard Bagri’s admissions and told Hayer about them. CSIS
was invited to submit questions it would like asked of Hayer, which were “…to
be pursued on an opportunity basis only and at [the RCMP’s] discretion.”245
On October 22, 1986, James (“Jim”) Warren, the CSIS HQ Director General Counter
Terrorism, met with RCMP D/Comm. Inkster “…to discuss a range of issues in
respect of RCMP/CSIS cooperation.”246 During this meeting, Warren told Inkster
that “…the manner in which the RCMP was handling Mr. Hayer’s case was a
matter of concern to CSIS.” Warren first reminded Inkster that “…it was CSIS who
had first brought Mr. Hayer to the attention of the RCMP,” and indicated that the
Service “…continued to have an interest in Mr. Hayer as a community contact,”
though he acknowledged that the RCMP had an interest in him “…from the
point of view of the criminal investigation surrounding Air India.” Warren then
explained that CSIS had found out about the RCMP intentions to have Hayer
travel to London, and that this raised concerns. According to Warren, this was
“…the sort of case” that CSIS “…would have expected to be raised in the forum
of the Liaison Committee” since both agencies had an interest in Hayer, and
since “…the project to have him travel to London could jeopardize any future
potential for either agency to obtain any more information from him.” Warren
indicated that CSIS was “in the dark” about the manner in which the RCMP
intended to use Hayer, and specifically about “…whether the fact that he had
provided information could be exposed in the process.”247
Inkster agreed that the RCMP intentions should probably have been “…
discussed before hand,” but added that it was “…the obligation of the RCMP to
pursue the criminal investigation vigorously.” Warren explained that CSIS only
wanted “…the opportunity, in such cases, to flag any damage which could be
done” to its future operations, and perhaps to “…raise the issue to a higher level
for resolution” in “…a particularly difficult case.”248
Another concern discussed by Warren related to the fact that CSIS was under the
impression that the RCMP had had “…direct discussions with the British Secret
Service (BSS)” in furtherance of its intentions to have Hayer travel to England.
Inkster confirmed that the RCMP had had discussions with another agency, but
had to verify whether it was, in fact, the BSS. Warren explained that, if the RCMP
did have discussions with the BSS, it would “appear strange” for the Force to
discuss projects about Hayer without involving CSIS. Warren mentioned the
RCMP/CSIS agreement to coordinate their dealings with other agencies, and
indicated that CSIS’s position was that the Hayer matter should have been “…
left with CSIS to raise directly with the BSS if necessary.” He warned that “…if
it turned out that the RCMP did have contacts with the BSS, he expected the
DDR would want to raise that whole issue again at the next Liaison Committee
meeting.”249
245
246
247
248
249
Exhibit P-101 CAF0753, pp. 1, 3-6.
Exhibit P-101 CAA0504, p. 1.
Exhibit P-290, Admission 6.
Exhibit P-290, Admission 6.
Exhibit P-290, Admission 6.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Later on the same day, Belanger and other RCMP HQ members went to CSIS HQ
and met with Gareau and Scowen to discuss their “…intended use of [Mr. Hayer]
in furtherance of the Air India investigation.” Belanger was aware of the earlier
discussions between Warren and Inkster. He went “…right to the issue” of RCMP
contacts with other agencies, and “…stated categorically that there had been no
‘direct’ contact between the Force and the [REDACTED].” Belanger explained that
the RCMP had simply forwarded questions to a British law enforcement agency
and that some of the questions had been forwarded elsewhere. He added that
the RCMP LO in London had kept the CSIS SLO there informed, because of their
“close relationship.”250
The RCMP then explained that the intention in sending Hayer to London was to
“…engage [Purewal] in a taped conversation during which it is hoped [Purewal]
will go over the Air India information.” Scowen, who wrote a memorandum
about the meeting, discussed some of the differences between the information
Hayer provided to CSIS and the RCMP, and noted that it was “not known” whether
the version Hayer reported to CSIS was correct or whether Hayer had been
protecting Purewal, his “long time associate,” by not revealing to the Service
that he had learned the information from him. The RCMP explained that, if
Purewal repeated the Bagri information in conversations with Hayer, it was the
intention of Belanger and Solvason “…to interview [Purewal] and anyone he
may implicate.”251
CSIS was concerned about the RCMP plan and warned:
It was pointed out to Belanger that the use of [Mr. Hayer] in this
manner would compromise any confidential relationship that
existed between [Mr. Hayer] and the RCMP and additionally,
perhaps more importantly, place [Mr. Hayer] at considerable
risk.252 [Emphasis added]
To this, Belanger responded that “…this was indeed the case,” and that the RCMP
would “…endeavour to protect” Hayer, but that he “…would be going to London
with full knowledge of what was required and thus, of his own volition.” Belanger
added that Hayer was “…a grown man and could make his own decisions.”253
On this point, MacDonell testified that the risk inherent in the plan, to have
Hayer travel to England and wear a body pack, was a “real concern.” Hayer saw
the trip as a potentially dangerous endeavour, and MacDonell also felt that it
was “inherently dangerous” to be participating in a covert operation abroad
which might later require attendance in court and the necessity to make this
participation known.254
250
251
252
253
254
Exhibit P-101 CAB0680, p. 1.
Exhibit P-101 CAB0680, pp. 1-2.
Exhibit P-101 CAB0680, p. 2.
Exhibit P-101 CAB0680, p. 2.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9633.
55
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Volume Two: Part 2: Post-Bombing
Following the November 1986 “comparing of notes,” when the RCMP advised
CSIS that it now had “…little to do” with Hayer because of his decision not to go
to London, CSIS was “…satisfied to leave the present situation of a direct ‘hands
off ’ attitude as is,” and this was agreed upon between the agencies.255
The RCMP Travels to England – More CSIS Cooperation Issues
The RCMP finally did carry out its plan to travel to England with Hayer in April
1987, but the usefulness of the initiative was limited in the end because no
recording of Hayer’s conversation with Purewal was obtained. CSIS was again
not advised in advance of the RCMP travel plans. During another trip to England,
in 1988, the RCMP interviewed Purewal and his associates, but was unable to
obtain any information. CSIS was only told about these interviews over a month
later when the RCMP began to request CSIS information.
On April 13, 1987, the E Division DIO wrote to the HQ Task Force to request
authorization for Solvason to travel to London to pursue“…intelligence initiatives
centering around Tarsem Singh [Purewal].” It was noted that Solvason would be
directing Hayer, who would attempt to “…extract these details” from personal
contact with Purewal. Solvason was also to liaise with the UK investigators to
plan an interview with Purewal. The telex explained that Hayer was already in
England, and was planning to stay five more days and to meet Purewal in two
days.256
When it received the request, HQ noted that “no technical surveillance” (i.e.,
intercepts or body packs) was proposed during this trip, as opposed to the
1986 plan, but that no one in England had as yet been advised. It was not
known whether the UK authorities would still be prepared to cooperate.257 E
Division, after explaining the previous unfortunate mention that Hayer was of
“questionable reliability,”258 pointed out that Hayer had now approached the
RCMP voluntarily, and that the Division was “…presented with an avenue of
investigation we cannot afford to overlook.”259
On April 14, 1987, a memorandum was prepared at HQ, evaluating the E Division
request. HQ found that there was urgency because of the “…costs expended to
date” and the “…possible investigational advances which could be gained.” HQ
agreed that it would be preferable to have an RCMP member travel to the UK
“for tasking/briefing,” even if Hayer could simply be debriefed after he returned
to Canada (and would be in any event). HQ contacted the RCMP LO in London,
who foresaw no problems.260
255
256
257
258
259
260
Exhibit P-290, Admission 7.
Exhibit P-101 CAF0746.
Exhibit P-101 CAF0748, pp. 2-3.
Exhibit P-101 CAF0747, CAF0748, p. 3.
Exhibit P-101 CAF0747.
Exhibit P-101 CAF0731.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The “…permission to perform police duties outside of Canada” request that had
been prepared for the October 1986 travel was reapproved, but new conditions
were added. There was to be “…no technical or other surveillance,” Hayer’s
safety was not to be jeopardized, all arrangements were to be discussed and
authorized by the appropriate British authorities and the RCMP LO had to make
the arrangements.261 The LO was then requested to contact the appropriate
British authorities to “…solicit their concurrence with our intended course of
action and their willingness to render the required assistance.”262
In testimony before this Inquiry, Solvason recalled that Hayer eventually did
take a trip to London, and cooperated with the RCMP in an attempt to obtain
information about the Air India bombing. At that time, Hayer did not wear
a body pack, but he met with Purewal. Solvason travelled to England and
interviewed Hayer there about his conversation with Purewal. Solvason was not
involved in the decision to not have Hayer wear the body pack, but thought the
decision was based mostly on security issues. There were also concerns relating
to intercepts in a foreign country.263
On April 27, 1987, Solvason transmitted a report to HQ and E Division about
the travel to London. The report stated that, once in England, Solvason met
with Hayer, who had met with Purewal the day before. Hayer reported that
Purewal told him that, during his November 1985 trip to England, Bagri had
met him and Desh Pardesh employees and discussed “…details relative to the
Air India incident” for approximately six hours. According to Purewal, Bagri said
that the bombings were “…the results of a $10,000 contract which was paid to
an unknown Caucasian person, employed as a baggage handler at Vancouver
International Airport.” Bagri was also reported to have explained that Surjan
Singh Gill was supposed to deliver two bags of explosives to this unknown
person at the airport, but because he backed out at the last minute, Bagri himself
had to deliver the bags.264
Hayer reported that Purewal told him that Bagri had provided him with the
name of the unknown baggage handler, but that he could not recall it. Hayer
added that Purewal said that a short time before the bombing, Bagri, Parmar,
Gill and the unknown Caucasian person met at Parmar’s house to make the “final
arrangements,” and that it was at that time that Gill “…declined to participate.”
Finally, Purewal was reported to have said that Bagri had indicated that the
baggage “…did not go on to the aircraft in the normal manner,” and that having a
Sikh insist on interlining baggage through CP Air was “…designed as a diversion
to frustrate the investigation.”265
Before Solvason’s meeting with Hayer, consideration had been given to
interviewing Purewal and others, but the initiative was “…held in abeyance” as
261
262
263
264
265
Exhibit P-101 CAF0714, p. 2.
Exhibit P-101 CAF0750, p. 2.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11564-11565, 11613-11614.
Exhibit P-290, Admission 8.
Exhibit P-290, Admission 8.
57
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Volume Two: Part 2: Post-Bombing
it was believed that conducting interviews immediately after Hayer’s meeting
with Purewal could “reflect negatively” on Hayer’s security.266
Despite the concerns voiced earlier by CSIS about not being advised in advance
of RCMP plans to travel with Hayer, CSIS received no advance notice, and perhaps
no notice at all, of the April 1987 trip. RCMP HQ noted that, as of April 14th, the
day when Solvason was scheduled to depart for England if authorization was
granted,267 CSIS was not aware of Hayer’s travel or of the RCMP plans to send
Solvason to meet him in England.268 It is not known whether the Service was
ever advised of the April 1987 travel. The plan for this trip was elaborated at the
last minute, while Hayer was already in England, and it is possible that the RCMP
overlooked CSIS’s concerns because of the haste surrounding the planning of
this initiative.
In early 1988, Solvason went to England again for an “investigational trip.” RCMP
members were travelling to England in connection with the Reyat arrest and
extradition, and it was decided to interview Purewal and his associates at the
same time, since the RCMP investigation had provided “strong evidence” that
Bagri did in fact admit his involvement in Air India in his presence. However,
Purewal and the other individuals interviewed were found to be “…noncooperative in the sense that they denied [being privy to the conversation]
when questioned.”269
In March 1988, Solvason and Wall wrote a memorandum discussing the efforts
made during the investigational trip. They explained that since “conventional
methods” were unsuccessful in terms of obtaining information from Purewal,
they were now hoping to generate “…some communications from [Purewal] to
Bagri or from Bagri to others in a manner by which we or the Canadian Security
Intelligence Service might be in a position to monitor.” For this purpose, the
investigators asked that CSIS be approached to find out whether the Service was
intercepting the communications of Bagri during the investigational trip and
since then. They also wondered whether CSIS had any information “…relating to
the matter.” If there were intercepts, they asked that CSIS be requested to retain
the tapes “…as possible evidence in future criminal prosecutions.” Finally, they
asked whether CSIS had any other intercepts “…relating to either [Purewal]or
Inderjit Singh Reyat or in any other way relating to the Air India / Narita incidents,”
and if so, they requested to be informed of their existence and provided with
the transcript of the conversations “…for intelligence and possible evidentiary
purposes.”270
The investigators’ memorandum was transmitted to CSIS on March 22, 1988.
The cover letter indicated that, on March 3rd, the matter had been discussed
with a CSIS representative who indicated that he would be clarifying “some
266
267
268
269
270
Exhibit P-290, Admission 8.
Exhibit P-101 CAF0750, p. 3.
Exhibit P-101 CAF0731, p. 1.
Exhibit P-101 CAB0770(i), pp. 1-3.
Exhibit P-101 CAB0770(i), p. 2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
points” about conversations between Parmar and Bagri “…where Bagri made
some reference to [Purewal] being interviewed by [the RCMP] in England.”271
In response to the RCMP request, CSIS indicated that it was not its policy to
identify the persons whose communications it was intercepting, but that
since this was a “special case” which was “unique” because it related to the Air
India investigation, the Service was willing to advise that it was not currently
intercepting Bagri’s communications nor had it been during the investigational
trip. As for the other information requested, the Service noted that it was “…
subject to the Third Party rule,” but advised that if it had been in possession of
information relevant to the Air India investigation which emanated from “any
allied Service,” it would have requested release and provided the information
to the RCMP. However, CSIS advised that it was “…not in possession of any such
information.” CSIS also stated that it was not “…conducting other technical
intercepts” in relation to Purewal or Reyat and that, should it receive any
information “…that impacts on [Purewal], Reyat, Air India or Narita incidents,”
it would continue to inform the RCMP. If the information was to come to CSIS
from technical intercepts, “…same will be [referred] to the RCMP via established
procedures.”272
CSIS further advised that it was in possession of a telephone conversation
between Parmar and Bagri from March 2nd, where the fact that Purewal received
a visit from “…two from Canada and one from Scotland Yards” was mentioned.
CSIS attached a copy of the tape and advised that the original had been
secured.273 Unlike the pre-bombing Parmar intercept tapes, this tape had been
retained because of a directive issued in 1986 in connection with the Air India
civil litigation.274
CSIS noted that, although it had been aware that the RCMP was travelling to
England in connection with the Reyat arrest and extradition, it had not been
notified that the Force intended to conduct other interviews. Now that it
was aware, CSIS indicated that the content of the Parmar/Bagri conversation
“becomes clear.”275 Because the RCMP had not notified CSIS of its intention to
conduct interviews relating to Hayer’s information, the Service was prevented
from understanding the meaning of a conversation it intercepted. If the RCMP
had not needed to obtain information from CSIS after the Purewal interview, it
may never have notified CSIS at all. In that case, the Parmar/Bagri conversation
could never have been understood, nor its relevance to the Air India investigation
recognized by CSIS.
There was also discontent at CSIS about the manner in which the RCMP was
following up on and investigating the Hayer information, and the analysis initially
provided to the RCMP by the Service. In January 1988, BC Region investigators
271
272
273
274
275
Exhibit P-101 CAB0770(i), p. 1.
Exhibit P-101 CAB0770(i), p. 3.
Exhibit P-101 CAB0770(i), p. 3.
See Section 4.3.1 (Post-bombing), Tape Erasure.
Exhibit P-101 CAB0770(i), p. 3.
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wrote to CSIS HQ that they “…had in the past provided investigative leads to the
RCMP,” specifically and “most substantially” referring to the Hayer information
and analysis, and that the leads provided “…were not given exhaustive followup” by the RCMP. The BC Counter Terrorism Chief, Mervin Grierson, agreed that,
“…based on the local RCMP’s response,” it appeared that some of the leads
provided by CSIS were “not exhausted.”276 In testimony before the Inquiry,
Grierson explained that there was a fear at CSIS that opportunities would be
missed because of this lack of follow-up by the RCMP. He commented that this
situation was “…sort of like same old, same old,” with the RCMP asking CSIS not
to get involved, and that the issue was never successfully resolved.277
Hayer Agrees to Testify
Solvason explained in testimony at the Inquiry that it was often difficult for
the RCMP to obtain information in the Sikh community because many “…were
of the view that, ‘nothing is going to happen anyways; the police don’t do
anything and can’t do anything’.” Hayer was one of those who held that view;
he “…mentioned that almost daily, that he wanted to see things happen and
wanted to see if the Canadian system would work.”278
Solvason focused a great deal of effort on gathering evidence in support
of prosecutions involving Sikh extremists, to show the community that the
police were addressing the issues.279 Though he received little support from
the E Division Task Force management,280 Solvason went ahead and gathered
evidence in support of a prosecution in the case of Harjinderpal Singh Nagra,
which related to a conspiracy to allow a known Sikh extremist to enter Canada
under a false identity. The prosecution was successful, and, as a result, the
RCMP’s “…stature in the community” was elevated.281 Solvason explained:
…it made an impact upon Tara Singh Hayer, and I believe it
was instrumental in eventually convincing him to be a witness
on the Air India disaster.282
Indeed, in 1995, Hayer provided a signed statement to Solvason in which he
acknowledged that he was aware that he might be called to testify in court,
and was prepared to do so.283 Before that, in June 1989, Solvason had obtained
a one-party consent to intercept Hayer’s communications, and had had Hayer
telephone Purewal in England.284 Solvason felt that the conversation intercepted
276
277
278
279
280
281
282
283
284
Exhibit P-101 CAA0627(i), pp. 5-6.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9494-9495.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11568.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11568.
See Section 2.2 (Post-bombing), The RCMP Investigation: Red Tape and Yellow Tape.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11568-11569.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11569.
Exhibit P-101 CAF0443, p. 9.
Exhibit P-101 CAF0443, p. 5; Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11593.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
“basically confirmed” Hayer’s information.285 Purewal and Hayer talked about
the conversation that Purewal had had with Bagri in London. Hayer asked
Purewal whether he thought that Bagri had told the truth when he had told
Purewal about his involvement in Air India, and Purewal replied that he did and
that he had “…completely trusted him in that regard.” Purewal added that “…
when Surjan Singh Gill saw the bombs, he got a little scared.” Hayer said that Gill
must have thought “…the blame would have fallen on him,” and Purewal agreed
that “…it must have been something like that.” It was also mentioned during the
conversation that Gill and Bagri were together “…at the time the bombs were
viewed.”286
In January 1995, Purewal was murdered in Southall, England.287
On October 15, 1995, Hayer provided his statement to Solvason.288 He then
stated for the first time that he had personally heard the confession made by
Bagri in England.289 He revealed that, when he visited Purewal in 1985, Bagri
“…showed up by himself” at the Desh Pardesh offices. Bagri and Purewal had a
conversation alone at the other end of the room, but the other persons present,
including Hayer himself, could hear the conversation clearly, because they were
separated only by office dividers. Bagri spoke with Purewal for approximately
one hour and, at some point, “…the subject of the Air India Disaster came up.”
Purewal asked Bagri “…how he managed to do that,” and Bagri explained that
“…they (the Babbar Khalsa) wanted the Government of India to come on their
knees and give them Khalistan.” Bagri added that the original plan was to have
the plane explode at Heathrow airport with no passengers, but “…because
the flight was a half hour or three quarters of an hour late, it blew up over the
ocean.”290
According to Hayer’s statement, Purewal then asked Bagri “…how he managed
to have the bomb inside the plane,” and Bagri explained that Surjan Singh Gill
was supposed to have taken the device to the airport, but when it was ready
and when it was shown to him, Gill “…got scared and resigned from the Babbar
Khalsa.” Bagri explained that he then suggested to Parmar that they kill Gill,
but Parmar decided against it “…because that would bring suspicion on them
and so they just warned Gill not to say anything.” Bagri then said that he had
personally gotten “…someone else to take the bomb inside a suitcase to the
Vancouver airport and put it on the plane.”291
Hayer went on to state that all of the persons present in the room with him
(Desh Pardesh employees) heard Bagri’s admission and that he had personally
asked Purewal about it. Hayer asked Purewal why he was “…a friend of these
285
286
287
288
289
290
291
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11593.
Exhibit P-101 CAF0443, p. 5.
Exhibit P-431, p. 1.
Exhibit P-101 CAF0443, p. 9; Exhibit P-431.
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 9.
Exhibit P-431, pp. 1-2.
Exhibit P-431, p. 2.
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people who blow up 329 people,” and Purewal responded that the BK were
“…very dangerous people and he has to be careful.” Purewal also added that
the BK were paying him well “…and so he prints things that they want.” Hayer
also indicated that he had discussed the topic again with Purewal on “several
occasions,” including during the telephone conversation which was recorded by
Solvason with his consent.292
Hayer provided additional statements to the same effect in June 1996 and May
1997, though “…some of the surrounding circumstances he recounted differed
slightly.”293
Protecting Hayer
As time progressed, Hayer received a number of threats on his life.294 From early
on, the RCMP was involved in providing some protection, but the various units
the Hayer family dealt with did not always have a good understanding of Sikh
extremism issues and the threats to Hayer were not always taken seriously. As
a person who had revealed that he possessed information crucial to the Air
India investigation, and who eventually agreed to testify, Hayer did not always
receive a sufficient response from the RCMP when he sought the assistance of
its members to protect him.
After the 1986 attempted bombing at Modern Printing, the threat to Hayer was
constant. The RCMP Surrey Detachment had him as “a priority,” meaning that in
the event a call came in from either his business or home, he would receive a
priority response.295
Dave Hayer testified that the period after the 1986 attempted bombing was a very
difficult time for the entire family, which continued to receive many threats.296
More generally, it was a time of extreme intimidation in the Sikh community.
According to his wife, Isabelle Hayer, this was a time when members of the
community received phone calls and were told that, if they did not support
the Khalistan movement, something would happen to their children or to their
families in India.297
At the time, “…everybody was afraid” of the small group of people who were
trying to promote an independent State of Khalistan by violent means. Those
who spoke out against terrorism were threatened at Sikh temples that had been
taken over by extremists. There were also beatings in the community. Extremists
had their own radio station, which was used to broadcast threats against those
who spoke out against violence or protested the damage to the reputation of
Sikhs that was occurring as a result of the extremists’ activities.298
292
293
294
295
296
297
298
Exhibit P-431, p. 2.
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 9.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11609.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9653-9654.
Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9530.
Testimony of Isabelle (Martinez) Hayer, vol. 76, November 15, 2007, pp. 9534-9535.
Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9533-9534.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
On a number of occasions the family questioned whether Tara Singh Hayer
ought to maintain his outspoken positions and continue his writing. But Hayer
refused to be intimidated, and saw it as his duty to speak out against what he
saw was going on in the community.299
The 1988 Attempt on Hayer’s Life
On August 26, 1988, Tara Singh Hayer was the victim of a vicious attack that left
him in a wheelchair for the rest of his life. A young man named Harkirat Singh
Bagga went to the offices of Hayer’s newspaper under the pretence of inquiring
about advertising rates.300 He met with an employee and engaged in general
discussion. When Hayer walked into the room, Bagga asked who the editor of the
Indo-Canadian Times was.301 The employee pointed to Hayer, and Bagga pulled
out a handgun and shot Hayer three times.302 Bagga then fled the building. The
employee, along with another employee, pursued him. A businessman who
became aware of the situation was able to grab Bagga and detain him. Shortly
after, the police were called and came to the scene.303 Hayer survived the attack,
but was rendered paraplegic.304
Following an investigation by the Surrey Detachment, Bagga was charged with
attempted murder.305 He pled guilty and was sentenced to imprisonment for
ten years.306 However, Solvason explained that there were “…a lot of details
behind that” and “other persons” possibly involved. Solvason felt that the Air
India Task Force should have had primary responsibility for the investigation
into the shooting.307 He explained:
…all of these things are interrelated and when you start
investigating one thing you’re really investigating the others as
well because most of the time, it’s done by the same people for
related reasons and that was just my opinion, but I was just a
Corporal there....308
At the Air India Task Force, however, there was no willingness to assume
responsibility for this investigation, and it was left to the Serious Crimes Section
of the Surrey Detachment General Investigation Section (GIS).309 In Solvason’s
view, the GIS, which was the police of jurisdiction for the municipality, was
overworked, and most importantly did not have the resources or the insight to
299
300
301
302
303
304
305
306
307
308
309
Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9530-9531.
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 7; Exhibit P-101 CAF0466.
Exhibit P-101 CAF0466.
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 7; Exhibit P-101 CAF0466.
Exhibit P-101 CAF0466.
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 7.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11609-11610.
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 7.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11566-11567, 11610.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11567.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11567; Exhibit P-101 CAF0466, p. 5.
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“…look at these things long-term.” He felt that the investigation of the Hayer
shooting should not have been left to local police, but that a more national
focus was warranted. He commented that “…those [investigations] should be
focused in a central place and worked on together because one thing may quite
often lead you into another.”310
When Bagga was apprehended by police after the shooting, he initially indicated
that he had been directed and had conspired with two other East Indian males
in Toronto to plan the murder of Hayer. It was “quite evident” from the interview
that Bagga’s “…sole purpose in coming to Vancouver was to assassinate Hayer.”311
Subsequently, Bagga told police that he had obtained the gun that he used to
shoot Hayer from Bagri, and had been given money and instructed by Bagri to
shoot Hayer.312 However, when Bagga pleaded guilty, he claimed that he had
acted alone, and shot Hayer for personal reasons.313
The Hayer family was under the impression that the RCMP simply closed the file on
the attempted murder investigation after Bagga’s conviction. Hayer’s daughterin-law, Isabelle Hayer, commented: “…we thought that the investigation was
ongoing, but basically the RCMP felt that they caught the young kid and that
was it. Case closed kind of a situation.” In the family’s view, this was consistent
with a failure on the part of the RCMP to see how crimes such as this one fit
into the larger Sikh extremism context. Isabelle Hayer said it was clear that “…
there was more to this investigation than what was apparent to the RCMP at the
time.” The family felt that the RCMP failed to see that there was a “bigger picture,”
and that the plot was part of the extremist movement’s attempt to “…shut [Tara
Singh] Hayer up from speaking for [the] Sikh community and speaking against
terrorism.”314
After his arrest in connection with the Air India and Narita charges in 2000,
Bagri was charged in a separate indictment with the 1988 attempted murder
of Tara Singh Hayer.315 The evidence uncovered, whatever its strength in terms
of obtaining a conviction, certainly tends to confirm Solvason’s and the Hayer
family’s view that there was more to the case than the isolated act of an angry
youth. It is unfortunate that the approach suggested by Solvason was not
adopted by the RCMP in the years immediately following the shooting. This
meant that some of the most important possible links between the Air India
bombing and the shooting were not discovered until many years later.
In the late 1990s, the Air India Task Force finally got involved in the investigation
of the Hayer shooting. In 1997, while he was assembling a report for Crown
Counsel in connection with the 1988 attempted murder, Sgt. Bart Blachford
310 Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11567, 11596-11597.
311 Exhibit P-101 CAF0466, p. 5.
312 Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement – Canada’s Response to Sikh
Terrorism,” p. 49; Exhibit P-101 CAF0896, p. 3.
313 Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement – Canada’s Response to Sikh
Terrorism,” p. 49. See also R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 24.
314 Testimony of Isabelle (Martinez) Hayer, vol. 76, November 15, 2007, pp. 9537-9538.
315 R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 10.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
of the Task Force requested from Hayer copies of articles that he had written
about Bagri, Parmar and the Babbar Khalsa, in order to establish a motive for
Bagri to conspire with Bagga to murder Hayer.316 Hayer provided a number of
articles in Punjabi.317 Not all of the articles were translated immediately by the
RCMP, but once they were, the RCMP and the Crown learned that, in addition
to taking issue in his writings with Bagri’s and Parmar’s management of the BK,
and to referring to Bagri in “unfavourable terms,” Hayer had published a number
of articles between September 1987 and August 1988 which implied that Bagri
was involved in the Air India/Narita incidents. In an article published on August
19, 1988, one week before the attempted murder, Hayer made reference to an
“alleged confession” by Bagri in 1985 regarding his involvement in the Air India
incident.318
Further, after Bagga was arrested, police found a piece of paper in his bus depot
locker with the name and phone number of two individuals from Kamloops,
including Bagri’s brother-in-law. A forensics expert subsequently concluded that
“…the handwriting on the paper ‘could’ have been that of Mr. Bagri.” There was
also an individual, named Saini, who could provide evidence of an association
between Bagga and Bagri in Pakistan in the fall of 1987. In addition, the gun
used to shoot Hayer was traced to Yuba City, California, a place Bagri had visited
(though the gun was apparently no longer there by the time of Bagri’s trip). It
was also discovered that Bagri had visited Bagga in prison a number of times
after his arrest for the shooting of Hayer, though he had previously denied
knowing him when questioned by the RCMP in October 1988.319
Finally, a witness named Sukhminder Singh Cheema was prepared to testify
that, during a meeting in Surrey in 1992, Bagri had stated that he had met
Bagga in Pakistan and had convinced him “…to come to Canada to assist the
Sikh community by shooting Mr. Hayer.” This witness, however, was admittedly
“problematic.” He had a criminal record for two offences; had been the subject of
10 serious RCMP investigations; had only made this revelation known to police
in 1998, in exchange for receiving police assistance to obtain landed immigrant
status and citizenship (something which was not “forthcoming” in spite of
police efforts); and had received over $100,000 from police.320 Interestingly, the
RCMP had, in the past, discounted other potential witnesses or sources with
seemingly more promising information, such as Mr. A, Mr. G and Ms. E, for much
less problematic issues, and yet offered rewards and assistance to Cheema. In
the end, Cheema never testified, since the Hayer attempted murder charges
never proceeded to trial.
There was an alternate possible motive for the shooting, since Hayer had
published a number of “unflattering articles” about Bagga’s father. The two
interviews conducted by the RCMP with Hayer following the shooting focused
316
317
318
319
320
Exhibit P-101 CAF0502, p. 1; R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at para. 15.
Exhibit P-101 CAF0502, p. 1.
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 6.
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at paras. 10, 24.
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at paras. 10, 17, 24.
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on his dealings with Bagga and another individual about these articles. At
the time, Hayer had not yet revealed to the RCMP that he had been the one
who had overheard Bagri’s confession in England.321 It appears that during
the investigation conducted immediately following the shooting, the RCMP
focused only on the possible motive for the shooting as being related to the
unflattering articles about Bagga’s father, and did not begin truly investigating
the possibility of Bagri’s involvement, despite the clues already available, until
many years later when the Air India Task Force became involved.
Continuing Threats to Hayer and the RCMP Response
After the 1988 shooting, the Surrey Detachment was in charge of investigating
the offence, but the security measures for the protection of Hayer were
coordinated by Cpl. Ted Burbridge of the E Division National Security Offences
Section (NSOS), which later became NSIS, the Section in charge of the Air India
investigation.322
NSOS implemented strict protective measures at the hospital where Hayer was
recovering immediately after the shooting. Twenty-four-hour guards were
provided by the RCMP Customs and Excise section until September 19th, at which
time security resources were provided by the Immigration and Passport and
Federal Enforcement Sections.323 Officers ensured that they were in possession
of updated threat assessments on Hayer and they tightly regulated access to his
room.324
Sgt. Don Brost of NSOS requested a history of prior threats to Hayer to assist
in determining the need for security. In September 1988, Burbridge prepared
a report summarizing the previous threats, and pointing out the connection
between those threats and the pro-Khalistan movement, as well as the fact
that escalating threats against Hayer seemed to have coincided with the Indian
Government’s raid on the Golden Temple. Hayer was described in the report
as having become “…a very vocal, powerful and influential person within the
Indian/Canadian ethnic community.” The report found that his “…opinions and
(moderate) non-violent approach to the Khalistan movement, have become at
odds with the Sikh extremist (ISYF/BKhalsa) factions [redacted] Bagri & Parmar
and their ethnic newspaper.” His views had generated serious and continuing
threats to his life and property by Sikh extremists.325 It was noted that:
Previous threats directed at Hayer in the past by components
of the pro-Kalistan [sic], Sikh extremist faction, with the
notable exception of the recent 88-08-26 shooting by Harkirat
Bagga, have not, more by accident than design, resulted in
bodily injury.326 [Emphasis added]
321
322
323
324
325
326
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 8.
Exhibit P-101 CAF0470.
Exhibit P-101 CAF0465.
Exhibit P-101 CAF0467, CAF0469.
Exhibit P-101 CAF0471, pp. 2-3.
Exhibit P-101 CAF0471, p. 2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The document chronicled nine threats (most of them redacted), and concluded
that they were indicative of an escalation in violence directed against Hayer.
Notwithstanding the absence of a specific known threat to him at the time, it
was recommended that security at the hospital continue.327
In late September 1988, Solvason spoke with Hayer’s family. Hayer’s son and
son-in-law both indicated that no additional threats had been received.328 Hayer
was advised that the security he was being provided by the RCMP would be
terminated on October 21, 1988, and he expressed no concern.329 The family
members were made aware that, should they require immediate assistance,
they would have to contact the Vancouver Police Department (VPD), which in
turn would advise NSOS via their intelligence officers.330
Hayer continued to publish controversial articles and to speak out against
violence. Not surprisingly, he also continued to be the target of many serious
threats.
In 1992, after information was received in the NSIS office suggesting that there
was an imminent threat to the life of Hayer, MacDonell recalled spending the
night shift in Hayer’s basement over the weekend as part of the protective
services then being provided by the RCMP.331
MacDonell was also involved in the investigation and subsequent prosecution
of an individual who had made threats against Hayer in 1990. MacDonell had
become a member of the NSIS Unit at the time, and was informed that the
Surrey Detachment had received a complaint from Hayer about a telephone
threat. He took it upon himself to take over that investigation.332 Sukhminder
Singh Cheema (the same individual who was later prepared to testify against
Bagri in the 1988 attempted murder case and who received payment from the
RCMP) was subsequently charged and convicted.333
In December 2000, Cpl. Glen Little of the Air India Task Force contacted the Surrey
Detachment on behalf of Crown Counsel Richard Cairns in order to retrieve
information in relation to the 1990 incident. He was advised that there was no
record of this threat against Hayer, as “…the file in its entirety was purged as well
as the PIRS334 entry.”335 MacDonell explained in testimony that every file had a
period of “purged time” to it. A file like this, unless it was specifically protected,
327
328
329
330
331
332
333
334
Exhibit P-101 CAF0471.
Exhibit P-101 CAF0471, p. 7.
Exhibit P-101 CAF0475.
Exhibit P-101 CAF0474.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9639-9640.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9640.
Exhibit P-101 CAF0500; Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9652.
PIRS was the “Police Information Retrieval System.” Information from documents was recorded
electronically and coded into a computerized database that was searchable by investigators: See
Testimony of Jim Cunningham, vol. 87, December 3, 2007, p. 11321.
335 Exhibit P-101 CAF0500.
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would be purged in the normal course – usually after five years.336 Insp. Jim
Cunningham, who had acted as the file coordinator for the post-1995 renewed
Air India investigation under D/Comm Gary Bass, explained that this file was
destroyed in keeping with “…policy and legislation,” and that it was only at a
later date that it “…would come to be recognized as possibly being relevant.”337
In defending the decision to have purged this file, Cunningham opined:
INSP. CUNNINGHAM: If we took it in terms of looking at
certain things, we would have to maintain every single one
of our files to see whether or not at a point down the road it
became relevant to something else. And I think that would be
an impossible system as well.
MR. FREIMAN: Sort of reminiscent about the problem of
destroying the surveillance tapes by CSIS?
INSP. CUNNINGHAM: Surveillance or intercept, I’m sorry?
MR. FREIMAN: Intercept, I’m sorry.
INSP. CUNNINGHAM: Intercept, absolutely.338
MacDonell continued to have regular contact with Hayer up to and throughout
1995, after which his duties changed significantly and he no longer worked in
the area of national security and Sikh extremism.339 Solvason also left the Air
India Task Force in 1996. The result was that by early 1996, the two individuals
who had been Hayer’s main contacts at the RCMP, and who probably had the
best understanding of his file, were no longer directly involved.
In February 1996, Hayer received on his office fax machine a letter written in
Punjabi containing what he considered to be serious threats. 340 He forwarded a
copy of this letter to the Attorney General of BC. On April 22, 1996, the Director
of Legal Services at the Ministry of the Attorney General, Peter Ewert, forwarded
the letter to the RCMP OIC of Operational Support at E Division, C/Supt. M.J.
Johnston, asking that the letter be translated and investigated to determine if
it contained threats considered appropriate for investigation. The translated
letter contained statements such as “…[s]ometimes I think what a big mistake
he did who just made you handicapped. Well that’s okay there is delay but not
darkness at God’s house,” and made reference to big “punishment.”341
On May 8, 1996, Johnston replied to Ewert that he had had the letter translated,
and that, in his opinion, there were no statements he would consider to be
336
337
338
339
340
341
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9641.
Testimony of Jim Cunningham, vol. 87, December 3, 2007, p. 11334.
Testimony of Jim Cunningham, vol. 87, December 3, 2007, pp. 11334-11335.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9639-9640.
Exhibit P-101 CAF0484.
Exhibit P-101 CAF0481, p. 2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
threatening. He attached the translation. Johnston wrote that “…in view of the
fact that there are no overt threats in this letter, I see no need for any further
action in this matter.”342
Dave Hayer recalled his father talking about this letter and feeling that the
police were very dismissive of his concerns. He stated that the focus on the
requirement for “overt threats” was problematic, given the nature of the Punjabi
language. He explained that in Punjabi, the meaning of the words may have
different significance depending on who reads them. He said that “…if you
know the whole picture, you know the culture, then you can go back and say,
yes, they are very definite threats.”343
Isabelle Hayer had worked with Tara Singh Hayer as his communications assistant.
She helped him draft letters to the police about the threats he received, and
she felt that there was a “deep frustration” at the time that the “…police didn’t
seem to understand what the community was going through,” or “…have a real
sense of the extent of danger” posed to individuals who received such threats.
The police “…didn’t seem to make enough effort to understand the community
dynamic and didn’t seem to understand … the threats”.344
The Ministry of the Attorney General of BC was also dissatisfied with the RCMP
response. Ewert met with Johnston and pointed out the passages in the letter
that he and others in the Ministry considered to be threats towards Hayer.345 For
example, Ewert felt that the statement “Sometimes I think what a big mistake he
did who just made you handicapped,” constituted a death threat. The reference
to “…punishment is very big,” was also felt to be “…referring to Hayer being
killed.”346 In reporting the results of his meeting with Ewert to the OIC of the
Vancouver General Investigation Section (GIS) on May 22, 1996, Johnston, who
had seemingly just learned of this information, noted:
It appears that Hayer was severely injured several years ago in
an attack that was politically motivated and now sees the letter
as again threatening him.347
Johnston advised Ewert that Vancouver GIS would take a look at the letter and
investigate it. He went on to suggest that someone sit down with Hayer to
determine “…if he is threatened by the letter and exactly what the threats are –
in his opinion.”348
The case finally landed at the Surrey Criminal Intelligence Section (CIS) (formerly
NCIS) and follow-up was commenced by Cpl. Larry Wilkinson in early June,
342
343
344
345
346
347
348
Exhibit P-101 CAF0482.
Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9556.
Testimony of Isabelle (Martinez) Hayer, vol. 76, November 15, 2007, p. 9559.
Exhibit P-101 CAF0483.
Exhibit P-101 CAF0481, p. 2, CAF0483.
Exhibit P-101 CAF0483.
Exhibit P-101 CAF0483.
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over four months after the threat was received by Hayer. At this point, the
investigator took steps to review the file and history of complaints by Hayer. On
June 5, 1996, Wilkinson went to the Indo-Canadian Times office and interviewed
Hayer about this incident. Hayer indicated that he did not know the culprit,
nor had he received any other letters of this nature. Wilkinson also contacted E
Division NSIS and was told that there was “…some evidence of increased activity
by Sikh extremists of late,” but nothing to suggest that Hayer was at “particular
risk.” Wilkinson contacted MacDonell, who was now at the Immigration and
Passport Section. MacDonell was “…well aware of the numerous threats over
the years against Mr. Hayer,” but was not aware of any “recent threats.” It was
noted that Hayer maintained “excellent security,” both at his office and personal
residence, and was fully aware of the proper procedure to get “…immediate
police response.” 349
Further inquiries were made with members of the E Division Air India Task
Force, who also stated they were unaware of any threats to Hayer. Inquiries
were conducted with the CSIS Liaison Officer, who advised on July 3rd that
he had not received any details from CSIS that would indicate that CSIS was
aware of any threats, or an increase in violence, directed towards Hayer or the
Indo-Canadian Times staff. On June 18th, a request was made for the RCMP HQ –
Interpol to contact American authorities. The author of the threat letter signed
the letter “Avtar Singh, Sanhoje,” which investigators believed could be San Jose,
California. At that time there had still been “no concrete” information to verify
this threat, and Hayer had not received any further threats. Wilkinson requested
a “…diary date extension” for the case, which was still under investigation. In
late June, Wilkinson’s Interpol request was forwarded to Washington Interpol
“for action.” It was noted that, at that time, “…nothing has surfaced to indicate
that this threat is real,” and that Surrey CIS would continue to monitor the “local
situation” by liaising with Hayer on a monthly basis.350
By August 8, 1996, Surrey CIS, CSIS, and NSIS were all reporting that their
efforts to monitor Hayer indicated that there were no further threats or criminal
incidents to note. Wilkinson requested permission to extend the diary date on
the file to allow for a response to be received from American authorities. This
request was renewed on September 19, 1996 and October 3, 1996. On October
8, 1996, a reply was received indicating that American authorities were unable
to identify the original sender. As no concrete evidence was found to suggest
the threat was real, the investigation was concluded in early October. CSIS and
NSIS, who had been monitoring the threat surrounding Hayer, had no suspects,
and Hayer advised that he was satisfied with the RCMP’s efforts and had not
received any further threats of that nature.351
By early 1998, the threats to Hayer were once again escalating. Isabelle Hayer
described the frustration that the family experienced in trying to convince the
349 Exhibit P-101 CAF0484, p. 1.
350 Exhibit P-101 CAF0484, pp. 2-4.
351 Exhibit P-101 CAF0484, pp. 5-7, 9.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Government to clamp down on threats such as these, as well as those that were
being broadcast by community ethnic stations.352
In March of that year, Isabelle Hayer helped her father-in-law draft a letter to
the RCMP Surrey Detachment, addressed to C/Supt. Terry Smith, OIC of the
Surrey Detachment, titled “Serious Threats to my life,” that implored the RCMP
to investigate the threats against Hayer’s life that were appearing in Punjabi
newspapers and on the radio, and which were “…escalating and becoming
more severe in nature”:353
I respectfully request your assistance in the investigation of
these threats, which I hope will cease as a result. The Sikh
community can pose significant difficulties to the non Sikh.
As you know, they are not very open to discussing in-depth
details with non Indians. It would be of great benefit if you
could assign a Sikh officer to this task who understands the
community and its problems. I would be pleased to help in
any way. 354
Isabelle Hayer testified that the suggestion to use a Sikh officer was born out
of the sense that the police did not have a grasp of the Indian community. She
stated that Hayer thought that if more Indian officers were brought in, they
would understand the culture and how “…language is translated and how words
can be manipulated,”355 and would take the threats more seriously – acting on
complaints before “…somebody points a gun and shoots you.”356
In his letter, Tara Singh Hayer wrote that he had in his possession “…the clippings
and radio tapes” containing the threats for use by the RCMP. He requested that
the RCMP:
…take immediate action with this regard; time is of the
essence. I am not capable of defending myself as easily as I
used to when I could walk. I look forward to your response.357
On March 24, 1998, Smith responded to Hayer:
352 Testimony of Isabelle (Martinez) Hayer, vol. 76, November 15, 2007, p. 9560. She testified that these
radio stations transmitted from the US into Canada but their offices were in Canada. The American
authorities would state that they had no jurisdiction as the offices of the radio station were in Canada,
and Canadian authorities claimed no jurisdiction because the signal was coming from outside of
Canada.
353 Exhibit P-101 CAF0486.
354 Exhibit P-101 CAF0486.
355 Testimony of Isabelle (Martinez) Hayer, vol. 76, November 15, 2007, p. 9562.
356 Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9582.
357 Exhibit P-101 CAF0486.
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I note you have stated that time is of the essence. I am
concerned that you have not brought these matters to our
attention previously, given that there seems to be an ongoing
series of these incidents. We view these circumstances as most
serious and, if they are ignored and not reported, it makes our
job exceedingly more difficult to complete. Secondly, if you
fear for your life and you feel you are in immediate danger, you
should be contacting our complaints line ... or, if more urgent,
you should be contacting us through our 9-1-1 emergency
centre.358
Dave Hayer, in his testimony before the Inquiry, expressed surprise that, given
the extensive history of threats and interaction with police, Smith would have
thought that these threats were something new. In his view, it seemed at times
that there were so many RCMP departments involved that “…the right hand
doesn’t know what the left hand is doing.”359
As for Tara Singh Hayer’s suggestion that a Sikh officer be assigned to investigate
this matter, there was such an officer – Cst. Baltej Dhillon, working since 1995
at the E Division Air India Task Force (which was also investigating the 1988
attempt on Hayer’s life). However, it was the Surrey Detachment that responded
to Hayer and that requested to be advised through its “complaints line” of any
threats. There is no indication that Dhillon or the Task Force were involved in
responding to the threats against Hayer at this time.
Dave Hayer testified that his father felt that the failure of the police to take any
action led to a greater and greater escalation of the threats.360 He was of the
view that, if the police had laid even minor charges against the perpetrators, it
might have helped to prevent this escalation.361 Instead, he felt, police did not
understand the culture and just “dismiss[ed] it.” 362
Information about a “Hit List”
In July of 1998, Vancouver Sun journalist Kim Bolan received information from
some of her contacts about the existence of a “hit list,” which listed targets
including the temple heads and priests from the Ross Street Temple in Vancouver
and the Guru Nanak Temple in Surrey. She also heard from sources that a person
from the USA was coming here to “…take care of the hit list” with the use of AK47s. Another individual reported that the “hit list” consisted of seven individuals,
including Tara Singh Hayer and Kim Bolan, as well as members of the Surrey
Guru Nanak and Ross Street Temples. 363
358
359
360
361
Exhibit P-101 CAF0487.
Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9564-9565.
Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9565-9566.
Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9565-9566. See also Section 2.2 (Postbombing), The RCMP Investigation: Red Tape and Yellow Tape.
362 Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9565-9566.
363 Exhibit P-101 CAF0485, p. 3.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
This time, the Air India Task Force got involved. Bolan reported to S/Sgt. John
Schneider of the Task Force that she felt that the subject from the United States
with the AK-47s was already in town “…to carry out the hit list contract.” Bolan
had also spoken to Jim Good of the Surrey Detachment and had provided him
with the same information. Schneider informed Good that the AITF and NSIS
would conduct an investigation into Bolan’s allegation and liaise with Surrey
concerning the findings.364
On July 23, 1998, Dhillon advised Schneider that he intended to meet with a
contact who had provided a tip a few weeks earlier that Tara Singh Hayer would
be shot at a community event (the Miri Piri Parade).365
Schneider went to the residence of a source who reported that she had been
approached by an ISYF member who told her about a hit list containing the
names of Tara Singh Hayer and Kim Bolan.366
On July 24, 1998, Schneider went to the Indo-Canadian Times and spoke with
Hayer about recent threats and the “hit list” he was said to be on. Hayer explained
“…that he had been the target of many attacks because of his moderate beliefs.”
Schneider ordered the installation of video surveillance at the residence of
Hayer, as well as extra patrols for his residence and work site.367 Two days later,
the video equipment was installed.368
Implementation of Video Surveillance
One camera was installed at the rear of Hayer’s residence and another was
installed on the second floor, providing a view of the driveway area of the
residence.369 In ordinary circumstances, a video camera would be attached
by cables to the video recording equipment. However, in order to make this
connection, several holes needed to be drilled through the exterior and interior
walls of the residence. Instead of drilling these holes, the RCMP decided not
to use cables, but instead to use a video radio frequency transmitter system
that transmitted the signal from the camera to the recorder. There is some
uncertainty in the documents as to the reasons for this decision. According
to one RCMP document, the use of cables caused concern because there was
no way to hide the cables from family members or from persons visiting the
residence.370 According to an RCMP email, the members of Special “I” (the unit
in charge of technical surveillance) who installed the video unit decided to use
the antenna in order to prevent damage to Hayer’s finished basement.371 The
radio frequency antenna was very sensitive, and “…any movement, after it was
installed, would result in a loss of video signal and therefore no picture.”372
364
365
366
367
368
369
370
371
372
Exhibit P-101 CAF0485, pp. 3-4.
Exhibit P-101 CAF0485, p. 4.
Exhibit P-101 CAF0485, pp. 4-5.
Exhibit P-101 CAF0485, p. 5.
Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9570.
Exhibit P-101 CAF0461, CAF0499, p. 1.
Exhibit P-101 CAF0499.
Exhibit P-101 CAF0462.
Exhibit P-101 CAF0499, p. 2.
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When asked about the installation of the equipment, Dave Hayer stated that his
family left decisions about security matters to the experts, and that the need
to drill holes or have wires showing would not have concerned them. He also
indicated that the family was not advised of the importance of ensuring that
the video antenna stayed in position, or told that the signal could be lost if the
antenna was moved. The equipment had been placed in a particular section of
the house and the family stayed away from that area. The only people who had
access to the equipment in the box were the police.373
While RCMP notes indicate that a video monitor was left connected to the video
recorder so that the occupants of the residence could view persons approaching
the residence along the walkway, the family did not make use of this monitor.
Rather they used their own separate monitor, which had been installed by a
private alarm company in 1997.374
According to Dave Hayer, the police would generally come by every two to three
weeks to check the equipment and change the tapes in the recorder, though
the last time the RCMP had come to check the equipment was on October 22,
1998, four weeks prior to the murder of Tara Singh Hayer.375
By October of 1998, there were already signs that the system was not working as
it should have. On October 8, 1998, members of the RCMP went to the residence
to investigate a problem with the video equipment. It was determined that
when persons in the home walked between the video transmitter and the
receiver system, it created interference and caused problems with the video
recordings. However, as renovations to the house were being planned at the
time, a decision was made to postpone the repair of the video surveillance
system until that work was completed. It is not clear whether the family was
aware that the system was malfunctioning or whether they were involved in the
decision to let it remain in a state of disrepair at the time. The system was said to
have been corrected on October 22, 1998.376
The Murder of Tara Singh Hayer and the Failure of the Video Surveillance
Tara Singh Hayer was brutally murdered in his garage in November 1998.
At approximately 5:00 PM on November 18, 1998, Hayer’s daughter-in-law and
two grandsons went to his residence to walk the family dog. After walking the
dog, the three left the residence at approximately 5:30 PM. Fifteen minutes later,
Hayer’s wife saw Hayer’s vehicle arrive in the driveway. She then returned to the
kitchen and continued with her activities. She was unable to confirm how much
time had passed, but estimated that it was shortly thereafter when she heard
what she believed to be a loud explosion coming from the garage area of the
373
374
375
376
Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9572-9573.
Testimony of Dave Hayer and Isabelle (Martinez) Hayer, vol. 76, November 15, 2007, pp. 9597-9599.
Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9597.
Exhibit P-101 CAF0499, p. 2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
residence. She went to the garage and found her husband leaning over, seated
in his wheelchair. She approached him and noted blood on his body. At this
point, she ran to a neighbouring residence and requested assistance.377
On the evening of Hayer’s murder, RCMP members came to check the condition
of the video surveillance equipment. It was found that the antenna was in a
horizontal position, and that only “snow” had been recorded on the video
cassette.378 As a result, no footage was recorded on the day of the murder.
Hayer’s widow was asked by an investigator from the RCMP GIS unit whether
the family had recently been the subject of any forms of threats or intimidation.
She replied that she did not know about such matters, but did know that her
husband had been contacted by authorities approximately five months earlier
and told to exercise greater caution about his personal safety.379
S/Sgt. I.F. MacEwen of the RCMP Vancouver “Special ‘I’” Section wrote a report
that was sent to the Surrey Serious Crime Section chronicling the events that
had led up to the failure of the video recording equipment. He reported that it
was “…indeed unfortunate that the technical equipment did not function as the
installation was programmed to do.” He believed that the problem was caused
by the video receiver antenna being moved “…at some time after the installation
by Special “I” personnel.” He noted that video recordings had not been viewed
on the video monitor after video cassettes were changed to ensure that a proper
video signal was being received and recorded.380
Despite the complete failure of the camera setup, and the RCMP’s view that
there was no “investigative value” to the equipment, the RCMP left the system
in place as protection for the Hayer family members. The Air India Task Force
decided that the equipment, which was noted to have broken down once again
on December 17, 1998, would be repaired and would remain at the location
until the family moved a few weeks later.381
The RCMP again went to the Hayer residence on December 22, 1998, and found
that the outside power source had failed completely, and that there was no
way to re-establish power to the camera. It was only at this point that “…the
whole setup of front yard camera” was re-evaluated. The next day, holes were
drilled through the frame of the patio door and cables were installed to replace
the transmitter. The RCMP report stated that the equipment was “…tested and
adjusted to suit client needs” and produced a “good picture.”382
RCMP Investigation and Response to the Hayer Murder
Shortly after Hayer’s murder, the Canadian Association of Journalists (CAJ) wrote
to RCMP Commissioner Philip Murray expressing its alarm at the lack of police
377
378
379
380
381
382
Exhibit CAF0491, p. 1.
Exhibit P-101 CAF0499, p. 2.
Exhibit P-101 CAF0499, p. 3.
Exhibit P-101 CAF0499, p. 3.
Exhibit P-101 CAF0498.
Exhibit P-101 CAF0498.
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protection, and its concerns about the implications this crime had for freedom
of expression and the press. Dave Hayer was aware of this letter and testified
that the Association had contacted the family prior to sending the letter.383 The
Association issued a demand for a full and complete inquiry to consider, among
other topics, the circumstances surrounding Hayer’s assassination and the lack
of police protection.384
The CAJ letter was forwarded by Murray to the Surrey Detachment for response.
An unsigned letter, marked “draft” and dated December 4, 1998, responded to
the CAJ letter, indicating that this case “…has been given the highest priority”,
and that investigators were doing everything possible to charge the person (or
persons) responsible. The draft noted that Hayer had been the subject of “…
non-specific threats of death and harm over the past 12 years”, and that there
had been two known attempts to take his life, with the last attempt resulting
“…in the arrest and conviction of a 17 year-old youth.” The letter noted that “…
by his own words, Mr. Hayer was a man who had made many enemies in the
community as a result of his strident views on political, religious and social issues.”
It went on to state that the RCMP had assessed the security concerns associated
with Hayer and had made recommendations to him on how to minimize risks,
and that “…Mr. Hayer chose to adopt some of these measures and to disregard
others.” The draft letter also stated that “…additionally, extraordinary technical
security measures had been instituted in cooperation with Mr. Hayer and his
family.”385 Presumably, this was a reference to the video surveillance system that
had failed on the day of the murder.
Resource limitations were also cited in the draft response as an impediment to
more robust security coverage for Hayer:
Surrey Detachment is not sufficiently staffed in any event to
provide the continuous level of personal security that would
address the many obtuse and obscure threats that were both
actual and rumoured. Virtually all of the threats had been
vague and general in nature and always anonymous. While
there have been boastful comments by a few, there has been
nothing that provides the police with legal authority to take
any action whatever. As noted, these threats have spanned
some 12 years. It is simply not practically possible to provide
personal security for any one person over such a protracted
time frame. Mr. Hayer also knew that the RCMP has no
legal mandate or capacity to provide continuous personal
bodyguard protection for anyone who is not considered
a head of state or foreign dignitary, as defined by our
international treaty obligations.386
383
384
385
386
Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9602.
Exhibit P-101 CAF0493.
Exhibit P-101 CAF0494, p. 1.
Exhibit P-101 CAF0494, pp. 1-2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The draft noted that in July of that year, rumours had circulated that Hayer and
others were potential targets for overt confrontation and violence during the
planned Miri Piri parade, and that the Mayor of Surrey, in cooperation with the
Surrey Detachment, had cancelled that event and accommodated a scaled-down
event, which was provided with security to the extent possible. Hayer chose not
to attend the public events and festivities that were held, despite a large police
presence. The letter went on to state that, while there “…have been continuous
‘rumours’ regarding the existence of a so-called ‘hit list’,” the “…existence of such
a list has never been confirmed,” despite “extensive efforts” to do so. The “…
parties who were the subject of the rumours” were nevertheless “…notified of
the security concerns by the police agencies in their respective jurisdictions.”
That was the last known threat to Hayer, “…and ‘the police investigation’
conducted at the time did not” bring to the “…surface any ‘substantive evidence’
to support criminal charges against any person or persons.” The draft noted that
there was “…much being said by many people which seems to get embellished
in the telling. Most of what is being repeated is based on past events, which are
being assumed to relate to Mr. Hayer’s demise,” and that “…[w]hen analyzed,
it only clouds the picture and is based almost solely on rumour, innuendo, or
assumption.”387
The draft concluded by stating that when Hayer “chose” to report threats to his
security, “…the RCMP took these threats seriously and conducted a thorough
and complete investigation to the fullest extent possible.” It noted that the
impact of the murder of Hayer, as a journalist, was “…not lost upon the RCMP,”
adding that “…the same Charter of Rights that enshrines the freedom of the
press” also dictated “…how the police must lawfully proceed in such sensitive
investigations.” The author of the draft committed that the case would not be
closed until those responsible had been brought to justice.388
The murder of Tara Singh Hayer occurred more than ten years ago. The individuals
responsible have still not been identified and brought to justice.
Meanwhile, fear and intimidation continue to be a problem in the Sikh
community and, as Dave Hayer explained, have actually increased since the
conclusion of the Air India trial in 2005.389 Dave and Isabelle Hayer expressed
concern that the attendance of government officials at events where terrorists
and banned organizations such as the BK and the ISYF are glorified – such as
occurred at the 2007 Baisakhi Day Parade in Surrey390 – can serve to raise the
387
388
389
390
Exhibit P-101 CAF0494, p. 2.
Exhibit P-101 CAF0494.
Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9582.
Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9540. At the parade, all three levels of
government officials were represented and on floats, and there were plaques honouring individuals
who were believed to have been involved in the Air India bombing, including Talwinder Singh Parmar,
and banned organizations, including the BK and the ISYF, had representation there as well: Testimony
of Dave Hayer, vol. 76, November 15, 2007, pp. 9540-9542. The RCMP also participated in the parade,
and in testimony, Deputy Commissioner Bass was asked about the participation of the RCMP in the
parade and he conceded that perhaps the RCMP “…shouldn’t have been participating in that parade”:
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11303-11304.
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profile of the terrorists and of those supporting terror.391 This increased profile,
in turn, may enhance the ability of these organizations to recruit members and
to maintain their campaigns of intimidation.
Video Surveillance Failure Revealed at the Inquiry
Before they appeared as witnesses at the Inquiry in November 2007, Dave and
Isabelle Hayer had not been advised that the video surveillance system installed
at the Hayer residence had failed. They only learned that no image had been
recorded on the day of the murder when, in preparation for their testimony,
they reviewed the documents that had been disclosed by the RCMP to the
Commission pursuant to Commission Counsel’s document requests. Isabelle
Hayer testified that nobody from the RCMP had come “…back to us and
explained this is what had happened.”392 The family had requested access to the
tapes and other information, but the police told the family that “…because of
the investigation actually they can’t provide it.” Isabelle Hayer went on to say,
“We respect that.” 393
Isabelle Hayer indicated that finding out about the video surveillance failure in
this manner was difficult. She commented:
…we placed a lot of trust in the RCMP … they would tell us
continually, “Don’t worry, Mrs. Hayer.” Like, “don’t worry” to
Mom … and to the family. “Everything is fine. We’ll take care
of him. We have cameras placed properly and everything is
working and everything is fine and don’t worry about your
security.”
So to find this information out is really tough because like Dave
said, even until today, until we read [this] documentation, we
had some hope that they would have caught, captured, an
image of the person somehow even if it was not as clear as
they would have liked, that there would have been something.
And the same thing with the vehicles that perhaps were in the
driveway or on the street outside the house….394
Charges against Bagri for the 1988 Attempted Murder
While Harkirat Singh Bagga pleaded guilty to the 1988 attempted murder of Tara
Singh Hayer, no one else was ever convicted in connection with the planning
and orchestration of the attack. When Ajaib Singh Bagri was finally charged 12
years later, the indictment was held in abeyance pending the conclusion of the
Air India trial. At the Air India trial, the Crown attempted to introduce evidence
391
392
393
394
Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9540.
Testimony of Dave Hayer, vol. 76, November 15, 2007, p. 9577.
Testimony of Isabelle (Martinez) Hayer, vol. 76, November 15, 2007, p. 9578.
Testimony of Isabelle (Martinez) Hayer, vol. 76, November 15, 2007, pp. 9578-9579.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
of Bagri’s involvement in the Hayer attempted murder. The Crown argued that
Bagri’s participation in the attempted murder was evidence of Bagri’s motive
in the Air India/Narita bombings, as both acts were aimed at achieving Bagri’s
“…twin goals of exacting revenge on the Hindu people and of establishing an
independent Khalistan.” Further, the Crown argued that the Hayer attempted
murder evidence was relevant to show that, after the bombings, Bagri acted in
a manner indicating that he was guilty (“…post-offence conduct constituting
circumstantial evidence capable of supporting an inference of guilt”), seeking
to “…eliminate Mr. Hayer because he was able to implicate him and was publicly
identifying him as one of the perpetrators.”395
The evidence the Crown proposed to lead, to show Bagri’s involvement in the
Hayer attempted murder, included the articles written by Hayer about Bagri,
and specifically about Bagri’s involvement in Air India. However, the RCMP’s
failure to have the articles translated and disclosed in a timely manner led to a
finding that Bagri’s Charter rights had been violated.
Disclosure Issue
In September 2001, the Crown first advised the defence that it intended to
present the Hayer attempted murder evidence in the Air India trial. The date
of March 18, 2002 was fixed for the hearing on the admissibility of evidence of
Bagri’s alleged involvement in the 1988 attempt on Hayer’s life. It was agreed
that the Crown would file their materials by March 4th, and the defence by March
11th.396
On March 5, 2002, the Crown “…contemplated advancing a new legal theory
regarding the admissibility of the Hayer evidence.” As a result, the Crown asked
Sgt. Bart Blachford of the RCMP E Division Air India Task Force whether there
were additional Hayer articles. Blachford located a small number of additional
articles and, by coincidence, he was approached at the same time by another
RCMP member, Cst. John Green, who gave him a “…small binder full of such
articles that had been sitting in his office.” The total of the materials which had
not been previously provided to the Crown by the RCMP amounted to “…a stack
of articles between one and two inches thick.”397 This “stack” included the August
19, 1988 article where Hayer specifically alleged that Bagri had confessed his
involvement in Air India.398
The new articles had been obtained by the RCMP in 1997 and, “…inexplicably,
[were] never provided to the Crown,” except for one of the “…key undisclosed
newspaper articles” which Hayer had specifically brought to Blachford’s attention
in May 1997, after which Blachford passed on Hayer’s information about the
existence of the article to the Crown.399
395
396
397
398
399
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at paras. 1-2, 11, 14-15.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at paras. 5, 14.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at para. 14.
Exhibit P-101 CAF0502, p. 2.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at para. 15.
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In a letter to the Crown prosecutor, Blachford explained that, when he had
initially “put together” the RCMP report to Crown Counsel for the 1988 attempted
murder, he had requested that Hayer, who was still living at the time, provide
articles he had written about Bagri, Parmar and the BK, in order to “…establish a
motive for why Mr. Bagri would have conspired with Harkirat Bagga to murder
Tara Singh Hayer.” At that time, Hayer had provided two packages of articles, one
labelled “Bagri” and one labelled “Parmar”. The RCMP requested a translation of
those articles which “…would have given cause for Mr. Bagri to be angry with
Mr. Hayer,” and also attempted to obtain a “random sampling” of the articles,
since some seemed to indicate that Hayer was supportive of Parmar and the
BK. A number of articles were translated and included in the court brief sent
to the Crown by the RCMP. It was felt that they were sufficient to show that “…
Mr. Hayer was definitely a thorn in the side of Mr. Bagri.” After the court brief
was sent, the RCMP continued to have the remaining articles translated, but the
task was “…reduced in priority” and done “…on a ‘fit in’ basis” or “…around other
tasks.” Translated articles that had not been used in the court brief to the Crown
were put in a binder, which ended up in Green’s office.400
On March 6, 2002, Blachford advised the Crown of the existence of the new
materials, promising to provide copies. The Crown then filed their submissions
about the admissibility of the Hayer evidence four days late, on March 8th, due to
the illness of counsel. At that time, no mention was made of the new materials,
which had not yet been received from the RCMP. On March 12th, the RCMP
provided the Crown with copies of the articles. On March 13th, the defence filed
their submissions in preparation for the hearing. Later the same day, the Crown
advised the defence of the existence of the previously undisclosed articles.401
On March 13, 2002, when the “…additional relevant Indo-Canadian Times articles
authored by Mr. Hayer” were first disclosed, the Crown wrote to the defence that
the new articles changed the “…complexion of the question of the admissibility
of the Hayer evidence.” The Crown then submitted an additional brief which
advanced a new basis to support the admissibility of the Hayer attempted
murder evidence in the Air India trial. Before the additional articles were
discovered, the Crown sought to present the Hayer attempted murder evidence
to show that it proceeded from the same motive as the bombings. As a result
of the new articles, the Crown added “…a new theory for the admissibility of
the Hayer evidence,”402 the one based on the post-offence attempt to eliminate
Hayer because he could implicate Bagri in the bombings.
After the hearing to consider the Hayer attempted murder evidence had been
rescheduled to April 3rd because of the new materials, further new disclosure
was provided before the commencement of the hearing on April 3rd, and yet
more material was provided on April 4th, during the second day of the hearing.
These new materials were RCMP notes and continuation reports regarding a
400 Exhibit P-101 CAF0502, p. 1.
401 R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at para. 14.
402 R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at paras. 5, 11, 12, 14.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
“significant witness” in the hearing. A “large portion” of the material related to
contacts with the RCMP in 2001-2002. Sgt. Schneider explained that he had
kept the Crown informed of his dealings with the witness, but that he had not
provided the notes and reports until he received a request from the Crown in
late March 2002. The Crown had asked for the materials after receiving a specific
request from the defence.403
Bagri brought an application to the Court, alleging that the untimely disclosure of
the additional Hayer materials breached his rights under the Charter. A separate
hearing was held where affidavit evidence and the testimony of Blachford were
presented to explain the “…circumstances which led to the discovery and
production” of the materials.404
Having heard the evidence, Justice Josephson found that Bagri’s Charter rights
had been breached because of the failure by the Crown and the RCMP to
provide disclosure in a timely manner. Justice Josephson recognized that the
Air India case involved “…a massive amount of disclosure already provided,”
but found that the fact that the articles were in the RCMP’s possession, in part
simply sitting on a constable’s desk, and had not been provided to the Crown,
involved “…a level of carelessness” which resulted in the breach. He found that
if “reasonable mechanisms” had been in place at the RCMP “…to track disclosure
and the work of the interpreters translating the articles,” the material would
“almost certainly” have been identified and provided to the Crown earlier, and
then disclosed to the defence in a timely manner. Josephson also found that
the late disclosure of the notes and reports about the RCMP’s dealing with the
witness violated Bagri’s rights, as the materials should have been provided to
the defence “…well in advance.” In light of a previous order that the Crown make
continuous disclosure to the defence in the case, Justice Josephson found that
a breach resulted from the fact the “…relevant documents created over a six
months period simply sat in police files without being provided to the Crown or
the defence.”405
Overall, Justice Josephson concluded that the violation of Bagri’s right in this
case was “relatively serious.” He noted that “…the mechanisms in place to ensure
timely disclosure of relevant material were obviously inadequate.” As a result, a
new schedule for disclosure and filing of materials in the trial was ordered to be
followed, and the Crown was ordered to advise the defence of the existence of
new materials.406
Admissibility of the Hayer Attempted Murder Evidence
Justice Josephson found that the evidence relating to Bagri’s alleged involvement
in the 1988 attempted murder of Hayer was not admissible in the trial on the
Air India/Narita charges. He concluded that, even if Bagri’s participation in the
403
404
405
406
R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at paras. 14, 17.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at paras. 1, 13.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at paras. 35-36, 41.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at paras. 58, 63.
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attempted murder could be shown, it could not constitute evidence of Bagri’s
motive to commit the Air India bombing. At most, it would be evidence that
Bagri “…may have acted on a similar or related motive some years subsequent”
to the bombing. Justice Josephson also found that the Hayer attempted
murder evidence could not constitute evidence of post-offence conduct which
would show Bagri’s guilt in the Air India bombing. He explained that the only
piece of evidence indicating that Hayer made it known that he was capable of
implicating Bagri in Air India was an article dated August 19, 1988, a few days
before the shooting. However, the conspiracy which was alleged to have been
formulated between Bagri and Bagga to attempt to end Hayer’s life would have
begun many months earlier. Further, there was no evidence that Hayer was “…a
witness in relation to Air India/Narita” at the time of the 1988 shooting or that
Bagri believed him to be one.407
Justice Josephson also noted that the evidence, even if “…some relevance had
been established,” still could not have been admitted because it was overly
prejudicial in the case, given the “chilling” nature of the Hayer attempted murder.
He added that the evidence of Bagri’s participation in the attempted murder
was “not strong.” It was “circumstantial” and contained “…numerous apparent
weaknesses,” particularly with respect to the evidence of Cheema, which was “…
crucial to the Crown’s theory” but “…fraught with reliability problems.”408
There was no admissible evidence of a confession by Bagri in his trial for the Air
India charges.409 Hayer was deceased and could not testify about what he had
heard. The Crown did not seek to have his previous statements entered into
evidence the way it had with Ms. E’s prior statements. None of the evidence against
Bagri was found to be credible or sufficient, and, as a result, he was acquitted of
all charges in connection with the Air India and Narita bombings.410
Bagri was never prosecuted for his alleged involvement in the attempted murder
of Tara Singh Hayer, even after the Air India trial was completed.
Deficiencies Revealed
CSIS/RCMP Cooperation
CSIS felt bound by the assurances of confidentiality it gave to Hayer when he first
spoke to the Service about the Bagri confession. Though CSIS did not take this
position in all cases (see Section 1.3 (Post-bombing), Ms. E), this was consistent
with CSIS’s general approach of protecting the individuals who agreed to
provide information. The RCMP, on the other hand, took a hard-line approach,
and threatened to use its own information to approach the person CSIS spoke
to, even after agreeing that the Service could extend an initial guarantee of
anonymity. Meanwhile, the RCMP was unaware for some time that its own
officers had already obtained the information directly from Hayer.
407
408
409
410
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at paras. 56-58, 63.
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 60
R. v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 60.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1244-1249.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Once the RCMP took the lead in the case, the Force did not keep CSIS advised
of its initiatives. CSIS investigators could no longer use Hayer as a community
contact to obtain information because of the RCMP involvement, but they felt
that the RCMP was not properly following up on the Hayer information.
The RCMP Approach to Hayer and Witness Protection
The RCMP appeared to have difficulty accepting the fact that Hayer would not
take direction or act as an agent for the Force. After delaying approval of the
first plan for travel to England while the Division made a decision, the RCMP
began to pressure Hayer to make travel plans which suited the schedule of its
officials and which conformed to RCMP administrative requirements in dealings
with British authorities. When Hayer refused to participate in the RCMP plan,
harsh comments about his motivations were made, and conclusions about his
reliability were drawn which were contrary to the assessment of the officers
who dealt with him directly.
Meanwhile, the RCMP was not always taking all measures necessary to protect
Hayer’s security. His identity was not protected in some of the correspondence
that was widely disseminated within the Force. When CSIS raised concerns
that the plan to travel to England with Hayer involved serious risks, the RCMP
appeared to be unconcerned.
When Hayer was the victim of an attempt on his life in 1988, the Air India
Task Force did not take over the investigation, in spite of the fact that he was
providing information about the case, and that it was suspected that there could
be links between the attempt and the Air India suspects. The investigation was
approached as a regular police matter, and it took years before the Task Force
finally got involved and attempted to make the connection between the 1988
offence and the broader context.
Because of perceived inaction on the RCMP’s part, Hayer did not always place
his full confidence in the police. He complained about what he saw as the lack
of global understanding of the community on the RCMP’s part, and he felt that
nothing was being done to prosecute Sikh extremists. The RCMP was apparently
not immediately able to ease Hayer’s concerns, and it was not until 1995, after
he saw the RCMP pushing the prosecution of an extremist and laying charges
against an individual who had threatened him, that he agreed to become a
witness in the Air India case.
Once Hayer became a witness, the RCMP was often unable to respond to his
security concerns or to provide him with adequate protection. Rather than
having one central unit with knowledge of the entire history of threats against
Hayer and of his involvement with police, Hayer had to deal with numerous
RCMP sections or units – none of which had a complete picture of the situation.
At times, those units did not recognize obvious threats and had to be pressured
to take action. Hayer had to explain his situation over and over again to the
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various RCMP members with whom he dealt in relation to his security. As was the
case with the investigation of the 1988 attempted murder, the units assigned to
respond to subsequent threats to Hayer did not always have an understanding
of the larger Sikh extremist phenomenon. Not only did they, at times, lack prior
experience with these types of investigations, but also few investigators with
an understanding of the Punjabi language and Sikh culture were involved; this
further hindered the RCMP’s ability to recognize the gravity of the threats to
Hayer.
As a witness in the Air India case and as a person who had already been the
victim of two attempts on his life, serious protective measures should have been
available for Hayer. The RCMP had difficulty in providing protection to Hayer
while also respecting his autonomy. It would not have been viable for someone
like Hayer to enter a witness protection program – to relocate and assume a
new identity – since he insisted on remaining involved in the community and
on continuing his journalistic work. The RCMP invoked resource constraints to
explain its inability to provide Hayer with constant personal security, apparently
believing that no alternative could have kept Hayer safer while allowing him to
continue living his life as normally as possible.
Even with its resource constraints, the RCMP was able to install a proper video
surveillance system at the Hayer residence after Hayer’s murder. Inexplicably,
this was not done before, and the family was not advised, before or after the
murder, of the inherent frailties of the system which had been installed.
Records Issues at the RCMP
The CSIS handling and erasure of the Parmar tapes has often been raised as a
major issue that impeded the Air India investigation. It appears that the RCMP
also had issues of its own in terms of preserving and translating materials.
Hayer had already been the victim of two attempts on his life, which were, and
still are, largely unsolved. He continued to receive threats and to be in need of
protection on an ongoing basis. Yet, the RCMP was unable to preserve the files
recording the history of the threats to Hayer. Instead, the RCMP simply applied its
five year “purge” policy, destroying a file about threats by Cheema, an individual
who would ultimately be proposed as a Crown witness against Bagri in the 1988
attempted murder case. Because the history of threats to Hayer extended for
12 years and files could be “purged” after five years, information about earlier
threats might not have been available to investigators working on the file in
later years. This would pose challenges for investigators who needed to get an
appreciation of the history and context of any new threats emerging in order to
respond.
The RCMP waited many years before it thought to ask for the articles written
by Hayer at the time of the 1988 attempted murder. Once it did, the Force was
unable to obtain and review the translation of a crucial article until the very eve
�Chapter I: Human Sources: Approach to Sources and Witness Protection
of trial, when the Crown requested additional information. The article showed
that Bagri might have been aware that Hayer had information about his alleged
admission that he was involved in the Air India bombing. This possible link
between the Air India investigation and the 1988 attempt on Hayer’s life was
only discovered by the RCMP in 2002.
Conclusion
The manner in which the RCMP handled the entire Hayer affair leaves much to
be desired. An important chance to advance the investigation was squandered
through the unnecessary delays in approving the initial plans to accompany
Hayer on a trip to England for purposes of securing important information
from Tarsem Purewal, and then the undue pressure put on Hayer to travel on
the RCMP’s schedule, which led to Hayer eventually making the trip alone
and without result. Tragically, the murder of Tara Singh Hayer, while he was
supposedly under the watch of the RCMP, not only snuffed out the life of a
courageous opponent of terrorism, but permanently foreclosed the possibility
of his assistance in bringing the perpetrators of the bombing of Flight 182 to
justice.
1.3 Ms. E
Introduction
The story of Ms. E illustrates the counterproductive, and potentially serious,
results of the strict separation of the mandates of CSIS and the RCMP which
followed the McDonald Commission. The CSIS Act requires that all intelligence
collected be kept strictly confidential. Only at the point when that intelligence
demonstrates criminal activity will the RCMP be advised. The decision as
to when this point is reached is left to CSIS. CSIS, though often successful in
recruiting sources, follows a “non-evidentiary” approach, in which information
is not gathered or preserved in a manner that allows it to be used as evidence.
The RCMP, in its quest to gather admissible evidence, often adopts an approach
to potential sources and witnesses that has been shown to be inefficient and
counterproductive.
The clashing of the two agencies’ perspectives and their inability to share
information effectively contributed to the loss of evidence that could have led
to a different outcome in the Malik and Bagri trial in BC for the bombing of Air
India Flight 182. In the end, systemic information failures like those described
in this section, if left uncorrected, could seriously impact Canada’s ability to
combat terrorism.
The consequences of juxtaposing the differing approaches of CSIS and the RCMP
in an atmosphere of discretionary interagency cooperation are both negative
and regrettable. The end result achieved in Ms. E’s case served no one’s interest:
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Ms. E’s life was turned upside down and she came to live in fear and anguish; her
information had no intelligence value for CSIS; and the RCMP was unable to use
it to prosecute those it believed responsible for the Air India bombing.
Ms. E
Ms. E came to Canada for an arranged marriage in 1974, at age 16. She was
originally from the Punjab, where she had lived in the same village as Ajaib
Singh Bagri. She knew him as a child in school. In Canada, Ms. E married as
planned and had two children. She then found that her husband was mentally
ill and violent, and ultimately divorced him. In the late 1970s and early 1980s,
Bagri began to visit her at her home. He had learned that she was living alone
with her children and offered her comfort and financial assistance. He brought
his wife and children to stay with Ms. E, sometimes for weeks or months.411
After the Air India bombing, CSIS and the RCMP began to have contact with Ms.
E, and eventually she was called to testify against Bagri.
1985: Ms. E Questioned by the RCMP
In 1985, the RCMP received information from CSIS about surveillance which
indicated that Parmar had dropped off an East Indian unidentified male (U/M),
who was wearing a yellow beehive turban, at a certain address on June 9, 1985,
after both men had been picked up at the airport at 11:06 PM.412 The information,
as initially received by the RCMP, indicated that Pushpinder Singh, the ISYF
leader who had made the comment about something happening in two weeks
at the Khurana meeting,413 was believed to have returned to Vancouver with
Parmar and then to have been dropped off at the address in question, where
he stayed with the individual who resided there.414 On October 24, 1985, the
RCMP conducted an initial interview with this individual.415 On November 28th,
the RCMP interviewed him again, this time to find out the identity of the U/M
dropped off by Parmar. The individual indicated that he had never met Parmar
or Reyat, but recalled that an U/M with a beehive-style turban had visited the
lady who had been renting his downstairs suite. The tenant had told him that
the U/M was a relative who was a Sikh activist and that she was afraid of him and
wanted nothing to do with him. The individual provided the RCMP constable
who interviewed him with sufficient information to allow him to track down the
former tenant, Ms. E.416
411
412
413
414
415
416
Exhibit P-101 CAA0553(i), pp. 1-2.
Exhibit P-101 CAA0383(i), p. 6.
See Section 1.6 (Pre-bombing), Khurana Information.
Exhibit P-101 CAA0513, p. 1.
Exhibit P-101 CAA0513, pp. 1-2: The content of this interview remains redacted.
Exhibit P-101 CAA0383(i), pp. 1-2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
On November 29th, Cst. Brent Barbour of the E Division Air Disaster Task Force
interviewed Ms. E.417 He learned that she had a “Canadian lifestyle,” that she
associated mainly with Canadian friends and did not believe in the Sikh cause.418
Barbour asked Ms. E about the person “…dropped off by Parmar at [redacted]
avenue Vancouver on 85-06-09 at approximately 23-06hrs” and she indicated
that it was Ajaib Singh Bagri. She did not remember Bagri arriving at 11 PM and
said she “…would not let anyone in her home if they came late at night.” She did
say, however, that Bagri occasionally visited and always wore a beehive-style
turban. Ms. E explained that she was from the same town as Bagri in India. She
said she did not want to associate with him because he often questioned her
failure to practice the Sikh religion. She recounted a late May 1985 visit from
Bagri and his family and another visit after she moved into a new home. She
said she had not seen Bagri in approximately four months. She discussed briefly
what she knew about Bagri’s employment and relatives and explained that he
stayed with Parmar when he was in Vancouver. Finally, Ms. E said that Bagri did
not discuss Khalistan with her, though she knew him to be a strong supporter,
and that she did not know Parmar, but had seen him at the Temple.419
In his report, Barbour commented that Ms. E was cooperative and that her
information was consistent with the RCMP’s knowledge of Bagri. He added
that it was reasonable to think that he was the person dropped off by Parmar
since the two were “…known to travel together.”420 In asking Ms. E about the
person dropped off at her home, Barbour implicitly revealed that the RCMP had
information indicating that someone was dropped off on that date and at that
time.
On December 3rd, another member of the Task Force, Cpl. Bruce Montgomery,
added a continuation report to the file, which noted that Ms. E “…might be Ajaib
Singh Bagri’s Vancouver mistress alluded to in line [i.e., intercepts] information…”
Montgomery concluded that if this was so, Ms. E was lying about their association
and “…possibly knows more about Bagri’s activities.” He noted that follow-up
investigation and consultation with CSIS were necessary in preparation for a
possible re-interview of Ms. E. In response, Cpl. Shane Tuckey of the Task Force
asked Barbour to recontact Ms. E.421
On December 16, 1985, Barbour and Cst. Giesbrecht re-interviewed Ms. E at her
residence. She told them that Bagri had visited her a few weeks before, on a
Wednesday evening around 9 or 10 PM, but that she had told him it was too late
to visit and that he would have to leave. She said he had returned briefly the
next morning and told her that he had just returned from England, but “…did
not discuss any of his activities” with her. She further explained to the officers
that Bagri generally did not discuss his business with her.422
417
418
419
420
421
422
Exhibit P-101 CAA0383(i), p. 2, CAA0387(i).
Exhibit P-101 CAA0383(i), p. 3, CAA0387(i), p. 3.
Exhibit P-101 CAA0387(i), pp. 3-5.
Exhibit P-101 CAA0387(i), p. 6.
Exhibit P-101 CAA0400. See also Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7739-7740.
Exhibit P-101 CAA0397(i), p. 1.
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The investigators noted that the information provided by Ms. E about Bagri’s
recent visit was “somewhat supported” by surveillance. Approximately two
weeks prior, on Wednesday, December 4th, Bagri was observed arriving at the
Vancouver airport and was lost to surveillance at 10 PM near Ms. E’s residence.
Her residence was checked at 11:20 PM, but Bagri’s vehicle was not spotted,
making it possible that he attended and left her residence during the interval.
The RCMP officers noted that during the interview, Ms. E was “again co-operative”
but she mentioned that this was the second visit to her home from the police
and that “…she does not wish it to continue.”423
During the December 1985 interview, the RCMP Constables asked Ms. E about
her alleged liaison with Bagri. She denied “…any relationship with Bagri beyond
a casual friendship.” The investigators continued to feel that she might be Bagri’s
mistress, but nevertheless concluded that it was “unlikely” that Bagri discussed
“anything of importance” with her. As a result, after CSIS was contacted and
advised that it had no information on Ms. E, all officers and supervisors involved
concluded that no further action was required with respect to Ms. E.424
The RCMP did not attempt to approach Ms. E again until many years later.425
1986: The RCMP Fails to Follow Up
In February 1986, members of the E Division Air Disaster Task Force noted in
a “subject profile” on Bagri that surveillance indicated that Bagri “quite often”
visited Ms. E while in Vancouver and that Parmar and “…other key members of
the Babbar Khalsa are aware of this relationship and are noticeably concerned.”
The officers noted that “a perimeter interview” of Ms. E was conducted, in which
she said that she did not believe in the Sikh cause and that Bagri did not discuss
Babbar Khalsa (BK) business with her, this obviously referring to the November
29, 1985 interview by Barbour. They noted that the RCMP “…may want to
pursue this relationship at a later date.”426 No further action was taken during
the following months.
In August 1986, Task Force members were following up on CSIS surveillance
information in an attempt to identify the persons associating with Parmar
around the time of the Duncan Blast and the persons who accompanied him to
Toronto on June 8, 1985. They noted in their report that “…upon checking the
records, it was found that all the required information on this Tip was followed
up” between October and December 1985. It was again concluded that no
further action was required.427
In September 1986, Tuckey of the Task Force reviewed the RCMP Tip on Bagri and
concluded that “several points” could be pursued. He strongly recommended a
423
424
425
426
427
Exhibit P-101 CAA0397(i), pp. 1-2.
Exhibit P-101 CAA0397(i), p. 2.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7745.
Exhibit P-101 CAA0411.
Exhibit P-101 CAA0491.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
number of initiatives, including interviewing Ms. E “at length.” He noted that
Bagri was “a good suspect” and that Ms. E had not been pursued as a possible
source of information.428 Following discussions between Tuckey and Sgt. Robert
Wall, who was the second-in-command as Non-Commissioned Officer (NCO) of
Operations at the Task Force, it was decided that Ms. E would be interviewed and
approached as a potential source or informant for the RCMP.429 In 2005, an RCMP
analyst who reviewed the file noted that “…later on in 1986 it is documented
that [Ms. E] should be pursued as a source of information, however, this was not
done and there is no documentation as to why.”430 In fact, it appears the RCMP
decided not to pursue the matter after another file review was conducted in
December 1986.431
The RCMP sergeant who reviewed the file, Sgt. Donald de Bruijn, noted that the
information about the CSIS June 9th surveillance had “…resulted in this lengthy
investigation” of Ms. E’s landlord. He summarized the two interviews with the
landlord, noting that he provided “useful information” when the RCMP officers
revealed the “…true purpose of their visit,” which was to find out who was
dropped off at his address on June 9th. Donald de Bruijn summarized the two
1985 interviews with Ms. E, noting that during the first interview, she provided
information about Bagri and his associates which was “…consistent with the Task
Force information.” He noted that during the second interview, Ms. E repeated
her previous information and provided information about a recent visit by Bagri
which was consistent with observations made by CSIS surveillance.432
From his review of the materials, de Bruijn concluded that CSIS had been
mistaken in believing that the U/M dropped off by Parmar was Pushpinder
Singh, since the Task Force investigation “…strongly suggest[ed] that Parmar’s
travelling companion was Ajaib Singh Bagri, and not Pushminder [sic] Singh.”
The investigation also revealed that it was Ms. E, and not her landlord, who
had received the visit on June 9th, as she had acknowledged being visited by
Bagri. Donald de Bruijn was of the view that the answers provided by Ms. E
and her landlord during the RCMP interviews were “…consistent with someone
telling the truth.” He noted that both individuals, aside from the CSIS June 9th
surveillance and this follow up investigation, were “…unknown to the Task Force
investigation.”433 He stated that:
Bagri’s association with [Ms. E] appear[s] to be social in nature,
and of no apparent interest to this investigation.434 [Emphasis
added]
428 Exhibit P-101 CAA0498(i), pp. 1-2.
429 Exhibit P-101 CAA0498(i), pp. 2-3, CAA0499(i), p. 2. See also Testimony of Bart Blachford, vol. 63,
October 17, 2007, p. 7825, where he confirms that the word “source” refers to a confidential informant,
as opposed to a potential witness.
430 Exhibit P-101 CAA1045(i), p. 2.
431 Exhibit P-101 CAA0513.
432 Exhibit P-101 CAA0513, pp. 1-3.
433 Exhibit P-101 CAA0513, pp. 1, 3-4.
434 Exhibit P-101 CAA0513, p. 4.
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In the end, de Bruijn concluded that “…it would appear pointless to pursue this
matter further.”435 As a result, the RCMP did not interview Ms. E again or attempt
to recruit her as a source. This decision was made in spite of the fact that, as
someone who had some type of relationship with Bagri, which the RCMP clearly
suspected was an affair, Ms. E was in a class of persons who often can become
“…very important witnesses or sources for a police investigator.”436 In fact, S/
Sgt. Robert Solvason, who had “…considerable experience and expertise in the
development and handling of sources,” testified that approaching the girlfriends
of suspects is a “classic” approach to source development.437
Meanwhile, Ms. E was not entirely “…unknown to the Task Force investigation.”
In June 1986, the RCMP had obtained evidence that Ms. E’s name was included
on a BK application form. A search of Bagri’s home was conducted in connection
with the investigation of a conspiracy unrelated to the Air India bombing.438
BK application forms with the names of Sikhs from BC, Ontario and the United
States were seized. The forms had been completed in 1985, before the bombing
and less than a year after the attack on the Golden Temple.439 Ms. E’s name was
included on one of the forms.440 Cst. Shane Tuckey provided CSIS with the list
of the names found on the forms on October 25, 1986,441 and also included the
information about Ms. E’s application for membership in an RCMP report dated
October 3, 1986.442 Yet, when the Ms. E issue was reviewed in December 1986,
this information was apparently not located.443 RCMP Cst. Bart Blachford, who
began to work on the Air India investigation later, explained that in 1985-86
the Task Force was still using “…three-by-five inch cards to card individuals,
track individuals” and without the help of Tuckey, who was working in a file
coordinator role, it was difficult to gather all of the relevant information.444
It was only as a result of a 1996 “tip” review that the RCMP finally put all of its
information together and actually noticed the contradiction between Ms. E’s
statements to the RCMP, that she did not believe in the Sikh cause or discuss
Khalistan with Bagri, and the fact that her name was found on a BK application
form.445 While the signature on such a form, in a time frame when most Sikhs
were upset about the Golden Temple attack and many were willing to sign
forms or petitions, may not have been that significant on its own,446 it could
have allowed the RCMP to see that it was not in fact “pointless” to pursue Ms. E
further, given her association with Bagri and the apparent contradiction with
some of the statements she had made to the RCMP.
435
436
437
438
439
440
441
442
443
444
445
446
Exhibit P-101 CAA0513, p. 4.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7825.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11545, 11616.
Exhibit P-101 CAF0414, p. 1. See also Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law
Enforcement – Canada’s Response to Sikh Terrorism,” section about “The Hamilton Plot,” p. 46.
Exhibit P-101 CAF0414, pp. 1, 12.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7405; Exhibit P-101 CAF0414.
Exhibit P-101 CAF0414, p. 1.
Exhibit P-101 CAA0925(i), p. 1.
Exhibit P-101 CAA0513, p. 4.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7749.
Exhibit P-101 CAA0925(i), p. 2.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7747.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Further, in 1986, the RCMP had other information about Bagri which made
Ms. E worth following up on. As early as October 1984, CSIS had advised that
Bagri was a close consort of Parmar and that he could easily be manipulated
into committing a terrorist act. He had been named as allegedly having been
involved in a plan to hijack an Air India plane in October 1984.447 In August 1985,
the RCMP was aware of Bagri’s speech to the World Sikh Organization (WSO)
in 1984, where he said that “…until we kill 50,000 Hindus, we will not rest!”448
This speech was part of the Crown’s evidence of motive at trial almost 20 years
later.449 Finally, in 1986, Tara Singh Hayer had provided information to both CSIS
and the RCMP indicating that Bagri had confessed his involvement in Air India
during a trip to London.450 The investigation of Bagri’s inculpatory statements
was “…deemed to have the greatest potential evidentiary value,” and the RCMP
felt that its own efforts tended to support the theory that Bagri was directly
implicated.451
1987-1989: Ms. E Speaks to CSIS
William Dean (“Willie”) Laurie joined the RCMP in 1972 and became a member
of the Security Service in 1975. He joined CSIS at its creation in 1984. He
worked mostly in counter-subversion, but also did some counter-intelligence
and counterterrorism.452 He received training and had experience in the area
of source development.453 In 1986, he joined the Counter Terrorism Section at
the CSIS BC Region and began to work in the Babbar Khalsa (BK) unit, where he
remained until 1989.454 His role was to collect intelligence about the BK, mostly
by developing human sources.455 He had never developed sources in the Sikh
community before.456
In September 1987, Laurie approached Ms. E to get information about Bagri,
and possibly Parmar.457 He had found her name on a list of individuals who had
donated money to the BK.458 The list was compiled based on the BK application
forms that the RCMP had seized at Bagri’s residence in June 1986 and provided
to CSIS in October 1986.459 Laurie explained that he only had time to actually
approach Ms. E in September of the following year because of the heavy
workload in the Section at the time. He could only develop new sources when
his other tasks involving existing sources were completed.460
447
448
449
450
451
452
453
454
455
456
457
458
Exhibit P-101 CAA0110, p. 3, CAC0235.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 1009; Exhibit P-101 CAA0307, p. 1.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1009-1015.
See Section 1.2 (Post-bombing), Tara Singh Hayer.
Exhibit P-101 CAF0714, p. 2.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7392-7393.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7394-7395; Exhibit P-101 CAF0399, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7393-7394, 7396.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7394; Exhibit P-101 CAF0399, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7395.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7397-7398.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7398, 7405; Exhibit P-101 CAA0553(i), p. 1,
which indicates that Ms. E was “listed as a member of the BK.”
459 Exhibit P-101 CAF0414, p. 1; Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7405-7406.
460 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7406-7407.
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Before meeting with Ms. E, Laurie was also informed that CSIS surveillance had
observed her at both Bagri’s and Parmar’s residences.461 In March 1987, other
CSIS investigators had met with Ms. E’s former landlord to inquire about the
surveillance information indicating that Bagri had visited his residence in July
1985. Ms. E’s landlord had explained that if Bagri had visited his address, he
must have been visiting Ms. E. He advised CSIS at the time that he had already
provided this information to the RCMP. The investigators who conducted
the interview found the explanation provided by the landlord to be entirely
believable. They noted that the BK desk had revealed that Bagri and Ms. E were
involved in an extramarital affair.462 Laurie was not aware of this previous CSIS
interview with Ms. E’s landlord when he approached her in September 1987.463
Laurie may also not have been aware that the RCMP had previously interviewed
Ms. E.464 He did not access any RCMP materials about the prior interviews.465
Laurie’s First Interview with Ms. E
Early in the afternoon on September 10, 1987, Laurie knocked on Ms. E’s door.
He explained that he worked for the Solicitor General and wanted to talk to
her about the Sikh community. He said he was looking for information about
issues the government needed to know about. Ms. E said that the police had
already been there and that she did not know anything. Laurie explained that
he was not the police and that he was interested in finding out about what was
being said in the community, about Ms. E’s opinion, and about whether there
was anything she knew that he would find interesting. Ms. E invited him in.466
Once inside the residence, Laurie began to talk to Ms. E about the need to
provide answers for the families of the victims of the Air India bombing.467 He
could see that Ms. E was moved:
MR. LAURIE: I held those feelings myself that something
needed to be done and I could see from her reaction that she
was starting to become moved by it. It was obvious to me that
not only did she know something, but she was actually dying
to find some safe way to deliver this information.468
Seeing that Ms. E was becoming emotional, Laurie continued to talk about the
victims’ families. He also explained that he was not a peace officer and did not
have the power to compel her to go to court. He did say that he could send her
information to “…whoever needs the information in Ottawa,” but that he could
communicate the information without revealing her name.469
461
462
463
464
465
466
467
468
469
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7407.
Exhibit P-101 CAF0415, pp. 1-3.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7408.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7420: Laurie did not recall whether he was
aware or not. See also Exhibit P-244, vol. 3 (January 6, 2004 Transcript), pp. 11-12.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7420.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7408-7409.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7409.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7409.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7411-7413.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Within a few minutes, Ms. E was on the floor, sobbing and in “complete disarray.”470
She revealed to Laurie that, the night before Air India Flight 182 crashed, Bagri
had come to her home to borrow her car.471 She said she had refused because
they were not on good terms at that time.472 She was “…quite afraid of [him]
and sensed his intentions.” Bagri then told her that he needed the car to go to
the airport with two others.473 When she refused again, saying she needed her
car, he told her that only the baggage would be making the trip and he would
return her car. Ms. E continued to refuse to lend her car to Bagri and closed the
door.474
Ms. E told Laurie that when she learned about the Air India crash, she knew Bagri
was the one who did it. She was quite afraid of him.475 She told him he was no
longer welcome in her home. Ms. E said Bagri returned twice after the bombing.
Once he requested the use of her car again and she refused.476 The second time,
he told her that they shared secrets and that “…she knew what he could do” if
she told anyone. Ms. E indicated that it was clear to her that Bagri meant that
he would kill her and her children if she ever revealed her information.477 She
believed the “secrets” related to his previous statement about the use of the car
to take baggage to the airport.478 Since then, she had had no more contact with
Bagri, but was always afraid he would return into her life.479
Ms. E related that, after the bombing, she confronted Mrs. Bagri on one occasion,
telling her that “…the community all feel the BK did this thing and what did she
(Mrs. Bagri) have to say.” Mrs. Bagri replied that Sikhs had been warned since
the storming of the Golden Temple not to use Government of India airlines or
transportation and that “…if they chose to fly Air India, it was their own fault if
they got killed.” Ms. E thought the response to be out of character for Mrs. Bagri
and interpreted it as an admission that Bagri was involved.480
Ms. E also told Laurie about some of Ajaib Singh Bagri’s previous visits. She
said that while Parmar was in prison, Bagri often stayed with her and used her
telephone extensively. After Parmar’s return, he continued to use her telephone
on occasion to speak to Parmar. Ms. E believed that Bagri used her phone
because he thought it would not be bugged. She overheard Bagri speaking
with Parmar about violent acts several times. She referred to an occasion when
Mrs. Bagri prepared a spare set of clothes for Bagri and Parmar to conceal their
470 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7411.
471 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7411. The report prepared by Laurie after the
interview indicated that Ms. E said this occurred the night before the Air India/Narita violence: Exhibit
P-101 CAA0553(i), p. 2.
472 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7411.
473 Exhibit P-101 CAA0553(i), p. 2.
474 Exhibit P-101 CAA0553(i), p. 2; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7411.
475 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7411.
476 Exhibit P-101 CAA0553(i), p. 2.
477 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7411-7412; Exhibit P-101 CAA0553(i), p. 2.
478 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7411-7412.
479 Exhibit P-101 CAA0553(i), p. 3.
480 Exhibit P-101 CAA0553(i), pp. 2-3.
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identities. She said that Mrs. Bagri complained at length about her marriage,
saying that Bagri did not tell her what he was doing. Eventually, Ms. E said she
“…realized that Bagri was crazy.” Her family advised her to stay away from him
“…because of the trouble his BK membership would bring.”481
Laurie’s interview with Ms. E lasted approximately three hours. She revealed her
information about Bagri’s request to borrow the car early in the meeting and they
then “…had quite a bit of time to discuss it.” After going over the information
twice, Ms. E made it clear that it was painful to her and that she wanted to talk
about something else. Laurie was eager to report the information obtained and
to make sure that Ms. E would be willing to see him again.482
At the end of the interview, Ms. E seemed very relieved that she had finally
told her information to someone. Laurie was pleased. He recognized that
the information he received was significant and that it was “…perhaps new
intelligence that I had not seen before and I knew it was directly related to one
of my targets.” He hoped that other meetings would provide more details.483
Before he left, he made arrangements for subsequent visits.484 Laurie transmitted
the information he had just received to CSIS Headquarters in a report dated the
following day, September 11, 1987.485
Laurie recognized while Ms. E was giving him her information that it related to
Bagri’s involvement in a crime and that the matter would end up in court:
MR. LAURIE: I had the misfortune to make that statement in
court, sir, where as she is telling me and she is on the floor …
there was a moment during a pause where I just sort of shook
myself and I said, “Oh boy, I’m going to wind up in court, I just
know it”.486
He commented in his report: “Obviously, we recognize the significance of this
new and important intelligence concerning the Air India/Narita issue.” Laurie
intended to obtain more detail about Ms. E’s information during subsequent
visits, but had not wanted to press for too much while she was emotional and
volunteering information during the first interview.487
In subsequent interviews, Laurie went over the information previously provided
by Ms. E many times. He wanted to ensure that she was consistent.488 Also, CSIS
HQ, when they received the information, specifically asked Laurie to inquire
about certain matters, like the exact date when Bagri borrowed her car, in order
to verify the degree of Ms. E’s certainty and consistency.489
481
482
483
484
485
486
487
488
489
Exhibit P-101 CAA0553(i), p. 2.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7414-7415.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7412.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7412; Exhibit P-101 CAA0553(i), p. 3.
Exhibit P-101 CAA0553(i); Testimony of William Laurie, vol. 61, October 15, 2007, p. 7413.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7413.
Exhibit P-101 CAA0553(i), p. 3; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7415.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7422.
Exhibit P-101 CAF0347, p. 1; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7422.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Laurie’s Second Interview with Ms. E
Laurie’s second interview with Ms. E was held two weeks after the first, on
September 24, 1987.490 Laurie phoned Ms. E in advance to schedule a meeting.
His purpose at the time, not yet having received the questions that CSIS HQ
wanted asked, was to verify Ms. E’s consistency in telling her story and to ask
other questions which he had thought about since the last interview.491 Initially,
Ms. E was reluctant to discuss Bagri’s request to borrow her car because of how
painful the subject was for her. She again had a very emotional reaction to
Laurie’s questions:
MR. LAURIE: I found it necessary to guide her emotionally
into that state where she was sobbing and crying and again
so dishevelled that it just started to come out and we went
through it that way again. Only this time when I’m comforting
her with questions, my questions are more detailed.492
Laurie asked Ms. E to clarify her earlier information. She said that she was “100%
certain” that it was “…on the night prior to the Narita explosion,” after 8 PM,
that Bagri showed up to borrow her car. Laurie noted that Ms. E was “…most
antagonistic toward Bagri” at the time because she knew he was involved in
violent activities. Ms. E clarified that the persons who were to accompany Bagri
to the airport were not there when Bagri asked for her car, but that he might
have said they were from Toronto.493
Ms. E gave additional information about Bagri during this second interview.
She told of his bragging statements that the BK could easily have anyone
killed, in India or in Canada, and of his travelling to the US at Parmar’s request
to participate in a conspiracy to kill Indian Prime Minister Gandhi during his
visit there. She explained that Bagri purchased western clothes for this purpose
and that she hemmed his pants for him. Ms. E provided some details of Bagri’s
travels to Pakistan, explaining that he had visited her on his return from one of
those trips in October 1986 and brought medicine for her, which she discarded
because their relationship was “quite sour” by that point. Ms. E also said that she
heard Bagri speak to Parmar and to Malik while using her telephone, with one
conversation sounding as if Malik was providing $50,000 to Bagri. Laurie asked
her about Reyat and Surjan Singh Gill and she said she had met them both at
Bagri’s residence.494
The second interview only lasted one hour because of Ms. E’s schedule,495 but
her relations with Laurie remained good and he felt that “…the sincerity of
490
491
492
493
494
495
Exhibit P-101 CAA0562(i); Testimony of William Laurie, vol. 61, October 15, 2007, p. 7425.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7425.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7426.
Exhibit P-101 CAA0562(i), pp. 1-2.
Exhibit P-101 CAA0562(i), p. 2.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7428-7429.
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the source in providing [this] information is, in my mind, impressive.”496 After
this interview, Laurie conducted some research in the CSIS database and
found information which he felt confirmed some of what Ms. E had told him
about Bagri’s travels to Pakistan and his possible involvement in the plot to
assassinate Gandhi.497 Although Ms. E was positive that the date he brought her
the medicine was October 1986, Laurie wondered whether it was 1985, since
Bagri did not go to Pakistan in October 1986 (but could have told Ms. E that
he did, nevertheless). Laurie noted in his report that he intended to pursue
with Ms. E in future interviews some of the questions suggested by HQ, as well
as his intention to obtain details about Bagri’s whereabouts during his visits to
Vancouver, details about his trips to Pakistan and “…specific details about 1985
06 21.” He concluded: “…in short, this source’s potential will be examined for
intelligence of all sorts in this important investigation.”498
During his initial meetings with Ms. E, Laurie had agreed to purchase an item
from her. He explained that this was an example of the “very not police-like”
behaviour he adopted, which was part of the reason why he was successful
in obtaining information from her.499 During the second interview, Ms. E had
explained that her common-law husband had expressed concerns about her
conversations with Laurie.500 He had seen her getting very emotional while
speaking with Laurie. He was concerned for her and generally opposed to her
involvement with CSIS.501 The next day, Ms. E’s common-law husband came
to Laurie’s home to deliver the item he had purchased from Ms. E, and at that
time, Laurie met with him for about one hour and a half.502 Laurie explained the
differences between CSIS and the police. Ms. E’s husband only knew that she
was providing information “…somehow related to the Air India investigation”
and about “…a dangerous Sikh who he once met, from Kamloops.”503 Laurie
indicated that his investigation was about the Air India bombing and that it was
important.504 He discussed the purpose of CSIS’s work in a general manner. He
had to impress upon Ms. E’s husband, not only that CSIS was not the police, but
that the CSIS approach to Ms. E was more than a “fishing trip.”505
Laurie’s Third Interview with Ms. E
On October 7, 1985, Laurie interviewed Ms. E again.506 He arranged the meeting
in advance by telephone. Ms. E did not show resistance.507 She advised that,
after Laurie’s conversation with him, her husband now supported her assistance
496
497
498
499
500
501
502
503
504
Exhibit P-101 CAA0562(i), pp. 2-3.
Exhibit P-101 CAF0418.
Exhibit P-101 CAF0418, p. 2.
Exhibit P-244, vol. 2 (January 5, 2004 Transcript), pp. 47-48.
Exhibit P-101 CAF0424, pp. 1-2
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7444; Exhibit P-101 CAF0424, p. 2.
Exhibit P-244, vol. 2 (January 5, 2004 Transcript), pp. 47-48; Exhibit P-101 CAF0424, p. 2.
Exhibit P-101 CAF0424, p. 2.
Exhibit P-244, vol. 1 (December 19, 2003 Transcript), p. 18; Testimony of William Laurie, vol. 61, October
15, 2007, pp. 7444, 7448-7449.
505 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7444.
506 Exhibit P-101 CAA0579(i).
507 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7439.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
to CSIS.508 Laurie prepared questions in advance of this interview and provided
the responses to these and to HQ’s questions in his report. He had Ms. E discuss
the night of June 21, 1985 “…with as much detail as possible.” She felt that it
was on that date, a Friday night, that Bagri asked for her car. She did not know
how he got to her residence or where he stayed after she refused his request.
She said that when the RCMP had interviewed her after the bombing, they
had implied to her that it was Parmar who had brought Bagri to her residence.
However, she was “so rattled” “…when stonewalling the RCMP” that she was not
entirely clear on what they had actually said to her.509
Ms. E explained that Bagri did not make long distance calls while using her
phone, but told her directly that the BK telephones were recorded and that
he had to use “safe telephones” like hers.510 She promised to verify her records
and provide more information about the date when Bagri departed for the
US in connection with the plot to assassinate Gandhi, and therefore agreed to
another interview.511 She indicated that Bagri had told her that he had met with
an individual, identified as Mr. C during the Air India trial, during this trip. In
response to questions suggested by CSIS HQ, Ms. E indicated that Bagri had
never discussed “…explosives, stereo equipment or VCR tuners” with her.512
Laurie agreed that these questions related directly to the Air India bombing and
were aimed at finding out whether more information could be obtained about
the crime.513
During this third interview, Laurie and Ms. E discussed popular rumours that
Parmar was an agent of the Government of India (GOI). Ms. E expressed the
view that he worked either for the GOI or the American Central Intelligence
Agency (CIA), but admitted that most of what she knew about Parmar and the
BK was learned from her relatives who were concerned about her and warning
her. Ms. E was not aware of any falling-out between Surjan Singh Gill and the BK
but perceived the Parmar-Bagri-Gill relationship as strong.514
The third interview lasted approximately two hours.515 Ms. E continued to be
willing to answer Laurie’s questions,516 though she still became “very emotional.”
When discussing the friends she had lost in the Air India bombing, she even
said that “…she hopes there will be more that she can do to help us catch the
guilty.”517
Subsequent Interviews with Ms. E
After the third interview, a long period of time elapsed without Laurie meeting
with Ms. E. Because of the RCMP request not to contaminate the Air India
508
509
510
511
512
513
514
515
516
517
Exhibit P-101 CAF0424, p. 2.
Exhibit P-101 CAA0579(i), pp. 1-2.
Exhibit P-101 CAA0579(i), p. 2.
Exhibit P-101 CAA0579(i), pp. 2-3; Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7440-7441.
Exhibit P-101 CAA0579(i), p. 2.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7438.
Exhibit P-101 CAA0579(i), p. 3.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7442.
Exhibit P-101 CAA0579(i), p. 3.
Exhibit P-101 CAF0424, p. 2.
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investigation, Laurie could neither task Ms. E with taking any actions nor even
specifically question her on “matters related to criminal things.”518 During the
subsequent interviews which he eventually did conduct, Laurie attempted to
discuss topics other than Air India. However, if Ms. E brought up Air India, as
she often did, he did not stop her.519 In fact, that topic ended up being the most
important one they discussed in practically every interview:
MR. BOXALL: With respect to your meetings
with Ms. E, would you agree with me that
generally, although there were other topics
discussed, it appears that your interviews with
her really were an investigation of the Air India
bombing?
MR. LAURIE: In a word, yes.
MR. BOXALL: All right. And in fact, she must have viewed it as
an investigation of that also because I think this is close to a
quote, if not certainly a paraphrase. She wanted to help catch
the guilty.
MR. LAURIE: Yes.
MR. BOXALL: So it wasn’t just that she was supplying
information to somebody from the Solicitor General’s for some
abstract purpose; she wanted to see the guilty persons caught.
MR. LAURIE: She definitely wanted the guilty persons caught.
Her perception was that we were all – the Canadian public, you
know, the RCMP and the CSIS, we were all the government,
if you will, and we were all interested in bringing this to a
successful resolution. She preferred us over them because she
perceived us as a way to do it without having to go to court.520
On November 30, 1988, over a year after the third interview, Laurie met with
Ms. E again. In the meantime, he had telephone contact with her at least once,
when she explained she could not find the personal records she had thought
would help with the date of Bagri’s travels to the US. He then arranged the
November 30th meeting in advance, by telephone.521 When he went to Ms. E’s
residence, she appeared “…genuinely pleased to renew contact” with him. She
explained that Parmar had come to her business, but that she had put him off by
pretending that an order would take months. He had called a few times (which
518 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7457; Exhibit P-244, vol. 4 (January 7, 2004
Transcript), pp. 35-36.
519 Exhibit P-244, vol. 4 (January 7, 2004 Transcript), p. 36.
520 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7538-7539.
521 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7453-7454.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
was verified by a reliable source), and his wife then had come to the business,
but Ms. E always rebuffed them. Ms. E also advised that she had been visited
by Bagri’s wife, who complained that Ms. E was no longer associating with the
family or inviting them into her home. A heated argument followed, and Ms. E
told Mrs. Bagri that she “…wanted to avoid any involvement with any BK people,”
now that she knew enough about the BK. Laurie noted that Ms. E continued to
be cooperative, but that he only maintained infrequent contact with her to see
if she had contact with any of the CSIS targets.522
Laurie met with Ms. E again on January 19, 1989. The meeting took place at
Ms. E’s home and lasted nearly two hours.523 Laurie wanted to check on Ms. E’s
well-being and he also wanted some biographical information about Bagri.524
During the interview, they ended up discussing the issues previously covered,
including Bagri’s request to borrow Ms. E’s car and his subsequent threat to
her.525 This time, Ms. E did not get emotional when discussing Bagri’s request
– she had been confiding in Laurie for a long time and felt more secure.526 The
meeting took the form of a “friendly chat.” Laurie was then convinced that there
was no additional intelligence which could be obtained from Ms. E which might
have been overlooked.527
On April 24, 1989, Laurie met with Ms. E again at her home.528 His main purpose
was to find out whether any of his targets had contacted her and whether the
police had made contact.529 In both cases, there was no contact.530 Laurie then
proceeded to ask Ms. E questions“…in order to develop a character profile of Ajaib
Singh Bagri.” As a result of the “…considerable new and interesting intelligence”
provided by Ms. E in response,531 Laurie was able to prepare an assessment of
Bagri which described his early years in India and some of his associates.532
The information provided by Ms. E was consistent with what was observed by
CSIS and partly corroborated by other sources.533 After this interview, Laurie
noted that his relationship with Ms. E continued to be “…very friendly, albeit
professional.” Ms. E had even stated that “…she now likes to meet to discuss
these matters and she expects that [Laurie] will return.”534 Laurie explained that,
when he visited Ms. E, he “…was always armed with a box of sweets” and she
would make tea. After a year and a half, Ms. E no longer expressed concern
about his visits.535 In his report about this last interview, Laurie indicated that
he intended to contact Ms. E again in six months, unless she had contact with
522
523
524
525
526
527
528
529
530
531
532
533
534
535
Exhibit P-101 CAF0406, pp. 1-2.
Exhibit P-101 CAF0377, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7457-7458.
Exhibit P-101 CAF0377, pp. 1-2.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7458.
Exhibit P-101 CAF0377, pp. 1-2.
Exhibit P-101 CAF0379, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7459-7460.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7459; Exhibit P-101 CAF0379, p. 1.
Exhibit P-101 CAF0379, p. 1.
Exhibit P-101 CAF0378.
Exhibit P-101 CAF0378, p. 3.
Exhibit P-101 CAF0379, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7460.
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his targets before that time.536 By then, however, he already knew that he would
not be with the CT Section six months later.537 During the same year, he was
moved to work on counter-intelligence investigations and Ms. E’s source file was
closed.538 On February 14, 1990, Laurie left CSIS to rejoin the RCMP.539
Delay in Sharing Information with the RCMP
Initially, CSIS decided not to share the Ms. E information with the RCMP
immediately.
During his first interview with Ms. E, it became clear to Laurie that her biggest
fear was that the police might get involved. As Laurie put it, “…she did not want
that at any cost.”540 When she was visited by the RCMP after the bombing, she
did not tell them what she told Laurie.541 Laurie was not surprised:
It seems to me that when I was told that the police had been
there and been dismissed – I don’t remember that being
shocking news because I come across that many times. There
are people who say to me in plain English, oh, I had told the
police I don’t speak English. Oh, okay.542
Ms. E told Laurie that she was “rattled” by the RCMP’s visits.543 She was convinced
that cooperating with the police would put her and her children in danger and
she said that she would never assist the police in any way.544 She made it clear
that she did not want her information or her identity revealed to the police:
MR. LAURIE: She couldn’t have made it more clear. She
stressed it over and over again that she would not, for the
reasons stated, ever cooperate with the police and that if the
police came she would deny everything…545
Ms. E’s fear of having the police involved remained constant throughout her
dealings with Laurie:
MR. LAURIE: Well, she is still [during the second interview]
consumed with fear about the police. For the entire time
that I knew Ms. E, if I had to pick one thing about her that
was constant, it was the fear of the police and the fear of her
children being killed.
536
537
538
539
540
541
542
543
544
545
Exhibit P-101 CAF0379, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7460.
Exhibit P-101 CAF0399, p. 3.
Exhibit P-101 CAF0399, p. 3; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7469.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7410.
Exhibit P-101 CAA0553(i), p. 2.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7420.
Exhibit P-101 CAA0579(i), p. 1.
Exhibit P-101 CAA0553(i), p. 2.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7412.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
MR. KAPOOR: And to be correct, it is not the police particularly
but it is the fear that going to the police will reveal her such
that she will be placed in jeopardy at the hands of others?
MR. LAURIE: Yes. And one time I was told that if Bagri has me
killed that’s one thing, but if he kills my children, it will be a bad
thing. So she was really, really concerned about the children.546
…
MR. KAPOOR: And through this, again, she makes it clear the
police are not – she does not want to deal with the police?
MR. LAURIE: Yes. When I discussed the police aspect, it was
usually her telling me that she would commit suicide before
she would assist the police – or before she went to court she
would kill herself to protect her children. That is reported once
or twice.547
Years later, when he drafted a statement in preparation for Bagri’s trial in 1999,
Laurie noted that his relationship with Ms. E was still friendly, but that “…she
profoundly wishes she had never confided in me.”548
On September 11, 1987, in the report he transmitted to his superiors at the BC
Region and to CSIS HQ about his first interview with Ms. E, Laurie indicated that
he was convinced that Ms. E’s cooperation with him would cease immediately if
she were contacted by police.549 Based on her “repeated comments,” he felt that
she would deny all knowledge and “…perhaps even her contact with CSIS.”550
Laurie noted that, if Ms. E’s information had to be passed to the police “…because
of policy or legal requirement,”“…considerable effort will be required to protect
[her] identity in order to prevent the source from walking away.” Since the RCMP
knew of Ms. E’s relationship with Bagri, Laurie felt that “…even a sanitized version”
of his report would allow the RCMP to identify her. He specifically requested
that CSIS HQ allow him to recontact Ms. E and obtain additional information
before disclosing the information already obtained to any other agency.551
Laurie explained in testimony that “…it was clear to all of us, both my supervisors
and I and to the people who received [the information] in Ottawa, that this is
police information and it will go to the police.”552 Laurie never had doubts on
this point:
546
547
548
549
550
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7427.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7440.
Exhibit P-101 CAF0399, p. 3.
Exhibit P-101 CAA0553(i), p. 3.
Exhibit P-101 CAA0553(i), p. 3. In the source report he prepared about this interview with Ms. E, Laurie
indicated that Ms. E “…stated emphatically that she will not co-operate with the police” and that she
had refused their questions in the past: Exhibit P-101 CAF0376, p. 1.
551 Exhibit P-101 CAA0553(i), p. 3.
552 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7416.
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MR. BOXALL: Okay. But in this particular case, it was obvious
to you from the first time you met her that what she was
supplying was criminal information, criminal intelligence, a
potential witness in a criminal case?
MR. LAURIE: Yes.
MR. BOXALL: And, in fact, the value of that was clear?
MR. LAURIE: Very clear and I said so just about every time I
report it.553
This was difficult because the source, Ms. E, did not want to cooperate with the
police. The question for Laurie then became whether he could further develop
the information before it was passed on, especially given that the RCMP had
already interviewed Ms. E and obtained no information. Laurie decided not to
request the information in the RCMP’s possession as a result of their interviews
with Ms. E, since that could expose his interest and cause the RCMP to attempt
contacting Ms. E again. Laurie explained that, by his comments in his report, he
was asking his HQ for guidance about whether he could go see Ms. E again as
he wished, or whether it would all “end now” with an immediate transfer of the
information to the RCMP.554
The Dilemma: Protecting an Intelligence Source with Potentially Criminal
Information
The Unit Head for the BC Region Counter Terrorism Section, John Stevenson,
supported Laurie’s request to be allowed to recontact Ms. E “…prior to CSIS
HQ disseminating any details to the RCMP.” He noted: “…we have everything
to gain by a cautious empathetic approach to this source.”555 At the Inquiry
hearings, Stevenson explained that “…there was nothing life-threatening here.”
Since Laurie appeared to have established a rapport with Ms. E, he felt the best
approach for CSIS was “…softly, softly, let’s go back and go back and go back
and get as much as we can.” This was not necessarily because CSIS expected Ms.
E to have intelligence about present threats to Canada’s security, as opposed to
information about the possible perpetrators of the Air India bombing, but simply
because, since she was not willing to speak to the police, it was better for CSIS
to “…see what we can get” rather than rush to pass the matter over to the RCMP,
in which case “…the RCMP may not have gone anywhere.” Stevenson explained
that there was no “formula” to determine when a source with information about
past criminal activity would be “turned over” to the RCMP. The decision would
be made by CSIS HQ and would depend on all circumstances, including the
benefit to CSIS’s investigations of the source’s information, and whether the
source could be “…more easily utilized in the criminal side.”556
553
554
555
556
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7531.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7416-7417, 7421.
Exhibit P-101 CAA0553(i), p. 3.
Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7680-7682, 7685-7686.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The Deputy Director General Operations at the BC Region, Ken Osborne, agreed
with his colleagues, indicating that “…once our information is more complete
then a decision can be taken on the best method of dissemination to the RCMP.”557
He asked for direction from CSIS HQ, clearly recognizing the implications of the
information:
Once again we find ourselves in a position where a source who
demands anonymity has provided information which has a
direct bearing on a serious criminal matter.558
Laurie explained that his supervisors’ attitude, upon learning about the
information he received from Ms. E, was “…let’s see if headquarters will give us
authority to not pass it yet.”559
On September 13, 1987, Michael Gareau of CSIS HQ wrote in an internal Transit
Slip that he agreed that Laurie should be allowed to recontact Ms. E for more
details, but that this had to be done prior to September 18th. He then provided
a list of questions about the information found in the BC Region report, and
suggested that Ms. E be shown photographs to identify the individuals who
were to accompany Bagri to the airport.560 Surprisingly, he appeared to
disagree with Laurie’s comment that the information obtained was “…new and
important intelligence concerning the Air India/Narita issue.”561 He wrote: “Para
11. information not new, but does support CSIS’s premise.”562 About Osborne’s
comment that the decision concerning the “…best method of dissemination
to the RCMP” could be made when more information was obtained,563 Gareau
noted that the decision was not yet reached at HQ and that answers to his
questions and the “source’s future potential” would be taken into account. He
addressed this Transit Slip only to Bill Dexter, another CSIS HQ member, and
asked him to add other points requiring clarification.564
Dexter did not send a message to the BC Region until September 24, 1987. He
reproduced Gareau’s questions about the Ms. E information and advised the
Region that the decision on dissemination had not yet been made by HQ. He also
suggested a manner of compiling photo albums, similar to police photo lineups,
for the purpose of having Ms. E identify the other individuals involved.565 Laurie
had never prepared photo lineups since he joined CSIS and did not follow this
last suggestion, since Ms. E had not indicated that she had seen the individuals
who were to accompany Bagri to the airport.566
557
558
559
560
561
562
563
564
565
566
Exhibit P-101 CAA0553(i), p. 4.
Exhibit P-101 CAA0553(i), p. 4.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7420.
Exhibit P-101 CAF0346, pp. 1-2.
Exhibit P-101 CAA0553(i), p. 3, para. 11.
Exhibit P-101 CAA0346, p. 2.
Exhibit P-101 CAA0553(i), p. 4.
Exhibit P-101 CAF0346, p. 2.
Exhibit P-101 CAA0347, pp. 1-2.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7423-7424.
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Because the HQ message to the BC Region was dated September 24th, Gareau’s
directive that Ms. E be recontacted before September 18th could not be
communicated in time to the Region. Further, Laurie conducted his second
interview with Ms. E on September 24th567 before he received the HQ message, so
he could not address the HQ questions during the interview. In his report about
this interview, he reiterated the request that CSIS HQ advise of any questions
they had, and again asked that HQ wait until his next interview with Ms. E before
“…taking any action with respect to the passing of this information to police
agencies.”568 Laurie wanted to be allowed to speak to Ms. E again before the
police found out about her information.569 He noted that Ms. E was still adamant
in her reluctance to assist the police and was “…now living in fear of exposure.”
He reiterated his earlier views that all assistance provided by Ms. E would stop if
she was approached by any police.570
The BC Region Director General, Randil Claxton, and the Chief of Counter
Terrorism, Mervin Grierson, commented on the dilemma faced by CSIS as a
result of the nature of the information provided by Ms. E. They wrote that her
information could implicate Bagri and others in the Air India bombing, but had
yet to be substantiated. They said the BC Region would try to corroborate Ms.
E’s information with the data in their possession. They noted that Ms. E had
previously refused to cooperate with the RCMP, but now wanted to speak to
Laurie.571 They wrote:
Again, we are faced with the problem of a developing source in
possession of information vital to a criminal investigation. The
dilemma of source confidentiality continues…. It is realized
that we cannot shelter this information but must strive for a
working relationship, i.e., (joint operation) with the RCMP to
maximize this information as this arrangement is at the best
tenuous at this time.572
The Chief CT and the Director General also wrote that while Laurie was aware
of CSIS HQ’s suggested questions for Ms. E, “…you will no doubt appreciate the
dilemma we face in advancing the dialogue with source without impinging
on the responsibilities of law enforcement authorities.”573 Laurie explained in
testimony that the BC Region was facing a dilemma because going back to Ms. E
and asking for more information about Bagri’s request to borrow the car was “…
very much what law enforcement should be doing, not what the Service should
be doing at this stage.” Since Ms. E would not speak to police, it appeared as
though only CSIS could get her information.574
567
568
569
570
571
572
573
574
Exhibit P-101 CAA0562(i).
Exhibit P-101 CAA0562(i), p. 3.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7436.
Exhibit P-101 CAA0562(i), pp. 2-3. See also Testimony of William Laurie, vol. 61, October 15, 2007, p.
7436.
Exhibit P-101 CAA0562(i), p. 3.
Exhibit P-101 CAA0562(i), p. 3.
Exhibit P-101 CAA0562(i), p. 3.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7437.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Grierson explained in testimony before the Inquiry that the BC Region wanted
to continue developing this information on its own because “…there was no
immediacy in terms of disclosing right away.”575 He added:
MR. GRIERSON: So the deal is, if we pass it right away, we
know what the dilemma is going to be, it’s going to turn
the tap off. So what we’re proposing is, in consultation with
Headquarters, we’ve got to find a way to basically see if we
can maximize this without losing the benefit that’s potentially
there.
…
I mean, quite clearly it’s very significant but it’s not immediate
and it’s not life-threatening so we’ve got some time to deal
with this.576
Again, BC Region requested guidance from HQ about this issue.577
After the third interview with Ms. E on October 7th, when the questions
suggested by HQ were asked of Ms. E, Laurie again asked for more time before
her information was passed to the RCMP:
The source is presently searching records for the date of Bagri’s
travel (para 4) and another meeting is assured. It is hoped that
this Region may complete these inquiries prior to a decision
on which, if any, information, should be passed to other
agencies.578
He explained that Ms. E continued to maintain the posture that “…co-operation
with the police is out of the question,” but was now opening up more and more
when she saw that she was not “…summarily handed over to the police” after
speaking to Laurie. As Ms. E felt that “…her biggest worry is over,” Laurie could
approach almost any topic with her.579
Laurie did recognize, however, that Ms. E’s information would eventually have
to go to the police, and that she would eventually become less and less useful
to CSIS as a source. He even proposed to help convince her to approach the
police:
575
576
577
578
579
Testimony of Mervin Grierson, vol. 75, November 14, 2007, p. 9490.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9490-9491.
Exhibit P-101 CAA0562(i), p. 3.
Exhibit P-101 CAA0579(i), p. 3.
Exhibit P-101 CAF0424, p. 1.
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While I am convinced that bringing the police to see her would
end all co-operation I now wonder whether I would be able to
convince her, over time, to approach the police herself, offering
limited (no court) co-operation. In this way, a gradual transfer
could take place and police assurances of protection etc. could
be laid on her. The source is now checking personal records
in order to provide me with needed dates but her usefulness
to us will have limits. If she ever could be brought ‘on side’ by
the police then possibly she could be used by the police to
elicit some sort of evidentiary confession from Bagri suitable
for court. Naturally time hangs in the balance and we must
make a decision on which way to go with this source. I have
developed a relationship with her which, if developed, I feel
can lead to her offering co-operation to the police. If such an
effort failed, then I feel we would have lost little, and the police
may still then be brought in to make their own efforts to woo
her. Your views are sought.580
Laurie explained that, like other colleagues at his level in CSIS, he wanted not
only to gather information but also “…to see things resolved successfully.” If
Ms. E was summarily passed to the RCMP, then Laurie felt that no one would
be successful with her. After his third interview with Ms. E, except for the
verifications she was to make about Bagri’s dates of travel, Laurie felt that he
had gotten all the information from her that was relevant to the CSIS mandate
about the BK and his targets. There was little long-term benefit that could be
gained for CSIS in continuing to develop Ms. E as a source. The benefit she could
bring would be to the police.581
Grierson noted that the good relations established between Ms. E and Laurie
were “…a good indication that this source may be of great benefit in helping
solve Air India.” He added that “…the old dilemma still remains [as] to how do we
introduce this source to the authorities without jeopardizing the investigation
or this source’s development.” Grierson noted that the Region’s decisions about
Ms. E’s future development as a source would depend on CSIS HQ’s response to
the Grierson/Claxton comments formulated after the second interview, asking
about the passing of information to the RCMP.582
CSIS HQ Makes a Decision
Laurie did not receive a response from CSIS HQ about his suggestion to attempt to
convince Ms. E to cooperate with police. He never received instructions to make
this attempt.583 From the time of its September 24th message indicating that no
decision had yet been made about the dissemination of Ms. E’s information, CSIS
580
581
582
583
Exhibit P-101 CAF0424, p. 2.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7445, 7449.
Exhibit P-101 CAF0424, pp. 2-3.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7446-7447.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
HQ provided no further guidance to the BC Region until October 23, 1987, when
HQ finally provided a response to the Region’s questions. HQ decided that Ms. E
would remain under CSIS control until it was deemed necessary to turn her over
to the RCMP and that, in the meantime, she would not be interviewed by the
RCMP. HQ noted that, as the handler was gaining Ms. E’s confidence, it was in
the interest of all agencies to not alter this situation. HQ recognized that Ms. E’s
potential for CSIS was short-term and that, for the most part, the “…intelligence
gathered to this point has concerned Air India/Narita.” This type of information
was said to put CSIS in the “familiar position” of having to decide when to pass
the source and her information to the RCMP. It was decided that this would
be done “…sooner rather than later,” but that, for now, CSIS would handle the
source independently.584
CSIS HQ also added:
We are of the opinion that source has provided us with
historical information only and any information which is of a
criminal matter can not be corroborated.585
In the same telex, HQ went on to caution Laurie against possible interference
with the criminal investigation by counselling Ms. E in relation to appearing as a
witness. Finally, HQ indicated that CSIS had been “…cooperating with the RCMP
by providing relevant information to them.”586
Laurie disagreed with HQ’s assessment of Ms. E’s information as “historical” and
with the notion that none of the information provided could be corroborated.
He viewed the HQ telex as “…an excuse to not pass it.” According to Laurie,
“historical information” was meant to designate information that did not need
to be passed immediately.587 He explained:
MR. LAURIE: I had said in my previous messages that I believe
this is information that needs to be passed. It is true that I
said that, you know, I would like to corroborate or get further
details and that sort of thing, but up to this point it seems to
me that everyone is in agreement that this was information
that needed to be passed. I mean, after the very first interview
in my report, my management in British Columbia agreed with
the assessment that this was material that would be passed.
The dilemma was when and how and all those sorts of things,
but this all of a sudden indicates that maybe that is not the
case in their view.588
584
585
586
587
588
Exhibit P-101 CAF0348, pp. 1-2.
Exhibit P-101 CAF0348, p. 1.
Exhibit P-101 CAF0348, pp. 1-2.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7450-7451.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7451.
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Overall, Laurie felt that the HQ telex was contradictory in that it seemed to
indicate in one paragraph that the information was historical and did not need
to be passed and, in another paragraph, that it needed to be passed sooner
rather than later. As Laurie had not tasked Ms. E with taking any actions, he
could easily put the matter on hold after receiving the HQ instructions.589 He
explained that during this period, it was not unusual to receive contradictory
and changing instructions from HQ about the Air India investigation:
MR. LAURIE: You have to remember also that during this
period in October of ’87, this is when we are in that period
where one day we are aggressive and the next day we are not,
and the next day we re doing this and the next day we are not.
And, you know, we would get messages like this that seemed
to be conflicting from paragraph to paragraph. And so if the
solution for this particular file is to do – just put it on hold for a
few days, hey, I’m happy with that. I’ve got lots of other things
that I am doing.590
However, Laurie did need to know whether and when Ms. E’s information would
be passed to the RCMP and whether her identity would be revealed, as this
could have a serious impact on his future meetings with Ms. E and on his ability
to continue receiving information.591 Having received this telex, he still did not
know what was, or would be done.
On November 7, 1987, Gareau of CSIS HQ wrote an internal note asking a
colleague to review the information provided by Ms. E and to send questions to
BC Region, where clarification was needed. Gareau expressed particular interest
in Bagri’s trip to New York. He did return the Ms. E material to the Human Sources
Branch, and he indicated that Ms. E did not have any future potential as a source
for CSIS, but that he nevertheless wanted to make sure that BC Region obtained
all the information they could about Bagri and the early 1980s.592
Information from A “Vancouver Source” Revealed to the RCMP
A little over a month later, on December 17th, the RCMP HQ National Security
Offences Task Force (NSOTF), in charge of coordinating the Air India investigation,
wrote the following to the E Division NSOTF investigating Air India in British
Columbia:
Further to our request of CSIS for description of two UMs
to accompany Bagri to airport on 85-06-22 provide in their
HQCT/9064/438 the following response.593
589
590
591
592
593
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7452.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7453.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7453.
Exhibit P-101 CAF0349.
Exhibit P-101 CAA0610, p. 1.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Attached was a telex from Gareau to the RCMP HQ NSOTF, also dated December
17th, indicating that, in response to RCMP Insp. Terry Hart’s request the same
morning, CSIS’s “Vancouver source” could not identify the two persons who
would accompany Bagri to the airport because the source had not seen them –
Bagri visited the source on his own to borrow the source’s car.594
Having received a copy of this CSIS telex, the E Division Task Force replied that
it had “…no record or knowledge” of an incident where Bagri attempted to
borrow a vehicle to go to the airport on June 22, 1985. The Division asked HQ to
elaborate.595 HQ explained that CSIS had advised the RCMP of the intelligence
about Bagri’s request to borrow the car of one of their sources, during a meeting
with RCMP HQ members, Supt. Pat Cummins and Insp. Terry Hart. RCMP HQ
indicated that no “hard copy” of the information had been provided.596 On
December 17, 1987, the day when Hart made his verbal request for a description
of the UMs who were to accompany Bagri to the airport, Gareau and Dexter
of CSIS HQ met with Cummins and Hart and discussed recent (unrelated)
information about Bagri which the RCMP was to investigate.597 Obviously, it was
at that time that Hart requested information about the two UMs. It was also
at that time, or sometime before then, that CSIS had provided the RCMP with
some of the Ms. E information, without identifying Ms. E.598
Because no written record of this passage of information was prepared, it is
difficult to know exactly what information was passed verbally by CSIS. In its
1987 message to E Division, RCMP HQ noted that it was “…not clear how many
people accompanied Bagri however source cannot identify them not having
seen them.”599 HQ added:
There may have been a mention of luggage however source
does not clearly recall.600
Finally, HQ advised that it had “no further info” other than that contained in
their previous telex about the request to CSIS for the identification of the two
UMs.601
594
595
596
597
598
Exhibit P-101 CAA0610, p. 2, CAF0356, p. 2.
Exhibit P-101 CAF0350.
Exhibit P-101 CAA0615.
Exhibit P-101 CAF0420, p. 3.
Final Submissions of the Attorney General of Canada, Vol. 1, para. 240. The AGC states that the Ms. E
information was provided verbally “…at a meeting in Ottawa on another matter in the late fall of 1987.”
It appears that the meeting would have occurred sometime between Laurie’s early interviews with Ms.
E in September and October and the December 17th request by Hart or even on the day of the request.
The AGC also states that CSIS did not identify Ms. E at that time, which is consistent with the evidence
where she is referred to only as “the source” in 1987. Finally, the AGC claims that CSIS advised the RCMP
that she refused to meet the Force. This is unsupported by the evidence, which provides no
information about whether such a statement was made or not.
599 Exhibit P-101 CAA0615.
600 Exhibit P-101 CAA0615.
601 Exhibit P-101 CAA0610, CAA0615.
109
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Volume Two: Part 2: Post-Bombing
Subsequent CSIS Contacts with Ms. E
Laurie was not advised of the discussions held between CSIS and RCMP at the
HQ level. After his October 1987 interview with Ms. E, and HQ’s cryptic telex
about the “historical information” and the eventual need to pass it to the RCMP,
he was never informed of whether Ms. E’s identity or information had been
disclosed to the RCMP. He testified that he kept enquiring about whether the
information was passed, but could not get an answer from CSIS HQ.602
At some point, – Laurie does not recall exactly when – Gareau visited the BC
Region and Laurie asked him, “directly face-to-face did he pass it.”603 Gareau
said that the material had been passed. When Laurie asked “which of it” was
passed, Gareau responded “all of it.” At first, Laurie assumed that this meant
that Ms. E’s identity had been disclosed to police. He was surprised that this
had been done without his knowledge and without even advising him. Later,
Laurie felt confused because Ms. E did not say anything about being contacted
by the RCMP and her attitude towards him did not change.604 In fact, after he
interviewed her in January 1989, Laurie noted:
The source admitted that after the first time she told me what
she knew, she was afraid, despite my assurances, that I would
not exercise caution and that our meetings would become
publicly known. She also feared the police would get involved
and she would be forced to deny everything. Now, the source
says that she feels more secure and she expressed gratitude
[REDACTED] that her security has been safeguarded.… I still
feel that the source will never co-operate with the police or
give evidence in court.605
Ms. E did not say that she was contacted by the RCMP and rather indicated
the opposite. During his subsequent interview with Ms. E in April 1989, Laurie
ascertained that the police had not contacted her.606
After he received the HQ telex in October 1987, Laurie did not meet with Ms. E
again for over a year. A decision was made at the BC Region level that it would
be “prudent” for CSIS not to make contact with Ms. E for a time, “…in order that
we not contaminate any investigations.”607 However, Laurie was never instructed
to stop all contact with Ms. E.608 He was told that he was not to use her “…
602 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7453, 7470-7471.
603 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7470-7471. See also Testimony of William
Laurie, vol. 61, October 15, 2007, p. 7455.
604 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7455-7457, 7470-7471.
605 Exhibit P-101 CAF0377, p. 2.
606 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7458-7460.
607 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7453.
608 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7528; Exhibit P-244, vol. 4 (January 7, 2004
Transcript), pp. 51-52.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
for criminal information or intelligence,” but that he could use her for other
information, which is why he focussed more on biographical information about
Bagri during subsequent interviews with her.609
When Laurie interviewed Ms. E for the fourth time, in November 1988, he found
that she was cooperative because she could see that “…no one has learned of
our discussions.” He reported to HQ that, even if HQ had suggested in October
1987 that he continue to gain Ms. E’s trust to obtain more information of value
to CSIS and the RCMP, that she was “not pursued vigorously” because it was
assessed that she “…did not have any more valuable information,” that she was
“…still determined to resist co-operating with the police” and that she “…did
not want to get involved with members of the BK.”610
Other BC Region members, including the Assistant Chief of the CT Section,
reminded HQ that Ms. E had “…supplied information which may have relevance
to the RCMP Air India/Narita investigations.” They explained that, because
HQ had said that the information was passed to the RCMP, because the RCMP
had requested that CSIS make no inquiries that could “…contaminate their
investigation,” and because Ms. E was not willing to get involved with BK
members, contact with her was “…reduced to periodic telephone calls to check
on source’s well being.” According to the BC Region, this was not a problem
because “…pursuant to Headquarters instructions, we are not investigating Air
India/Narita.” Ms. E was willing to maintain contact, but BC Region thought it
was unlikely that any information of value could be learned, so they decided
to see her only occasionally and to consider her in the “dormant category” as a
source.611 Yet, two other interviews were conducted subsequently.
After the November 1988 interview, the BC Region Deputy Director General
of Operations, Grierson, further explained that it was now the Region’s
understanding that Ms. E’s identity had not been revealed to the RCMP, only her
information. He suggested HQ might want to address the issue of passing on
her identity, since her value as a source to CSIS operations was “now limited.” He
added that, as requested in HQ’s October 1987 telex, Laurie had never counselled
her not to cooperate with police.612
After his January 1989 interview with Ms. E, Laurie continued to be convinced
that Ms. E could not provide new information because she did not have contact
with CSIS targets. He reported to HQ that his contact with Ms. E would be “…
limited to those occasions when she calls me or there is a specific reason to see
her.” His supervisors at BC Region all agreed.613
Deficiencies in the 1987 Sharing of Information about Ms. E
During his time at CSIS, Laurie was never shown the CSIS/RCMP Memorandum
of Understanding which governed the transfer and sharing of information
609
610
611
612
613
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7528.
Exhibit P-101 CAF0406, p. 2.
Exhibit P-101 CAF0406, pp. 2-3.
Exhibit P-101 CAF0406, p. 3.
Exhibit P-101 CAF0377, p. 2.
111
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Volume Two: Part 2: Post-Bombing
about the RCMP investigation of Sikh extremism dubbed “Project Colossal.”614
He agreed that the information provided by Ms. E appeared to qualify as
information relating to the RCMP investigation that was to be fully disclosed
to the RCMP. However, this was not his decision to make, and the only way the
MOU could have an impact on his work was through the directions he would
receive from his supervisors.615
CSIS HQ, which had the responsibility for deciding whether and how to pass on
the Ms. E information, initially allowed for two more interviews of Ms. E before a
decision was even made. As will be shown later, some of those interviews were
likely recorded by Laurie, and the tapes and transcripts destroyed according to
CSIS’s usual practice at the time, steps that at trial were found to constitute a
violation of the accused’s Charter rights. When HQ finally made a decision, it
provided no clear indication to its BC Region of what the decision was, leaving
the source handler in the dark about what would happen to his source. HQ
provided no instructions to stop contact with Ms. E, with the result that the
Laurie interviews, and the destruction of tapes and transcripts, continued.
HQ also provided no instructions about the types of records of the interviews
which were to be prepared and maintained, given the criminal nature of the
information.
In 1987, CSIS HQ provided only verbal information about Ms. E to the RCMP,
and did not preserve any record of the nature of the information passed. No
written documents were provided. The interview reports were not provided,
even in edited or redacted form. No indication of the number of interviews
conducted with the source or of their timing in relation to the events related
by the source was provided. The source was not identified, with the result that
the RCMP could not interview her itself to obtain more information while CSIS
contact with the source continued.
On the other hand, the RCMP failed to follow up on what little information
was provided. Having received information indicating that Bagri sought to
borrow a car to go to the airport the night before the bombing, the RCMP took
no further action once it was told the source could not identify the persons
accompanying Bagri. When the file was reviewed many years later, it was noted
that “…no documents could be found to indicate that anything was done with
this information during 1988 and 1989” and there was no indication about “…
why someone did not ask more questions of CSIS in 1987.”616
1990: The RCMP “Discovers” the Ms. E Information
The Watt MacKay Report
In the late 1980s, the RCMP Deputy Commissioner of Operations ordered
that a review of the Air India investigation be conducted to ensure that “…all
614 Exhibit P-101 CAA0500; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7465.
615 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7464-7466.
616 Exhibit P-101 CAA1045(i), pp. 1-2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
appropriate avenues of this investigation have been explored to the extent
possible.”617 Insp. B.G. Watt and Insp. R.E. MacKay reviewed the files held in the
Divisions and at HQ, and in 1989 they produced a report referred to as the Watt
MacKay report.618 A draft of the report was circulated to all the Task Forces
involved in 1989, and then comments and suggested actions from the divisional
analysts were added to the final version of the report. The Watt MacKay report
identified issues that were viewed as still outstanding in the investigation. It was
organized according to the suggested priority to be afforded each outstanding
issue: first, items which required initial or follow-up investigation; second,
items which “should be considered” for investigation or follow-up; third, items
of “minimal investigative value”; and finally, information of interest. Under the
second group – issues which “should be considered” for action – issue (w) was
devoted to Ms. E.619
Watt and MacKay mentioned the “…undocumented CSIS information” about
Bagri visiting a Vancouver CSIS source to borrow a car on June 22, 1985, and
asked how much detail was available about Bagri’s arrival, his appearance, his
travel companions, his vehicle, etc. They asked whether the “material witness”
aspect should be pushed with CSIS. Interestingly, they also asked whether this
was the “…same incident where Bagri arrived late at night and asked to leave
some suitcases for a while?” The E Division analyst commented that efforts to
obtain more information about the RCMP HQ information about the request to
borrow the car “…were not successful.” The analyst noted that no direct inquiry
had been made of the CSIS BC Region, where the information likely originated,
and that this avenue could be pursued. Finally, he noted that, according to
his research, he could identify no late night visit where Bagri asked to leave
suitcases. He added that the only late night visit on file involving Bagri was to
his friend, Ms. E, but that there was no information indicating that he had asked
to leave suitcases. The “anticipated action” included in the Watt MacKay report
for this issue was to contact the CSIS BC Region and request “complete details”
about the request to borrow the car.620
The RCMP Approaches CSIS about the Ms. E Information
Cpl. Rick Rautio and Cst. Bart Blachford were members of the E Division National
Security Investigations Section (NSIS), which was then in charge of the Air India
investigation, and were tasked with following up on the Watt MacKay report
recommendations.621 They prepared a list of questions for CSIS which was
transmitted to CSIS BC Region on July 9, 1990, in a letter signed by Insp. Ron
Dicks, Officer in Charge of E Division NSIS.622 Further to issue 2(w) in the report,
paragraph 6 of the letter requested “…complete details of the incident on 85
617
618
619
620
621
Exhibit P-101 CAF0343(i), p. 8.
Exhibit P-101 CAF0343(i); Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7566.
Exhibit P-101 CAF0343(i), pp. 8, 9, 35.
Exhibit P-101 CAF0343(i), p. 35.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7735. See also Testimony of Ron Dicks, vol. 62,
October 16, 2007, p. 7568.
622 Exhibit P-101 CAA0773; Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7735.
113
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Volume Two: Part 2: Post-Bombing
JUN 22 when Ajaib Bagri approached a CSIS source in Vancouver to borrow a
car.”623 The CSIS BC Region forwarded the request to CSIS HQ with a note that
the Region would be writing separately about paragraph 6 and requesting HQ’s
input about the response.624 Shortly afterwards, John Stevenson, the BC Region
CT Unit Head, reviewed the information on file about Ms. E.625
On July 25th, Rautio and Blachford went to the CSIS offices and perused records
about the questions asked in Dicks’s letter. Records about paragraph 6 of the
letter were not made available however, as BC Region “…left the dissemination
of that information to HQ.”626 In the following week, the CSIS BC Region wrote to
HQ and advised that the Ms. E information relevant to paragraph 6 of the RCMP
request was “…not passed to the RCMP locally,” and that the decision of whether
to pass it would be left to HQ. Other questions were to be answered directly by
the BC Region, but the RCMP was told that paragraph 6 would be addressed by
CSIS HQ. The Region reminded HQ that the investigator who used to deal with
Ms. E, Laurie, was now an RCMP member.627
In a letter dated September 27, 1990, addressed to RCMP HQ, CSIS HQ provided
answers to the RCMP questions, including paragraph 6 of the RCMP request.628
The letter contained a two-paragraph summary of the Ms. E information,
extracted from Laurie’s reports about his interviews with Ms. E. The information
provided included a detailed description of Bagri’s request to borrow the car,
limited information about his previous association with Ms. E (simply stating
he used her car regularly), and information about Bagri’s visits to Ms. E after
the bombing, including the threat he uttered when discussing the “secrets”
they shared.629 Ms. E’s identity was not provided, nor were any details about
her interaction with CSIS, her previous interviews with the RCMP, nor any of the
additional information she provided about Bagri and Parmar.
On October 9, 1990, RCMP HQ transmitted the CSIS response to E Division
NSIS.630 On the same day, Blachford compared the information found in the
1987 RCMP HQ correspondence about this matter, which simply stated that
“…there may have been a mention of luggage but the source does not clearly
recall,”631 with the two paragraphs now sent by CSIS, noting that a “lot of new
details” were provided, and concluding: “…question of course is where was all
this info before?”632 Blachford was of the view that the information passed in
1987 was “…scant and contained very little content or context” when compared
to the information now provided in response to the Watt MacKay questions.633
623
624
625
626
627
628
629
630
631
632
633
Exhibit P-101 CAA0773, p. 2. See also Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7568-7569.
Exhibit P-101 CAB0838, p. 3.
Exhibit P-101 CAF0351.
Exhibit P-101 CAF0432, pp. 1-2.
Exhibit P-101 CAF0352, pp. 1-2.
Exhibit P-101 CAA0777.
Exhibit P-101 CAA0777, pp. 4-5.
Exhibit P-101 CAF0353.
Exhibit P-101 CAA0615.
Exhibit P-101 CAA0781(i), p. 1; Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7733-7735.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7737.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Later in the day on October 9th, Dicks wrote to RCMP HQ about this matter.634 He
attached the three pieces of correspondence between HQ and E Division from
1987, in which HQ first transmitted CSIS’s response that their source could not
identify the UMs who were to accompany Bagri to the airport,635 and indicated
that there was “…no hard copy record” of the CSIS intelligence.636 Dicks
explained that item 6 of the latest CSIS response to the Watt MacKay questions
was analyzed in light of the 1987 correspondence. He commented, “…you will
readily discern considerable material difference between what was reported in
1987 to what is now reported on pages 5 + 6 [item 6].” Dicks advised that he
asked Cummins about his recollection. Cummins explained that, at the time,
RCMP HQ had wanted to have the CSIS source identify the individuals Bagri
took to the airport by viewing photographs. He said that, because the source
had not seen anyone and “…in the absence of any additional information, the
matter was not pursued further.”637
Dicks pointed to the information in the latest CSIS response, which indicated
that the source “…was quite afraid of Bagri and sensed his intentions” by the
time Bagri made the request to borrow the car. He noted that now that such
specific information was provided by CSIS, E Division would “…eventually want
to vigorously investigate what CSIS source felt, were Bagri’s ‘INTENTIONS’.” Dicks
indicated in conclusion that he did not want CSIS approached about this at that
time, but requested that HQ files be researched and that Hart be canvassed
for “…any light he may be able to cast on the developments as they occurred
in 1987.”638 Dicks explained in testimony that he felt that the information just
received from CSIS was significant and could have a material impact on the Air
India investigation, but that he wanted to understand clearly what information
the RCMP already had before seeking additional information from CSIS.639
On the next day, October 10, 1990, RCMP HQ replied to Dicks’ message.640 HQ
said they concurred with E Division’s interest in the CSIS information, and that
a review of HQ files had revealed no additional information. HQ reported that
Hart recalled receiving the information during a meeting at CSIS HQ on another
subject. He indicated that “…it was the position of this HQ at the time given
the fact source did not see the other two UMs that source could not identify
them and given the fact source did not wish to meet with RCMP members this
issue could not be further pursued.” HQ then noted that both Hart and HQ
Supt. Neil Pouliot were now of the view that, given the information provided
by CSIS in response to the Watt MacKay questions, the issue “…deserves further
examination.” HQ finally noted that CSIS would not be approached for the time
being, but that consideration should be given “in the near future” to making a
request to CSIS for access to the source “…for a full police interview” as “…it may
well be that source could provide missing link in this investigation.”641
634
635
636
637
638
639
640
641
Exhibit P-101 CAA0779.
Exhibit P-101 CAA0610, CAF0356, p. 2.
Exhibit P-101 CAA0615.
Exhibit P-101 CAA0779, pp. 1-3.
Exhibit P-101 CAA0779, p. 3.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7576-7577.
Exhibit P-101 CAF0421.
Exhibit P-101 CAF0421, pp. 2-3.
115
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Volume Two: Part 2: Post-Bombing
Before the HQ message was sent to the Division, Dicks spoke with Pouliot and
Hart of HQ.642 As a result of those discussions, a modified version of the HQ
message was sent to E Division.643 It contained only part of Hart’s explanation
about why the information was not pursued in 1987, cutting out the passage
about the source’s unwillingness to speak to the RCMP, and then mentioning
that the issue should be further examined and that the E Division request that
CSIS be approached would be adhered to “…re: access to the source for full
police interview.”644 E Division replied on the same day, indicating that Dicks
would approach CSIS the next morning to discuss the “revelation” contained in
the letter responding to the Watt MacKay questions. Dicks was to point out to
CSIS the need for the RCMP to have direct contact with the source handlers and
“related material” in order to have “…an absolutely clear understanding of the
information as it currently exists.” Dicks also intended to make it clear that he
expected CSIS “…to use any persuasion possible to convince the source of the
importance of speaking with the RCMP.” The Division requested that HQ also
raise the issue with CSIS HQ “…to co-ordinate with the E NSIS approach.”645
The following morning, on October 11, 1990, Dicks and Wall of E Division met
with members of the CSIS BC Region.646 At the time, the RCMP did not know the
identity of the CSIS source or source handler.647 Stevenson, who was present at
the meeting and prepared a note summarizing the discussions, noted that the
“main thrust” of the RCMP’s interest was the recent CSIS correspondence about
the “…source from whom Ajaib Singh Bagri wished to borrow a car on or about
the time of Air India (85/06).”648 At the Inquiry hearings, he explained that both
the RCMP officers “were angry” and were accusing CSIS “…of holding back of
information.” According to Stevenson, the exchanges during the meeting were
“…spirited and bordering on hostile.”649 He said:
…by this time I’m a little rusty on that source, Ms. E, we were
just talking about, because I had been off doing other things,
and to be holding back information on that particular source
and it’s information that they felt they should have had. They
were a bit – perhaps it’s fairly strong, but I think there were
intimations that CSIS was obstructing justice.650
In his note about the meeting, Stevenson indicated that the RCMP request on
this issue had been received by the BC Region in July, but that the Region “…
purposefully refrained from addressing or discussing the sensitive [redacted]
642
643
644
645
646
647
648
649
650
Exhibit P-101 CAA0782, p. 1.
Exhibit P-101 CAA0783; Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7580-7581.
Exhibit P-101 CAA0783.
Exhibit P-101 CAA0782, pp. 1-2.
Exhibit P-101 CAF0404; Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7584-7585.
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7585.
Exhibit P-101 CAF0404, p. 1.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7688.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7688.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
issue but left that to our HQ colleagues to address with RCMP HQ.” He explained
that the current meeting was the result of the CSIS HQ response having been
received by E Division. He wrote that Dicks advised that a message had been
sent to RCMP HQ about this issue and, in particular, the need to “…explore
further the particular relevance of the info that the source had become ‘aware of
his intentions’ i.e. Bagri’s intentions.” He noted that the RCMP asked permission
to talk to the source handler, as they were interested in “…learning about what
exactly the source knew and when the source knew about it.”651
Stevenson also reported that the RCMP members stated that “…it would be
foolish to think that [RCMP] discussion with the source automatically mean[s]
that the source is going to court.” Stevenson commented, “I quite frankly don’t
believe them.”652 Dicks did not have a specific recollection of the CSIS members
raising the issue of possible court proceedings, but explained that this issue
became a concern in all cases where CSIS information coming from a human
source was received.653 Stevenson explained that “…my take on it at that time
was that the RCMP would eventually have that individual in court” because of
her link with Bagri.654
Stevenson noted that “…reservations about this source’s willingness to meet
with the RCMP were expressed by CSIS” during the meeting, and that the RCMP
was told that CSIS HQ would be the route to channel RCMP correspondence in
this respect.655 He explained:
What I indicated to the two gentlemen during that meeting, I
remember saying to them – I’m pretty sure I remember saying
to them – the source doesn’t want to meet with you. The other
thing I found strange at the time and I don’t know if Murray
Nicholson told me, but someone had told me they don’t realize
that they have already spoken to this individual. So in other
words, it has kind of come full circle.656
Dicks had no recollection of CSIS raising the fact during the meeting that their
source had already been interviewed by the RCMP.657 Wall showed CSIS the 1987
telex about the source’s inability to identify the UMs accompanying Bagri, and
Stevenson noted the file number for this previous reference “surfaced by Wall.”
Dicks discussed the need to understand the “level of knowledge” of the source
at the time of Air India. Stevenson noted that RCMP correspondence would
be received by the CSIS BC Chief CT on the same day.658 Finally, Stevenson
commented in his note:
651
652
653
654
655
656
657
658
Exhibit P-101 CAF0404, pp. 1-3.
Exhibit P-101 CAF0404, p. 3.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7586-7587.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7690.
Exhibit P-101 CAF0404, p. 4.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7690.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7588-7589.
Exhibit P-101 CAF0404, p. 4.
117
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Volume Two: Part 2: Post-Bombing
My feeling is that we are in all likelihood going to be involved
in a similar situation in terms of source [redacted] & these
individuals will not rest, or desist until they have interviewed
the source & satisfied their curiosity as to the source’s identity.
As I mentioned to you, I believe they did interview this
individual after Air India, however did not follow up on it. One
of these days, they will surprise us & develop a source or an
asset of their own.659
Stevenson explained before the Inquiry that the “similar situation” he was
alluding to referred to another individual that the RCMP wished to interview
despite indications that the individual was unwilling to speak to the RCMP
rather than CSIS.660
After the meeting, Dicks wrote to the CSIS BC Region Chief of CT. He commented
that the information recently provided in item 6 of the CSIS response to the Watt
MacKay questions was “far more elaborate” than the information provided in
the December 1987 CSIS message, which advised that their source could not
identify the UMs who were to accompany Bagri.661 He emphasized the “absolute
necessity” that the RCMP ascertain the extent of the source’s knowledge, “direct
and indirect,”“at the time and now.”662 He pointed out that “…this need, although
high at all times, is particularly acute in light of the ongoing Reyat trial.” Dicks
requested permission to discuss the matter “at length” with the source handler
and indicated that it could subsequently become necessary to discuss the
matter directly with the source. If the source was unwilling, Dicks noted that
“special considerations” could be arranged in advance. He reminded CSIS that
it was “…obviously within the interest of CSIS and the RCMP, that CSIS should
use whatever persuasion possible, to convince the source of the importance of
speaking with the RCMP.”663 Dicks explained in testimony before the Inquiry that
the considerations he had in mind at the time related to witness protection. He
understood that these matters would have to be organized in advance, and he
was prepared to consider making the necessary arrangements.664
Dicks transmitted a copy to RCMP HQ of his letter to CSIS, advising that the
Reyat trial was shut down until October 22nd and that he hoped to “…have a
handle on this situation before then.” He asked HQ to advise of the outcome of
their discussions with CSIS HQ.665
On the following day, October 12, 1990, Blachford reviewed a package of CSIS
surveillance information received in June 1990. He noted that according to
this information, an UM was dropped off in Vancouver late at night on June
659
660
661
662
663
664
665
Exhibit P-101 CAF0404, p. 5; Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7692.
Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7691-7692.
Exhibit P-101 CAA0786, p. 1.
Exhibit P-101 CAA0796, p. 1.
Exhibit P-101 CAA0786, pp. 1-2.
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7591.
Exhibit P-101 CAA0785.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
9, 1985. A review of RCMP tip 2155 confirmed that the UM was in fact Bagri,
and that he visited Ms. E on that evening. Blachford noted the link between
this information and the Watt MacKay issue 2(w).666 Since the Watt MacKay
report mentioned that the only late night visit by Bagri in June 1985 was to his
friend Ms. E, the possible link between the CSIS source behind the information
which was now being obtained from CSIS and Ms. E was finally becoming clear
to the RCMP. Based on the information already in the RCMP’s possession, the
Task Force inferred that the CSIS source behind the information provided in
response to the Watt MacKay questions was Ms. E. From his review of tip 2155,
Blachford learned that there had been at least two approaches to Ms. E by the
RCMP in 1985.667 He reviewed the documents detailing the 1985 interviews
with Ms. E and her landlord as a result of the CSIS June 9, 1985 surveillance
information.668 However, he did not remember seeing the information about
Ms. E’s BK application form in the file.669
On October 15, 1990, Cpl. Pete Goulet of RCMP HQ wrote to E Division in response
to Dicks’s October 11th message transmitting a copy of his letter to CSIS.670 He
reported that, along with C/Supt Thivierge and Supt. Pouliot of HQ, he met
with CSIS HQ personnel, including Dexter, about Dicks’s request for access to
the source handler and, eventually, to the source. The CSIS members explained
that they had first learned of Bagri’s request to borrow the source’s car in 1987
and that, at that time, “…the details were provided to C/Supt. Cummins and
Insp. Hart during a verbal conversation at CSIS HQ.” They said that the source
was “only under development” in 1987 and that the source handler only had a
few meetings with the source before putting an end to all contact because of a
transfer of the handler to another unit. The CSIS members further advised that
the relationship between Bagri and the source was “…of a sexual nature” and
that no meetings were held at the source’s residence and no other individuals
were seen by the source when Bagri asked for the car. Goulet explained that
the information from CSIS’s source could prove to be invaluable, especially since
Bagri was “…in a bind as to how to get the luggage delivered to the airport
following reconsideration by the initial mules.” The CSIS members agreed, but
felt that the source would be of “…little use already having refused to talk with
any police officer.” In any event, they agreed to have the RCMP interview the
source handler, and advised that it was Laurie, now an RCMP member stationed
in Richmond, BC. They asked, however, that the RCMP make no immediate
direct contact with the source. They wished to seek a legal opinion prior to
agreeing to the RCMP approach, but were optimistic that it would be possible
and intended to recommend this course of action.671
Goulet asked that E Division keep HQ advised of the results of their interview
with Laurie so that HQ could be up-to-date in their future discussions with CSIS.
666 Exhibit P-101 CAA0781(i), pp. 2-3.
667 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7738-7739, 7750.
668 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7739-7745. See, in this section, “1985: Ms. E
Questioned by the RCMP.”
669 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7747.
670 Exhibit P-101 CAA0787(i).
671 Exhibit P-101 CAA0787(i), pp. 1-3.
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Volume Two: Part 2: Post-Bombing
He also noted that the Director of the RCMP National Security Investigations
Directorate (NSID) at HQ was “quite pleased” with the cooperation received from
CSIS in this matter and that HQ was expecting a favourable reply shortly about
direct contact with the source.672
The following morning, Blachford began his work shift by reviewing Goulet’s
telex report on the latest meeting with CSIS at the HQ level.673 His colleague,
Rautio, spoke with Goulet to clarify some of the information contained in the HQ
message.674 About the “details,” which CSIS alleged were conveyed to Cummins
and Hart in 1987, Goulet explained that “…very little info was committed to
paper about the info that was received.” However, Hart “…vaguely recalls that
there was some mention of luggage being delivered to the airport and the
vehicle being returned.” According to Goulet, this information was passed on
September 17, 1987.675 Goulet also advised that his statement that Bagri was “in
a bind” to get to the airport because of “…reconsideration by the initial mules”676
was simply based on his own opinion as a result of analyzing the file, and not
confirmed by additional information in HQ’s possession.677
CSIS Tries to Prove that It Passed the Information in 1987
Also on the morning of October 16th, Dexter, the head of the BK Unit at CSIS
HQ,678 called Stevenson at the CSIS BC Region.679 Dexter said that HQ was “…most
anxious to surface documentation which indicates that info relating to source
[REDACTED] (developed by Willie Laurie of Richmond Detachment) was passed
to the RCMP,” in addition to “…the short paragraph which was passed at the HQ
level in 1987.” Dexter added that he was told at CSIS HQ that Ms. E’s identity and
her information about Bagri’s request to borrow her car had been passed to the
RCMP in British Columbia in 1987. Apparently, James (“Jim”) Warren of CSIS HQ
had informed RCMP Deputy Commissioner Donald Wilson of E Division, while
he was visiting BC at the time. Dexter asked Stevenson to contact Laurie to find
out what he could remember about the events and, in particular, the passing of
information to the RCMP.680
Indeed, Laurie recalled that in October 1990, after he had rejoined the RCMP
and had not heard about the Ms. E issue since, he received a phone call from
Stevenson, one of his former supervisors at the CSIS BC Region.681 Stevenson
told him that the RCMP would be contacting him about Ms. E, that they knew
about her information, and that his name had been provided to the RCMP as the
handler. Laurie was told that he should cooperate with the RCMP “…in any way
672
673
674
675
676
677
678
679
680
681
Exhibit P-101 CAA0787(i), p. 4.
Exhibit P-101 CAA0781(i), p. 4.
Exhibit P-101 CAA0781(i), p. 4, CAA0792(i), pp. 1-2.
Exhibit P-101 CAA0792(i), p. 1.
Exhibit P-101 CAA0787(i), p. 2.
Exhibit P-101 CAA0781(i), p. 4, CAA0792(i), pp. 1-2.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7694.
Exhibit P-101 CAF0355.
Exhibit P-101 CAF0355, pp. 1-2.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7469; Exhibit P-101 CAF0355, p. 3.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
that [he] could” when they contacted him. Laurie recalled that there seemed
to be a sense of urgency surrounding the whole matter: “…for some reason,
this information appeared to be new to [the RCMP] and they wished to develop
what they could quickly.” He could not recall with certainty whether Stevenson
explicitly said that the RCMP was aware of Ms. E’s identity. However, it was what
he understood, given the context of the conversation and the urgency. To him,
it was clear that the purpose of Stevenson’s call was to authorize him to assist
the RCMP in any way, including revealing Ms. E’s identity.682 Stevenson testified
that the purpose of his call was first to find out what Laurie could recall about
who might have passed the Ms. E information to the RCMP in 1987. He was also
tasked to “…advise Laurie to cooperate with the RCMP,” but indicated that he did
not advise Laurie that he was authorized to divulge the identity of the source.683
He explained:
MR. STEVENSON: I had no authority and no one that I was
aware of would have had authority for Willie to tell or reveal
the identity. Section 18 of the Act doesn’t allow that.
MR. FREIMAN: And just to remind us, section 18 of the Act
says what?
MR. STEVENSON: That one is not allowed to divulge the
identity of sources and covert employees of the Service, if my
memory serves me correctly.684
Stevenson reported to his HQ that he managed to reach Laurie prior to his
interview with the RCMP.685 He noted that Laurie informed him that his
recollection was that Gareau had passed the information about Bagri’s request to
borrow the car to the RCMP, but without revealing Ms. E’s identity.686 Stevenson
noted:
Willie said that at the time he (Willie) was opposed to the
passing of any information, however, Gareau was visiting the
Region at the time, and indicated that he as chief would do it
if he wanted to. Willie’s recollection is that Gareau said he had
done it himself.687
According to Stevenson’s note, Laurie also said that he was under the impression
that the information had been passed to an RCMP Inspector at the HQ level and
that he did not recall Warren passing the information to Wilson.688
682
683
684
685
686
687
688
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7469, 7472.
Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7695-7697, 7701.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7697.
Exhibit P-101 CAF0355, p. 3.
Exhibit P-101 CAF0355, p. 3.
Exhibit P-101 CAF0355, pp. 3-4.
Exhibit P-101 CAF0355, p. 4.
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Stevenson discussed this with Dexter of CSIS HQ, who was apparently worried
about the uncertainty surrounding the passing of the information. Stevenson
noted:
Bill’s [Mr. Dexter] fear is that we as a Service are going to finish
up with egg on our face over this one, since we cannot surface
the documentation to substantiate our claim to the RCMP that
the info was passed.689
Stevenson explained in testimony that, for Dexter, “…there seemed to be
something missing in this loop here as to who had passed the information.” It
was assumed that Ms. E’s information about Bagri’s request to borrow the car
had been passed, but neither Dexter at HQ, nor the CSIS BC Region could surface
specific documentation demonstrating this. There was a sensitivity or concern
that, as a result of this lack of “…paper or verbal trail,” the RCMP might be able to
claim that CSIS had not been forthcoming with its information.690
Laurie Interviewed by RCMP Officers
While CSIS was busy trying to reconstruct the 1987 events, Laurie was being
interviewed by Rautio and Blachford about Ms. E’s information.691 Laurie testified
that he received a call from Rautio shortly after Stevenson’s call on October
16th.692 A meeting with the E Division NSIS members was arranged for 9:30 AM
and the interview proceeded until 11:20 AM.693 Laurie was shown the 1990 twoparagraph CSIS response to the RCMP inquiries about the Ms. E information and
he confirmed that the contents were extracted from the reports he authored
about his source.694 At the time, however, Laurie did not have his reports with
him. He had not requested a copy when speaking to Stevenson and no one
from CSIS offered him a copy prior to his meeting with the RCMP.695 Blachford
testified that the RCMP officers were already aware that Laurie did not have
notes of his interviews with his source and he could not recall any discussions
about attempting to gain access to the reports Laurie had prepared while at
CSIS.696 Nevertheless, Laurie was questioned about the Ms. E information and
confirmed that the contents of the CSIS response to the Watt MacKay questions
were accurate.697 He explained that his source was “positive” that the request
to borrow the car was the night before the Air India/Narita incidents,698 that his
source had not seen the UMs who were to accompany Bagri to the airport and
that the source had been “…quite afraid of Bagri” by the time he had made his
689
690
691
692
693
694
695
696
697
698
Exhibit P-101 CAF0355, p. 4.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7699.
Exhibit P-101 CAA0781(i), p. 4.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7472.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7472; Exhibit P-101 CAA0781(i), pp. 4-7.
Exhibit P-101 CAA0781(i), p. 4, CAA0792(i), p. 2; Testimony of William Laurie, vol. 61, October 15, 2007,
pp. 7473-7474.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7474.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7759-7760.
Exhibit P-101 CAA0781(i), p. 5; Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7752.
Exhibit P-101 CAA0792(i), pp. 2-3.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
request,699 as she knew that he was violent and he had told her “…he could have
anybody killed if he wanted to.” Laurie explained the comment about Ms. E
“sens[ing]” Bagri’s intentions as relating to a strong feeling that Bagri was “…up
to no good,” but indicated that the source had no information about specific
actions Bagri was going to take. Laurie said that when his source refused her
car, Bagri told her that only the luggage was going on the plane, implying that
he would return her car. Immediately after the Air India/Narita incidents, Laurie
said the source had “no doubt” that Bagri was directly involved in putting the
bags on the plane.700
Laurie also provided additional information, such as the fact that his source
thought that Bagri arrived in a “big blue car,” which Laurie said during the
interview would have been the description of the vehicle Parmar was driving at
the time.701 He specified that Ms. E did not let Bagri in when he requested her
car, but spoke to him “…through the door with a chain across it.”702 Laurie said
that Ms. E did not see who else was in the vehicle, or even how many others
were in the vehicle, that dropped off Bagri, but that Bagri may have told her
that “…the two guys are from Toronto.” He added that Ms. E told Bagri that she
needed her car for work.703 During his testimony at the trial of Malik and Bagri,
when he finally had an opportunity to compare this information with what
he had written in the reports he prepared for CSIS shortly after the interviews,
Laurie admitted that Ms. E had never in fact told him that she had said to Bagri
that she needed her car for work and had never in fact indicated that she saw a
blue car.704
During the interview with the RCMP, Laurie told the officers how emotional Ms.
E was about the whole matter and said he feared for her safety and felt that
she would be suicidal if her information got out. He explained that Bagri came
back twice after the June 1985 visit, once to borrow her car, and another time
to tell her that they shared “a couple of secrets” or “two secrets,” one being “…
the knowledge that Bagri was involved with A.I./Narita” and another possibly
referring to the relationship between Bagri and Ms. E. Laurie also discussed the
information about Ms. E assisting Bagri in getting “normal” or western-looking
clothes and in hemming a pair of pants shortly before he travelled to the United
States. On his return, Bagri commented that it was a “close call.” Laurie explained
that he had researched the time period and that it coincided with a conspiracy
to murder the Indian Prime Minister which was then focussed on an Indian
minister who was in New Orleans for eye surgery. Laurie said that a number of
individuals had been arrested but that “about three” had escaped.705
According to Laurie, it was clear during the meeting that the RCMP members
involved already knew Ms. E’s identity.706 Blachford testified that going into the
699 Exhibit P-101 CAA0777, p. 5. See also Testimony of William Laurie, vol. 61, October 15, 2007, pp. 74747475.
700 Exhibit P-101 CAA0553(i), p. 2, CAA0792(i), pp. 3-5.
701 Exhibit P-101 CAA0781(i), p. 5, CAA0792(i), p. 4.
702 Exhibit P-101 CAA0781(i), p. 5.
703 Exhibit P-101 CAA0792(i), p. 4.
704 Exhibit P-244, vol. 4 (January 7, 2004 Transcript), pp. 47-49.
705 Exhibit P-101 CAA0781(i), pp. 5-7, CAA0792(i), pp. 4-6.
706 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7472.
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interview, they suspected the source was Ms. E, but this was not confirmed.707
Eventually, the RCMP officers advised Laurie that “…we were aware of the
source’s identity already.”708 After the interview, Laurie told Stevenson that the
identity of the source was known to the RCMP and “…he [Laurie] may have said”
also that “…he confirmed it for them.”709 During his testimony at the Inquiry
hearings, Laurie was of the view that he had, in fact, confirmed Ms. E’s identity
for the RCMP, based on the notes of the meeting he had subsequently seen.710
Blachford’s notes for the interview with Laurie initially refer to Ms. E only as “the
source,” in a gender-neutral manner. Then, when reporting Laurie’s answers
about the content of the information and on several occasions thereafter, “the
source” is described as a “she” or “her.”711 However, the notes do not state that
Laurie confirmed the source’s identity.
At the trial of Malik and Bagri, Rautio testified that Laurie did not, in fact,
confirm Ms. E’s identity during the interview. Immediately after the interview
with Laurie, E Division did indicate that they were ready to approach the source,
but Rautio explained that they were referring to the person interviewed by the
RCMP in 1985, whom they suspected was Laurie’s source.712 He said that, while
Laurie agreed to provide an introduction, it was always the RCMP’s intention to
interview the person they had interviewed in 1985 and ask her directly if she was
the CSIS source.713 Blachford also indicated, in testimony before the Inquiry, that
Laurie did not reveal his source’s identity during the interview.714 He explained
that when he and Rautio told Laurie they knew who the source was, they may
have alluded to her name, but they were “…aware of the restrictions that were
on Laurie” and did not ask him to confirm or deny Ms. E’s identity. According to
Blachford, the RCMP investigators were not to obtain the name of the source
from Laurie during this first interview with him. Had they gone and interviewed
Ms. E without CSIS’s permission, he felt that they would not have been able to use
the information learned in the interview with Laurie, but only the information
already in the RCMP’s possession and that, in that sense, “…it would simply be
another cold approach on Ms. E,” though they could have asked her if she had
provided information to “any other agency.”715
During Laurie’s interview with Rautio and Blachford, it was clear that the Ms. E
information was not previously known to the RCMP members. At the beginning,
Laurie said they went as far as to suggest that he had committed “some sort of
offence” by not revealing his knowledge of the Ms. E information, especially now
that he was an RCMP member. Laurie responded that he disagreed, but was
707 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7750.
708 Exhibit P-101 CAA0781(i), p. 6. See also Exhibit P-244, vol. 5 (January 8, 2004 Transcript), p. 49;
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7755.
709 Exhibit P-101 CAF0357, p. 1.
710 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7472.
711 Exhibit P-101 CAA0781(i), pp. 4-6.
712 Exhibit P-244, vol. 6 (January 9, 2004 Transcript), pp. 45-46.
713 Exhibit P-244, vol. 6 (January 9, 2004 Transcript), p. 46. See also Testimony of Bart Blachford, vol. 63,
October 17, 2007, p. 7756.
714 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7755.
715 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7755-7759.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
willing to cooperate with the RCMP now. He felt the officers were not satisfied
with his response and continued to be “…unhappy that the CSIS had withheld
this information.”716 He commented:
MR. LAURIE: This concerns me because in the initial stages, the
RCMP weren’t focussed on Ms. E, or even the information. They
were focussed on me.
MR. KAPOOR: Sorry. When you say the initial
stages, you mean the initial stages of the
interview?
MR. LAURIE: Of the interview.
MR. KAPOOR: They were pointing a finger at you?
MR. LAURIE: At me, for not passing it.
MR. KAPOOR: Okay. And what does the – can you help me
with what the comment “dangerous world out there” has to do
with you?
MR. LAURIE: There’s lots of bad things that happen. You know,
at this point in my service, I’m a constable again in the RCMP.
I’m driving a marked police car and I’m carrying a gun all the
time, and for 12 hours a day I’m going from one dangerous
thing to another. There’s lots of things to me that are more
dangerous than this particular episode.
MR. KAPOOR: Okay.
MR. LAURIE: I think when the RCMP raise their tone to me and
start intimating that I could be perhaps in trouble, I think they
were really intending that comment for somebody who was
junior and could have been afraid of them, but frankly, I was
interested in pursuing a positive aspect of what’s going on.717
According to the RCMP notes, Laurie explained to the officers that he always
thought the information was related to Air India/Narita and should “go to the
police,” while protecting the source’s identity, but, at the time, this was not done
because “…it would not prove the offence.”718 Laurie said that after further
discussions in September or October 1987, it was decided that “…something
to the effect of that the luggage was making the trip but the people were not”
716 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7478.
717 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7480-7481.
718 Exhibit P-101 CAA0781(i), p. 5: These are Blachford’s notes about the interview with Laurie.
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Volume Two: Part 2: Post-Bombing
would be passed to the RCMP.719 He advised that he had been told that the
information was passed verbally by Gareau in HQ.720 He confirmed that Gareau
had told him that “…he passed the info that only the luggage would go.”721 He
added that he was told by Stevenson that it was probably Warren of CSIS who
in fact passed the information.722 In testimony, Laurie explained that he had
always been under the impression that the Ms. E information had been passed
in late 1987, because of what Gareau had told him, but that the RCMP officers
interviewing him had clearly not been previously aware of the information.723
It was “very much” a “revelation” for Laurie when he found out in 1990 that
the RCMP did not previously have all of his Ms. E information.724 Blachford
testified that, when he interviewed Laurie, he understood him to say that he
had personally wanted the information passed to the RCMP, but that CSIS would
not agree to pass it. Laurie’s statement that information was passed verbally by
CSIS accorded with his review of the file, but he indicated that the nature of the
information which was passed as revealed by the file was not as extensive as
what Laurie thought had been passed.725
The RCMP officers noted that, during their interview with Laurie, he explained
that he had been required to stop developing Ms. E as a source “…because she
was only providing criminal info … not intelligence” and that he had not talked
to her in approximately two years.726 At the Inquiry hearings, Laurie specified
that he was not in fact instructed to stop contacting Ms. E, but simply to stop
using her “…for criminal information or intelligence,” as opposed to other
information which he could and did continue to elicit from her.727
Laurie also explained during his interview with Rautio and Blachford that Ms.
E was afraid of Bagri. She was convinced he had put the bomb on the plane;
she believed him to be violent; he had told her that he had had people beaten
up and could have people killed; and she believed him.728 At the end of the
interview, the RCMP officers told Laurie that E Division would “most likely”
approach his source for an interview and that they might be requesting that
Laurie “…be available to provide an introduction.”729
CSIS/RCMP Debates about the Information Passed in 1987
After his interview with the RCMP, Laurie spoke to Stevenson again. He told
him that he “…would not be surprised” if there was further dialogue, probably
719 Exhibit P-101 CAA0781(i), pp. 5-6.
720 Exhibit P-101 CAA0781(i), p. 6; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7475. See also
Exhibit P-101 CAA0792(i), p. 6.
721 Exhibit P-101 CAA0781(i), p. 7.
722 Exhibit P-101 CAA0792(i), p. 7.
723 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7475.
724 Exhibit P-244, vol. 5 (January 8, 2004 Transcript), p. 13.
725 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7754-7755.
726 Exhibit P-101 CAA0781(i), p. 6. See also Exhibit P-101 CAA0792(i), p. 7.
727 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7528; Exhibit P-244, vol. 4 (January 7, 2004
Transcript), pp. 51-52.
728 Exhibit P-101 CAA0781(i), p. 6; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7475.
729 Exhibit P-101 CAA0792(i), p. 8.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
“negative dialogue,” between the RCMP and CSIS as a result of the information
obtained by the RCMP about Ms. E. He said that the RCMP asked him a series of
questions, and that he would probably have to return once his information was
further analyzed by the Force.730 Stevenson noted:
He [Laurie] is not overly concerned about this info coming to
light now and commented that it is “a dangerous world out
there”. While he was circumspect in his account, I believe he
was indicating that he had told the RCMP that it was his belief
that the info from source [REDACTED] had been passed to the
RCMP at the HQ level by Mike Gareau of CSIS.731
Laurie explained in testimony that, given the comments made by the RCMP
officers about what they perceived as CSIS’s failure to pass on the Ms. E
information, he expected the RCMP would “…go back to CSIS and say ‘why didn’t
you provide this information to us earlier?’” He knew, however, that the RCMP
were not really going to charge him with anything, because he had received
the information in the course of his functions at CSIS. While the RCMP thought
there was an oversight on CSIS’s part in not disclosing the information, Laurie
knew that the information had been passed.732
Stevenson told Dexter of CSIS HQ about his conversation with Laurie the
following day. Dexter said that CSIS HQ had still not found documentation
confirming that the RCMP was advised of the Ms. E information, but that HQ was
nevertheless drafting a letter to the RCMP “…giving them the assurance that it
was passed verbally to them.”733 Stevenson noted:
He is hoping that they will then let the issue die and they will
get on with their investigation.734
In his testimony before the Inquiry, Stevenson confirmed that his understanding
was that, even if CSIS HQ did not know the details and could not find confirmation
that the materials had been passed in 1987, they intended “…to write a letter to
say we can assure you it was passed verbally in 1987 and just hope that the
matter dies.”735
On October 18, 1990, CSIS was still busy reviewing its files and trying to sort
out the facts about the passing of the Ms. E information in 1987. The BC Region
Deputy Director General of Operations wrote to Stevenson that he had reviewed
the materials relating to Ms. E and indicated that, about the reference from
Gareau that Warren had passed the information to the Commanding Officer of E
730
731
732
733
734
735
Exhibit P-101 CAF0357, p. 1.
Exhibit P-101 CAF0357, pp. 1-2.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7478-7480.
Exhibit P-101 CAF0357, p. 2.
Exhibit P-101 CAF0357, p. 2.
Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7702-7703.
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Division during a trip to BC, he remained of the view that Gareau was “…mixing
this one up” with a meeting Warren had had with the RCMP on another matter.
He asked to be kept informed of CSIS HQ’s “…efforts to satisfy the RCMP.”736
On October 22nd, CSIS HQ transmitted to RCMP HQ an official written response
to the original RCMP message sent by Dicks on October 11th, which complained
about the lack of details in the 1987 information compared to the new information
received, and which requested access to the source handler and the source.737
CSIS indicated that, having reviewed their holdings “…and corroborated our
findings by questioning those persons who were involved in the investigation,”
they were “certain” that the information contained in the response to the Watt
MacKay questions had been “…passed verbally to your Force in 1987.” CSIS
stated that “…all the details of Bagri’s approach to the source were provided, with
the name of the source being protected due to the sensitivity of the handler/
source relationship and the source’s insistence on anonymity.”738 At the Inquiry
hearings, Stevenson testified that, to his knowledge, CSIS never did discover
from its holdings who had passed information to the RCMP verbally in 1987 and
never found confirmation that information other than the “short paragraph”
found in the 1987 telex to the RCMP was passed verbally.739
In its report to the Honourable Bob Rae in 2005, the RCMP noted that the Ms.
E information “…was not relayed to the RCMP in a timely manner” by CSIS and
that this affected the “rules/admissibility of evidence.”740 CSIS took issue with this
statement, and produced a response indicating that the RCMP statement was
“simply incorrect.” CSIS first noted that the RCMP had failed to mention that the
Force itself had interviewed Ms. E twice shortly after the bombing in November
and December 1985. Ms. E was not pleased with the RCMP visits and asked
them to stop. CSIS then interviewed her in September and October 1987. She
was adamant that she did not want to deal with the RCMP. CSIS maintained that
it had informed the RCMP verbally in October 1987 of the information provided
by Ms. E and had also responded to a related RCMP request for information in
December 1987. CSIS concluded: “RCMP HQ decided not to pursue the issue,
given that she would be a reluctant witness.”741
In response to the CSIS position, which was shared informally with the RCMP,
that the Ms. E information had indeed been passed to Cummins and Hart during
a meeting at CSIS HQ, the RCMP conducted file research and confirmed that this
was the case. However, the RCMP analyst noted that, from the 1987 documents,
it appeared that “…only ‘certain’ information was passed verbally.” The analyst
concluded that, because “…other information was not provided,” the field
investigators may not have appreciated the significance of the information “…
which in the end pertains to perhaps the most significant witness against Bagri
at trial.”742 He wrote:
736
737
738
739
740
741
742
Exhibit P-101 CAF0358.
Exhibit P-101 CAA0786.
Exhibit P-101 CAA0794(i), p. 1.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7703.
Exhibit P-101 CAA0335, p. 29.
Exhibit P-101 CAA1088, pp. 3-4.
Exhibit P-101 CAA1045(i), p. 1.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The documentation does not give any indication why
someone did not ask more questions of CSIS in 1987. Could
have Cummins & Hart been of the belief that the CSIS source
would not cooperate as a witness or that CSIS would never
allow their source to be used in this manner? Therefore, the
only way to further this evidence was through the occupants
who were waiting in the vehicle while Bagri talked to the
source.743
The 1987 documents only recorded that “…there may have been a mention of
luggage however source does not clearly recall.” HQ also wrote to E Division
at the time that it had “no further info” about this matter.744 The RCMP analyst
noted that this could have “…misled field investigators into believing this could
not be pursued further.”745
In fact, when Hart was asked in 1990 about his recollection of the information
passed verbally by CSIS, he indicated that he “…vaguely recall[ed] that there was
some mention of luggage being delivered to the airport and the vehicle being
returned.”746 This recollection, combined with the 1987 documents, demonstrates
that CSIS did pass on verbally the essentials of the Ms. E information in 1987,
including the request to borrow the car to go to the airport the night before the
bombing and the comment that only the bags would be travelling. RCMP HQ
did not document all of the information received verbally in its correspondence
to E Division, and decided that the matter could not be pursued further because
Ms. E could not identify the individuals accompanying Bagri and was not willing
to speak to police.747
In 1987, the Ms. E issue was perceived as “a dead-end” by the HQ members
in place at the time,748 while in 1990, the same information was now viewed
as deserving “further examination”749 and needing to be “vigorously
investigat[ed]”.750 Dicks could not explain why more was not done by the RCMP
in 1987. He acknowledged, however, that the handling of the Ms. E information
in 1987 was something which would have been done “very differently” if given
the opportunity to “redo this.”751
Blachford, currently a Staff Sergeant acting as the lead investigator in the
continuing Air India police investigation, felt that the 1987 verbal passing of
information should have been followed up by written correspondence from
CSIS, given the significance of the information, rather than Hart having to go
back to CSIS to ask about the identification of the individuals accompanying
743
744
745
746
747
748
749
750
751
Exhibit P-101 CAA1045(i), p. 2.
Exhibit P-101 CAA0615.
Exhibit P-101 CAA1045(i), p. 2.
Exhibit P-101 CAA0792(i), p. 1.
Exhibit P-101 CAF0421, pp. 2-3.
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7582.
Exhibit P-101 CAF0421, p. 3.
Exhibit P-101 CAA0779, p. 3.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7630-7631.
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Bagri.752 Indeed, CSIS did not pass on the Ms. E information with complete details
when it was received in 1987 and, even when the issue surfaced in 1990, CSIS
did not provide access to the reports which were the only remaining records of
the information provided by Ms. E. It is also troubling that CSIS made a decision
to reassure the RCMP that complete details had been passed in 1987, when
verifications in its own records and with its own present and former employees,
in fact, had provided little clarity about what information and details were
passed, and by whom.
The 1990 RCMP Interviews of Ms. E
While the interagency debates about the 1987 situation unfolded, the RCMP was
also getting ready to conduct its own interview of Ms. E. Dicks sent a message
to RCMP HQ on October 16, 1990, reporting on the interview with Laurie. He
related that Laurie had explained that the CSIS response to paragraph 6 of the
Watt MacKay questions contained “direct quotes” from some of the reports he
had submitted when he was the handler for the source.753 He also reported that
Laurie clarified that his source “…was positive that Bagri made the approach
for the vehicle the evening before the Air India/Narita incidents.”754 As for the
mention in the CSIS response that the source sensed Bagri’s intentions, Dicks
reported that Laurie clarified that this related to a general strong suspicion on
the part of the source that “…Bagri was up to something no-good” or wanted
to use the source’s car for “…unspecified purposes which were disagreeable to
the source.” Dicks added that after Air India, the source “was convinced” that
Bagri was involved, and that that was the reason why Bagri threatened the
source.755 Dicks concluded by stating that E Division would now “…be directly
approaching the source for an interview” and asked that CSIS be directed not to
approach the source before this was done.756
On October 17, 1990, RCMP HQ informed E Division that CSIS had advised that
Laurie was the last person to have had contact with the source on behalf of CSIS
and that CSIS had no intention of approaching the source again. HQ added that
they “would be interested” in finding out Laurie’s opinion about the chances that
the source would cooperate with the RCMP.757 Finally, HQ reminded E Division
that “…no/no approach is to be made to the source prior to direction by this HQ
following receipt of CSIS approval expected in very near future.”758
On the same day, Dicks received a call from Thivierge of RCMP HQ, who advised
that CSIS had no objection to E Division approaching the source.759 CSIS
eventually confirmed this in writing in a letter dated October 22nd, indicating
752
753
754
755
756
757
758
759
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7731, 7738.
Exhibit P-101 CAA0790.
Exhibit P-101 CAA0790 [Emphasis in original].
Exhibit P-101 CAA0790.
Exhibit P-101 CAA0790 [Emphasis in original].
Exhibit P-101 CAA0791.
Exhibit P-101 CAA0791 [Emphasis in original].
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7599. See also Exhibit P-244, vol. 6 (January 9,
2004 Transcript), pp. 47-48.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
that its Legal Services Branch had advised that there was “…no problem in
granting access to the source at this time.”760 RCMP HQ transmitted the letter
to E Division with a note indicating that it related to the “C/Supt. Thivierge Insp.
Dicks telecom of 90-10-18[sic]” and that it would “…serve as a paper trail and
confirm that [redacted] of CSIS HQ has agreed to NSIS investigators contacting
their source.”761 According to Rautio’s review of his notes during his testimony at
the trial of Malik and Bagri, it would have been during telephone conversations
after the authorization was received from CSIS on October 17th that Laurie finally
confirmed his source’s identity and took steps to arrange an introduction.762
After his interview with Rautio and Blachford, Laurie understood that the
RCMP members would discuss the “revelation” of the Ms. E information among
themselves while he was to remain available to provide further assistance. The
notion of having Laurie introduce the police to Ms. E was soon adopted. Laurie
was willing to assist in this manner, but warned the RCMP in no uncertain terms
that obtaining Ms. E’s cooperation would be very difficult. He explained that
he himself had been successful probably because he was not intimidating and
had met with Ms. E alone. For the RCMP, “…that was a non-starter…. They
were absolutely going to do it their way. All they wanted from me was to make
an introduction and stand back.” Laurie understood that he was not to be an
“active participant” in the eventual RCMP interview of Ms. E, even if he provided
an introduction.763
Laurie did not get an opportunity to review his CSIS reports about Ms. E in
preparation for the introduction he was about to provide for the RCMP. The
RCMP did not attempt to obtain the reports from CSIS, nor did CSIS offer to
provide copies.764 At the time, Laurie did not even know whether accessing his
former reports “…was legal or possible.”765
On October 19, 1990, three days after his interview with the RCMP, Laurie
accompanied Rautio to visit Ms. E. Both men wore civilian clothes and they
used an unmarked car.766 It was apparent that Ms. E knew Laurie and was
comfortable in meeting with him. Laurie introduced Rautio to Ms. E and
explained the difference between his role as a CSIS investigator and the role of
RCMP investigators.767 He explained that he was now a member of the RCMP and
that the person accompanying him was an RCMP member who was involved
in the collection of evidence about Air India.768 He told Ms. E what he thought
would be her worst nightmare: that even though he had assured her that her
760
761
762
763
764
765
766
767
768
Exhibit P-101 CAA0794(i), p. 2.
Exhibit P-101 CAA0793.
Exhibit P-244, vol. 6 (January 9, 2004 Transcript), pp. 47-49.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7475-7476.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7476-7477. See, generally, Exhibit P-101
CAA0781(i), for the notes of the RCMP interview which make no mention of attempting to obtain the
reports.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7476-7477.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7481-7482.
Exhibit P-244, vol. 5 (January 8, 2004 Transcript), pp. 52-53.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7473.
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information would remain confidential, the situation had now changed. Her
information had now gone to the RCMP because it was criminal, and the police
now knew who she was and what information she had provided.769 Rautio
told Ms. E about the RCMP role in investigating criminal offences, and told her
that she might be required to attend court if she had valuable information or
evidence.770 Ms. E was shocked and dismayed and she became fearful.771 She
stated that she would not go to court, that she would commit suicide and that
she was afraid for her children and herself.772 Her attitude was consistent with
Laurie’s warning to the RCMP that Ms. E might be suicidal if her information got
out.773
During his first interview with Ms. E, Laurie had “assured” her, “…prior to her
providing criminal information,” that he would treat her information “in a
confidential manner.”774 Though he made “no explicit promise” to not tell
the police, Laurie gave Ms. E the clear impression that he would not give her
information to the police.775 It was clear to him that she chose to speak to him
because she believed her identity would not be revealed.776 The RCMP also
concluded later that Ms. E’s motivation in providing her information to Laurie
was “…the guarantee of absolute confidentiality.”777 In a report about his first
interview with Ms. E, Laurie had noted:
Clearly though, the source chose to release herself of this
enormous burden, by telling us what she would not tell
the police. If the police are provided with her identity she
will cease co-operation with us and provide absolutely no
assistance to the police.778
Ms. E had no confidence in the ability of the police to protect her identity or her
safety:
MR. BOXALL: I don’t know if you had any discussions with
her in this regard, but you would know from your police
experience also that police also use sources and keep them
confidential and don’t reveal their identity to the public?
769 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7483; Exhibit P-244, vol. 5 (January 8, 2004
Transcript), p. 54.
770 Exhibit P-244, vol. 5 (January 8, 2004 Transcript), p. 54.
771 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7483.
772 Exhibit P-101 CAF0381, p. 1; Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7483-7484.
773 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7772-7773.
774 Exhibit P-101 CAF0376, p. 1.
775 Exhibit P-244, vol. 4 (January 7, 2004 Transcript), p. 50.
776 Exhibit P-101 CAF0376, p. 1.
777 Exhibit P-101 CAF0383, p. 3.
778 Exhibit P-101 CAF0376, p. 1.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
MR. LAURIE: And her understanding of that, that it didn’t meet
the threshold of what her personal security goals were, she did
not trust that avenue. Later, when her identity was known to
the police and when I introduced her to the police, there was
a discussion about source protection and witness protection
program and all that and, really, she just scoffed at that. I mean
– that was not compelling for her.
MR. BOXALL: But she did find it compelling that speaking to a
CSIS agent – would protect her?
MR. LAURIE: Yes.779
When Ms. E first revealed her information, Laurie immediately knew that it
would eventually have to be disclosed to the police, but he initially believed
that her identity would be protected. However, it was always his understanding
that, should CSIS decide to pass on Ms. E’s identity to the RCMP, her consent
would not be required.780 His CSIS BC Region superiors apparently shared that
view when they realized in 1988 that the RCMP still did not know who Ms. E
was and when they suggested that HQ “address this aspect.”781 In fact, in 1990,
CSIS eventually authorized the RCMP to approach its source, after seeking legal
advice. Laurie confirmed Ms. E’s identity when he agreed to introduce Rautio
to her (or possibly earlier, during his interview with the RCMP), as authorized by
CSIS. Ms. E was not consulted before CSIS granted this authorization and before
Laurie revealed her identity. From her reaction towards the RCMP, it appears
that she would not, in fact, have consented.
Having interviewed Laurie, Rautio and Blachford were aware that Ms. E “…had
been told that she was going to have complete confidentiality,” but viewed
this simply as a factor that the RCMP was “…going to have to overcome.” They
did not know, and apparently did not attempt to find out, whether Ms. E had
given her consent prior to Laurie’s “introduction” of the RCMP to her. Before the
Inquiry, Blachford confirmed that, had Ms. E been a confidential informant for
the RCMP, “…her identity could not [have been] revealed without her consent”
as was done by CSIS in this case.782 However, CSIS clearly did not view Ms. E as
a confidential informant and did not feel bound by its own representations that
her information would be treated confidentially.
After Laurie and Rautio finished explaining to Ms. E the difference between CSIS
and the RCMP and telling her that she might have to testify, Rautio proceeded to
ask her questions about her information.783 In response, she related the manner
in which she met Bagri and began to associate with him while in Canada. She
then recounted the incident where she hemmed pants for Bagri prior to his
779
780
781
782
783
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7533-7534.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7417, 7457, 7462.
Exhibit P-101 CAF0406, p. 3; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7462.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7771-7772, 7823-7824.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7484.
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travel out of the country – at a time when Mrs. Bagri could not do it because
of an accident in Ms. E’s car. She then explained how she wanted to get away
from Bagri after the Air India bombing, because of rumours she heard about the
involvement of Parmar, Surjan Singh Gill and Bagri in the bombing, and because
of Mrs. Bagri’s reaction when she discussed the crash with her while she was
staying at Ms. E’s for a few weeks.784
Ms. E then went on to explain that, while she was still living in her rented
basement suite, Bagri came to borrow her car at 10:30 or 11 PM. She did not
open the door and he kept knocking. When she opened the door and asked
how he got there, he said someone dropped him off. When she told him that
she would not lend him her car anymore, he told her that the thing he needed
to do that day was very important, that he was going to the airport with two
others, but only the bags would be travelling and that if they got caught, Ms. E
would not see him anymore. Ms. E believed she did not give him her car and he
said he would walk to Ross Street, but she was not 100 per cent certain. Ms. E
then said that the next day, she heard of the “CP Air crash” and understood what
Bagri had meant “…about the bags going to the airport.” She recounted her
subsequent encounters with Bagri, including the following Halloween, when he
visited her upon returning from India or Pakistan and left a letter which stated
that Ms. E was the only one to know Bagri’s secret, that she could put him “in big
trouble” and that he would “…never leave it up to [her].” Ms. E finally recounted
her last fight with Mrs. Bagri about the fact that she was not visiting the Bagris
anymore, and shared her views that the “secret” Bagri was referring to was the
mention that only the bags would be travelling. She then said that she had to
go and she put an end to the interview.785
Laurie explained in testimony that while Ms. E did provide information in
response to Rautio’s questions, she did not speak as freely as she had in the
past:
MR. LAURIE: Well, I think we needed to extract quite a bit of
it. The will to cooperate was not as strong as one might guess
from reading the information that came forth, but I think
that the reason we got as much as we did was because of the
caveat that she supplied that yeah, this is what I told him and
this is what happened, but don’t ever ask me to go to court
with it because I won’t.786
Though this was not recorded in Rautio’s notes, Laurie recalled that at the end of
the interview, Rautio told Ms. E that “…another investigator would soon follow
up with more questions.”787
784
785
786
787
Exhibit P-101 CAF0381, pp. 1-2.
Exhibit P-101 CAF0381, pp. 2-3.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7485.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7485.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The RCMP investigators had decided to have Laurie do the introduction to Ms.
E because he had established a relationship with her and obtained the sensitive
information on a topic which made her very emotional and possibly even
suicidal.788 However, they did not involve Laurie in their second interview with
Ms. E.789 In fact, the RCMP made a decision not to involve Laurie any further at
all:
MR. KAPOOR: I take it you never had any follow-up
conversations with her by telephone or otherwise; you wanted
out of the piece.
MR. LAURIE: I didn’t want out of it; they wanted me out of it.
MR. KAPOOR: They being the RCMP?
MR. LAURIE: Yes. Even though I’m back into the RCMP, because
of my background I am a contaminating factor.
MR. KAPOOR: Explain that.
MR. LAURIE: I can’t.
MR. KAPOOR: Or explain what you mean by contaminated
factor is what I mean to say.
MR. LAURIE: If I involve myself in the file, then I may gather
some information or for some reason find myself in a court
case and once I’m on the stand and people can ask questions
of me, then all of a sudden I have all this other information that
I either have to respond to or not respond to based on secret
things.
MR. KAPOOR: So by getting you involved in the piece, it
also brings in all of the CSIS information which could create
problems for the investigation.
MR. LAURIE: Yes, but I can’t – not being a lawyer, sir, I really
can’t explain it any more logically than that.790
Blachford explained that they wanted to make it clear to Ms. E that “…this was
no longer a CSIS operation, it was clearly RCMP only.” Involving Laurie, even
if he was now with the RCMP, may not have made it as clear that “…this was
a police investigation” now. Blachford recognized that the RCMP could have
788 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7763.
789 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7485-7486.
790 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7486-7487.
135
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adopted a different investigative technique and had Laurie lead the interviews,
especially since it was clear from the beginning that Ms. E did not want to talk to
the police. However, a decision was made within E Division NSIS that the RCMP
would “take that over” completely and not involve Laurie any further. The RCMP
wanted to move into an “evidentiary” or “policing role, separate from CSIS” and
felt that keeping Laurie involved, given that he had interviewed Ms. E a number
of times for CSIS, could have been problematic in this respect.791
Laurie viewed the decision to exclude him from the case in 1990 as related to
problems in the CSIS/RCMP relationship at the time, especially since the RCMP
ultimately asked him to get involved again years later. He explained:
MR. LAURIE: At that point, I think the relationship was not a
good relationship between the agencies and although I was
in the RCMP in 1990, the recency of my employment with the
CSIS left me a little bit suspect.792
On October 22, 1990, it was Blachford who accompanied Rautio to interview
Ms. E for a second time. The interview began at 2 PM and lasted almost two
hours.793 In the summary that the officers prepared on the basis of Blachford’s
notes, they noted first that the interview was “…a continuation of the interview
of 90-10-19.”794 Ms. E’s demeanour was composed throughout the interview,
but, as Blachford indicated, “I don’t think she was very happy that we were there
right from the get-go.”795
Ms. E began by discussing how she became reacquainted with Bagri in the early
1980s after moving to Canada. She was then asked about the night when Bagri
visited her and “immediately stated” that it was after the Air India crash. She
explained that Bagri came to her door and when she asked how he got there,
he told her that he came with someone. When asked by the officers whether
this was the night before Air India, she was “…very emphatic that no it was
not before Air India, it was the night before the CP Air crash or the thing that
crashed in Tokyo.” Ms. E was uncertain about exactly what had happened in
Tokyo, but had heard about it on the radio or from others and remembered
that an unknown flight, she thought it was CP Air, was involved in a crash which
resulted in “not many people” getting hurt, and which was caused by something
that was on the plane.796
Ms. E then described her conversation with Bagri on that evening. After asking
how he got there, she asked why he was there so late and he said he needed
a car. When asked where he was going, Bagri said that he was going to the
791
792
793
794
795
796
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7763-7764.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7543.
Exhibit P-101 CAF0428, pp. 2, 5; Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7770.
Exhibit P-101 CAF0428, p. 2.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7770.
Exhibit P-101 CAF0428, p. 2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
airport, that he knew she did not want him to visit or use her car, that “…our
bags are going but we’re not going anywhere” and that Ms. E may not see him
anymore, as they “might get caught.” Ms. E explained that she told Bagri he
could not use her car anymore and that he got angry and left. She thought he
went to the Ross Street Temple. She did not see him get dropped off and did
not see anyone else, but she thought he said there were three of them going to
the airport and he may also have said that Talwinder [Parmar] dropped him off,
but she was not sure. She added that Laurie had told her it was probably Parmar
who dropped off Bagri.797
Ms. E discussed the period which followed the Air India crash with the officers. At
times, she confused the date that she had moved out of her basement suite and
she provided slightly different accounts during the interview of her interactions
with the Bagris after the crash.798 Ms. E initially stated that Mrs. Bagri stayed
with her during the period immediately following the bombing, but not after
Bagri’s request to borrow the car, and that during this time, she only saw Bagri
himself on a few occasions.799 She then said that the Bagris had in fact stayed
with Parmar and only visited her during the day. Ms. E reiterated her information
about Mrs. Bagri’s comment about the Air India crash along the lines that: “…we
told them not to fly Air India.” She said that Mrs. Bagri had made that comment
while staying in her home after the bombing and had appeared proud of the
crash. After this, Ms. E maintained that she did not want “…anything to do with
the Bagris” and that this was when Bagri tried to borrow her car. Ms. E stated
that she did not see Bagri for “quite a while” after his request to borrow her car,
but that he visited her between 7 and 8 PM on an evening around Halloween
and “…gave her the letter about the secret.” Asked if there could be “another
secret,” she stated that nothing came to mind aside from the fact that “…Bagri
was going to the airport and just the luggage was going.”800
Ms. E initially denied having frequent contact with Bagri after Air India and after
his request to borrow the car. The RCMP officers showed her long distance tolls
indicating contact between Bagri’s and her residence, including after the period
when she stated she stopped having contact. Ms. E said she only had infrequent
contact, and explained that most of the calls were with Mrs. Bagri about financial
issues, including a $10,000 loan she had received from the Bagris and a $10,000
lottery win which she had let the Bagris keep.801
Ms. E then discussed again her conversation with Bagri when he visited her. She
said that after he said he was headed to the airport, she asked him where he
was going and he stated, “my bags are going, I am not.” She added that Bagri
had once told her that he would not tell women about the matters he discussed
with Parmar and that, indeed, Bagri’s wife often complained to her about the
fact that Bagri was not keeping her informed of his whereabouts. Ms. E stated
797
798
799
800
801
Exhibit P-101 CAF0428, pp. 2-3.
Exhibit P-101 CAF0428, pp. 3-5.
Exhibit P-101 CAF0428, p. 3.
Exhibit P-101 CAF0428, pp. 3-5.
Exhibit P-101 CAF0428, p. 4; Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7777.
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that Bagri often bragged about Parmar and thought he was a God. She said
that she did not hold Parmar in high regard herself, as she had been asked to
provide him with merchandise free of charge, but had heard that he was “…a
government man and already had lots of money.”802
Rautio and Blachford were surprised by Ms. E’s claim that Bagri had visited her
after Air India and that the Narita and Air India bombings had not occurred at
the same time.803 They asked her about her perception of the timing of the
Air India crash. Ms. E said there was only one crash in June 1985 and that “…
everything went into the ocean” somewhere. She volunteered that she thought
Laurie had “explained everything” to her common-law husband about three
years ago. She remembered that when Air India crashed, she was still living
in her basement suite and was planning a party. She believed the date of the
tragedy was around June 10th but when told it was June 22nd, she speculated
she may have planned her party two weeks later.804 The officers told Ms. E that
“…CP Air and the Air India crash were the same day,” but she maintained that
Bagri’s request to borrow her car was after Air India.805 She recalled finding out
about Air India because a relative phoned her, and she cancelled her party.806
Rautio and Blachford asked Ms. E about her 1985 interviews with the RCMP and,
in particular, why she had not revealed her information about Bagri’s request to
borrow her car at that time. She explained that the officers who interviewed her
then had not specifically asked about the incident. She added that she had been
comfortable telling Laurie “…because she was promised that the information
would stay confidential between the two of them.”807 Blachford explained that
the officers did not get around to discussing how the RCMP could meet Ms. E’s
concerns about maintaining confidentiality during this interview.808
At the end of the interview, Rautio and Blachford asked Ms. E directly, “point
blank,” whether she was having an affair with Bagri.809 She became “visibly
upset” and “quite nervous” and she “denied it emphatically.” The interview was
then concluded at her request, but the officers explained that the issue “…may
not be resolved for a long time” and that she could be approached by police
again.810 According to Blachford’s recollection, the interview was not concluded
because of the “direct challenge” the officers put to Ms. E about having had an
affair with Bagri, but rather because she had to go pick up her children at school.
He explained that Ms. E was asked about the alleged affair because the RCMP
wanted to “…establish what her relationship was with Mr. Bagri.”811
802
803
804
805
806
807
808
809
810
811
Exhibit P-101 CAF0428, pp. 4-5.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7769.
Exhibit P-101 CAF0428, p. 3.
Exhibit P-101 CAF0428, p. 4; Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7769-7770.
Exhibit P-101 CAF0428, p. 5.
Exhibit P-101 CAF0428, p. 5.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7771.
Exhibit P-101 CAF0428, p. 5; Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7771.
Exhibit P-101 CAF0428, p. 5.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7770-7771.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
RCMP Conclusions: Ms. E Considered Unreliable
After the second interview with Ms. E, Rautio prepared a continuation report
summarizing the 1990 RCMP approach to Ms. E and the conclusions that could
be drawn. He referred to the typed accounts of the two interviews and noted
that Ms. E would not allow tape recording. He described Ms. E as a “talkative
woman,” and concluded that her explanation about how she met Bagri and his
family in BC could “…probably be taken at face value.”812 However, he then listed
five different concerns which made Ms. E problematic as a potential witness.
First, Rautio discussed the fact that Ms. E was “…extremely reluctant to admit
any sexual involvement with Bagri.”813 He wrote:
It is felt by the investigators that [Ms. E] is more concerned
about the issue of her affair with Bagri becoming common
knowledge, than she is actually afraid of any physical threats to
herself or family by Bagri.814
Blachford confirmed in the Inquiry hearings that this was a factor to take into
account.815
Second, Rautio mentioned the threats that Ms. E had received from Bagri.
Despite the opinion of the investigators that Ms. E was more concerned about
saving face than about safety, Rautio did note that Ms. E had in fact said that she
was afraid of Bagri because of his past comments.816
Third, Rautio listed Ms. E’s unwillingness to testify. He noted that, as a result
of her expressed fears about Bagri, she had said that she would not testify in
court.817
The fourth concern expressed by Rautio related to the inconsistencies in the
information provided by Ms. E. Rautio felt that Ms. E’s account of Bagri’s request
to borrow her car appeared to be “based on fact,” but that the fact that she was
now separating the Air India and Narita incidents by a period of time of up to
two weeks and “…denying extended contact with Bagri by phone after the Air
India/Narita incidents” raised “a serious credibility problem.”818 Rautio reported
that he contacted Laurie and told him that Ms. E now separated the incidents.819
Laurie said that this was not consistent with the information Ms. E had given
him in the past, and rather indicated that she had “…recently and deliberately
812
813
814
815
816
817
818
Exhibit P-101 CAA0792(i), pp. 10-14.
Exhibit P-101 CAA0792(i), p. 11.
Exhibit P-101 CAA0792(i), p. 11.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7775-7776.
Exhibit P-101 CAA0792(i), p. 11.
Exhibit P-101 CAA0792(i), p. 11. See also Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7776.
Exhibit P-101 CAA0792(i), p. 13. See also Testimony of Bart Blachford, vol. 63, October 17, 2007, pp.
7776-7777.
819 Exhibit P-101 CAA0792(i), p. 14.
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changed her story.”820 In testimony, Laurie explained that the information Ms. E
had provided him had been clearly ingrained in her brain and that, according to
him, she was simply trying to “make herself unreliable” by confusing the timing
of events when those she did not want to speak to were questioning her. To
him, this showed that, as CSIS had thought from the beginning, Ms. E would not
cooperate with police and in fact did not cooperate.821 Rautio and Blachford
also felt that Ms. E’s allegation that Air India and Narita were separate in time
was an attempt on her part to “mitigate her evidence.”822
Rautio’s fifth and final concern related to the possible “contamination” of Ms. E’s
evidence as a result of her past meetings with CSIS. Rautio indicated that Ms.
E had said she had met with Laurie “on ten occasions” and noted that Ms. E had
been provided with specific information, such as “…CSIS knew that Talwinder
dropped Bagri off at [Ms. E’s] residence because CSIS had been following
Talwinder.” Rautio noted that this could raise questions “…as to what [Ms. E]
knows independently as opposed to what she has been told.”823 Blachford
explained in testimony that the RCMP officers were generally concerned that
Laurie had provided information to Ms. E which could affect the content of her
evidence.824
However, Laurie denied telling Ms. E about the CSIS surveillance.825 The
typed accounts of the Ms. E 1990 interviews, based on the investigators
contemporaneous notes, do not contain a mention of Laurie having told Ms. E
that CSIS was conducting surveillance on Parmar, but only that she thought he
may have told her that it was “probably” Parmar who had dropped off Bagri at
her residence.826 On the basis of a document he reviewed, Laurie believed that it
was the RCMP who had informed Ms. E of the surveillance when they first visited
her in 1985.827
In fact, the RCMP constable who had interviewed Ms. E for the first time in 1985
had noted in his report that she was “…questioned regarding the u/m dropped
off by Parmar at [redacted] avenue Vancouver on 85-06-09 at approximately 2306hrs,” and that he had also asked her about her knowledge of Parmar during the
interview.828 In 1987, according to the report Laurie prepared immediately after
his third interview with Ms. E, she told Laurie that the RCMP had implied to her,
when they interviewed her in 1985, that it was Parmar who had brought Bagri to
her residence.829 Given the manner in which the RCMP questioned Ms. E about
a person who was seen arriving at her place at a specific date and time, it is clear
that the RCMP revealed the fact of the surveillance during the 1985 interview.
820
821
822
823
824
825
826
827
828
829
Exhibit P-101 CAA0792(i), p. 14; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7491.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7491.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7779.
Exhibit P-101 CAA0792(i), pp. 13-14.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7777-7778.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7489.
Exhibit P-101 CAF0428, p. 3.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7489-7490.
Exhibit P-101 CAA0387(i).
Exhibit P-101 CAA0579(i), p. 1.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
If the officers did not directly reveal the fact that the person seen dropping off
Bagri at the time was Parmar, questioning her about him in the same interview
was probably sufficient for her to conclude that this was implied.
In any event, based on the five concerns listed by Rautio, the RCMP investigators
concluded that Ms. E could not be considered a reliable witness, and that this
“…conclude[d] [the Watt MacKay] issue 2W.”830 Insp. Dicks, the NSIS Officer in
Charge, accepted this analysis.831
Rautio and Blachford further explained their view of the value of the information
provided by Ms. E during a conversation with John Stevenson of CSIS a few months
later, in January 1991. At the time, Stevenson was tasked with accompanying
RCMP investigators who were interviewing former CSIS members in preparation
for the Reyat trial. In this context, he travelled to Nelson together in one car with
Rautio and Blachford.832 The topic of Ms. E came up and the RCMP officers told
Stevenson that they had “not been impressed” by the information she had to
offer. Stevenson reported that the investigators said they felt she was “…merely
feeding information back to the previous CSIS handler which the handler, Mr.
Willie Laurie had confided to her during his debriefing sessions.” They left
Stevenson with the “…distinct impression that they felt that there was nothing
to be gained by the Force from a continuing association with the source.”833
Blachford, unlike Stevenson who had also drafted a memorandum about it, did
not recall this conversation, but felt it was an “overly broad generalization” on
the part of Stevenson to describe the RCMP reasons for not pursuing Ms. E in the
way he did.834 Blachford maintained that the reasons for the RCMP’s decision at
the time were the five concerns described by Rautio in his report.835
On October 24th, Rautio reported to RCMP HQ about the two interviews with
Ms. E. He summarized the information she provided about Bagri’s request to
borrow her car and noted that “…the source was emphatic that this conversation
took place after the Air India crash, but before the C.P. Air incident in Japan.” He
advised that the source felt that a “couple of weeks” may have passed between
the two events and that she “…had no explanation when advised that the two
incidents occurred on the same day.”836 Rautio commented:
It is apparent to the investigators that the source is not
being completely truthful. The source explained that the
lack of supplying this information to the RCMP in 1985 when
interviewed twice, by simply saying that the RCMP did not
specifically ask about the Bagri conversation.837
830
831
832
833
834
835
836
837
Exhibit P-101 CAA0792(i), p. 14; Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7779-7780.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7601-7602.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7704.
Exhibit P-101 CAF0425, p. 1; Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7705.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7781-7782, 7841-7842.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7842; Exhibit P-101 CAA0792(i).
Exhibit P-101 CAF0383, p. 2.
Exhibit P-101 CAF0383, p. 3.
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Rautio also reported that Ms. E had provided her information to CSIS only
because of the confidentiality they could offer. He concluded that “…the value
of this source is questionable considering the reluctance to cooperate.”838
This was the end of the RCMP approach to Ms. E in 1990.839 She was not contacted
again by the RCMP until June 1991, when two E Division investigators, who
did not know about the 1990 interviews and the conclusion of unreliability,
approached her while working on a source development project.
In 1985, the RCMP had discounted Ms. E, though they suspected she may have
been Bagri’s mistress, because it was believed she did not have information of
interest to its investigation. In 1990, the RCMP knew that she had provided
information of interest to Laurie numerous times, but nevertheless discounted
her again after two interviews, concluding that she was unreliable.
Blachford explained that, in 1990, Bagri was not the principal focus of the E
Division investigation. At the time, NSIS was focused on the preparation of
the trial of Inderjit Singh Reyat for manslaughter in connection with Narita.840
However, the RCMP had had information pointing to Bagri’s possible involvement
since the early months of the investigation, including the information received
from Tara Singh Hayer in 1986, when Bagri was described as a “…prime Canadian
suspect in the Air India/Narita investigation.”841 In 1987, Bagri was referred to in
RCMP correspondence to CSIS as “…one of the principal players in the Air India/
Narita investigation.”842 In 1995, after Parmar’s death and when the RCMP was
considering offering immunity to Reyat and Surjan Singh Gill, but without new
information having been obtained since the Ms. E information came to light,
Bagri was described as the “main target” of the Air India investigation.843
1991-1992: The RCMP “Re-Discovers” the Ms. E Information
A New Approach to Ms. E
In June 1991, Sgt. Fred Maile and Cpl. Robert Solvason of E Division NSIS made an
approach to Ms. E. At the time, Maile and Solvason were assigned to the criminal
extremist group within NSIS, a group which focused on non-Sikh extremism
related matters. The Air India investigation fell under the responsibility of
another group. Maile had transferred to NSIS on the understanding that he
would be working on the Air India disaster and was frustrated that he was
unable to work on the investigation. He developed a project that would
enable investigators to get into the Air India investigation “…through the back
door.”844 Solvason assisted Maile, his immediate supervisor at the time, in this
838
839
840
841
842
843
844
Exhibit P-101 CAF0383, p. 3.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7780.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7780-7781.
Exhibit P-101 CAF0714, p. 1.
Exhibit P-101 CAA0591, p. 1.
Exhibit P-101 CAF0392, p. 4.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11575-11577, 11617.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
“source development project.”845 The investigators planned to do “speculative”
interviews with individuals who were likely to have knowledge of the Air India
disaster, in order to develop sources for the Air India investigation.846
Solvason came up with the names of about six people who could be approached.
He had previous information from one of his human sources that Bagri was
reputed to have “some girlfriends,” one of whom, Ms. E, lived in Vancouver.847 As
it was common practice to approach persons believed to be the girlfriends of
suspects,848 Maile and Solvason decided to interview Ms. E.
On June 20, 1991, Maile and Solvason went to Ms. E’s residence and introduced
themselves as members of the RCMP. She told them that she had an appointment
and asked that they return the next day.849 When they returned on June 21st,
they told her that they were investigating the Air India disaster, that they
wanted to know what she knew about it, and that they wanted to know about
her association with Bagri.850 She explained that she had already spoken to CSIS
and the RCMP many times. She was concerned about the “continuing interview
process” and about her security.851 Solvason recalled that she said something
indicating that she “was tired of” speaking to CSIS and the RCMP. However, she
was “quite forthcoming” and the RCMP officers felt there was a “lot of potential,”
particularly since this was only the first interview they had conducted with
her.852 Solvason noted in his continuation report about the interview that Ms. E
was “…forthright in her account of circumstances surrounding her association
with Bagri ‘et al’, with the possible exception of some detail relating to personal
or romantic matters.”853
Ms. E told the RCMP officers about her association with Bagri back in India
and of Bagri’s visits to her in Canada. She recounted that, while visiting her in
Vancouver, Bagri used her telephone and her car and mostly visited Parmar. He
was also associating with Surjan Singh Gill, Daljit Singh Sandhu and Ripudaman
Singh Malik, from whom he obtained 20 to 40 thousand dollars for unspecified
reasons. Ms. E stated that she once overheard Bagri tell Parmar on the phone
that “…Surjan Singh was not doing what they wanted him to do and to leave him
out of it.” She also recounted a meeting held in her home sometime between
April and June 1985 involving Parmar, Bagri, Gill, Sandhu and others, where
raised voices and arguments could be heard.854
About Bagri’s request to borrow her car, Ms. E stated that, during the latter part
of June 1985, Bagri visited her late at night and woke her up with his knocking.
845
846
847
848
849
850
851
852
853
854
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11577; Exhibit P-101 CAF0405, p. 1.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11577.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11578.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11616.
Exhibit P-101 CAF0405, p. 2; Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11578.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 42.
Exhibit P-101 CAF0405, p. 2.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11580.
Exhibit P-101 CAF0405, p. 2.
Exhibit P-101 CAF0405, pp. 2-4.
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She let him in and he requested her car. Asked why he was visiting so late, he
stated that Parmar had dropped him off and that he was going to the airport
with Parmar and two others from Toronto. Asked if he was going somewhere,
he stated that “…we are not going but our bags are going.” When Ms. E refused
the car, Bagri stated that they might get caught and then he would not return to
ask for the car. When Ms. E asked questions about what Bagri was doing, he said
that she did not need to know and that she would find out if he got caught. Ms.
E said she refused to lend her car and reminded Bagri that he had a family, but
he responded “I know all of those things but I am going.” She said that when he
left, he indicated that he was going to the Ross Street Temple. Ms. E explained
that the entire conversation lasted about five minutes and that she did not see
any vehicles or other individuals and did not observe in which direction Bagri
went. The following day, Ms. E heard of the Air India disaster.855
Ms. E also told Maile and Solvason that she had heard a speech in the Ross Street
Temple during the year preceding the bombing which mentioned that two men
from Toronto would be “fictitiously named Lal and [unknown].” She recounted
Mrs. Bagri’s comment, made while she was staying in Ms. E’s home for one week
after the disaster, about the fact that the victims were responsible for flying Air
India despite the warnings. Ms. E explained that, subsequently, she decided to
stop associating with the Bagris. She discussed Bagri’s relations with his family
and other members of the community and provided information about an
address regularly visited by Surjan Singh Gill. Finally, she recounted Bagri’s visit
in October 1985, when he was upset about the alienation between them, and
gave her a letter and powdered medicine from Pakistan after she stated she “…
did not wish to be closely associated to him.” The letter explained that Bagri did
not wish their relationship to sour, and went on to remark that “…you are the
only who knows one of my secrets and this could get me in lots of trouble and
put my life in danger.” Ms. E stated that she threw away the letter.856
Ms. E objected to the recording of the conversation by the RCMP officers. She
also expressed a reluctance to testify.857 In fact, when she was told that a written
statement was necessary to further the investigation and “…because she would
be called as a witness,” Ms. E was adamant that she would not testify and she
indicated that she had been given “assurances” by Laurie that “…she would
never have to testify.”858 While she did not directly object to providing a written
statement,859 she was fearful and she wanted to speak with her common-law
husband before deciding whether to provide the statement.860 In any event,
a statement could not be prepared on that day because of time constraints.
Instead, Solvason recorded the “…highlights of the conversation that will be
made subject of a statement for future evidentiary purposes” in his continuation
report.861
855
856
857
858
859
860
861
Exhibit P-101 CAF0405, pp. 4-5.
Exhibit P-101 CAF0405, pp. 5-6.
Exhibit P-101 CAF0405, p. 2.
R. v. Malik and Bagri, 2004 BCSC 299 at paras. 44-45.
Exhibit P-101 CAF0405, p. 2.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 44.
Exhibit P-101 CAF0405, p. 2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
In the conclusion to his report, Solvason noted that Ms. E was “…most reluctant
towards any suggestion as to eventually becoming a witness.” He wrote that
this was “…to be expected considering the lengthy association and debriefings
with CSIS.” Solvason noted minor discrepancies in Ms. E’s story, which he felt
were also to be expected given the time lapse and numerous repetitions of the
story to CSIS.862 He explained in testimony before the Inquiry that while Ms. E
“…didn’t have the times right and there was some discrepancy,” he would have
been suspicious if she had “…each and every detail correct,” and he said that the
fact that there were some minor variations was not surprising.863 Because he
was not aware of the 1990 RCMP interviews, he did not know about the major
discrepancy between the version she provided then, separating Air India and
the “CP Air crash” by a period of about two weeks, and this version, where she
situated Bagri’s request to borrow her car the night before Air India.864
In his report, Solvason concluded that Ms. E’s reluctance to testify was “…not
seen as insurmountable,” but that there was “…considerable distance to travel in
terms of realigning [Ms. E’s] commitment” and of corroborating her information.
He also remarked that Ms. E’s common-law partner was “…less than enthused
with the constant police attention.” Notwithstanding the issues, Solvason
concluded that there was “…no question that [Ms. E] has direct evidence
towards future criminal conspiracy proceedings against Bagri ‘et al’ and would
form a major part of any such proceedings.” He noted that “…a tactful and
diplomatic approach” would be necessary to achieve those objectives, which
would eventually require Ms. E to testify.865 Knowing how sensitive Ms. E was,
and having experience in source development, Solvason recommended this
“tactful diplomatic approach” because he knew that this would be critical to
securing her cooperation.866
When he was shown the conclusion reached by Rautio after the 1990 interviews
that“…at this time, ENSIS can not consider [Ms. E] as a reliable witness,”867 Solvason
testified that this did not square with his evaluation of the circumstances.868 He
noted:
S/SGT. SOLVASON: I think sometimes the problem – I noticed
with this woman, she seemed to be quite sensitive. And –
sometimes it’s – if they just perceive that someone – they
feel threatened somehow or they don’t feel comfortable,
it’s possible that they may alter what they have to say, as a
means of getting rid of somebody. And I don’t know that that
happened, but I know that that’s a possibility.
862
863
864
865
866
867
868
Exhibit P-101 CAF0405, p. 6.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11602.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7785-7786.
Exhibit P-101 CAF0405, p. 6.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11545, 11582-11583.
Exhibit P-101 CAA0792(i), p. 14.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11582.
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MR. FREIMAN: Does it have anything to do with your
recommendation for a tactful diplomatic approach?
S/SGT. SOLVASON: I think it would be critical in her case
because, from what I could see with her, she was quite
sensitive.869
In his continuation report about his 1991 interview with Ms. E, Solvason listed a
number of points which could be researched in order to corroborate or confirm
her information. He noted that it was “…imperative to establish the credibility”
of Ms. E through corroborating information and that contact with her would
also continue for this purpose.870
Lack of Support for the New Approach at RCMP E Division
Before their approach to Ms. E, Maile and Solvason were not aware that she
had been interviewed by Rautio and Blachford in 1990, but knew that she had
provided information to Laurie which had been relayed to the RCMP.871 When
Ms. E repeated the information about Bagri’s request to borrow her car, this time
situating it clearly as occurring the night before the Air India disaster, it came as
a surprise to the officers, who felt that Ms. E had provided some “startling” and
“very important” information.872
When Maile and Solvason returned to the office and reported the results of their
interview to the other NSIS members, the information was received with “…a lot
of anger and hostility.” The “…office was in a turmoil.” Wall, who was the secondin-command at NSIS, and Rautio were upset.873 Instead of being eager to take
advantage of Ms. E’s apparent willingness to cooperate, the RCMP seemed more
concerned about Maile’s and Solvason’s unauthorized interview with Ms. E, and
about the fact that their interview was more successful than the interviews
conducted by Rautio and Blachford.
Interestingly, the anger and hostility does not seem to have entirely subsided.
Some of the present and former RCMP members who testified at the Inquiry still
faulted Maile and Solvason for their lack of knowledge. Counsel for the AGC also
seemed to be pursuing the same issue in the cross-examination of Solvason.874
Insp. Dicks, who was still the Officer in Charge (OIC) of NSIS at the time of these
events, testified that he could not understand why Maile and Solvason were not
869 Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11582-11583.
870 Exhibit P-101 CAF0405, p. 7.
871 R. v. Malik and Bagri, 2004 BCSC 299 at para. 39. See also Testimony of Robert Solvason, vol. 89,
December 5, 2007, pp. 11616-11617.
872 Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11579; R. v. Malik and Bagri, 2004 BCSC 299
at para. 42.
873 Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11581.
874 Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11617-11620.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
aware of the 1990 interviews. He stated that there was nothing in NSIS at the
time which would have precluded the officers from being aware. According to
him, the documents and reports about the prior interviews would have been
accessible to all NSIS members through the tip system, which assigned numbers
to various subjects of investigation.875 He felt that there was “an open process” at
NSIS and that matters such as the Ms. E information would have been discussed
openly. Dicks also testified that, as the OIC, he would have been aware of Maile
and Solvason’s initiative to approach Ms. E and kept informed in this respect,
formally or not.876
Blachford, on the other hand, thought that one possible explanation for the fact
that Maile and Solvason were unaware of the 1990 interviews was the “…the
size of the [Air India] file itself.”877 He explained:
Unfortunately, it is massive and, as I indicated, the original
carding system was the old three-by-five, write the name on
and then the reference files, and if it is not done in a timely and
efficient fashion then stuff can get overlooked.878
In fact, Blachford himself, when he reviewed the file again in 1992, did not recall
seeing the information about the interview conducted by Maile with Solvason.879
However, he felt that the fact that he had approached Ms. E with Rautio in 1990
should have been easy to discover for Maile and Solvason:
Well, I can’t answer why they didn’t know that Mr. Rautio
and I had met with Ms. E previously. I mean, that was a well
known fact within the task force. It is well documented and,
in fact, I think if you went to the card with her name on it, all
the associated files are neatly listed or listed out and it would
have been a very easy check. I was there in ’91 and there is no
way that I would not have relayed that information to those
investigators if I had known they were going out.880
Solvason testified that he had done some “cursory checks,” which included a
quick search of the RCMP files. He recalled having seen on the file the notes
for the 1985 RCMP interviews, during which no information of significance
had been learned, but he saw no information about the fact that she had been
named in the Watt MacKay review, nor any information about the 1990 RCMP
interviews. He was unable to recall exactly which searches he conducted, but
875 See Section 2.0 (Post-bombing), Set-up and Structure of the Federal Task Force, for a description of the
tip system and its deficiencies.
876 Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7615-7616, 7635, 7638-7639.
877 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7784-7785.
878 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7785.
879 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7786-7787.
880 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7832.
147
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testified that normally he would go to the index cards in the tip system and
look at the relevant files, many of which were cross-referenced. He explained
that the files in the tip room were “master files” and that when an officer took
out a master file, a “charge card” was supposed to be left in its place. However,
this did not always happen and items got misfiled, which was another possible
explanation for why he did not see the information about the 1990 interviews.
It was also possible that he missed something, as it was not his intention to do
an “in-depth profile” because these were highly speculative interviews. When
Solvason did not see any “…real activity for some time” on the file, he felt that
he and Maile could proceed as they wished with the interview of Ms. E. He
explained that, had he and Maile known that Rautio and Blachford had recently
interviewed Ms. E, he would have spoken to them ahead of time and tried to
figure out the best course of action from there.881
CSIS Information about the Continuing RCMP Interviews
In July 1991, John Stevenson of CSIS recorded information he had received about
Ms. E in a memorandum.882 Stevenson had learned that “…the RCMP had not
ceased their contact” with Ms. E and, in fact, were visiting her “…notwithstanding
her reluctance to have anything to do with them.”883 His memorandum
documented the fact that on June 20, 1991, Ms. E had complained about being
contacted by two policemen who had arrived “…unexpectedly on the source’s
doorstep and questioned her about the Air India explosion.” He noted that
this visit was “…part of ongoing contact” the RCMP had maintained with Ms.
E. He added that Ms. E had indicated that she did not want to have contact
with the RCMP, but that they insisted on contacting her and asking her many
questions.884 There was even an indication that some health problems Ms. E
had been having had been “…compounded by the persistence of the RCMP” in
contacting her against her wishes.885 According to Stevenson’s memorandum,
Ms. E was complaining about the fact that the RCMP were still dropping by to
see her and were “…not listening to her protestations that she does not want to
talk to them.”886 She said that, on a recent visit, the RCMP had stayed for three
hours, and that they had on occasion had discussions with her within earshot of
others. She wanted “…the RCMP to stay away from her house.”887
Stevenson also noted that Ms. E had admitted that she “…does know ‘something’
about Air India explosion” but had stated that she would “…never go on to the
witness stand” because she knew that “…those who committed the crime would
have [her] children murdered.” She added that she believed that Reyat was in the
same situation and hence would not be providing information about those who
organized the bombing. Stevenson concluded that Ms. E and others around her
881
882
883
884
885
886
887
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11578, 11583, 11601, 11616-11618.
Exhibit P-101 CAF0384, CAF0425.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7705.
Exhibit P-101 CAF0384, p. 2.
Exhibit P-101 CAF0425, p. 2.
Exhibit P-101 CAF0384, p. 2.
Exhibit P-101 CAF0425, p. 2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
appeared upset by the “…persistent contact of the RCMP as they continue with
their investigation into the Air India explosion.” Stevenson noted that he did
not intend to report this information to the RCMP at that time, but “…merely to
forward it for the file record in case any queries originate either now or at some
later date.”888 In fact, the information was not passed to the RCMP until over 10
years later, in November 2001.889
RCMP Follow-Up on the Ms. E Information
Dicks confirmed that, as the OIC of NSIS, he would have been informed of the
information received from Ms. E in June 1991, especially since it was viewed
as “direct evidence” which could be used in furtherance of conspiracy charges.
This was particularly important because, at the time, there was very little
evidence of direct participation by anyone.890 Yet, the RCMP did not approach
Ms. E again until the spring of the following year. Solvason had no further direct
involvement with Ms. E at all after his June 1991 interview.891 Maile “…became
involved in other matters,” which resulted in some delay before he attempted
another approach to Ms. E in late March 1992.892
In November 1991, NSIS members recognized, during a “group leader session,”
that there was “…insufficient evidence to support charges” in relation to Air
India.893 However, they noted that during recent months “…new information
has been received which tends to support what we have always believed about
who was involved and how the bomb was delivered to the Airport,” obviously
referring to the Ms. E information.894 It was decided that “…directing sources as a
result of currently known new information and future information”, which meant
instructing sources to take specific actions,895 was to be done after a “careful
analysis” of the facts and circumstances. This was to be “…weighed against a
desired/projected outcome” and was to be “well documented.” At the time, six
months after the interview by Maile and Solvason, the Ms. E information still
required follow-up and“considerable development.”896 In fact, Maile only became
“directly involved” with the Air India investigation in December 1991.897
In December 1991, Dicks sent a report to the OIC of Federal Operations in the
Division about the progress of the Air India investigation. He noted that the
information received from sources “…over the past couple of months” provided
cause for some “…cautious optimism, we may be able to confirm who was
responsible for Air India.”898 He indicated that “…charges may not be out of
888
889
890
891
892
893
894
895
896
897
898
Exhibit P-101 CAF0425, pp. 2-4.
Exhibit P-101 CAF0429.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7606-7607.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11580.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 47.
Exhibit P-101 CAF0407, p. 1.
Exhibit P-101 CAF0407, p. 1; Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7607-7608.
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7610.
Exhibit P-101 CAF0407, pp. 1-2.
Exhibit P-101 CAF0388, p. 5.
Exhibit P-101 CAF0409; Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7608-7609.
149
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the question,” but felt it was still too early to tell. He reported that directing of
sources had not taken place yet. As there was a “…high probability the sources
will be witnesses” and there would be “inherent protective liability,” a plan was
to be put forward before proceeding.899 Dicks explained this related to the
possible need to put protective operations into play for sources.900
In a January 1992 status report about the Air India investigation, the Ms. E
information was listed as having been obtained as a result of the NSIS Source
Development initiative. NSIS was planning to “…take statements from known
witnesses and newly acquired witnesses.”901 At the end of March 1992, a meeting
was held about the creation of a re-organized team at E Division NSIS for the Air
India investigation. At the time, the investigators were making a “…continuing
effort to concentrate on Bagri.” Maile, who was about to retire, was instructed
by Dicks to work longer shifts and to claim overtime where necessary. Maile
reminded his colleagues that if “…relocation or some type of witness protection”
was required, it was available and that this should be kept in mind in dealing
with witnesses or suspects.902 Dicks confirmed that witness protection was a
concern that was present in the case of Ms. E.903
In late March 1992, Maile contacted Ms. E and her common-law husband and
arranged interviews with both.904 Maile interviewed Ms. E’s common-law
husband and explained to him the police interest in Ms. E.905 He said he would
talk it over with Ms. E and that they would advise Maile if she would provide a
statement.906
On April 6, 1992, Maile met with Ms. E at her residence. She was “quite anxious”
to discuss the interview he had conducted with her common-law husband.
She was mostly concerned because her husband was now suggesting that
she had been having an affair with Bagri. Maile told Ms. E that he had said to
her husband that she had been “seeing” Bagri in 1985-1986. Maile then spent
“considerable time” discussing the need for the RCMP to obtain and present
as evidence a written statement from Ms. E and the need for Ms. E to give
evidence in court about the statements made by Bagri. Ms. E indicated that
she felt she had cooperated enough with the authorities and that her life had
been disrupted by the RCMP dealings with her. She was also concerned that
members of her family in Canada or abroad would be harmed by the BK if she
testified. Maile explained to her that “…no one could guarantee the safety of
her family members in India due the constant random killing which appears to
be [a] fact of life in that country.” However, Ms. E was “assured” that threats to her
family in Canada would receive “immediate attention.”907
899
900
901
902
903
904
905
906
907
Exhibit P-101 CAF0409.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7609-7610.
Exhibit P-101 CAF0411, pp. 2-3.
Exhibit P-101 CAF0385, p. 4.
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7621.
Exhibit P-101 CAF0385, p. 5.
Exhibit P-101 CAF0385, p. 2; Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7617-7618.
Exhibit P-101 CAF0385, p. 2.
Exhibit P-101 CAF0359, p. 1.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Maile and Ms. E then discussed “…whether she would actually give a written
statement and then give evidence in court.” Maile emphasized the importance
of beginning with a statement “…to allow the police to conduct further
investigation resulting from the statement.” He then explained that before
testifying, Ms. E would be “consulted” by both police and the prosecutor. Ms.
E remained “somewhat reluctant,” but agreed to discuss the matter some
more with her common-law husband before making a decision.908 Maile was
optimistic about the possibility that Ms. E would provide a written statement
and agree to testify.909 He planned to contact her again the following week if he
did not hear from her before.910
Ms. E Provides a Written Statement
On May 11, 1992, Maile obtained a written statement from Ms. E.911 The
statement described how Ms. E became reacquainted with Bagri in Canada in
the early 1980s and began to have him and his family visit and stay with her in
Vancouver, and to have Bagri use her car on weekends. It stated that the Bagris
had Ms. E convinced that they were “…very religious people and that they were
always helping people in India by sending money back to India.” It discussed
Bagri’s use of Ms. E’s phone, stating that he never spoke in front of her, but told
her he was speaking with Parmar when she asked, and that she once heard him
argue with Daljit Sandhu, but she did not know about what. It mentioned that
Ms. E’s family had warned her to stay away from Bagri and his group.912
The statement went on to explain that, in June 1985, Ms. E was not getting along
well with the Bagris, as she had refused to let Mrs. Bagri stay with her and had
been too busy to take her shopping when asked. It stated that Bagri came to
Ms. E’s very late one evening, around 10 or 11 PM, and knocked on the window
to her basement suite. She ignored him at first, but when he kept knocking
and woke the upstairs residents, she opened her door. She asked why he was
there so late and he said he needed her car. She asked how he got there and,
according to the statement, he said, “Talwinder Singh dropped me off.” She then
asked where he was going, and he said he was going to the airport. When she
refused her car, he said he was going to the airport and “…may not come back.”
He told her that he had people waiting for him. When Ms. E asked where he was
travelling to, he told her, “…I’m not going, only the bags are going.” Bagri then
left and Ms. E closed the door.913
In the statement, Ms. E indicated that she refused to give her car to Bagri that
night because she “…knew something was up.” She then indicated that she
heard about “the CP Air crash” on her car radio the next day. She added that she
found out about the Air India crash from a relative, as a distant relative of hers
908
909
910
911
912
913
Exhibit P-101 CAF0359, pp. 1-2.
Exhibit P-101 CAF0385, p. 1.
Exhibit P-101 CAF0359, p. 2.
Exhibit P-101 CAF0386.
Exhibit P-101 CAF0386, p. 2.
Exhibit P-101 CAF0386, p. 2.
151
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was one of the victims. During the following weeks, she heard discussions at
work about who was responsible for Air India, and she told Mrs. Bagri that she
thought the bombing was “really bad.” Mrs. Bagri said that they kept saying in
the newspapers not to fly Air India and kept warning people. At that time, the
statement continues, Ms. E stayed in contact with the Bagris but began to pull
away. She no longer had them over or lent them her car. Subsequently, Bagri
visited her and wrote in a letter “…you know some of my secrets, you could put
me in big trouble if you want to.” Ms. E was also visited by Mrs. Bagri, who asked
for money. Ms. E said the Bagris owed her money for something she did for
them and that they had also shared a $10,000 lottery win. Finally, Ms. E stated
that, before she moved to her basement suite, Bagri held a meeting at her home
which was attended by Daljit Sandhu, Parmar, and two or three others, possibly
including Surjan Gill and “…another fellow’s name was Malik, who was giving
them money.”914
At the Malik and Bagri trial, Ms. E testified that Maile had arrived at her house
with a written statement already prepared, explaining it was prepared on the
basis of information from Laurie. She claimed that Maile had forced her to
sign the statement, telling her she would be jailed for perjury if she refused.
She said that Maile was rude and that she had threatened suicide if forced to
sign the statement.915 She explained that she signed the statement “…without
knowing its contents because she felt she had no choice.”916 Maile denied
those allegations.917 Justice Josephson found that Ms. E’s allegations were “…
an attempt by her to withdraw from a statement signed by her” and did not
accept them, but instead believed Maile’s evidence about the circumstances
surrounding the statement. 918
Maile testified at the trial that he took no prepared documents to the interview
and wrote the statement as Ms. E related the events to him. He gave Ms. E an
opportunity to review the statement and she told him that she had no difficulty
reading his handwriting. She signed the statement without making corrections,
and they then had a discussion outside her residence about her safety concerns.
He indicated that the interview lasted approximately 40 minutes and that at the
end he felt that he had a good relationship with Ms. E.919
Ms. E Refuses Further Contact
On May 15, 1992, four days after obtaining the statement from Ms. E, Maile
retired from the RCMP after almost 25 years of service.920 Blachford was assigned
the task of conducting the necessary follow-up with Ms. E. He explained that
the statement obtained by Maile was “good but brief” and that he was asked to
attempt to flesh it out if possible. He also had to compare the statement to the
other information provided by Ms. E and to clarify any discrepancies.921
914
915
916
917
918
919
920
921
Exhibit P-101 CAF0386, pp. 2-3.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 50; R. v. Malik and Bagri, 2004 BCSC 149 at para. 23.
R. v. Malik and Bagri, 2004 BCSC 149 at para. 23.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 50.
R. v. Malik and Bagri, 2004 BCSC 149 at paras. 66-67.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 49.
Exhibit P-101 CAF0388, p. 1.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7782-7783.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
On June 2, 1992, Blachford called Ms. E at her residence and asked for an hour of
her time to go over the statement she had provided to Maile. Ms. E refused and
said that Maile had agreed that “…no one would bother her again about this.”922
She was cold with Blachford and did not want to discuss the statement she had
provided. She even said that the police had ruined her life by continually coming
back.923 She explained that speaking about this matter upset and depressed
her each time. Blachford tried to “negotiate” an hour of her time, but she was
“adamant” and said she had no time. Blachford told Ms. E that one more hour
of her time “…would be the end of us” because she had provided a statement
as requested, and he only needed to clarify a few points and then it would be
finished. Ms. E then indicated that she would have to speak to Laurie. Blachford
told her that he was no longer involved and that “…the fewer people involved
the sooner this would be completed.” Ms. E was “unresponsive” and said she
did not want to be involved anymore. Blachford told her he would call her the
following week to see if she had changed her mind. She said “OK good bye” and
put an end to the conversation.924
The following day, Blachford spoke to Maile when he phoned the office about
another matter. Maile said that he did not tell Ms. E that the police would not
contact her again.925 Indeed, in a previous meeting, he had told Ms. E that if she
provided a statement, she would be “consulted” by police and prosecutors prior
to testifying.926
On June 9, 1992, Blachford called Ms. E again. She said she did not want to
discuss this anymore, was busy and had to go. Asked whether she would be
available at other times, Ms. E repeated that she “…would not talk about this
matter any further.”927
Blachford initially thought that the fact that Maile had obtained a written
statement was “the opening” and that Ms. E was now “…more receptive to
receiving the RCMP.” However, during his brief conversations with Ms. E, she
made it “absolutely clear” that she was just not going to talk to him. Blachford
was surprised. He felt that it would not have been opportune in this context
to try to address or discuss Ms. E’s concerns about security or other issues.928
He was also not aware at the time of the information contained in the 1991
CSIS memorandum by Stevenson, which recorded Ms. E’s complaints about the
RCMP approaches to her in the past, as well as some of the fears behind her
reluctance to cooperate with police and to testify.929
In July 1992, Maile attended an “exit interview,” which was an RCMP procedure
allowing retired members to review their experience with the Force and to make
922
923
924
925
926
927
928
929
Exhibit P-101 CAF0360, p. 2.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7792, 7806.
Exhibit P-101 CAF0360, pp. 2-3.
Exhibit P-101 CAF0387, p. 2.
Exhibit P-101 CAF0359, p. 2; Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7790.
Exhibit P-101 CAF0361, p. 1.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7794, 7806.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7795-7796, 7842; Exhibit P-101 CAF0425.
153
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comments if they wished.930 During the interview, Maile described the statement
he obtained from Ms. E shortly before his retirement as a “major breakthrough”
in the Air India investigation.931 He explained that when he retired, he had
advised that he would be “…happy to come back to assist in interviewing
some key individuals,” whose confidence he had gained after spending much
time establishing a relationship with them. Maile now felt that the evidence
he had obtained from Ms. E had not been used in the best manner and that
the Air India investigation was not “…being given the priority it deserve[d].”
He explained that, after his retirement, others were sent to interview Ms. E but
made no progress, which was to be expected given the hard work he had had
to do to gain her confidence. In this respect, the Staffing and Personnel Officer
who conducted Maile’s interview noted that, because of the sensitivity of the
Air India investigation, the involvement of a civilian could only be very limited
and that “…undoubtedly all avenues are being explored by investigators in an
attempt to overcome any sensitive areas that surfaced with [Maile’s] departure.”
He concluded that Maile might have “misconstrued” his limited involvement
as a result of his new civilian status as a lack of proper priority given to the
investigation.932
The Staffing Officer further commented that it was “unfortunate” that an
experienced investigator like Maile did not take another member along when
he interviewed Ms. E and obtained her statement, knowing that it would be
one of his last interviews before retiring and given that the interview turned
out to be “very important.” He noted that, had Maile taken another member,
he could have made the introductions and facilitated follow-up after his
retirement.933 On this issue, Maile initially testified at the Malik/Bagri trial that he
recalled being accompanied by Solvason during this interview. However, when
Solvason indicated that he did not recall being present, Maile admitted that it
was possible that he was alone for the interview.934
The OIC of NSIS, Dicks, could not recall why Maile’s offer to provide assistance
after his retirement was not taken up. He indicated that it would not have been
usual, but also not abnormal for this to occur. He explained however that,
notwithstanding Maile’s comments, NSIS did all that needed to be done with Ms.
E and that “…the process was in hand and was able to move forward” because
other officers had been involved with Ms. E, including Solvason, Rautio and
Blachford.935 Blachford did not recall Maile specifically offering his assistance
when he spoke to him after trying to contact Ms. E, and he was also not told by
his supervisors at NSIS that Maile had made a general offer to provide assistance.
He indicated that, had he known of Maile’s offer, he would have “…taken him up
on it,” if this was possible at the time, as it is today. He was uncertain whether
the RCMP used retired members as police officers back in the early 1990s, but
nevertheless felt that since “this was important,” the RCMP would have used
Maile if he could have furthered the investigation.936
930
931
932
933
934
935
936
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7621-7622.
Exhibit P-101 CAF0388, p. 3; Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7623.
Exhibit P-101 CAF0388, p. 3.
Exhibit P-101 CAF0388, p. 3.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 47.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7624, 7636.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7798-7800.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Dicks viewed the statement obtained by Maile from Ms. E as important, but not
necessarily the “breakthrough” described by Maile, since “…for the most part
what this witness could say was known or suspected.” He further explained,
in the note he authored in response to Maile’s exit interview, that “…Sgt. Maile
had to be pressured to get on with the job” of getting Ms. E to sign a statement.
As he had established good relations with Ms. E, it was important for the RCMP
to “take advantage” before Maile retired but, as his retirement approached, he
spent “valuable time” attending to pre-pension administration. As a result, the
statement was obtained “…in a panic environment, brought on by ex Sgt. Maile’s
untimely decision to take his pension.” Dicks did, however, recognize that Maile
deserved “full marks” for obtaining the statement, and that it was still “…a break
to get the statement.”937
In the end, E Division NSIS made a decision not to carry on with Ms. E any further
at the time. After his conversations with her, Blachford concluded that more
contact would only alienate Ms. E further, which would not benefit the RCMP.
Since the issue was very upsetting to Ms. E, and since her statement to Maile
contained the basic information she had to provide about Bagri’s request to
borrow her vehicle, Blachford suggested that she be interviewed only at a later
date, if it became imperative, and that her reluctance be addressed at that time.
He noted that this “tip” would be concluded for now.938
Cpl. Bob Stubbings, another NSIS member involved in the Air India investigation,
agreed with Blachford’s comments. He saw three options: making further
attempts to get another statement; involving Laurie in negotiations with Ms.
E; or pursuing other initiatives and re-assessing the issue if or when it became
“imperative” to re-interview Ms. E in the future.939 The options were discussed
with NSIS members Blachford and Sgt. Rennie, and all concurred that no further
action would be taken for the time being.940 At the Inquiry hearings, Blachford
explained that the concern of the investigators at the time was to not “…totally
alienate a potential witness of this magnitude” at a time when, in any event, the
RCMP did not have enough evidence to go to court against Bagri and could not
yet prove it was a bomb that downed Air India Flight 182.941
The Ms. E issue was not raised again until 1994.
1994: Missed Opportunities – Laurie’s Promotion Board Interview
In 1994, Laurie applied for a promotion within the RCMP and was interviewed
by a board who questioned him about his past experiences.942 One of the
members of the promotion board was S/Sgt. Doug Henderson, who was part
of the “Air India group.”943 Laurie was asked about source development, and he
937
938
939
940
941
942
943
Exhibit P-101 CAF0388, p. 5.
Exhibit P-101 CAF0361, p. 1.
Exhibit P-101 CAF0341.
Exhibit P-101 CAF0341.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7800.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7492.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7492; Exhibit P-101 CAF0362, p. 1.
155
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cited his interaction with Ms. E as an example of his experience.944 At the time,
RCMP members involved in the Air India investigation had also heard rumours
indicating that Laurie had made comments which “…may have a bearing” on
the investigation.945 Comments that “…he could have solved Air India” were
being attributed to Laurie.946 Laurie testified that he would not have used these
words. He explained that, in the competition process, he had been required to
describe an incident and to explain what actions he had taken and what the
results had been. With respect to the Ms. E information, he had to say that he
did not know about the ultimate result of his effort, and that, in fact, he had not
seen any, but that the information he had gathered had been important and
that he would have liked to find out how it had been used. Laurie thought that
the Air India investigation would have been an interesting career path for him
within the RCMP.947
After Laurie’s promotion interview, Henderson told Stubbings during a
meeting that Laurie “…may have significant information regarding the Air India
investigation” which he obtained while at CSIS. As a result, and because of
the rumours about Laurie’s other comments, it was decided that he should be
interviewed.948
In April 1994, Laurie was interviewed by Stubbings and Cpl. Jim Cunningham.
He discussed the suggestion that he had made while working at CSIS that he be
seconded to the RCMP Task Force, along with his colleagues, Ray Kobzey and
Neil Eshleman, because they could have made a contribution to the Air India
investigation. Stubbings noted that all three former CSIS investigators were now
RCMP members working in E Division. Laurie explained that he had received
information from Ms. E which he considered vital to the investigation, though
it may not be “…directly related to Air India.” He stated that the information he
received from Ms. E was included in three to six reports, and that the RCMP had
not been provided copies, but probably should review them.949 Laurie explained
in testimony before the Inquiry that he felt the reports, and the investigator’s
comments and forwarding minutes, might be of use to the RCMP, as they “…
added weight to the information.” He also could not precisely remember what
was in the reports because he had written so many and, without reviewing
them, he could not be exactly sure what information came from Ms. E and what
information came from other sources.950
Laurie also told Stubbings and Cunningham about his opinion that Ms. E
consciously changed her story when she was interviewed by the RCMP so that
she would not be an acceptable witness. He discussed his belief that Bagri was
involved in the assassination attempt of the Indian minister who was in New
Orleans shortly before the bombing. The RCMP members involved, however,
944
945
946
947
948
949
950
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7492.
Exhibit P-101 CAF0362, p. 1.
Exhibit P-101 CAF0340, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7493-7494.
Exhibit P-101 CAF0362, p. 1.
Exhibit P-101 CAF0340, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7495.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
had information which tended to discount Bagri’s participation. Finally, Laurie
stated that his former colleague, Eshleman, might have information about
Bagri, Parmar and the movement of the bags and that he, Laurie, had received
the information in a social setting and did not know whether it was reported to
CSIS or to the RCMP.951
After this interview with Laurie, Stubbings indicated that Ms. E’s statement was
reviewed and that there was “…no reason to recontact [Ms. E] at this time.” He
recommended that Eshleman be interviewed. E Division also contacted the
CSIS BC Region and decided to write to CSIS formally to request permission to
speak to their former investigators about the matter.952
On May 18, 1994, RCMP A/Comm. Frank Palmer, in charge of Operations for E
Division, wrote to the CSIS BC Region explaining that Laurie had recently been
interviewed and had referred to source reports he had prepared. The RCMP
requested copies of the reports.953 Palmer also indicated that Laurie had said
that his former colleagues, Kobzey and Eshleman, might have information vital
to the Air India investigation. Palmer requested authorization to “…fully discuss
with these three members information of a criminal nature obtained during
their employment with the CSIS, that directly relates to [the RCMP] Air India
investigation.”954
CSIS provided a response on June 20, 1994. CSIS indicated that it had to interview
Laurie in order to identify the documents he was referring to.955 CSIS added:
…in the unlikely event any documents containing information
which has not previously been provided to you are identified,
we would be happy to provide access and or disclosure
pursuant to arrangements currently in place under our
M.O.U.”956
About the information allegedly known to Kobzey and Eshleman, CSIS
suggested that the RCMP first ascertain whether they agreed that they had any
such information and, if so, suggested that a similar procedure be followed, with
CSIS first interviewing them to identify the information at stake.957
Access to the CSIS Report Provided for the First Time
On July 12, 1994, Laurie went to the CSIS offices and met with Stevenson. He
was given an opportunity to review his reports about Ms. E for one to three
hours. He was not, however, provided with copies of the reports or permitted to
951
952
953
954
955
956
957
Exhibit P-101 CAF0340, pp. 1-2.
Exhibit P-101 CAF0340, p. 2.
Exhibit P-101 CAF0363.
Exhibit P-101 CAF0363, p. 1.
Exhibit P-101 CAF0389, pp. 2-3.
Exhibit P-101 CAF0389, p. 2.
Exhibit P-101 CAF0389, p. 2.
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make notes during his review.958 The following day, Laurie returned to the CSIS
offices, this time accompanied by Stubbings, and again met with Stevenson.959
Laurie described his recollection of the visits at CSIS:
MR. KAPOOR: What were the circumstances or conditions
placed upon you to review those notes – I mean those reports?
MR. LAURIE: I don’t have a good recollection of the first day,
but what I do recall is that my reports were made available to
me. I sat in a room and glanced at them and I think that the
statement that I needed to make was, “Yes, I believe that’s all of
them”; something like that.
…
MR. KAPOOR: Okay. And what was your understanding of your
purpose to review them on the 12th, without the presence of
the police?
MR. LAURIE: I don’t really know. I think it was to – so that I
could satisfy myself that, yes, these are the reports that I was
thinking of. If I had any questions, I suppose I could ask them
in the absence of the police. It is a little bit of an odd situation
since I am the police. I think the understanding was, we were
going to identify which of these – the trails were going to be
available the next day when we went through it again, only
with Corporal Stubbings there.960
In the statement he wrote five years later in preparation for the Malik and Bagri
trial, Laurie noted that reviewing the reports “…went a long way to refreshing
my memory of the many details I had reported,” but that “little else” was learned
“…which was considered evidentiary.”961
Stubbings prepared a report about his meeting with Stevenson and Laurie.962
He noted that he was advised that Laurie had reviewed all of his reports.963
Laurie then read aloud for Stubbings a note prepared by CSIS which contained
the information provided by Ms. E.964 Stubbings confirmed that the RCMP was
in possession of the information.965 Stubbings was not permitted to see the
958
959
960
961
962
963
964
965
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7467-7498; Exhibit P-101 CAF0399, pp. 1, 3.
Exhibit P-101 CAF0344, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7497-7498.
Exhibit P-101 CAF0399, p. 3.
Exhibit P-101 CAF0344.
Exhibit P-101 CAF0344, p. 1.
Exhibit P-101 CAF0344, p. 1; See also Testimony of William Laurie, vol. 61, October 15, 2007, p. 7500.
Exhibit P-101 CAF0344, p. 1; See also Testimony of William Laurie, vol. 61, October 15, 2007, p. 7500.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
actual reports.966 At this stage, the RCMP took the position that it was no longer
interested in determining whether and when the Ms. E information was passed
from CSIS to the RCMP:
Stubbings stated that he was not attempting to determine if
and when the information was received from the CSIS. Rather
more importantly, that the RCMP was in possession of the
information regardless of whether the CSIS or the RCMP was
the originator.967
CSIS offered to allow Stubbings to review the Laurie reports himself, but he
noted that he “…declined based on Laurie’s comments.”968 Laurie explained in
testimony before the Inquiry that Stubbings was satisfied that all the information
that he (Laurie) had gathered from Ms. E was included in the text he read aloud,
because Laurie confirmed that this was the case.969
Stubbings reported that during the meeting at CSIS, Laurie had said that there
were four top secret Babbar Khalsa files that Stubbings should review, as they
were interesting, though not directly related to Air India. Stubbings declined
because this was not “the issue at hand” and because it could be accomplished at
a later date.970 Laurie explained before the Inquiry that, in fact, he was referring
to the operational reports he had prepared, based on the Ms. E information,
which were on the top secret BK file. He asked Stubbings if he wanted to review
those reports, as they were about the BK and the RCMP targets were associated
with the BK, but Stubbings declined.971
Finally, Stubbings reported that during the meeting, Laurie indicated that his
former colleague Eshleman “…has information regarding Air India/Narita that
was not even reported to the CSIS let alone the RCMP.”972 At the conclusion of
the meeting, it was agreed that a letter from RCMP management documenting
the agreements reached during the meeting would be provided.973
After the meetings with Laurie and Stubbings, the CSIS BC Region wrote to CSIS
HQ to advise of the developments. The Region advised that, before interviewing
Laurie, they made “informal inquiries” with the RCMP NSIS members and found
out that their concerns related to statements made by Laurie which implied that
the information he obtained from a source could help the RCMP’s case. Laurie
was apparently reluctant to discuss the matter further without CSIS authorization
and “…an opportunity to refresh his memory by reviewing his reports.” After
interviewing Laurie, the BC Region concluded that he was “unaware” that the
966
967
968
969
970
971
972
973
Exhibit P-101 CAF0399, p. 3.
Exhibit P-101 CAF0344, p. 1.
Exhibit P-101 CAF0344, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7501.
Exhibit P-101 CAF0344, p. 1.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7501-7502.
Exhibit P-101 CAF0344, p. 2.
Exhibit P-101 CAF0344, pp. 1-2.
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RCMP had “learned the identity” of Ms. E and “…subsequently persuaded the
source to disclose the same information provided to the Service.” The CSIS
BC Region noted that, once Laurie reviewed his reports and the meeting with
Stubbings was held, the CSIS information was compared to that known to the
RCMP and was “…determined to be identical.” The RCMP was only concerned
that Laurie may have known more, but that was “clearly not the case.” As a result,
no further action was necessary. Stubbings “…withdrew [the RCMP’s] request
for disclosure of related documents” and agreed to provide a letter confirming
that the matter was resolved to the RCMP’s satisfaction.974
On July 25, 1994, the RCMP wrote to CSIS and indicated that, following the
Laurie and Stubbings meetings with CSIS, Stubbings was “…satisfied that the
RCMP is in possession of ALL information related to Air India/Narita provided
to the CSIS by the source.” As a result, the RCMP specified it was not requesting
any of the CSIS reports.975
The CSIS BC Region also had discussions with RCMP E Division member S/Sgt.
Don Brost, who stated that “…the issue involving Laurie’s source information
was resolved to his satisfaction.” Brost indicated that investigators still intended
to speak to Eshleman about the possible unreported information and would
advise CSIS of any developments. The BC Region noted that it did not anticipate
taking any further action until then. On August 17, 1994, someone in the Region
assembled the “…entire package dealing with the Willie Laurie issue” in a work
file, noting that “…this kind of thing always seems to resurface.”976
The RCMP Interviews Laurie’s Colleagues
In its report to CSIS HQ, following Laurie’s review of his reports, the CSIS BC
Region discussed Laurie’s comments about the knowledge of his former
colleagues, Eshleman and Kobzey. The Region indicated that Laurie was
referring to information that Eshleman would have obtained but not reported.
During the meeting, the Region assured Stubbings that they were not aware of
any information gathered by the two investigators about Air India/Narita that
would not have been disclosed to the RCMP. Under the circumstances, CSIS
did not object to the RCMP interviewing Eshleman and Kobzey, who had both
rejoined the RCMP.977 The BC Region concluded its report to CSIS HQ about the
whole incident as follows:
The erroneous perception that the Service failed to disclose
Mr. Laurie’s information would appear to have developed
as a result of a misunderstanding on Mr. Laurie’s part. It has
now been resolved. The possibility that Mr. Eshleman may
have failed to report vital information remains a concern. Mr.
Stubbings was asked to keep us informed of any developments
in this regard.978
974
975
976
977
978
Exhibit P-101 CAF0426, pp. 10-11.
Exhibit P-101 CAF0365, p. 2.
Exhibit P-101 CAF0426, pp. 4, 6.
Exhibit P-101 CAF0426, p. 11.
Exhibit P-101 CAF0426, p. 11.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Laurie testified before the Inquiry that his interlocutors, both at CSIS and the
RCMP, had been “missing the point” of his comments about his co-workers.
What he meant to indicate was that his colleagues had in-depth knowledge
of the subject matter and knew of many details. As a result, they could bring
useful insight to the areas of the investigation where the RCMP was “very short of
information.” Laurie said he never meant to imply that his colleagues “secreted
information away” and kept it from CSIS or the RCMP.979 He explained:
MR. KAPOOR: You weren’t suggesting, at all, that they were
sitting on information and –
MR. LAURIE: No.
MR. KAPOOR: – failed to pass it up?
MR. LAURIE: No – but the problem is when you make a
suggestion like, “Why don’t you talk to those fellows because
they know quite bit,” somebody immediately says, “Oh well,
they must be hiding stuff, you know; do they know something
that hasn’t been reported?” No. Perhaps everything that they
know has been reported but you can get it all out of the one
mouth by talking to them.980
Stubbings contacted Eshleman on August 30, 1994, and asked him whether,
while at CSIS, he obtained information about Air India that was not reported
to the RCMP. When Eshleman inquired, Stubbings told him that Laurie had
provided his name, but “…no specifics were discussed.” Eshleman mentioned
that there was much personal conjecture from the CSIS investigators included in
the “comments portion” of their reports. He was asked to “consider the situation”
and call Stubbings back. He indicated that he would contact Laurie to find out
what information he was referring to. A few weeks later, Eshleman advised
Stubbings that he was not aware of any “significant information” he knew of
that was not passed to the RCMP. He added that he had his “…own opinions on
aspects of this [the Air India] disaster as has anyone who has worked this file.”
On September 12, 1990, Stubbings spoke to Kobzey. He said he did not recall
any “…significant information to which he was privy that was not passed to the
RCMP.” He added that he was not aware of what “action or priority” was placed
on the CSIS information once received by the RCMP.981
The RCMP Decides to Take No Further Action
After his conversations with Laurie’s former colleagues, Stubbings concluded
that Laurie, Kobzey and Eshleman had all “…been spoke[n] to without any
979 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7506.
980 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7507.
981 Exhibit P-101 CAF0345, pp. 1-2.
161
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Volume Two: Part 2: Post-Bombing
new information or leads surfacing” and that therefore “…no further action
is required on this particular initiative.”982 In the end, after investing time and
effort to investigate Laurie’s comments to the promotion board, the RCMP
never obtained, or even reviewed, copies of the actual reports containing the
details of the Ms. E information gathered by CSIS, and never followed up on the
suggestion to review some of the CSIS Top Secret files which may have assisted
in its investigation.
Further, the RCMP had become confused about the Ms. E information in
its possession, and some of the facts discussed during the 1994 meetings at
CSIS were taken as “revelations” when in fact they were known all along to the
Force. During his initial interview with Rautio and Blachford, Laurie had made
it clear that his approach to Ms. E was done in 1987.983 CSIS HQ had provided
similar information to RCMP HQ members in October 1990, indicating that the
source had been “only under development” in 1987.984 This information had
been relayed to E Division by RCMP HQ at the time.985 Yet, over the years, RCMP
members apparently began to entertain the notion that CSIS had received the
information from Ms. E in 1985, shortly after the bombing.
In his report about the 1994 meeting with CSIS and Laurie, Stubbings wrote:
Of particular interest it was determined that Laurie and
the CSIS did not initiate their relationship with the source
until September 1987, fully more than two years after the
disasters. This is a major revelation and may explain some
of the confusion that has arisen over this source and the
information.986
After discovering this “revelation,” Stubbing contacted Rautio and Blachford and
they, too, confirmed that they had been under the impression that CSIS had
been talking to Ms. E in 1985.987 Blachford could not explain why both he
and his colleague, Rautio, were under the impression that CSIS had received the
information from Ms. E in 1985.988 Laurie attempted to explain this confusion:
MR. KAPOOR: Are you able to help us at all about how – about
any discussion about that issue at the time?
MR. LAURIE: Not really. I know that when the RCMP – well, first
of all, it is my understanding that the information was initially
passed in December of 1987. However, later when they
982
983
984
985
986
987
988
Exhibit P-101 CAF0345, p. 1.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7760; Exhibit P-101 CAA0781(i), p. 6.
Exhibit P-101 CAA0787(i), pp. 1-2.
Exhibit P-101 CAA0787(i).
Exhibit P-101 CAF0344, p. 1.
Exhibit P-101 CAF0344, p. 2.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7761.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
seemingly become aware of it again for the first time, they are
very upset and I believe that they describe that the CSIS has
been withholding this information for x number of years and
that x is a number of years that goes back to 1985 and there is
no reason why it should because obviously it was 1987 before
the initial meeting took place.
MR. KAPOOR: And, of course, there is the reference here
that this is a major revelation and may explain some of the
confusion that has arisen over the source and the information.
Did you get a sense when you were in that meeting with
Stubbings and Stevenson, that Stubbings was surprised that it
started in ’87?
MR. LAURIE: No. I don’t remember him – I think he might
have, you know, double-checked the date, but I think he was
trying to hold his cards pretty close to his chest. You have to
remember that Corporal Stubbings believes that I am in on
this conspiracy to withhold information somehow and that,
you know, this is a ruse of some sort. I don’t know. So if he was
really, really surprised he didn’t express it to me.989
The Ms. E issue again appears to have been put to rest by the RCMP after the
1994 meeting with CSIS and Laurie. No further attempts were made to contact
Ms. E since the 1992 interviews and phone calls.
1995-1996: The Ms. E Issue “Re-Surfaces” Again
In 1995, there was a sense of urgency at the RCMP E Division NSIS, because
the tenth anniversary of the bombing was approaching in June. NSIS was
“…attempting to resolve all the issues before then,” since it was thought “…
preferable to have the RCMP make a public statement beforehand, rather than
reacting to media queries afterwards.”990
In February 1995, a lengthy meeting was held at E Division NSIS for the purpose
of reviewing the Air India file and attempting to “…develop and follow-up on
unresolved initiatives.” The Ms. E issue was discussed. At that time, Bagri was
considered one of the main suspects.991 He was described shortly after as the
“main target” of the E Division investigation.992 Early on in the meeting, the
NSIS members discussed “…the connection of Bagri to a female identified as
[Ms. E] with whom he was allegedly having an affair.” The Ms. E information was
reviewed and it was noted that: “…it was believed that CSIS had interviewed [Ms.
E] shortly after the Air India crash/Narita explosion but it was recently learned
989
990
991
992
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7499-7500.
Exhibit P-101 CAF0391, p. 2.
Exhibit P-101 CAF0390, p. 2.
Exhibit P-101 CAF0392, p. 4.
163
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that this did not happen until 2 years afterwards.” The members then noted
that Ms. E denied having a relationship with Bagri, and had been interviewed
several times by different RCMP officers. They mentioned the fact that the last
interview had been conducted by Maile alone, at Ms. E’s request, and that the
written statement obtained then “…raised some unanswered questions.”993
The statement obtained by Maile was reviewed and the members specifically
noted that Ms. E knew something was not right and therefore refused to lend
her car to Bagri. A general discussion followed and the questions raised included
whether the RCMP could put Bagri in Vancouver the day before the bombing,
how Laurie had come to know of Ms. E, whether NSIS wanted to interview Bagri
about his meeting with Ms. E and whether Ms. E knew more than she told police.
The RCMP had information indicating that Bagri’s vehicle was found at Parmar’s
residence on June 21st, and the NSIS members thought that this confirmed that
he was in Vancouver on that date.994 At trial, however, this was found to be
inconclusive, as CSIS surveillance had described the occupants in Bagri’s vehicle
as an “…unknown East Indian male, who was not Mr. Bagri and has not been
subsequently identified,” along with an unknown female and young child.995
The CSIS surveillance information had been the object of an admission of fact
by the Crown and defence, and Justice Josephson found that, as a result, the
Crown could not use the presence of Bagri’s vehicle in Vancouver on June 21st to
show that Bagri himself was in Vancouver on that date.996 Further, because the
CSIS transcriber was on leave on the weekend of the bombing, the subscriber
information which would have provided information about Bagri’s location
when Parmar called him on that weekend was not recorded, though CSIS
intercepted the call.997
During the February 1995 RCMP meeting, Blachford, who was working in the
Informatics section by then,998 was brought in to discuss the Ms. E issue since he
had been involved in the matter.999 He did not bring or review his notes or other
materials, but was simply asked to share his recollection.1000 He informed the
members that the information about Bagri meeting with Ms. E had initially been
passed by CSIS to Cummins “at a social function” and “not through channels.”1001
At the Inquiry hearings, Blachford recalled that, in fact, the information was
passed during a meeting at CSIS HQ on another matter and not during a social
function.1002 His mistaken impression about the passing of the information
is another example, along with the RCMP belief that CSIS had obtained the
information from Ms. E in 1985, of how knowledge can become distorted and
reported inaccurately in cases of such magnitude as Air India, with a variety of
RCMP officers and CSIS agents participating separately and in a disorganized
fashion.
993 Exhibit P-101 CAF0390, p. 2.
994 Exhibit P-101 CAF0390, pp. 3-4.
995 R. v. Malik and Bagri, 2005 BCSC 350 at para. 1003.
996 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1145-1146, 1237.
997 See Section 3.3.3 (Pre-bombing), Failure to Allocate Resources.
998 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7801.
999 Exhibit P-101 CAF0390, p. 4.
1000 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7802-7803.
1001 Exhibit P-101 CAF0390, p. 4.
1002 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7802-7803.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Blachford told his RCMP colleagues that, according to his information, Bagri had
asked to borrow Ms. E’s car for “something big” and had told her she “…may
not see him again.” He explained that Ms. E became hostile to the Bagris after
the bombing. He then stated that an “…initiative on Air India brought Maile
to re-interview Ms. E” and that the first interview of Ms. E “…may be on tape.”
Attention then turned to Laurie’s alleged statements to RCMP members that
“…while he was [in] CSIS, information given to RCMP would have solved Air
India.” The review of CSIS reports by Laurie and the subsequent meeting with
Stubbings at CSIS were discussed, as well as the conclusion that Stubbings “…
determined that the CSIS had no information not already in the possession of
the RCMP.” Blachford indicated that, according to him, “…something happened
that night,” which Ms. E had not revealed. The discussion then moved on to
“whether or not” there was a “…CSIS cover-up and lack of cooperation from
CSIS,” and it was decided that any new approach to Ms. E would have to be “well
thought out” and would have to involve Laurie, now a Corporal in the RCMP,
along with an NSIS member.1003
In the end, interviewing Ms. E was included in a list of “…suggested things to
do.” During the meeting, it was suggested twice that Ms. E be asked to take
a polygraph. The final recommendation concluded that Ms. E should be reinterviewed after discussions were held about who would conduct the interview
and about whether Laurie should be involved. Consideration was to be given
to polygraphing her, and “background work” was to be done to find out more
about her common-law husband.1004 About the possibility of polygraphing Ms.
E, Blachford indicated in testimony before the Inquiry that, given her state of
mind and her continued reluctance, it would have been “…a little over the top”
to use this approach with her.1005 While this was considered as an avenue during
the meeting, it does not appear that the RCMP, in fact, attempted to polygraph
Ms. E.
The recommendations made during the February 1995 meeting were reexamined, and E Division NSIS sought the concurrence of senior management
to undertake certain outstanding initiatives as soon as possible. These initiatives
included an attempt “…to get a further statement” from Ms. E.1006 When asked
to provide more detail to senior management, the Acting Officer in Charge
for NSIS, Brost, indicated that Ms. E had provided information about a request
from Bagri to borrow her car to take bags to the airport which took place “…a
night or two before the aircraft departed Vancouver.” Brost added that “…it was
learned in 1994” that the Ms. E information “…did not surface until 2 years after
the disaster.” He noted that Ms. E was “allegedly” having an affair with Bagri,
“…which she denies.” Finally, he explained that NSIS had approached Ms. E “…
on a number of occasions,” that “…she reluctantly provided a written statement
on 92-05-11,” and that she had refused to cooperate since and “…rebuffed
further attempts to talk to her” by the RCMP. Because of Ms. E’s reluctance, NSIS
proposed to assess the possibility of using Laurie, hoping that their rapport
would still exist and “…result in additional information.”1007
1003
1004
1005
1006
1007
Exhibit P-101 CAF0390, p. 4.
Exhibit P-101 CAF0390, pp. 2-3, 5, 10.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7804.
Exhibit P-101 CAF0391, p. 2.
Exhibit P-101 CAF0392, p. 3.
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In May 1995, E Division NSIS decided to have one of its members, Cunningham,
review the Ms. E tip and determine “…what information is still required from her.”
Once this was done, NSIS planned to contact Laurie to request his assistance in
approaching Ms. E.1008 In August 1995, Sgt. G. Lamontagne wrote to Cunningham
about the Air India initiatives, noting that further to a response received from
the Crown in April and to the “…reward approval from HQ,” E Division could
now proceed with its interview plans. He instructed Cunningham to carry out
the interview with Ms. E with the assistance of Laurie as soon as possible.1009
However, no further approach to Ms. E was undertaken by the RCMP in 1995.
Meanwhile, at CSIS, the Ms. E file was being considered for destruction as it was
no longer active. In June 1995, the file was reviewed and the Chief of Operations
agreed with a recommendation that it be retained for another year. In June
1996, CSIS again decided to retain the file for one more year, noting that “…
in view of what is happening with the RCMP on the 30th floor these days, we
should probably hang on to this one for at least another year.”1010 At the time,
the RCMP had formed a new Air India Task Force and was planning to take the
case to trial with the evidence already collected.1011
On February 7, 1996, a member of the E Division Air India Task Force did a review
of tip 2805, the Ms. E tip.1012 The Ms. E information was summarized and issues
requiring follow-up were listed. Among the questions suggested for future
investigation were: “…did [Ms. E] ever openly admit to investigators that she
had/was having an affair with Bagri? If so, when? When did the affair start &
end?” The reviewer also suggested asking Ms. E why she did not go to the police
when she heard about Air India, given her suspicions of Bagri. He also asked
whether Ms. E saw other individuals with Bagri, whether she felt threatened by
Bagri’s mention that she knew his secret and what she thought the secret was.
Another suggestion raised the possibility of interviewing Ms. E’s father about
what he knew about Bagri which would have motivated him to warn Ms. E to
stay away from him. As Ms. E had stated to Maile that Bagri’s knocking had
woken up the people living upstairs, the reviewer suggested interviewing Ms.
E’s landlord and his family about the observations made on that night, as well as
conducting neighbourhood inquiries, which had not previously been done.1013
On February 16, 1996, the OIC of the renewed Air India Task Force reported on
the new initiatives undertaken, which included an application for authorization
to intercept private communications.1014 At that time, the Task Force was
planning to commence “…a concentrated series of interviews/interrogations of
several key subjects,” including Ms. E.1015 On February 26th, another tip review
was conducted, this time of tip 2731, which was assigned to the follow-up
1008
1009
1010
1011
1012
1013
1014
1015
Exhibit P-101 CAF0393, p. 2.
Exhibit P-101 CAF0398, p. 2.
Exhibit P-101 CAF0426, p. 2.
See Section 2.2 (Post-bombing), The RCMP Investigation: Red Tape and Yellow Tape.
Exhibit P-101 CAF0412.
Exhibit P-101 CAF0412, pp. 2-3.
Exhibit P-101 CAA0936(i).
Exhibit P-101 CAA0936(i), p. 2.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
of Watt MacKay issues, including issue 2(w) about the Ms. E information.1016
The 1987 correspondence on file, as well as the 1990 Watt MacKay follow-up
documents and interviews with Ms. E were summarized. The reviewer noted
that “…statements made by [Ms. E], some of which are not directly related to A.I.,
have been included to reflect the manner & frequency in which [Ms. E] changes
her stories.” A list of follow-up questions about issue 2(w), similar to those in the
former review of the Ms. E tip, was included.1017 About Ms. E’s failure to report
her information to police, the reviewer noted:
Re: Source convinced Bagri directly involved (A.I./Narita). If
[Ms. E] felt immediately that Bagri was directly involved in
A.I./Narita, what reason did she give for not contacting police
right after the crash? Why did she wait for C.S.I.S./R.C.M.P.
to approach her, particularly when her own relatives had
been killed? If fear of Bagri/personal involvement with Bagri
was her excuse, how much initial pressure was put on her
by investigators, in the vein of solving her relatives murder/
protecting others from Bagri’s violence? Has she shown any
sense of guilt in previous interviews, that could be developed
further with an[sic] re-interview?1018
It was not until July 1996 that the RCMP began taking steps for a new approach to
Ms. E, and not until December 1996 that this approach was finally attempted.
1996-1999: New RCMP Approach to Ms. E – Preparation for Trial
On April 1, 1996, Cpl. Doug Best joined the Air India Task Force as an investigator.
He was provided with a briefing on the Air India file and was asked to follow
up on the Ms. E tip as part of a larger review of the Air India case. He was
ultimately requested to approach Ms. E. At the time, it was obvious to the Task
Force investigative team that Ms. E was one of the most important witnesses in
the case against Bagri. Securing her cooperation would be key to the success
of the prosecution, and it was therefore imperative that Ms. E be made to feel
comfortable and safe in her cooperation with the RCMP.1019
In preparation for his approach to Ms. E, Best reviewed the information on file
which documented the RCMP’s interactions with her over the years. He then
spoke with Laurie in July 1996 to get his advice on how best to approach Ms. E
in order to receive her cooperation.1020 This was the first time Laurie had been
contacted by the RCMP about the Ms. E issue since his April 1994 meetings with
CSIS and the RCMP. 1021 Laurie told Best that Ms. E was unlikely to cooperate
1016
1017
1018
1019
1020
1021
Exhibit P-101 CAF0413.
Exhibit P-101 CAF0413, pp. 2-8.
Exhibit P-101 CAF0413, p. 7.
Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7851-7852, 7901-7902.
Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7852, 7855-7856.
Exhibit P-244, vol. 2 (January 5, 2004 Transcript), pp. 50-53; Testimony of William Laurie, vol. 61,
October 15, 2007, pp. 7514-7515.
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if she felt intimidated.1022 He emphasized that she should be interviewed in a
non-intimidating environment, and should be interviewed one-on-one.1023 He
explained that Ms. E was afraid of police and that two or more officers would
seem very “police-like.”1024 While Ms. E was concerned that cooperation with
police would put the safety of her children at risk, Laurie felt she would likely
cooperate if she could be “…convinced protection would be provided to her
and her family.” Laurie also indicated that he was prepared to assist the RCMP,
including by way of an introduction or direct approach.1025 At the Inquiry
hearings, he commented on his impression of Best’s approach following his
conversation with him:
MR. LAURIE: I think he’s after a statement more than an
interview. I think he wants a piece of paper.1026
The RCMP canvassed a number of options for possible approaches to Ms. E.
These included contacting Ms. E’s brother to have him convince her of the need
for her cooperation, making a direct approach to be facilitated by Laurie, and
simply making a direct approach. Best wrote that it was his belief that the first
approach, using her brother, was the best option at the time. He noted that
the RCMP’s last contact with Ms. E in June 1992 “…yielded a negative response,”
which was felt to have been “…based on her predisposition concerning Police
vis-à-vis Personal Safety.”1027 Yet, in late 1996, Best attempted a direct approach
to Ms. E, without the help of her brother or Laurie.1028 He dropped in on her
residence unannounced and was informed by her common-law husband that
she had left Vancouver and would not be back until the following week. Best
advised that he would return then.1029
Best again dropped by Ms. E’s residence on December 6, 1996, and this time
he found her at home. He proceeded to explain to Ms. E that she would be
subpoenaed as a witness based on the statement that she had given to Maile.
At this point, he did not speak to Ms. E about possible protection or her concerns
about her safety.1030 A few days later, on December 11, 1996, Ms. E came to the
RCMP Headquarters at Best’s request for an interview about her relationship
with Bagri and her information in relation to Air India.1031
Interviews at RCMP Headquarters
The Air India Task Force attempted to control the conditions of the December
11th interview with Ms. E as much as possible. It was conducted in an interview
1022 Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7855-7856.
1023 Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7855-7856, 7883; Testimony of William
Laurie, vol. 61, October 15, 2007, p. 7515.
1024 Exhibit P-244 (Proceedings at Trial, Day 65), p. 62.
1025 Exhibit P-101 CAF0394, p. 2.
1026 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7515.
1027 Exhibit P-101 CAF0394, p. 2.
1028 Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7859.
1029 Exhibit P-101 CAF0423, p. 3.
1030 Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7860-7861.
1031 Exhibit P-101 CAF0423, p. 3.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
room at RCMP Headquarters with audio and video recording.1032 The interview
lasted about two hours.1033 Ms. E was asked for her permission to have the
interview audio recorded and agreed, but she was not aware that she was being
videotaped.1034 Upon her arrival, Ms. E was taken directly to the interview room
and was “…permitted to make herself comfortable.”1035 Ms. E was introduced to
another officer, Leon Van deWalle, the sergeant in charge of the investigative
team,1036 who provided an overview of the investigation and explained to
her the importance of witnesses.1037 He told her that she was one of several
witnesses who would be required to provide evidence to the court. He asked
that she provide an account of the events for Best.1038 Van deWalle then excused
himself, and Best proceeded with the interview.1039 A transcript of the interview
was produced.1040 Unfortunately, the interview did not prove to be a very useful
exercise.
At the outset, Ms. E was nervous. She gave an account of the incident when
Bagri came to her home late at night and asked to borrow her car, which she
said she had refused. She said she had the feeling that Bagri went to the Ross
Street Temple, but stated that she thought “…Willie told [her] that’s where he
went.” She was unable to recall specifically when this incident occurred. After
changing the subject for a brief time, Best again attempted to return to the
specifics in the statement that Ms. E had provided to Maile. When pressed,
Ms. E complained that Laurie told her that she would not have to answer these
questions again. She said that because it had been so long, all she could recall
of the episode was that she had refused to lend Bagri her car.1041
Ms. E brought up the issue of when the visit had occurred relative to the disaster
and said she was asking herself the question of how many days apart these
events were. Best attempted to “jog” her memory, and suggested that the events
were “…in fact, extremely close.” When Best asked whether Bagri’s visit was “just
before” or after the disaster, Ms. E said that it was before, and thought that it was
“pretty close.” At some point in the interview, she indicated that Bagri’s visit was
“three, four days” before the disaster.1042
Best eventually had to read out the 1992 Maile statement to Ms. E, point by
point, to help refresh her memory.1043 As it was being read back to her, she
indicated that she still could not remember the details,1044 including the fact
that Bagri had told her that Talwinder Singh Parmar had dropped him off at
1032
1033
1034
1035
1036
1037
1038
1039
1040
1041
1042
1043
1044
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7862.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7863; Exhibit P-101 CAF0395.
R. v. Malik and Bagri, 2004 BCSC 299 at paras. 53-54.
Exhibit P-101 CAF0423, p. 4.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7862.
Exhibit P-101 CAF0423, p. 4.
Exhibit P-101 CAF0423, p. 4; Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7863.
Exhibit P-101 CAF0423, p. 4.
Exhibit P-101 CAF0395.
Exhibit P-101 CAF0395, pp. 3, 8, 12-16, 18-19.
Exhibit P-101 CAF0395, pp. 22-23, 35, 41.
Exhibit P-101 CAF0395, p. 48.
Exhibit P-101 CAF0395, pp. 51, 54, 55, 57, 58, 60, 62, 65, 81.
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her place – stating “I thought Willie told me that.” She also did not remember
crucial facts, including whether Bagri said that “…only the bags were going” on
the plane or that the crash had occurred the day after the Bagri request. Late in
the interview, Ms. E said that Maile had, in fact, copied what Laurie had written
down and asked her to sign it.1045
Best pressed Ms. E to try to remember because if she did not, it left her open to
“unpleasant things”:
…because what will happen if, if it’s not, when you get up
there, well the, the lawyer will explain. We, our Crown Counsel
will explain this to you, is that you leave yourself, you leave
yourself open to unpleasant things … happen, you know, by
that I mean you’re questioned, you’re cross questioned, … so
it’s important that you’re clear.”1046
In response to this scenario, Ms. E asked Best whether he thought she needed a
lawyer and he provided his opinion that she did not.1047
Ms. E told Best that she wanted to have as few meetings as possible, indicating
she did not want this to be a prolonged affair. He told her that she would need
to meet with the Crown and go over the incident again so that it remained as
“refreshed” in her memory as possible.1048 Near the end of the interview, Ms. E
became very emotional when she started talking about family and the fact that
she had lost family members on the flight.1049
Ms. E expressed concern that Bagri’s family would feel she was betraying them.
She told Best, “…at least they don’t know who you are,” and “…in our community,
they know who we are and where we live and where we go.” She also said that
if they want to “…find me, they [know] where I am and they know [where] my
family is.” To this, Best responded that, from the RCMP’s perspective, the threat
of the BK was “minimal” and that their “…day has come and their day has gone
from a political perspective.”1050 At the Inquiry hearings, he explained that
occasionally at the RCMP’s weekly meetings with CSIS, CSIS would provide an
update about the status of the groups, including the BK, and this is likely how he
came to the impression that “…maybe their infrastructure wasn’t as strong as it
once was.” However, while Best stated that the RCMP took Ms. E’s concerns very
seriously, the Force did not attempt to conduct an assessment of the possible
threat to Ms. E. Best expressed the view that perhaps Ms. E was emphasizing her
fear to “…make us [the RCMP] kind of go away maybe.”1051 Protective measures,
which could be implemented to alleviate Ms. E’s concerns for her safety, were
not discussed during the December 1996 interview.
1045
1046
1047
1048
1049
1050
1051
Exhibit P-101 CAF0395, pp. 57, 59-60, 81.
Exhibit P-101 CAF0395, p. 97.
Exhibit P-101 CAF0395, p. 97.
Exhibit P-101 CAF0395, p. 94.
Exhibit P-101 CAF0395, p. 103; Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7879.
Exhibit P-101 CAF0395, pp. 100-102.
Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7877-7878.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Best phoned Ms. E again on January 6, 1997, and after an exchange of
pleasantries, she agreed to meet him on January 9th. She was informed that “our
mutual friend, Willie Laurie” would also be present at the meeting.1052 Laurie had
not heard again about the Ms. E issue since his July 1996 discussion with Best.
Then, in January 1997, he was asked to assist in an RCMP interview of Ms. E.1053
Best met with Laurie at his office in Richmond on January 7, 1997, and provided
him with materials to “refresh his memory.”1054 Laurie’s understanding was that
he was brought in because he was a “friendly face,” as he had worked with Ms. E
in the past. At the time, Laurie was not aware of any contact other RCMP officers
had had with Ms. E since 1990.1055 In fact, he was still under the impression
that, since 1990, Ms. E had consistently relied on her “memory loss” to refuse to
cooperate,1056 and was obviously not aware of Ms. E’s dealings with Maile and
Solvason or of the statement she had provided in 1992.
On the morning of January 9, 1997, Best phoned Laurie to confirm their meeting
at 3 PM. At 2 PM, Best met with then Insp. Gary Bass and some of the other RCMP
members involved in the Ms. E interview, including Sgt. Jim Hunter, at RCMP
Headquarters.1057 While Laurie participated in a briefing session immediately
before the interview when he arrived at HQ, he was not involved in any broader
discussions about the general strategy in approaching Ms. E which may have
taken place beforehand.1058 Laurie felt that his role was to attempt to convince
Ms. E that the RCMP needed to acquire the information she had provided to
him in the past in a form suitable for court, i.e. a written statement.1059 Ms. E
arrived at 3:20 PM1060 and finally left around 9 PM that night.1061 She requested
that the interview not be recorded, as it made her anxious.1062 The interview was
live-monitored in another room1063 so that officers were able to watch what was
going on in the interview room.1064
It is difficult to reconstruct what occurred during the almost six hours that Ms. E
was in the RCMP interview room, as there were only three pages of handwritten
notes by Best produced as a result of the interview, and the notes do not provide
any manner of detailed account of what occurred.1065
Laurie was present throughout the interview, at times in the room with Ms. E and
at other times outside the room.1066 Ms. E was pleased to see Laurie again.1067
1052
1053
1054
1055
1056
1057
1058
1059
1060
1061
1062
1063
1064
1065
1066
1067
Exhibit P-101 CAF0367, p. 2.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7515.
Exhibit P-101 CAF0367, p. 3.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7515-7516.
Exhibit P-101 CAF0399, p. 3.
Exhibit P-101 CAF0367, p. 5.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7516; See also Exhibit P-244, vol. 2
(January 5, 2004 Transcript), p. 55.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7517.
Exhibit P-101 CAF0367, p. 5.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7882.
Exhibit P-101 CAF0367, p. 5.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7885.
Exhibit P-244 (Proceedings at Trial, Day 65), p. 56.
Exhibit P-101 CAF0367, pp. 5-7.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7518.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7517; Exhibit P-101 CAF0367, p. 5.
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According to him, Ms. E also seemed to have a good relationship with Best. But
in terms of providing a statement, “…she tried everything she could think of to
not do this.”1068 Laurie described her reactions during the interview:
MR. LAURIE: I remember on an occasion or two her whispering
to me, “[Willie] help me? I can’t do this. I won’t do this. You
can’t let them do this to me.” And she was very fearful and
you know how she had this worst nightmare for years. It was
materializing in front of her and she was not happy.
MR. KAPOOR: Was she – would you describe her at times of
being distraught?
MR. LAURIE: Yes, and I did so, I think.
MR. KAPOOR: And sobbing?
MR. LAURIE: Occasionally.1069
Portions of Laurie’s testimony relating to his involvement in this interview
were read to Best during his evidence. Best disagreed with Laurie’s description
of events, and said it did not comport with how Ms. E appeared to him over
the course of the interview. He admitted that at some point she did become
emotional, but he explained that he “…didn’t take the emotion that she was
expressing quite in the context that Laurie does in here.” He said that he had not
seen Ms. E whispering to Laurie, though it may have happened. He also admitted
that due to the fact that he was in and out of the room and was consulting with
his colleagues, he was not able to monitor the interview continuously.1070
Laurie explained that throughout the day, the people around Ms. E changed.
Sometimes she was with one of the officers alone, sometimes there were
two.1071 Best explained that he went back to the monitor room at some point
and spoke with Hunter, a polygraphist, who was monitoring the interview with
Ms. E.1072 Hunter realized then that, by coincidence, he actually knew Ms. E from
previous associations, and it was decided to introduce him.1073 He would be a
“friendly face,” like Laurie.1074 The manner in which Hunter’s connection to Ms.
E was discovered by the Task Force was not explained to Laurie, who always
believed that Hunter had been brought into the interview by design due to his
past association with Ms. E.1075
1068
1069
1070
1071
1072
1073
1074
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7517.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7517-7518.
Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7884-7886.
Exhibit P-244 (Proceedings at Trial, Day 65), p. 39.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7887.
Exhibit P-101 Exhibit P-101 CAF367, p. 6, CAF0423, p. 5.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7516-7517; See also Exhibit P-244, vol. 2
(January 5, 2004 Transcript), p. 57.
1075 Exhibit P-244 (Proceedings at Trial, Day 65), p. 57; Testimony of William Laurie, vol. 61, October 15,
2007, p. 7516.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Ms. E was surprised and pleased to see Hunter.1076 There was an “instant rapport”
between them. Best noted at the time that, after discussions with Laurie and
Hunter, Ms. E eventually admitted that she could recall Bagri’s visit on the evening
before the Air India crash.1077 In his testimony before the Inquiry, Best explained
that when Hunter and Ms. E sat down and proceeded with the interview, she
said that she did not want to hold the investigators back any longer and that
what she had told Laurie in the past was true, indicating that she in fact recalled
what she had told him. Hunter then asked her to repeat that to Best and to
Laurie. From Best’s perspective, she was very emotional at the time, but the
emotion was that “…she was expressing that finally, finally, after all of this, there
was relief again that she has finally said it.”1078 She was then asked to provide a
written statement.
While Best’s evidence was that Ms. E was not reluctant during the interview,
he admitted that the effort over five hours was to try to get her amenable to
giving a statement. If she had walked in and said she was prepared to provide
a statement right away, such a long interview would obviously not have been
necessary. According to Best, “…she had tried to distance herself from the
position she had initially taken with Laurie and our objective was to get her
back on track.”1079
When asked about the length of the interview and the possible effect that might
have had on Ms. E, Best stated that it:
…seems or may seem from the outside looking in, that is an
inordinate amount of time. All I can say is that during that time
there would have been breaks. There may have very well even
been a – we may have even brought in sandwiches. I simply
don’t recall.1080
Best asserted that the interview room was “quite comfortable.” He stated that
Ms. E “…was free to come and go as she pleased.”1081 Ms. E apparently had a
different perception. At the Malik and Bagri trial, she testified that “…she was
at the police office for hours” and that she “…believed that she would not be
permitted to leave” until she signed a written statement.1082
The result of the January 1997 interview was a one-page typed document, which
was signed by Ms. E and witnessed by Best and Laurie.1083 Ms. E later testified
that she signed this statement “under great pressure.”1084 The statement consists
1076
1077
1078
1079
1080
1081
1082
1083
1084
Exhibit P-101 CAF0423, p. 5; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7517.
Exhibit P-101 CAF0367, pp. 6-7.
Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7888-7889.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7910.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7890.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7883.
R. v. Malik and Bagri, 2004 BCSC 149 at para. 26.
Exhibit P-101 CAF0397.
R. v. Malik and Bagri, 2004 BCSC 149 at para. 26.
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of seven questions and answers. The first question, to which Ms. E answered
in the affirmative, was “…the statement/information you provided to Willie
Laurie during your numerous meetings with him over the past years are true
and accurate, to the best of your knowledge.” She also agreed that during her
first meeting with Best she was “…very anxious and scared to reveal all [her]
knowledge concerning Mr. Bagri,” and confirmed that Bagri asked to borrow the
car the night before the Air India crash to take some luggage to the airport.1085
She said she did not think she had lent it to him. He might have had a key, she
could not recall.1086 She also stated that Bagri returned to her home at night and
told her that she knew secrets that could put him in trouble.1087
While Ms. E agreed in the written statement that her past statements to CSIS had
been true, she did not have the opportunity to review them and, in fact, Laurie
did not have his reports with him during this interview,1088 and had not even
looked over them since 1994.1089 In fact, their content was not really discussed
with Ms. E in detail because it was believed that Ms. E “knew precisely” which
facts she was being asked to confirm, as she “…had gone through them so many
times” with Laurie.1090 Laurie admitted that, at the time of this 1997 interview, he
could recall “the basics” of what Ms. E had told him back in 1987-1989, but that
it is “…difficult to recall the details without the benefit of the reports.”1091 Laurie
was disappointed with the results of the interview:
MR. KAPOOR: How did you feel by the end of the interview
as to how it went and where she was at and from your
perspective, having managed her as your source, back in ’87 all
the way to this, 10 years later?
MR. LAURIE: Well, I felt a number of things, sir. I was quite
disappointed that this was the result. It was an unpleasant
experience and hopefully after this much time there would
be a better result than the one-page statement of this calibre.
Throughout the afternoon there were periods where I felt
sympathy for her because she had placed her trust in me and
it was misplaced. There were times when it was frustrating
because we made a very good case for the need to have her
cooperation. The original reason for her cooperation was the
families. We needed this. And she felt that, but she needed to
protect her children, and she was going to.1092
1085
1086
1087
1088
1089
1090
1091
1092
Exhibit P-101 CAF0397.
Exhibit P-101 CAF0367, p. 7.
Exhibit P-101 CAF0397.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7887.
Exhibit P-244 (Proceedings at Trial, Day 67), p. 58.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7519.
Exhibit P-244 (Proceedings at Trial, Day 67), p. 59.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7519-7520.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Shortly after the January 1997 interview, Ms. E went to a psychiatrist and said
that she was “suffering from stress” and that “…the police were putting words
in her mouth and making her sign documents, the nature of which she did not
appreciate.”1093
Continued Unsolicited Contacts, the “Grocery Store Operation” and the
Hayer Murder
After the January 1997 interview, Best continued to contact Ms. E to “take the
temperature,” to make sure she had not “gone offside,” and to give her the
opportunity to address concerns she may have had.1094 However, signs began
to appear that Ms. E was once again pulling away.
On January 27, 1997, Best phoned Ms. E at her residence. She indicated that
she had discussed with her husband the last meeting with the RCMP and that
she was under “considerable stress.” She advised that her husband wanted
to speak to Best. Ms. E’s husband initially agreed to meet Best at the RCMP
Headquarters, but later phoned Best to cancel. He expressed “…concern that his
wife has been under considerable stress and feels under considerable pressure
to recall the events in question,” and indicated that it was their wish to “…avoid
further contact with [the RCMP] until Court.” Best suggested that Ms. E and her
husband take some time to “cool down” and make note of “…any concerns they
may have.”1095
Just over two weeks later, on February 14, 1997, Best showed up, unannounced,
at Ms. E’s home where she was working.1096 Ms. E was busy with an employee
and took Best to the family room for a private conversation. Best indicated that,
while he “could empathize” with her concern about being a witness, they “…
both know that she recalls the events of the night in question.” Best indicated
that he was prepared to discuss any concerns she and her husband had, but that
unless he “…specifically knew what her concerns are” he was unable to address
them.1097 She suggested that Best call to arrange a time convenient for her and
her husband.1098
Best phoned and spoke with Ms. E’s husband the next month, emphasizing
the importance of Ms. E being relaxed and prepared for her testimony. He
asked whether he knew about the nature of the information Ms. E held. Ms.
E’s husband responded that he believed he knew. Best indicated that Ms. E’s
evidence was very important to the case and that her requirement as a witness “is
inevitable.” He stated that he wanted to help reduce their anxiety by addressing
any concerns they might have. He suggested they get together in the coming
weeks.1099
1093
1094
1095
1096
1097
1098
1099
R. v. Malik and Bagri, 2004 BCSC 149 at para. 27.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7890.
Exhibit P-101 CAF0423, p. 6.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7892.
Exhibit P-101 CAF0367, p. 14.
Exhibit P-101 CAF0423, p. 7.
Exhibit P-101 CAF0423, pp. 7-8.
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It appears that there was then no further communication until a year later, on
March 2, 1998, when Best, once again, arrived at Ms. E’s residence unannounced.
Ms. E and her husband invited Best to have coffee with them and they informed
him that after the last meeting, Ms. E had sought legal counsel. Ms. E explained
that she had been advised that she did not need to speak to police and that
if she “…didn’t know anything that could help us, she wouldn’t have to say
anything in Court.” She stated that “…short of arrest, she did not wish to
cooperate further.” Best indicated that it was “…their prerogative to seek legal
counsel,” but that Ms. E had given signed statements as to her knowledge of
events and that her failure to respond to a subpoena would “…result in her
arrest and compulsory attendance before the Court.” He added that proceeding
in this manner “…would not serve either of our interests.”1100 Best testified that
his comments about the subpoena and possible arrest were not “…said in any
kind of a threatening manner,” and that he was simply explaining what would
happen if she did not show up.1101
In response to Best’s comments, Ms. E and her husband indicated that they
were surprised, as they did not perceive that her evidence was important.
Best assured them that it was, indeed, critical. He then suggested that Ms. E
“…would be well advised to provide any additional information she may have
relative to our case as failure to provide same would not serve either of our
interests.” He again emphasized that it was “imperative” for her to disclose all
the information she might have “…vis-à-vis her association with Bagri et al.”1102
In his testimony before the Inquiry, Best said this conversation occurred in the
context of “friendly” and “cordial” relations.1103
Despite these “amicable” relations, it appears that the RCMP’s confidence in Ms.
E’s willingness to meet voluntarily was shaken. Two months later, in May 1998,
Best used the RCMP surveillance team, “Special ‘O’,” to coordinate a “chance”
meeting with Ms. E as she was out grocery shopping.1104 Best testified that
he saw this as an opportunity to meet Ms. E away from her employees and to
address any concerns that she might not have wanted to discuss in the presence
of others in her home.1105
Ms. E was “surprised” to see Best at the grocery store, but her demeanour was
“cordial.” She confirmed that she recalled that Bagri had come to her house
requesting to borrow her vehicle for the purpose of taking the baggage to the
airport. She did not recall whether she had given him the car or not.1106 Best
explained before the Inquiry that the discussion about Ms. E’s visit with Bagri
occurred “…en route from the grocery store to her vehicle,” as he assisted her
with her groceries.1107
1100
1101
1102
1103
1104
1105
1106
1107
Exhibit P-101 CAF0423, pp. 7-8.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7894.
Exhibit P-101 CAF0423, pp. 8-9.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7894.
Exhibit P-101 CAF0423, p. 9.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7895.
Exhibit P-101 CAF0423, p. 9.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7896.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Ms. E advised Best that she was upset that Bagri had spread rumours that he
had been having an affair with her in 1984/85, and that she sometimes felt
compelled to call him, but did not make the call because she feared “…he would
realize she is cooperating with [the RCMP].” Best again pressed Ms. E, stating
that “it is essential” that the RCMP know the “full extent” of her knowledge of
Bagri’s, and others’, activities pertaining to the Air India bombing.1108
The next time Best dropped in on Ms. E1109 was about six months later, on
November 25, 1998, one week after the shooting murder of Tara Singh Hayer.1110
It was the position of the Crown at the trial of Malik and Bagri that the motive for
the earlier attempted murder of Hayer in 1988 was the fact that he was capable
of implicating Bagri in the Air India bombing.1111 After consultation with S/Sgt.
John Schneider, it was decided that Best should contact Ms. E to discuss any
security concerns she might have.1112
When Best arrived at Ms. E’s residence, she was working and had four employees
assisting her. She advised Best that she was busy and invited him to speak
with her in private. He suggested that Ms. E’s husband join them, but Ms. E
said that he was too busy.1113 Best advised that the purpose of his visit was to
discuss any security concerns she might have. This was the first time that the
RCMP contacted Ms. E for the express and sole purpose of discussing her safety
concerns. It was also the first time that specific examples of precautions that
could be taken were mentioned to Ms. E.
Ms. E was aware of the Hayer murder. Best cautioned that the RCMP did not
know the motive behind the shooting, but that Hayer had published many
articles that were “…very controversial within the community,” and such articles
included speaking out against the fundamentalists and their involvement in the
Air India and Narita bombings.1114
Ms. E told Best that if “…anything happens to her it is the responsibility of the
police because they have brought her into this situation.”1115 He replied that
she was “…entitled to her opinion,” but that it was not one he shared because
“…she had become involved with these people (Bagri) on her own volition.”
Best stated that “as a reasonable person,” he felt in his heart that she was privy
to much more information than she had told the RCMP because of her “close
association” with Bagri.1116
Ms. E was concerned about whether Bagri knew that she was a witness; Best
stated that, “to his knowledge,” Bagri did not, and that the police would not have
1108
1109
1110
1111
1112
1113
1114
1115
1116
Exhibit P-101 CAF0423, p. 9.
Exhibit P-101 CAF0423, p. 9.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7896.
Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement – Canada’s Response to Sikh
Terrorism,” p. 50.
Exhibit P-101 CAF0368, p. 2.
Exhibit P-101 CAF0423, p. 9.
Exhibit P-101 CAF0423, p. 9.
Exhibit P-101 CAF0423, p. 10.
Exhibit P-101 CAF0368, p. 5.
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told him. At the time, however, there is no indication that the RCMP took steps to
verify the potential that those close to Bagri were aware of Ms. E’s participation
– for example, because she was often approached by the RCMP in front of her
employees or even in a public place like the grocery store – and what this could
have meant for the threat to Ms. E.
Best “…briefly discussed security cameras, silent alarms and the witness
protection program with [Ms. E].” She declined the offer and advised that “…she
is not worried for herself as if people wish to kill her, they will – it’s God’s will.” Best
advised that, should she change her mind concerning security arrangements,
she could call him at any time.1117 She clarified that she had received no threats
concerning herself or her children.1118
A few weeks later, just before Christmas, Best again attended Ms. E’s residence
and dropped off a box of sweets.1119 Ms. E advised that she was very busy and
had no time to talk. Best testified that the purpose of the visit was to let her
know that the RCMP was still interested in her and that they were concerned
with her well-being.1120 Ms. E told him that she would be busy until mid-January
1999. Best said he would be back in touch with her then and, in the meantime,
she could contact him anytime.1121
Early the next year, on January 18, 1999, Best went to the residence of Ms. E
and gave her a letter authored by Crown counsel. Best impressed upon Ms. E
the need to meet with Crown counsel. She agreed but expressed concern that
people were going to try to make her say things she did not wish to say. Best
assured her that she would not be forced to say things that were not true. Three
days later, Ms. E advised that she would be unable to attend the scheduled
meeting. Best phoned Ms. E’s residence again on January 20, 1999, and Ms.
E’s husband answered. He advised that Ms. E had been to see her lawyer and
had been instructed to refer any calls from Crown counsel or Best to Ms. E’s
lawyer.1122
In September 1999, Ms. E was interviewed by Crown counsel. She indicated that
she did not recall “…any discussion about luggage going to the airport” during
Bagri’s visit, and said that “…the police had been pressuring and bribing her, as
well as forcing her to sign statements.”1123
1999: Access to CSIS Materials and Laurie’s Written Statement
After participating in the January 1997 interview with Ms. E, Laurie again did not
hear about the issue for about two years. He was contacted by Best in January
1999 and asked to provide a statement about his involvement with Ms. E and
1117
1118
1119
1120
1121
1122
1123
Exhibit P-101 CAF0423, p. 10.
Exhibit P-101 CAF0369, p. 2.
Exhibit P-101 CAF0369.
Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7897-7898.
Exhibit P-101 CAF0369, p. 2.
Exhibit P-101 CAF0423, pp. 10-11.
R. v. Malik and Bagri, 2004 BCSC 149 at para. 29.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
the Air India investigation in preparation for the prosecution of Bagri.1124 He
prepared the statement on January 27, 1999, and provided it to the Crown.1125
He was not provided with a copy of his CSIS reports in order to prepare this
statement and did not try to gain access to the reports.1126 As a result, the
statement contained several material differences with the information found in
the actual reports, and some contradictions.
In his statement, Laurie wrote that he decided to recruit Ms. E as a source in
order to obtain information about Bagri. He explained that she initially resisted
providing “sensitive information,” as she was afraid to reveal it to “any official,”
and had previously rebuffed the police by claiming that she knew nothing.
However, she was comforted by the fact that Laurie did not represent the police
and was not conducting a police investigation, but was only informing the
Government. She was also “…haunted by the knowledge that she held valuable
information,” and expressed feelings of sympathy for the families of the victims
of the bombing. As a result, she confided in Laurie “…many details that [he] had
sought concerning Ajaib Singh Bagri and Talwinder Singh Parmar.” According
to Laurie’s statement, Ms. E made it “…abundantly clear that her recollection
of events was crystal clear and etched forever in her memories.” He added that
she recounted the same events with the same words on subsequent visits. He
expressed the view that she then “…feigned poor memories” when contacted by
the police later in order to protect herself and her family by avoiding to appear
as a witness in the prosecution of Bagri.1127
Laurie then proceeded to set out the information obtained from Ms. E about
her acquaintance with Bagri. Unlike the information found in the CSIS reports,
he stated that both Bagri and Parmar visited Ms. E, used her car, used her
telephone and even held meetings at Ms. E’s residence. He further stated that
he deliberately chose not to press Ms. E about the closeness of her relationship
with Bagri as “…she seemed reluctant to speak about it” and he did not need
intelligence on that topic. About the warning from Ms. E’s family to stay away
from Bagri and Parmar, he stated that Ms. E was given this warning because
they were “dangerous men,” and he added that this perception was common in
the Sikh community. When relating Bagri’s request to borrow Ms. E’s car, Laurie
specified that it was the night before the Air India bombing, that Ms. E was
awakened by Bagri and that she could see a car in her driveway, but could not
identify the car or any of the passengers. Laurie added that Ms. E was pressed
to find out if the car was blue and if the passengers had tall turbans, but could
not answer. This information was not found in the CSIS reports. He related that
Bagri had told Ms. E that Parmar had driven him there, and that when he insisted
on obtaining Ms. E’s car, she told him she needed it for work the next day and
he said that “…only the luggage was going on the plane and that he was not
going with it.”1128
1124
1125
1126
1127
1128
Exhibit P-101 CAF0399, p. 4; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7520.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7520-7521; Exhibit P-101 CAF0399.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7521.
Exhibit P-101 CAF0399, pp. 1-2.
Exhibit P-101 CAF0399, pp. 2-3.
179
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Laurie then explained that when Ms. E learned of the bombing the next day,
she knew that Bagri and Parmar were responsible and that she confronted both
men’s wives about it and was told that it was the victims’ own fault for flying
Air India in spite of the BK warnings. The CSIS reports only recorded such a
confrontation with Bagri’s wife, not Parmar’s. Laurie recounted Bagri’s statement
to Ms. E, that they shared “a couple of secrets” and her conclusion that he would
kill her if she revealed their involvement with one another and his involvement
in the bombing. Again, there were some differences with the information found
in the CSIS reports. Laurie then went on to describe Ms. E’s emotional state
during their interviews and the fact that she was reluctant to meet with him and
“…go over the same ground again.” He specified that no other CSIS member
met with Ms. E.1129
In his statement, Laurie related his 1990 involvement in discussions with the
Air India Task Force members after he had rejoined the RCMP. Interestingly, his
recollection of the interview with Ms. E, conducted by Rautio and himself, was
that Ms. E was “…very shaken that the police were now making enquiries and
that [Laurie] was one of them,” that they “…spoke at length about Ajaib Singh
Bagri and Air India,” but that Ms. E “…feigned memory loss and was not helpful.”
Laurie then explained how he met with CSIS at the request of the RCMP Air India
Task Force in 1994 and reviewed his source reports, which refreshed his memory
but did not lead to the finding of new information that the RCMP considered
evidentiary.1130
Finally, Laurie recounted his participation in the 1997 interview with Ms. E. He
stated that since her discussions with him in the 1980s, she “…had relied upon
her ‘memory loss’ to deflect efforts to secure her cooperation,” and that she was
again reluctant to cooperate, but ultimately admitted that she had not really
lost her memory and that she remembered everything that she had told Laurie.
Laurie explained that Ms. E was “most upset” about her involvement, but still
relieved that her information was out. He described her as a “conscientious,
ethical and honest” person. He noted that she signed a statement which
“validated” the information she had provided to him while he was with CSIS.1131
Laurie’s statement raised two issues for the eventual prosecution of Bagri. On
the one hand, it created inconsistencies which could weaken the Crown’s case,
because it was prepared from memory only, many years later. Not only did Laurie
not have access to his CSIS reports, but he obviously did not consult, or was not
given access to, the notes and report for the October 1990 interview; hence his
erroneous recollection that Ms. E claimed memory loss during that interview.
On the other hand, the statement raised the possibility that Laurie had made
additional inquiries of Ms. E during the CSIS interviews, for example, questioning
her about the car parked in her driveway when Bagri made his request, which
Laurie recalled in 1999, but did not record in his reports at the time. Since the
reports were meant to transmit the intelligence which could be obtained from
Ms. E and not to record the facts that she did not know, it is possible that large
1129 Exhibit P-101 CAF0399, p. 3.
1130 Exhibit P-101 CAF0399, p. 3.
1131 Exhibit P-101 CAF0399, p. 3.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
portions of the interviews remained entirely unrecorded. From an evidentiary
perspective, this left Laurie’s memory, which had been demonstrated to be
less than perfect, as the only remaining evidence of the manner in which the
interviews unfolded and of Ms. E’s responses to precise questions.
Laurie testified at the Inquiry that he had a vague recollection of wanting to
consult his reports to refresh his memory. He explained that he did not approach
CSIS directly for this purpose:
MR. KAPOOR: Did you have any discussions directly with CSIS
at all about this?
MR. LAURIE: I don’t believe so. I think that they did it for
me. Meeting independently, contacting CSIS and asking for
anything, is a non-starter. That just doesn’t happen.1132
In February 1999, the RCMP finally requested that Laurie be permitted to review
the CSIS file on Ms. E in order to prepare for trial. At the time, the RCMP and the
Crown viewed Ms. E as an important potential witness in the Bagri prosecution,
and the Crown was considering using the information she provided to CSIS to
challenge her, as she was being uncooperative and claiming not to recall details.
The Crown wanted to interview Laurie, who in turn wanted to use his reports
to refresh his memory. The CSIS BC Region’s initial reaction to the request
was to note that this was reminiscent of the earlier 1994 request to review the
reports, which had been the result of concerns that not all information had
been disclosed to the RCMP. In discussions with the Crown, the Region refused
to allow counsel to review the reports with Laurie. CSIS then learned that the
reports that were reviewed could be subject to disclosure to the defence, as they
were used to refresh Laurie’s memory, but the BC Region explained that this
“jeopardy” existed regardless of whether the reports were reviewed again now,
since they were already reviewed in 1994. The Crown counsel explained that he
would require copies of the reports reviewed by Laurie to refresh his memory,
and explained that information provided by CSIS in advisory letters could not
replace witness notes in court. The BC Region could make “no commitment” to
provide access to the reports. Crown counsel asked for an urgent response from
CSIS, as the Attorney General of British Columbia had to make a decision about
the charges to bring by the end of the month.1133
The CSIS BC Region wrote to CSIS HQ and suggested they allow Laurie to review
only the reports he authored, under the supervision of a CSIS representative.
The Region added that the reports could then be vetted and prepared in “…
expurgated (i.e., headers and trailers) version for disclosure purposes,” but not
provided to the Crown immediately. Instead, the Region suggested that Crown
counsel be asked to identify the documents he needed and to advise of when
they would have to be provided.1134
1132 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7522.
1133 Exhibit P-101 CAF0400, pp. 1-2.
1134 Exhibit P-101 CAF0400, p. 2.
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In response, CSIS HQ indicated that Laurie would be allowed to review the
“source file notes” and operational reports about Ms. E to prepare for his interview
with the Crown. HQ was preparing a binder with the relevant documents for
Laurie, as was being done for other potential witnesses at the Air India trial.
The documents were to be in “expurgated form” even for Laurie’s review, so
HQ had no objection to allowing Crown counsel to review them as well. If
counsel wanted to obtain a copy of the binder after reviewing the documents,
HQ indicated that a written request would be necessary. CSIS HQ agreed that
Laurie’s review of the expurgated materials should take place in CSIS offices,
under the supervision of Bill Turner from the CSIS BC Region.1135 Laurie believed
that the documents he reviewed were, in fact, redacted.1136 This would not be
a problem in general, as he would be able to recall the redacted information
within the text, but it could be a problem if the investigator’s comments were
blacked out (as they were in the versions of the reports initially produced by the
Government to this Inquiry),1137 as he would need to review those.1138
Ultimately, CSIS allowed a fairly large proportion of its information about Ms. E
to be made public in the Malik and Bagri trial. Laurie testified about his contacts
with Ms. E while at CSIS, and his reports were introduced into evidence, albeit
in redacted form. However, policy decisions were still slowly evolving at CSIS
shortly before the trial. In May 1999, CSIS expressed concern about the fact that
the Senior Crown Counsel for the Air India Task Force had identified Ms. E as a
former informant of CSIS, during a briefing to the Assistant Deputy Attorney
General of BC in the context of a report about the charge approval process.1139
Concern was expressed that the briefing note, though marked “confidential”,
could be subject to disclosure to defence.1140 Clearly, CSIS had not understood in
1999 that since Ms. E was to testify, her involvement with CSIS would necessarily
be revealed.
In 2001, CSIS had to provide additional disclosure about Ms. E pursuant to a court
order.1141 At the time, CSIS had disclosed 10 reports about Ms. E, but needed to
research other reports relating to her and to disclose many of the documents
found in her source file. Once the reports were identified, they were vetted prior
to being disclosed.1142
2001: CSIS Provides Additional Information About Ms. E Ten Years Later
In 1991, Stevenson had authored a CSIS memorandum which discussed the
effect that persistent RCMP contact may have had on Ms. E. The information in
the memorandum indicated clearly that Ms. E did not want to have contact with
the RCMP and that she was complaining about the manner in which the RCMP
1135
1136
1137
1138
1139
1140
1141
1142
Exhibit P-101 CAF0342, pp. 1-2.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7524.
See Volume One of this Report: Chapter II, The Inquiry Process.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7524.
Exhibit P-101 CAF0427.
Exhibit P-101 CAF0427.
Exhibit P-101 CAF0402, CAF0403.
Exhibit P-101 CAF0403.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
was approaching her.1143 The memorandum also contained information which
indicated that Ms. E had admitted that she had some knowledge relevant to
the Air India investigation and that she had said that she would not testify, for
fear that her children would be murdered. At the time, CSIS had decided not to
report any of the information in the Stevenson memorandum to the RCMP.1144
Over ten years later, in November 2001, Best was finally provided with a copy of
the CSIS memorandum.1145 Bass, who had been overseeing the RCMP E Division
Air India investigation since 1995, explained that this information was clearly
important for the Force, as it would tend to “…corroborate the value of the
source’s information and does give indication of its truthfulness.”1146
Bass added that it would not necessarily have changed anything if the
information had been shared earlier, because the RCMP already “generally knew
this.”1147 However, some of the details in the Stevenson memorandum were not
known to the investigators. For example, the fact that Ms. E was concerned
because RCMP officers spoke to her within earshot of others, and the fact
that she did not appreciate the RCMP’s unannounced visits to her residence
and place of business1148 were not known to the Task Force. As a result, Best
continued to adopt a similar approach in his contacts with Ms. E from 1996
onward. He also admitted that he had on occasion attended Ms. E’s residence
and spoken to her with employees present, though he stated that “…when it
came down to matters of significant issue,” Ms. E always invited him to a private
room.1149 However, the repeated, unexpected and public arrival of Best would
have, at the very least, drawn the attention of onlookers, and may have opened
up Ms. E to uncomfortable questions and speculation. In addition, there was
the possibility that conversations, though held in “private,” may still have been
heard by others.
Had the RCMP known about Ms. E’s 1991 complaints, the investigators might
have been better able to appreciate the impact their approaches could have on
Ms. E’s well-being and to devise better strategies for approaching Ms. E. Such
strategies might have helped the RCMP modify its patterns of contact which
were ineffective and, moreover, detrimental to the RCMP’s main purpose of
securing the full and consistent cooperation of Ms. E.
2000-2004: Further RCMP Interactions with Ms. E
It does not appear that relations between Ms. E and the RCMP improved with
time.
Bagri was arrested in October 2000. On October 10, 2000, the lawyer for
Ms. E, Arne H. Silverman, wrote to Crown counsel indicating that he did not
1143
1144
1145
1146
1147
1148
1149
Exhibit P-101 CAF0384.
Exhibit P-101 CAF0425.
Exhibit P-101 CAF0429.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11269.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11269.
Exhibit P-101 CAF0384, CAF0425, p. 2.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7895.
183
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intend to make an application based on informer privilege, as his client took
the view that “…she is not an informant.”1150 He asked that any further written
communications for Ms. E be directed to his office. 1151 He also wrote that, while
Ms. E had instructed him that she would attend in court pursuant to a subpoena,
she would not attend any pre-trial interviews. Silverman wrote that he had
conveyed to Ms. E the offer that the Crown’s office made to provide her with “…
whatever form of protection she might consider she is in need of,” and that Ms.
E instructed that “…she did not consider herself to be in need of protection of
any kind.”1152
In May 2001, Best served a subpoena on Ms. E for her to attend in court as a
witness.1153 She was again served with a subpoena in February 2002, by Best
and Cpl. Ryan.1154 On this second occasion, Ms. E told Best that she had been
advised by her lawyer not to speak with him. 1155
Ms. E testified at Bagri’s trial in December 2003. On March 5, 2004, Best, now an
inspector, visited Ms. E as a result of a recent ruling by Justice Josephson. The
ruling held that certain statements she had made to Laurie would be entered
into evidence. Best and Cpl. Glen Little went to Ms. E’s residence and met with
Ms. E as she was driving away. Best asked if she was aware of the recent ruling,
and she was not. She stated that she was in a rush to get to the bank and would
return to speak with the officers. They waited at her residence for about 25
minutes before Ms. E returned. Best advised that the purpose of the visit was to
discuss any security concerns Ms. E had in view of the recent ruling. He advised
Ms. E that she should speak to her lawyer. He also said that he was not aware of
any new or “imminent threat.” In response to this statement, Ms. E asked, “…you
really still care about my security?” Best advised that his position and that of the
RCMP had not changed – if she had security concerns or if “…we were aware of
any immediate danger, we would take appropriate action.”1156
The next day, Best was paged by Silverman, Ms. E’s lawyer, who informed him
that Ms. E was with him and was confused about the purpose of the officers’
visit the day before. Silverman advised Best that Ms. E was not seeking, and
would not be seeking, security assistance from the RCMP at this time, and that
he would be seeking from the Court a permanent ban on the publication of
her name. Best agreed that a ban sounded like a “good idea,” but indicated
that such a ban would not protect her from people who know her. Best agreed
that the publication ban would still “…protect her from any extreme elements,”
assuming these “extreme elements” did not already know Ms. E’s identity.1157 He
stated that “…there is always a threat out there on this particular file.” At the
1150
1151
1152
1153
1154
1155
Exhibit P-101 CAF0822.
Exhibit P-101 CAF0822.
Exhibit P-101 CAF0822.
Exhibit P-101 CAF0423, p. 11.
Exhibit P-101 CAF0370, p. 2.
Exhibit P-101 CAF0370, p. 2. Similarly, in October of that year, when a subpoena was served by Best
on Ms. E in the presence of her lawyer, the lawyer informed Best that his client would not be
answering any questions Best may have: Exhibit P-101 CAF0370, p. 4.
1156 Exhibit P-101 CAF0372, pp. 2-4.
1157 Exhibit P-101 CAF0372, pp. 5-6.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
request of Ms. E’s lawyer, and after consulting with his superiors, Best gave his
consent to the lawyer to rely on his statement about the ever-present threat in
order to support his application for a publication ban on Ms. E’s name.1158
Prior to this discussion with Ms. E’s lawyer, the RCMP did not offer to contact
the Crown to suggest that Crown counsel apply to the court for a permanent
publication ban.1159 Instead, Ms. E was left with the onus of personally
applying for the ban, with both the Crown and the defence taking no position
in support or in opposition to the application.1160 Justice Josephson granted
the application, noting that Ms. E’s “…ongoing security concerns rise beyond
the merely speculative,” and that the risk did not abate “…simply because she
has completed her testimony, as retaliation is a strong element of the risk.” He
noted, however, that Ms. E’s counsel had indicated that her concerns did not
at that time relate to Bagri himself, who had been aware “…of her status as a
Crown witness for a number of years.”1161
2005: The Result at Trial
After his arrest in October 2000, Bagri was refused bail and was charged, along
with Malik and Reyat, of first-degree murder and conspiracy in relation to the
Air India and Narita bombings.1162 Preliminary motions were heard beginning in
2001. The actual trial began in April 2003, and lasted until December 2004.
Ms. E Loses her Memory
In December 2003, Ms. E was called to testify at the trial pursuant to the
subpoena served on her in 2002. At the time, she was considered to be “…
one of the Crown’s primary witnesses in its case against Mr. Bagri.”1163 Although
the RCMP had discounted Ms. E as not possessing useful information in 1985,
and had then concluded that she was unreliable in 1990, Bass testified that by
the time the case went to court, he was satisfied, having had “…quite a bit of
personal involvement with this issue,” that what Ms. E could say was valid and
that it was consistent with what she had been saying all along, with no major
discrepancies. In part, this impression was based on dealings Bass had had with
Hunter, “…another member of the RCMP who knew this individual personally,
fairly well.” Bass was confident in the end that Ms. E was “reluctant, but
reliable.” Referring back to the 1990 conclusion of unreliability, Bass explained
that it is not uncommon, especially in a case such as this where there is little
corroboration available, to have disagreement between officers as to a witness’s
credibility.1164
1158
1159
1160
1161
1162
1163
1164
Exhibit P-101 CAF0373, p. 3.
Exhibit P-101 CAF0372, p. 5.
R. v. Malik and Bagri, 2004 BCSC 520 at para. 2.
R. v. Malik and Bagri, 2004 BCSC 520 at para. 7.
R. v. Malik and Bagri, 2001 BCSC 2; R. v. Malik and Bagri, 2005 BCSC 350 at para. 6.
R. v. Malik and Bagri, 2004 BCSC 149 at para. 4.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11265-11266.
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In court, Ms. E testified about how she came to know Bagri in India and to
associate with him and his family in Canada in the early 1980s. About his request
to borrow her car, she could only recall that he visited her at her residence late
one evening in June 1985, and asked to borrow her car. She refused and Bagri
left. In her testimony, she initially said that she thought the visit occurred “a few
days” before the bombings, but then stated that she was not sure whether it was
before or after the crash. She “consistently maintained” in cross-examination
that she thought the authorities knew the date of Bagri’s visit “…because of CSIS
surveillance.” She also agreed, again in cross-examination, that she could only
recall one late-night visit by Bagri to borrow her car in June 1985, but, upon reexamination, stated that there could have been other visits in June but she did
not remember them.1165
Ms. E explained in her testimony at trial that Bagri returned to visit her after the
bombing, including at least once in 1985, when he brought her medicine.1166
Asked whether Bagri had “…said anything to her that she perceived to be
a threat,” she stated “absolutely not.” She also indicated that she had no
recollection of Bagri talking to her about secrets.1167 She explained how her
relations with the Bagris deteriorated after the Air India bombing because of
Mrs. Bagri’s comments. She stated that she knew that Bagri was a BK member
who associated with Parmar, and that Bagri had told her that he had met Mr.
C, another Crown witness at trial, in New York.1168 Finally, Ms. E indicated that
she had heard “…talk in the community” after the bombing about who was
responsible, which named both the Indian Government and the BK, including
Parmar and Bagri specifically, as well as rumours about the possibility that
Parmar and Bagri were responsible for taking the suitcases to the airport.1169
The Crown attempted to use the statements she had provided in the past to
CSIS and the RCMP to refresh Ms. E’s memory, in particular about the content
of her June 1985 conversation with Bagri when he asked for her car, about the
timing of that request, about Bagri’s use of her telephone and about his mention
of sharing secrets during a subsequent visit. However, Ms. E “…continued to
profess, for the most part, a lack of recall.”1170 In fact, Justice Josephson concluded
that while Ms. E initially provided a “sanitized version” of the “core story” about
Bagri when questioned by the Crown, “…she quickly adopted a position of lack
of memory once her prior statements were put to her.”1171
The Crown brought an application to have Ms. E declared an adverse witness.
This would have enabled the Crown to cross-examine Ms. E, and it was intended
to support the Crown’s next application to have the content of Ms. E’s past
statements admitted into evidence. A hearing was held, where Laurie and
the RCMP officers who interviewed Ms. E over the years testified about their
1165
1166
1167
1168
1169
1170
1171
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 5, 6, 966-968.
R. v. Malik and Bagri, 2004 BCSC 149 at para. 6; R. v. Malik and Bagri, 2005 BCSC 350 at para. 969.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 969.
R. v. Malik and Bagri, 2004 BCSC 149 at paras. 6, 8.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 971.
R. v. Malik and Bagri, 2004 BCSC 149 at paras. 9-10.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 73.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
dealings with her. Ms. E also testified about her dealings with the authorities.1172
Generally, she could not recall what she had told Laurie and the various RCMP
officers who interviewed her, but indicated that she was telling them the truth
“…as she considered it at the time.”1173 With respect to Laurie, she confirmed that
the events were fresh in her mind when she spoke to him and said that “…she
always spoke the truth when speaking with Laurie, with whom she developed
a friendship.”1174 About the written statement provided to Maile, Ms. E indicated
the content “…could have been true at the time,” but said she did not presently
recall whether this was the case. Ms. E maintained that she had generally been
pressured by police and forced to sign written statements.1175
Justice Josephson found that Ms. E’s memory loss, about the key events
surrounding Bagri’s visit, his subsequent threat and her beliefs about his
involvement in Air India, was, in fact, feigned. He also concluded that her
allegations about RCMP behaviour, at least as far as Maile was concerned, were
false. However, Justice Josephson concluded that Ms. E was not an adverse
witness, because her testimony was not positively harmful to the Crown’s case
and did not contain substantial inconsistencies with her previous statements.
He added that, given the significant cooperation she had extended to police
over the years, Ms. E could not be considered hostile to the prosecution or to
the authorities.1176
The Crown then sought to have some of Ms. E’s previous statements admitted
into evidence to prove their contents.1177 Those statements included: the ones
made during the first two interviews with Laurie; the ones made during the two
1990 RCMP interviews and during the 1991 interview with Maile and Solvason;
the May 11, 1992 statement to Maile; and Ms. E’s statement to Best during the
December 1996 interview.1178 Another hearing was held. Ms. E testified again in
these proceedings, as well as in the trial subsequently. Her last day of testimony
was April 16, 2004.1179
Laurie testified about his interviews with Ms. E. He admitted that, during the
first interview, he had at some point said that he knew of Bagri and Parmar
and that they were members of the BK, but said that he otherwise “…avoided
supplying the Witness with information since it would have been contrary to
the intelligence gathering purpose of his visit.”1180 The RCMP officers involved
in the other relevant interviews also indicated they did not supply Ms. E with
information or pressure her.1181
1172
1173
1174
1175
1176
1177
1178
1179
1180
1181
R. v. Malik and Bagri, 2004 BCSC 149 at paras. 1, 10.
R. v. Malik and Bagri, 2004 BCSC 149 at paras. 11-21.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 24.
R. v. Malik and Bagri, 2004 BCSC 149 at paras. 23, 26.
R. v. Malik and Bagri, 2004 BCSC 149 at paras. 63-72.
R. v. Malik and Bagri, 2004 BCSC 299.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 12.
R. v. Malik and Bagri, 2004 BCSC 520 at para. 1.
R. v. Malik and Bagri, 2004 BCSC 299 at para. 16.
R. v. Malik and Bagri, 2004 BCSC 299 at paras. 28-54.
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Justice Josephson concluded that the circumstances surrounding Ms. E’s
statements to Laurie provided sufficient guarantees of reliability to make them
admissible into evidence. He noted that the events described were simple, and
would be remembered, and that the promise of confidentiality negated the
possibility of fabrication for the purpose of harming Bagri. Justice Josephson
ruled, however, that the statements provided to the RCMP could not be
considered sufficiently reliable, because “…no longer could [Ms. E] speak of the
incident without incurring what she believed to be significant risk to herself
and her family.” The December 1996 statement, essentially professing a lack of
recall of the contents of the Maile statement, was adopted by Ms. E during her
testimony and hence was part of the evidence.1182 The statements made by Ms.
E during her third interview with Laurie were also subsequently admitted into
evidence for the same reasons as the first two interviews.1183
Charter Violation: CSIS Destruction of Notes, Tapes and Transcripts
In accordance with his usual practice, Laurie did not take notes while interviewing
Ms. E.1184 After the first interview, he stopped to make some notes when he left
Ms. E’s residence because “…it was clear to me that this report would be the
subject of some scrutiny and that it needed to be as accurate as I possibly could
get it.” He walked to his car, which was parked some distance away, and then
wrote down on a piece of paper “…as precisely as possible” the issues that he
wanted to include in his report. He then took that paper to his office and used it
to write his report. His notes did not include quotes of Ms. E’s words. They were
a series of words which Laurie felt would help him recall the most important
aspects of the information in preparing his report.1185 Laurie wrote a first draft of
his report by hand. It was typed by someone else and then reviewed by Laurie
and discussed with his supervisors, who could also add their comments.1186 The
draft report was then authorized, communicated to CSIS HQ and put on file.1187
After the second interview, Laurie also wrote some notes while in his car, but
they were not detailed. He did not feel a sense of urgency attached to the new
information he obtained then, as compared to what he had learned during the
first interview. He simply wanted to ensure that he would not forget anything
before getting to his office and preparing his report.1188 Laurie wrote the report
upon returning to his office immediately after the interview, but the content
was then discussed with Grierson, the BC Region Chief CT, and Claxton, the
Director General, and the actual report was only sent to CSIS HQ four days after
the interview.1189 Laurie indicated that he probably also made notes after his
third interview with Ms. E. He then wrote his report immediately or soon after
his return to his office.1190
1182 R. v. Malik and Bagri, 2004 BCSC 299 at paras. 103-109, 110-111.
1183 R. v. Malik and Bagri, 2005 BCSC 350 at para. 961.
1184 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7414, 7429; See Section 1.0 (Postbombing), Introduction.
1185 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7417-7418.
1186 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7419; Exhibit P-101 CAA0553(i), pp. 3-4.
1187 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7419.
1188 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7429-7430.
1189 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7430; Exhibit P-101 CAA0562(i).
1190 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7442.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The notes made by Laurie after the Ms. E interviews were not preserved by CSIS
and were not available at trial.1191
Laurie tape-recorded two of his interviews with Ms. E with a concealed
recording device, but could not recall which ones.1192 On one occasion, the
device malfunctioned and nothing was recorded. On the other occasion, Laurie
believes he read a transcript of the recording, but only to ensure that his report
about the interview was accurate. He did not listen to the recording or read
the transcript prior to writing his report and, in fact, did not find the recording
particularly helpful. The interview which was successfully recorded most likely
involved a discussion of Bagri’s request to borrow Ms. E’s car, since this was
discussed in most of the interviews.1193
CSIS did not preserve the tape with the recording of Laurie’s interview with
Ms. E.1194 According to his general practice, Laurie submitted the tape for
transcription without listening to it and never saw the tape again afterwards.
His understanding was that such tapes were erased after they were transcribed.
He was provided with the transcript, which was shredded after he reviewed
it.1195
Laurie explained that he perceived his role as an intelligence officer as simply
to write his report as accurately as he could. His report reflected what he had
heard and what he thought his superiors at CSIS HQ needed to know.1196 He
added, making a comparison with his subsequent work as a police officer after
he rejoined the RCMP:
MR. LAURIE: I don’t have a method of keeping and storing
notebooks or tapes or any of that sort of stuff. It is something
that I’ve got to baby-sit now and I don’t have a way of doing – I
don’t have an exhibit locker; I don’t have an exhibit log; I don’t
have somebody that guards the room that it is in. I don’t need
it and it is destroyed the same way they all are.
…
MR. LAURIE: Perhaps if I can give some context, sir.
MR. KAPOOR: Sure.
MR. LAURIE: The service is so new and we are being [given]
such guidance not to do anything the way the police do it. We
are no longer the police and in fact there is movement afoot to
try and remove any of the people who used to be in the police
as quickly as possible.
1191 See, generally, R. v. Malik and Bagri, 2004 BCSC 554.
1192 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7430-7431. He was also uncertain about
the exact number of interviews for which he brought a tape recorder.
1193 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7431-7432.
1194 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7431.
1195 R. v. Malik and Bagri, 2004 BCSC 554 at para. 7.
1196 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7431-7432.
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And given that the issue of passing material to a police agency
is there but is not widely used in a format that we are familiar
with, it wouldn’t have been unreasonable for me to presume
that at some point this information, and perhaps even the
individual, is going to be passed to a police agency and they
can get their own tape because they are the ones that preserve
evidence and I do not.1197
Laurie also said that, had the recording been preserved, it would have opened
the door to different assessments or opinions of what was actually said by Ms. E
during the interview, as opposed to the situation now, where we only have his
assessment as found in his report which, according to Laurie “…reflects what I
heard.”1198
When Laurie received the Ms. E information, the policy which was supposed to
govern the preservation of notes by CSIS investigators was an RCMP Security
Service policy, inherited by CSIS at its creation, which required investigators to
keep a separate notebook and to retain it securely in cases where there was
“reason to believe” that an investigation would “…result in court appearances
being necessary.”1199 However, Laurie, like many of his colleagues, was not
aware of the existence of this policy.1200 He was never informed about it while
working at the Security Service, or during his time at CSIS, and instead followed
the general practice adopted by his colleagues, which was to destroy original
notes once the information gathered was included in a report.1201
When Ms. E first told Laurie about Bagri’s request to borrow her car, it was clear
to him, as it was to his supervisors at the BC Region when he reported back
the information, that this information related to a criminal investigation, that
it would eventually have to be passed to the police and even that Laurie might
well have to testify in court about it. Yet, when Laurie discussed the information
with his supervisors, no one told him to maintain notes in a separate notebook,
or to maintain notes at all for that matter. Laurie was simply “…never given any
guidance to do that.”1202
In 1987, the policy inherited from the Security Service only addressed handwritten
notes, whether made while receiving the information or “…as soon as possible
afterwards.”1203 When CSIS adopted its own policy on Operational Notes in 1992,
it expressly recognized that audio or video recordings made by a CSIS employee
to be used in the preparation of CSIS reports, including the temporary recording
of information received while conducting interviews or debriefing human
1197 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7432-7433.
1198 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7432.
1199 Exhibit P-101 CAA0007, p. 2; See, generally, Section 4.3.2 (Post-bombing), Destruction of
Operational Notes.
1200 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7466; See Section 4.3.2 (Post-bombing),
Destruction of Operational Notes.
1201 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7468-7469, 7536-7537.
1202 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7413, 7416, 7468-7469, 7531, 7538.
1203 Exhibit P-101 CAA0007.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
sources, constituted “operational notes” subject to the retention policy.1204
The tapes and transcripts of the Ms. E interviews, as well as the notes made by
Laurie after the interviews, would have been covered by this policy and subject
to retention because the information related to a serious crime.1205 However,
it appears that in 1987, the potential impact on eventual prosecutions of the
destruction of recordings or notes of interviews with sources providing criminal
information was not communicated to CSIS investigators:
MR. BOXALL: And earlier today you gave evidence about the
destruction of your tape recording of one of the interviews
and the impression I was left with was that you didn’t view the
destruction of that tape as particularly significant or out of the
ordinary.
MR. LAURIE: I still don’t.1206
At trial, Justice Josephson concluded that the destruction by CSIS of the notes
and audio recordings relating to Laurie’s interviews of Ms. E violated Bagri’s
right to disclosure under the Charter.1207 The British Columbia Attorney General
(the “Crown”) had conceded that, in the Air India case, the RCMP “…had been
granted access to all relevant information in the files of CSIS” pursuant to an
access agreement which “crystallized” in early 1987 in correspondence between
the Solicitor General and the CSIS Director.1208 In law, this meant that CSIS would
be subject to the same obligations to disclose information to the defence as
the police were pursuant to the case of R. v. Stinchcombe. According to the
applicable test, the failure to disclose the notes, tapes and transcripts in this
case would violate Bagri’s rights, if their destruction was found to constitute
“unacceptable negligence.” The Crown had conceded earlier in the trial that
CSIS had been unacceptably negligent in erasing the Parmar intercepts, but
did not make this concession for the failure to preserve the notes, tapes and
transcripts of the Ms. E interviews.1209
Justice Josephson found that CSIS’s behaviour did amount to unacceptable
negligence. He accepted Laurie’s testimony that he “…simply followed his
normal practice in relation to the gathering of source intelligence,” but found
that “…CSIS appears to have failed at an institutional level to ensure that the
earlier errors in the destruction of the Parmar tapes were not repeated.” He
noted that a “…procedure should have been in place” at CSIS to preserve “…
this clearly relevant evidence for the criminal investigation.”1210 As a result of
this Charter violation, Bagri would have been entitled to a remedy, if he had not
otherwise been acquitted because the evidence was found to be insufficient.
1204
1205
1206
1207
1208
1209
1210
Exhibit P-101 CAA0889, pp. 4, 10.
See, generally, Section 4.3.2 (Post-bombing), Destruction of Operational Notes.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7541.
R. v. Malik and Bagri, 2004 BCSC 554.
See, generally, Section 4.4.2 (Post-bombing), The Air India Trial.
R. v. Malik and Bagri, 2004 BCSC 554 at paras. 3-5.
R. v. Malik and Bagri, 2004 BCSC 554 at paras. 7, 19, 21-22.
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This could have meant that the trial judge would have been unable to take into
account Ms. E’s statements to Laurie, because some of the evidence about those
statements had been destroyed through unacceptable negligence.
Aside from the breach of the accused’s rights, the destruction of the notes, tapes
and transcripts by CSIS also deprived the Court of “…the best evidence of what
was actually said” by Ms. E.1211 This is especially true if one is to accept, as stated
by Laurie in testimony, that opinions could have differed about what Ms. E said,
if a tape had been available. This, of course, would be an additional reason to
preserve the recording in order to have access to all possible interpretations of
the information, both for intelligence and for possible evidentiary purposes.
In this case, because CSIS did not take steps to preserve the notes and recordings
for the Ms. E interviews, the only remaining records available at trial of the
statements made by Ms. E in 1987 were Laurie’s intelligence reports.1212 However,
questions were raised about the completeness and, at times, the accuracy of
those reports – which further complicated matters.
The Ultimate Reliability of the CSIS Reports
When he prepared his reports about the Ms. E interviews, Laurie wrote the
information in chronological order, as opposed to the order in which Ms. E
revealed it to him.1213 He did not write down the questions or comments that
he made to Ms. E during the interview.1214 He did not attempt to quote Ms. E or
to provide a word for word account of what she told him.1215 Laurie organized
his reports by content, as opposed to providing an account of the interviews.
He explained:
MR. LAURIE: That’s right. I suppose that’s another difference
between us and the police. I related the story – the briefing if
you will, in a manner that my consumer would find it easiest
to arrive at the conclusions that I did. This is what I was told,
maybe not in this way, but I was told this information and now
I feel this about the information. What do you think?
I think this report [the report for the 2nd interview] is the only
one where I actually put a quote in and so it is clear and it was
again in testimony at the trial that I wasn’t attempting to make
any literal translation or just to say precisely what it was that
she had said to me.1216
1211
1212
1213
1214
1215
R. v. Malik and Bagri, 2004 BCSC 554 at para. 21.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 1231.
Exhibit P-101 CAA0553(i), p. 1; Testimony of William Laurie, vol. 61, October 15, 2007, p. 7418.
See, generally, Exhibit P-101 CAA0553(i).
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7511; See, generally, Exhibit P-101
CAA0553(i).
1216 Testimony of William Laurie, vol. 61, October 15, 2007, p. 7428.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Laurie’s reports contained a summary of the information Ms. E had provided
and additional comments or analysis in the section entitled “investigator’s
comments”.1217 The body of the reports included “all details considered
intelligence.”1218 In some cases, Laurie summarized the information in accordance
with his own interpretation, for example by referring to Talwinder Singh Parmar
where Ms. E had said “Bhai Sahib.”1219 In other cases, Laurie may also have added
information based on his own beliefs. In his report for his fifth interview with
Ms. E, he noted that Ms. E recounted Bagri’s request to borrow her car and that
her “…account was exactly the same as reported previously.” He then went on to
state that she reported that Bagri said he needed her car “…to go to the airport
with Bhai Sahib (Talwinder Singh Parmar [REDACTED]) and an u/m.”1220 This had
never been mentioned in the previous interviews, and Laurie admitted in his
testimony at trial that it may have been included in his report as a result of his
own beliefs and theories and not of information actually provided by Ms. E.1221
He explained in testimony before the Inquiry that, if he did report information
based on his own theory of the case, this was inadvertent. Generally, the text
preceding the investigator’s comments was “…supposed to be attributed only
to the sources that are referenced.”1222
Because they were only meant to report the information obtained, the
intelligence reports provided no indication of the manner in which the interviews
with Ms. E unfolded. The order in which she provided the information, the
questions she was responding to, or any information she was provided during
the course of the interviews were not noted in the reports. Further, as only the
“…details considered intelligence” were included, a selection could have been
made among the information provided by Ms. E, and some information may
not have been reported. The information she provided was at times described
in general terms only, such as her account being “…the same as before,” which
would make it impossible to assess whether or not there were small changes or
contradictions in her information from time to time, an issue that is important
from an evidentiary perspective.
Justice Josephson had initially found that Laurie’s reports for his first three
interviews with Ms. E were admissible in evidence because the hearsay
statements they recorded met “threshold reliability” criteria. However, having
heard all of the evidence at trial, he found that the ultimate reliability of Ms. E’s
past statements could not be established.1223
There were contradictions between the statements to Laurie and the evidence
at trial which could not be resolved to the Court’s satisfaction without a proper
opportunity for the defence to cross-examine Ms. E about the facts. In her
1217
1218
1219
1220
1221
1222
1223
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7509.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 999.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7509-7510.
Exhibit P-101 CAF0377, p. 1.
Exhibit P-244, vol. 4 (January 7, 2004 Transcript), pp. 44-45.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7512-7514.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 1236.
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statements to Laurie, Ms. E had indicated that she was “certain” that Bagri’s
visit had occurred the night before the Air India bombing. However, during
her testimony at trial, she generally associated the timing of the visit with
the CSIS surveillance. She had been questioned by the RCMP in 1985 about
this surveillance, which had Parmar dropping off an unidentified male at her
residence on June 9th, and she had said that the person was Bagri. Nowhere in
her past statements or in her evidence at trial was there any suggestion of Ms.
E having received two separate late night visits from Bagri in June 1985. In fact,
from her evidence and her December 1996 statements during the interview
with Best, it appeared that the arrival of Bagri at her residence at such a late time
was an “unusual event,” to the point that she initially tried to ignore him when
he started knocking. The Crown’s “…theory of a second late night visit in June
was only revealed mid-trial,” and Ms. E simply “…allowed for the possibility” on
re-examination.1224
Justice Josephson added that the issue of the “adequacy of the record” of Ms.
E’s statements to Laurie was also a valid concern, which contributed to his
finding that Ms. E’s past statements could not ultimately be demonstrated
to be reliable. He found that the CSIS reports, though “prepared with care,”
constituted a “less than complete record” of what Ms. E had said. The reports
were not complete in terms of describing Laurie’s full interaction with Ms. E,
which left open the possibility that unknown context could have affected the
interpretation which could be made of the meaning of what Ms. E had said.
Further, questions remained about the complete accuracy of the reports, since
Laurie had admitted to being uncertain about whether the mention that Parmar
would be accompanying Bagri to the airport, which he attributed to Ms. E in one
of his subsequent reports, in fact originated from information provided by Ms.
E. Because of these issues, the weight which the reports could have at trial was
diminished.1225
The promise of confidentiality made by Laurie to Ms. E also impacted on the
weight which could be given to Laurie’s reports at trial, since confidentiality
could lead a person making a statement to feel that they would not have “…to
account for the honesty and accuracy” of the statement. The facts that Ms. E’s
statements to Laurie were not made under oath and that Ms. E had later made a
false claim to having lost her memory also had an impact.1226
Justice Josephson found that the rest of the evidence at trial neither confirmed
nor refuted Ms. E’s statements to Laurie. Overall, Ms. E’s past statements were
not found to be sufficiently reliable to convince the Court beyond a reasonable
doubt of Bagri’s guilt and, as none of the other evidence presented was found
to be credible or sufficient, Bagri was acquitted.1227
1224
1225
1226
1227
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1226-1229.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1230-1231.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1232, 1236.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1233-1235, 1244-1249.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Conclusions
In the end, after almost 20 years of interaction between Ms. E and Canadian
authorities, nothing was accomplished. The combined effect of the agencies’
actions and decisions was that: (a) Ms. E did not cooperate in her testimony at
trial, but instead claimed memory loss, a claim which the trial judge found to
be false; and (b) her information could not be used in the prosecution because
the available evidence of her past statements was not sufficient. Opportunities
were missed by the RCMP and CSIS at every stage of the process.
RCMP Failures to Follow Up
In 1985-1986, the RCMP had information indicating that Ms. E possibly knew
more about Bagri’s activities than what she was willing to tell police. The RCMP
had other information which made Bagri a suspect. Yet, the Force chose not to
pursue its attempt to obtain information from Ms. E. Then, after CSIS approached
her in 1987 and verbally informed the RCMP about Bagri’s request to borrow
the car, albeit without identifying Ms. E as the source, the RCMP simply did not
follow up and did not even record the full extent of the information received
from CSIS.
Had the RCMP been involved as soon as possible in 1987, the officers could have
sought to clarify the factual issue of the timing of Bagri’s June 1985 late night
visit in relation to the June 9th CSIS surveillance. This unresolved issue ultimately
led the Court to consider her past statements unreliable. However, it does not
appear that the RCMP, whose investigators had revealed the existence of the
surveillance during the 1985 interviews, ever thought about asking Ms. E about
this issue during their subsequent dealings with her. In 1990, when Ms. E’s
identity was finally revealed and she confirmed, at least in part, the information
she had provided to CSIS about Bagri’s request, the RCMP concluded after two
interviews that she was not reliable, without asking about the June 9th visit. The
RCMP was eager to discount Ms. E for all sorts of reasons, including the fact that
Laurie may have provided information to her, the fact that the officers felt she
was trying to hide her alleged affair with Bagri and the fact that she had not
revealed her information to the police in 1985. Yet, the RCMP never even asked
Ms. E about the one issue which was ultimately found to make her information
unreliable.
The RCMP failures to follow up caused frustration for the CSIS personnel who had
worked hard to develop a source and then had to terminate contact to allow the
RCMP to pursue its investigation.1228 Mervin Grierson, the CSIS BC Region Chief
CT at the time of the events, commented:
MR. GRIERSON: Now, if we talk about Ms. E, I mean, there is
the living example of that. It’s already been said here in this
1228 See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India
Investigation.
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room that they had talked to her and never fleshed that out.
We knocked on her door and she started to talk to us. And we
could see some potential. That’s what we would expect them
to do, is nurture it, cultivate it, be reassuring, not just in a 15minute deal, sort of say, “There’s nothing here and go on to
something else.”1229
CSIS “Promises” of Confidentiality
When Laurie approached Ms. E in 1987, he was successful in obtaining from
her the information that the RCMP could not. Ms. E was afraid to speak to the
police, but felt comfortable providing her information to CSIS. Ironically, Ms. E’s
anonymity may have been better protected if she had chosen to speak to the
police instead. If the RCMP had assured Ms. E that her information would remain
confidential the way Laurie did, she would have been considered an informant
and, because of informer privilege, the authorities could not have revealed her
identity without her consent, and could not have forced her to testify against
her will as was done here.1230 Hence, the RCMP would never have promised
“complete anonymity” in the context of an approach to a potential witness.1231
CSIS, on the other hand, did give assurances of confidentiality. At trial, Justice
Josephson found that Ms. E could not be characterized as a confidential
informant, subject to informer privilege, because CSIS’s “…subsequent actions
in passing [Ms. E’s] information and identity to the RCMP” indicated that CSIS
“…never regarded or treated” Ms. E as a confidential informant, regardless of
whether CSIS sources could, in law, be protected by informer privilege.1232 CSIS
did not feel bound by Laurie’s assurances to Ms. E when it authorized the RCMP
to interview her in 1990, essentially revealing her identity without her consent.
Ms. E provided her information to Laurie with the belief that it would remain
confidential. Laurie later stated that Ms. E had “…placed her trust” in him and
that “…it was misplaced.”1233 Because CSIS had broken its promise of anonymity
to Ms. E, it was difficult for her to place her trust in Canadian authorities again
when the RCMP approached her subsequently.1234
CSIS Delay in Turning Over Sufficient Information and Interagency Conflicts
While CSIS did not feel bound by its promises of anonymity in 1990, the Service
was apparently in no hurry to provide all available information to the RCMP
when it first received it. The information was clearly relevant to the criminal
investigation and was of little value to CSIS operations. Yet, CSIS hesitated
before passing the Ms. E information at all during the initial stages in 1987.
1229
1230
1231
1232
1233
1234
Testimony of Mervin Grierson, vol. 75, November 14, 2007, p. 9514.
See, generally, R. v. Leipert, [1997] 1 S.C.R. 281.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7841.
R. v. Malik and Bagri, 2004 BCSC 554 at para. 18.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7519-7520.
Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7901-7903.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
When it did pass the information, it did so with little detail and without written
records. Most importantly, CSIS chose not to inform the RCMP of Ms. E’s identity
in 1987.
Because of its decision to delay the passing of the full Ms. E information, in
circumstances where, in the end, it did not assert a duty to protect the identity
of its source, CSIS deprived the RCMP of the opportunity to attempt to obtain a
statement from Ms. E – and to keep proper records – at a time when the events
were more fresh in her mind. As an RCMP analyst later concluded, “…had there
been a signed statement taken by the RCMP after her revelation to CSIS the
evidence may have been more acceptable by the Court.”1235
CSIS also kept the RCMP in the dark for ten years about the information recorded
in the Stevenson memorandum. Further, CSIS did not make its actual reports
about the Ms. E information available until the late 1990s. As a result, Laurie had
to answer the RCMP’s questions and write his statement from memory, the RCMP
officers who interviewed Ms. E did not have the benefit of knowing exactly what
information she had provided in the past, and Ms. E had to confirm the accuracy
of the information she provided to Laurie without having an opportunity to
look at the reports.
In 1990, both CSIS and the RCMP appeared overly focused on their interagency
conflicts, at a time when working together was necessary to secure Ms. E’s
cooperation. CSIS focused its efforts on demonstrating, at all costs, that it had
passed the information in 1987, while the RCMP went about making accusations,
including towards Laurie, who could have been its greatest ally in securing Ms.
E’s cooperation.
CSIS Failure to Keep Adequate Records
Knowing that the information related to a criminal investigation and that the
RCMP was unaware of Ms. E’s identity, CSIS continued to send Laurie to interview
Ms. E with no instructions to take complete and contemporaneous notes or to
prepare complete reports detailing his interactions with her. CSIS took no steps
to prevent the destruction of the recordings of the interviews and of the limited
notes Laurie did make. Regardless of the view one takes of the impact of the
agreement to cooperate with the RCMP on CSIS’s disclosure obligations in the
Air India matter, it remains the case that CSIS did promise its cooperation. CSIS
agreed to “…coordinate the preparation of evidence” for an eventual Air India
prosecution, as directed by the then Solicitor General,1236 and promised to place
“…the full cooperation of the Service … at the disposal of the RCMP” to assist in
bringing those responsible for the Air India bombing before the courts.1237 Yet,
the agency continued to receive Ms. E’s information without keeping proper
records for two years, and then waited for an express RCMP demand a year later
to reveal her identity.
1235 Exhibit P-101 CAA1045(i), p. 3.
1236 Exhibit P-101 CAA0533, CAD0094.
1237 Exhibit P-101 CAD0094, p. 3.
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Inadequate Access to Information
Overall, it appears that none of the Canadian officials who approached Ms. E,
whether from CSIS or the RCMP, ever had a full picture of all of the information
available prior to meeting with her, or when making decisions about whether
to pursue her as a source of information. In 1986, the RCMP failed to access its
own information about the BK application forms. In 1987, Laurie was not aware
of CSIS’s own interview with Ms. E’s landlord. He did not have the reports for
the 1985 RCMP interviews with Ms. E, and may not even have known about
them. In 1991, Maile and Solvason approached Ms. E without knowing about
the 1990 RCMP interviews. After 1990, for many years the RCMP entertained
the mistaken notion that Ms. E had initially provided her information to Laurie
in 1985. In 1997, Laurie participated in an interview with Ms. E without having
been informed of the RCMP contacts with Ms. E since 1990.
Counterproductive RCMP Approach to Ms. E and Witness Protection Issues
Once it was aware of Ms. E’s identity and information, the RCMP was unable
to obtain a statement from her at an early stage, and, when a statement was
obtained, it was not sufficiently detailed. It was suspected that Ms. E altered
her story in order to get rid of police attention, a strategy which was known
to be used at times by sources who felt threatened or uncomfortable.1238 The
RCMP was unable to set the stage early on to encourage Ms. E to cooperate.
Instead, the manner in which the RCMP approached her had the opposite effect
– alienating her further from the authorities and aggravating her anxiety. RCMP
investigators did not attempt to minimize the disruptions to Ms. E’s life or to
address other sources of stress associated with their visits.1239 Instead, the RCMP
used a pressurized, persistent, and public approach to Ms. E.
Between 1985 and 2000, Ms. E dealt with many different officers, with large gaps
in time where the RCMP showed no apparent interest in her. The person with
whom she had the best rapport, Laurie, was excluded from the process as soon
as possible in 1990, and was only involved again in 1997. The result was that the
RCMP was unable to build any rapport or continuity with Ms. E.1240
The RCMP often approached Ms. E in a confrontational manner and as an
adversary. In 1990, she was regarded with suspicion and she was implicitly
blamed for not having reported her information to the RCMP during the 1985
interviews. When Best attempted a new approach in 1996, he told Ms. E of the
need to disclose the “full extent” of her knowledge, with the undertone that she
was withholding information that she would be “well advised” to divulge. When
she showed reluctance to testify, she was warned that her failure to respond to a
subpoena could result in her arrest.1241 Throughout her dealings with the RCMP,
1238 Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11582; Exhibit P-101 CAA0792(i),
p. 14.
1239 Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7891.
1240 Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7903.
1241 Exhibit P-101 CAF0423, pp. 8-9.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Ms. E was constantly “asked”, in a manner that sounded more like accusations
than genuine questions, about her alleged affair with Bagri, even after she
denied it repeatedly.1242 In 1992, the RCMP told her common-law husband that
she had been “seeing” Bagri in 1985-86, a period when she was already with her
common-law husband.
The RCMP constantly showed up at Ms. E’s home without making appointments,
not giving her any control over when and where she would meet police. She
was also disturbed by the length of the RCMP interviews. In subsequent years,
she was taken to lengthy interviews – including one lasting over five hours – at
RCMP HQ.1243 She later indicated that she felt as if she could not leave until she
provided the RCMP with the statements they were after.
Even after Ms. E expressed her frustration, indicating that she felt she had “…
cooperated enough with the authorities and that her life has been disrupted by
[their] dealings with her,”1244 the RCMP charged on, apparently comforted by the
notion that, since Ms. E was not “…totally detached from the targets of interest”
in the investigation, they had to be persistent to ensure that she was not “an
accomplice.”1245
When the renewed Task Force contacted Ms. E again in 1996, Best endeavoured
to have regular contact with Ms. E,1246 despite the fact that she indicated that
she wanted to have as few meetings as possible.1247 After Best was first informed
that Ms. E had retained counsel and that she did not wish to cooperate further
with the RCMP,1248 he continued to contact her, even following her to the grocery
store.
In order to put an end to the RCMP contact, Ms. E’s then husband had to instruct
Best to refer calls to Ms. E’s lawyer.1249 Even after this, Best maintained that,
overall, he did not take from Ms. E’s behaviour that there was “…any major
reluctance to speak with [him] otherwise she would never have allowed me in
her door.” Best explained that while “from the outside” it may “…give the image
that there was some reluctance,” in dialogue with Ms. E, “…from the time I met
her until after the trial, even in the presence of her lawyer,… – it was always in
a professional manner, demeanour, and it was always very friendly.”1250 Many
times throughout his notes1251 and in his testimony, Best reiterated how “cordial”
his interaction with Ms. E always was. 1252
1242
1243
1244
1245
1246
1247
1248
1249
1250
1251
See, for example, Exhibit P-101 CAF0405, p. 2, CAF0428, p. 5.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7882.
Exhibit P-101 CAF0359.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11267.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7903.
Exhibit P-101 CAF0395, p. 94.
Exhibit P-101 CAF0423, p. 8.
Exhibit P-101 CAF0423, p. 11.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7907.
See, for example, Exhibit P-101 CAF0423, pp. 7-8, where Best notes numerous times that
conversations with Ms. E and with her husband ended on “cordial terms”.
1252 Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7907.
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Taking the fact that Ms. E allowed Best into her home and was “cordial” as
tantamount to a lack of reluctance is based on questionable cultural assumptions.
It may not have even occurred to her that she could deny the police entry to her
residence. Overall, the RCMP apparently failed to appreciate how detrimental
to their relationship with Ms. E this persistent contact was.
Ms. E consistently expressed fears for her personal safety if it ever became known
that she was providing information, even threatening suicide if forced to testify,
for fear that her children would be murdered. She knew the Sikh community well
and thus knew about the potential risk to herself. Justice Josephson concluded
that Ms. E’s actions were consistent with a belief that the “…threat was and
remains real.”1253 Yet, the RCMP did not always take Ms. E’s fears seriously.
In 1990, the RCMP concluded that Ms. E was more concerned about her alleged
affair with Bagri becoming public than actually afraid for her safety. The officers
decided not to discuss source witness protection.1254 Blachford explained that
it would have been problematic to offer protective measures to Ms. E when she
was changing her story:
S/SGT. BLACHFORD: Well, certainly when I met her she
certainly made some significant changes to her evidence that
caused me concern. In hindsight, to go back and offer her
now – offer her protection and try and get her evidence back
onboard, I’m not sure if that’s –
MR. BOXALL: Right.
S/SGT. BLACHFORD: You know, there’s a fine line in there.
Again, it’s case by case.1255
He added that it was important to get Ms. E’s evidence before promising her the
“benefit” of source witness protection measures:
MR. BOXALL: And were her fears in that regard ever
addressed?
S/SGT. BLACHFORD: In terms of source witness protection, is
that where you’re –
MR. BOXALL: Or – yes.
S/SGT. BLACHFORD: Not in – not in my time with her.
MR. BOXALL: Is there any reason why not?
1253 R. v. Malik and Bagri, 2004 BCSC 299 at para. 102.
1254 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7771, 7836.
1255 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7837.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
S/SGT. BLACHFORD: Well, one of the key factors is before you
start offering a witness incentives, I think you want to get their
evidence.
I think the view of the court certainly is how much are you
promising a witness and that starts to weigh on their evidence
and it can be viewed. Certainly, that was a huge problem
on Air India, some of the witnesses that we had and the
arrangements that were made.1256
In subsequent years, the various RCMP officers who dealt with Ms. E seldom
mentioned what the RCMP could do to protect her. She was rarely encouraged
to voice her concerns. When she did, she received little response. In 1992,
Maile made a general statement indicating that threats against Ms. E’s family
in Canada would receive the RCMP’s “immediate attention,” but Ms. E was also
told that nothing could be done about her fears for her relatives in India, “…
due to the constant random killing which appears to be [a] fact of life in that
country.”1257
The RCMP officers were not proactive in trying to deal with possible concerns,
but instead often waited for Ms. E to provide more detail or make “specific”
requests. After her 1992 conversation with Maile, the first time that protective
measures were specifically addressed with Ms. E was in 1998, after the murder
of Tara Singh Hayer, when Best explicitly offered to provide security measures
and discussed some actual options for the first time.1258 Before that, Best had
simply asked Ms. E to specifically identify any “concerns” that she might have.1259
He explained that before he could think about the type of protection that could
be afforded to Ms. E, he first needed to get a sense from her as to “…specifically
what her concerns were.”1260
The RCMP’s approach in focusing on “specifics” and in imposing an onus on Ms. E,
a scared and vulnerable source, to provide details of her fears, before discussing
protective options, is somewhat puzzling. The RCMP was in the best position,
certainly, to engage the intelligence community to get a better understanding
of the real potential threat posed to Ms. E. Yet, before preparation for the trial
actually began, the RCMP took no steps to assess the risk to Ms. E.
Despite Ms. E’s fears, the RCMP often approached her in a public way, which
could put her at risk and increase the stress that the police visits caused her. The
RCMP often visited Ms. E in her home and place of business, where employees
and clients would see her being approached by the police. At times, they spoke
to her within earshot of others. Further, according to Stevenson, the RCMP was
actually planning to have Ms. E meet two policemen in a “coffee/doughnut shop”
1256
1257
1258
1259
1260
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7836-7837.
Exhibit P-101 CAF0359.
Exhibit P-101 CAF0423, p. 10.
See, for example, Exhibit P-101 CAF0423, pp. 6-7.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7858.
201
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near her residence “…on a very busy intersection,” which raised “…all sorts of
security concerns.” Stevenson did not know whether the meeting actually took
place in the end.1261 We do know, however, that, years later, Best approached Ms.
E in public, at the grocery store, without her prior consent, and had a discussion
with her about her information in the parking lot.
The RCMP’s apparent lack of concern for Ms. E’s real fears for her security and that
of her family were not conducive to helping rebuild Ms. E’s already shattered
trust. Ms. E clearly considered herself to be at grave risk, but when offers of
protection were finally presented to her, she ultimately maintained that she did
not want protection. The RCMP then took no steps to attempt to convince her
and others – like her lawyer1262 – that she was in need of protection. In fact,
when Ms. E expressed anxiety about testifying and mentioned the possibility of
retaining a lawyer, Best advised her that, in his opinion, this was unnecessary.1263
Throughout the process, Ms. E also did not receive any offer of counselling to
help her better deal with or express her concerns,1264 nor was there any attempt
to involve a female or South Asian officer.1265
In the period immediately preceding Bagri’s trial, the RCMP recognized the
potential danger posed to Ms. E’s safety and instituted patrols around her
residence. When Ms. E testified, there was witness support available to her as
there was to all other witnesses.1266 Perhaps the RCMP would have been more
successful in securing Ms. E’s cooperation if she had been treated from the start
with the same sensitivity and care that were extended to witnesses during and
immediately before trial.
1.4 Mr. Z
Introduction
At some time between 7:30 and 8:00 AM on the morning of June 22, 1985, an
East Indian man, who brought with him the “M. Singh” ticket for CP Air Flight 060
to Toronto, appeared at the CP Airlines check-in desk at Vancouver International
Airport (VIA) and requested that his luggage be checked straight through to
Delhi, even though his flight for the Toronto-Delhi portion of the flight was not
confirmed. Ms. Jeanne (“Jeannie”) Adams, the agent who was working at the
CP check-in desk, told him that this was not possible. The man argued with her
and Adams finally relented and marked the luggage to be interlined to Delhi.
Later that morning an unidentified male, whose ticket was issued for “L. Singh,”
showed up at the CP Airlines check-in desk for Flight 003 from Vancouver to
Tokyo. The agent checked in his baggage without issue. Neither M. Singh nor L.
Singh boarded their flights.1267
1261
1262
1263
1264
1265
1266
1267
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7706.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7908.
Exhibit P-101 CAF0395, p. 97.
Testimony of Douglas Best, vol. 63, October 17, 2007, p. 7910.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7827-7828.
Testimony of Douglas Best, vol. 63, October 17, 2007, pp. 7891, 7915-7916.
Exhibit D-1: Dossier 1, “Background and Summary of the Facts,” p. 6; Exhibit P-101 CAF0160, p. 34.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
In 1986, Mr. Z provided information to both CSIS and the RCMP which
purported to identify the individuals responsible for checking in the luggage at
Vancouver International Airport. Despite CSIS’s assessment that there was a “…
high probability that this information [was] accurate,”1268 the RCMP ultimately
concluded that the individuals identified had no connection to the bombing
(see Section 2.3.2 (Post-bombing), Mr. Z). However, the manner in which this
information first surfaced and was then shared within the RCMP, and between
CSIS and the RCMP once again, illustrates the challenges posed when CSIS
learns of important criminal intelligence through sources who may be reluctant
to deal with the RCMP. Moreover, the Mr. Z incident raises the issue of how the
RCMP’s internal information management problems posed challenges in terms
of the cooperation between CSIS and the RCMP.
June 1986: Mr. Z Provides Information to RCMP Handlers
In 1986, Cpl. Robert Solvason and Cst. Laurie MacDonell were investigators in
the RCMP National Criminal Intelligence Section (NCIS) in Surrey, BC. Solvason
had previously been seconded to the Air India Task Force and was released back
to Surrey NCIS to work on the Indo-Canadian Times investigation in early 1986.
The focus of the work in Surrey was on criminal acts that had taken place in the
community, rather than on gaining an understanding of, or investigating, the
broader national and international implications of Sikh extremism – this was
the mandate of the Task Force out of E Division. The purpose of the criminal
intelligence work was to gather intelligence to establish enough grounds to
lay a criminal charge and to develop witnesses in aid of criminal investigations.
However, Solvason had extensive experience and abilities in developing
community contacts and sources, and he and MacDonell worked pro-actively
to develop sources, with the result that the Surrey NCIS unit was able to develop
important contacts within the Sikh community, who provided insight in terms
of who the major players were.1269 Some of these individuals also provided
these investigators with information of central significance to the Air India Task
Force’s investigation. One such contact was Mr. Z, who was a member of the
Sikh community.1270
On June 15, 1986, during a source debriefing with his RCMP handlers, Mr.
Z provided information that he had heard a rumour that two individuals
associated with Ajaib Singh Bagri were involved in the Air India disaster. One
of the individuals was connected to Bagri, and he and another relative could be
the individuals who delivered the luggage to the airport.1271 In October 1986,
Solvason and MacDonell met again with Mr. Z, who provided further information
about the luggage scenario. He advised of information he had received from
another individual about two Sikhs he identified as being responsible for
bringing the Air India/Narita explosives to the airport.1272
1268
1269
1270
1271
1272
Exhibit P-101 CAF0499, p. 1.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9609-9613, 9616-9617.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9409.
Exhibit P-101 CAF0446, p. 1.
Exhibit P-290, Admission A.
203
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October 1986: Mr. Z Provides Similar Information to CSIS
Neil Eshleman, who was a specialist in the area of source handling and had
considerable experience with CT human sources, had also, independently,
developed a relationship with Mr. Z,1273 a source whom CSIS believed to be
reliable.1274
On October 12, 1986, Mr. Z contacted Eshleman and advised that two Sikhs had
assisted Ajaib Singh Bagri and Talwinder Singh Parmar by actually checking in
the luggage containing the bombs at the CP Air counter.1275 According to Mr.
Z, Bagri and Parmar had been waiting outside in the Vancouver International
Airport parking lot at the time. Mr. Z was unable to identify the Sikhs at that
time.
On October 16, 1986, Mr. Z told CSIS the identities of the two Sikhs who were
responsible for checking in the luggage. One of the two individuals had a
connection to Ajaib Singh Bagri.1276 Mr. Z also indicated that he had not previously
divulged this information to the RCMP or to CSIS. Mr. Z indicated that he had
obtained his information about these events from another person, whom he
did not identify to CSIS at that time. The details of the information that Mr. Z
had disclosed were reported by Eshleman in internal CSIS correspondence. In
his report, Eshleman reviewed information already on file about the booking
of the tickets and the check-in of the suspect bags, and stated that, given these
facts, “…one can understand why after 15 months, information from a source,
implicating an individual named [redacted] in the Air India/Narita conspiracy
would pique our interest.”1277
While the purported involvement of these individuals was based solely on
information derived from an individual whose identity had not been revealed
by Mr. Z at that time, in relation to one of the named individuals, Eshleman wrote
that “…taking the allegation of his involvement into consideration along with his
confirmed connection with Ajaib Bagri, and then viewing this with the knowledge
that [redacted] I believe is enough to start a very thorough investigation of this
individual.” Through further inquiries, CSIS was able to confirm that both of the
identified Sikhs “…are connected to at least Ajaib Bagri.” BC Region had not
yet had the opportunity to verify whether these individuals had connections
to Parmar or to Reyat, the other “prime suspects.”1278 Eshleman speculated that
it was possible that Surjan Singh Gill backed out of his assignment to take the
luggage to the airport, leaving Bagri responsible for this task.1279 Bagri may
have therefore recruited these two individuals to assist him. Despite its obvious
criminal nature and importance, Eshleman felt that it was preferable that this
information not be passed to the RCMP right away and rather be forwarded in
“due course,” after a more complete analysis was completed.1280
1273
1274
1275
1276
1277
1278
1279
1280
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9376, 9409.
Exhibit P-101 CAA0506.
Exhibit P-101 CAA0506.
Exhibit P-290, Admission B.
Exhibit P-101 CAA0506, p. 4.
Exhibit P-101 CAA0506, pp. 4-5.
See Section 1.2 (Post-bombing), Tara Singh Hayer.
Exhibit P-101 CAA0506, p. 5.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
In his testimony Eshleman explained that the intention at this point was for CSIS
to spend some time with the information, to analyze it and to try to corroborate
it and then pass it to the RCMP. According to him, there was “…no intention of
delay that would cause concern in passing information to them,” but rather CSIS
wanted to “…add some perspective and analysis” rather than simply passing
raw data.1281
Mervin Grierson, Chief CT, and Ken Osborne, DDG Ops, of the CSIS BC Region,
agreed with Eshleman’s evaluation and proposed course of action. They felt
that, once “fleshed out,” this information could be of “…major significance to
the Air India investigation.” They echoed Eshleman’s hesitancy to pass on the
information right away, indicating that, since the information is “not perishable,”
it would be preferable for CSIS to further investigate these leads prior to any
dissemination taking place. It was felt that such action would “…ensure that our
avenues of investigation are not jeopardized before we have the opportunity to
fully explore same.”1282
When he testified at this Inquiry, Grierson was asked what he was thinking at
this time. He replied:
Well, it’s the same issue that we have discussed here … that if
we disseminate this information immediately, we’re going to
be asked for the identity of Mr. Z. We’re going to be asked for
all the collateral that goes with interviewing this person and
full disclosure and what we’re basically saying is – there’s no
immediacy in terms of the threat. We should try to flesh it out
and ensure that we don’t lose this. Like in other words, these
things are just reoccurring.
…
And if full disclosure takes place, then there’s this issue about
identity and sources, evidentiary and – it’s just a continuum.1283
He went on to explain that CSIS was not only trying to assist the Air India
investigation, but also to fulfil its own “long-term intelligence requirements.”
In that vein, if CSIS could flesh out the criminal intelligence and not lose “the
asset”, then it could continue to fulfill both these functions, but “…as soon as we
disclose it, we lose.”1284
On October 21, 1986, Eshleman and J. Richard (“Dick”) Redfern of CSIS interviewed
the person whom Mr. Z had identified as having provided the information about
the two Sikhs. However, this person did not identify the two Sikhs as being
involved and, in fact, would not acknowledge knowing these two individuals.
This person did say that he was presently in touch with an unidentified Sikh
1281
1282
1283
1284
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9411.
Exhibit P-101 CAA0506, p. 6.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, p. 9497.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9497-9498.
205
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who was involved in the Air India crash and that he might be in a position to
confirm this fact. However he was adamant that he would not talk to the RCMP
or in any way put himself in a position where he would be compelled to appear
in court.1285
On October 24, 1986, CSIS received a request from Les Hammet of E Division
indicating an intention on their part to conduct interviews in Kamloops with
Ajaib Singh Bagri, among others. The RCMP asked if their enquiries in that town
would impinge on any initiatives that were ongoing for CSIS in that area. CSIS
informed the RCMP locally that it would prefer the RCMP’s Kamloops interviews
to be delayed, though no specific explanation was provided. The RCMP agreed
to postpone its interviews.1286 The next contact that the RCMP had from CSIS in
relation to this issue was over three weeks later.1287
On November 18th, CSIS HQ initiated a meeting with representatives from RCMP
HQ and provided a briefing on the recent information developed through Mr.
Z.1288 The meeting took place at CSIS HQ and a number of issues related to Sikh
extremism were discussed. James (“Jim”) Warren, the DG CT at headquarters,
opened the discussion with a number of concerns that CSIS had, including
the identification of “human” sources in RCMP reports (CSIS preferred the term
“sensitive” sources) and the “free lance activity” by RCMP investigators who were
“…going beyond normal enquiries without consultation.” The RCMP agreed
that appropriate caveats and adjustments would be made by the RCMP as well
as “…greater consultation between services to avoid any conflicts.” Warren
then stated that CSIS had received information that the two Sikhs who checked
the bags at VIA had been tentatively identified. At this time, CSIS provided
the names of three individuals who might be responsible. Further particulars
concerning how CSIS obtained this information would be provided to the
RCMP via telex.1289 CSIS requested that the RCMP allow them to continue their
intelligence operation. C/Supt. Norman Belanger agreed and added that there
were three main objectives:
1.
2.
3.
[redacted]
What can the RCMP do to shore up CSIS intelligence probe?
To penetrate the conspiracy these two individuals will have to be
confronted some time down the road.1290
While only the information about the individuals who were possibly responsible
was disclosed to the RCMP at this time without identification of the source,1291
the RCMP concluded that the information was probably coming through Mr. Z.
RCMP HQ wrote to E Division and instructed it to “…compare your notes and
CSIS notes on a peripheral source [Mr. Z].”1292
1285
1286
1287
1288
1289
1290
1291
1292
Exhibit P-101 CAB0689(i), pp. 1-2.
Exhibit P-101 CAB0689(i), p. 2.
Exhibit P-101 CAA0512(i).
Exhibit P-101 CAA0509(i).
Exhibit P-101 CAF0726, pp. 1-2.
Exhibit P-101 CAF0726, pp. 2-3.
Exhibit P-101 CAA0509(i); Final Submissions of the Attorney General of Canada, Vol. I, para. 252.
Exhibit P-101 CAA0509(i).
�Chapter I: Human Sources: Approach to Sources and Witness Protection
The following day, RCMP HQ sent a telex to the E Division National Security
Offences Task Force (NSOTF), to the attention of Supt. Les Holmes, indicating
that CSIS had disclosed to the RCMP the identity of the two Sikhs who had
checked in the luggage and that the information was “of such importance”
that a full briefing would be provided by CSIS BC region at the Top Secret level.
Headquarters went on to direct E Division that it was “…necessary to allow CSIS
to pursue their intelligence operation before a full criminal investigation was
undertaken by E/NSOTF (E Division/National Security Offences Task Force).”1293
The following week, on November 25, 1986, a meeting was held between the
RCMP and CSIS at E Division Headquarters in Vancouver. Attendees included
RCMP members A/Comm. Donald Wilson, C/Supt. Gordon Tomalty, Supt. Les
Holmes and Insp. John Hoadley, and CSIS members Warren, Claxton, Grierson,
Redfern and Eshleman. The purpose of the meeting was to “…relay the
agreements which were made between the RCMP and CSIS at Headquarters to
establish a coordinated plan for the joint investigation of the new lead.”1294
According to CSIS’s account of the meeting, Warren opened up the meeting
by divulging the names of the two individuals believed to be responsible for
personally checking in the luggage at the CP Air counter on June 22nd. He added
that the lead opens “…new avenues to the RCMP’s investigation” and that the
matter must be “handled delicately.” He indicated to the RCMP that this new
information was coming to CSIS from Mr. Z. Mr. Z had learned his information
through another individual, who was said to be “very vulnerable,” and required
“…careful handling in order to achieve the maximum product.”1295
CSIS informed the RCMP that it was in the process of doing an in-depth analysis
of the information in its possession which, when complete, would be shared
with the RCMP, and that any pertinent information developed would also be
shared with the RCMP. During the meeting, the RCMP did not indicate having
prior knowledge of the two Sikhs who checked in the luggage, but did indicate a
possible awareness of the location of the CSIS source and a possible knowledge
of the source’s identity and the identity of the individual from whom Mr. Z
obtained his information.1296
With respect to the RCMP possibly knowing the identity of the CSIS contact,
CSIS stated that the important issue was that the contact not be disturbed. The
RCMP agreed that “…absolutely no tampering should take place due to the
delicate situation,” and that if it did, the “…small trickle of information would
dry up.”1297 According to Eshleman, Mr. Z was in a “very vulnerable position” and
both organizations appreciated that fact.1298
It was agreed that CSIS would take the “lead role” in order to develop the required
intelligence, since it was directly involved in handling the human contact who
1293
1294
1295
1296
1297
1298
Exhibit P-101 CAA0509(i).
Exhibit P-101 CAA0510(i).
Exhibit P-101 CAA0510(i), p. 1.
Exhibit P-101 CAB0689(i), p. 2.
Exhibit P-101 CAA0510(i), p. 2.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9416.
207
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was providing new information on Air India.1299 Warren also invited the RCMP to
access CSIS’s Ottawa data bank on the RCMP’s names, incidents, or other points
of interest. An internal RCMP record of this meeting states that this proposal
would “…be reviewed by the Task Force.”1300
There was also discussion, largely between Claxton and Insp. Hoadley, of the
“…question of joint liaison officers.” This suggestion was felt by Hoadley to
have been “somewhat precipitated” by the RCMP’s informing CSIS on October
24th that they were going to “move in” on interviews in the area in which CSIS
maintained an interest and that “…it is obvious that we are getting close to their
source, whose identity they are protecting. This latter arrangement is still being
negotiated.”1301
There was further agreement that close coordination between the RCMP and
CSIS would take place, and a proposal was made that a CSIS member who was
knowledgeable about this lead would work “hand in hand” with the RCMP, and
that the RCMP would prepare the “necessary ground work” to act on the CSIS
information. These steps would be a “…safeguard preventing overlaps which
would in turn jeopardize this new incoming information.” It was even suggested
by Holmes that Solvason, the RCMP handler for Mr. Z, did not have to know
about this latest lead.1302 It would seem that Holmes was unaware at the time
that Solvason had, in fact, developed essentially the same information from Mr.
Z – the same source.
From Grierson’s perspective, it was “significant” that Holmes offered to keep this
information from the RCMP handler. This suggestion was a “very significant
departure” from the way the RCMP normally operated. It meant that when that
information went to the NCIS unit, Solvason would know the investigative lead,
but not where it came from. This was important for CSIS because it would allow
CSIS to “flesh” out the information.1303
When asked about the significance of having someone like Warren attend an
investigative operational meeting such as this, Grierson commented that this
was not something that happened routinely, but did happen on an “irregular
basis.” His feeling was that having someone from HQ come out to the field
allowed situations to be addressed “…from a national perspective in support
of our efforts in the Air India investigation.” Also, since Warren had personal
familiarity with many senior managers in the RCMP, that it would be beneficial
“…in terms of exploring these opportunities and ensuring that we come to
some consensus to fully exploit this without getting into the usual problems.”
This allowed for the possibility of making policy decisions that “…may be things
we wouldn’t have done before.”1304
Coming out of this meeting, the intention was that Eshleman would continue to
handle Mr. Z, and that Mr. Z’s information would be available to both agencies.
1299
1300
1301
1302
1303
1304
Exhibit P-101 CAA0510(i), p. 2.
Exhibit P-101 CAF0447.
Exhibit P-101 CAF0447, pp. 1-2.
Exhibit P-101 CAA0510(i), p. 2.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, p. 9501.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9498-9499, 9511-9512.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
However, despite what appeared to be an ideal plan – at least from CSIS’s
perspective – things did not go according to that plan.
RCMP Reports Back about CSIS Information – Parallel Investigations
Discovered
While management of both agencies recognized the risk that “overlaps” could
pose to the “new incoming information,”1305 the unfortunate reality was that this
overlap had been occurring on the ground, undetected, for some time.
After learning of CSIS’s information about the two Sikhs who had checked in the
luggage, Hoadley made subsequent inquiries with Task Force investigators. It
was through these inquiries that he learned that the RCMP was, in fact, already
aware of the two individuals in question and had been for some time – as
demonstrated by a June 17, 1986, report from the Surrey detachment (likely
the original source debriefing report), by an internal Task Force document from
September 19, 1986, as well as by the subsequent source debriefing in early
October, 1986.1306
On December 2, 1986, Hoadley initiated a meeting with Claxton, during
which CSIS was advised that the identities of the two Sikhs who had checked
in the luggage was already known to the RCMP, that the RCMP was currently
investigating this aspect and that the information was developed by Solvason in
Surrey from Mr. Z. Claxton was informed that this information had already been
passed to the CSIS BC Region, referring to a September 10, 1986 report by Sgt.
Robert Wall that had been made available to CSIS BC Region and subsequently
to CSIS HQ. However, CSIS took issue with this assertion, stating that the
information contained in Wall’s report did not make CSIS aware of the “…full
extent of the RCMP investigation” nor did it clarify the RCMP interest in these
two individuals. CSIS DDG OPS Osborne and the A/Chief, CT wrote that the
RCMP “…were conducting this aspect of their investigation parallel to ours and
CSIS BC Region was not cognizant of it.”1307 When asked about his view on the
decision that had originally been made by RCMP Headquarters to permit CSIS
to take control of this lead, Wall was unable to think of any possible rationale for
that decision.1308
On December 3, 1986, John Stevenson, CSIS BC Region, met with Wall and
Cpl. K. Schmidt at E Division and discussed these recent developments.1309 In
his testimony, Wall recalled the members of CSIS showing up at his office and
being “accusatory” toward Wall and the RCMP for not having earlier revealed
the nature of the investigation to CSIS, particularly in light of the fact that, at the
regional meeting, CSIS was told that it was going to take the lead. As far as Wall
could recall, the meeting ended with the understanding that the RCMP would
continue with its own investigation of this lead.1310
1305
1306
1307
1308
1309
1310
Exhibit P-101 CAA0510(i), p. 2.
Exhibit P-101 CAA0512(i).
Exhibit P-101 CAB0689(i), p. 3.
Testimony of Robert Wall, vol. 77, November 16, 2007, p. 9722.
Exhibit P-101 CAB0689(i), p. 3.
Testimony of Robert Wall, vol. 77, November 16, 2007, pp. 9724-9725.
209
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Wall explained to CSIS that he had one man investigating the issue and agreed
to coordinate his unit’s activities in this regard with those of CSIS. Osborne and
the A/Chief, CT CSIS BC Region, did not interpret the RCMP’s withholding of
information as intentional and considered this to be a case where “…the left hand
was not totally aware of what the right hand was doing.” Claxton commented
that, while he similarly did not view this confusion as a deliberate attempt to
deceive CSIS, he would have expected the RCMP to “…discuss such findings and
could have readily compared notes on [redacted] speculation.” It was felt that
this “dilemma” could have been avoided if the Task Force investigators had been
involved in the November 25th meeting about this issue.1311
It seems that the RCMP continued to experience internal difficulties in sorting
out how this information came to be developed. That same day, in a “secret”
December 3, 1986 “overview report” produced by RCMP HQ on “Project
Colossal,”1312 it was reported that “…CSIS have supplied information which
may lead to the identification of two Sikhs who checked baggage containing
explosives at Vancouver International Airport.” The report indicates that the
lead is “extremely sensitive,” and thus “…no dissemination is permitted beyond
addressees.”1313 It appears that, despite the fact that this information was, in fact,
first developed by the RCMP, this connection continued to remain unrecognized
by those responsible for creating the very summaries that were meant to
keep HQ and investigators in the various Task Forces aware of important
developments.1314
CSIS Reports its Mr. Z Information to the Solicitor General
Still positive about the possibilities raised by the Mr. Z information, CSIS was
eager to report on the information it had developed. On December 19, 1986, CSIS
Director Ted Finn sent a letter to the Solicitor General of Canada, the Honourable
James Kelleher.1315 Finn provided an update about the Mr. Z information,
indicating that the individuals identified by Mr. Z as having checked in the
luggage had been established by CSIS as having “…links to the main suspects
in the Air India disaster.” In CSIS’s view, there was a “…high probability that this
information is accurate.” Finn noted that the “…RCMP was fully apprised, by the
Service, of this information,” first at the Headquarters level on November 18,
1986, and then at the E Division level on November 25, 1986.1316
1311 Exhibit P-101 CAB0689(i), pp. 3-4.
1312 The code name for RCMP investigations of Sikh extremist conspiracies including the Air India
disaster investigation.
1313 Exhibit P-101 CAB0688(i), p. 4.
1314 Exhibit P-101 CAF0504, p. 2. In early 1986, as part of RCMP HQ initiatives in relation to Project
Colossal, it undertook to produce an Overview Report for dissemination to the Divisions every 48
hours. Division Task Forces were required to provide updates on their investigative activities to
HQ every 24 hours. It appears that RCMP NSOTF Overview Reports were routinely provided to CSIS as
well as to the Divisions. See for example, Exhibit P-101 CAB0701, CAB0730(i).
1315 Exhibit P-101 CAF0449.
1316 Exhibit P-101 CAF0499, pp. 1-3.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
In January 1987, CSIS conducted file research in British Columbia as part of its
continuing attempt to identify the perpetrators of the alleged bombing of Air
India Flight 182. At that time, it was discovered that there were calls, including in
June 1985, from the home of Talwinder Singh Parmar to the home of one of the
two Sikhs identified by Mr. Z as being responsible for delivering the bags. This
meant that there were now links established between this individual and both
Bagri and Parmar – two of the RCMP’s main suspects in the Air India investigation.
CSIS’s Chief of Counter Terrorism advised the RCMP Liaison Officer, Insp. John
L’Abbe, of this information on February 17, 1987, and stated that the calls from
Parmar provided a reinforcing link between the organizer and the family of the
men identified by the CSIS source as the delivery people.1317
A few weeks later, CSIS produced a comprehensive analytical report on
the bombing of Air India Flight 182, which was the result of a “…thorough
review of information in its possession” from CSIS sources and leads from
police inquiries. The report sets out a chronology of events that led up to the
bombing, and includes CSIS’s theory of the case and a list of “weakest links” in
the conspiracy.1318 CSIS reported that, according to Mr. Z, it was probably Bagri
who made the arrangements to have the bombs brought to the airport and
checked in at Vancouver airport. Mr. Z indicated that Bagri enlisted the services
of the two Sikhs and, in fact, Parmar and Bagri remained in the parking lot of the
airport while the baggage check was conducted. The report states that “…this
seems entirely plausible when weighed against supporting data which we have
developed.”1319
CSIS Forced to Terminate Contact with Mr. Z
Mr. Z was “significant” in terms of his “long-term potential” for CSIS. He was
important not only for the information he could provide in relation to Air
India, but also in relation to Sikh extremism more generally. Eshleman testified
however, that despite a seemingly ideal agreement that had been made
between the RCMP and CSIS in late November (where it was decided that Mr.
Z’s information was to be developed jointly, with CSIS taking the lead), CSIS
terminated its relationship with Mr. Z shortly afterwards and turned over control
of this source to the RCMP.1320
The impact of losing a source like Mr. Z was that it prevented CSIS from “…
developing people that have access to our target area in the Sikh community.”
If “…we lose that person … we lose that access.”1321 As CSIS did not have a “great
number” of individuals providing valuable information to the Service, when
it lost one it was “frustrating” for investigators.1322 For Eshleman, this was just
another “…example of CSIS losing a source to another organization.” It was felt
1317
1318
1319
1320
1321
1322
Exhibit P-290, Admission D.
Exhibit P-101 CAB0717(i).
Exhibit P-101 CAB0717(i), p. 14.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9391, 9416-9417.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, p. 9502.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9416-9417.
211
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that the “…Air India investigation took preceden[ce] over everything,” including
the “…bigger picture of Sikh extremism.” While CSIS’s views “…perhaps were
listened to … they certainly didn’t prevail in the debate.”1323
Grierson’s view was that:
Mr. Z was in a position where he had access, very good access
to the community. So he represented good potential. How
that would have developed had we had the opportunity to
work with it remains unknown.1324
Conclusion
The Mr. Z story is an example of the problems that can arise in national
security investigations where there are deficiencies in the centralization of the
investigation.1325 Once CSIS had decided to brief RCMP HQ about the Mr. Z
information it had uncovered, RCMP management, despite its best efforts to
reach a mutually agreeable solution with CSIS, was ineffective, as it was unaware
that the RCMP had already developed the Mr. Z information independently and
was currently pursuing this lead. The failure of both agencies to keep each other
informed in a timely way meant that parallel investigations were allowed to
proceed for some time before they were detected. Also, woven into the fabric
of the Mr. Z narrative is a thread of mistrust between the two agencies, mostly
at the lower management and investigator level. CSIS hesitated in passing its
information to the RCMP, having already experienced the problems that could
be caused for its own investigations by sharing information with the RCMP.
CSIS was very optimistic about the Mr. Z information, reporting to the Solicitor
General that there was a “…high probability that this information is accurate.”1326
However, when the RCMP finally began to follow up on the Mr. Z information,1327
it appeared to be eager to dismiss this lead, which ultimately “…dissolved into
another dead end.”1328 The dissolution of yet another promising lead, and the
loss of yet another valuable source, could only have served to further fuel the
climate of mistrust and resentment that had been brewing between the two
agencies.
1.5 Ms. D
Introduction
Ms. D was hired by Ripudaman Singh Malik as the Pre-School Supervisor of the
Khalsa School in Surrey BC, in September 1992. She was a Sikh by birth, who
1323
1324
1325
1326
1327
1328
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9416.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9500-9502.
See Section 2.0 (Post-bombing), Set-up and Structure of the Federal Task Force.
Exhibit P-101 CAF0499, p. 1.
See Section 2.3.2 (Post-bombing), Mr. Z.
Final Submissions of the Attorney General of Canada, Vol. I, para. 259.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
was married to a Hindu man and had two children.1329 This school, although
geared towards religious teachings, allowed Ms. D to enter into a “…non-Sikh
employment contract,” which permitted her to wear dresses and to have short
hair.1330
Ms. D became involved in the Air India investigation in 1997, speaking first to
CSIS for a short period of time and then to the RCMP Air India Task Force. She
was the Crown’s main witness in the prosecution against Malik for the Air India
and Narita bombings. Her dealings with the RCMP and CSIS illustrate once
again some of the cooperation issues that arose when individuals provided
information to both agencies. In this case, CSIS rapidly turned Ms. D over to
the RCMP, but nevertheless failed to retain the notes made during its initial
interviews with her. The manner in which the RCMP addressed Ms. D’s security
concerns – providing protection as needed, and then rapidly moving Ms. D into
the Witness Protection Program – represents a sharp contrast to the treatment
and protection of Ms. E, who had demonstrated less willingness than Ms. D to
cooperate with the RCMP.
Despite the RCMP’s willingness to protect Ms. D, it was discovered in this Inquiry
that an error led to the release of her identity by the RCMP. This error may have
been related to the involvement of multiple RCMP units with Ms. D, and it led
to her entry into the Witness Protection Program much earlier than would
otherwise have been necessary. This was of concern to CSIS, and it obviously
had a significant impact on Ms. D’s life. That impact was not necessarily fully
appreciated by the RCMP.
Ms. D’s Information
Ms. D testified at the trial of Malik and Bagri that while working at the Khalsa
School, she became close to Malik. She worked long hours and assisted him
in many matters involving not only the Pre-school but also the main Khalsa
School. Eventually, she began to accompany him to numerous political events
to which his wife was not invited.1331 She explained that her relationship with
Malik ultimately became very close and intimate,1332 and that, as a result, he
made a number of admissions to her.
Ms. D testified that in May 1996, Malik brought up the Air India bombing during
a heated discussion about a student at the Khalsa School who had attempted
suicide.1333 At that time, Ms. D said that Malik first told her “…if one child dies for
Sikhism, so what?” and then said “…[in] 1982, 328 people died; what did anyone
1329 Ms. D is the pseudonym adopted by Justice Josephson for this woman who was a witness at the Air
India Trial. Her identity is protected by a permanent publication ban, which is mentioned at the
beginning of R. v. Malik and Bagri, 2005 BCSC 350.
1330 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 275-276.
1331 R. v. Malik and Bagri, 2005 BCSC 350 at para. 271.
1332 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 276, 281-282. Ms. D’s description of her relationship
with Malik was questioned at trial, and not entirely accepted by the trial judge. Her claim was that
Malik professed his love for her in 1995, that she had similar feelings which she did not express,
and that the romantic aspect of their relationship developed no further.
1333 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 305-309.
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do? … People still remember Khalistan.” Later in the discussion, Ms. D reported
that Malik added: “...we had Air India crashed” and “…nobody, I mean nobody
can do anything. It’s all for Sikhism. Cudail [the student who had attempted
suicide] won’t get anywhere. Ministry won’t listen; no one will.”1334
Ms. D also testified that in March 1997, Malik revealed intimate details of the
roles that he and others had played in the Air India conspiracy, explaining that
the Air India and Narita bombings were related to the pro-Khalistan movement,
that each person had been assigned a task and that Malik had been generally
responsible for overseeing them. According to Ms. D’s testimony, Malik also
indicated at that time that he had personally booked and paid for the airline
tickets later used to check in the suitcases carrying the bombs on board the
planes.1335 Ms. D explained that Malik had made those admissions after she
confronted him with a newspaper article (which Mrs. Reyat had translated for her
from Punjabi to English) that revealed that a number of arrests were imminent
in the Air India investigation, and that referred to Malik as a suspect.1336 Ms. D
added that, after the discussion, Malik told her not to repeat to anyone what she
had learned, or even to acknowledge that she knew anything. She explained
that Malik warned her that people would know that the information came from
him, and that it would get her into a lot of trouble, adding that he could protect
her if he was there, but that she should remember that he could not always
protect her.1337
Ms. D also reported that in April 1997, she overheard a conversation between
Malik and Raminder Singh Bhandher (“Mindy Bhandher”) in the trustee’s office at
the Khalsa School. The conversation related to a meeting at which Malik, Bagri,
Parmar and one of their associates, Avtar Singh Narwal, had been looking at a
diagram of an aircraft. Malik later admitted to Ms. D that the meeting had taken
place before the Air India bombing, and that the Anashka (plan or drawing) they
were looking at was “…about the Air India that fell.” Narwal’s son had come in
during the meeting and had since been telling others about what he had seen.
Ms. D explained that, in the conversation she overheard, Malik was asking why
the boy had not been stopped from revealing this information.1338
Finally, Ms. D testified that Malik told her about some meetings he had attended
prior to the bombing, including one in Calgary, where the progress of the Air
India plan was discussed, and one in Seattle, where Malik’s spiritual leader
blessed the Air India plot. She added that Malik admitted to having asked Mr. B,
another witness at trial, to carry a suitcase for him onto an Air India plane.1339
1334 R. v. Malik and Bagri, 2005 BCSC 350 at para. 308. This account is also detailed, in a similar fashion,
in Kim Bolan, Loss of Faith: How the Air-India Bombers Got Away With Murder (Toronto: McClelland
& Stewart Ltd., 2005), pp. 152-153 [Bolan, Loss of Faith].
1335 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 285, 287, 291-292.
1336 Ms. D testified that the “Newspaper Confession” took place on one of the following dates: March 28,
1997, March 31, 1997 or April 2, 1997.
1337 R. v. Malik and Bagri, 2005 BCSC 350 at para. 303.
1338 R. v. Malik and Bagri, 2005 BCSC 350 at para. 311.
1339 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 312-314.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Initial Contacts with CSIS
Ms. D testified that she initially contacted CSIS to find out about the origin of
persistent rumours that she was working for CSIS and providing the Service
with information about Malik.1340 This followed a progressive deterioration of
her relations with Malik and the Khalsa School administration.
In May 1996, Ms. D filed a complaint with the British Columbia Human Rights
Commission against the Khalsa School administration because of comments
made by a school trustee, Aniljit Singh Uppal, about her manner of dress, and
because she was being asked to sign a Sikh employment contract. She testified
at trial that Malik convinced her to withdraw her complaint on the same day that
it was filed. Then, in August 1997, Ms. D’s relations with Malik became strained
because she had a dispute with Uppal, and because of persistent rumours
that she was a CSIS informer and had been recording her conversations with
Malik.1341
Ms. D testified that, on August 28, 1997, one of the school’s officials, Balwant
Bhandher, pushed her onto a chair and told her that she had to provide a written
“voluntary” resignation to the school. She said that he warned her not to go to
the media or to the police and that he added that Malik had the power to have the
RCMP arrest her. Ms. D stated that she called Malik later that evening and asked
why she was being accused of being a spy. She explained that he responded
that he had been told that she had been recording their conversations, that he
was afraid of her and that he did not want her at the Khalsa School, though she
did not have to resign from the Pre-school. She testified that he asked her to
write a letter stating that she would refrain from entering the Khalsa School, and
that she provided him with such a letter in early September.1342
Ms. D testified that, after she complied with Malik’s request and resigned from
the main school, he began to ask for her resignation from the Pre-school as
well. She stated that the Khalsa School was attempting to cut all ties with her
between August and October 1997. In September 1997, she contacted the
British Columbia Human Rights Commission to request complaint forms.1343
Ms. D testified that, in September 1997, she told a friend that she was tired of
the rumours about her being a CSIS spy, and that she was willing to approach
CSIS herself to ask about the rumours. Her friend, who had already spoken with
CSIS, provided her with the business card of CSIS agent Nicholas Rowe. She
contacted him by telephone on October 15, 1997, and they agreed to meet
on October 17th at a local coffee shop.1344 In internal correspondence, a CSIS
representative later noted that CSIS had found out that Ms. D had had a “falling
out” with Malik, and that he had tried to force her to resign her position at the
Khalsa School, and that this was the reason why the Service had begun speaking
with her.1345
1340
1341
1342
1343
1344
1345
R. v. Malik and Bagri, 2005 BCSC 350 at para. 328.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 315, 317, 323-324, 327, 432, 434.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 316-318.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 319, 325.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 328, 379.
Exhibit P-101 CAF0436.
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On October 17, Ms. D met with Rowe as agreed. The meeting began at the
coffee shop, but moved to Rowe’s vehicle once he was advised that Ms. D had
been the victim of threats and intimidation. Ms. D testified that, during this
meeting, she asked Rowe about the rumours that she was a CSIS spy, and he told
her that he would get back to her. She had no other recollection of the meeting,
except that she indicated that she also told Rowe that she did not want to meet
with the RCMP, as she was afraid of them. Rowe, for his part, recalled that Ms.
D talked about being afraid for her safety and about having been the victim
of threats and intimidation, and also mentioned being accused of informing
for the Government of BC and for CSIS. The meeting was concluded with an
agreement to meet again at a secure location.1346
Ms. D testified at trial that, on the same day she had her meeting with Rowe,
she also met with Malik, who offered her a chance to remain employed at the
Pre-school, provided she follow Sikh contract rules and donated ten per cent
of her income to the school. She explained that, when she refused, Malik told
her that she could either resign or be laid off, and then confronted her again
with accusations that she had been recording his telephone calls. Ms. D then
recounted that on the morning of October 20th, Malik phoned her to tell her that
he was afraid of her, that she knew too much, and that he wanted her to resign.
She said that on the same day she received two threatening telephone calls
from a person with a Punjabi accent, warning her that she was being watched
and that she should leave Malik alone, and that, later that evening, she was
followed by a van and felt that the people inside were trying to intimidate her.
She testified that when she confronted Malik about these incidents, he told her
that it was too bad and that she should resign.1347
Ms. D then met with Rowe again on October 21st and 24th, in a hotel, for meetings
which each lasted between two and two-and-a-half hours. She had little
recollection of the details of these meetings. Rowe included the information he
had received from Ms. D in intelligence reports he prepared after his interviews
with her, and later stated that he had received a large amount of information
from Ms. D during these meetings about Malik and the organizations he was
involved with. Rowe explained in testimony at trial that he prepared for his
meetings with Ms. D by reviewing CSIS databases and writing questions, and
that he had used the meetings to gather as much information as possible from
her.1348
Rowe did not tape any of his interviews with Ms. D, but he explained in his
testimony at trial that he took careful notes during the meetings, writing down
what Ms. D said verbatim or making efforts to summarize everything she was
saying. He used his notes to prepare his intelligence reports. The reports did
not attempt to capture the exact words spoken by Ms. D. The vocabulary and
phraseology were primarily Rowe’s, and he was at times selective in terms of
1346 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 329, 373, 380.
1347 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 320-321.
1348 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 331, 374, 381, 392, 394.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
the information he included in the reports, though he did endeavour to be as
accurate as possible in summarizing and reporting what Ms. D had expressed
to him.1349
According to Rowe’s reports, Ms. D provided information during the October
meetings about improprieties in Malik’s management of the Khalsa School
including: the levying of hidden tuition fees which constituted fraud on the
Ministry of Education; the misuse of government grants; attempts to defraud the
unemployment insurance program by manipulating the employment status of
teachers at the school; and welfare fraud by employing Reyat’s wife “under the
table.” Ms. D also advised that Malik engaged in financial or tax fraud through
the use of the Satnam Trust, and misappropriated funds from the Khalsa School
account. She stated that Malik engaged in various forms of immigration fraud
by issuing fake credentials to qualify for visitors’ visas to Canada, and that he
employed religious instructors who were in Canada illegally. She added that
Malik ran a tour company, which he used to smuggle money and valuable items
into India. Finally, she advised that Malik sponsored visits by fundamentalist
groups, held private meetings with members of militant groups in the school,
and provided funding and support for militant or terrorist activities, although,
in this last case, Ms. D stated that her knowledge was based on information
which was “hearsay and circumstantial.”1350
After the two meetings at the hotel, Ms. D and Rowe were in contact by telephone
to arrange a subsequent meeting.1351 Before this meeting took place, a decision
was made at CSIS that Ms. D had to be introduced to the RCMP.
Introduction to the RCMP
CSIS initially contemplated using Ms. D as an ongoing source, but decided by
October 29, 1997, that she had to be handed over to the RCMP. Rowe wrote
in his reports that the information provided by Ms. D was “…of considerable
interest to the Service’s investigation of the Babbar Khalsa International,” but
that she was also providing intimate details about substantial frauds committed
by Malik, a former target of CSIS. Rowe’s reports indicated that Ms. D wanted
her information about Malik’s criminal activities passed on to the competent
authorities, that she requested to be put in contact with these authorities and
that she understood that full cooperation with the RCMP might be necessary for
her to “get back” at her antagonists at the Khalsa School.1352
In subsequent correspondence, a CSIS BC Region representative, Bill Turner,
explained that the Service was in the process of recruiting Ms. D as a source when
it became apparent that she had “inside knowledge” of frauds and irregularities
at the Khalsa School, which involved Malik.1353 Turner explained in testimony
before the Inquiry that CSIS then concluded that Ms. D’s information was of little
1349
1350
1351
1352
1353
R. v. Malik and Bagri, 2005 BCSC 350 at para. 386.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 394.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 382.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 382, 396.
Exhibit P-101 CAF0436; Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8331.
217
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value to the Service, but would be of great value to the RCMP. He explained
that, within a matter of weeks, CSIS passed the information over to the RCMP
and made arrangements to introduce Ms. D to the RCMP.1354 He noted that the
RCMP found Ms. D’s information to be “of good quality.”1355
On October 29, 1997, Rowe contacted Cpl. Doug Best of the RCMP Air India
Task Force to set up a meeting to introduce Ms. D to him. Rowe testified at trial
that, on the same day, he met with Ms. D “…to discuss the issue of her transfer
to the RCMP.” He said that Ms. D accepted this arrangement and “…seemed to
recognize that she had no choice but to continue.”1356
On October 30, 1997, Ms. D met with Rowe and Best at a secure location. At that
time, the reasons why the RCMP would take over the case were discussed with
Ms. D. Best advised her that he was with the Air India Task Force, and provided
her with his business card and contact numbers at the end of the meeting.
According to a report that Rowe wrote in 1999, Best advised Ms. D during
the meeting that her information was needed in court, and she consented to
testifying. Best also explained that, if required, the RCMP could offer Ms. D
financial assistance and protection for herself and her family. Rowe noted that
Ms. D “…appeared to be totally at ease with Best and her circumstances.”1357
In her testimony at trial, Ms. D indicated that she had repeatedly told Rowe that
she did not want to meet with the RCMP, and did not trust them. She stated
that she was angry to find that Best was present at the October 30th meeting,
that she had not “hit it off ” with Best and that she had lost any interest in talking
to him when he mentioned that he was with the Air India Task Force. Justice
Josephson did not believe Ms. D’s claims that she did not want to meet with the
RCMP, and found that she had wanted her information about Malik’s criminal
activities to go to the police, had consented to meeting with the RCMP and had
agreed to become a witness against Malik, and perhaps even an agent for the
RCMP.1358
After the October 30th meeting, Ms. D called Rowe once1359 and then ceased her
communications with him and began to have frequent discussions with the
RCMP.
Ongoing Contacts with the RCMP
On November 1, 1997, Malik called Ms. D to attempt once again to secure her
resignation. He called her again later that day to inform her that she was being
terminated. Ms. D then contacted Best to advise that she had received harassing
phone calls from Malik. She advised Best that she had no intention of accepting
1354
1355
1356
1357
1358
1359
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8331-8332.
Exhibit P-101 CAF0436.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 383.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 384, 403, 406.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 332, 373, 375, 722-728.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 334, 385.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
her termination and that she would present herself at work on the following
Monday, November 3rd. On November 2nd, she met with Best and Insp. Gary Bass
at an RCMP detachment in Surrey and provided an account of her association
with Malik and of her knowledge of his fraudulent business practices.1360
On November 3rd, she again met with Best and a number of other RCMP officers
at a local restaurant. The officers provided her with a transmitting device to
carry in her purse when she attended at the Pre-school, giving her a code word
to signal them if she felt threatened. When Ms. D arrived at the school, she was
immediately asked to leave by Uppal. She requested written proof that she had
been fired. After Uppal and Balwant Bhandher handed her a letter to that effect,
she said that they began to follow her and intimidate her. Ms. D called out the
code word and a team of seven officers came to the school to escort Ms. D out.
Bhandher was arrested on this occasion.1361
Ms. D then went to the police station and provided the first in a series of formal
statements to the RCMP. After that time, she had regular contact with the RCMP.
She received weekly visits from Best or S/Sgt. John Schneider of the Air India
Task Force, who changed the videocassettes in the security cameras that had
been installed at her house. In early November 1997, she advised the RCMP
about the admission Malik had made during their discussion about the student
who had attempted suicide. Though during her testimony at trial she claimed
not to recall it, she also continued to provide information relevant to the Air
India investigation over the following months.1362 She gave information about
an individual in Toronto, in an attempt to assist the police in identifying Mr. X,1363
and about other individuals who might agree to cooperate with the RCMP.1364
She provided the RCMP with pages from the journal she kept in 1996-97 in
which she had recorded her meetings and conversations with Malik about Air
India, as well as conversations with others which tied Malik and Bagri to the Air
India bombings.1365 She claimed that she had destroyed the rest of the journal
to protect herself.1366
In November 1997, Ms. D received the forms she had earlier ordered from
the British Columbia Human Rights Commission and filed an employment
discrimination complaint against the organizations overseeing the Khalsa
School, which included allegations of physical and verbal harassment. In January
1998, Ms. D also commenced a civil lawsuit for wrongful dismissal, which was
ultimately settled out of court for $12,000.1367
1360
1361
1362
1363
1364
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 322, 335-336, 407, 409.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 335-337, 376, 410-412.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 337, 363, 377, 413.
See Section 1.5 (Pre-bombing), Mr. X.
All of the information given by Ms. D to the RCMP is detailed at R. v. Malik and Bagri, 2005 BCSC
350 at para. 414.
1365 See, generally, R. v. Malik and Bagri, 2005 BCSC 350 at paras. 340-348, 414.
1366 See, generally, R. v. Malik and Bagri, 2005 BCSC 350 at para. 340. The remaining portions of the
journal, which were disclosed to the accused in the Air India Trial, were the subject of legal debate
in two main rulings: R. v. Malik, Bagri and Reyat, 2003 BCSC 231 (Ruling re Editing of the Witness’s
Testimony and Statements) and R. v. Malik and Bagri, 2003 BCSC 1387 (Ruling on the Admissibility of
the Witness’s Evidence Regarding her Discussions with Mrs. Reyat).
1367 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 325-326.
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On January 8, 1998, Ms. D provided a statement to the RCMP Commercial Crime
Unit. She also spoke to the Ministry of Education, which was auditing the Khalsa
School.1368
Though she provided much information to the RCMP, beginning in November
1997, Ms. D waited until March 28, 1998 to reveal her information about the
detailed confession Malik was alleged to have made in March 1997 when
confronted with the newspaper article. Ms. D then met with Schneider and Best
on April 2nd and April 27th to provide a formal statement.1369 In late July 1998,
CSIS reported that the RCMP had polygraphed Ms. D about her information and
that she had “…passed with flying colours.” According to this report, she was to
become “…one of the main witnesses at the Air India trial.”1370
Reporter Kim Bolan, who was in contact with Ms. D since October 1997, believed
that the explanation for Ms. D’s failure to reveal Malik’s detailed confession when
he was confronted with the newspaper article related to Ms. D’s reluctance to
testify. She wrote in her book about the Air India tragedy that Ms. D “…felt thrust
into the camp of the police,” and had difficulty trusting the RCMP investigators.
She reported that Ms. D did not want to be a witness, especially in the Air India
case, as she felt “…it would be a death sentence.” Bolan wrote that, in February
or March 1998, Ms. D asked her to consult the Vancouver Sun’s lawyer about
whether she could be forced to be a witness. Bolan explained that she then
provided information about the hearsay rule that turned out to be inaccurate
and that could have led Ms. D to believe that she would not have had to testify
about what Malik had told her.1371 It was shortly after that time that Ms. D
revealed to the RCMP her information about the detailed admissions she said
Malik had made when he was confronted with the newspaper article.
Ms. D continued to reveal new information to the RCMP in subsequent years.
In October 2000, she provided her information about the conversation she
overheard (and Malik’s subsequent admissions to her) about Narwal’s son,
and the plans for the Air India plane which was bombed. In October 2003, she
mentioned for the first time the Seattle meeting where Malik’s spiritual leader
was alleged to have blessed the Air India plot.1372
Threats and Intimidation
From the beginning of her dealings with the authorities, Ms. D indicated that
she had been the victim of threats and intimidation and that she feared for
her safety. Early on, in November 1997, the RCMP installed a video surveillance
camera at her residence.1373 Ms. D continued to receive threats after she began
speaking with the RCMP.
1368
1369
1370
1371
1372
1373
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 377, 414.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 338.
Exhibit P-101 CAF0436.
Bolan, Loss of Faith, pp. 167-168, 217-218.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 369-371.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 377, 380, 396, 414.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
On February 14, 1998, Ms. D was warned by a relative of Balwant Bhandher to
be careful because Malik, Bhandher and Uppal had met and would “…try to
shut her up permanently.”1374 Shortly thereafter, she was approached at a Sky
Train station and told by a young East Indian male that Malik would “finish” her
and reporter Kim Bolan. In March 1998, eggs were thrown at her house in the
middle of the night, and she received a number of unsettling phone calls.1375
In June 1998, Ms. D was at the shopping centre with her child when a former
acquaintance from the Khalsa School approached her and warned her that she
was creating a lot of problems. The individual was aware of personal information
about Ms. D’s child and warned her that she and her family would be severely
harmed if she did not “watch it.”1376
In July 1998, Bolan contacted the RCMP and advised that she had received
information about a “hit list,” and had been told that a person from the US
would come with AK-47s to take care of the hit list. Ms. D’s name was reportedly
included on the list, as well as the names of Tara Singh Hayer and Bolan herself.
At the time, Bolan, who had heard a gun shot on her street on July 16th,
reported to the RCMP that she felt that the person from the US with the AK-47s
was “…already in town to carry out the hit list contract.” As a result of the hit
list information, an additional video surveillance camera was installed at Ms. D’s
residence by the RCMP.1377
The Release of Ms. D’s Name
In late July 1998, shortly after the information about the “hit list” was received,
a newspaper article was published in Surrey concerning allegations of fraud
involving Reyat’s wife and the Khalsa School. An Information to Obtain a
search warrant had been sworn in connection with the case by someone from
the Ministry of Social Services. The Information identified Ms. D and another
individual as two persons from the Khalsa School who had provided information
to RCMP investigators. A reporter had obtained a copy of the document from
the Court and, as a result, the published story identified Ms. D.1378
The RCMP attempted to find out how Ms. D’s name ended up being released in
this manner. The Force contacted the appropriate members to verify whether
the RCMP warrants were sealed, and whether someone from the Ministry could
have provided a copy of the warrants to the reporter.1379 Bill Turner of CSIS found
out what had happened and reported it in an electronic message dated July
31, 1998. He explained that the Information to Obtain prepared by the RCMP
Commercial Crime Section was based largely on Ms. D’s information and that of
the other individual. When the Information was filed in Court and the search
warrant obtained, “…someone forgot to ask that the Information be sealed, and
it was not, and therefore available to the public.” This is how reporters were able
1374
1375
1376
1377
1378
1379
R. v. Malik and Bagri, 2005 BCSC 350 at para. 352.
Exhibit P-101 CAF0485, pp. 1, 3.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 352.
Exhibit P-101 CAF0485, pp. 3, 5.
Exhibit P-101 CAF0485, p. 6.
Exhibit P-101 CAF0485, p. 6.
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to obtain a copy of the document identifying Ms. D. As of July 31st, Turner noted
that “…some of this information has already been published and the rest of it is
in the public domain.”1380
On the day that the news article identifying her was published, Ms. D was
contacted by the RCMP and was read parts of the article. The RCMP suggested
that she and her family move to a different location “for a while” at RCMP expense
in order to allow the Force to “…assess the threat situation.” She replied that she
felt “secure enough” at home and did not want to move out at that time. The
police provided additional patrols for the residences of Ms. D. and the other
individual named in the news story. The following day, Ms. D advised that no
problems had been encountered since the previous day, and that she still felt
that moving away was not necessary.1381
In the next days, the investigative team consulted with the RCMP Witness Source
Relocation Unit. It was determined that “…it could be necessary to move [Ms.
D’s] family in the next few days.” The RCMP again suggested a temporary move
to Ms. D for security purposes, but she was “…still reluctant to do so.” The RCMP
resolved to “…discuss the option with her and her family members.” In the
meantime, arrangements were made by the RCMP to do protective surveillance
of Ms. D’s residence during the evening hours. The Commercial Crime Section
of the RCMP was also advised of the news article and the resulting potential
danger to its witnesses in the fraud case.1382
Four days after the news article disclosing Ms. D’s name was published, the
RCMP continued to provide protection for Ms. D and to attempt to convince
her to move into temporary accommodations for “…safety, evaluation and
assessment purposes.” It was resolved that “…once she agrees to do this,”
appropriate members would be notified, and that, in the meantime, a threat
assessment and “personal history forms” would be completed.1383
Ms. D ultimately “agreed” to a temporary move, as suggested by the RCMP. On
July 31, 1998, Turner reported that the RCMP, having “…quickly realized that
their source was now in danger” as a result of the publication of her identity, had
taken her and her family into “protective custody.” They were “…being hidden
outside of the Vancouver area,” and CSIS was asked to be on alert for any threats
against Ms. D. At the time, CSIS did not know how long the RCMP was planning
to keep Ms. D hidden.1384 By the time she testified at the Air India trial in 2003,
she had still not returned to her home. She had entered the Witness Protection
Program and had been moved to “…a number of temporary homes” since the
summer of 1998. She testified that she had assumed that her fifth move would
be permanent, but that she had then run into someone from her past and, as a
result, “…had to be moved yet again.”1385
1380
1381
1382
1383
1384
1385
Exhibit P-101 CAF0436.
Exhibit P-101 CAF0485, p. 6.
Exhibit P-101 CAF0485, pp. 6-7.
Exhibit P-101 CAF0485, p. 7.
Exhibit P-101 CAF0436.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 352-353.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
According to Bolan’s book, while entry into the Witness Protection Program
was offered to Ms. D’s whole family, her husband and her eldest child, who was
beginning university, refused to enter. Therefore, only Ms. D’s youngest son
accompanied her when she was relocated.1386 Ms. D was divorced by the time
she testified at trial. In her testimony, she became emotional in describing how
“…being in the Witness Protection Program had cost her her job, family and
contact with friends.” She also testified that she continued to have constant
concerns about her safety and security.1387 During the trial, Justice Josephson
had to intervene on a number of occasions to enforce the publication ban on
Ms. D’s identity.1388
The Impact on the RCMP/CSIS Relationship
CSIS was concerned about the RCMP’s failure to seal its Information to Obtain
and to protect Ms. D’s identity. In his July 31, 1998 electronic message entitled
“an interesting story,” Turner noted that, following this error, the RCMP had
advised CSIS “…that they will be much more diligent in handling CSIS sources or
intelligence” in the future.1389 In testimony before the Inquiry, Turner explained
that it was sometimes necessary “…to re-sensitise the RCMP to this issue of the
need to protect sources.”1390
The Impact on Ms. D and on the RCMP’s Ability to Recruit Sources and
Witnesses
At the Inquiry hearings, RCMP Deputy Commissioner Gary Bass, who headed the
renewed Air India Task Force constituted in 1995, testified that Ms. D agreed early
on to become a witness when she provided her information to the RCMP. Once
the RCMP “…decided we would use her as a witness,” the officers involved knew
that they were “…going to end up in witness protection with this individual.”
However, Bass explained that this would not necessarily have been discussed
with Ms. D “at that stage.”1391 Indeed, from Ms. D’s reaction to the initial RCMP
suggestions that she move away, after her identity was published, it appears
that this possibility had not been previously discussed.
During his testimony, Bass was uncertain whether the failure to obtain a
sealing order on the Commercial Crime warrant had resulted in Ms. D needing
to go into witness protection “…a good deal earlier.” He recalled obtaining
information about the “hit list,” though he could not recall the exact dates, and
felt that this probably had “…much more bearing on this witness going into
witness protection” than the issue of the unsealed warrant.1392 However, the
1386 Bolan, Loss of Faith, p. 177.
1387 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 273, 353.
1388 R. v. Malik and Bagri, ruling on February 28, 2003 (unreported); ruling on November 4, 2003
(unreported); ruling on November 6, 2003 (unreported); rulings on November 5 and 10, 2003
(unreported); ruling on November 12, 2003 (unreported).
1389 Exhibit P-101 CAF0436.
1390 Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8331-8332.
1391 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11270-11271.
1392 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11270-11271.
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contemporaneous documents produced before the Inquiry show that the issue
of the alleged “hit list” was already being addressed through other means, with no
suggestion of moving Ms. D and her family, before Ms. D’s identity was released.
In fact, another intended Air India witness, Tara Singh Hayer, was also listed as
a target on the alleged “hit list” and no suggestion was made to relocate him.
Rather, video surveillance was implemented at his residence, as was the case
for Ms. D.1393 Indeed, the RCMP later indicated that the “…continuous ‘rumours’
regarding the existence of a so-called ‘hit list’” had never been confirmed, despite
extensive efforts to do so.1394
In Ms. D’s case, it was only when her identity was published because of the
unsealed warrant, and when her cooperation with the authorities was thus
revealed, that the RCMP began its attempts to relocate her temporarily.1395 After
persisting for several days, the Force finally convinced Ms. D to move, and this
temporary relocation, in fact, marked her entry into the Witness Protection
Program. This was in July 1998. Malik was only arrested and charged in October
2000. Before that time, while Ms. D did receive threats as a result of her differences
with Malik about the Khalsa School, there is no reason to believe that she would
have needed to be moved into witness protection until her eventual appearance
as a witness in the case was disclosed, something that would only have taken
place after the start of the proceedings. Because the fact that she was providing
information to the RCMP was revealed publicly when the Commercial Crime
Information to Obtain was filed, Ms. D had to enter into the Witness Protection
Program over two years earlier than would have otherwise been necessary.
Ms. D testified at trial about the disastrous impact that her participation in
the Witness Protection Program had had on her life. Bolan also reported that
Ms. D told her that her “…whole life is ruined”; she had lost the opportunity
to watch her eldest son grow into a young man and her youngest son had
lost the opportunity to be with his brother and father. Bolan wrote that Ms.
D added that she would never recommend to anyone, who had not yet made
that decision and still had their family, to cooperate with the authorities and
risk being relocated like she was.1396 Given the difficulties she endured, Ms. D
would surely have felt that entering the Witness Protection Program two years
in advance of the proceedings was “…a good deal earlier” than necessary, and
had deprived her of the chance of perhaps living a relatively normal life during
this period.
The Destruction of CSIS Notes
Justice Josephson noted in his reasons for judgment that Rowe’s handwritten
notes from his meetings with Ms. D, with the exception of the very last meeting
the day before she was introduced to the RCMP, were “…destroyed as a matter
1393
1394
1395
1396
Exhibit P-101 CAF0485, pp. 3-5.
Exhibit P-101 CAF0494, p. 2.
Exhibit P-101 CAF0485, pp. 6-7.
Bolan, Loss of Faith, p. 365.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
of policy.”1397 At the time, the CSIS policy in force required the preservation
of operational notes where the information they contained could be crucial
to the investigation of unlawful acts of a “serious nature” (defined as criminal
acts posing a threat to life or property and constituting indictable or possibly
indictable offences), and where CSIS employees could require their notes to
refresh their memories prior to recounting the facts.1398
Rowe immediately recognized that Ms. D was providing information of a criminal
nature about substantial frauds committed by Malik, and noted this in his
reports. CSIS quickly decided that Ms. D’s information would be of great interest
to the RCMP. The frauds alleged could certainly qualify as “serious” unlawful acts
under the policy. Yet, no steps were taken by the Service to preserve the notes,
and Rowe stressed in testimony that he had not prepared his reports with the
expectation that they would be used in court.1399
When Ms. D was introduced to the RCMP, it was the Air India Task Force that
CSIS contacted. Though she had not yet provided information directly about
the bombing, the Service was apparently aware that she might possess or
obtain such information, and that she might play a role in the RCMP Air India
investigation and in an eventual prosecution. The failure to retain the notes,
which arguably was contrary to CSIS’s own policy in any event, is even more
surprising under those circumstances. While it was not ultimately of any
consequence to the prosecution, this failure did nevertheless deprive the RCMP
and the Court of detailed information about Ms. D’s prior statements.1400
The Result at Trial
In the end, Justice Josephson did not believe Ms. D’s testimony, and found that
he could not rely on any of her evidence that incriminated Malik. He noted
many unexplained contradictions in her evidence and past statements, as well
as conflicts with other evidence. He also found that the information that Ms.
D attributed to Malik, including erroneous details, could have been found in
publicly available materials which Ms. D had access to, raising the inference
that she had “…crafted a false confession from those publications.” Further, he
concluded that Ms. D was motivated by animus and ill will towards Malik when
she approached the authorities to provide information and agreed to testify,
rejecting her claims of strong ongoing emotional ties with Malik as unsupported
by the evidence.1401
Other Crown witnesses against Malik were also found to lack credibility, and
Malik was ultimately acquitted of all charges relating to the Air India and Narita
bombings.1402
1397
1398
1399
1400
1401
R. v. Malik and Bagri, 2005 BCSC 350 at para. 386.
See Section 4.3.2 (Post-bombing), Destruction of Operational Notes.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 386.
For a discussion of this issue, see Section 4.3.2 (Post-bombing), Destruction of Operational Notes.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 417-418, 455, 521, 703, 706, 710-715, 722, 725, 727-728,
736, 740, 744-752, 774-777, 1320.
1402 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1313-1323.
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Conclusion
Regardless of one’s views as to the credibility of Ms. D’s evidence or of the
evidence presented against Malik generally, the history of Ms. D’s dealings
with CSIS and the RCMP, during a period when she was viewed as a potentially
important witness in the Air India case, remains instructive about the ongoing
challenges in interagency cooperation and the need for concrete improvements
in the measures used to protect witnesses and to encourage them to cooperate
in terrorism cases.
The transfer of Ms. D from CSIS to the RCMP occurred rapidly, with no apparent
conflict or problems. When compared with other situations, such as the cases
of Ms. E or Tara Singh Hayer, it can be seen that the agencies did improve their
ability to cooperate in cases where sources provide information of a criminal
nature to CSIS first. However, despite this early recognition by the Service, the
notes for the meetings with Ms. D were still not preserved.
In contrast with the attitude that was adopted towards Ms. E, who was openly
reluctant to cooperate, the RCMP was sensitive to Ms. D’s security concerns and
offered her protection early on. Financial assistance was mentioned during the
very first meeting with the RCMP, before Ms. D provided any information about
Air India, whereas, in the case of Ms. E, investigators were reluctant to offer any
assistance, including protection, before finding out exactly what information Ms.
E could provide. Video surveillance cameras were installed at Ms. D’s residence
within weeks after she began speaking with the RCMP, while Ms. E’s concerns
were left unaddressed for years.1403
In the end, however, the manner in which the RCMP failed to protect Ms.
D’s identity was a cause of concern for CSIS, and her story provides little
encouragement for potential witnesses or sources to cooperate with police in
the future. The failure to ask for a Sealing Order for the Information to Obtain
was obviously a mistake. Human error can never be entirely prevented and is
bound to occur on occasion in any context. However, in this case, the RCMP’s
failure to assign Ms D’s case to a single unit with full knowledge of the situation
may have contributed to creating an environment in which all the necessary
safeguards were not in place to prevent such an error from occurring. As was
the case with Tara Singh Hayer,1404 the RCMP’s dealings with Ms. D were not all
carried out by units that had an understanding of the Sikh extremism context.
The Commercial Crime Section handling the Khalsa School investigation was
apparently aware that Ms. D was a witness in the Air India case as well as in the
Khalsa School fraud case.1405 However, the Section may not have been as well
informed about Sikh extremism or about the seriousness of the threat faced
by Ms. D. Had the Air India Task Force been involved in all aspects of the case
against Malik, it is likely that the officers filing the Information to Obtain would
have been more acutely concerned about protecting Ms. D’s identity and would
therefore have exercised more care to ensure that this was achieved.
1403 See Section 1.3 (Post-bombing), Ms. E.
1404 See Section 1.2 (Post-bombing), Tara Singh Hayer.
1405 Exhibit P-101 CAF0485, p. 6.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
1.6 Atwal Warrant Source
Introduction
On May 25, 1986, Malkiat Singh Sidhu, an Indian Minister for the Punjab state
government, was assaulted while he was driving to Tahsis, BC, to visit relatives
after attending a wedding in Canada. A vehicle cut off Sidhu’s car and four
assailants broke the windows and shot Sidhu repeatedly. He survived the
attack. The four occupants of the vehicle were caught, charged and convicted
of attempted murder and were sentenced to 20 years imprisonment.1406
Before the trial of the four assailants, an additional charge, that of conspiracy to
murder Sidhu, was brought against them. Five other individuals, including Harjit
Singh Atwal, were also charged with the conspiracy. Those charges were based
in large part on a CSIS intercept of Atwal’s communications, which recorded
conversations pointing clearly to a plan to assault Sidhu. Atwal applied for
access to the affidavit in support of the CSIS warrant. The Federal Court of Appeal
ordered that access be granted with the names of CSIS agents and informants
deleted. The affidavit behind the CSIS warrant was ultimately withdrawn when
it was discovered that it contained information from a source who was found to
be unreliable. As a result, the proceedings for conspiracy against Atwal and his
eight co-accused had to be stayed.1407
The “Atwal affair” led to the resignation of the first Director of CSIS, Ted Finn,
on September 11, 1987, when the inaccuracies and irregularities in the warrant
application were discovered.1408 There were even calls for the resignation of
then Solicitor General James Kelleher, since, as the Minister responsible, CSIS
was generally acting under his direction.1409 In the end, only Finn resigned and
Kelleher ordered several internal investigations of the matter.
In this Inquiry, it was learned that the discredited source whose information
was included in the Atwal warrant application – Source P – had in fact been
discounted by the RCMP before he started to speak to CSIS. Further, the RCMP
had warned CSIS that the individual was not reliable.
The RCMP Discounts Source P
In 1985, Cpl. Robert Solvason, an RCMP member since 1969, worked in the
Surrey Detachment National Crime Intelligence Section (NCIS). Solvason had
“…considerable experience and expertise in the development and handling of
1406 Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement – Canada’s Response to Sikh
Terrorism,” p. 47.
1407 Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement – Canada’s Response to Sikh
Terrorism,” pp. 47-48.
1408 Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement – Canada’s Response to Sikh
Terrorism,” p. 48.
1409 Canadian Press, “PM defends Kelleher over CSIS incident” The Globe and Mail (September 17, 1987),
p. A4. See also Don McGillivray, “Spy chief’s resignation begs a question” The Ottawa Citizen
(September 18, 1987), p. A8 and Marjorie Nichols, “When politicos go awry subversives
can play” The Ottawa Citizen (September 18, 1987), p. A2.
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sources.” A short time before the Air India bombing, he became involved in
an investigation “…concerning an individual who had associations with various
Sikh personalities, and was bringing forward some allegations that these Sikh
personalities were desirous of learning various criminal techniques.” At the time
of the bombing, Solvason was asked to join the Air Disaster Task Force, but could
not do so immediately because he had to complete this investigation.1410
Solvason explained that the individual he was dealing with (referred to as “Source
P” for the purposes of this report) made some “…rather startling allegations,” and
that Surrey NCIS undertook various plans to confirm or refute those allegations.
After some time, Solvason was able to come to the conclusion that Source
P’s allegations were “completely unfounded” and that his background was
probably invented. Solvason also concluded that Source P was “opportunistic”
and “treacherous,” and that, to the extent he did have contact with the “Sikh
personalities” he was proposing to provide information about, “…he seemed to
be controlling it.”1411
Source P Speaks to CSIS
When Solvason was unwilling to grant Source P’s request to be taught various
“criminal techniques” or “ways of detecting investigative techniques,” Source P
indicated that he would approach CSIS. Solvason told him that he was free to do
as he wanted. Shortly thereafter, Solvason was contacted by CSIS about Source
P and his information. He received a surprising visit at the Surrey Detachment
from the CSIS BC Region Director General, Randil Claxton, and the Deputy
Director, Ken Osborne, who told him that they had been “ordered” by their
Director to speak with Source P. Solvason told them that Source P “…wasn’t
reliable at all.” He said that Source P was “treacherous,” and he advised the CSIS
officials that “…if I were you, I wouldn’t talk to him at all.”1412
In spite of Solvason’s warnings, Source P ultimately “…went to CSIS and they
spoke to him for a period of time.” Solvason and other RCMP members were
then involved in meetings with Claxton and Osborne about the nature of Source
P’s allegations and background.1413
In early July 1985, CSIS and the RCMP had discussions about Source P, who was at
the time speaking with both agencies. The RCMP agreed to “…suspend certain
avenues of their investigation” while CSIS was talking to Source P.1414 At the
time, the RCMP was considering making a court application for authorization
to intercept private communications based on information provided by Source
P.1415 However, the Force was concerned that, because CSIS was still dealing with
Source P, he could later “…contend that he was acting under CSIS direction.”1416
1410
1411
1412
1413
1414
1415
1416
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11544-11546.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11547.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11546-11548.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11547-11548.
Exhibit P-430, p. 1.
Exhibit P-430, p. 1.
Exhibit P-430, p. 1.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
This could then open up the possibility down the road that disclosure of CSIS
materials could be requested by the defence and that a prosecution could
be jeopardized if such disclosure was refused or if the materials were not
available.
The RCMP also expressed concern during the discussions with CSIS about
presenting an application “…primarily based on the information of Source P, a
source whom the RCMP and CSIS did not trust.”1417 CSIS informed the Force that
it would be applying for its own authorization shortly. The RCMP, because of its
concerns, decided not to pursue an application, and advised CSIS accordingly.
The RCMP agreed to “…await word from CSIS” about the Service’s position with
Source P, and CSIS advised that it was “…on the verge of severing connection
with Source P.”1418
Solvason subsequently learned that CSIS eventually came to the same conclusion
he did about Source P’s reliability and “terminated him” as a source.1419 Indeed,
in a CSIS report dated June 26, 1985, Source P was referred to as “…a source
‘of doubtful reliability’,” and on July 8, 1985, he was terminated by CSIS as
unreliable.1420
The Atwal Warrant
Solvason testified that, after his dealings with Source P and CSIS in this matter, he
learned that some of the information provided by Source P to CSIS was used in
an application for authorization to intercept private communications “…relative
to the Malkiat Singh Sidhu conspiracy.” Ultimately, Solvason understood that
the affidavit in support of the authorization was found to be unreliable and had
to be withdrawn, causing the prosecution to collapse. Solvason felt that this “…
must have been a mistake of some sort.”1421
Information provided by Source P was indeed included in a CSIS application
for authorization to intercept the communications of Harjit Singh Atwal which
was presented on July 15, 1985.1422 Source P was referred to in the warrant
application as a “CSIS confidential informant.” No mention was made in the
application of the issues surrounding Source P’s reliability or of the fact that
he was terminated by CSIS for unreliability. The Atwal warrant application
also contained some inaccuracies and unsupported information unrelated to
Source P. These combined errors led to the withdrawal of the Atwal warrant
application.1423
After these events, an internal CSIS investigation was conducted. It was concluded
that there was nothing to suggest that the inaccuracies in the application,
including with respect to Source P, resulted from deliberate acts or omissions
1417
1418
1419
1420
1421
1422
1423
Exhibit P-430, p. 1.
Exhibit P-430, p. 1.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11547-11548.
Exhibit P-430, p. 2.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11548.
Exhibit P-430, p. 2; Exhibit P-101 CAF823.
Exhibit P-430, p. 2.
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by CSIS employees. Rather, they were found to have resulted from errors and a
lack of verifications at the BC Region and at HQ. The CSIS employees involved
explained that the errors made resulted in large part from the “…pressures
associated with the immediate aftermath of the Air India tragedy” when CSIS
was understaffed and overworked, both at HQ and at the BC Region.1424
It appears that many of those who reviewed and approved the Atwal warrant
application materials at the BC Region, and then at HQ, did not question the
veracity of the data originating from Source P or the assessment of his reliability.
All were working long hours and many were away or otherwise occupied with
duties relating to the immediate aftermath of the bombing. Following the
disaster, much “…pressure to produce was coming from the higher levels” at CSIS.
This, coupled with the lack of resources, resulted in “…a harried and sometimes
chaotic work environment, improvisation, a departure from basic and accepted
work procedure, and ultimately, error.” The Director General for the CSIS Toronto
Region, who conducted an internal review of the matter, concluded that the work
environment at CSIS at the time could even be described as one “inviting error.”
However, in spite of the pressure to “…produce relative to Air India and Narita,”
it was found that the individuals involved did not attempt to “manipulate data”
or turn a blind eye to what was known, for example about Source P’s reliability,
in order to improve the chances of obtaining the warrant.1425
In the aftermath of the Air India and Narita bombings, CSIS BC Region
employees had been “…urged by Headquarters to send in Warrant submissions
on individuals suspected of involvement in these terrorist acts.” BC Region
personnel conducted “…rather rushed research” in an effort to comply, while
still trying to produce accurate submissions. The mention in the June 26th CSIS
report that Source P was of “doubtful reliability” apparently “…slipped through
the cracks” in the preparation of the warrant application materials, even if some
of the individuals involved at the BC Region, including the Director General,
Claxton, who was “…intimately involved with the [Source P] operation,” knew
that there were “some concerns” over Source P.1426
BC Region employees felt that any errors made would be caught by CSIS HQ
analysts, who had access to all of the materials. However, HQ personnel were
equally overworked and understaffed. Some of the normal procedures were
“short circuited” by HQ Sikh Desk analysts who reviewed warrant application
materials because of the “…urgency connected with the Air India/Narita
investigations” and the “…rush to complete and forward Affidavits.” At HQ, as
in the BC Region, “…pressure to produce intelligence was great … [u]rgency
was attached to all aspects of the Air India/Narita investigations” and, as a result,
there was little time for “…planning, reflection or the usual close attention to
detail.”1427 In the end, the errors in the BC Region warrant application materials,
including the failure to raise the reliability issues surrounding Source P, were not
corrected at the HQ level, and the affidavit ultimately had to be withdrawn.
1424
1425
1426
1427
Exhibit P-430, p. 2.
Exhibit P-101 CAF823, pp. 3, 5, 9.
Exhibit P-101 CAF823, pp. 10, 13-14.
Exhibit P-101 CAF823, pp. 14-17.
�Chapter I: Human Sources: Approach to Sources and Witness Protection
Conclusion
In the end, CSIS came to the same conclusion as the RCMP about the reliability
of Source P. Unfortunately, because of a series of errors associated with the
workload in the aftermath of the Air India bombing, these conclusions were not
properly reflected in the Atwal warrant application, and this ultimately caused
the Sidhu conspiracy case to collapse.
At times during the Air India investigation, the RCMP displayed exaggerated
skepticism towards potential sources or witnesses and, as a result, was not
always able to secure their cooperation or to investigate their information.1428
However, the Source P episode shows that, in some cases, the RCMP’s caution
and skepticism could protect the Force from trouble down the road and preserve
the state’s ability to prosecute. Had CSIS heeded Solvason’s early warning that
Source P was “treacherous” and completely unreliable, the Service may not have
included his information in the reports which were used to prepare the Atwal
warrant materials, or may have been more cautious about the information
included and may have come to its own conclusions about Source P’s reliability
earlier.
As an intelligence agency, CSIS is not expected to be predominantly concerned
with preserving the ability to prosecute in the future in the same manner as the
RCMP. However, in this case, CSIS knew that the RCMP had made a decision
not to use Source P’s information in support of intercept applications, given
that neither agency trusted him. Under those circumstances, it is unfortunate
that CSIS nevertheless went ahead and used Source P’s information in its
own application, ultimately contributing to the collapse of an important Sikh
extremism conspiracy prosecution.
1428 See, for example, Section 1.1 (Post-bombing), Mr. A; Section 1.2 (Post-bombing), Tara Singh Hayer;
Section 1.3 (Post-bombing), Ms. E; and Section 1.4 (Post-bombing), Mr. Z.
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�VOLUME TWO
PART 2: POST-BOMBING INVESTIGATION AND RESPONSE
CHAPTER II: RCMP POST-BOMBING
2.0 Set-up and Structure of the Federal Task Force
According to the Attorney General of Canada, the Air India and Narita bombing
investigations still have been “…by far, the most extensive investigations ever
undertaken by the RCMP.”1 The RCMP faced numerous challenges and had to
make many difficult decisions about its approach to the investigation. At times
it was ill-prepared for the organizational and technical demands required for
the investigation.
Early Response and Formation of the Air India Task Force
On June 23, 1985, A/Comm Donald Wilson, the OIC, Operations Branch of E
Division, received a call from the HQ Duty Officer in Ottawa, who informed him
of the Air India and Narita explosions that had occurred that morning. Wilson
immediately contacted Richmond Detachment, which had jurisdiction for the
Vancouver International Airport,2 and directed that officers be sent to the
airport to begin “…piecing together events.” It is clear that politically motivated
sabotage was suspected from the very beginning. At 9:30 AM, Insp. Lloyd
Hickman of P Directorate, VIP Branch, contacted Wilson and requested that E
Division VIP Security check with the Indian Consul General and at the Consulate
to determine if any “…unusual parcels, cars, etc.” were in the vicinity.3
Early the next morning, Wilson was advised that the RCMP Commissioner had
directed that an investigator be dispatched from Vancouver to Tokyo at the
earliest opportunity to liaise with Japanese police, and he was informed that an
investigator from “the East” was being dispatched to Ireland to perform a similar
function with respect to Air India Flight 182.4 In the following hours, Wilson had
a number of contacts with the OIC, Richmond Detachment, primarily to ensure
that he had all the necessary resources available to him. A request for additional
investigators for the Richmond Detachment investigation was made to the OIC,
Contract Policing, and a request was made to Supt. Lyman Henschel, the OIC,
Support Services in E Division, to make available a member from the National
Criminal Intelligence Section (NCIS) to ensure effective liaison and that nothing
1
2
3
4
Final Submissions of the Attorney General of Canada, Vol. I, para. 277.
Exhibit P-101 CAF0438, p. 22; Testimony of Lyman Henschel, vol. 46, September 17, 2007, pp. 55445545.
Exhibit P-101 CAA0241, p. 1.
Exhibit P-101 CAA0241, p. 2.
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Volume Two: Part 2: Post-Bombing Investigation and Response
was “overlooked.” The member assigned was Sgt. Wayne Douglas, who, prior
to the bombing, had been in charge of the Terrorist/Extremist NCIS unit at E
Division.5 Contact was made with Randil Claxton of CSIS to ensure liaison with
the Richmond Detachment.6
Task Force to Be Led by the Federal Side of the RCMP
On June 25, 1985, RCMP Headquarters in Ottawa directed that the investigation
would be designated a “CSIS Act Investigation” and would be taken over
from the Richmond Detachment by a Task Force that would be formed and
which would eventually work out of E Division Headquarters.7 Part IV of the
CSIS Act, the Security Offences Act, gave the RCMP primary responsibility for
performing peace officer duties in connection with criminal offences arising
“…out of conduct constituting a threat to the security of Canada” or targeting
“internationally protected person[s].”8 The decision to set up the investigation
as a “CSIS Act investigation” meant that the federal side of the RCMP would take
over local jurisdiction from the Richmond BC contract policing unit.
The RCMP provides community policing services by contract in all provinces
and territories of Canada, except Ontario and Quebec. These contracts make the
RCMP the “regular police” in these jurisdictions: the provinces and municipalities
that are responsible for providing local law enforcement services hire the RCMP
to perform these duties. Contract police services are organized into 10 divisions,
and divisions are further divided into sub-divisions or districts, which comprise
groups of detachments. Each detachment operates independently, with its own
dedicated resources, and is responsible for law enforcement and the prevention
of crime within its defined jurisdiction. To support detachments, there are
specialized units and operational support groups at division headquarters, as
well as at the sub-division and detachment level. Division commanding officers
are accountable to the RCMP Commissioner.9
In addition to its contract policing side, the RCMP is also responsible for providing
designated federal services everywhere in Canada. The federal side of the Force
is structurally separate from the contract policing side, with its own chain of
command, reporting through Federal Operations. In addition to offences
relating to national security, the federal side of the RCMP is also responsible for
programs such as Customs and Excise, Immigration and Passport, Drugs and
Organized Crime, Criminal Intelligence and International Policing.
Since the Air India investigation was constituted as a federal Task Force, personnel
that would work on it would be drawn from the federal side of the RCMP and
would report through Federal Operations. There were three units or task forces
5
6
7
8
9
See Section 1.1 (Pre-bombing), November 1984 Plot.
Exhibit P-101 CAA0241, p. 3; Testimony of Lyman Henschel, vol. 46, September 17, 2007, p. 5557.
Exhibit P-101 CAF0166, p. 1.
Canadian Security Intelligence Service Act, S.C. 1984, c. 21, ss. 57, 61.
Online: Royal Canadian Mounted Police <http://www.rcmp-grc.gc.ca/ccaps-spcca/contract-eng.htm>
(accessed November 3, 2009).
�Chapter II: RCMP Post-Bombing
set up, under the administration of their respective divisional National Criminal
Intelligence Sections (NCIS): Montreal, Vancouver, and Toronto (and later
Alberta).
The RCMP quickly put in place a group at Headquarters to coordinate the
investigation.10 The HQ Coordination Center initially had one Officer in Charge
(OIC) and two readers, responsible for reviewing all incoming information. An
information coordinator was soon brought in to produce daily situation reports.
A search then began for two analysts to be assigned to the Task Force, but they
were not found until two weeks after the bombing and began work on July 4,
1985. The Coordination Center staff therefore comprised five members in total,
with one OIC. A “runner” was later recruited to handle telexes and to compile
RCMP reports to the Kirpal Commission of Inquiry,11 which had been instituted
by the Indian government to explore the cause of the downing of Air India
Flight 182.
The E Division Air Disaster Task Force
On June 26, 1985, a Task Force was created in E Division under the direction of
Assistant Commissioner Wilson,12 and as of June 27th, the E Division Air Disaster
Task Force was in place and operational.13 It was directed by the OIC, Federal
Operations, Chief Supt. Gordon Tomalty, and managed by Inspector John
Hoadley.14 Sgt. Robert Wall, who had been working at the Vancouver Integrated
Intelligence Unit (VIIU) prior to the bombing, was assigned to the investigation
on June 25th, and was told that his team would form the core of a federal Task
Force in relation to the two incidents.15 The investigative team consisted of 17
investigators from RCMP federal units and two coordinators who were NonCommissioned Officers, assisted by CSIS liaison Jim Francis, RCMP NCIS NSE Unit
member Michael (“Mike”) Roth, as well as representatives from the VIIU.16 Supt.
Les Holmes17 joined the E Division Task Force as the OIC in late July,18 after which
Wall became the second-in-command.
The E Division Air Disaster Task Force, which was housed at E Division
Headquarters, experienced some “growing pains” as it took time to find space to
set up the unit, though, within about six weeks of the bombing, the unit was a
“workable environment.” By the latter part of August, the Task Force had about
105 personnel working on the Air India/Narita investigation. While, in the early
weeks, the Task Force was still gearing up and acquiring resources, this did not
10
11
12
13
14
15
16
17
18
Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9365.
Exhibit P-101 CAF0055, p. 6.
Exhibit P-101 CAA0242, p. 1.
Exhibit P-101 CAA0267, p. 1.
Exhibit P-101 CAA0242, p. 1, CAA0267, p. 1.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9658-9659.
Exhibit P-101 CAA0242, p. 1.
Hoadley and Holmes reported up through the Federal Operations side in Vancouver to the Federal
Operations Officer, then to the Commanding Officer of E Division and ultimately to Headquarters
in Ottawa.
Exhibit P-101 CAF0503, p. 8. Holmes remained as the OIC until the fall of 1987.
235
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prevent the investigation from getting underway. Wall testified at the Inquiry
that “…those in the trenches with us rose to the occasion and made the best of a
bad situation.” Members of the Task Force regularly worked “extremely lengthy”
hours for the first two to two and a half months of the investigation.19 In fact,
by July 25, 1985, an E Division update to HQ reported that “…issues of overtime,
leave, health and welfare of our personnel must be addressed immediately,”
and measures were suggested to alleviate some of the pressures on the
investigators.20 The work was “grinding hard work” that left an “un-erasable”
mark on the investigators, who were extremely dedicated and worked hard to
solve the case under less than ideal conditions.21
The individuals on the Task Force were “…basically starting from nothing” in terms
of their expertise in the area of Sikh extremism.22 Though E Division housed
the NCIS Terrorist/Extremist unit, which had as its mandate the development
of intelligence about criminal threats to national security, the reality was that in
the pre-bombing period this unit had developed only very limited knowledge
about the major Sikh extremist players in Canada and had no meaningful access
to sources in the community.23 Only one or two Punjabi-speaking officers were
on the Air India file, and there was a lack of understanding of Sikh culture.24
These factors would pose challenges to investigators when they attempted to
gather intelligence from within the Sikh community.
As a result, the Task Force relied heavily on CSIS for its knowledge and insight
about Sikh culture and about the important figures in the Sikh extremist
community.25 On August 29, 1985, the E Division Task Force received a briefing
from Ray Kobzey of CSIS BC Region, about the phenomenon of Sikh extremism
and about the Babbar Khalsa.26 Cst. Axel Hovbrender, a VPD member of VIIU
who had been gathering intelligence about Sikh extremism during the years
preceding the bombing, also provided briefings to the RCMP.27 Hovbrender
testified that due to the lack of background knowledge at the Task Force, it
took a long time for the RCMP Air India investigation to get started in BC. He
commented:
I think that I was feeling frustrated that it was taking a long
time to get the investigation going. I sort of likened it to a
battleship; it takes a while for the battleship to get going,
but once it goes it’s pretty impressive. It took … about two
or three weeks for them to do the things that I thought
19
20
21
22
23
24
25
26
27
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9660, 9661, 9713-9714.
Exhibit P-101 CAA0282, p. 2.
Testimony of Lyman Henschel, vol. 46, September 17, 2007, pp. 5567-5568; Testimony of Robert Wall,
vol. 76, November 15, 2007, pp. 9713-9714.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11587.
See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10314. See also Chapter I (Post-bombing),
Human Sources: Approach to Sources and Witness Protection.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9661-9662.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9662; Exhibit P-101 CAA0313, pp. 2-3.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3914-3915.
�Chapter II: RCMP Post-Bombing
should have been done in the first week, and that was to
interview some of those individuals who, as most of us knew
or who were in the intelligence field, believed responsible
for – that act, that tragic act. So, in the initial phases, I was
feeling frustrated in relation to the lack of … any sort of
movement and any sort of enforcement activity against those
individuals.28
The Task Force faced challenges in terms of its preparedness to undertake
certain investigative initiatives in the Sikh community. For example, on July 21,
1985, E Division wrote to Headquarters that a “…contingency plan is required
to respond to any potential arrests of suspect(s) in the investigation” and that
included in this plan should be the “…realization that we may be lacking in
suitable expertise in the interview/interrogation of suspect(s) and the potential
to have available security cleared and experienced investigator/translators.”29
More than two years later, in October 1987, HQ suggested in a status report that
one of the initiatives that should be undertaken was a review of investigation
files in C, E and O Divisions, with emphasis on “…material accumulated in
1985/86 when investigators lacked knowledge of Sikh extremism generally and
Canadian Sikh extremists in particular.”30
Access to Information about Sikh Extremism
Failure to Use Past Threat Information
While members of the E Division Air Disaster Task Force might not have had
significant knowledge or expertise with respect to the Sikh extremist community
in Canada, within its own files the RCMP had a wealth of pre-bombing information
that it had received about threats to Indian interests in Canada, including Air
India.31 This information had been passed by CSIS, DEA, and by sections of the
RCMP itself to the RCMP Protective Policing Directorate to help officials provide
sensitive protection to Indian personnel and missions in Canada.
This material contained references to specific Sikh extremist individuals and
groups who demonstrated a potential for violence and who were believed
to have had the intent to carry out attacks against Indian interests in Canada.
Parmar, Bagri, Surjan Singh Gill and the Babbar Khalsa were specifically
mentioned.32 Other information focused on ISYF members such as Manmohan
Singh and Pushpinder Singh, who were involved in the Khurana meeting.33
28
29
30
31
32
33
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3915.
Exhibit P-101 CAA0282, p. 2.
Exhibit P-101 CAA0582, p. 12.
See, for example, discussion of pre-bombing threat information in Section 1.12 (Pre-bombing), A
“Crescendo” of Threats. Threats to Air India included the June 1st Telex: See Section 1.2 (Pre-bombing),
June 1st Telex.
For example, see Exhibit P-101 CAA0097, CAA0110, pp. 2-3, CAB0024, CAB0085, CAB0851, pp. 5-6,
CAC0235, pp. 3-4, CAC0312, p. 3.
Exhibit P-101 CAC0293, CAC0487, p. 5.
237
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All of the threat information received by the RCMP P Directorate and NCIB was
filed in central records at Headquarters. Through the Soundex system, it was
possible to locate all mentions of a specific individual (regardless of the spelling
of the name) in the documents. The central records could also be searched by
subject areas, such as Sikh extremism, threats to the Government of India, or
threats to Air India.34 The entire holdings of Airport Policing, VIP Security and
NCIB relating to Sikh extremism were therefore easily accessible for members of
the HQ and E Division Air India Task Forces.35
However, this pre-bombing threat information does not ever appear to have
been used by the RCMP to orient or provide leads for the Air India investigation.
Not one of the RCMP officers involved in the investigation who gave evidence
at the hearings was involved in reviewing this information or was aware of such
a review, and no documentary record has been found indicating that such
a review was performed at any time. Sgt. Warren Sweeney, one of the small
number of members of the HQ Task Force, specifically recalled that he was never
asked to collect the pre-bombing RCMP holdings about Parmar or Reyat.36
Wall, who was the second-in-command and who remained on the E Division
investigation for nine years,37 had no recollection of there ever having been an
effort at the divisional level to obtain access to P Directorate files in the postbombing period, either at the Headquarters or at the divisional level.38
The pre-bombing information might have been invaluable in helping to
orient the RCMP investigation in the early days, when they were experiencing
difficulties in accessing CSIS information.39 The information would have alerted
the Task Force to the fact that, in the month prior to the bombing, Air India was
warned of the threat of time/delay devices being placed in registered luggage –
a lead that, from the record before the Commission, was never investigated for its
possible connection to the time/delay device that ultimately brought down Air
India Flight 182.40 This information could also have led the RCMP to understand
that Parmar was considered to be the “…most radical and potentially dangerous
Sikh in the country,” and that Bagri was a close consort of Parmar who could
easily be manipulated into committing a terrorist act and who was allegedly
involved in a plan to hijack an Air India plane in October 1984.41
This information was already in the RCMP’s possession and was easily
accessible. In some cases, it had even been transmitted in the pre-bombing
34
35
36
37
38
39
40
41
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2653; Testimony of Warren Sweeney, vol. 26, May
9, 2007, p. 2692.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2655; Testimony of Warren Sweeney, vol. 26,
May 9, 2007, pp. 2692-2693; Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5451. Some
restrictions applied where classified CSIS information was involved or where documents were
flagged for the exclusive use of a Branch or Directorate, such as P Directorate, but the existence
of relevant documents would be revealed following a central records search, and access could then be
obtained from the sub-registry for CSIS information or from the Branch or Directorate involved:
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2653-2655.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2655.
Final Submissions of the Attorney General of Canada, Vol. I, para. 290.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9672.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Exhibit P-101 CAA0185. See also Section 1.2 (Pre-bombing), June 1st Telex.
Exhibit P-101 CAA0110, p. 3.
�Chapter II: RCMP Post-Bombing
period to E Division NCIS,42 whose members Roth and Douglas were involved
with the E Division Task Force, for the very purpose of assisting the divisional
NCIS investigators to detect “…potential criminal acts, and if it does happen, to
know who to look for.”43 Information passed to NCIS in the pre-bombing period
included information about Parmar’s group working on a secret project,44 and
about the BK being associated with a Sikh who advocated boycotting Air India.45
NCIS members had, in fact, interviewed Parmar and Surjan Singh Gill shortly
before the bombing, as part of a disruptive interview program conducted
in conjunction with American authorities, in preparation for Indian Prime
Minister Rajiv Gandhi’s visit to the US.46 The purpose of the interviews was “…to
dissuade Parmar, Gill and their associates from any action against Gandhi who
appeared to be their target at the time.”47 E Division NCIS members working in
the VIIU had also received information, in the course of their discussions with
the VPD members of VIIU, that could have assisted the RCMP in orienting the
investigation and identifying the main players in the Sikh extremist movement
and the Babbar Khalsa. An example was that VPD members of VIIU had learned
in October 1984 that Surjan Singh Gill and Ripudaman Singh Malik were close
associates of Parmar and that Malik was financially supporting Parmar, and had
discussed this information with NCIS members.48
Under the circumstances, it is surprising that, to this day, the RCMP continues
to complain that the initial focus of its investigation was on the wrong targets
because the lack of CSIS information prevented it from discovering the more
promising suspects. In a 1996 memorandum, Assistant Commissioner Gary Bass
stated that “…lack of disclosure by CSIS in the early days, allowed the RCMP to
seek a wiretap authorization on the wrong targets.”49 In confirming this position
in testimony, Bass testified:
I would think that had the Task Force, on the day of the
bombing or the day after the bombing – had access to all of
the intercepted material on Parmar, he probably would have
… been one of the targets in the first authorization; I can’t
imagine that he wouldn’t be – and as well as, probably some of
the others there.
I don’t know this for sure but looking at what’s in that material
today or in this case in 1995 and ’96 … if I had been in the
Task Force in ’85 and had that information on the day after the
bombing, I would have been moving towards a wiretap on
different people.50
42
43
44
45
46
47
48
49
50
Exhibit P-101 CAA0160, CAC0290, p. 2.
Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2703-2704.
Exhibit P-101 CAC0290.
Exhibit P-101 CAA0160.
Exhibit P-101 CAA0871, p. 1, CAA0876, CAA1099, p. 2.
Exhibit P-101 CAA0876, p. 1.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3886.
Exhibit P-101 CAA0932, p. 3.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11201-11202.
239
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Volume Two: Part 2: Post-Bombing Investigation and Response
While it is true that, without access to the contents of the CSIS Parmar intercepts,
the RCMP might not have been able to demonstrate sufficient grounds to
obtain a Criminal Code wiretap authorization on Parmar in the early days, the
Force certainly had enough information in its own past holdings, and through
its access to CSIS intelligence reports, to have been aware of individuals such as
Parmar and Reyat as important potential suspects, especially since the RCMP
was requested by CSIS to conduct searches of the Duncan Blast site shortly after
the bombing.51 Yet, it was not until mid-August 1985 that a formal decision
was made to re-orient the investigation with a more central focus on “Talwinder
Singh Parmar et al,” about whom the RCMP had “…definite evidence of criminal
activity.”52 At that time, a decision was also made to remove the earlier focus
on Lakhbir Singh Brar, a leader of the ISYF who was present at the Khurana
meeting. This appeared to stem from a belief that the persons responsible
could not be associated with both the Babbar Khalsa, which was Parmar’s
group, and the ISYF.53 This assumption may have been questionable, but, had
the RCMP searched its own files, it would have had sufficient information to
enable it to focus on Parmar as well as on Lakhbir Singh Brar from the outset of
the investigation.
Lack of Integration of Local Forces
The VPD was another source of information about Sikh extremism and the
important players in the movement. While the RCMP initially took steps to draw
on VPD information and expertise, the Task Force’s failure to better integrate the
VPD into its investigation meant that the Task Force did not fully benefit from
this resource.
Early in the investigation, the RCMP seconded two VPD investigators to the
Task Force. About two or three weeks after the bombing, Cst. Axel Hovbrender
became involved with the Task Force as an investigator. He also continued to
provide contextual information about the intelligence gathered by VIIU prior
to the bombing, but his main role was that of investigator.54 Cst. Don McLean,
a member of the VPD Indo-Canadian Liaison Team (ICLT), had established
contacts in the Vancouver community and had had access to information from
many sources prior to the bombing.55 He began with the Task Force soon after
the bombing and remained for two to three months.56
On June 23, 1985, the RCMP requested that McLean come to the Richmond
Detachment, which was in charge of the Air India investigation in the immediate
aftermath of the tragedy, to provide information about Sikh militants in the
community.57 He provided several verbal briefings to the RCMP about the
51
52
53
54
55
56
57
See Section 1.4 (Pre-bombing), Duncan Blast. There is also evidence that there was, in fact, significant
sharing of information by CSIS with the RCMP about CSIS’s investigation and its targets of interest: See
Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Exhibit P-101 CAA0303. See Section 2.3.4 (Post-bombing), The Khurana Tape.
See Section 2.3.4 (Post-bombing), The Khurana Tape.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, p. 3915.
See Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces.
Testimony of Don McLean, vol. 21, May 1, 2007, p. 2032.
Testimony of Don McLean, vol. 21, May 1, 2007, p. 1986.
�Chapter II: RCMP Post-Bombing
Vancouver Indo-Canadian community and about the identity of the Sikh
extremists who were the most likely to have been involved in the Air India
bombing. He identified these generally as the ISYF leaders, as well as Parmar,
Bagri and the BK members. In particular, McLean advised the RCMP about Bagri’s
relations with Parmar and the intelligence that Bagri could be easily manipulated
into committing a terrorist act.58 He also briefed them about the information
he had received indicating that, approximately two weeks before, ISYF leader
Pushpinder Singh had commented that something would happen in two weeks
– in response to a question about the lack of attempts on Indian diplomats (the
Khurana information).59 On June 28, 1985, McLean verbally advised the RCMP
Air India Task Force of information (learned on June 27th) that the Toronto Sikh
Temple was warning Sikhs not to fly Air India, and his report was copied to CISBC
(Air India Task Force) and RCMP Sgt. Wayne Douglas. The report specifically
indicates that the Malton Sikh Temple was “…associated to [Talwinder] Parmar
group.” 60 Eventually, the RCMP Task Force also took copies of all of the VPD
reports from the ICLT and VIIU.61 An analytical document which compiled the
available intelligence, prepared by a Coordinated Law Enforcement Unit (CLEU)
analyst, in cooperation with VPD members of the ICLT and the VIIU in early 1985,
was also provided to the RCMP Task Force.62
During the initial stages of the investigation, McLean was actively involved
with the RCMP Task Force. He reviewed incoming intelligence on a daily basis
and assisted the Task Force in assessing the information and identifying the
individuals involved. The RCMP also requested his assistance in using his sources
to obtain information. However, McLean testified that he was never involved
in a joint investigation with any of the RCMP members investigating Air India,
but was simply carrying out RCMP instructions.63 When an early post-bombing
RCMP telex mentioned McLean as a contact person with respect to the NCIS
probe into local factions of the BK and the ISYF,64 this did not mean that McLean
participated directly in the probe as an equal partner. He explained that his
role was limited mostly to assisting Douglas of E Division NCIS in identifying the
individuals involved. Beginning approximately one month after the bombing,
the RCMP asked for McLean’s assistance less and less in terms of obtaining
information from his sources. In his words, he became a “token muni” at the
RCMP Task Force, used only to give an impression that the RCMP was integrating
municipal forces and using them to assist in the investigation.65
Meanwhile, the RCMP was pursuing its own investigation, in its own direction.
McLean assumed, though he was apparently not informed directly, that the
58
59
60
61
62
63
64
65
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4143-4144, 4157-4158.
Testimony of Don McLean, vol. 35, May 29, 2007, p. 4143. See, generally, Exhibit P-101 CAA0249,
CAC0487.
Exhibit P-404, p. 3.
Testimony of Don McLean, vol. 21, May 1, 2007, p. 2037; Testimony of Don McLean, vol. 35, May 29,
2007, p. 4159.
Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3915-3916. See Exhibit P-391, document 124
(Public Production # 3254).
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4144-4145, 4162, 4173.
See Exhibit P-101 CAA0249, p. 2. See also Section 1.6 (Pre-bombing), Khurana Information.
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4145-4146, 4162.
241
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RCMP had developed its own intelligence sources and no longer needed his
information. As a result, he simply resumed his former functions for the ICLT
and continued to work with the community.66 Wall testified that he recalled
being informed by Hoadley that investigators had to be federal police officers in
order to receive certain kinds of information, and that municipal police officers
could not be fully integrated for this reason.67
McLean had access to resources and contacts in the community that the RCMP
did not have, and he hoped that these resources would be accessed and used
by the RCMP in its investigation. He was surprised and disappointed when
the RCMP did not utilize his services to the extent that it could have. McLean
indicated that, even after his formal involvement with the RCMP Task Force
ended, he would have provided the RCMP with information he received from
his sources if it was relevant to the Task Force, and also admitted that he did not
receive any information that could actually have been used to directly identify
the persons responsible for the Air India bombing.68 Nonetheless, his ability to
assist the Task Force was limited because of his lack of access to information
about the status of the ongoing investigation and about the information being
acquired by the RCMP. Without this knowledge, it would have been much
more difficult for McLean to assess any information he was receiving in terms of
whether it could be relevant to the RCMP investigation.
CSIS, by contrast, allowed McLean to take a more active role in providing
assistance with its investigation, beginning immediately after the bombing. He
was granted the appropriate security clearance to access the “very top levels”
of CSIS in Vancouver, and was privy to incoming intercepts and intercept logs
or summaries to see whether he could provide additional information. He was
tasked by CSIS to provide background information about the community and
the ICLT’s work in the community, and to assist in identifying individuals who
came to CSIS’s attention as a result of physical or technical surveillance. McLean
continued to work with CSIS throughout the year following the bombing.69
Problems with the Federal Task Force Structure
Difficulties in Staffing the Federal Task Force
S/Sgt. Robert Solvason, who was seconded to the Task Force from Surrey NCIS
in September 1985 and continued to work on the Air India investigation for the
next 10 years, explained in his testimony that it was difficult to recruit individuals
with good operational skills and experience in major crimes investigations on
the federal side.70 Most officers acquired this type of experience by working
in the contract policing units, which dealt with major criminal investigations
on a daily basis. Officers in the contract General Investigation Sections (GIS)
66
67
68
69
70
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4162-4163.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9714-9715.
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4163-4164, 4172.
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4146, 4160, 4165, 4172.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11549-11550.
�Chapter II: RCMP Post-Bombing
were involved in many cases as “…first responders to major crimes,” including
homicides. They were “…right up to date on the latest techniques” and were “…
usually hand-picked to get there.” These investigators had the opportunity to
learn how to handle and develop sources and how to use their information to
“…further our evidentiary needs for the serious crimes aspect.”71
It was difficult to recruit experienced homicide investigators for the Task Force
because the investigation fell under the jurisdiction of the RCMP’s federal
policing operations, and because municipal contract units were “very protective”
of their homicide investigators at that time.72 As a result, there were not many
members of the original Air Disaster Task Force with experience in major crimes
investigations,73 and there were very few, if any, homicide investigators. Solvason
explained that even his own experience in major crimes investigations, which
included working on the Kamloops GIS unit, was “quite dated.”74
Wall testified that drawing from the federal sections allowed the Task Force to
draw “…a great talent pool from varying backgrounds.”75 Solvason recognized
that there were in fact officers from the federal drug squad and Commercial
Crime who had skill sets of benefit to the Task Force. But, in his view, it was a
question of trying to bring together the “proper mix” of skills. Because of the
difficulty in attracting homicide and major crimes investigators, this “proper
mix” was more difficult to obtain.
This situation also created difficulty at the management level. When Hoadley
was ordered by the Commanding Officer of E Division to set up a Task Force, he
immediately began looking for what he called a “good staff sergeant,” meaning
someone who had a good knowledge of operational techniques and good
managerial assets. Again, it was difficult to get this type of individual on the
federal side as officers with good operational skills were more often found in the
contract policing units.76
Problems with the Federal Task Force Model
The Air Disaster Task Force was not created as a permanent section. It brought
in individuals who were seconded from many other federal duties. It provided
no established structure or career paths and offered limited opportunities for
promotion. Wall stated that, at the time, he did not think a Task Force situation
“…lends itself to necessarily a good work environment long-term inasmuch
as careers are limited, opportunities are limited and it’s by and large a very
thankless job.” His view at the time was that it would have been better to have
created a permanent section of investigators rather than a Task Force model
where people were brought in from elsewhere.77
71
72
73
74
75
76
77
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11545, 11550.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11587.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9658-9659.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11550.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9661-9662.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11549-11550.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9709; Testimony of Robert Wall, vol. 77,
November 16, 2007, p. 9732.
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The structure of the Task Force posed challenges for the continuity of the
investigation. The RCMP promotion system requires officers to compete for
positions. An officer who becomes eligible for a promotion may compete for
positions that become available at the officer’s eligible rank. The fact that the
Task Force was not a permanent section meant that investigators were often
promoted out of the Task Force, taking with them the knowledge that they had
accumulated while serving on the Task Force.
Beginning in 1986, John Stevenson of CSIS acted as a Liaison Officer and, in
that capacity, provided documents on a daily basis to three different RCMP
investigative units in E Division, including the unit investigating Air India. He
observed that there were “…a fair number of people turning over on the RCMP
Task Force,” but not on the other units.78 Bill Turner, who was at CSIS HQ in 1985
and joined the Sikh Desk in 1986, commented on his view of the negative effect
that a high turnover had on the expertise of the investigators:
MR. GOVER: And when we think about other issues like
institutional culture that could impact on how cases are
investigated, do you think that the RCMP had a turnover rate
or a culture of promotion that worked against creating a
constant membership in the taskforce?
MR. TURNER: Oh, I think so. There was a turnover rate. They
did have some core investigators. But again, I don’t know how
many people they had come and go for periods of six months
to a year, two years, but there was a regular rotation around a
core.
MR. GOVER: And that worked against accumulating that
critical mass of investigative expertise. Is that fair?
MR. TURNER: Well, yeah, if you look in the – not just the
security intelligence area, but you have to look within that and
you have to look at the Sikh extremists milieu, which is quite
different than looking in the Al Qaeda or something else.
MR. GOVER: And —
MR. TURNER: So it’s not just national security background you
need; you also need background in the Sikh area.79
One of the deficiencies noted by Bass when he began his review of the
investigation into the Air India bombing in 1995 was that “…there was not a lot
of continuity at the very senior management levels of the organization.”80 Since
the file was “so big” it was:
78
79
80
Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7653-7654, 7658.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8304-8305.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11288.
�Chapter II: RCMP Post-Bombing
…very difficult to get people up to speed when they come into
it, especially if they’re not involved right in the investigation;
they’re kind of at the management level where I was. So new
people coming in would get parts of the information … they
certainly wouldn’t have a good strong understanding of the
case which I’m sure you can appreciate from work here…. A
“lesson learned” is that there has to be a way “to ensure senior
level continuity.” 81
High turnover, combined with the lack of a good information management
system, made it difficult to retain knowledge on the Task Force. 82 Once Bass
took charge of the file in 1995, he carried it all the way to the trial and, according
to S/Sgt. Bart Blachford, Bass “…carried that with him until today in fact.”83
Blachford stated that, with large criminal investigations, the problem of officers
getting promoted in the RCMP and being moved far away, is still a challenge
today.84 To better maintain continuity of the investigation, when the Task Force
was re-invigorated in 1995, a system known as“over-ranking”was implemented.85
This system allowed investigators to stay in place, even if ordinary promotional
considerations might have warranted their being transferred to some other
duty. The Task Force had the ability to ask that a member receive a promotion
to the next rank, but not change position or locations. Insp. Jim Cunningham
testified that this was “…somewhat of a quick fix.” It was not a perfect solution,
since the Task Force could give a promotion, but might not always provide the
investigator with the challenges to “…develop him for the next level.” 86 Further,
while “over-ranking” allows managers to “…put in a business case,” stating why
a particular member should be able to keep their promotion and stay on file,
these decisions are still made “…on a case-by-case basis.”87
Lack of Training
The Air India investigation was specifically designated a “CSIS Act Investigation”
because the crime was seen as arising out of “…conduct constituting a threat to
the security of Canada.”Yet, most investigators received no training on terrorism/
extremism investigations.
There was little attempt, within the structure of the Task Force, to educate
members or to provide them with specific skills training in the areas of
extremism or terrorism. RCMP members of the Air India investigation were “…
not required to have specific training prior [to] or during their involvement in
81
82
83
84
85
86
87
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11288-11289.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9460-9461.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7818-7819.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7834.
Final Submissions of the Attorney General of Canada, Vol. I, para. 290.
Testimony of Jim Cunningham, vol. 87, December 3, 2007, pp. 11336-11337.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7834.
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the investigation.”88 In response to a request by Commission counsel, the RCMP
identified three courses it offered which were relevant to “…specific training on
Sikh extremism or religious or politically motivated terrorism.” These included:
• Cross-cultural Education – a course which provided “broad
training” on cultural awareness. From 1978 to 1994, 10 of the
“core Air India investigators”89 completed this course. The
RCMP, in its submissions, indicated that there was “a core of 92
investigators,” which was maintained throughout the course of
the investigation;90
• Investigational Techniques – Criminal Extremism/Terrorism – a
course which commenced in 1988. Twenty-one of the “core Air
India investigators” from 1988 to 1996 completed this course;
• Cross-cultural Education – The Sikhs – a course which
commenced in 1992. From 1992 to 1995, three of the core Air India
investigators completed this course.91
The lack of available courses in criminal extremism/terrorism investigative
techniques for the first three years of the investigation may help explain some
of the difficulties that members of the Task Force seemed to encounter in their
approach to sources in the Sikh community.92 The RCMP members involved
in the Air India investigation also did not always understand the need for
centralization in national security investigations, nor appreciate the value of
intelligence and the relevance of the larger Sikh extremism context.
RCMP HQ Task Force member Sweeney would later reflect on the early months
of the Air India investigation, noting that the RCMP needed to increase its “…
intelligence gathering and analytical capabilities” with respect to terrorism if it
was to adequately assist in the investigation of future terrorist acts.93
File Management – Coordination, Centralization, and Organization
The quantity of information and intelligence that was collected by the RCMP
created a large investigation – of a scale never experienced by the RCMP, before
or since – spanning three continents and six countries.94 Given the scale and
complexity of the investigation, an obvious challenge that faced the RCMP was
the management of information.
88
89
90
91
92
93
94
Exhibit P-101 CAF0438, p. 23.
Exhibit P-101 CAF0438, p. 23.
Exhibit P-101 CAF0438, p. 22. There is a question as to whether this number of 92 was, in fact,
maintained throughout. See Section 2.2 (Post-bombing), The RCMP Investigation: Red Tape and Yellow
Tape.
Exhibit P-101 CAF0438, pp. 22-23.
See Chapter I (Post-bombing), Human Sources: Approach to Sources and Witness Protection.
Exhibit P-101 CAF0055, p. 7.
Final Submissions of the Attorney General of Canada, Vol. I, para. 277.
�Chapter II: RCMP Post-Bombing
Organizing the File
Before the Air India investigation, the RCMP did not have policies or procedures
for the use of information management systems in major investigations. As a
result, the different Task Force units across the country implemented different
applications. This resulted in confusion and delay in setting up an information
system for the Air India investigation.95 A manual TIPS system was initiated
in Vancouver, and the Task Force members converted the existing Richmond
file information into a TIPS record system.96 Toronto utilized a totally different
automated system, whereas Ottawa and Montreal maintained sequential paper
files.
The TIPS system, which is a manual card system, is named for the concept of “tips”
– or leads in a criminal case. This system was used by the Michigan State Police
at the time, and imported into British Columbia. Every piece of information and
every investigative lead that came in was made the subject of a “tip” or a file –
and was given its own folder and number.97 When a “tip” came in, investigators
were assigned to investigate or follow up the specific piece of information or
area.98 All initiatives with respect to that particular undertaking were housed in
that TIP folder. TIPS were opened under the name of the person or organization
related to the information received.99 Administrative personnel in the office
would read any incoming information and “card” the names mentioned into a
card index system. Other identifiers – for example, dates of birth, fingerprint
section numbers – were added to the cards as well.100 An officer who was trying
to find all references to a particular individual within the file for the investigation
would go to the card index and look for that name. The card would then refer
to the TIP files in which that name appeared. If the name was referenced in a
number of different TIP files, the card would contain the cross-references to the
other tips. Some TIP files would end up consisting of three to four pages, while
others could number in the thousands of pages.101
After individual Task Forces had already implemented their own document
management systems, a Headquarters directive came out requiring that a
TIPS/PIRS system was to be used.102 The PIRS system, which was the Police
Information Retrieval System, was a national automated “alpha reference,” or
indexing system, that provided file references but not the actual material in the
file.103
The Headquarters directive was received with reluctance and resulted in a
“major overhaul” of the established day-to-day operations that each Task Force
95
96
97
98
99
100
101
102
103
Exhibit P-101 CAF0056, p. 3.
Exhibit P-101 CAA0267, p. 1.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9662-9663.
Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2750.
Testimony of Jim Cunningham, vol. 87, December 3, 2007, pp. 11322-11323.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9662-9663.
Testimony of Jim Cunningham, vol. 87, December 3, 2007, pp. 11321-11323.
Exhibit P-101 CAF0056, p. 4.
Final Submissions of the Attorney General of Canada, Vol. I, para. 294.
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had put in place. This resulted in a backlog. Members were unfamiliar with
the systems, and their implementation created a significant workload – hence,
the reluctance. Personnel needed to be well-informed, and the system required
“full managerial support” to establish its credibility. Due to deficiencies in this
respect, TIPS/PIRS became a secondary application at some units, and was not
“…utilized to its fullest.”104
The TIPS/PIRS system was ultimately implemented in all four investigation units,
and while it was described as a “…very useful tool,” its use by the “…Vancouver
Task Force was not uniformly positive.” Personnel in the E Division Task Force
had in place the manual TIPS system, and had no experience with PIRS. They
felt that they could not utilize a tool that required, on their part, training and
the conversion of data, while coping with the pressures and demands of
the investigation itself. TIPS/PIRS training was provided to all units, with the
exception of Vancouver. Hardware was also a challenge for the E Division
Task Force in the early days of the investigation. While Headquarters had two
analysts, each with a computer terminal, there were six analysts in Vancouver
who were provided with only one terminal to share.105
The manual TIPS system remained in use as the main system at E Division,106 and
Solvason testified that, as late as 1991, the “…filing system of that time” was still
the manual system of index cards and physical files.107 Until the entire E Division
file was digitized into a Supertext document management system in the mid1990s, the Task Force relied on the card index system as the main means to
locate information within the files (with more limited reliance on PIRS).108
While the RCMP Security Service (and then CSIS) had used the NSR system,
a searchable and centralized computer database since 1981, the RCMP did
not implement an equivalent system for the centralized sharing of narrative
information. CSIS personnel entered their intelligence reports and threat
assessment information into a central database that was searchable by other
regions and by Headquarters.109 The RCMP units, by contrast, distributed
summaries of their initiatives by way of “ciphered telex,” a top secret level telexsharing system.110 The investigative units did not provide detailed information or
distribute the actual reports about their initiatives,111 with the result that analysts
at Headquarters did not have ready access to data, and had to specifically request
material from the divisions in order to obtain detailed information.112 Some
time in 1986, a national searchable narrative database, Divisional Investigative
Database 22 (DIB 22), began implementation.113 This database, however, has
104
105
106
107
108
109
110
111
112
Exhibit P-101 CAF0056, pp. 4-6.
Exhibit P-101 CAF0056, pp. 7, 10.
Exhibit P-101 CAF0056, p. 7.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11601.
Testimony of Jim Cunningham, vol. 87, December 3, 2007, pp. 11329-11330.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, pp. 3734, 3738.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9663.
See Section 2.1 (Post-bombing), Centralization/Decentralization.
Exhibit P-101 CAA0055, p. 6. For a more detailed discussion of this topic see Section 2.1 (Postbombing), Centralization/Decentralization.
113 Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9663.
�Chapter II: RCMP Post-Bombing
been described as a “meat and potatoes” database, which focused only on what
was viewed as the most important material. Not everything which existed in
hard copy was put into electronic format, with the result that not all continuation
reports were retyped and entered into the system.
Though the investigational Task Forces all ultimately used TIP systems, each set
their systems up in their own way. Headquarters did not use the TIP system at
all, and maintained a sequential file instead. As there was no standardization,
the same information would be filed under different numbers in different
locations.114 This created extra work for investigators who needed to compare
information they had on file in order to ensure that their files were complete.
Moreover, there was different information on the files at the different Task
Force locations and at Headquarters in Ottawa. In fact, the lack of an effective
centralized filing system meant that a Task Force investigator looking for the
RCMP system-wide holdings on the national investigation would have had to
look at the BC master file, at the Ottawa file, at the Toronto and Montreal and
perhaps even Hamilton files. The officer would also have needed to look in
electronic files as well, since it was not possible to know whether a document
would be in one or more or all of the systems.115 The existence of multiple filing
systems with different material made finding information on any particular
subject an onerous task, and posed the risk that information would be missed. In
1990, in preparation for the abuse of process motion in the Reyat trial, E Division
cautioned Headquarters that the materials E Division had collected on the “…
subject of requests for access to CSIS materials by the Force” were incomplete,
and that additional documentation “…no doubt exists at both this HQ’s level
and HQ’s Ottawa.”116
The fact that there was information stored in files at multiple locations was
recognized when the Air India Task Force was reinvigorated in 1995. The Task
Force requested that the Toronto and Montreal files be shipped to Vancouver,
and these files were digitized and uploaded, along with the E Division files, to
“Supertext,” a new searchable electronic document management system. This
allowed for easier searching of the database and tracking of documents. Yet,
as late as 2007, in preparing information for a briefing to Commission counsel
on the issue of Mr. A, Sgt. Terry Goral still had to search through a number of
different HQ and BC files, because all of the information had not been compiled
into one system.117
Difficulties in Locating Information on File
Investigators also, at times, experienced difficulties in locating information that
was on file. Solvason testified, in relation to the manual system in use in 1991,
that the rule was that when taking out a “…master file, you’re supposed to put
a charge card there; [but] didn’t always happen” and sometimes things were
114
115
116
117
Testimony of Jim Cunningham, vol. 87, December 3, 2007, p. 11327.
Testimony of Jim Cunningham, vol. 87, December 3, 2007, p. 11328.
Exhibit P-101 CAF0232. See also CAF0259.
Testimony of Jim Cunningham, vol. 87, December 3, 2007, pp. 11329-11330.
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misfiled.118 Hence, when a tip review in relation to the November 1984 bomb
plot was conducted by an RCMP analyst in February 1986, it was noted that the
report about the information obtained by the RCMP from Person 1 in 1985 was
not on file.119 Similarly, there was a report which indicated that, on June 22,
1985, the video camera at the Vancouver International Airport, which should
have faced the lost and found area, was found facing the floor. The camera
holder was loose and needed to be tightened. Investigators, following up for
the Watt Mackay review on whether there were other cameras in operation and
whether any of the tapes had been examined, noted that the analysts “…are
aware that there was a file on this issue but were unable to locate it for the
purposes of discussing this review.”120
The RCMP also experienced difficulty in locating information that had been
provided to the Task Force by CSIS. For example, CSIS provided the RCMP with
two reels of tape that were said to record Parmar making the statement: “If
someone implicates me or gets me arrested for planting the bomb, that person
would have to be an insider. How any other person can do it – who doesn’t
know anything.” However, a review of RCMP information on file, conducted in
1988-89, revealed that there was “…no information to indicate that the tapes
were transcribed or what action resulted,” and “…efforts to surface the tape
were unsuccessful.”121
The sheer bulk of information also made it difficult for the RCMP to locate and
correct errors on file. For example, the Watt Mackay review, completed in 198990, noted that “…CSIS surveillance mixed up Surjan Singh Gill with his brother
Gurdam Singh Gill on 85-06-24 (around Vancouver and out to VIA),” and that,
when the photographs of the subject CSIS covered at VIA were compared with
photographs of Surjan Singh Gill, “…it does appear that the subject was not
Surjan Gill.”122 However, the Air India “inclusive timeline” (a chronology prepared
by the RCMP, which summarized events in relation to Air India, dated September
1999) replicated this error, repeatedly referring to CSIS PSU observations of
“Surjan Singh Gill” around Vancouver and at Vancouver airport.123
At times the RCMP had to re-request material from CSIS that it was unable to
locate in its own files.124 For example, as a result of the Watt Mackay review, RCMP
E Division requested six particular CSIS documents to assist them in the Air India
investigation. One of these documents was an important analytical document
118
119
120
121
122
123
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11618.
Exhibit P-120(c), p. 6 (entry for Feb. 26, 1986: doc 518-3).
Exhibit P-101 CAF0343(i), p. 45.
Exhibit P-101 CAF0343(i), p. 34.
Exhibit P-101 CAF0343(i), pp. 57-58.
See Exhibit P-101 CAF0519, pp. 3-4. In response to this contradiction, while Insp. Cunningham agreed
that both documents could not be correct, he replied that one would also need to look at yet another
document, the “relevant timeline,” as “…there is the possibility that those particular notations in relation
to Surjan Gill and the surveillance being conducted, may have been removed” in that document:
Testimony of Jim Cunningham, vol. 87, December 3, 2007, pp. 11332-11333.
124 Exhibit P-101 CAF0056, p. 24.
�Chapter II: RCMP Post-Bombing
– referred to as “the Dexter analysis” – which CSIS had already provided to the
RCMP a number of years prior, but which the RCMP was no longer able to locate
on file.125
Bill Turner of CSIS testified in relation to the RCMP’s requests for documents in
the context of the Malik and Bagri trial:
MR. GOVER: And had any of the information provided to the
RCMP been lost by them?
MR. TURNER: I think there were occasions that we knew that
we had given them information and we said we’d given that to
you already and the response was “Well we’re not sure where it
is. Can you provide it again?”
Certainly, that was the case with some disclosure letters and
we provided, I think, about 3,000 disclosure letters to them.126
Similarly, Mervin Grierson noted that he represented CSIS in the Narita trial in
Vancouver:
…and knew every piece of paper that went into the disclosure
package for that trial in 1988. And years later – that was all
declassified. The RCMP got the same material as the Defence
got; they got five boxes of documents. We would be having
discussions and they’d say, “Well, we don’t know about that.
You didn’t provide that to us.” And I’d say, “Well, it’s in the
public domain. It was released five years ago.” “Well, we
can’t find it. It’s not on our Air India file. So, again, without
being uncharitable to those members, they didn’t have that
continuity of knowledge, and their method of retrieving that
was more labour-intensive than ours were.127
The inability of the RCMP to locate information on file appears to have caused
some tension between the two agencies. As explained by Grierson, there were
times when CSIS knew that it had shared certain information with the RCMP
because it had a “tracking mechanism,” but the RCMP “…would create a big stink,”
accusing CSIS of never having provided the information. CSIS would go through
its files and find that the RCMP had indeed been provided the information by
CSIS years ago.128
125 Exhibit P-291, item 80. The Unit Head for the BC Region Counter Terrorism Section, John Stevenson,
testified that he was once asked to provide another copy of CSIS materials he had previously given
because the RCMP somehow misfiled or misplaced it within E Division and could not find it: Testimony
of John Stevenson, vol. 62, October 16, 2007, pp. 7676-7677.
126 Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8313.
127 Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9460-9461.
128 Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9460-9461.
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On the other hand, Blachford testified that, despite the limitations of a manual
system, he did not experience difficulty in retrieving the information he
required:
MR. BOXALL: Were there problems then – given the size of the
file and the technology existing at that time – with the RCMP’s
management of a file this size and the number of documents
and tips and so on?
S/SGT. BLACHFORD: Well, it was a struggle. I mean it was a
manual maintenance, file maintenance system, cards, but I
think it was done fairly well.… I was able to access these tips in
my review and find them before we went out and did followup. I … my job as part of the Watt McKay Review was to go
back and research the file and I was able to find material that I
needed and … it seemed to be logically accessible.
MR. BOXALL: So your evidence was there wasn’t any problem
with persons being able to access the information —
S/SGT. BLACHFORD: I certainly didn’t have trouble finding the
material on the file. It may have taken a little longer than I like
because of the volume that you had to go through but….129
Retention of Information
In spite of the fact that the Air India investigation continuously remained open,
the RCMP did not preserve all relevant materials over the years. The RCMP
destroyed a number of important files, documents, and audio recordings.
In 1999, when the RCMP began once again to follow up on the November
1984 bomb plot,130 retired Sgt. Wayne Douglas was contacted regarding his
knowledge of the incident and, specifically, about his knowledge of certain
“…reports, notes or tapes” that he may have received from the VPD. Douglas
advised that his “…notebooks may have been shredded” when he turned them
in to the Task Force on his retirement. The destruction of his notebooks posed
a challenge for the RCMP’s ability to reconstruct the interactions between the
VPD and Douglas, the main investigator on the November 1984 Plot issue, and
meant that the RCMP was forced to rely on Douglas’s recollection of events, 15
years after the fact.131
Similarly, in relation to the individuals identified by Mr. Z as being responsible, or
associated with those responsible, for checking in the luggage with the bombs,
129 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7830-7831.
130 See Section 1.1 (Pre-bombing), November 1984 Plot.
131 Exhibit P-101 CAF0521, pp. 7-8.
�Chapter II: RCMP Post-Bombing
the tapes of interviews with these individuals were “…destroyed for unknown
reasons during the investigation and there were no copies made and none were
transcribed.”132
Ongoing File Reviews
One of the ways the RCMP attempted to address the challenges of managing
the quantity of information on file was through ongoing file reviews. The
Task Force undertook massive file reviews every few years, with the first file
review beginning six months after the bombing.133 These reviews required
a large mobilization of resources each time, but never seemed to lead to any
innovations or changes in the filing system itself. From the outset, the E Division
Task Force did not organize its material by issues, themes or incidents, and there
was no running thematic summary of the file created as the investigation went
along.134 Despite the difficulties encountered on successive file reviews, this
never changed, and the errors continued to accumulate in the files over the
years. When Gary Bass began the process of reviewing the files when the Task
Force was reinvigorated in 1995, there was still no executive summary or report
on the status of the investigation to use as a starting point. Bass, in his February
9, 1996 memorandum, wrote:
…the file volume and complexity of the investigation has
meant that few people ever acquired a grasp of the big picture,
in terms of evidence over the years. We have noted that as the
details of certain events have been told and retold over the
years, they have become increasingly less accurate.135
When the Crown, as part of the prosecutorial decision on whether to proceed
to trial, was called on to determine whether there was a substantial probability
of conviction, it had to go through the entire holdings in the possession of the
RCMP. It took the Crown approximately four years to review all of the information
on the file, and it was during this review process that the Crown for the first time
reorganized the information thematically.136
Conclusion
The Air India Task Force was created to solve the greatest crime in Canadian
history, but faced numerous challenges in this endeavour. While some of these
challenges were inherent to the investigation itself, a number of difficulties arose
as a direct result of structural decisions made in relation to the Task Force.
132 Agreed statement read into testimony by agreement with the Attorney General of Canada during
Testimony of Robert Wall, vol. 77, November 16, 2007, p. 9729.
133 Late 1985 HQ analysts review E Division files; 1985-1988 Project Dojail (review in connection with the
civil litigation); Exhibit P-101 CAF0391: 1988-1989 File review by Watt McKay; review for SIRC;
Exhibit P-101 CAF0411, p. 1: 1992 “complete examination of entire Air India investigation” by E Division
NSIS Investigators; Exhibit P-101 CAF0391: February 1995; 1995-1996 File review under Gary Bass.
134 Testimony of Jim Cunningham, vol. 87, December 3, 2007, pp. 11324, 11326.
135 Exhibit P-101 CAA0932, p. 5.
136 Testimony of Jim Cunningham, vol. 87, December 3, 2007, pp. 11323-11324.
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The Task Force belonged to the federal side of RCMP operations, which,
unfortunately, had few officers trained in major crime investigations and virtually
none acquainted with the issues of Sikh extremism or with the ability to speak
Punjabi. Municipal police forces could have provided much useful information
to the Task Force, but were badly under-utilized. As well, because the Task Force
was temporary, investigators were promoted out of the unit and the resulting
high turnover could only have eroded the collective mastery of the file.
The investigation was slow to get up-and-running and, in the early days, was
dependent on CSIS for investigative leads and targets. This fact is particularly
unfortunate, as the RCMP had a great deal of information about pre-bombing
threats and key figures in the Sikh extremist movement, but never used it
to orient the investigation set up after the bombing. As well, information
generated by the Task Forces themselves was not organized in a well-thoughtout manner. Files in different locations used different filing systems and were
never organized according to issue, theme, or incident. There were important
instances where files that held important content were lost or destroyed.
These problems needed to be identified early on – and should have been, in
the course of the many file reviews that were conducted. Either they were not
identified, or the will to effect change was not there.
2.1 Centralization/Decentralization
The Need for Centralization in Security Offences Investigations
A key challenge faced by the RCMP in conducting the Air India investigation
resulted from the overall organization of the Force’s operations. In 1985, RCMP
operations were decentralized. RCMP Headquarters was “…fundamentally an
administrative” office and was “…not deeply involved in field investigations.”137
Divisions were used to being “autonomous,”138 conducting investigations
without input or oversight by Headquarters.
Prior to the Air India bombing, the RCMP had recognized that there were
circumstances in which this model of decentralized control would need to be
modified. It was noted in the draft RCMP Guidelines respecting National Security
Enforcement that security offences investigations required a “…high level of
central control and coordination.”139 Centralized control in national security
investigations makes sense for a number of reasons. Investigations relating to
national security issues involve highly sensitive information: the investigative
decisions that are made could impact on national and international interests.
A central body is necessary to analyze all relevant information – which may be
coming in from multiple jurisdictions – in order to ensure that the information
is shared with the proper units. A central unit also has the broadest perspective,
137 Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9365.
138 Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9671.
139 Exhibit P-101 CAA0039(i), pp. 9-10 [Emphasis added].
�Chapter II: RCMP Post-Bombing
and is thus in the best position to make accountable decisions of overall
benefit to the investigation. If investigative decisions are left solely to regional
management, the broader national and international perspective will be lost.
Limited Control by RCMP Headquarters
The draft National Security Enforcement guidelines, while establishing an
obligation to supply HQ with reports on security offences investigations,140
did not confer any actual power or impose any obligation on HQ to control
or impact investigations. Reports were to be sufficiently detailed to “…allow
Headquarters to respond to enquiries by Government,” and detailed operational
plans had to be submitted only where significant resource commitments or
intrusive measures were involved.141 Thus the nature of the actual control to be
exercised by HQ in Ottawa in the case of national security offences investigations
remained modest, resulting in the view that it was control in name only.
The RCMP’s discomfort with any significant operational centralization, at both
the HQ and divisional level, came to characterize an unhealthy and ineffective
relationship between Ottawa and the divisions throughout the Air India
investigation.
At HQ, an Air India Task Force Coordination Centre was set up to coordinate
the divisional Task Forces in Montreal, Vancouver, Toronto and later Alberta.
According to Robert Simmonds, who was Commissioner at the time, the
purpose of the Headquarters Task Force was “…to do nothing more than to look
at all of the information that was being generated” by the investigative groups
in the divisions, as well as through foreign liaison in Japan and Ireland.142 The
Headquarters Task Force was not to manage, supervise or review the investigative
activities of the divisions.143 The idea was that those investigating in Vancouver
might not know everything happening in the Toronto investigation, so central
coordination via the HQ Task Force would provide a “…reasonable assurance
that nothing would be overlooked or missed.”144
In the first months of the investigation, HQ management representatives met
at the Prime Minister’s Office (PMO) on a daily basis. The first endeavour of the
Headquarters Task Force was to produce daily situational reports for senior
management to outline investigative matters and“…general information dealing
with PMO’s decisions” and “…aspects of [the] civil aviation investigation.”145 The
reports summarized the initiatives that were underway in each unit’s respective
areas, and were sent out to all of the divisional Task Forces as well, so that
everyone in the network would have all the information available at the same
time.146
140 Exhibit P-101 CAA0039(i), p. 15. See also pp. 20-21, providing for reporting requirements about the
offence itself and related criminal intelligence.
141 Exhibit P-101 CAA0039(i), pp. 16-17, 20.
142 Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9366.
143 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2647-2648.
144 Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9366.
145 Exhibit P-101 CAA0248, CAF0055, p. 4.
146 Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9667-9668.
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On July 25, 1985, HQ wrote to the division Task Forces, stating that questions
could arise from “…the PMO, DEA, MOT and the CASB.”147 The memo indicated
that, in order to enable the Commissioner and the author to respond in an
“informative manner,” HQ “…must always be aware of the details of your
respective investigations.”148 The reporting requirements placed on the divisions
proved to be “labour intensive.” The divisions were required to report all ongoing
initiatives to HQ Ottawa through a Top Secret cleared telex system,149 and in the
first few months did so by daily updates. The divisions would also copy all of
the other divisional Task Force units when sending out their daily updates so
that “…all the task forces within this network would have all the information
available of the investigation at the same time.”150
Divisional Autonomy in the Investigation
The E Division Task Force generally operated autonomously, taking operational
decisions and undertaking investigative steps without having to seek
approval from Ottawa.151 Important operational initiatives, such as assembling
applications to intercept communications) or engaging in source development,
could be launched without seeking approval from Ottawa.152 Bill Turner, who
was at CSIS HQ in 1985, and who joined the Sikh Desk in 1986, described the
contrast between CSIS’s highly centralized structure and the RCMP’s structure
with respect to the Air India investigation:
Well, the RCMP is quite different. They’re very decentralized. I
mean the CO in ‘E’ Division has a lot more authority on running
the investigation out in ‘E’ Division. They do talk, obviously,
to their headquarters counterpart but ‘E’ Division is semiautonomous.153
S/Sgt. Robert Wall testified that, while there was some resistance to a model
of Headquarters control, it was made clear early on that this was the way the
operation would be run, and that, in a paramilitary organization, “…you do as
you’re told by your superiors.”154 However, the reality was that HQ personnel
were not actually E Division personnel’s “superiors.” The HQ Task Force was set
up in such a way that divisional investigators did not have any formal reporting
requirements that obliged them to respond to questions or operational
suggestions from HQ. In terms of the official line of command, Sgt. Warren
147
148
149
150
151
Canadian Aviation Safety Board.
Exhibit P-101 CAA0288, p. 1.
The “Cipher System.”
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9667-9668.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9667. There were certain initiatives for
which approval of Ottawa was required – for example, any operational plans requiring foreign travel or
investigations requiring Ottawa’s assistance to coordinate through diplomatic channels: Testimony of
Robert Wall, vol. 76, November 15, 2007, p. 9668.
152 Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9668-9669.
153 Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8275.
154 Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9671.
�Chapter II: RCMP Post-Bombing
Sweeney testified that E Division did not report to him. The only ways that he
could have required the division to provide answers to HQ questions would
have been either to have Chief Superintendent Norman Belanger, who was put
in charge of the HQ Air India Task Force, sign the request, or to place his request
through the supervisor of divisional investigators within the division.155
The Impact of Decentralization on HQ Control and Effectiveness
The RCMP’s philosophy of decentralization, and the structure that embodied it,
affected the ability of HQ to act as a coordinating body. Divisions only informed
HQ of what they thought HQ should know. The HQ situation reports were
neither detailed nor complete because the divisional reports upon which they
were based were lacking in detail, and the divisional responses to HQ requests,
and information sharing with HQ, were “inadequate.” The result was that HQ
“…analysts were not working with all the pieces of the jug [sic] saw puzzle,”156
making it impossible for HQ to provide any true in-depth coordination or
direction. It became “very frustrating” for analysts to receive correspondence
stating that “…12 perimeter interviews were conducted to date”, with no
indication of “…what most of those interviewed had to say,”157 or to be given
a report that a review of CSIS material from the Parmar intercept “…revealed
nothing of significance other than intelligence regarding contacts he has made,”
with no information as to the identity or nature of those contacts.158
The result was that Headquarters did not have a sufficient understanding of
what was occurring on the ground, or even a basic understanding of the focus
of E Division initiatives. For example, on July 22, 1985, RCMP HQ NCIB sent a
telex to E Division with numerous questions about the state of the investigation
at the E Division Task Force. At the end of the list of questions, HQ asked: “What
is E Division Task Force’s main investigational concentration at this point?
What is their future operational plan?” and concluded by noting that “…more
details required in daily reports,” and that copies needed to be provided “…of
statements, interview reports, intercept reports, surveillance reports, etc.”159 In
the face of such basic information deficits, it would clearly have been impossible
for HQ to assume any meaningful centralized direction or coordination of the
investigation.160
HQ also experienced difficulties in obtaining responses to its requests of the
divisions. It took months before E Division finally responded to HQ’s requests for
information about the November Plot in the months following the bombing.161
When asked to comment about the non-responsive attitude of E Division with
respect to the November Plot matter, Sweeney explained that by the time most
155
156
157
158
159
160
161
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2627.
Exhibit P-101 CAF0055, p. 6.
Exhibit P-101 CAF0055, p. 6.
Exhibit P-101 CAA0292(i), p. 3.
Exhibit P-101 CAA0286.
Exhibit P-101 CAF0055, p. 8.
See Section 2.3.1 (Post-bombing), November 1984 Plot and Section 3.4 (Pre-bombing), Deficiencies in
RCMP Threat Assessment Structure and Process.
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requests were sent in September 1985, the Air India Task Force was operational,
and E Division was constantly receiving requests for updates and information.
He believed there was a feeling in E Division that HQ should simply let the onthe-ground investigators do their job, and that they would notify the appropriate
recipients once they received the information.162
Sweeney identified the lack of true central control as a problem in a 1986 report
examining the role of the Coordination Center in the Air India investigation.163
In his recommendations he stated that:
Policy should be drafted whereby Part IV.I (now Part VI)
offences and major international investigations such as Air
India, are controlled and directed from HQ’s. All the major
decisions affecting Canada under Part IV.I have to be made in
Ottawa in consultation with other government departments.
As such, HQ’s requires that all information gathered be
forwarded, analyzed, assessed and disseminated from one
central area. (This is the way CSIS operates.)164
In June 1986, HQ attempted to readjust its relationship with the divisions. By that
time, in addition to the Air India bombing, a number of Sikh extremist incidents
had occurred, including: the attempted bombing of the Indo-Canadian Times
office in Surrey; the attempted murder of Indian Cabinet Minister Malkiad Singh
Sidhu; the arrest of Parmar in Hamilton in connection with a plot to blow up the
Indian Parliament and to kidnap children of Indian MPs;165 and the plot to blow
up another Air India plane, discovered in Montreal in April/May 1986.166 At this
point, HQ began to see the need for a more direct and active role on its part and
for control over the multiple Sikh extremism-related investigations, which by
this time had been given the collective title, “Project Colossal.”
HQ sent a telex to the divisions stating that the “…events of the last few days”
have necessitated an “urgent review” of the RCMP response to the most “…
serious and wide-ranging criminal extremist activity ever encountered in this
country.” 167 The telex asked for the cooperation of the divisions stating that:
It is abundantly clear that the magnitude of the task at hand
goes far beyond the bounds of Divisional autonomy.…
Individual actions and initiatives cannot be addressed in a
narrow, regional context. For these reasons, there will be
occasions when it is reasonable and necessary for HQ to direct
field operations.168
162
163
164
165
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2627.
Exhibit P-101 CAF0055, p. 2; Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2706-2707.
Exhibit P-101 CAF0055, p. 8.
Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement – Canada’s Response to Sikh
Terrorism,” p. 47.
166 Exhibit P-101 CAF0504, p. 1.
167 Exhibit P-101 CAF0504, p. 1.
168 Exhibit P-101 CAF0504, p. 1.
�Chapter II: RCMP Post-Bombing
According to the telex, the role of HQ would be to coordinate, monitor and
assess all ongoing Sikh extremist criminal investigations and, as necessary, to
direct specific investigative operations.
Though it appears that Headquarters’ view of the level of control that it should
exercise over the investigation was beginning to change, no structural or
cultural changes occurred to allow for this level of control to be implemented.169
Even when analysts from HQ sent what would appear to have been instructions
to the divisions, these were often taken as “suggestions,” and were met with
indifference. Thus, on February 6, 1987, Cpl. Doug Wheler, an analyst at HQ,
sent the E Division Task Force a number of questions, some of which related to
Pushpinder Singh’s purported statements made two weeks before the bombing
that “something would happen” in two weeks.170 Wheler wrote that there should
be a “…complete re-examination of Khurana situation on 85 June 12,” including
a determination of whether Khurana was “still adamant” that the conversation
took place. He also wrote that VPD members involved in this incident should be
re-interviewed “…to determine if anything was missed.”171
Wheler’s report was forwarded to the E Division Task Force on February 9, 1987.172
The E Division response, dated February 18th, was devoted mostly to correcting
what clearly were perceived as misunderstandings of the existing information by
HQ,173 and to advancing the justification for the Division’s view that the Khurana
scenario had already been sufficiently investigated. It is apparent that there was
no “complete re-examination” of the Khurana situation at that time, nor does it
appear that the VPD members who had been listed as having been involved in
the scenario were contacted for purposes of any serious follow-up.174
The failure of the divisions to report all relevant information to HQ, and the
perception that reporting obligations were onerous and at times unnecessary,
continued well into the investigation. In July 1988, E Division had been
dealing directly with Crown Counsel James Jardine and with CSIS BC Region in
connection with the Reyat trial. A memo by the Non-Commissioned Officer in
Charge of Operations of the E Division investigation noted:
With respect to HQ’s Ottawa they have not been supplied with
any of the previous correspondence on this subject from this
division. HQ’s NSOTF have been dealing direct with CSIS HQ’s
and [therefore suggest] we may wish to re-consider sending
copies to them. If we are to send them we will have to put
together all previous correspondence for them.175
169 In fact, it was not until after Justice O’Connor made his recommendations in connection with the
Arar Commission of Inquiry that the RCMP began to take steps to implement a model of central control
for national security investigations.
170 See Section 1.6 (Pre-bombing), Khurana Information and Section 2.3.4 (Post-bombing), The Khurana
Tape.
171 Exhibit P-391, document 429 (Public Production # 3811), pp. 9-10.
172 Exhibit P-391, document 429 (Public Production # 3811), p. 1.
173 Exhibit P-101 CAA0528.
174 See Section 2.3.4 (Post-bombing), The Khurana Tape.
175 Exhibit P-101 CAF0223.
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The ineffectiveness of the RCMP’s Ottawa bureaucracy in coordinating and
organizing the investigation is well illustrated in a number of the source episodes.
When members of RCMP HQ received oral information from CSIS about a CSIS
source who had been asked by Bagri to borrow her car on the night before the
bombing, the information was not committed to paper (with the result that it
is now impossible to know exactly what information was, in fact, passed at the
time) and was not properly reported to the divisions. It also appears that HQ
decided that, as the CSIS source was not able to identify other individuals who
accompanied Bagri to the airport, it was not worth pursuing the matter any
further. It was not until years later that the significance of the information that
had been provided to RCMP HQ would be recognized, when E Division pursued
the matter directly with CSIS after the Watt Mackay review.176
In the case of Mr. Z, since HQ was not informed of the fact that E Division had
already developed and was pursuing his information, it was unable to keep
CSIS properly informed of the RCMP’s own initiatives. Once it was discovered
that CSIS and the RCMP were, in fact, pursuing parallel investigations, confusion
and ill will between the agencies ensued.177 In the case of Tara Singh Hayer,
RCMP HQ took an aggressive stance with CSIS, threatening to go after the
identity of CSIS’s community contact when CSIS passed along information
from the individual about Bagri’s purported confession of his involvement in
the bombing. In fact, unbeknownst to HQ, the RCMP already had access to
this CSIS contact (Tara Singh Hayer) and had developed this same information
sometime earlier.178 In both cases, the lack of information at HQ prevented it
from effectively communicating with CSIS in order to identify and correct any
potentially problematic overlap with CSIS’s operations, and this in turn led to
further friction with CSIS.
At the same time, even if a decision had been made to provide formal authority
to HQ to direct the investigation, it does not appear that HQ would have been
equipped for the task. Solvason testified that suggestions for actions from
Ottawa were not generally received with great enthusiasm at the E Division Task
Force. He stated that “…you had to do it, but it wasn’t really received with any
great deal of – it wasn’t welcome.” This was, in part, due to the fact that the input
of HQ was not seen as making any particularly useful contribution. According to
Solvason, RCMP HQ input was sometimes dismissed because directions in some
cases came “…from civilians or people that did not necessarily have hands-on
experience and certainly were a large distance away.” 179 He went on to explain
that:
In a normal homicide investigation, people with highly-skilled
and unique abilities come together as a small team and they’re
very much adaptive to circumstances as they flow and they
make decisions sometimes instantly as the investigation
progresses.
176
177
178
179
See Section 1.3 (Post-bombing), Ms. E.
See Section 1.4 (Post-bombing), Mr. Z.
See Section 1.2 (Post-bombing), Tara Singh Hayer.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11574.
�Chapter II: RCMP Post-Bombing
So, to have somebody from thousands of miles away make
those decisions was different.
In his view, while there was a need to “…coordinate things from a national
perspective”because of the multipleTask Forces across Canada,“…sometimes that
went a little further in terms of ‘do this, do that’ and when somebody is directing
your resources there instead of here, it makes it difficult sometimes.”180
To make things worse, HQ was not provided with sufficient resources to enable
it to manage and analyze all the information being produced in the multiple
Task Force units. A group of five Coordination Center members could only have
provided the most general supervision and oversight for an investigation of this
magnitude.
Conclusion
Factors related to culture, resources, structure and staffing all combined to
defeat any true centralized coordination and control of the RCMP investigation,
at least up to the reinvigoration of the investigation in 1995. The effect of
this lack of centralization was that HQ did not have the information it would
have needed in order to effectively coordinate the Air India investigation.
Furthermore, even in circumstances where HQ wanted to provide investigative
input, it had no structural authority over the divisions, and its “directions” were
often disregarded or treated as mere suggestions.
2.2 The RCMP Investigation: Red Tape and Yellow Tape
Introduction
On May 10, 1991, Inderjit Singh Reyat was convicted of two counts of manslaughter
and four explosives charges relating to the Narita bombing. He was sentenced
to ten years imprisonment. Reyat was arrested in England on February 5, 1988,
and he fought the extradition until he was returned to Canada on December 13,
1989. RCMP E Division members received high praise by counsel in the UK for
their efforts in what was described as a “logistical nightmare.”181 James Jardine,
who had worked with members of E Division for six years in connection with the
Reyat trial, had similar praise for the investigators who worked tirelessly in the
preparation of this case.182
There is no question that the conviction of Reyat in relation to his role in
the Narita bombing was a significant success for the RCMP. While the efforts
of the RCMP in relation to the Narita investigation are well documented, it is
considerably more difficult to reconstruct the RCMP’s progress in relation to the
investigation of the bombing of Air India Flight 182 during the period of the late
180 Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11588.
181 Exhibit P-101 CAF0176.
182 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5782.
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1980s and early 1990s. The question that naturally arises is – what was the RCMP
doing in relation to the Air India investigation during this period?
The RCMP, like any government agency, has finite resources that it must
strategically allocate to best meet its institutional objectives. Not surprisingly,
to a great extent, the RCMP measures its success in terms of convictions. In
its difficult task of budgeting efficiently for various initiatives, it will naturally
consider the likelihood of successfully resolving an investigation as a factor
in its decision-making. At the same time, resourcing itself can impact on the
likelihood of success for an investigation. No investigation, no matter how
potentially “open and shut” the case may be, will be solved if there are no officers
available to collect the evidence. The manner in which resources are allocated is
by its very nature a statement about priorities, which in turn trickles down to the
ranks as a form of message about how the Force expects investigative energy to
be expended. A close examination of the history of the Air India investigation
provides a lesson in the interconnectedness of investigative priorities, financial
and human resources, creativity, and, ultimately, investigative progress or the
lack thereof.
Forensics made it more likely to resolve the Narita case, at least in part. The
RCMP focussed its resources and energy on obtaining at least one conviction,
albeit for lesser charges, targeting an accused who was not believed to have
been a mastermind of the conspiracy. Meanwhile, the difficulties associated
with resolving the Air India case led the RCMP to devote fewer, rather than
more, resources to this important investigation. From the outset, both the
Narita and the Air India bombings were approached as traditional homicide
investigations – attempting to link forensic evidence from the scene of the crime
and eyewitness evidence to the suspects. The problem was that the Air India
Flight 182 crime scene, which was thousands of metres below the Irish Sea, was
vastly more problematic than that of the Narita bombing.
For years, the position of the RCMP was that until sufficient evidence had been
collected from the crime scene, the Air India investigation had gone as far as
it could go. The result was that, for a time, there were not many investigative
initiatives ongoing at E Division in connection with Air India, other than attempts
to retrieve exhibits from the Irish Sea and to obtain forensic reports.183 Rather
than looking for alternative approaches to the investigation or reorienting it
in the only way that made sense under the circumstances – as an intelligenceled investigation – the RCMP let the investigation fall into stagnation for years.
The undersea dives were expensive operations. Meanwhile, resources for
other investigative initiatives were not made readily available to E Division
investigators, who were, in fact, actively discouraged from pursuing Air India
initiatives at all. Over time, morale became a very serious issue in the E Division
unit. Many investigators at the Task Force did their best to pursue the Air India
investigation, despite a difficult work environment. Some even tried to focus
efforts on developing an approach based on the potential for a conspiracy
183 Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9642-9643, 9646-9647.
�Chapter II: RCMP Post-Bombing
charge and on pursuing potential sources. However, the negative climate that
developed at the Task Force inevitably had an impact on the investigators, and
thus on the investigation.184
The Air India investigation was finally overhauled in 1995, as calls for a public
inquiry grew louder in the lead-up to the ten-year anniversary of the bombing.
What could have been done earlier was undertaken only then, ten years after
the bombing. The investigation was injected with significant new resources and
a dedicated task force was again created, which allowed investigators to focus
their energy entirely on this investigation. The investigation was reoriented
towards a conspiracy approach. At this point, the investigation went forward
with a wiretap application on the basis of information that had been available to
the RCMP for years. When the case ultimately went to trial, it was almost entirely
on the basis of source information, in many cases developed by CSIS or other
agencies first, and in some cases known to the RCMP for years (for example, Ms.
E).185
The Progress of the Investigation: 1987-1995
Structural Changes and Resources
In the early years of the Air India investigation, there was tremendous drive
to solve the crime at all levels of the RCMP. Retired Staff Sgt. Robert Solvason
testified that everyone was doing “…whatever they could” and that the Air India
investigation was the “…number one priority in the Force.” This meant that there
was a push at HQ and at the divisions to ensure that sufficient resources were
made available to meet investigative needs and to see that the investigation
was being well managed and well run.186 A dedicated Task Force was formed in
E Division, and investigators on the Air India file were able to focus their efforts
exclusively on this investigation.
Beginning in the late 1980s, a number of structural changes occurred that
affected the continuity of, and priority afforded to, the Air India investigation.
As early as 1986, investigative resources became increasingly devoted to the
Narita investigation and prosecution, to the exclusion of the Air India explosion,
and by September 1986, efforts at E Division were mainly focused on the Narita
incident.187 An internal RCMP report about the status of the investigation dated
September 10, 1986, states that the “thrust” of the investigation was on the
forensic findings arising out of materials uncovered at Narita and that:
While ever cognizant of the loss of Air India’s Flight 182, to date
nothing in terms of physical evidence has been established
on which efforts parallel to those ongoing in the Narita case
might be based.188
184
185
186
187
188
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11565-11566, 11604.
See Section 1.3 (Post-bombing), Ms. E.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11551-11552.
Exhibit P-101 CAA0494, p. 2.
Exhibit P-101 CAA0494(i), p. 2.
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Over time there was a “slow degeneration” of the Air India investigation, which
began receiving lower and lower priority.189
By 1987, many of the key figures in the management of the Air India investigation
were no longer on the Task Force. Supt. Les Holmes, who had been the OIC of
the E Division Task Force, had been transferred, and Inspector John Hoadley,
who had managed the E Division investigation, had retired. Similarly, at RCMP
HQ in Ottawa, C/Supt. Norman Belanger, who was the head of the Coordination
Centre and then of Special Projects Branch, which had been set up to manage
the Air India investigation at HQ, had left his position as well.190 In addition, while
dedicated task force units were set up to focus on the Air India investigation
immediately after the bombing, over the years the Air India investigation was
transferred to the National Security Offences Task Force (NSOTF), then to the
National Security Offences Section (NSOS), and, by 1989, to the National Security
Investigations Section (NSIS). With those changes, the Air India investigation was
no longer conducted by a dedicated unit, but became one among a number of
other matters handled by the new units.191
Staff Sergeant Bart Blachford, who was involved with the Air India investigation
throughout most of the 1990s and subsequent years and is now the lead
investigator in the continuing RCMP investigation, explained that during the
early 1990s, although “…people always wanted to move that file forward,”
members of NSIS were also responsible for other files and were “…continually
dealing with other Sikh matters” as they arose. He noted that, in the context of
“limited manpower,” the focus of E Division was on completing the Reyat trial.192
By 1989 there was a “tremendous” reduction in resources dedicated to Air
India at E Division,193 and Sgt. Laurie MacDonell, who joined NSIS at E Division
Headquarters in 1990, testified that, in the early 1990s, he never “…felt a push
or drive” coming from Headquarters to prioritize the Air India investigation. It
was one of a number of priorities at the time and was “…in a bit of a lull at that
point.”194
In late 1989, there was a formal attempt to shut down the Air India investigation
at E Division. Solvason recalled being called to attend a team leaders’ meeting
at E Division, along with Insp. Ron Dicks and Sgt. Robert Wall. They were
advised that the Air India investigation was being concluded and that the
team would focus solely on the Narita investigation. An announcement was
made that C/Supt. Frank Palmer, OIC Federal Operations E Division, would be
releasing members who had been seconded to the unit. The secondments
were terminated and officers were sent back to their home units. However, a
day or two later, a message arrived from Ottawa reversing that decision and
“…ordering those people back.” They had only been gone about three days.195
189 Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11551-11552, 11596; See Testimony of
Laurie MacDonell, vol. 76, November 15, 2007, p. 9647.
190 Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11565-11566.
191 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7832-7833.
192 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7811-7812.
193 Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9707-9708.
194 Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9642-9643, 9646-9647.
195 Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11573-11574.
�Chapter II: RCMP Post-Bombing
Though Ottawa intervened to prevent the investigation from being shut down,
it does not appear that it provided instructions or resources to E Division to reprioritize the investigation.
After the attempt to shut down the investigation, there was yet another
reorganization at E Division and the Air India investigation was assigned to a
single person, who was responsible for coordinating various recovery attempts
of the wreckage of Flight 182 and file administration.196
Though the RCMP provided a written response to questions from Commission
counsel indicating that there was a “core group” of 92 investigators dedicated
entirely to the Air India investigation throughout the course of this
investigation,197 this number does not seem to be supported by the evidence
and most likely includes investigators engaged in the preparation for the Narita
trial and the Reyat prosecution, which was the main focus of the E Division NSIS
unit throughout most of this period.
Discouragement of Intelligence-Led Initiatives and the “Yellow-Tape”
Approach
In spite of the limited resources allocated to the investigation, some of the E
Division investigators “…wanted to be more active and try other things.”198 In
Solvason’s view, for instance, the chances of successfully making a forensic case
out of the investigation were very remote and it seemed to be more “…realistic
to pursue other initiatives towards a conspiracy because in fact, that’s what we
believed it was.”199
Indeed, from the outset of the Air India and Narita investigations, the RCMP’s
view was that there had been one conspiracy planned to execute two concurrent
acts of terrorism against the Indian government200 (“one phone call books both
tickets”201), in which the key conspirators were Parmar, Bagri, Gill, and Johal –
with Inderjit Singh Reyat being used in the conspiracy for his bomb-making
expertise and access to materials. A conspiracy, in non-technical terms, is an
agreement among individuals to break the law at some time in the future, and
in some cases, with at least one overt act to further that agreement.
Solvason and other investigators attempted to engage in intelligence-oriented
endeavours, such as source development and strategic prosecutions. However,
E Division management seemed unable to appreciate the value of these pursuits
and actively discouraged these initiatives.202
196 There were three teams – only one of which dealt with Sikh extremist issues, including the Air India
disaster: See Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11575-11576. At the
time, there were approximately 25 NSIS members, including the OIC: See Testimony of Bart Blachford,
vol. 63, October 17, 2007, p. 7808.
197 Exhibit P-101 CAF0438, pp. 20, 22.
198 Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11601; See also Testimony of Laurie
MacDonell, vol. 76, November 15, 2007, pp. 9655-9656.
199 Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11566, 11601.
200 Exhibit P-101 CAF0055, p. 2.
201 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7813.
202 Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11566.
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In Solvason’s view, one of the keys to advancing the RCMP’s evidentiary position
with respect to the Air India conspiracy would be to develop sources who had
knowledge of the involvement of the main conspirators. It was believed that
many members of the Sikh community had knowledge bearing on the Air India
case, but that they were fearful of the extremist elements in the community and
were of the view that, “…the police don’t do anything and can’t do anything.”
Therefore, one strategy Solvason developed was the pursuit of prosecutions
against Sikh extremists to raise the “stature” of the police. In his view, fighting
terrorism is a “…political war as well,” and part of the battle is to create an
impression about “…who has power, who can do things, who doesn’t.” Solvason
felt that the successful prosecution of prominent extremists, who were engaging
in criminal activity in the Sikh community, would help the RCMP get access to
better sources in the Sikh community, and this could, in turn, be of use to the Air
India investigation.203 However, these initiatives were not well supported by E
Division management.
At one point, Solvason noticed a report from the RCMP’s Kamloops Detachment
about Bagri’s involvement in an altercation. There was some suggestion that
Bagri had been involved in an assault on another Sikh, and that this individual
had lost a gold necklace worth about $1,000. There were indications that Bagri
may have stolen the necklace. The matter had been looked at in a cursory
manner by the municipal police force and had been concluded. Solvason had
the idea of taking a team up to Kamloops to reinvestigate that issue. In his view,
if successful, the initiative would improve morale, lower Bagri’s stature in the
community, and make it more difficult for him to travel internationally if he were
to have a criminal conviction.204
The plan called for taking two members to Kamloops to conduct interviews
and another member to do source debriefings, with Solvason going up to
coordinate the initiative. However after “…a lot of correspondence back and
forth,” Solvason was eventually told to go to Kamloops and take only one other
person with him, and that Solvason was to “do everything.” Despite this staffing
situation, Solvason was able to put together a case that ended in a conviction. In
Solvason’s view, this conviction did “…have a positive effect for us that we were
able to do something even though it was a relatively minor offence. And of
course, it diminished Bagri’s stature because now he was a convicted thief.”205
In another case, Solvason gathered evidence and built a case against an individual
named Harjinderpal Singh Nagra for conspiracy to bring a known Sikh extremist
into the country under a false identity.206 He considered the Nagra case to be
“…very much a test case” to see if investigators could obtain the cooperation
of mostly Sikh witnesses, something the Force had not done up to that point.
Given his view that the Air India case should be reoriented towards a conspiracy
investigation, Solvason believed that the Nagra case would also be useful to see
if the Force could be successful in a conspiracy prosecution. Solvason was, in
203
204
205
206
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11568, 11572.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11571.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11571-11572.
Exhibit P-101 CAF0752, pp. 5-6.
�Chapter II: RCMP Post-Bombing
fact, successful in recruiting witnesses from the Sikh community. In the end, the
prosecution went forward and was successful at trial. The success of the case “…
elevated [the RCMP’s] stature in the community and made an impact upon Tara
Singh Hayer.” Solvason felt that the success of the Nagra case was instrumental
in eventually convincing Hayer to be a witness on the Air India disaster.207
It is notable, however, that the Nagra case was successful in spite of the lack of
support for this initiative by the management of the E Division unit. Solvason
testified that his requests to use resources in the Nagra case were often questioned
and denied. During the investigation, Solavson submitted an operational plan
to go to the Philippines, where important elements of the alleged conspiracy
had taken place. The plan involved taking a Crown lawyer to the Philippines
to take section 30, Canada Evidence Act affidavits, and to assist in some
investigative and diplomatic work, because Canada had no formal agreements
with the Philippines government and that country has a different system of law.
There was also a requirement for clerical assistance, since Solvason’s team was
not computer-trained and would have been required to take affidavits. In total,
his operational plan called for bringing two investigators, a Crown counsel and
some support staff to the Philippines. After submitting the operational plan,
Solvason was told to go by himself. Solvason’s experience in Manila took a toll
on his health. When he came back he became dizzy and kept falling down. He
saw a doctor who put him off work for some time for exhaustion, and later, in
1991, he was diagnosed with post-traumatic stress disorder.208
After the success of the Nagra case at first instance, the matter was appealed
to the BC Court of Appeal and subsequently to the Supreme Court of Canada,
where the conviction was overturned on the basis of an error in the charge to
the jury. A retrial was ordered but did not take place. Solvason testified that “…
resources were not made available to me to do that file.” Solvason explained
that it was a “…very awkward situation”, and he “…couldn’t see going through
that again” because “…if you didn’t have the support, it just was impossible, and
I told the Crown that.”209
Solvason was not the only investigator frustrated by the lack of support for, and
the active discouragement of, initiatives related to the Air India investigation in
this period. Sergeant Frederick Maile was transferred into NSIS and took charge of
the unit where Solvason had been working, focusing mainly on the investigation
of white supremacists and potential eco-terrorists [environmentalists]. This
was during the time that the Air India investigation had been assigned to a
single person. Maile “…wasn’t particularly pleased” because he felt that he had
accepted the transfer with the understanding that he would be working on the
Air India bombing. But, according to Solvason, “…such was not the case.” 210
Eventually, Maile developed a project that he believed would allow him to
investigate the Air India bombing through the “back door.” He initiated a “source
207
208
209
210
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11569-11571.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11569, 11603.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11570.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11576-11577.
267
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development project,” ostensibly to focus on increasing sources of information
for the Force. This project would involve “speculative” interviews with people
who were likely to have knowledge of the Air India disaster. The hope was
that if investigators approached the “right people”, that it would be possible to
develop sources able to assist with the Air India investigation.211 It was through
this “source development initiative” that investigators Maile and Solvason
decided to interview Ms. E, who proved willing to discuss the details of Bagri’s
visit to her the night before the bombing.212 Ms. E ultimately provided a written
statement to Maile in which she stated that she recalled Ajaib Singh Bagri
visiting her on the night before the Air India bombing and asking to borrow her
car to deliver luggage to the airport. Though Solvason and Maile considered Ms.
E’s information to be of major importance, when they returned to the office and
reported the results of their interview to the other NSIS members, the revelation
was received with “…a lot of anger and hostility.”213 Despite the fact that the
investigators had managed to get Ms. E to cooperate, which she was not willing
to do in her 1990 interview with Cpl. Rick Rautio and Cst. Blachford, the NSIS
members were angry that Maile and Solvason had pursued this investigation
without authorization.
Aside from source development initiatives, Solvason also wanted to pursue
other Sikh extremist cases that had potential connections to the Air India case. It
was Solvason’s view that “…all of those matters” are “…interrelated in some way”
and “…they’re the same people who are doing it or for the same reasons.” On
that basis, he believed “…those [investigations] should be focused in a central
place and worked on together because one thing may quite often lead you into
another.”214
One such potential case was the investigation of the 1988 attempted murder
of Tara Singh Hayer, who had been shot by Harkirat Singh Bagga.215 Despite
Solvason’s suggestions, and in spite of the numerous connections between
this plot and Ajaib Singh Bagri that were known at the time,216 E Division
management was unwilling to take on this investigation. Harkirat Singh Bagga
was charged and convicted as a result of the work of the Surrey Major Crime
Unit, but in Solvason’s view many possible connections remained unexplored.
He felt that there had been others behind Bagga who were connected to the
major figures in the Sikh extremist movement. Solvason testified that, though
resources were being expended on Narita as a “priority” initiative, the unit “…did
have some resources” that could have been devoted to the Hayer assassination
attempt.217
It appears that after the RCMP Air India Task Force was reconstituted in 1995, it
finally took on the investigation of the 1988 shooting, which it came to believe
211
212
213
214
215
216
217
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11577.
See Section 1.3 (Post-bombing), Ms. E.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11581.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11597.
See Section 1.2 (Post-bombing), Tara Singh Hayer.
See Section 1.2 (Post-bombing), Tara Singh Hayer.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11596-11597, 11609-11610.
�Chapter II: RCMP Post-Bombing
was possibly connected to the Air India case. In 1997, Blachford was involved in
putting together the RCMP report to Crown counsel for the prosecution of Bagri
for his involvement in the shooting. He requested that Hayer provide articles he
had written about Bagri, Parmar and the Babbar Khalsa (BK) between September
1987 and August 1988 in order to “…establish a motive for why Bagri would have
conspired with Harkirat Bagga to murder Tara Singh Hayer.” In one of the articles,
dated August 19, 1988, Hayer had made reference to “…an alleged confession
by Bagri in 1985 regarding his involvement in the Air India incident.”218 This
article was finally translated late during the Air India trial. It raised the possibility
that Bagri sought to eliminate Hayer because he was capable of implicating
him in the Air India bombing and had been publicly identifying him as one of
the perpetrators. Had this incident been properly followed up on in 1988, this
important connection might have been made earlier.219
While so many of the intelligence-led initiatives proposed by the investigators
were being discouraged, during this period when there was so little other
activity on the Air India investigation, NSIS management was focused on
attempting to obtain forensic evidence. With few resources made available for
other endeavours, the Force was mostly just waiting, apparently believing that
the Air India investigation was effectively at an impasse until forensic evidence
became available. As explained by MacDonell, this was a time when:
We were at stages where we were waiting for information from
the Service to be provided, evidence to be gathered from the
sea bed and technical information to come. In addition to that,
there were not a whole lot of resources on the unit to deal with
a full-fledged task force. Like, you know, it takes a considerable
amount of people to do that, and during that period of time
resources were limited.220
The lack of a crime scene and the attempt to develop one has often been cited
as the main reason why so little was going on in the Air India investigation in
the late 1980s and early 1990s.221 During this time period, the RCMP focused its
efforts on “enormously expensive” wreckage recovery operations in relation to
Air India Flight 182.222 There were two major dive operations – in 1989223 and
in 1991224 – for which the RCMP sent missions to Ireland to attempt to gather
“conclusive evidence” of a bomb from the Air India debris at the bottom of the
Irish Sea.225
218
219
220
221
222
223
224
225
HMTQ v. Malik, Bagri and Reyat, 2002 BCSC 823 at para. 6.
See Section 1.2 (Post-bombing), Tara Singh Hayer.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9646.
See, for example, Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9707; Testimony of Henry
Jensen, vol. 44, June 18, 2007, pp. 5472-5473; Testimony of Gary Bass, vol. 87, December 3, 2007,
pp. 11287-11288.
Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10376-10378.
Exhibit P-101 CAA1109, p. 1. This was the first dive since the 1985 recovery and very little wreckage
was recovered due to poor weather.
Exhibit P-101 CAA1109, p. 2.
Exhibit P-101 CAA0335, p. 30.
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This focus on forensics may have been attributable in part to an opinion
received by the early Task Force that it should focus on the substantive counts
(i.e., possible accusations of murder, use of explosives, or similar charges). To
prove the substantive charges, it was necessary to prove that Air India Flight
182 was brought down by a bomb. In addition, forensic evidence was assumed
to be necessary, even in a case of conspiracy.226 Blachford agreed that, even
before the expert reports and studies had been completed, there was a “general
impression” that Air India was brought down by a bomb. However, the RCMP
was “…still trying to look for that Holy Grail of forensic evidence and that was
never to be found.”227
The best results that could be obtained remained limited, even if the “holy
grail” was found, as was demonstrated by the Narita prosecution. Under the
circumstances, the exclusive focus on forensics (the so-called “yellow tape”
approach) was surprising.
The Force knew by 1988, when Reyat was charged,228 that it was unlikely that
anyone else would be brought into the Narita prosecution. The Force was able
to link parts of the debris found at Narita to items Reyat had purchased in the
lead-up to the bombing – including a Sanyo stereo tuner that was believed to
have housed the bomb. The people who were considered to be the true “brains”
behind the planning and execution of the bombing were not charged, as there
was insufficient evidence to tie them to the crime scene. Even the link to Reyat
that was made in the Narita case required means other than forensic. Reyat was
ultimately convicted for manslaughter only.
Given the results obtained in Narita, with a crime scene vastly less problematic
than that of the Air India explosion, it was likely that any forensic evidence
ultimately obtained in relation to the Air India Flight 182 crime scene would,
at best, provide a link to Reyat only. Even with such a conclusive connection,
but without other evidence, the best result realistically to be hoped for after a
successful recovery effort would be the conviction of Reyat for manslaughter in
connection with Air India as well as Narita. In order to get to “the brains” of the
operation, more would have been needed.
While the RCMP’s wreckage recovery efforts are laudable, and ultimately
contributed to proving that Air India 182 had been downed by a bomb loaded
aboard a plane in Vancouver,229 it is unfortunate that, for a long period of
time, the resources invested in these efforts, and the perceived technological
226 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11184-11185, 11287, 11310-11313.
227 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7813. According to Blachford it was “late in
1990” that the RCMP was able to “…successfully conclude that, in fact, it was a bomb that brought
down Air India.” John Garstang, Air Crash Investigator, developed a technical process to prove that
Air India was bombed and concluded that Flight 182 had been bombed, but at the time had not issued
a written report. By February 1995, the RCMP had two experts who would state that Air India Flight 182
went down as a result of a bomb, but still had no hard forensic evidence to support this conclusion:
Exhibit P-101 CAF0390, p. 8.
228 Exhibit P-101 CAA1109, p. 1.
229 R. v. Malik and Bagri, 2005 BCSC 350.
�Chapter II: RCMP Post-Bombing
impossibility of gathering further forensic evidence, seemed to stand in the way
of pursuing other initiatives or made the pursuits of such initiatives seem less
urgent. In any criminal investigation, putting off source or witness development
initiatives and failing to pursue other initiatives poses problems. As explained
by MacDonell:
Any investigation that is long term, when we’re talking years,
not only do police investigators come and go, and when
they leave they take knowledge; new investigators have to
be trained, but on the other side, you have witnesses. Their
memories, other evidence that may exist, as time goes on,
there is the risk of losing a good portion of that.230
Red Tape and Defensiveness
Though the Air India E Division investigation in the late 1980s and early 1990s
was stagnating, suggestions for initiatives to further the Air India conspiracy
investigation were not “…received very well.” When they were not actively being
discouraged, suggestions might be put forth and investigators “…never heard
anything about them.”What made the situation more discouraging was that there
were investigators who were “…just sit[ting] around” with time available that
could have been devoted to the Air India investigation, if not for management’s
active discouragement of these initiatives. According to Solvason, “…we did
have resources available and there were people there that could have done it.”
Management was focused on “administrative things” and there was a “fixation”
on details, such as proper titles and signatures.231 A defensive attitude often
prevailed at E Division and, in some cases, steps were even taken to cover up
complaints.
The difficulty in accepting suggestions about how to improve the investigation
was in some cases apparent in the way that the RCMP Task Force responded
to internal file reviews. For example, in 1988/1989, Inspectors B.G. Watt and
R.E. MacKay reviewed the files held in the divisions and at HQ, and in 1989
they produced a report that bears their names.232 Insp. Ron Dicks, who was the
Officer in Charge (OIC) of E Division NSIS from 1989 to 1993, explained that the
purpose of the review was to go over the available material again, to ensure
that “…if something had slipped through the cracks, it would get recognized”, or
that matters requiring additional follow-up would be identified. He added that
such reviews were common.233
Overall, Watt and MacKay concluded that the Air India investigation, which
was “…the largest case to date in the RCMP’s history,” was conducted “…in a
230 Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9646.
231 Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11573, 11586, 11595-11596, 11621.
232 See Exhibit P-101 CAF0343(i) and Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7566. Dicks felt
that the two Inspectors were “quite qualified” to conduct the review: See Testimony of Ron Dicks, vol.
62, October 16, 2007, p. 7645.
233 Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7644-7645.
271
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very thorough and professional manner.” They stated that they uncovered few
outstanding issues during their review.234 Nevertheless, their 80-page report
contained “…a lengthy list of recommendations that they felt should be followed
up on the investigation.”235 While Solvason testified that the suggestions of the
Watt and MacKay review were useful in helping to point out “…things that we
could do better” or “…things we may have missed,” this was not the universal
feeling. In some cases, suggestions by the reviewers were interpreted as “…a
criticism that [had] to be countered.” 236
The circumstances surrounding Maile’s retirement are also telling in terms of
the climate at E Division in this period. Upon his retirement, Maile requested an
“exit interview” with a member of the Staffing and Personnel unit at E Division
HQ. He met with the officer on July 10, 1992, and outlined a number of areas
of concern. Dicks explained that the exit interview was “…part of the RCMP
process of reviewing with people who are leaving the Force, their experience
and any comments they wish to make.”237 Maile explained during his interview
that, in addressing the situation at NSIS in his exit interview, he was fulfilling a
promise made to a number of other members of the Section who had felt very
dissatisfied and frustrated with the way things were being handled and who
wanted to have the situation documented.238
Maile indicated that his retirement at that time was due to a work situation that
had become “intolerable.” He said that he had initially planned on serving at
least two more years, but felt he was not being allowed to do his job and was
frustrated. He felt that retirement was the “only solution.” Maile explained that
he had initially accepted the transfer to NSIS, as he was eager to get involved
in the Air India file, and was told that his position would be of an “investigative
nature.” Within a short time after his arrival, however, he became “…completely
disillusioned with the manner in which a number of situations were being
handled.” He felt that his “…dignity had been taken away” and that he was not
“…allowed to conduct investigations or to supervise.” Maile had also raised his
concerns with a member of the Staffing and Personnel branch in the past.239
According to Solvason, Maile was “…very distressed, as were other members.”
Maile told him that he retired because “…he just couldn’t take it anymore.”240
In the exit interview, Maile indicated concern about the “…direction the Air
India investigation had taken” following what Maile described as a “major
breakthrough,” only days before his retirement, when he had obtained a written
234 Exhibit P-101 CAF0343(i), p. 8.
235 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7735. See Exhibit P-101 CAF0343(i). Two E
Division members, Cpl. Rick Rautio and Cst. Bart Blachford, began this follow-up in July 1990. Over a
year later, in November 1991, it was reported that the follow-up was “practically completed”: Exhibit
P-101 CAF0407, p. 1. See Exhibit P-101 CAA0773, for the initial letter to CSIS as a result of the Watt
MacKay report.
236 Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11575.
237 Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7621-7622.
238 Exhibit P-101 CAF0388, p. 3.
239 Exhibit P-101 CAF0388, pp. 1-2.
240 Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11584.
�Chapter II: RCMP Post-Bombing
statement from Ms. E.241 He expressed the view, at the time of his exit interview,
that the Air India investigation was not currently receiving the “…priority it
deserves.”
The Staffing and Personnel officer responded to Maile’s position, indicating that
“…undoubtedly all avenues are being explored by investigators in an attempt
to overcome any sensitive areas that surfaced with his departure”, which “…
unfortunately, may have been misconstrued by Maile as an indication the
investigation was not being given the priority it deserved.” The staffing officer
then criticized Maile for not having taken another member along with him when
he conducted his interview of Ms. E, as it would have provided an opportunity to
make an appropriate introduction to other members of the Force. The officer went
on to speculate that, with Maile’s “…acknowledged weakness in administration,
combined with the computer environment, it is possible this created problems
for Maille[sic] when he encountered the high degree of accountability required
on some very sensitive investigations,” and that these factors may have led to
some of the conflicts with NSIS management.242
Dicks then provided a written response to the report on Maile’s exit interview.
After dealing with and largely dismissing Maile’s complaints about his personal
treatment by management, Dicks addressed Maile’s comments about the Air
India investigation. Dicks stated that he was unaware that Maile had previously
raised any concerns. He felt that Maile’s comments were “…a little self-serving,”
inasmuch as Maile had been directly involved with the investigation since
December 1991 and, as such, “…was part of the Planning process” and never
raised concerns about the direction of the investigation at the time.243
Dicks explained in testimony that he did not have the sense that NSIS members
were concerned that the Air India investigation was not following the proper
direction. He did not receive complaints from the members about the overall
direction of the investigation, though some members at times could have
questioned decisions to pursue or not pursue specific initiatives. According to
him, everyone was frustrated by the lack of evidence, but all had opportunities
to make their suggestions about the steps to be taken, and these were
incorporated in the operational plans.244 According to Dicks, plans to acquire
evidence had always been approved by all involved, including the “numerous
senior people” under whose scrutiny the investigation fell at the divisional and
HQ levels.245
Dicks also went on to deny that Maile’s obtaining a statement from Ms. E was
a breakthrough, since what this witness could say was “…known or suspected.”
Rather, he felt that the statement was taken in a “panic environment”, due to
Maile’s “…untimely decision to take his pension.”246
241
242
243
244
245
246
Exhibit P-101 CAF0388, p. 3.
Exhibit P-101 CAF0388, p. 3.
Exhibit P-101 CAF0388, p. 5.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7625-7626.
Exhibit P-101 CAF0388, p. 5.
Exhibit P-101 CAF0388, p. 5.
273
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The response to Maile’s exit interview was one of defensiveness. Maile’s concerns
about the investigation were dismissed and characterized as “self-serving.” One
wonders how Maile’s engaging in a voluntary exit interview after he had already
taken retirement and earned his pension could be self-serving, and what
possible benefit Maile is alleged to have been seeking by his comments.
Though the behaviour of management at E Division became “stifling,” and the
work environment was later described as “poisoned,”247 it was clearly not easy
for officers to take steps to address these issues, as illustrated by the Maile exit
interview and the response to it. Solvason explained that the culture of the
RCMP was not one that welcomed these types of suggestions:
S/SGT. SOLVASON: …the RCMP is not particularly fond of
people who complain about their superiors … you try to
resolve them in an informal way … if you have a conflict with
a superior and if you can’t, then I suppose you’ll have to take
other measures or you’ll have to go to his superior … it can
have a lot of personal consequences for yourself, if you do that,
in some cases.
MR. SHORE: Potentially a risk in terms of advancement.
S/SGT. SOLVASON: Oh, absolutely. You know … that would
be a last resort, those sort of things, you’re always trying to
make things … work.248
Solvason was medically discharged from the RCMP as a result of his experience
on the Task Force and ultimately received an apology for harassment that he
suffered over the course of the investigation.249 The fact that this poor climate
at E Division was allowed to continue as long as it did testifies to the lack of
oversight and to the relatively low priority the Air India operation had within the
Force throughout this time period.
What Should Have Been Done: The 1995 Renewed Task Force
In late 1991 or early 1992, there was a brief attempt to refocus the activities at
E Division on the Air India investigation. Additional members at E Division NSIS
were assigned to conduct a “…complete examination of [the] entire Air India
investigation,” and all were “…encouraged to provide a positive – enthusiastic
approach to all tasks.” 250 However, in spite of this enthusiasm, it appears that this
climate of prioritization of the Air India investigation was short-lived and the Air
India bombing became, once again, just one of a number of tasks the unit was
responsible for.251
247
248
249
250
251
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11573, 11595-11596.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11595.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11604.
Exhibit P-101 CAF0411, p. 1.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9647-9649.
�Chapter II: RCMP Post-Bombing
As the ten-year anniversary of the bombing approached, there were increasing
calls for an inquiry.252 E Division NSIS took the position that, in preparation for
the anniversary, it was “…preferable to have the RCMP make a public statement
beforehand, rather than reacting to media queries afterwards.”253 When RCMP
senior management decided that a “…public plea for assistance” had to be a
“…last resort after all other initiatives have failed,” E Division NSIS noted that,
aside from three proposed initiatives involving approaches to Reyat, Surjan
Singh Gill and Ms. E,254 the point where all initiatives had failed had, in fact, been
reached.255 In May 1995, the RCMP announced a one million dollar reward for
information leading to the conviction of the perpetrators.256
A draft aide-memoire on Air India produced by the Solicitor General’s office in
October 1995, noted that, after the June 1995 RCMP “million dollar reward” offer
for information leading to an arrest, the RCMP Commissioner had indicated that
“…if new evidence is not forthcoming within a reasonable period of time, such
as six months, resources will no longer be devoted to investigating the crash,”
though the file would stay open.257 It was also reported that, based on current
information at the time, the “…RCMP may soon announce that it has reached an
impasse” in the investigation of Air India.258
In late 1995, when Gary Bass was the Officer in Charge of the provincial Major
Crime Section in British Columbia, he was asked by Assistant Commissioner
Dennis Brown, the Criminal Operations officer for the province (E Division), to
assemble a team to take a look at the investigation that had been done to date
and to give advice as to whether or not there was anything else that could be
done in the investigation. Bass commented that the increasing number of calls
for an inquiry was the likely impetus for Brown’s request.259
Bass initially assigned a team of about six officers from the Major Crime section,
all of whom had extensive experience in major criminal investigations, to the
renewed Task Force. From late November 1995 to February 1996, Bass reviewed
materials on file to see whether there was sufficient information to support
a wiretap application. His team also conducted a thorough file review of the
investigation. Bass concluded at the end of his review that a wiretap application
could be successful, but that an account of the history of CSIS’s wiretap on
Parmar from 1985 would be a critical part of the new wiretap affidavit.260
252
253
254
255
256
257
258
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11180.
Exhibit P-101 CAF0391, p. 2.
See Section 1.3 (Post-bombing), Ms. E.
Exhibit P-101 CAF0391, CAF0392, p. 4.
Exhibit P-101 CAA0335, p. 29.
Exhibit P-101 CAA0923, p. 4.
Exhibit P-101 CAA0923, p. 5; See Chapter V (Post-bombing), The Overall Government Response to the
Air India Bombing.
259 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11177, 11180.
260 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11177-11178.
275
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On February 16, 1996, Supt. Rick MacPhee, the OIC of the Air India Task Force at
that time, wrote a memorandum providing an overview of the status of the Task
Force’s investigative initiatives at that time. In relation to the wiretap affidavit,
he noted that:
This issue of perception and the fact that the “evidence” we
are now using for the affidavit (with no new evidence gleaned
in the past ten years) has always been there, will certainly be
controversial and a major embarrassment to both agencies
and the Government of Canada, but especially to the RCMP
who have primary investigative responsibility.261 [Emphasis in
original]
Because most of the information used had been available all along, the Task
Force could be open to criticism for not proceeding with the investigation until
10 years after the fact.262
In correspondence with CSIS on February 20, 1996, MacPhee noted that “to date”
the announcement of the million dollar reward and release of two composite
drawings had resulted in “100 tips,” which were being followed up on, but that
“…nothing new or of significance has developed.”263 Shortly after February 1996,
MacPhee retired and Bass took over his role of oversight of the investigation. 264
With his involvement came a change in the approach to the investigation and
a “renewed vigour.” A Task Force was again created and the members were to
work on Air India only, with no interruptions. Blachford, the current lead Air India
investigator, confirmed that it was “most definitely” helpful to have a dedicated
task force or unit for large investigations like Air India in order to maintain
continuity and corporate knowledge. He agreed that there was more progress
after 1995 as a result of the dedicated unit.265
From the Bass review, the team felt that the most “appropriate approach” to
the new investigation was a “…conspiracy investigation and a conspiracy
prosecution,” and that the conspiracy investigation would start from when CSIS
began their intercepts in March 1985. Bass explained that the review of the prebombing intercepts seemed to present a “fairly clear picture” of a conspiracy.266
He added that a conspiracy approach also offered “…a very valuable investigative
and prosecution tool” in terms of the “co-conspirators’ exception” to the hearsay
261 Exhibit P-101 CAA0936(i), p. 2.
262 Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11213. Blachford agreed that this was a concern,
adding “…but at my level probably not as much as theirs, but we are always subject to criticism”:
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7814.
263 Exhibit P-101 CAA0939, p. 1.
264 Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11178.
265 Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7812, 7833.
266 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11183-11184.
�Chapter II: RCMP Post-Bombing
rule. What this essentially means is that statements made by a person engaged
in an unlawful conspiracy can be used as admissions against all those engaged
in the conspiracy if made while the conspiracy was ongoing.267
Investigators felt that a conspiracy might be proven on the basis of the prebombing intercepts and surveillance information. If it could be proven that
Flight 182 had been bombed, the incident could be linked to Reyat, who had
already been proven to be the bomb maker in Narita. On this basis, in 1995,
investigators were considering offering immunity to Reyat and Surjan Singh
Gill.268
Bass and his team developed an operational plan to take the Air India conspiracy
case forward. In his testimony, Bass explained that his operational plan had
a number of steps. The first was to put in place a wiretap authorization on a
number of targets. The next was to begin an interview program to try to locate
new witnesses. A further step was an undercover operation planned to go along
with the investigation, and a final element was an increased focus on trying
to prove that Flight 182 was brought down by a bomb.269 Bass noted that “…
adequate resourcing is paramount to the success of the ongoing investigation,
file review and these new initiatives.”270 In that vein, he noted that the Task Force
currently had 15 full-time employees on a “secondment basis,” and that to run
the necessary initiatives would require 10 to 12 additional full-time employees.271
By May 1996, there were 25 full-time employees at the E Division investigation –
some working on the file review and others pursuing fresh initiatives.272
By November 1996, a decision was taken that the Force was going to “proceed
to prosecution” whether or not there was “fresh evidence,” and to “…leave the
matter to the courts and a jury.”273 Bass noted that he was “…sure there will
be much criticism over certain aspects of the RCMP investigation in the early
years.” 274
The Task Force was aware of the abuse of process argument that the defence
was developing regarding the erasure of the CSIS Parmar tapes, and the RCMP
began to get “…a pretty good idea” that it would probably be successful. There
came a point, after 2000, when the Crown suggested, and Bass agreed, that they
would not attempt to enter CSIS intercept evidence because it was unlikely that
267 See for example, the discussion in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358 at para. 8. Following
the Supreme Court of Canada decision in R. v. Carter, [1982] 1 S.C.R. 938, co-conspirators’ statements
can be used against the accused if 1) the judge is satisfied beyond a reasonable doubt that a
conspiracy existed and 2) if independent evidence, directly admissible against the accused, establishes
on a balance of probabilities, which is a much lower standard, that the accused was a member of the
conspiracy.
268 Exhibit P-101 CAF0392, p. 4.
269 Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11181.
270 Exhibit P-101 CAA0936(i), p. 3 [Emphasis in original].
271 Exhibit P-101 CAA0936(i), p. 3.
272 Exhibit P-101 CAA0952, p. 1.
273 Exhibit P-101 CAA0958, p. 2; Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7815-7816.
274 Exhibit P-101 CAA0958, p. 2.
277
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they would succeed. Thereafter, the matter was to go forward on the strength
of the new interview program or on the strength of old “sources” (or potential
witnesses like Ms. E) becoming new witnesses.275
Too Broad a Mandate?
The RCMP is our national police force. If its mandate were limited to enforcing
federal laws in a country as vast and diverse as Canada, it would be ambitious,
but its mandate is much wider than that; it also acts as the police force of three
territories and every province other than Quebec and Ontario. This much
larger mandate arose as the effects of the economic depression of the 1930s
made it difficult or impossible for many of the provinces to allocate sufficient
resources to sustain their own police forces. Alberta, for example, which had its
own police force previously, decided to accept the contract policing offer made
by the Federal Government when diminishing provincial resources made the
change an economic necessity.
The RCMP’s contract policing duties have continued to this day. The agreements
with the Federal Government have been regularly renewed, generally for periods
of twenty years; with the current contracts due to expire in 2012. In 2006-2007,
in addition to its responsibilities as the national police force, the RCMP delivered
policing services to eight provinces, three territories, 200 municipalities, and
many Aboriginal communities.
The evidence heard and research conducted by this Commission lead to the
conclusion that perhaps Canadians have come to expect too much of the RCMP.
With such a large array of responsibilities, senior officers can be appointed only if
they have at least some knowledge of each of the police force’s many functions.
This creates the danger that junior officers, as they progress through the ranks,
need to gain experience in too many diverse areas to become truly expert in any
particular one of them.
This Commission learned that transfers to and from the Air India desk of the
RCMP were frequent. This movement incurred considerable time educating
newcomers, and reduced the RCMP’s overall effectiveness in investigating the
tragedy. This was almost inevitable because it is difficult to imagine how the
RCMP could ensure that its officers had both the varied positions required to
provide attractive careers, and the considerable focussed experience and study
required to become expert in National Security, or any other complex and
pressing federal matter.
This Commission believes that, after nearly eighty years of contract policing
arrangements, it would be appropriate for the Government to give serious
consideration to the advantages and disadvantages of the present policing
structure in Canada. It might well be an opportune moment to put the emphasis
on a national police force that is more focussed on federal matters and less
occupied with provincial policing.
275 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11215, 11249.
�Chapter II: RCMP Post-Bombing
Conclusion
In its submissions to the Honourable Bob Rae, the RCMP, in reviewing the level
of resources afforded to the Air India investigation over the years, stated:
Although, at first blush, it may appear that few resources were
dedicated to the investigation, the reality was that prior to
the announcement of the reward there were fewer leads to
investigate. As a result of the reward, this all changed, and
resourcing to the Air India Task Force was increased due to the
volume of tips received.276
In fact, what the evidence shows is that resources for the Air India investigation
were increased as a result of a concerted decision to reinvigorate the investigation
– placing experienced members on the investigation, creating a dedicated task
force, proceeding with a wiretap affidavit based exclusively on information that
had been on file all along, and initiating new investigative strategies as a result
of a reorientation of the investigation.
The information and suggestions for a reorientation of the approach to the
investigation were all pre-existing. What changed in 1995, in the face of the tenyear anniversary, and calls for a public inquiry, was the political will to take the
case forward.
2.3 The Usual Suspects versus “Alternate Theories”
2.3.1 November 1984 Plot
Introduction
Prior to the Air India bombing, the RCMP E Division learned from two sources
of the existence of a plot to bomb an unspecified Air India plane in November
1984. The first source, Person 1, had reported the information to the RCMP in
September 1984, while providing other information to police about local Sikh
extremist activity. The second source, Person 2, provided the information first
to the Vancouver Police Department (VPD), and then to the RCMP and to CSIS
during an interview, while being held in custody on an unrelated charge.277
In the pre-bombing period, investigators were skeptical about the motivations
of Person 1 and Person 2, leading them to doubt that there was an actual
bomb plot at all. As a result, investigators were reluctant to follow up on the
information. After the bombing, despite the striking similarities between the
pre-bombing reports about the November 1984 Plot and the plot that was
actually carried out on June 23, 1985, the skepticism about the November Plot
276 Exhibit P-101 CAA0335, p. 30.
277 See Section 1.1 (Pre-bombing), November 1984 Plot.
279
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Volume Two: Part 2: Post-Bombing Investigation and Response
lingered. In this post-bombing period, the skepticism was twofold: investigators
doubted that the November 1984 Plot was real and they also doubted that the
plot could have any connection to the June 23rd bombing. Investigators felt that
the existence of any connection between the two plots was incompatible with
their main theory of the Air India case, which was that at the root of the June 23rd
bombings were Canadian members of the Babbar Khalsa, namely Parmar and
his associates. It took many months before resources were invested in following
this lead, and even then, the investigation into the potential November 1984
Plot connection proceeded in fits and starts for decades, leaving many questions
about its significance still unanswered.
Post-Bombing: Possible Connection to the November 1984 Plot
Discounted
On June 23, 1985, when Sgt. Warren Sweeney of HQ NCIB learned of the Air India
tragedy, he thought about the November Plot information and immediately
asked that the E Division NCIS investigator in charge, Sgt. Wayne Douglas, be
contacted to find out if Person 2 had any information about the bombing.278
That morning, Cpl. Mike Curry from Headquarters in Ottawa phoned Douglas
and requested that he speak to Person 2 about the crash.279
That same day, Douglas met with Person 2 who, on the advice of his lawyer,
refused to speak with police unless they were willing to deal with his charge.
Person 2’s lawyer later phoned Douglas and stated that “…Person 2 didn’t know
anything about the Air India crash.”280 Despite the fact that Douglas had not
actually spoken with Person 2 about the bombing, he contacted NCIB later that
same day to advise that “…Person 2 knew nothing.”281 Sweeney testified that he
was aware at the time about Person 2 not “…knowing anything and wanting to
deal.” When asked during his testimony about the significance of this interview,
Sweeney simply said “…he was trying to bargain,”282 a view that, at the time,
appears to have put an end to the matter for quite some time.
Like Sweeney, Supt. Lyman Henschel, who was the OIC Support Services in E
Division, was also concerned that the November 1984 Plot information might
have had some bearing on the bombing of Air India Flight 182. Henschel, who
noted that the November Plot investigation had begun with the VPD, spoke
to Douglas and asked him to ensure that the Task Force received all relevant
information about the November Plot. Douglas told Henschel that he had
already done so and that he had also been back in touch with Person 2.283
278 Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2615; Exhibit P-120(c), pp. 3-4 (entry for June 23,
1985: doc 526-3, p. 13).
279 Exhibit P-120(c), p. 4 (entry for June 23, 1985: doc 526-3, p. 13).
280 Exhibit P-120(c), p. 4 (entry for June 1985: doc 526-3, p. 59).
281 Exhibit P-120(c), p. 4 (entry for June 1985: doc 526-3, p. 59).
282 Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2615-2616.
283 Testimony of Lyman Henschel, vol. 46, September 17, 2007, pp. 5553-5555. However, if all steps had
been taken to ensure that E Division had all relevant information, investigators almost certainly
would have located the transcript of Person 2’s interview with the VPD in which Person 2 revealed that
the November Plot possibly involved the bombing of two planes, information that Douglas was
unaware of to the date of his testimony: See Section 1.1 (Pre-bombing), November 1984 Plot.
�Chapter II: RCMP Post-Bombing
On July 1, 1985, Henschel spoke with Douglas and Insp. John Hoadley about this
matter. They indicated that they were:
…satisfied that the information provided by [Person 2] has
no connection with Air India and CP Air disasters. All leads
have been followed up on [redacted] info and have proven
negative.284
E Division discounted any possible connection between the November Plot and
the bombing early on, and then, perhaps not unexpectedly, failed to follow up
on the lead.
On July 10, 1985, Detective Dave Randhawa from the VPD forwarded an
occurrence report to E Division detailing information that he had learned
during an interview that morning with Person 2.285 The report indicated that
Person 2 had named “Z” as responsible for having brought the bombing plot to
Canada from India, and that another person, “W,” was also likely connected to
the plot.286 Though E Division noted that the “…information contained in the
report is similar to that reported by Person 1 in November 1984,”287 it does not
appear that E Division took further steps to investigate this information in light
of this potential corroboration.
Meanwhile, HQ sent repeated, and often unanswered, correspondence to
E Division, asking Douglas’s group to update HQ on the November Plot
information.288 For example, prior to the bombing, in November 1984, Douglas
and David Ayre of CSIS had met with Person 2, along with Person 2’s lawyer,
while Person 2 was in custody. Person 2 had indicated that the East Indian males
who were involved in the plot resided in x town, y province.289 A check of Person
2’s associates identified three individuals with y province phone numbers.
Douglas wrote to HQ stating that information about these subscribers would be
obtained and forwarded upon receipt. However, despite numerous requests for
this information,290 it was not forthcoming, and HQ eventually had to approach
CSIS directly for this information.291
However, at the same time that HQ was requesting updates on the November
Plot information, throughout the late summer and the fall of 1985, it maintained
284 Exhibit P-101 CAF0166, pp. 10-11.
285 Exhibit P-120(c), p. 4 (entry for July 10, 1985: doc 493-3).
286 Though, throughout, Person 1 and Person 2 had clarified that “…the main motive of the planned
bombing and hijack was to let the Indian government know Sikhs meant business”: Exhibit P-120(c),
p. 4 (entry for July 10, 1985: doc 493-3); Testimony of Warren Sweeney, vol. 26, May 9, 2007, p. 2759.
See also Exhibit P-120(c), p. 1 (entry for Oct. 1984: doc 231-3, pp. 2-4), where it was indicated that the
“…purpose of the bombing was to discredit the Indian Government,” and p. 6 (entry for February 19,
1986: doc 526-3, pp. 76-83), mentioning that “…radical Sikhs demanded revenge and wanted to
retaliate – plan to bomb Air India plane was formulated….”
287 Exhibit P-120(c), p. 4 (entry for July 12, 1985: doc 494-3).
288 See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process.
289 Exhibit P-120(c), p. 3 (entry for Nov. 26, 1984: doc 526-3 (254-3), p. 40).
290 Exhibit P-120(c), p. 4 (entries for Sept. 9, Sept. 13, Sept. 24 and Oct. 2, 1985: doc 526-3, pp. 46-49).
291 Exhibit P-120(c), p. 5 (entry for Dec. 6, 1985: doc 526-3, p. 56).
281
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the view that there was no connection between the two plots, and that the June
23, 1985 bombings had been an act of the BK alone. Sweeney testified that, at
the time, Person 2 was viewed only as a person of interest, and it was believed
that his information had nothing to do with the Air India bombing. Requests for
updates were made simply to “…tie up loose ends,” because the RCMP was “onto
Parmar” and efforts were concentrated on him. Follow-up was therefore simply
to “…confirm that he was involved.”292
On November 22, 1985, E Division reported to HQ that a shopkeeper in Duncan
had been “…approached approximately a year prior looking for 2 stereo tuners
able to fit into suitcases, explaining they were for [redacted] in India.”293 Because
of the time frame, the HQ Task Force, at the request of the analyst who was
interested in the November Plot information,294 noted a possible connection
between the new tuner information and Person 2, and asked once again for a
response to its previous requests for updates.295 In spite of the obvious significance
of this information, given that the two June 23rd bombings were believed to
have been executed through the use of bombs hidden in stereo tuners, HQ did
nothing else to press the matter. According to Sweeney, the reason for pointing
out to the Division the possible link between the tuner information and Person
2 was to confirm whether the individuals who had approached the shopkeeper
were “…Reyat, Parmar or was it these other individuals?”296
Even after CSIS supplied the requested names and phone numbers of Person
2’s associates to Sweeney in early December 1985, and it was learned that one
associate was affiliated with the BK and a second person was possibly affiliated
with another suspected Sikh extremist,297 Sweeney still did not believe that
there could be some connection between Person 2 and Sikh extremists.298
It was not until January 1986 that long distance tolls for Persons 1 and 2 were
finally obtained by E Division.299 At that time it was discovered that the November
Plot sources and/or possible co-conspirators might have had a connection to
Reyat300 and, in particular, that calls had been made from Person 1’s residence to
Reyat on the day after Person 2 had been arrested in October 1984.301 Sweeney
indicated that, had he been aware of this information in the fall of 1985, he
probably would have viewed the individual, who was ultimately discovered to
have made the calls to Reyat, as worth pursuing.302
292
293
294
295
296
297
298
299
300
301
302
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2617-2618.
Exhibit P-120(c), p. 4 (entry for Nov. 22, 1985: doc 526-3, pp. 52-54).
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2620-2621.
Exhibit P-120(c), pp. 4-5 (entry for Nov. 25, 1985: doc 526-3, p. 55).
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2620.
Exhibit P-120(c), p. 5 (entry for Dec. 6, 1985: doc 526-3, p. 56).
See Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2622; Exhibit P-120(c), p. 5 (entry for Dec. 6,
1985: doc 526-3, p. 56).
Exhibit P-120(c), pp. 8-9 (entry for May 1986: doc 23).
Exhibit P-120(c), pp. 8-9 (entry for May 1986: doc 23); Testimony of Warren Sweeney, vol. 25, May 8,
2007, p. 2633.
Exhibit P-120(c), p. 7 (entry for April 6, 1986: doc 523-3).
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2633. For the earlier comment about tying up
loose ends, see pp. 2617-2618.
�Chapter II: RCMP Post-Bombing
The RCMP remained highly skeptical of the motivations of Person 1 and Person 2.
In the case of Person 2, his information was approached early on with suspicion
because he wanted to bargain away his unrelated charges in exchange for
information he said he had in relation to the November Plot. After the bombing,
in February 1986, it was learned that Person 2 was again attempting to bargain
away his charges in exchange for giving information to the police. Person 2
stated that he believed that East Indians were responsible for the bombing of
Air India Flight 182, but that he had no knowledge of whom. Douglas wrote
that, in his opinion, if Person 2 did in fact have any information regarding the
bombing of Flight 182, he “…would want charges stayed – something [Person
2] did not suggest to the writer.”303 Douglas maintained the opinion that “…
the reliability of both subjects [was] questionable for specified reasons.”304 This
time, it seems that Person 2’s value was discounted precisely because he did not
ask to bargain.
In the case of Person 1, when Douglas finally met with Person 1 after the
bombing, he reported that “…Person 1 could offer up no further information,
and advised that no names were ever mentioned.” There is no indication that
Person 1 was asked about whether he knew Person 2’s identified associates,
or that he was asked to provide descriptions of the other individuals who had
participated in the meetings. Douglas then went on to note that “Information
re: Person 1 financial status being gathered and will be forwarded.”305
Sweeney explained that the RCMP was interested in Person 1’s financial status
because it wanted to verify “…whether he was maybe stringing us along to get
money,” since “…he was a source of the RCMP and, as such, the more information
he gave, the more money he would get.”306 Given that the RCMP already had
other indicators pointing to the likely veracity of the plot, including the fact
that the information came from two independent sources, this investigative
focus on Person 1’s finances may have diverted resources away from more
pressing endeavours, including actually following up on the substance of the
information.
File Reviews and Follow-Up Investigation
Between February 13 and 15, 1986, reports were published in the Toronto Star
and the Ottawa Citizen indicating that, prior to the Air India disaster, the RCMP
in Vancouver had been warned of the threat of a bomb being placed on an Air
India plane. The VPD confirmed that they had received information relating
to a threat to Air India several months before the crash and had passed the
information to the RCMP at that time. The RCMP did not comment. 307
303
304
305
306
307
Exhibit P-120(c), p. 6 (entry for Feb. 18, 1986: doc 526-3, pp. 74-75).
Exhibit P-120(c), p. 6 (entry for Feb. 19, 1986: doc 526-3, pp. 76-83).
Exhibit P-120(c), p. 5 (entry for Dec. 17, 1985: doc 29, doc 526-3, pp. 63-65).
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2626.
Exhibit P-120(c), p. 5 (entry for Feb. 13-15, 1986: doc 526-3, pp. 71-73).
283
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Shortly after, E Division, which had so far shown very little interest in the
November Plot information, began to conduct numerous and extensive file
reviews on the matter. HQ also conducted an in-depth review. Follow-up
investigative steps were then taken, with some of the potential November Plot
conspirators being interviewed for the first time in mid-1986 and 1987.
On February 17, 1986, Sgt. Robert Beitel of the E Division Task Force requested
a thorough tip review of the November Plot information.308 Cpl. Donald de
Bruijn, an analyst at E Division, reported on his findings in a February 26, 1986
continuation report. He noted that Person 2 had been interviewed on a number
of occasions by CSIS, RCMP and VPD and that, at the time, “…investigators did
not believe Person 2’s alleged involvement in the plot,” and that there was “…
suspicion and reluctance to act on this information,” but that the matter should
now be looked at again for a number of reasons. Included in the reasons were
the facts that, after the November meeting with Person 2, his lawyer indicated
to Douglas that Person 2 “…knows a lot more than is willing to discuss,” and that
Person 2 associated with a man from x town who had been linked by telephone
with a suspected Sikh extremist.309
Cpl. Doug Wheler, of NCIB HQ, analyzed the information regarding the November
1984 conspiracy. In April 1986, he produced a detailed analysis of the file, and
his conclusion was that it was “extremely unlikely” that both Person 1 and Person
2 had fabricated the November Plot information. He recommended that all
information regarding the possible bombing should be obtained by Douglas
of VIIU and Ayre of CSIS, and suggested that Person 1 and Person 2 should then
be questioned to identify the unknown Sikhs.310 During the Inquiry hearings,
Sweeney agreed that, at the very least, having two persons providing the same
information would “…certainly cause [the RCMP] to investigate further.”311
After the file reviews, local investigative initiatives began to be undertaken. On
March 5, 1986, E Division reported to HQ that, though investigators believed
Person 2 had concocted the story of the possible bombing in order to obtain
release from custody,312 Person 1 and Person 2 would be re-interviewed, and
attempts would be made to obtain consent for polygraphs.313 In relation to the
plan to re-interview Person 1, it was noted that one of the objectives should
be to establish the remarks that he made in September 1984 in relation to an
unknown man in x town and to another unknown man in Duncan who, it was
said, “…can manufacture ‘nitro’ for blowing up an AI flight….”314
E Division investigators met with Person 1 again in March, and de Bruijn met
again with Person 1 in early April. Person 1 stated that he had never met Parmar
or Reyat, and agreed to submit to a polygraph examination on his information
in relation to the November Plot.315
308
309
310
311
312
313
314
315
Exhibit P-120(c), p. 6 (entry for Feb. 17, 1986: doc 3).
Exhibit P-120(c), p. 6 (entry for Feb. 26, 1986: doc 518-3).
Exhibit P-120(c), p. 8 (entry for April 15, 1986: doc 526-3, pp. 1-22).
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2632.
Exhibit P-120(c), p. 6 (entry for March 5, 1986: doc 526-3, p. 86).
Exhibit P-120(c), p. 6 (entry for March 9, 1986: doc 520-3).
Exhibit P-120(c), p. 6 (entry for March 10, 1986: doc 521-3).
Exhibit P-120(c), p. 7 (entry for April 1986: doc 17).
�Chapter II: RCMP Post-Bombing
In his polygraph examination, he was asked a number of questions, including
whether he had been involved in any discussions regarding the bombing of
the Air India flight, if he had been offered money, and who was present at the
meetings.316 He passed the test on his information, and subsequently, in a
photo lineup,317 identified Z, the individual who had been named by Person 2
in his July 1985 interview with Randhawa of the VPD. 318 In an earlier interview,
Person 1 had suggested that Z could have been involved. Donald de Bruijn
stated that it “…appears that information provided by Person 1 and Person 2
has been substantiated.” Donald de Bruijn speculated that Person 2 and Z were
recruited in 1984 by unknown militant Sikhs within the Khalistan movement to
carry out these bombings. After Person 2’s arrest, the conspirators may have
found an alternate supplier and participants to complete the bomb plot.319
The day after the polygraph exoneration, de Bruijn met again with Person 1 to
ask him further questions that had not been covered in the test. In particular, de
Bruijn showed Person 1 copies of long distance toll records of calls made from
his residence, and asked Person 1 about the two calls that had been made from
his home to Inderjit Singh Reyat in October 1984. Person 1 said that he did not
know anyone in Duncan and that the calls to Reyat could have been made by
W or by the associate who had both stayed with Person 1 after Person 2’s arrest.
Person 1 reported that in October 1984, W and the associate intended to travel
to Vancouver Island to visit someone.320
Conspirator “W”
At this point, the RCMP began to look into W and to explore the possibility of
an x town connection to the main suspects in the Air India Flight 182 bombing.
In follow-up research, it was discovered that Parmar had visited x town a number
of times since April 1983.321 Person 2 also confirmed that W had had contact
with Gill, Parmar and Reyat.322 Further information about connections between
possible conspirators was received in early April 1986 from x town NCIS. This
information indicated that W, believed to be associated with the International
Sikh Youth Federation (ISYF), had been in contact with Person 1 in September,
October and November 1984.323 Members of the ISYF were involved in the
meeting two weeks prior to the bombing, during which the statement by
an alleged Sikh extremist that “something would be done” in two weeks was
reported to have been made.324 Lakhbir Singh Brar, a member of the ISYF who
had also attended the meeting, was later identified as having played a major
role in the bombing in the purported Parmar confession.325
316 Testimony of Person 1, vol. 20, April 30, 2007, p. 1954. Sweeney testified that, if Person 1 had taken and
passed the polygraph earlier, it would probably have elevated the Person 2 issue to something more
than tying up loose ends: Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2634.
317 Exhibit P-120(c), p. 7 (entry for April 1986: doc 17).
318 Exhibit P-120(c), p. 7 (entry for March 1986: doc 16).
319 Exhibit P-120(c), p. 7 (entry for April 1986: doc 17).
320 Exhibit P-120(c), p. 8 (entry for April 25, 1986: doc 2).
321 Exhibit P-120(c), p. 9 (entry for June 4, 1986: doc 530-3).
322 Exhibit P-120(c), p. 9 (entry for May 26, 1986: doc 529-3).
323 Exhibit P-120(c), p. 8 (entry for May 1986: doc 23).
324 See Section 1.6 (Pre-bombing), Khurana Information.
325 See Section 2.3.3 (Post-bombing), The Purported Parmar Confession.
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Donald de Bruijn met with W. W stated that, some time ago, he, Parmar, Gill
and an unnamed Sikh from x town were planning on “doing something” in
India. W said that he was “totally committed” to the Khalistan cause and
would do anything within his power to avenge the deaths of his relatives in
the Punjab. 326
In fact, that same year, the RCMP learned that W had independently provided
information to another police force that two individuals had approached Person
2, along with two unknown white males, and had offered Person 2 a sum of
money to put a bomb on an Air India plane.327
Conspirator “Z”
In the spring of 1986, the RCMP also began to pursue information about Z and
focused on finding information linking Z and Parmar.328
In April 1986, de Bruijn visited x town NCIS and obtained phone records for Z.
It was learned that Z had departed for India in June 1985, and that there were
indications that he would not return to Canada.329 Donald de Bruijn met with x
town local police, who were familiar with the VPD investigation of Z and Person
2, and who had conducted inquiries on behalf of the VPD. These inquiries were
unable to link Z with any militant Sikh organization. However, in May 1986, the
RCMP concluded that it was “imperative” that Z be interviewed.330
In 1987, Z was arrested in x town and was awaiting charges. Z offered to
provide information in relation to Air India in exchange for the current potential
charges against him being dropped.331 Z’s demands also included a promise
of confidentiality and an agreement that he would not have to testify in court
about his information.332
The x town Attorney General’s Department was prepared to negotiate Z’s
prison sentence, if his information was useful and pertinent to the Task Force’s
investigation, and to have the extent of Z’s cooperation reflected in the
prosecutor’s remarks on sentencing. Investigators noted that Z was displaying
“…all the classic telltale signs of nervousness,” and that this was “most evident”
when he was confronted with“…information pertaining to the 1984 conspiracies.”
It was noted that the 15-month investigation of Z and his unknown associates
had reached a “pivotal point,” and that the “conspirator” was on the “…verge of
revealing involvement in these conspiracies.”333
326 Exhibit P-120(c), pp. 7-8 (entry for April 10, 1986: doc 525-3).
327 Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7822-7823. This would appear to be a third
independent source corroborating the existence of the November 1984 Plot.
328 Exhibit P-120(c), p. 9 (entry for May 26, 1986: doc 529-3).
329 Exhibit P-120(c), pp. 7-8 (entry for April 10, 1986: doc 525-3).
330 Exhibit P-120(c), p. 9 (entry for May 26, 1986: doc 529-3).
331 Exhibit P-120(b), p. 1 (entry for Sept. 21, 1987).
332 Exhibit P-120(b), p. 1 (entry for June 5, 1987: Wall Notes).
333 Exhibit P-120(b), p. 1 (entry for June 10, 1987).
�Chapter II: RCMP Post-Bombing
During the September 1987 negotiations with Z and his lawyer, nothing
specific was revealed. Z indicated that he had knowledge of a discussion
regarding weapons and explosives from a meeting in 1984, but said he had no
direct knowledge of the 1985 disaster. Z agreed to give his information under
polygraph.334 It appears that, ultimately, a deal was not reached, and that Z’s
trial went ahead and he was convicted.
In March 1988, Z again offered to provide information in exchange for a reduction
in his sentence, in addition to secrecy and protection of his family. A deal was
reached and Z’s sentence was reduced in exchange for providing information.335
The next month, Z provided his information under polygraph. He provided an
exculpatory statement, telling police that he knew Person 1 and Person 2 and
that, at the time, Person 2 had been upset about the 1984 storming of the Golden
Temple. In anger, Person 2 proclaimed that he would procure weapons for the
Sikh cause and contemplated bombing an Air India plane. However, Z stated
that he did not take Person 2 seriously.336 According to the RCMP’s briefing to
the Honourable Bob Rae, Z’s polygraph test “verified his information.”337
However, a notation about Z’s polygraph results was located by this Commission
in Robert Wall’s notes:
Z – Polygraph – Boyarski concluded. Inconclusive on portion.
Everyone telling the truth including Person 1. However,
different stories. Polygraph is a big question mark.
When asked about this notation, Wall explained that the results from Z’s
polygraph test were “inconclusive,” and that in his view “…there’s a margin for
error with polygraphs, and I think that’s well known. They’re not the end-all, it’s
merely an investigative tool.”338
Nevertheless, despite the known limitations associated with polygraphs,
the inconclusiveness of Z’s test, and the fact that Z’s version of events was
incompatible with that provided by Person 1 (who had passed his polygraph
test), as well as with that provided by Person 2, the RCMP “eliminated” Z “…as a
suspect in the AI investigation” on the basis of his polygraph test.339
Subsequent File Reviews and Follow-Up
Investigators continued to investigate or review portions of the November Plot
every few years. In 1990, new information about Person 2 surfaced and the
334
335
336
337
338
339
Exhibit P-120(b), p. 1 (entry for Sept. 21, 1987).
Exhibit P-120(b), p. 1 (entry for March 15, 1988: Wall Notes).
Exhibit P-120(b), p. 2 (entry for doc CAA1099, p. 2).
Exhibit P-120(b), p. 2 (entry for doc CAA1099, p. 2).
Testimony of Robert Wall, vol. 77, November 16, 2007, p. 9734.
Exhibit P-120(b), p. 1 (entry for June 1991).
287
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RCMP undertook to investigate.340 A continuation report by Cpl. Rick Rautio in
May 1990 concluded that the significance of the new information was that it “…
corroborates the discussion of a bombing plot in 1984, but also indicates that
the plot of 1984 differed from the plot to bomb Air India in June 1985.”341
In June 1991, Cpl. R.A. Boyarski reported that he would review the file on the
November 1984 Bomb Plot and provide a report on his findings to Wall.342
In a 1992 briefing to the SIRC review panel, the RCMP referenced the November
Plot information stating that:
During 1984, the RCMP received information to the effect that
a bomb was to be placed on an Air India flight in Montreal.
This information was not connected to the June 1985 disasters
and our investigation failed to substantiate an actual plot.343
Notwithstanding this conclusion, investigators once again began to research
the November Plot in March 1997. RCMP members travelled to x town to meet
with Person 1. Person 1 indicated that he thought the calls to Reyat that were
made from his home had been made by W. Person 1 had reported this fact when
he was questioned about the phone charges in 1986. According to Person 1, W
had told him that a “…guy on the island wanted to do some experiments” which
W had also referred to as a “test explosion.”344
In May 1997, Cst. Ray Watson did yet another file review on the November Plot.
He wrote that:
There is no doubt that in the mid 80’s Person 1 could have
been very useful in the intelligence field dealing with the
east Indians however [redacted] at this time has no useful
intelligence, therefore tip to be concluded at this time.345
Another two years later, however, in February 1999, Cpl. Robert Ginn was tasked
to contact Person 1. By this point, the November Plot was being investigated
as an “alternate theory,”346 while the file was being reviewed by the Crown who
was to make a decision on whether to approve charges. Throughout the period
of February to November 1999, there was extensive contact between Ginn
and Person 1. Ginn attempted to set up a meeting with Person 1 to discuss
his information about the November Plot. It was through these investigations
340
341
342
343
344
345
346
Exhibit P-120(c), p. 10 (entry for May, 1990: doc 11).
Exhibit P-120(c), p. 10 (entry for May, 1990: doc 12).
Exhibit P-120(c), p. 10 (entry for June 1991: doc 13).
Exhibit P-101 CAA0881, p. 7.
Exhibit P-120(c), p. 10 (entry for March 1997: doc 10).
Exhibit P-120(c), p. 10 (entry for May 2, 1997: doc 31).
Exhibit P-120(c), p. 11 (entry for Nov. 24, 1999: doc RCMP.SUPERTEXT.0002).
�Chapter II: RCMP Post-Bombing
that the RCMP recognized that there were important connections between
conspirators involved in the November Plot and those involved in the June 23,
1985 bombings.
Ginn informed Person 1 that “…one of the problems with [his] information” was
that the RCMP “…have a theory and we have suspects and we do not have any
direct links between Person 1’s information and the current suspects.” Ginn was
of the view that W did, in fact, meet Reyat in the fall of 1984, and that this was
corroborated by Person 1 in terms of the long distance phone charges from
Person’s 1 home while W was staying with Person 1 in the fall of 1984 and by the
information about W knowing someone in Duncan who could make nitro.347
Ginn concluded that:
Although Person 1 cannot provide information which
directly links our suspects to the plan of making and placing
bombs on Air India and that Reyat was experimenting with
dynamite before the disaster happened, [redacted] certainly
is connected with [redacted] individuals who are very likely to
have been involved with one or more of our suspects in the
early planning stages of placing bombs on Air India planes.
These individuals are Person 2 and W. The connections that
Person 1 can supply information about are Person 2 [to]
Talwinder Parmar and W [to] Inderjit Reyat.348
Ginn wrote that another approach to Z should be considered, since the last
interview with him was in 1988. Ginn went on to write that:
…if Person 1 was being truthful about Z being at all 3-4
meetings with Person 2 and Z actually carried the briefcase
full of money to the second meeting and departed with it,
then Z certainly was not totally forthcoming during his 1988
interview. From discussing Person 1’s initial information
provided to at least Brian Sommerville, way back in 1984
before Person 2’s arrest, it would appear that Person 1, would
not be fabricating any of this information and in fact later
passed a polygraph on the truthfulness of this information.349
It was further reported that if “…we wish to find additional evidence on our
current conspiracy that efforts should be made to secure further information
from Z, W and Person 2.” 350
It is not clear what, if anything, occurred on this file after Ginn produced this
report.
347
348
349
350
Exhibit P-120(c), p. 10 (entry for Feb. 12, 1999: doc RCMP.SUPERTEXT.0001).
Exhibit P-120(c), p. 10 (entry for Feb. 12, 1999: doc RCMP.SUPERTEXT.0001).
Exhibit P-120(c), pp. 10-11 (entry for Feb. 12, 1999: doc RCMP.SUPERTEXT.0001).
Exhibit P-120(c), p. 11 (entry for Feb. 12, 1999: doc RCMP.SUPERTEXT.0001).
289
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Conclusion
According to the submissions of the Attorney General of Canada:
…this matter was extensively investigated pre-bombing.
However, the RCMP also followed up on this matter postbombing to ensure that this plot had no connection with the
events of June 23, 1985.351
Early on, prior to the initiation of any follow-up investigation, the RCMP had
already concluded that the November Plot had no connection to the bombing.
It was not until media reports began surfacing about the November Plot that a
follow-up began in earnest.
Leads in relation to this plot were at times discounted prematurely, with the
result that issues had to be continually revisited at a later date. It appears that –
as was the case in relation to the purported Parmar confession and the Khurana
tapes – since the individuals believed to be involved in the November Plot were
not the RCMP’s main suspects, the November Plot was viewed as “alternate” to
the main theory of the case. By clinging to a narrow and exclusive theory of
the case, the RCMP missed early opportunities to conduct thorough follow-up
investigative initiatives – while the memories of potential witnesses were fresh
and there was a greater likelihood of useful evidence being found intact.
2.3.2 Mr. Z
Introduction
In 1986, Mr. Z provided, to both CSIS and the RCMP, information that he had
learned from another individual about the identity of the two Sikhs who may
have been responsible for checking in the luggage that contained the bombs at
Vancouver International Airport.352 CSIS was ultimately forced to terminate its
relationship with Mr. Z, and the investigation of this lead was to be followed up
solely by the RCMP. Despite CSIS’s assessment that there was a “…high probability
that this information [was] accurate,”353 the RCMP ultimately concluded that the
individuals identified had no connection to the bombing.354
RCMP Follows Up on the Mr. Z Information
The first follow-up investigative action the RCMP took in relation to this tip was
in early 1987.355
Cpl. Les Hammett and Sgt. Robert Wall, the NCO I/C of E Division NSOTF, wrote
a report detailing their follow-up on the Mr. Z information. Investigators made
351
352
353
354
355
Final Submissions of the Attorney General of Canada, Vol. I, para. 246.
See Section 1.4 (Post-bombing), Mr. Z.
Exhibit P-101 CAF0499, p. 1.
Testimony of Robert Wall, vol. 77, November 16, 2007, pp. 9744-9745.
Exhibit P-101 CAF0450, p. 1.
�Chapter II: RCMP Post-Bombing
inquiries in relation to the individuals named by Mr. Z as having checked in the
suspect luggage on June 22, 1985, or associated with them. Suspects were
observed and compared to the composite drawing done by the RCMP on the
basis of information about “M. Singh” provided by Jeanne (“Jeannie”) Adams, the
CP check-in agent.356
The composite drawing was produced on the basis of the description provided
by Adams in an interview with the RCMP on June 24, 1985.357 During this
interview she told police that the suspect was an East Indian male, 35 to 45
years of age, about 5’7” to 5’9”, with wavy black hair covering the ears, a westernstyle hair cut, dark brown eyes, and no beard. According to Adams, he had an
East Indian accent, but it was not so pronounced that she could not understand
his English. The suspect was also neatly dressed in western clothes – possibly
a suit.358
When re-interviewed on July 19, 1985, Adams was shown the composite that
had been done and she felt it was wrong. She indicated that “M. Singh” had a
“…softer looking face, eyes lowered and a rounder cuter face.”359 She clarified
that “M. Singh” had an “average build” and believed that he had been wearing
a “…conservative westernized suit” and “possibly” a tie.360 Adams described him
as having “…softly waved hair slightly over [his] ears.” She also put him at a
slightly taller, 5’8” to 5’10” and at 150 pounds. She told investigators that he was
“…kind of sparkly eyed” as well.361 On July 24, 1985, RCMP HQ sent an update to
O and C Divisions based on information reported by the E Division Task Force.
C/Supt. Norman Belanger instructed the regions that the composites that had
been completed, including the one based on Adams’s description, were to be
used as “…an investigative aid only,” and that “…[d]istribution of the composite
at this stage to the Sikh community … would be premature.”362
Adams was subsequently interviewed twice under hypnosis, as it was hoped
that she could provide further details about the description of “M. Singh”.363
Indeed, the description that had been provided thus far would not have
provided investigators with much to go on in the way of distinguishing features
of “M. Singh”. Results of an initial attempt at hypnosis were unsatisfactory and
a further attempt was made on August 6, 1985.364 The description provided by
Adams at this time put “M. Singh” at a shorter 5’5”-5’6”, and at the lower end of
the age range she had initially provided – i.e. 35 years old.365
Adams participated in three photographic lineups – the first on June 25, 1985,
the second in 1987 and the third in 1988. In the course of those lineups, she
356
357
358
359
360
361
362
363
364
365
Exhibit P-101 CAF0450, p. 4.
Exhibit P-456, p. 2.
Exhibit P-101 CAF0667; Exhibit P-456, p. 1.
Exhibit P-456, p. 1.
Exhibit P-101 CAF0667.
Exhibit P-456, p. 3.
Exhibit P-391, document 86 (Public Production # 3206), p. 7.
Exhibit P-101 CAA0290(i), p. 7; Exhibit P-456, p. 2.
Exhibit P-101 CAB0460.
Exhibit P-456, p. 2.
291
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identified various individuals as “similar” or “very similar,” but did not definitively
identify anyone as the man she had dealt with at the baggage counter, “M.
Singh”. On the form she completed during the first photographic lineup, she
indicated that: “This is not a definite identification as I cannot remember the
passenger’s face – as much as the incident, which I remember more clearly.”366
Despite the fact that the flight manifest for CP003 Vancouver to Narita showed
that “L. Singh” had checked in through Adams, when she was interviewed Adams
was unable to recall “L. Singh” checking in through her.367 Unfortunately, there is
no known description of “L. Singh”.
Mr. Z always indicated that two Sikhs had been tasked with checking in the
luggage, and always indicated that the two individuals had come from two
different families – which will be referred to here as Family 1 and Family 2.
However, he named different individuals from these two families at different
times.368 He had identified two individuals, who were members of Family 1, as
the first individual responsible for checking in the luggage (and who for the
purpose of this account will be referred to as the purported L. Singh “A” and L.
Singh “B”). He also named three persons, who were all members of Family 2 and
had a connection to Ajaib Singh Bagri, as the second individual responsible for
checking in the luggage (who for present purposes will be referred to as the
“purported M. Singh”). These three individuals will be referred to here as M.
Singh “A”, M. Singh “B”, and M. Singh “C”. For clarity, it should be noted that Mr.
Z did not specify which of the individuals he named was the purported “L” or
“M” Singh. They are being designated as such for the purposes of convenient
reference in this narrative.369
In relation to M. Singh “A”, it was concluded by investigators Wall and Hammett
that, “[i]t’s possible this person could have been in Vancouver the next morning,
but there is nothing to indicate his whereabouts. He doesn’t look like our
suspect composites.”370
In relation to M. Singh “B”, this individual’s photograph was obtained and
compared to the composite drawings done by Adams. There was no match to
the photos.371
To verify or reject the identity of the purported L. Singh “A”, a plan was formulated
to observe this individual “at close range” and then to compare the physical
observations of this person with the descriptions that had been provided by
Adams. It was felt that “…if this information was accurate,” then it would “set the
tone” for further investigation of Mr. Z’s information.372 Cpl. Donald de Bruijn
was able to observe this individual, now over a year and a half post-bombing,
and found that in relation to Adams composite:
366
367
368
369
370
371
372
Exhibit P-456, p. 2 [Emphasis in original].
Exhibit P-101 CAF0667, p. 4.
Exhibit P-454, p. 1.
See Exhibit P-454.
Exhibit P-101 CAF0450, pp. 2-3; Exhibit P-455.
Exhibit P-101 CAF0450, p. 4; Exhibit P-455.
Exhibit P-101 CAF0450, p. 4; Exhibit P-455.
�Chapter II: RCMP Post-Bombing
…he was similar in height and build, East Indian complexion,
round face. However he was different by his hair, it was
combed straight back, not wavy and not parted on the left
side. He did not fit the composite done by the witness.373
At the end of the RCMP report, the officers noted that research in the debriefing
reports indicated that “…all of this information, ours and CSIS [sic], seems to
centre around [Mr. Z],” and that there had not been a “hard link” but rather only
“…speculation on somebody’s part.” In the investigators’ opinion, for “…Mr.
Warren (James Warren, OIC of Counter Terrorism) [to] come out and say that
they have identified the two Sikhs” is “…not to say the least premature.” They
added that it seemed “…somewhere along the lines their information has been
taken out of context.”374
The report concludes that there would be “…no further investigation on this
tip unless we receive substantive information from CSIS or our own sources.”375
Given that CSIS had been ordered to stop its investigation of this lead, it would
seem unlikely that the RCMP would be receiving further information from CSIS
about this situation. It must be noted that, as the RCMP only had a composite
drawing and identification information about one of the two individuals
believed to have checked in the bags, the elimination of potential suspects on
the basis of information about the identification of “M. Singh” only would seem
to have been a questionable practice.
On March 18, 1987, RCMP Headquarters sent a letter to CSIS asking for
confirmation that there was no longer a bar to conducting “…overt enquiries and
interviews in the [redacted] area” in furtherance of the Mr. Z information. RCMP
HQ indicated that it would be advising E Division to proceed with its efforts to
develop this aspect of the investigation.376 This consent was confirmed by CSIS
on March 26, 1987.377
On June 12, 1987, Wall’s notes contain an entry stating:
There is a lengthy review of the scenarios. Both have potential
for disaster due in part to inaction by senior management, i.e.
Acting Ops Officer.378
When asked about this entry, Wall indicated that it related to his attempts to
have an operational plan approved in relation to the Mr. Z situation. His unit
had submitted the plan, which “…didn’t appear to be going up the chain rapidly
enough to suit [him].”379
373
374
375
376
377
378
379
Exhibit P-101 CAF0450, pp. 4-5; Exhibit P-455.
Exhibit P-101 CAF0450, p. 5; Exhibit P-455.
Exhibit P-101 CAF0450, p. 5; Exhibit P-455.
Exhibit P-101 CAA0538.
Exhibit P-101 CAB0720.
Exhibit P-101 CAF0508; Exhibit P-455.
Testimony of Robert Wall, vol. 77, November 16, 2007, p. 9730.
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1988: RCMP Conducts Photo Lineup and Interviews Suspects
On February 5, 1988, Adams was contacted at Vancouver International Airport
and viewed a photo lineup in relation to the Mr. Z investigation. She was unable
to indicate anyone as a positive match to the suspect at the airport. She did,
however, point out several photos as “look-alikes” – all those she pointed out had
the round face and either wavy or curly hair. One of the photos she did select
was the purported L. Singh “A”. However, it was noted that “…no preference was
given to him over the others selected.”380
In early February 1988, Cst. McRae and Cpl. R.A. Boyarski conducted interviews
with regard to the Mr. Z issue in conjunction with the arrest of Inderjit Singh
Reyat. Those interviewed were the purported M. Singhs “A”, “B”, and “C”, and the
purported L. Singh “A”. There was no mention of the RCMP interviewing L. Singh
“B” at this time, and efforts by the RCMP to locate information on file about any
such interview turned up negative.381
The officers concluded that the purported M. Singhs “A” and “C” did not fit the
descriptions for the possible suspect nor did they speak fluent enough English.
Both denied any involvement in the occurrence. M. Singh“B”was very cooperative
and denied any involvement. He advised that he would take a polygraph and
would submit to a lineup if necessary. As the interview continued, he became
more uneasy when the officers put to him that he had been involved in the
plot. However, the officers concluded that his reaction was not that of someone
trying to hide something, but rather that he seemed angered by the officers’
statement. 382
L. Singh “A” denied any involvement.383 While this individual admitted to having
associations with Bagri and had a good command of English, his description “…
was not totally consistent” with the description provided by Adams. According
to RCMP records, “…the investigation was unable to eliminate this individual or
confirm him as a suspect for having checked in the suspect bag.”384 Nevertheless,
the officers concluded that there was nothing further to do with respect to the
investigation of this individual at that time. 385
Investigators concluded that, at this point in time, there was nothing to indicate
that any further investigation was necessary. The results of source information,
photo lineups, factual information, and interviews conducted were all
“negative.”386
380
381
382
383
384
Exhibit P-454.
Exhibit P-454.
Exhibit P-454.
Exhibit P-454.
Agreed statement read into testimony by agreement with the Attorney General of Canada during
Testimony of Robert Wall, vol. 77, November 16, 2007, p. 9729.
385 Exhibit P-454.
386 Exhibit P-454.
�Chapter II: RCMP Post-Bombing
Officers sent a telex to Ottawa HQ indicating that discussions would be held
about the future direction of the file, and that it was likely that they would be
“…concluding this scenario.”387
The RCMP taped the interview of L. Singh “A”, along with the interviews of the
three purported “M. Singh” suspects. However, the “…tapes were destroyed
for unknown reasons during the investigation. There were no copies of the
tapes made and none were transcribed.”388 The RCMP second-in-charge of the
investigation, Wall, had no recall of this incident.389
1997: RCMP Interviews Suspects
It does not appear that there was any further RCMP discussion of this matter until
early in 1995, when members of the E Division National Security Investigations
Section (ENSIS) met for the purpose of conducting a review of the Air India
file and generating new leads. In the course of that discussion, the topic of
the various individuals who had been identified by Mr. Z as the two Sikhs who
had checked in the luggage arose. It was suggested that the individuals be reinterviewed and polygraphed if this had not already been done.
The next action by the RCMP on this file was two years later, in 1997 – over ten
years after this information first surfaced.
In January of 1997, Cpl. Bart Blachford and S/Sgt. John Schneider went to
the residence of M. Singh “A” and “B”. M. Singh “A” appeared to be “…very
nervous at the start when it was explained we were there regarding the Air
India investigation.” Apparently, he “…started breathing very deeply” and this
continued until M. Singh “B” joined in. M. Singh “A” denied staying with Ajaib
Singh Bagri in Kamloops,390 and denied the allegation that he may have checked
in the suspect bags at Vancouver airport or that he had ever been asked to do
this. Both M. Singh “A” and “B” admitted having a connection to Bagri.391 When
investigators suggested to them that perhaps the person who had checked in
the bag was “duped” and was “unaware of the contents,” both still maintained
their lack of involvement.392
While M. Singh “A” agreed to take a polygraph test, M. Singh “B” refused, saying
that “…whoever made those allegations should take the test first.” Attempts to
persuade him failed.393
On March 12, 1997, Blachford went to the residence of M. Singh “A” and brought
him to the Surrey detachment to conduct the test.394 He was found to be
387 Exhibit P-454.
388 Agreed statement read into testimony by agreement with the Attorney General of Canada during
Testimony of Robert Wall, vol. 77, November 16, 2007, p. 9729.
389 Testimony of Robert Wall, vol. 77, November 16, 2007, p. 9729.
390 Exhibit P-101 CAF0451; Exhibit P-455.
391 Exhibit P-290, Admission F; Exhibit P-455.
392 Exhibit P-101 CAF0451; Exhibit P-455.
393 Exhibit P-101 CAF0451; Exhibit P-290, Admission F; Exhibit P-455.
394 Exhibit P-101 CAF0453; Exhibit P-455.
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telling the truth when he denied aiding the BK by delivering the luggage to
the Vancouver Airport or checking in the luggage.395 It was concluded that this
should “…resolve our concern” that he was involved with the movement of the
luggage on June 22, 1985. That M. Singh “A” was not involved is “…supported
by [redacted] where he was documented as having worked the 21st of June
completing the shift at 2400hrs. [Redacted] maintains that [redacted] then
he would not be able to leave on the bus ... [and] be in Vancouver in time to
check the luggage and this was borne out by the polygraph.” No further action
regarding this individual was deemed to be required at the time.396
During this period, Schneider also went to the residence of the purported L.
Singh “A”. In an interview on February 17, 1997, Schneider found him “…very
relaxed and cooperative” and he stated that he never saw much of Bagri once
Bagri became militant and a member of the Babbar Khalsa. He said that he was
not associated with any Sikh religious group and was not a devout religious
believer. He denied transporting any luggage or bags for Bagri or his associates
to the Vancouver airport and said he was never asked to check in any bags for
Parmar or their associates. He did not know Bagri’s associates such as Parmar,
Gill or Johal. He stated that in 1985 he had “…fairly short hair, combed back, no
mustache or beard and never wore a turban.” It does not appear that Schneider
requested to see a photo of the purported L. Singh “A” from that period.
Schneider concluded that he did not “…resemble the composite from Jeanie
[sic] Adams.” The purported L. Singh “A” told Schneider that he had never been
asked in the past about the luggage carrying the bombs and said that he did not
know why anyone would suspect him. This was not accurate, as investigators
McRae and Boyarski had interviewed L. Singh “A” in 1988. It is unclear whether
Schneider was aware of this inconsistency, as he concluded that the purported
L. Singh “A” appeared to be truthful, and that he did not feel it was necessary to
consider a polygraph examination of this individual. The tip on this individual
was “concluded.”397
M. Singh “C” was polygraphed during this period and was found to have been
truthful about his lack of involvement.398
In a March 14, 2002 memorandum from Blachford to Cpl. Baltej Singh Dhillon, on
the subject of “Alternate Theories,” it was noted that M. Singh “A” and “C” passed
polygraph tests and that the purported L. Singh “A” had been cleared after an
interview.399 There was no conclusion in relation to M. Singh “B”, the individual
who had refused to submit to a polygraph test.
Wall was asked about the follow-up conducted by the RCMP in relation to
the Mr. Z information. He testified that the follow-up investigation, including
395
396
397
398
399
Exhibit P-101 CAF0453, CAF0454, CAF0456; Exhibit P-455.
Exhibit P-101 CAF0453; Exhibit P-455.
Exhibit P-101 CAF0452, pp. 1-2; Exhibit P-455.
Exhibit P-101 CAF0457; Exhibit P-455.
Exhibit P-101 CAF0457; Exhibit P-455.
�Chapter II: RCMP Post-Bombing
interviews and polygraphs of suspects and associates, led the RCMP to the
ultimate conclusion that the individuals implicated had no involvement in the
bombing of Air India Flight 182.400
Conclusion
The RCMP, once it began to make inquiries in relation to the Mr. Z information,
following soon after CSIS’s positive reporting on the Mr. Z information to
the Solicitor General, appeared eager to dismiss the lead on the basis of
questionable identification comparisons to the composite by Jeanne Adams,
and then decided it would make no further inquiries until CSIS provided more
solid evidence of the connection.
The Attorney General of Canada submitted that:
When the RCMP took the lead on the Mr. Z information, they
followed up and investigated thoroughly, on occasion with the
assistance of CSIS, including the use of polygraphs. The police
were unable to verify the information provided by Mr. Z, and
the lead dissolved into another dead end.401
However, the documents used by the AGC to support the assertion that the
RCMP followed up “thoroughly” relate to the “observations” of certain suspects
that were made by the RCMP in 1987 and the polygraphs and interviews that
were conducted in 1997 – over ten years after the Mr. Z information first surfaced.
Also not referenced in their submissions is the information that indicated that
the interview of one suspect in 1988 was neither able to exclude nor confirm
this individual’s involvement.
While the RCMP relegated the Mr. Z information to another “alternate theory,”402
the manner in which the RCMP followed up on this information raises questions
about whether this lead was really a “dead end,” as reported.
To this day, the individuals who were responsible for checking in the luggage
carrying the bombs have never been identified.
2.3.3 The Purported Parmar Confession
Introduction
In September 2007, representatives of the Punjabi Human Rights Organization
(PHRO) testified at the Commission hearings about their belief that in 1992,
Talwinder Singh Parmar was captured, tortured and killed by the Indian police,
400 Testimony of Robert Wall, vol. 77, November 16, 2007, pp. 9744-9745.
401 Final Submissions of the Attorney General of Canada, Vol. I, para. 259.
402 Exhibit P-101 CAF0457; Exhibit P-436.
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and that prior to his death he provided a “confession” regarding his role in the
Air India bombing. This section will explore how the Inquiry came to obtain this
information, what the information was, how the RCMP came into possession of
the information and what was ultimately done with it.
The mandate of this Commission includes the question of how institutions
in Canada can better utilize intelligence as evidence in court. Apart from its
inherent historical interest in terms of the Air India narrative, the “Parmar
confession” illustrates the challenges that arise from intelligence originating
in foreign jurisdictions, and, in particular, from foreign jurisdictions which may
follow rules and procedures which differ vastly from ours, or whose values are
significantly different from our own.403
Parmar’s Death – The Official Version
In May 1991, Indian Prime Minister Rajiv Gandhi was assassinated. Soon after, the
Government of India set up an inquiry, known as the Jain Commission, to look
into the conspiracy that led to the assassination of Gandhi. The Jain Commission
produced a massive report in April 1993. One small part of the report404 focuses
on the alleged police encounter in which Parmar was killed, which took place on
October 15, 1992, at the village of Kang Araian, in the Jalandhar District of the
Punjab state in India. The official version of how Parmar died is contained in this
report. The volume includes sworn statements by eyewitnesses and the police
involved, as well as a copy of the post-mortem report.405
According to the report, on October 10, 1992, Shri S.K. Sharma, the Senior
Superintendent of Police (SSP) in Jalandhar was informed by a reliable source
that “…suspected terrorists armed with lethal weapons”406 were in the Phillaur
sub-division of Jalandhar district. On October 14th, the source further informed
the police that the leader of the gang was Talwinder Singh Parmar, “…a hard
core Sikh terrorist who had been evading arrest since 1982.”407 The gang also
included two Muslims and three other terrorists who were all travelling in two
Suzuki Maruti cars.408 The police made plans for a night patrol in order to catch
the group:
On going through the old police records it was established
that Talwinder Singh Parmar had been a front ranking leader
of Sikh terrorist movement right from its inception. He had
been involved in large number of cases of terrorist violence
403 Comment by Commission Lead Counsel regarding the Attorney General of Canada’s Final Submissions
on Phase One, Transcript, vol. 51, September 24, 2007, p. 6279.
404 Entitled “Report of the Enquiry on the police encounter at Village Kang Araian, P.S. Phillaur, District
Jalandhar on October 15, 1992 conducted by Shri V.K. Jain, Special Secretary, Government of India,
Ministry of Home Affairs, New Delhi.”
405 Exhibit P-101 CAF0326, pp. 2-3.
406 Exhibit P-101 CAF0326, p. 4.
407 Exhibit P-101 CAF0325, p. 45.
408 Exhibit P-101 CAF0326, p. 4.
�Chapter II: RCMP Post-Bombing
in India and abroad which included hijacking, murder, shootouts, gun-running etc. He was also a prime suspect in Kanishka
aircrash of June 23, 1985…. Keeping in view the background
and desperate character of Parmar and his gang, SSP Jalandhar
made elaborate operational plan to apprehend the gang.409
On the morning of October 15, 1992, at 5:30 AM, two Maruti cars were observed
approaching a bridge near the village of Kang Araian. The police, who were
there waiting, signalled for the two cars to stop. The cars “…screeched to a halt”
and the occupants rushed out “…indiscriminately firing towards the police post
with automatic weapons.”410 The police returned fire. Two of the terrorists were
killed immediately. One terrorist armed with an AK-47 took cover nearby and
continued firing on the police. One group of police provided cover fire so that
SSP Jalandhar could approach the terrorist. At this point the terrorist threw two
hand grenades at the police, but the police took cover and suffered no injuries.
Then SSP Jalandhar killed the terrorist:
SSP Jalandhar climbed up on the roof and from there fired
at the extremist instantaneously killing him on the spot. This
extremist was subsequently identified as Talwinder Singh
Parmar.411
Close by, another group of three terrorists began firing on the police.412 That
encounter resulted in the death of the final three terrorists. After the gunfight
the police recovered the bodies of the six terrorists, guns and ammunition,
documents, vehicles and currency.413
The facts determined by the report (and indeed the entire police encounter)
were brought into question by the information provided to this Inquiry by the
PHRO.
The Punjabi Human Rights Organization
The Punjabi Human Rights Organization (PHRO) is an organization that
investigates human rights violations in the state of Punjab in India.414 Two
members of the PHRO approached the Commission with information regarding
the death of Parmar.
In the early 1990s, their lead investigator, Sarabjit Singh, heard about an alternate
version of how Parmar died. He was approached by two reporters from the
Indian Express, an Indian newspaper, who wanted his help in investigating the
409
410
411
412
413
414
Exhibit P-101 CAF0325, p. 46.
Exhibit P-101 CAF0325, p. 47.
Exhibit P-101 CAF0325, p. 51.
Exhibit P-101 CAF0325, p. 51.
Exhibit P-101 CAF0326, pp. 6-8.
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6281.
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death of Parmar. Singh investigated the story, but the Indian Express chose not
to print it.415 Singh did not pursue the matter further. However, in 2005, news
of the acquittal of Ripudaman Singh Malik and Bagri reached India. At the time,
Singh was travelling in a car and the news of the acquittals came on the radio.
The person Singh was travelling with revealed that he knew all about the case.
The story Singh was told was that Parmar was captured by the police and held
in custody for a number of days prior to being killed in a staged shootout. The
story was similar to what he had heard in the 1990s when he had first tried to
investigate the death of Parmar.
His interest rekindled, Singh set out once more to uncover what he could
about Parmar’s death, as part of a PHRO-sanctioned investigation. He tracked
down persons alleged to have knowledge of the incident and interviewed
them. Based on interviews of persons allegedly with Parmar in his final days,
he determined that Parmar had been interrogated by the police prior to his
death and that between four and twelve persons had been present during that
interrogation.416
In the process of interviewing and investigating the story, Singh came into
possession of a number of documents, including an alleged transcript of the
interrogations. Singh also heard recordings of some of the events which led to
Parmar’s capture.417
The Capture of Parmar
Singh uncovered a great deal of information relating to the story of Parmar’s
capture. The story begins with the arrest of two men in the Punjab. One of
the men had a 50 rupee bill that had been torn in two. The two men were
interrogated and, eventually, one of them revealed that they had been expecting
to pick up a number of arms and weapons and that the delivery person was to
identify himself by presenting the other half of the torn rupee note. However,
by the time that this information was revealed, the scheduled meeting time had
passed. Further questioning revealed the name of a contact whose alias was
“Tank.” Tank was then apprehended and, under questioning, disclosed that he
was in contact with Talwinder Singh Parmar.418
Tank stated that he contacted Parmar through another person known as “Major.”
Tank knew the phone number for Major, so the police had Tank call Major to set
up a trap to lure Parmar from Pakistan to the Punjab.419 In addition, the police
taped the phone calls between Tank and Major, and the PHRO had the benefit
of listening to tapes of those conversations, which corroborated much of the
capture story.
415
416
417
418
419
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6287.
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, pp. 6287-6289.
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, pp. 6289-6290.
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6291.
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6292.
�Chapter II: RCMP Post-Bombing
It was understood that Parmar was going to make his way to the Punjab. Parmar
first made his way to Jammu, a northern state in India. Coincidentally, when he
arrived in the capital of Jammu, a bomb blast occurred. As a response to the
blast, the Jammu police rounded up individuals roaming the streets at night
and, without knowing his identity, captured Parmar.420
Parmar contacted Major to let him know that he had been apprehended. He told
Major that the Jammu police believed he was a person called “Professor Sahib.”
Major contacted Tank and told him of Parmar’s capture. This information was
obtained by the Punjab police through their intercept of phone conversations
between Tank and Major.421
The Punjabi police then contacted the Jammu police, but did not tell them the
true identity of Parmar. Instead, they said his name was “Saroop Singh” and that
he was a police informant. As a result, the Jammu police handed him over into
the custody of the Punjabi police without ever knowing who it was they had
really captured.422
Once Parmar was in the hands of the Punjabi police, he was brought back to their
police station and interrogated. They extracted biographical information from
Parmar as well as information about his activities, including some information
about the Air India bombing. The information was handwritten in the Punjabi
language.423 The PHRO obtained a copy of the document and provided the
Inquiry with a translation, which they called “The Life Story of Talwinder Singh
Parmar (Translated by R.S. Bains).”424
The document purports to tell the story of who Parmar was, and certain crimes
he was allegedly involved in, as well as those who assisted him in his endeavours.
He discusses the Air India bombing and does not deny his involvement with
it. However, the main focus of the document was not the bombing itself but,
rather, crimes committed in India.425
Highlights of “The Life Story of Talwinder Singh Parmar”
The key document provided to the Inquiry by the PHRO is a translation of the
handwritten documents the PHRO obtained.426 The document, entitled “The Life
Story of Talwinder Singh Pamar,”427 begins by providing biographical information
about Parmar, including his birthdate, the names of his immediate family and a
short biography about Parmar’s youth. The document then details how Parmar
became influenced by Sikh preachers and was baptized as a Sikh. The document
420
421
422
423
424
425
426
427
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6292.
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, pp. 6293-6294.
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6294.
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6294.
See Exhibit P-216.
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6297.
Exhibit P-216.
The title was not on the original document but was given to the document by the PHRO. See Testimony
of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6296.
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also states that Parmar met Sant Jarnail Singh Bhindranwale in the late 1970s.428
The document details Parmar’s rise to the leadership of the BK and his various
trips back and forth between India and Canada.
A short two-page section of the document concentrates on the Air India bombing.
This section is bolded in the document, an emphasis the PHRO added.429 The
information implicates Lakhbir Singh Brar, head of the International Sikh Youth
Federation, as the mastermind behind the bombings:
Around May 1985, one activist of ISYF came to me and
disclosed his name as Lakhbir Singh and told me that he had
come from Winnipeg, and he asked some help from me, for
doing some intense activities. I told him the way of conducting
a [sic] explosion/bomb blast with dynamite.430
The document also names Lakhbir Singh Brar as Mr. X who attended the Duncan
Blast:
Around 4 days later since I don’t remember the date, the
same Lakhbir Sinh [sic] Winnipeg [sic] and one Youngman [sic]
Inderjit Singh Ryat [sic] came to me. I was ready and the same
three went in the car to the forest. There a blast was done with
the help of small piece of dynamite after connecting it to the
battery through wire from afar, which exploded with powerful
blast.… The fact is that at that time itself they had in mind a
plan to explode an aircraft with such explosion. They disclosed
this plan to me while talking on return journey.… They on the
same day took dynamite sticks from me and went away.431
It also names Lal Singh (also known as Manjit Singh)432 as the person who
purchased the tickets:
No doubt thereafter Lakhbir Singh, Inderjit Singh and one
of their associates Manjit Sinjh prepared a plan to blast two
air craft flights.… Lakhbir Singh booked the tickets from
Vancouver to Tokyo through local flight [and] then from
Tokyo to Bangkok and Manjit Singh booked the tickets from
Vancouver to Toronto and again from Toronto to New Delhi
through Air India.433
428
429
430
431
432
433
Exhibit P-216, pp. 2-3.
Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6296.
Exhibit P-216, pp. 6-7.
Exhibit P-216, p. 7.
Exhibit P-101 CAF0334, p. 2.
Exhibit P-216, p. 7.
�Chapter II: RCMP Post-Bombing
Throughout the document, Inderjit Singh Reyat’s well-known role is
maintained:
And Inderjit wanted for this purpose … transistor fitted with
battery which, at the appointed time, automatically connects
with the battery and the battery by creating sparks then
shall explode dynamite.… They made such arrangements
that Inderjit fitted dynamite bomb along with batteries in
the transistor and then fitted them in the bags filled with
luggage.434
In the thirteen-page document, only two pages are dedicated to the Air India
bombing. The rest focuses on Parmar’s terrorist activities in India.
Efforts to Bring the Purported Confession to the Attention of the
Canadian Authorities
At the completion of their investigation, the PHRO attempted to contact
Canadian authorities in an effort to advise them of the information they had
uncovered. They believed that the information consisted of a confession by
Parmar and the revelation of the identity of Mr. X which could further assist
Canadian authorities in their ongoing investigation.435
The PHRO first tried to contact the RCMP directly in December 2005. However, the
RCMP did not respond. Then, in January 2006, the PHRO contacted Gurjinderjit
Singh Sahota, an Indian resident living in Canada, who had been a lawyer in
Amritsar and so was known to the PHRO. The PHRO asked Sahota to contact
the RCMP on its behalf. Sahota emailed Dan Bond of the RCMP. Bond did reply
to Sahota, but the impression the PHRO got was that the RCMP was not really
interested in obtaining the information.436
On August 18, 2006, Sahota contacted the Attorney General of British Columbia.
On September 1, 2006, Geoffrey Gaul, Director of Legal Services, referred the
PHRO to the Air India Inquiry, and in particular, Mark Freiman, lead Commission
Counsel.437
In June 2007, with the PHRO scheduled to testify, the RCMP finally appeared
interested in the PHRO information and a meeting was scheduled. Prior to that
meeting the RCMP had no knowledge of what the PHRO had to offer.
The PHRO representatives did not testify in June 2007, in part for reasons
that cannot be discussed in this Report. Following intensive discussions and
negotiations, the PHRO representatives returned to Canada in September.
434 Exhibit P-216, p. 7.
435 Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6299.
436 Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, pp. 6298-6299,
6303, 6305-6307.
437 Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6307.
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It was only in September of 2007, just prior to their testimony, that PHRO
representatives, at the urging of this Commission, once more attempted to
meet with the RCMP. This time the meeting was successful and a great deal of
information was passed. In fact, the PHRO gave the RCMP all of the information
they had collected. Rajvinder (Singh) Bains (also known as R.S. Bains) felt that
the RCMP was pleased with the information provided by the PHRO.438
The fact that it took the efforts of a Commission of Inquiry to transmit the
information to the RCMP is troubling. As Jacques Shore, counsel for the families,
stated:
[A]ttempts were made to bring it to the attention of the
authorities back in 2005 and some of that … may have assisted
in the investigation a lot earlier than having to wait for a
Commission of Inquiry to provide the setting in which this
information ultimately finds its way in the hands of the RCMP,
that’s where my concern is.439
However, according to Insp. Lorne Schwartz, the information provided by the
PHRO did not contain any new details, though, at the outset, the RCMP did not
know the details of what the PHRO had to offer and whether or not it could have
led to new revelations for the case.440
The PHRO was correct to believe that these matters should be aired at the
Inquiry. The circumstances that prevented the PHRO from testifying as originally
scheduled in June 2007 cannot be discussed with any specificity. It is sufficient to
note that no blame can be attached to the PHRO representatives for their initial
reluctance. The ensuing negotiations through the Attorney General of Canada,
and others with various interested parties, led to evidentiary compromises that
allowed the essence of the testimony to be heard. It is unfortunate that so much
effort was required to allow this to happen.
The RCMP’s Knowledge of the Parmar Information
The RCMP First Learns of the Purported Parmar Confession
In May of 1997, the RCMP received information about a purported Parmar
confession from a number of sources,441 and was advised that the purported
confession disclosed the identity of Mr. X, the third person who was present
with Parmar and Reyat at the test blast site in Duncan.442
438 Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51, September 24, 2007, p. 6309.
439 See Statement of Jacques Shore during Testimony of Rajvinder (Singh) Bains and Sarabjit Singh, vol. 51,
September 24, 2007, p. 6313.
440 Testimony of Lorne Schwartz, vol. 51, September 24, 2007, p. 6371.
441 Exhibit P-101 CAF0334, p. 1: This document was prepared to summarize the steps that were taken
by the RCMP once they received this information in May of 1997; Testimony of Lorne Schwartz, vol. 51,
September 24, 2007, p. 6318.
442 Exhibit P-101 CAF0334, p. 1.
�Chapter II: RCMP Post-Bombing
Phone calls by the RCMP to India confirmed that the individuals from whom
this information came believed they knew the identity of Mr. X, the names of
the people who checked in the baggage in Vancouver, as well as the identity
of the person who interlined the bags to Toronto. The RCMP was told that it
could obtain much more information if it met the individuals in person, but that
the meeting should not take place in India as it would draw attention to the
individuals and possibly put them at risk.443
Insp. Lorne Schwartz was on the Air India Task Force when this information
was received, and had had some role in the RCMP’s follow-up investigation in
relation to the purported Parmar confession. Prior to his testimony before the
Commission, he also had the opportunity to review the RCMP records in relation
to the follow-up of this issue by the Task Force.444
According to Schwartz, it took several months for the RCMP to obtain the
information, due to complications with diplomatic protocol and due to concern
for the safety of sources.445 Throughout June and into August 1997, the RCMP
had contact with the individuals, attempting to set up a meeting – possibly in a
third country.446
In September 1997, a letter was received from the individuals indicating that
they would not travel to a third country, as per the RCMP’s suggestion, and
preferred that the RCMP travel to India at that point. The letter also advised
that Mr. X was Lakhbir Singh Brar, a member of the ISYF; that he had also
booked one of the Air India tickets under the name of “L. Singh”; and that Manjit
Singh had purchased the other. The RCMP called India and confirmed that the
individuals believed Brar to be Mr. X, as well as their belief that he was from
Winnipeg. On November 7, 1997, documents were received from India which
had been sent through the RCMP Liaison Officer in New Delhi by diplomatic
bag. The documents provided further information about the facts contained in
the alleged Parmar confession.447
Then, in 1999, one of the individuals met with the RCMP and indicated that
Parmar had apparently admitted his involvement in the bombing of Air India,
among other terrorist plots. At two further meetings in 1999, this individual
also advised that three people took the luggage containing the bombs to the
airport, obtained boarding passes, but did not get on the plane. Additional
information was provided which indicated that Manjit Singh and Lal Singh were
in fact the same person, and that Parmar had indicated that the Narita bomb
had exploded prematurely.448
Whether or not the information in the confession is accurate, the information
itself, how it came to be obtained by the RCMP and what the RCMP did with
443
444
445
446
447
448
Exhibit P-101 CAF0334, p. 1.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, p. 6317.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6320-6321.
Exhibit P-101 CAF0334, pp. 1-2.
Exhibit P-101 CAF0334, p. 2.
Exhibit P-101 CAF0334, p. 2.
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the information, all raise questions. As well, the details of the RCMP’s follow-up
investigation illustrate difficulties and complexities inherent in investigations
that take the RCMP away from the ground rules and assumptions of the Canadian
domestic context.
The RCMP Follow-Up on Information
Schwartz explained the process used to follow up on new information. An
investigator furnishes the new information to the file coordinator who, together
with the lead investigators, compares it to information already on file and
identifies the need, if any, for follow-up. Any one lead is not necessarily dealt
with by the same investigator, but rather follow-up initiatives are farmed out
as required. Schwartz explained that, while investigators would be interested
in following up on new information received, the investigation was already 12
years old by that time, and there were “volumes of information,” some of which
“…was confirmed and would later be entered as evidence … to compare this
new information with, for its validation.”449
According to Schwartz, at the time the RCMP received this information, it already
knew the points of contact for the booking and the purchasing of the tickets for
the flights, and had descriptions on file of the individuals who had picked up
the tickets and, to a degree, of those who had delivered the luggage to the
airport. There was also a physical description of Mr. X and an understanding
of the roles carried out by Mr. X, Parmar and Reyat. Some of the information
in the alleged Parmar confession “…on its face appeared to be problematic” to
the RCMP, as it “…didn’t really match with evidence that [the RCMP] knew to be
factual.” For example, the information in the purported Parmar confession was
that both Lakhbir Singh Brar and Lal Singh had a role in booking the tickets.
This information did not accord with the information the RCMP had gathered
from witnesses involved in those transactions – that the same individual was
responsible for the booking of both tickets. It was felt that while the information
“…was of interest” and “…worthy of following up,” these factors “…tended to
minimize the importance of it to a degree.”450 The RCMP was also aware of the
possibility that this purported confession might have resulted from physical or
mental torture.451
The information related to the Parmar confession raised obvious questions
about the alleged involvement of two named individuals, Lal (Manjit) Singh
and Lakhbir Singh Brar. According to the RCMP, in terms of its follow-up of this
information, it conducted overseas interviews of Lal Singh and Lakhbir Singh
Brar, interviewed various people “…in Canada and elsewhere” about these
individuals, and reviewed police files for additional information.452
449
450
451
452
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6325, 6330.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6341, 6346, 6368-6369.
Exhibit P-101 CAF0334, p. 3.
Exhibit P-101 CAF0334, p. 3.
�Chapter II: RCMP Post-Bombing
The RCMP Follow-Up on Allegations in Relation to Lakhbir Singh Brar
During the course of the RCMP Air India investigation, and up until 2001, Brar
was never interviewed as a potential witness or as a suspect regarding the Air
India and Narita bombings,453 despite the fact that he was reported to have
been present at the June 12, 1985, Khurana meeting, where Pushpinder Singh
was alleged to have vowed that something big would happen in two weeks,454
and although he had frequently been in the company of the Babbar Khalsa and
Akhand Kirtani Jatha (AKJ ) suspects, and had been present at various meetings
and Sikh temple fundraisers with suspects in the bombings prior to and after
the offences. He was also reported to have been a terrorist.455 In June 1985, the
RCMP began conducting extensive surveillance of Brar, and this continued for
several weeks before the RCMP discontinued all coverage.456 After expending
considerable time and resources “…following Lakhbir Singh [Brar] across the
country,”457 the RCMP noted that Brar’s activities “…had not indicated a touch
of criminality”458 and no further action was taken. Brar left Canada in 1991 and
moved to Lahore, Pakistan, while his family remained in Canada. He remained
the leader of the ISYF.459
The allegation that Lakhbir Singh Brar, a member of the ISYF, was Mr. X did
not accord with the RCMP’s primary theory – that the bombing was an act of
the Babbar Khalsa alone.460 The RCMP also believed that they had “pertinent
information” about Brar for the period of time around the bombing that
substantially did not match with the Parmar confession. In addition, the RCMP
also had knowledge of Lakhbir Singh Brar’s travels and information that he
had not spent extensive time in Winnipeg, though he may have been there at
different times.461
Significant emphasis was placed on the fact that, according to Schwartz, the
known physical descriptions of Lakhbir Singh Brar did not match with those
on file for Mr. X. The RCMP believed that Brar would have been too old at the
time of the incident to fit the known descriptions of Mr. X. CSIS surveillance
had described Mr. X as being in his late teens, whereas Brar, according to the
information in the file, was thought to have been 33 years old at the time of
the blast. The information on which the RCMP based its understanding of the
age of Brar, who was not born in Canada, was from CSIS intelligence reports,
though Schwartz was “…not privy exactly to what documentation would have
been used.” The RCMP’s understanding of the appearance of Mr. X was based on
reports by a number of CSIS surveillance officers involved in surveillance on the
day of the Duncan Blast.462 However, there were no photos taken of Mr. X.463
453
454
455
456
457
458
459
460
461
462
463
Exhibit P-101 CAF0332, p. 1.
Exhibit P-101 CAC0487, p. 5; See Section 1.6 (Pre-bombing), Khurana Information.
Exhibit P-101 CAC0487, p. 5.
This coverage is discussed in more detail in Section 2.3.4 (Post-bombing), The Khurana Tape.
Exhibit P-101 CAA0303.
Exhibit P-101 CAA0303.
Exhibit P-101 CAF0332.
See, for example, Exhibit P-101 CAA0582, pp. 2-3, CAA0601, p. 1.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6341, 6347-6348.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6331-6332, 6341, 6346-6349.
See Section 1.4 (Pre-bombing), Duncan Blast and Section 1.5 (Pre-bombing), Mr. X.
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Moreover, through a search of information available to the Inquiry, the 1952
date of birth for Brar was called into question. An Interpol report from India’s
Central Bureau of Investigation (CBI) states Brar’s date of birth to be 1960, a date
much more in line with the description of Mr. X.464 The RCMP had not previously
been aware of this conflicting information.465
Schwartz stated that the RCMP also relied on its 2001 interview of Brar to confirm
his age,466 though, based on the record of the information gleaned from this
interview of Brar, it does not appear that he was asked about his date of birth.467
It seems that the RCMP relied on Brar’s appearance to conclude that he looked
to have been born in the early 1950s. However, Schwartz did concede that, as
police officers, he and the rest of the Air India Task Force would have been aware
of the frailties of eyewitness identification, including the difficulty of gauging a
person’s age as well as the difficulty with cross-race identifications.468
In 1998 the RCMP conducted approximately 12 interviews in Winnipeg, during
which they attempted to determine whether Lakhbir Singh Brar had in fact
spent time in, or originated from, Winnipeg. However these interviews were
not conducted as a result of the confession and the RCMP likely already had
plans to conduct these interviews in furtherance of other aspects of the Air
India investigation there when the confession surfaced.469
After learning of the information about the purported Parmar confession in
1997, attempts were made to locate Brar in Pakistan, but it was not until he
surfaced in Pakistan as a Canadian immigration applicant in 2000 that he was
located by the RCMP. At this time, his wife, who had remained in Canada and
possessed a Canadian passport, sponsored him for Canadian immigration.470
Lakhbir Singh Brar was eventually interviewed in 2001. According to Schwartz,
by 2001 the RCMP was “quite heavy” into the disclosure phase of Air India and
the investigation was “curtailing,” though aspects of the investigation considered
to be of “considerable importance” would be looked at for “continuance.”
Information about the purported confession was being discussed with Crown
counsel, to be eventually disclosed to defence counsel, along with material in
relation to other “alternate” theories. According to Schwartz, “…for most intents
and purposes,” Brar was “…well on his way to elimination before these interviews
took place” and, while the fact that he had been named in the purported Parmar
confession was “…a portion of the reason for conducting the interview,” there
were “…numerous reasons to interview” Brar prior to, and unrelated to, this
confession.471
464
465
466
467
468
469
470
471
Exhibit P-217.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, p. 6336.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, p. 6350.
Exhibit P-101 CAF0333.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6349, 6350-6352.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6330-6331.
Exhibit P-101 CAF0332, p. 2.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6359-6360, 6363.
�Chapter II: RCMP Post-Bombing
A prosecutor was not consulted for advice, prior to the interview of Lakhbir
Singh Brar, about the best approach to maximize any potential evidence that
could come from the interview. Brar was not cautioned prior to his interview.472
CSIS had advised the RCMP that Brar’s English was “basic,” and that he could
understand more than he could speak. The RCMP, however, did not use a Punjabispeaking officer to conduct the interview and the interview was conducted in
Punjabi through the use of an interpreter. The interview of Brar started out being
recorded and, at a certain point, Brar refused to have the recording continue.473
During the interview, Brar was asked about the bombing. He provided some
information about others who might have been involved, but denied his own
involvement. He specifically stated that he had no knowledge of who Mr. X
was. He also denied being present at the Khurana meeting in mid-June 1985,474
which was contrary to information the RCMP had in relation to this meeting.475
The RCMP appears to have placed considerable reliance on the fact that, during
Brar’s interview, he denied any involvement in the Air India bombing.476 By the
second day of the interview, it appears that the main objective of the RCMP was
to obtain investigative leads that Lakhbir Singh Brar might provide, rather than
to pursue information that might implicate him in the Air India bombing. As
Schwartz admitted, the interview team did conclude that Lakhbir Singh Brar was
likely lying at times during his interview, but it seems they felt satisfied enough
with the information that he had provided in relation to his own involvement to
move on to other areas in which he might provide useful information.477
The interview was to be translated and transcribed and reviewed to assess the
potential of developing Brar as a witness. Investigators commented that “…
Brar may recall more details if he is interviewed again by a Punjabi speaking
member.”478 It is not clear that this was ever done.
The RCMP Follow-Up on Allegations in Relation to Lal (Manjit) Singh
Lal Singh first came to the attention of the RCMP when, immediately following
the tragedy of Air India Flight 182, an article was published in the Toronto Globe
and Mail reporting that FBI fugitives, Lal and Amand Singh, were the “L. Singh”
and “A. Singh” in whose names the tickets for the Air India flights had been
issued.479
472
473
474
475
476
477
478
479
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6342, 6356.
Exhibit P-101 CAF0333, p. 3.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, p. 6337.
See, for example, Exhibit P-101 CAC0487, p. 5; Testimony of Lorne Schwartz, vol. 51, September 24,
2007, p. 6337.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, p. 6336; See also Exhibit P-101 CAF0333, for
the interview continuation report.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6340, 6359-6360.
Exhibit P-101 CAF0333, p. 5.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, p. 6380.
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The RCMP conducted three interviews with Lal Singh in India. The first
two interviews, in 1992 and in 1997, were conducted prior to the receipt of
information about the purported Parmar confession.
An examination of the entire history of the RCMP’s investigation of Lal Singh is
instructive in terms of the difficulties Canadian authorities face in conducting
sensitive investigations in foreign countries. It is also important in terms of
understanding the RCMP’s approach to the follow-up of the purported Parmar
confession, as the earlier interviews of Lal Singh shaped the approach and
evaluation of the final interview of Lal Singh that was conducted in 2000, after
receipt of the Parmar information.
The 1992 Interview of Lal Singh
Lal Singh had evaded RCMP questioning for seven years and was a person of
interest. Then, in 1992, word was received from India that Lal Singh had been
arrested and detained in India,480 and, soon after, media reports began to
surface that Lal Singh had been questioned by Indian police and had “admitted
complicity” in the June 1985 bombing.481 Suspicions were that he had checked
in the luggage carrying the bombs.482 The RCMP Liaison Officer in New Delhi
attempted to confirm the information in the media articles and was apparently
told “the exact opposite” by his contacts in India.483 However, no attempts
were made to contact the journalist, Mr. Salim Jiwa, to try to find out further
information to help corroborate the information in the media articles or to find
further sources of information that could be of use to the investigation.484
Upon receipt of the Lal Singh information, steps were taken by the RCMP to
arrange an interview of Lal Singh. Along with an interview of Lal Singh, officers
planned to conduct a physical lineup in India to attempt to identify Lal Singh
as the individual who had checked in the luggage. Jeanne (“Jeannie”) Adams,
the ticket agent at the Vancouver Airport on the morning of the check-in of
the luggage, would participate by viewing the physical lineup. There was no
mutual legal assistance treaty with India until 1995.485
To complicate matters, there had been reports, both in the media and from the
RCMP Liaison Officer, that Lal Singh had tried to swallow a cyanide capsule when
he was arrested, and had bitten off his tongue during police interrogations.486
The media articles also suggested that there may have been “…tactics used in
interrogations” of Lal Singh that would not meet the standards of the Canadian
courts. For example, Lal Singh’s confession was reported to have been the result
480
481
482
483
484
485
486
Testimony of Jim Cunningham, vol. 52, September 25, 2007, pp. 6380-6381.
Exhibit P-101 CAF0317.
Exhibit P-101 CAF0318.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, p. 6383; Exhibit P-101 CAF0321.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, pp. 6428-6429.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, pp. 6385, 6392, 6451.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, p. 6386; Exhibit P-101 CAF0318.
�Chapter II: RCMP Post-Bombing
of “…virtually non-stop questioning over six days.” In light of these concerns,
the RCMP discussed the media reports with its counsel and sought advice about
its planned interview.487
In August 1992, Jim Cunningham, an investigator on the RCMP E Division Sikh
Desk, flew to India, along with his colleagues Bob Stubbings and Ron Dicks, and
met with Indian police. At the time, Cunningham was not aware of any policies
about how to handle a situation such as this, in which there was suspicion that
someone might have been mistreated in custody.488 Upon arrival in Delhi, the
officers were informed that due to security concerns, it would be necessary for
them to travel to Bombay to conduct the interview. Upon arrival in Bombay, the
officers were provided with heavy police security protection. When the RCMP
officers questioned Indian authorities about the allegations of mistreatment,
they were told that “…with the exception of a lengthy period without sleep,”
Lal Singh had been well taken care of and well treated.489 The Indian authorities
claimed that after Lal Singh attempted to bite off his tongue, a portion of
his tongue had to be cut away to prevent the spread of infection. They also
indicated that Lal Singh had tried to swallow his tongue and had “…attempted
suicide by hitting his head against a wall.”490 Cunningham was skeptical about
the truth of this story, although he had nothing to show that this was untrue. In
any event, this situation raised questions about Lal Singh’s frame of mind going
into the RCMP’s interrogations.491
The conditions under which the interview took place were “less than ideal.”
Officers were told that, in conducting the interview of Lal Singh, they would
only be allowed to discuss his activities in Canada. As for regulating who
would be present during the interview, as this was a prisoner of foreign law
enforcement, the RCMP was not able to fully control who would be present or
how the interview would be conducted. In the same interview room as the two
RCMP officers and Lal Singh were two officers from the Indian Central Bureau of
Investigation, the officer who had effected the arrest of Lal Singh, and an armed
police officer. The room was cramped and humid, and was not soundproofed.
There was significant noise from the outside that could be heard in the interview
room. As the officers “…didn’t know if it would be practical” and understood
that “…there may, in fact, be problems in admissibility of any statement at any
rate,” they did not tape-record the interview or even request permission to do
so. As a result, there was no tape recording.492
In spite of the difficult conditions and the concerns that Lal Singh was not in
a position to speak freely, prior to the commencement of the interview the
officers informed him of his Charter rights and provided the secondary police
warning or caution.493
487
488
489
490
491
492
493
Testimony of Jim Cunningham, vol. 52, September 25, 2007, pp. 6385, 6388-6389.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, p. 6389.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, pp. 6392, 6395, 6400.
Exhibit P-101 CAF0319, p. 5.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, p. 6398.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, pp. 6398-6400, 6402, 6406, 6449-6450.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, p. 6419.
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Over the course of the interview, Lal Singh told officers about statements
that he had heard Ajaib Singh Bagri make about boycotting Air India. He was
also familiar with Bagri’s speech at Madison Square Gardens where Bagri had
asserted that 50,000 Hindus would be killed. The interview went on over three
days and the officers spent approximately twelve and a half hours with him.
They covered issues such as his alleged involvement in the Air India bombings
as well as other leads that he could provide about the investigation. On the last
day, the lineup with Jeannie Adams took place. The Indian police found people
off the street to participate, along with other police officers who matched Lal
Singh’s appearance. There was no two-way glass through which Adams could
view the lineup. She came into the room and was able to view the lineup faceon. She was unable to identify anyone from the lineup.494
Throughout, Lal Singh remained “…steadfast that he was not involved in the
Air India bombing” and stated that he would “…welcome the opportunity to
return to Canada to prove his innocence.” He also indicated that he would “…
sign the extradition papers.” Lal Singh felt that he was no longer trusted by his
former associates, having been in police custody for so long, and that, if he was
released, he would be killed.495
At the end of the interview, the officers did not feel that they had any more
evidence with which to prosecute Lal Singh than when they went in. From
Cunningham’s perspective, Lal Singh “…had nothing to lose by admitting to it if
he had been involved in Air India.” Cunningham was of the view that Lal Singh
had not played a part in the disaster.496
The 1997 Interview of Lal Singh
Again in June of 1997, a group of investigators and prosecutors travelled to India
to find out whether Lal Singh had information that could assist the investigation.
He was not approached as a suspect, and this was indicated to him a number
of times in the course of the interview.497 There was “…not a strong thought” of
him being a suspect because the investigators “…already had the benefit of a
prior interview and investigative techniques done in regards to Lal Singh back
in 1992,” and there was “…no information to substantiate that he was tied in any
way to the conspiracy.”498
Again, the circumstances of the interview were not ideal. The RCMP provided
a list of proposed interview questions to Indian authorities, at their request,
three days in advance of its interview with him. The interview was held in the
presence of a member of the Indian police. The interview proceeded in English
and was not formally recorded.499
494
495
496
497
498
499
Testimony of Jim Cunningham, vol. 52, September 25, 2007, pp. 6405-6406, 6415, 6418-6419.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, p. 6414.
Testimony of Jim Cunningham, vol. 52, September 25, 2007, p. 6422.
Exhibit P-101 CAF0329, pp. 1, 3.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6333-6334.
Exhibit P-101 CAF0329.
�Chapter II: RCMP Post-Bombing
The interview took place over two days. On the first day, Lal Singh was questioned
for about one and a half hours about his knowledge of various suspects, about
his knowledge of statements that various individuals might have made about
Air India and about explosives. On the second day, he was questioned for about
45 minutes, again to see if he could recall any more details pertinent to the case
and to determine whether he had given any further consideration to testifying.
Lal Singh was not pressed on details about his whereabouts on the night of the
bombing, or asked for details in relation to the theory that he might have been
involved in checking in the luggage.500
Lal Singh was not willing to provide a tape-recorded statement and was not
interested in being a witness in Canada in this case. He cited the safety of his
family in the Punjab as a primary reason for this position. On the basis of this
interview, according to the internal RCMP report, the file was concluded.501
The 2000 Interview of Lal Singh
S/Sgt. John Schneider, Cpl. Lorne Schwartz, and Cst. Baltej Dhillon arrived in New
Delhi in February 2000 to pursue yet another interview with Lal Singh, who was
still in custody in relation to terrorist offences in India. This time, however, the
officers were in receipt of information about the purported Parmar confession.
It was thought that, as it was three years since the last interview, perhaps his
custody and family situation could be changing, and if he was near a point
of getting out of jail, he might be willing to share information which he had
chosen not to share earlier. Again, investigators felt that there was “no strong
indication” that he was involved in any way as a suspect.502
The interview was conducted by officers Schneider and Schwartz. This time Lal
Singh was asked particularly about his whereabouts at the time of the Air India
crash. He stated that he had been working on a farm in Abbotsford at the time
of the crash. He denied that either he or Dalbir (aka Amand) Singh had taken
the bombs to the airport check-in. He admitted that he had been involved with
extremist groups in Pakistan and that he had met Parmar a few times while in
Pakistan as well. He again discussed his recall of Ajaib Singh Bagri’s speech at
Madison Square Gardens, and recalled meeting Bagri in Pakistan – when Bagri
would talk about doing “something big”, referring to India. He said that Bagri
never mentioned Air India.503
The report by Schwartz concludes that “Lal comes across quite sincere. He likely
does possess knowledge concerning Air India from his time in Pakistan, but is
not going to divulge same. He was not interested in providing a statement,
saying that media publicity could make matters hard if it ever came out.”504
500
501
502
503
504
Exhibit P-101 CAF0329.
Exhibit P-101 CAF0329, p. 5.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, p. 6335.
Exhibit P-101 CAF0331, pp. 1-3.
Exhibit P-101 CAF0331, p. 4.
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The Question of Torture
Overhanging this entire episode, and the information and allegations coming
to the RCMP in connection with the Parmar confession, was the difficult issue of
torture. This matter was made even more difficult for investigators because, in
the period 1992 to 2001, the RCMP did not have policies in place with respect
to how they should follow up on information that could be the product of
torture.505
The RCMP’s involvement and approach to the follow-up interviews, in particular
in relation to Lal Singh, raise questions about the RCMP’s sensitivity to issues of
torture. Such issues are bound to confront police again and again in modern
terrorism investigations, which will often lead investigators into jurisdictions
where the observance of human rights is less robust than in our own. Through
their actions, well-meaning investigators may, by virtue of their lack of training
or sensitivity, unwittingly further human rights violations of those detained
abroad. At the same time, a lack of sensitivity to human rights issues may
also prevent investigators from utilizing the tools needed to best ensure
any information that is gathered in foreign jurisdictions will meet Canadian
standards for admissibility.
The problematic issue of cooperation with countries with poor human rights
records surfaced numerous times in the Air India Investigation. One important
episode was that of the alleged shooting death of Canadian citizen Balbir Singh
Kaloe. In July 1986, an article appeared in the Ottawa Citizen with information
that Balbir Singh Kaloe had been shot by officials of the Indian government in
India following the passing of information to the Government of India by either
the RCMP or CSIS.506 Balbir Singh Kaloe and his brother, Tejinder Pal Singh Kaloe,
were both members of the Babbar Khalsa.507 In internal CSIS correspondence,
James (“Jim”) Warren, Director General, Counter Terrorism, reported that his
understanding was that information about Balbir Singh Kaloe and his brother
had been passed to Indian police by RCMP C/Supt. Norman Belanger during
his June visit to New Delhi.508 Tejinder Pal Singh Kaloe had been charged in
Canada in relation to a terrorist plot, and the RCMP investigation revealed that
these individuals, along with others, were planning to execute criminal acts in
India.509
On August 12, 1986, CSIS was advised about some of the details surrounding
the demise of Balbir Singh Kaloe. Information was provided that he had been
arrested by the Indian police and then tortured while in custody. He was
apparently killed in a fake encounter with the police.510 The perception in the
505
506
507
508
509
510
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, p. 6364.
Exhibit P-101 CAA0462(i).
Exhibit P-101 CAF0336, p. 1.
Exhibit P-101 CAA0462(i).
Exhibit P-101 CAF0336, p. 1.
Exhibit P-101 CAF0337, p. 2.
�Chapter II: RCMP Post-Bombing
Sikh community that the death of Balbir Singh Kaloe at the hands of Indian
authorities was a result of information supplied to India by Canadian authorities
had a significant impact on the Sikh community and their trust of Canadian
authorities.511
The fact that certain countries have poor human rights records does not mean
that the RCMP should never interact with these countries. In its attempt to verify
compromised information independently, the RCMP will sometimes require
direct access to the source of information to conduct its own investigation. A
sensible approach to the engagement of foreign authorities and individuals
detained abroad must, at a minimum, consider the human rights record of the
police in that jurisdiction, the value of the information that the source could
provide, the risk of further compromise or abuse to the individual as a result of
RCMP questioning and any measures that could be put in place to avoid this
risk. Further, where the foreign agency has no independent interest in obtaining
information from the individual, it would stand to reason that the risk of abuse
to the individual as a result of RCMP questioning is lessened.512
Conclusion
The RCMP came upon the information related to the Parmar confession very
late in the day.513 Parmar died seven years after the Air India bombing, at a time
when memories would have already faded. It was another five years before the
RCMP obtained information about the confession and another two years before
the RCMP interviewed Lakhbir Singh Brar. At this point, any viable leads arising
from this information would likely have already been tenuous. The followup of the Parmar information posed many challenges for the RCMP, many of
which were beyond its own control. The RCMP’s classification of the Parmar
information as “alternate” to the main theory, and initial and quick discounting
of the information – in the case of Lakhbir Singh Brar, seemingly mostly on the
basis of shaky identification information – appears to have impacted on the
vigour with which this lead was pursued.
However the alleged Parmar confession may, in the final analysis, be more
instructive in terms of spotlighting the vexing investigative problems it
illustrates, rather than in terms of any substantive light it sheds with respect to
the perpetrators of the Air India bombing. There were clearly many challenges
innate to the Air India investigation, quite apart from any problems of
communication or cooperation with CSIS. Terrorism investigations, like the Air
India investigation, will often lead investigators into situations in which they are
required to interact with foreign police forces with questionable human rights
records or to attempt to gather evidence or assess credibility in sub-optimal
circumstances. There is a balance that must be achieved by investigators who
find themselves in possession of information that may have come from torture.
511 Exhibit P-101 CAF0338, p. 3; Testimony of Manjit Singh Sahota, vol. 52, September 25, 2007, pp. 65176519.
512 For discussion of these issues see, generally, Testimony of Rick Reynolds, vol. 52, September 25, 2007.
513 CSIS was never in possession of the Parmar confession but knew that some police encounters occurring
in India at the time of Parmar’s death were in fact staged.
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On the one hand is the need to vigorously pursue each important criminal lead
and to minimize the risk to the Canadian public; on the other is the need to
ensure that the RCMP does not condone or aggravate human rights violations.
This is by no means an easy problem. The formulation of policies, protocols
and other investigative tools in this regard is best left to those with intimate
operational understanding of policing and human rights issues. It should be
pointed out, however, that it was not until May 15, 2007, as part of an effort
towards centralization and in response to the recommendations of Justice
O’Connor in the Arar Commission of Inquiry,514 that the RCMP developed a
Force-wide Policy on National Security Investigations, dealing in part with
the sharing of information with countries with “…questionable human rights
records,”515 with important supporting protocols apparently still in the process
of “being developed.”516 This state of affairs raises questions about the RCMP’s
preparedness to deal with these issues in a sound, balanced and sensitive
manner.
2.3.4 The Khurana Tape
Introduction
Approximately two weeks before the Air India bombing, on June 12, 1985, a
meeting involving Sikh extremists was held at the residence of Sarbjit Khurana
and was recorded by the Vancouver Police Department (VPD).517 Pushpinder
Singh, one of the leaders of the Sikh extremist organization the International
Sikh Youth Federation (ISYF), was present at the meeting. Immediately after the
meeting, Khurana reported that he witnessed the following exchange during
the meeting:
Manmohan Singh pressured Pushpinder Singh at the meeting
by pointing an accusing finger at him and telling him —
“No counsels have been killed, no Ambassadors have
been killed!! What are you doing? Nothing!!”
Pushpinder Singh replied back —
“You will see! Something will be done in two weeks!”518
This information was available to the RCMP as of June 13, 1985, but the Force
only started investigating it after the bombing, when the possible connection
between the “wait two weeks” comment and the bombing became clear, given
the time frame.519 Once the RCMP began investigating, the VPD member who
514
515
516
517
518
519
Testimony of Rick Reynolds, vol. 52, September 25, 2007, pp. 6481-6482.
See Exhibit P-101 CAF0335, pp. 17-18.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, p. 6365.
See Section 1.6 (Pre-bombing), Khurana Information.
Exhibit P-101 CAC0487, p. 4.
See Section 1.6 (Pre-bombing), Khurana Information.
�Chapter II: RCMP Post-Bombing
had originally received the Khurana information was not kept informed about,
or involved in, the investigation. The RCMP focused on obtaining a translation
of the tape recording of the meeting to corroborate Khurana’s information. In
the initial stages, the RCMP also investigated some of the players present at
the Khurana meeting, but the Air India investigation was soon “re-oriented”
away from the Sikh extremist organization involved in the meeting. The
Khurana information was then no longer part of the main focus of the RCMP’s
efforts. In the end, the RCMP claimed that, after extensive investigation, no link
between the Khurana information and the Air India bombing had ever been
substantiated.
The RCMP Takes Over the Investigation
Shortly after the Air India bombing, on June 25, 1985, the RCMP Richmond
Detachment (initially in charge of the Air India investigation in BC) reported the
Khurana information to RCMP HQ in a telex, and indicated that local factions of
the ISYF and the Babbar Khalsa (BK) were being investigated by E Division NCIS.
The Khurana information was described as “…intelligence provided by NCEU/
NCIS/VIIU,” indicating the ISYF to be responsible for the bombing.520 The ISYF
historically was a violent organization that had been proscribed in India because
of its bombing assassinations of Sikhs and Hindus.521 It was one of the three
organizations (along with the Dashmesh Regiment and the Kashmir Liberation
Front) that had claimed responsibility for the attack on Air India Flight 182.522
The RCMP telex reporting the Khurana information stated that Cst. Don McLean
of the VPD had learned about the “wait two weeks” comment on June 12th from
a taped conversation, during which ISYF member Manmohan Singh said “…you
have not killed an ambassador or counsel yet” and Pushpinder Singh responded
“…you will see in two weeks we’ll show the community.” The contact persons
listed for the NCIS probe into the ISYF and the BK were RCMP Sgt. Wayne Douglas
and VPD Cst. McLean.523
However, McLean testified that he was not involved in a joint investigation of
the Khurana information with the RCMP members investigating Air India.524 In
fact, he was never informed about any follow-up investigation conducted by
the RCMP before or after the bombing, and he remained unaware to the date
of his testimony whether anyone was ever tasked to follow up on the Khurana
information.525
McLean had in-depth knowledge of the Sikh extremist leaders in the Lower
Mainland and had access to many sources in the community.526 He was the
520 Exhibit P-101 CAA0249, p. 2.
521 Exhibit P-101 CAB0851, p. 14. The Sikh Student Federation (SSF) is the same organization as the ISYF.
See also Exhibit P-101 CAB0360, p. 5.
522 Exhibit P-101 CAB0851, p. 14, CAC0492, CAF0057, p. 35.
523 Exhibit P-101 CAA0249, p. 2.
524 Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4145-4146.
525 Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2027-2028.
526 See Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces.
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person Khurana went to when the meeting with the ISYF was first proposed, and
he made the arrangements to have the meeting recorded. He had developed
a relationship with Khurana as a source, and he received Khurana’s information
about the “wait two weeks” comment immediately after the meeting. He had
even begun his own follow-up investigation prior to the bombing, albeit without
the RCMP’s assistance or involvement.527 McLean could have contributed
significantly to the investigation and could have been an important resource
for the RCMP. Yet, the RCMP chose not to involve him in its post-bombing
investigation of the Khurana information, requesting his assistance only to help
its members in identifying individuals in photographs.528
After the bombing, McLean received information indicating that one of the
individuals believed to have participated in the Khurana meeting, Jaspal Singh
Atwal, was bragging that he had known before the crash that Air India was
about to be blown up. This information was passed on to the RCMP by the
VPD.529 It is not known what follow-up investigation, if any, was conducted by
the RCMP in this respect.
Translating the Khurana Tape
During the Khurana meeting, a Punjabi-speaking VPD member, Cst. Jas Ram,
was listening and translating as the conversations were being recorded. He
indicated that he had not heard the “wait two weeks” comment reported by
Khurana.530 McLean and his other VPD colleagues from the Vancouver Integrated
Intelligence Unit (VIIU) still had no doubt about the veracity of Khurana’s
information and were prepared to rely on his word, since he had always proved
to be a credible and reliable source in the past.531 For the RCMP, the exact
translation of the Khurana tape became an important focus in the early months
of the investigation.
Shortly after the bombing, CSIS’s assistance was sought to translate and transcribe
the VPD tape which contained the recording of the Khurana meeting.532 A
Punjabi-speaking RCMP member at E Division, Cst. Manjit (“Sandy”) Sandhu,
was also asked to review the tape and to provide his interpretation.533 In the
days immediately following the bombing, the E Division Air Disaster Task Force
reported to HQ that Sandhu had translated the conversation on the tape as
follows:
[redacted] it may take two weeks, a few months, or a few
weeks and then we will do something (undecipherable)
[redacted].534
527
528
529
530
531
532
533
534
See Section 1.6 (Pre-bombing), Khurana Information.
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4129, 4144-4146.
Exhibit P-101 CAA1108, pp. 1-2.
See Testimony of Don McLean, vol. 21, May 1, 2007, pp. 2024, 2035; Exhibit P-391, document 208
(Public Production # 3341), p. 6.
See Section 1.6 (Pre-bombing), Khurana Information.
Exhibit P-101 CAF0166, p. 1, CAF0208, p. 2. See also Exhibit P-101 CAA0295, p. 6.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2647.
Exhibit P-101 CAA0267, p. 2.
�Chapter II: RCMP Post-Bombing
In a different version of the translation, dated June 27, 1985 and described as Cst.
Sandhu’s interpretation of a conversation between Sukhdev (“Sukhi”) Sandhu
(SS) and Pushpinder Singh (P), the conversation was reported as follows:
S.S. Government of India is very powerful and they are trying
to infiltrate us.
P.
They are infiltrating us we are infiltrating them.
S.S. They don’t have all the people of that level that can’t
be sold and we also have people who would be ready to
sell themselves, understand. So this is their policy to
cause problem and division among Sikhs so they won’t
get ahead.
P.
To achieve this we will not take more than couple weeks,
three months is little longer. Think it will take us a few
weeks before we achieve this. Once we achieve this I
am still thinking we can do better on this level
than that. Once we do this our next step is to get rid of
… (undecipherable) railway. And I mean we will destroy
those plants.535
On July 22, 1985, RCMP HQ noted in a telex to the E Division Task Force that no
response had been received to its previous request for a translated transcript of
the Khurana tape.536 On July 25th, the Task Force learned that the CSIS translation
had not been completed.537
On August 28, 1985, Cst. Sandhu wrote to the HQ Task Force about the Khurana
meeting transcript in response to an HQ telex dated August 6th. He indicated that
he had contacted the transcriber (presumably from CSIS), and had learned that
she had attempted to identify the Unidentified Males (U/Ms) who participated
in the meeting by number, but in the end could not because there were too
many persons present. She advised that approximately 15 to 20 individuals
were in attendance. The transcriber reported that most of the conversations
during the meeting were attempts to convince Khurana to drop assault charges
he had filed against ISYF members. She informed Cst. Sandhu that the only
conversation “of any value” occurred between Pushpinder Singh and Sukhi
Sandhu, immediately after Khurana had said that he wanted “…to know how
many groups are there, how many leaders are there.” At that time, Pushpinder
Singh provided an answer which related to bringing various Sikh groups on the
North American continent under one group. Sukhi Sandhu added: “…they are
not the people that, who are most ready to sell themselves. There are people
among us who are ready to sell themselves.”538
535
536
537
538
Exhibit P-391, document 202 (Public Production # 3335), p. 2.
Exhibit P-101 CAA0286, p. 2.
Exhibit P-101 CAA0295, p. 6.
Exhibit P-101 CAC0501, p. 2.
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Cst. Sandhu advised HQ that the E Division Task Force had contacted Khurana
“again” to find out who was present when he asked the question which began
the conversation. Khurana stated that the persons present were his wife
and children, Manmohan Singh and his wife, Sukhi Sandhu and Pushpinder
Singh. Cst. Sandhu indicated that, having listened to the tape himself, he was
of the view that the goal Pushpinder Singh was discussing was to bring Sikh
groups together under one group.539 Though this did not confirm Khurana’s
information about the “wait two weeks” comment, it did confirm some of the
other information he had provided immediately after the meeting, when he
had stated that Pushpinder Singh had said that he was using Parmar to bring all
Sikhs in the Lower Mainland together.540
In a transcript of the Khurana tape prepared at an unknown date, this
conversation about bringing Sikh groups together was also reported, with a
specific mention that this involved “…mainly this Talwinder Singh from Babbar
Khalsa,” as well as other leaders from the Akhand Kirtani Jatha, the ISYF and
other organizations.541 This transcript also mentioned Parmar’s recent presence
in Toronto, and agreement to participate in the “common platform” which they
were trying to create:
Talwinder Singh has been convinced; discussion about in
Toronto there being two organizations working together,
in there Talwinder Singh came and addressed the religious
gathering and said, we are one and we are working on [t]his
together, so this is a very good step on one level.542
This transcript did not identify any of the individuals who spoke in the meeting
(referring to them as U/M or U/F), except Khurana, and often simply reported
the topic of the conversation in a general manner, without setting out the words
spoken by each individual.543 The transcript mentioned that a portion of the
tape was blank.544 Among the conversations which were reported, the following
was of interest:
U/M says we can do a big job with the support of all you big
guys, another U/M says we should start with small jobs, and
God willing we can do something big later on; we have been
doing a big job all along, but there was a set back.545
There was also a conversation about the Punjab situation where an U/M said
that “…instructions were given not to do anything, but just to accumulate your
539
540
541
542
543
544
545
Exhibit P-101 CAC0501, p. 2.
Exhibit P-101 CAC0487, p. 4.
Exhibit P-391, document 200 (Public Production # 3333), p. 13.
Exhibit P-391, document 200 (Public Production # 3333), p. 13.
Exhibit P-391, document 200 (Public Production # 3333). “U/F” means “unidentified female.”
Exhibit P-391, document 200 (Public Production # 3333), p. 13.
Exhibit P-391, document 200 (Public Production # 3333), p. 3.
�Chapter II: RCMP Post-Bombing
sources, and wait for instructions,” and an U/M discussed the capability for
chemical warfare and said “…we can do anything, and everything, but there are
specific instructions for us, after that the thing is to kill the ambassadors.” This
was followed by an explanation of “…clear cut instructions on an international
level,” which would have been given in a lecture by Jasvir Singh, that no person
or no embassies be harmed. However, it was added that “…if in any way there
is [sic] men ready to sacrifice themself [sic], we can….” A conversation about
complaints over the delay in taking action since the storming of the Golden
Temple was also described. Finally, when Khurana began to complain about
not being informed of the plans of the various groups, he was told that this was
“for security reasons” and the following comments were made: “…another U/M
says, you would be surprised, there are so many people who are close; U/M says,
I am so close, even I don’t know 90% of it, and the 10% I know, I think I know too
much.”546
The conversation about infiltrating the Government of India, which was reported
in the second version of the June 1985 Sandhu translation, was also reported
in the undated transcript in a modified and much abridged form, without the
mention of the plans to get rid of railways or destroy plants.547
In his August 1985 update to HQ, Cst. Sandhu made no mention of his earlier
interpretation of the Khurana tape which included a comment about waiting
weeks or months, but appeared to accept the statement of the CSIS transcriber
that the only conversation of interest was about the goal of bringing Sikhs
together.
In a 1996 affidavit in support of an authorization to intercept private
communications, the RCMP indicated that Cst. Sandhu had reviewed the tape
for the Khurana meeting and had been unable to discern the conversation
reported by Khurana about doing something in two weeks. The RCMP noted
that “…this portion was not clearly recorded,” and again made no mention of
the initial Sandhu interpretation in June 1985 which indicated that a comment
was heard about waiting weeks or months to “do something.”548
Years later, in a chronology prepared in support of its briefing to the Hon. Bob
Rae, the RCMP simply stated that the “wait two weeks” comment reported by
Khurana was not recorded on the VPD intercept of the meeting.549 Given the
early Sandhu translation and the discrepancies in the various translations,
this seems like an overstatement. However, even if it were the case that the
comment reported by Khurana could not be heard on the tape, this fact cannot
be taken as an indication that the comment was not made during the meeting.
The overall quality of the tape was described by McLean as average. He
explained that, depending on their location in the room, some participants
could be heard better than others.550 Ram, who was interpreting the meeting
546
547
548
549
550
Exhibit P-391, document 200 (Public Production # 3333), pp. 7-8, 11-12.
Exhibit P-391, document 200 (Public Production # 3333), p. 14.
Exhibit P-101 CAD0180a, p. 2.
Exhibit P-101 CAA1099, p. 3.
Testimony of Don McLean, vol. 21, May 1, 2007, p. 2008.
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as it was taking place, said that he did not hear anything unusual, but that he
was having trouble understanding everything that was being said because
of the slang and the speed of the conversation.551 Portions of the tape were
unintelligible and, significantly, the initial conversations in the meeting were
not recorded because the VPD members were not aware that the meeting had
actually started.552 The numerous participants present during the meeting were
often speaking at the same time and, as a result, could not be heard clearly.553
For these reasons, it is entirely possible that the “wait two weeks” comment
was made during the meeting but was simply not recorded or could not be
heard clearly on the recording. In fact, the RCMP recently obtained another
translation of the Khurana tape and the transcript prepared contains numerous
mentions that the recording “goes on and off ” and that the conversations cannot
be heard clearly.554 The 2008 transcript contains none of the references to the
conversations of interest which were found in previous transcripts. It ends with
a note that the conversation was still in progress when the end of the tape was
reached.555
Khurana was a reliable source and he was adamant that the conversation
occurred as he stated.556 He reported this information immediately after
the meeting, before he could know that the Air India bombing would occur
within the time frame mentioned. While corroborating Khurana’s information
by means of the recording could have been helpful to police, the absence of
a decipherable recording would certainly not have been cause to refrain from
investigating the information Khurana reported. Indeed, while the RCMP was
waiting for the translation of the tape to be completed by CSIS during the
early weeks of the Air India investigation, the Force did investigate some of the
participants in the Khurana meeting.
Early Surveillance and Investigation
In the days immediately following the bombing, three of the five targets that
CSIS had under surveillance, in conjunction with the RCMP Air Disaster Task Force
(CSIS and the RCMP coordinated some of their surveillance activities during the
Air India investigation), were participants in the Khurana meeting: Manmohan
Singh, Sukhi Sandhu and Harjit Singh Atwal.557 This coverage continued
through to the end of June, with CSIS conducting surveillance on Manmohan
Singh’s business as well.558 However, the CSIS surveillance team watching Sukhi
551 Exhibit P-391, document 429 (Public Production # 3811), p. 7; Exhibit P-391, document 208 (Public
Production # 3341), p. 6.
552 Exhibit P-101 CAD0180a, pp. 1-2; Exhibit P-391, document 208 (Public Production # 3341), p. 6.
553 Testimony of Axel Hovbrender, vol. 33, May 24, 2007, pp. 3910, 3921.
554 Exhibit P-101 CAF0884.
555 Exhibit P-101 CAF0884, p. 172.
556 Testimony of Don McLean, vol. 21, May 1, 2007, p. 2014. Khurana also subsequently recounted the
same information in a police statement provided to an RCMP officer in connection with the Air India
investigation: See Exhibit P-101 CAD0180a.
557 Exhibit P-101 CAA0242, p. 2, CAC0487, p. 5.
558 Exhibit P-101 CAA0261, p. 3.
�Chapter II: RCMP Post-Bombing
Sandhu had to back off when he complained to the RCMP about being under
surveillance.559 During the following month, CSIS surveillance of Manmohan
Singh and Harjit Atwal continued.560
In late June 1985, the RCMP began extensive coverage of Lakhbir Singh, which
was to continue for the following weeks.561 Lakhbir Singh, also known as Lakhbir
Singh Brar, was a leader of the ISYF who had many contacts and was well
respected in the Sikh community.562 He was present at the Khurana meeting.
At the time, like Pushpinder Singh, he had recently arrived from India and was
described by McLean as a terrorist.563 According to McLean’s information, both
Pushpinder Singh and Lakhbir Singh had entered Canada illegally after the
assassination of Indian Prime Minister Gandhi in the fall of 1984.564 Years later,
Lakhbir Singh Brar was identified in the purported Parmar confession as having
been the unidentified person present during the Duncan Blast (Mr. X) and as
having been the one conspiring with Reyat to plan the Air India and Narita
bombings.565 Both before and after the bombing, Lakhbir Singh was frequently
seen in the company of the Babbar Khalsa suspects and was present at various
meetings and Sikh temple fundraisers with Air India suspects.566
As of July 1, 1985, the RCMP had identified Pushpinder Singh and had him under
surveillance.567
The RCMP HQ Coordination Center for the Air India investigation also showed
interest in the Khurana information during the early weeks of the investigation.
In a July 22, 1985 request to the E Division Task Force for an immediate update,
HQ asked to be informed about how many of those attending the Khurana
meeting were under surveillance or investigation. HQ wanted to know what
was learned by the divisional Task Force about the movements and contacts of
those who attended the meeting, and also asked whether the suspected illegals
who were present (Lakhbir Singh and Pushpinder Singh) had been the subject
of RCMP actions, such as surveillance, source cultivation or investigation.568
However, the intensive interest in the Khurana information was short-lived.
Soon after the HQ request, the information began to be viewed as a red herring,
diverting the Force’s attention away from more promising suspects.
559
560
561
562
563
564
565
566
567
568
Exhibit P-101 CAB0371, p. 2.
Exhibit P-101 CAA0295, p. 5.
Exhibit P-101 CAA0303, CAB0360, p. 5, CAB0371, p. 2.
See Section 2.3.3 (Post-bombing), The Purported Parmar Confession; Exhibit P-101 CAA0303, CAA0307,
p. 8.
Exhibit P-101 CAC0487, p. 5.
Exhibit P-101 CAB0306, pp. 1-2.
See Section 2.3.3 (Post-bombing), The Purported Parmar Confession; Section 1.4 (Pre-bombing),
Duncan Blast; and Section 1.5 (Pre-bombing), Mr. X.
Exhibit P-101 CAF0332, p. 1.
Exhibit P-101 CAA0269(i), p. 7.
Exhibit P-101 CAA0286, p. 1; Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2649-2650.
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Re-Orientation of the RCMP Investigation
On August 12, 1985, a member of the HQ Task Force wrote a memorandum to
the Officer in Charge, C/Supt. Norman Belanger, indicating that the RCMP Air
India investigation was “getting off track.” The memorandum explained that the
Force had “…expended numerous resources following Lakhbir Singh around
the country,” and had observed him visiting various locations to mobilize
Sikh communities against the Longowal Accord, a peace agreement recently
signed by the leader of the moderate Sikh party, Akali Dal, and the Indian Prime
Minister.569 The memorandum noted:
Lakhbir’s activities have not indicated a touch of criminality
but are of great interest to CSIS because of his association with
the International Sikh Youth Federation (I.S.Y.F.).570
The memorandum went on to state that, in contrast to the Lakhbir Singh
situation, the RCMP had “definite evidence” of criminal activity by Talwinder
Singh Parmar and his associates. Criminality was said to be apparent simply by
examining Parmar’s contacts. The Duncan Blast and Parmar’s association with
Reyat were mentioned, and it was concluded that Parmar’s activities and those
of his associates demanded closer scrutiny from the RCMP.571
On the same day, Belanger had a telephone conversation with the Officer in
Charge of the E Division Task Force, Supt. Les Holmes. In accordance with the HQ
memorandum, the divisional investigators were re-assessing their investigation.
The E Division Task Force was conducting an intensive investigation of Reyat
and resolved to focus on the luggage, the tuners and the “major individuals” as
its priorities.572
From then on, the RCMP Air India investigation focused mostly on Parmar and
his associates, all members of the Babbar Khalsa (BK).573 Charges were brought
against Parmar and Reyat in connection with the Duncan Blast in November 1985
(only to be dropped the following spring in Parmar’s case),574 and manslaughter
charges were eventually brought against Reyat for the Narita bombing in the
late 1980s, with Reyat being convicted in 1991.575 Meanwhile, Lakhbir Singh
Brar, who had been the object of so much RCMP attention in the early weeks of
the investigation, was never interviewed as a potential witness or suspect in the
Air India investigation until 2001, as part of the follow-up investigation of the
purported Parmar confession.576
569
570
571
572
573
Exhibit P-101 CAA0303.
Exhibit P-101 CAA0303.
Exhibit P-101 CAA0303.
Exhibit P-101 CAA0304, p. 1.
See generally the narratives within Section 2.3 (Post-bombing), The Usual Suspects versus “Alternate
Theories”.
574 See Section 1.4 (Pre-bombing), Duncan Blast.
575 See R. v. Reyat, 1991 CanLII 1371 (BC S.C.).
576 Exhibit P-101 CAF0332, p. 1; See, generally, Section 2.3.3 (Post-bombing), The Purported Parmar
Confession.
�Chapter II: RCMP Post-Bombing
Pushpinder Singh, for his part, was only interviewed once during the early stages
of the investigation. This interview was part of a series of “perimeter interviews”
conducted by the RCMP.577 In October 1985, VPD Cst. Axel Hovbrender, who was
working with the RCMP Task Force at the time, and who had extensive knowledge
of Sikh extremist organizations in Vancouver through his work at the VIIU,578
interviewed Pushpinder Singh along with another Constable. Pushpinder told
the officers that he was involved in the ISYF, which he described as a charitable
organization, and in lobbying governments to support the Sikh cause and the
eventual state of Khalistan. He stated that Sikhs would not blow up an Air India
plane but would only “…damage the Indian government on Indian soil.” He
added that his brother worked at the Indian nuclear plant and that, as a result,
if Sikhs wanted to take some action, they had “…more than ample opportunity
to do it on Indian soil.” He said they could also, if necessary, disrupt the Indian
government by “…placing or corrupting a few people in key places within the
bureaucracy.” At the time Pushpinder Singh was not asked about statements
he had made at the Khurana meeting, most likely because it was not yet known
that Khurana had allowed the meeting to be recorded by police. Asked about
newspaper reports that Sikhs from Toronto had attended combat training,
Pushpinder Singh dismissed the story as “vicious propaganda,” denied that any
such training had taken place and said that the Sikhs were attending a wedding
ceremony.579
After the perimeter interview, Hovbrender noted that his general impression
about Pushpinder Singh was that he was “…very charismatic, articulate and
dangerous.” The investigator added that Pushpinder Singh had expressed
contradictory views on violence, at times claiming to be non-violent and
only lobbying, and at other times appearing to support and glorify violence.
Hovbrender believed that Pushpinder Singh had been “…trained in police
interrogation techniques” and had attempted to use such techniques during
the interview. He concluded his interview report by stating that he felt that
Pushpinder Singh was “…a significant danger in the ISYF and may in the near
future go to the forefront of that organization.”580 Nevertheless, no further
follow-up to determine Pushpinder Singh’s possible involvement in the Air India
bombing was done by the RCMP for over a year.
Beginning in August 1985, it appears that the RCMP’s primary theory of the case
– that the Air India bombing was an act of the Babbar Khalsa alone581 – began
to crystallize. From then on, information implicating other groups – like the
Khurana information – became part of the “alternate theories” which were not
pursued as intensively.582 As submitted by the Attorney General of Canada:
577
578
579
580
581
582
Exhibit P-101 CAF0883, p. 2.
See Section 3.5.4 (Pre-bombing), RCMP Failures in Sharing with Local Forces.
Exhibit P-101 CAF0883, pp. 3-5.
Exhibit P-101 CAF0883, pp. 5-6.
See, generally, Exhibit P-101 CAA0582, pp. 2-3, CAA0601, p. 1.
See also Section 2.3.3 (Post-bombing), The Purported Parmar Confession.
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It was learned that Pushpinder Singh was a member of the ISYF
and not the BK (Parmar’s group). Parmar and the BK became
the focus of the investigation at a comparatively early stage.583
This focus was unfortunate as far as the Khurana information was concerned,
precisely because the information itself revealed important connections
between the BK and the ISYF. Pushpinder Singh was reported to have praised
Parmar during the Khurana meeting and to have said that he had met with him
in Toronto the previous week. CSIS surveillance confirmed that Parmar and
ISYF types from BC, possibly including Pushpinder Singh, were in Toronto at the
time.584 Further, Khurana had reported that Pushpinder Singh claimed that he
was using Parmar to bring all Sikhs in the Lower Mainland together, and this
was confirmed in many of the various translations and interpretations of the
Khurana tape.
There was also other information pointing to possible links between the BK and
the ISYF, as well as to links between specific Air India suspects and the ISYF.
In June 1985, the VIIU had received information from CSIS about an alleged
meeting at Surjan Singh Gill’s residence on June 3rd, which involved both BK
and ISYF representatives.585 On June 10th, the RCMP had received information
about Reyat’s involvement with a new temple whose leader advocated cutting
off travel with Air India. At the time, it was also learned that some of the
associates of the new temple leader were believed to be ISYF members.586 The
RCMP was also aware that Bagri, one of only three individuals who were ever
prosecuted in connection with Air India, had travelled to Toronto with Lahkbir
Singh in August 1985.587
In 1986, the RCMP conducted two investigations into terrorist plots involving
the Babbar Khalsa. The Project Scope investigation related to a plot by Montreal
BK members to blow up an Air India plane flying out of New York, and the Project
Outcrop investigation related to a plot hatched in Hamilton by Parmar and
other BK members to blow up Parliament buildings in India and to kidnap the
children of Indian MPs.588 During the Outcrop investigation, the RCMP obtained
information which indicated that Parmar had requested assistance from an ISYF
member, asking that he provide “…ten men ready to die” and a sum of money.589
In June 1986, RCMP HQ was seriously concerned about the plots, and sent a
message to all divisions setting out measures which had to be implemented in
response.590 HQ stated:
583
584
585
586
587
588
Final Submissions of the Attorney General of Canada, Vol. I, para. 177.
See Section 1.6 (Pre-bombing), Khurana Information.
Exhibit P-101 CAA0196, p. 2.
Exhibit P-101 CAA0276, p. 2.
Exhibit P-101 CAA0307, p. 8.
See generally Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement – Canada’s
Response to Sikh Terrorism,” pp. 45-46; Exhibit P-101 CAF0504.
589 Exhibit P-391, document 429 (Public Production # 3811), p. 8.
590 Exhibit P-101 CAF0504.
�Chapter II: RCMP Post-Bombing
Until recently it would have been an overstatement to claim
that there was a serious extremist presence in Canada.
Emphatically this is no longer true. There are growing
indications that the Babbar Khalsa and the International Sikh
Youth Federation are to some extent consolidating their
efforts within Canada in their increasingly – violent fight for an
independent Khalistan.591
In fact, indications that the BK and the ISYF were consolidating their efforts had
existed since before the bombing of Air India Flight 182. Yet, the investigation
of the possible BK/ISYF connections did not form a central part of the RCMP Air
India investigation, and the ISYF suspects received limited attention after the
investigation was re-oriented in August 1985.
Subsequent Investigation
Although the ISYF players involved in the Khurana meeting were no longer
important targets for the RCMP Task Force, and the Khurana information was
no longer a primary focus of the investigation, an HQ analyst, Cpl. Doug Wheler,
nevertheless showed interest in the matter in 1987. He prepared a report
raising questions about several aspects of the investigation. In the report, he
recounted the Khurana information and noted that, if it was factual, it was
significant because it clearly indicated that Pushpinder Singh had definite
knowledge that something serious was going to happen within two weeks,
“…exactly on schedule for Air India crash/Narita bombing.” Wheler noted that
“…the problem that exists with this intelligence is that the above-mentioned
portions of the conversation were not recorded, as the tape ran out one hour to
45 minutes prior to this portion of the conversation taking place” (this was the
recollection of some of the VPD members involved, but not of others). However,
he also indicated that the source, Khurana, was adamant that the conversation
took place.592
Wheler noted that the Khurana information might not be completely in line
with the RCMP’s main theory of the case, but he did not feel that it should be
discounted for that reason:
I realize we have two different groups operating here, ie: ISYF
and Babbar Khalsa, however the possibility exists that both
these groups have combined their efforts to bring about
certain effects which would benefit their cause.593
Wheler noted that such cooperation between the BK and the ISYF had been
suspected in the Outcrop investigation and could have existed in the Air India
conspiracy. He added that the conversations at the Khurana meeting indicated
591 Exhibit P-101 CAF0504, p. 1.
592 Exhibit P-391, document 429 (Public Production # 3811), pp. 6-7.
593 Exhibit P-391, document 429 (Public Production # 3811), p. 7.
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that Pushpinder Singh had strong ties to Parmar, “…even if [Pushpinder] is ISYF
and Parmar is B.K.”594 As a result, Wheler concluded his report by suggesting
that the Khurana situation be completely re-examined. He suggested a number
of investigative initiatives, including: meeting with Khurana to find out if he
was still adamant about the conversation he had heard and to ask him more
questions about Pushpinder Singh’s other comments; interviewing the VPD
members involved in the investigation; and re-examining any notes made by
the VPD member who was monitoring the meeting595 (in fact, the RCMP learned
in 1996 when the live-monitor was contacted that it was his first day on the job
and that he did not make notes but simply listened as the meeting was taking
place).596
Wheler’s report was forwarded to the E Division Task Force on February 9,
1987, for its information and consideration.597 On February 18, 1987, E Division
wrote to the HQ Task Force in response to the questions raised in the Wheler
report. About the Khurana information, the Division focused on the recording
and reported that Cst. Sandhu had reviewed the original tape and that he was
unable to detect any conversation where Manmohan Singh would have said
that “…no consuls have been killed, no ambassadors have been killed, what are
you doing, nothing?” and Pushpinder Singh would have replied “…you will see,
something will be done in two weeks.” The Division advised that the tape had
been recorded on both sides and that Cst. Sandhu had heard the end of the
conversation and the participants going home. The only time when there was
a break in the tape was when it was changed over to the other side. Again,
mysteriously, no mention was made of the first translation by Cst. Sandhu which
referred to a conversation about waiting weeks or months to do something.
The only information which was added was that “…Cst. Sandhu was in contact
with Cst. Don McLean and found McLean unable to back up the claim that
[redacted].” The Division concluded its message by saying that the information
it provided “…should answer all your questions,”598 and apparently conducted no
further follow-up on the Khurana information in response to Wheler’s questions
and recommendations. The Division also did not discuss the possibility of
cooperation between the BK and ISYF.
In March 1987, shortly after the Division provided this response, the RCMP
learned that Pushpinder Singh had been arrested in India. At this time, the RCMP
decided not to attempt an interview with Pushpinder Singh because, on the
one hand, it would reveal the Canadian police interest which could be relayed
to other extremists and, on the other hand, it was believed that Pushpinder
Singh was attempting to put himself in a bargaining position, “…the cost of
which is not known.” The Force was aware that Pushpinder Singh had admitted
having met Parmar in 1985, though it was not known whether this was before or
after the bombing. Pushpinder Singh also possessed some general knowledge
594
595
596
597
598
Exhibit P-101 CAF0885, p. 3.
Exhibit P-391, document 429 (Public Production # 3811), pp. 8-10.
Exhibit P-391, document 208 (Public Production # 3341), p. 6.
Exhibit P-391, document 429 (Public Production # 3811), p. 1.
Exhibit P-101 CAA0528, pp. 2-3.
�Chapter II: RCMP Post-Bombing
about the BK, though he claimed that he did not get involved in any of the
BK’s problems. He had recounted that Parmar had had a falling out with Surjan
Singh Gill because he had spoken to Gill’s wife about something personal and
had upset her and that, after that, Bagri had replaced Gill as Parmar’s confidant.
At the time, however, attempts to conduct an RCMP interview were deemed
premature by the Force.
On May 20, 1987, Wheler wrote another memorandum, pursuant to his February
analysis and the response received from E Division. He indicated that “…efforts
should still be made” to establish whether Pushpinder Singh had knowledge of,
or was involved in, the Air India bombing. He provided additional reasons for
not abandoning the investigation of Pushpinder Singh’s possible involvement,
reproduced some of his earlier analysis and responded to some of the points
raised by the Division in response to his February suggestions. In particular,
Wheler noted that, though Cst. Sandhu did not hear the conversation on the
tape and did hear participants in the meeting going home, this probably related
to the majority leaving and the fact that some could have stayed behind, given
that there were 15 to 20 persons originally present. He added that the “wait
two weeks” comment was reported to have been made during a conversation
involving a small group only, and reiterated his belief that the conversation
occurred over an hour after the recording stopped, noting that some of the
VPD members involved had indicated in May 1986 that the tape stopped
before the conversations of interest. Wheler again concluded with a number of
recommendations, including the suggestion that Pushpinder Singh, who was
still in custody in India, be interviewed by RCMP Air India investigators once
“outstanding questions” were clarified. Wheler also recommended once more
that the Khurana situation be re-examined and that the questions outlined in
his previous analysis about this issue be answered. In particular, he suggested
the possible use of a polygraph test as an avenue the Division could take to “…
clarify this situation.”599
On June 24, 1987, the E Division Task Force provided HQ with a report which
contained detailed comments on the points raised in Wheler’s message. The
report noted that the facts and hypotheses relied on by Wheler were not
confirmed by “substantive data.” About the Khurana meeting, the Division
noted that the conversation was reported by the VPD’s human source (Khurana)
before the tape was translated, and that subsequent follow-up by VPD Cst.
Hovbrender had revealed that the “…source was ‘obviously excited and nervous
because of the nature of the meeting’ and may have misinterpreted parts of the
conversation.” E Division admitted that VPD Cst. Ram, who was monitoring the
Khurana meeting, had indicated that he had had difficulty in distinguishing and
interpreting the conversations when the “…full contingent of ISYF members
were present and talking at the Khurana residence (some 17 individuals plus
Khurana),” but felt that, had the conversation described by Khurana taken
place, Ram would have been able to hear and interpret it since the number
of participants was “significantly reduced” at that time.600 It seems that the E
599 Exhibit P-101 CAF0885, pp. 1, 4-5, 7.
600 Exhibit P-101 CAF0886, pp. 3-4 [Emphasis in original].
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Division Air India Task Force doubted that the conversation reported by Khurana
even took place, though Khurana had reported this information immediately
after the meeting, before the Air India bombing.
Sgt. Robert Wall, in charge of the E Division Task Force, indicated in the
memorandum forwarding the divisional report which was responding to
Wheler’s analysis, that he felt “…compelled to further comment,” in light of the
“…amount of time consumed by our analysts in their review of this material
and the results thereof.” He explained that the E Division analysis led to the
conclusion that much of what was suggested in the Wheler report could not
be supported “…by facts known or available to us.” He requested that if the HQ
Task Force was in possession of “…additional factual material,” that this material
be forwarded to the Division.601 Wall concluded:
Given “E” Division’s current undertakings and resources
available to us, we must of necessity prioritize our workload.
Having so stated, reports of this nature will not be subject of
lengthy examination by us in the foreseeable future. Mutual
cooperation in the pursuit of our common goal is invited.602
It should be noted that by mid-1987, the “slow degeneration” of the E Division
Air India investigation had already begun. Wall’s comments about prioritizing
the workload should be understood in the context of the time. When they were
written, the Division’s priorities focused increasingly on forensics, wreckage
recovery, and on the Reyat prosecution in connection with the Narita bombing,
as opposed to solving the bombing of Air India Flight 182.603
Despite its demonstrated annoyance at being forced to look into the issue by
RCMP HQ, the E Division Task Force nevertheless appeared to agree with the
suggestion that Pushpinder Singh be questioned about his knowledge of the
Air India bombing. In an additional response to Wheler’s report, which was
forwarded to HQ on June 25, 1987, the Division pointed out that the questions
should be posed to Pushpinder Singh “…in general or broad terms i.e. what do
you know about the Air India/Narita incidents etc.,” because since there was
“…no concrete information” to illustrate his role, if any, alluding to specifics
would leave the door open for Pushpinder “…to manipulate the interrogator(s),”
who would then “…have no recourse for verifying any of his admissions or
denials.”604
On June 29, 1987, Cpl. Greg Bell of the HQ Task Force wrote a memorandum to
his OIC about the possibility of conducting an interview with Pushpinder Singh.
He indicated that, when the RCMP had learned about Pushpinder’s arrest in
March, HQ had forwarded the information to the divisions, along with Wheler’s
analysis of his possible role in the Air India/Narita investigation, hoping that the
601
602
603
604
Exhibit P-101 CAF0886, p. 1.
Exhibit P-101 CAF0886, p. 1.
See Section 2.2 (Post-bombing), The RCMP Investigation: Red Tape and Yellow Tape.
Exhibit P-101 CAF0887.
�Chapter II: RCMP Post-Bombing
divisions would raise issues where further clarification or details were required.
Bell noted that the divisions had outlined different areas where additional
information from Pushpinder Singh was needed, but had generally seemed “…
particularly unresponsive and slow in providing in-depth thought regarding a
second crack at Pushpinder.” Now that the responses had been received, Bell
saw a dilemma in deciding who would interview Pushpinder Singh on the
RCMP’s behalf. He set out various options, including to “…do nothing to pursue
this avenue of investigation,” and noted that all options except the last had
advantages and disadvantages. He suggested that a decision be made as to
whether the RCMP LO could conduct the interview, and that the divisions be
notified of this decision and asked to provide more information.605
The OIC of the HQ Task Force responded that he had requested an update some
time ago in anticipation of sending someone to India to interview Pushpinder
Singh. He suggested that one RCMP investigator and the LO attempt to conduct
an interview, but felt that conditions would have to improve before someone
would be sent to India. The OIC noted that the last thing he wanted was to
send a member “…all the way to India on speculation” and then to find out that
nothing Pushpinder Singh said – assuming he said anything – was available
as evidence.606 In a subsequent note, the OIC also indicated that he shared
Bell’s concerns about the length of time necessary to obtain responses from
the divisions. He noted that, having read the report submitted by E Division
in June, he doubted that Division would even submit questions it would want
posed to Pushpinder Singh. The OIC added that it appeared that the people at
HQ were “…the only ones interested in Pushpinder” and that this was because
HQ supported Wheler’s hypothesis about his involvement in the bombing. The
OIC asked that a message be sent to the divisions to request responses about
the proposed interview by mid-August, and that the divisions be told that “…if
we hold off any longer we run the risk of losing the interview opportunity,” since
Indian authorities could probably not hold Pushpinder Singh forever.607
In November 1987, Wheler wrote another memorandum about Pushpinder
Singh. He noted that his previous reports were aimed at showing that
Pushpinder “…could have knowledge of, or was actually involved in, the Air
India/Narita investigation and that he should be interviewed by the RCMP.” He
reviewed some of the responses provided by the divisions, including the O
Division response concurring that questions were raised and that Pushpinder
should be interviewed “…by experienced, knowledgeable Air India/Narita
investigators.” About the rather less enthusiastic E Division response indicating
that there was not enough information to support Wheler’s theory or to warrant
an investigation about Pushpinder’s potential involvement, Wheler noted that,
though nothing could be confirmed, enough questions and theories existed
which pointed strongly to Pushpinder’s involvement to make the matter worthy
of further investigation. He wrote that, obviously, if no effort was made to
investigate, then “…we can be assured that we will never uncover any factual/
605 Exhibit P-101 CAF0888, pp. 1-3.
606 Exhibit P-101 CAF0888, pp. 3-4.
607 Exhibit P-101 CAF0889.
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substantive information to either prove/disprove this theory.” He provided a
summary of some of the points he had raised in his earlier reports, and concluded
that Pushpinder Singh should be considered “…as a prime suspect in the Air
India/Narita bombings,” and that “…every effort should be made to have this
individual interviewed by the RCMP.” He added that enquiries still needed to be
made by the Division, noting in particular that the Khurana issue was “…still not
satisfactorily concluded” and that Khurana needed to be asked for additional
information and possibly given a polygraph test.608
Finally, in January 1988, an RCMP team travelled to India to interview a number of
individuals incarcerated there. The OIC of the HQ Task Force, Supt. Pat Cummins,
attended, accompanied by one E Division investigator and two O Division
investigators. The E Division member, Cpl. Solvason, noted that E Division interest
rested primarily on Pushpinder Singh, who was suspected of possible complicity
in the Air India bombing. When the interview was attempted, Pushpinder Singh
was told that the RCMP was interested in his knowledge of and/or responsibility
for the Air India bombing. He presented “…an apprehensive and very defensive
attitude.” According to the RCMP investigator, he was “…very evasive and noncommittal” and he denied certain points that were known to the RCMP to be
true. Pushpinder Singh stated that he was not in a position to inform on his
friends in Canada, and generally denied any involvement or responsibility in
the Air India bombing, indicating that he was willing to take a polygraph on
this issue. He was also adamant that he had no contact with Reyat and was not
present for any test explosion in Duncan.
Solvason noted that as the interview progressed, it became clear that Pushpinder
was “…attempting to entertain himself with the presence of the Canadian
officials in an effort to have conversation designed to enlighten himself on
the Canadian situation and the circumstances of his friends and associates in
Canada.” According to the investigator, Pushpinder prided himself “…on being
able to outsmart persons and gain intelligence from his interviewers.” After
an O Division investigator took over the interview, the officers concluded that
Pushpinder was simply attempting to obtain information without providing
any. Solvason noted that Pushpinder had “certainly lied” during the interview, as
well as refusing to answer questions and providing extremely general answers.
He concluded that Pushpinder was untruthful and “…far from candid” and
that it was clear that further discussions were “…not likely to be fruitful.” The
investigators put an end to the interview by telling Pushpinder that they would
not continue speaking to him unless he was prepared to be more candid and
truthful. Pushpinder simply reiterated his denials of responsibility. Interestingly,
Solvason reported that Pushpinder Singh “…appeared to be extremely upset at
the possibility of his voice being recorded.”
On January 5, 1988, Cummins, who was still in India, wrote a telex indicating
that nothing further could be gained from Pushpinder Singh and that “…any
further action will come from Canada.” Later in the month, HQ followed up
608 Exhibit P-101 CAF0890, pp. 1, 9, 11-12.
�Chapter II: RCMP Post-Bombing
on Pushpinder Singh’s offer to take a polygraph test about his involvement in
Air India. The RCMP LO in Delhi, however, was not enthusiastic. He wrote on
January 20th that Indian authorities likely did not have the proper equipment,
which meant that conducting the examination would require specific logistical
requirements from Canada. He indicated that he would only be prepared to
entertain the suggestion “…with the input of E Div investigators,” as it was his
view “…that Pushpinder would in all likelihood pass/pass this examination.”609
In its Final Submissions, the Attorney General of Canada indicated that, in
spite of the RCMP focus on Parmar and the BK, “…the RCMP also continued to
investigate those present at the meeting and conducted interviews with many
people on this point over the years.”610 In fact, after the January 1988 attempt
to interview Pushpinder Singh – which had received limited support from the E
Division Task Force in any event – the documents produced in this Inquiry show
that very little follow-up took place for the next seven years.
Wheler continued to push for the issue to be investigated, and E Division
continued to resist. In August 1988, Wheler wrote yet another memorandum
suggesting that “…enquiries be made in order to prove/disprove the theories
of [Pushpinder Singh]’s possible involvement in Air India/Narita.” He asked that
E Division be requested to conduct a series of additional enquiries, including
some about the Khurana meeting. He noted that many of these suggestions
had been made previously, but that there had been “…no indication that they
were acted upon or pursued.”611 HQ forwarded Wheler’s memorandum to the
Division and an E Division analyst, Cpl. Ed Drozda, prepared a report in response.
Drozda researched the Division files and concluded that Wheler’s suggestions
had either already been addressed or that further follow-up was not warranted
in light of existing information. He felt that only two out of Wheler’s ten
suggestions needed to be pursued.612 Further action relating specifically to the
Khurana information was not included on the list.
Wall also wrote another memorandum complaining about Wheler’s questions,
this time to the Division’s OIC of Federal Operations. Wall indicated that his
Section intended to proceed as suggested in Drozda’s report, “…given we have
appropriately in our view, responded to all other issues raised by Sgt. Wheler.”
He wrote that he again felt compelled to make observations about Wheler’s
most recent memorandum and “…previous like submissions.” He noted
that comparing Drozda’s report with Wheler’s “scenario” led him to conclude
that Wheler was “…not fully informed of all the details of a rather complex
investigation being conducted by this Division” and that, as a consequence of
Wheler’s “…scenarios which are too numerous to list, an unnecessary work load
is placed on our already limited resources.”613 Wall added:
609
610
611
612
613
Exhibit P-101 CAF0895.
Final Submissions of the Attorney General of Canada, Vol. I, para. 177.
Exhibit P-101 CAF0891, pp. 1, 7, 9.
Exhibit P-101 CAF0892, pp. 1, 3, 5.
Exhibit P-101 CAF0893.
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For the record we are not reluctant to undertake any viable
endeavour which might bring this investigation to a successful
conclusion, however, we do take issue with direction from Sgt.
Wheler on how to accomplish this task i.e. “questioning should
be done in a manner which would indicate that surveillance
followed Parmar” etc. etc.614
Wall concluded his memorandum by noting that he was “appalled” that Wheler’s
report had been distributed by HQ to three other divisions of the Force and to
CSIS, “an outside agency.”615
The OIC Federal Operations for E Division also wrote to HQ about the matter,
attaching Wall’s memorandum and indicating that he largely agreed with
Wall’s concerns. He stated that, while he did not like to “point fingers,” he was
“…cognizant that the approach taken by [Wheler] on this occasion creates an
unnecessary and unreasonable workload on my N.S.O.S. personnel.”616 He added
that, since every investigative step taken or rejected at the divisional level was
not the subject of a written report to HQ, it was “inconceivable” to him that any
HQ member “…could, with the file material available to him, presume to be in a
position to provide reasonable investigative oversight on the most intricate of
details.”617 He wrote:
While I applaud the apparent motivation of the author of the
critique, I find the result to be labour intensive, unproductive
and not in good taste. In my view, such probing questions
can only be of assistance and not detrimental if the questioner
is on site (here) acting with the support of this office and
cognizant of all relevant facts.618
Like Wall, he expressed concern that the HQ correspondence was distributed
outside the Force before it was received by the Division. He concluded that the
Division welcomed “…constructive suggestions and criticisms,” but expected
such queries “…to be considerate of existing effective investigative competence
and control mechanisms at this point and mindful of information already in
H.Q. N.S.O.T.F. possession.” He asked that in the future “…the effect of posing
questions of the quantity and quality of those alluded to above, be given due
consideration” by HQ.619
This response from the Division apparently put an end to Wheler’s attempts to
advance the Pushpinder Singh investigation, at least insofar as can be determined
614 Exhibit P-101 CAF0893.
615 Exhibit P-101 CAF0893.
616 Exhibit P-101 CAF0894, p. 1. N.S.O.S. was the National Security Offences Section, at the time, in charge
of the Air India investigation in E Division.
617 Exhibit P-101 CAF0894, p. 1 [Emphasis in original].
618 Exhibit P-101 CAF0894, p. 2 [Emphasis in original].
619 Exhibit P-101 CAF0894, p. 2.
�Chapter II: RCMP Post-Bombing
from the documentary record made available to this Commission. During the
following years, it appears that the only concrete step taken in pursuit of this
avenue of investigation was to obtain a formal statement from Khurana on July
30, 1990.620 Khurana was asked about what he had heard in the meeting, and
indicated that they were talking about politics in India when Manmohan Singh
asked Pushpinder Singh “What are you guys doing – nothing?” and Pushpinder
responded “Just wait two weeks and then you will see something happen.”
Khurana indicated that he believed that Pushpinder Singh was talking about
what he and “…the groups in India” were doing.
It was not until 1995, when the file was reviewed in preparation for the 10year anniversary of the bombing and a revived Task Force was eventually
constituted,621 that further investigation of Pushpinder Singh’s possible role
took place. An RCMP member who conducted a review of the Pushpinder Singh
file in early 1995 noted that “…there still appears to be a lot of controversy as
to what Pushpinder Singh did or did not say at Khurana’s house” and that “…
further work should be done to try and verify just what statements did occur at
the Khurana residence.”622
Later in 1995, requests were made by E Division for the RCMP LO in Delhi to
approach Pushpinder Singh again. The E Division Task Force noted at the
time that Pushpinder Singh had been described “…as being one of the most
important Sikh terrorists in the world.” In fact, immediately prior to his arrival in
Canada in 1985, CSIS information had suggested that someone important would
be coming from India and that this visit had “something to do” with Parmar,
who would eventually become the main suspect in the Air India investigation.
Solvason of the E Division Task Force felt that Pushpinder was a major player
in 1985, but a lesser player in the actual Air India bombing. Though he was
not viewed as one of the main conspirators, Solvason believed that Pushpinder
would “…have definite knowledge/evidence to contribute” and could be a “…
very important Crown witness” in any conspiracy prosecution.
Ultimately, Solvason interviewed Pushpinder Singh again during a trip to India,
this time with Cpl. Jim Cunningham. Pushpinder was reluctant to speak to the
investigators. He adamantly refused to have the conversation recorded and
attempted to leave when the officers tried to record it. He indicated that he
had no contact with Reyat or Parmar prior to the bombing, that he had no prior
knowledge of the bombing and that he did not participate in the planning or
commission of the crime, nor did he hear conversations about it ahead of time,
“…e.g., Denied any of the statements attributed to him on the Khurana tapes.”
Pushpinder Singh indicated that he was not willing to testify about any matters
of which he might have knowledge. Overall, the investigators noted that
Pushpinder was very vague in his statements and was believed to be “less than
forthright,” and that interviewing him was of little value since he was unwilling
620 See Exhibit P-101 CAD0180a.
621 See Chapter V (Post-bombing), The Overall Government Response to the Air India Bombing.
622 Exhibit P-101 CAF0882.
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to testify.623 They also felt that attempting to obtain a statement from him would
be of little use since the statement “…would be totally exculpatory.” For the time
being, they noted that no further action was being taken.
Generally, the RCMP members involved in the investigation felt that Pushpinder
Singh had more information than he admitted, but that, under the circumstances,
the Force had “…nothing really to hang over him in an attempt to illicit [sic]
his cooperation.” Should the Force gather significant new information on their
main suspects at the time (Bagri and his associates), it was noted that another
interview, this time with the use of a polygraph, could be considered.624 However,
the project was not carried out at the time. E Division investigators cautioned
that Pushpinder Singh might attempt “to manipulate things,” and that he was
clearly not forthcoming about information known to the RCMP, such as the
statements he had made during the Khurana meeting.
In March 1996, Cpl. Bart Blachford of the Air India Task Force contacted many
of the VPD members involved with the Khurana meeting and made various
inquiries, mostly about their recollection of the recording and about locating
the relevant VPD file. Blachford also requested yet another translation of the
Khurana tape, asking an RCMP member to review it and to compare it with
a pre-existing transcript and to look specifically for the conversation which
Khurana had reported.625 The Khurana information was then included in a 1996
affidavit in support of an authorization to intercept private communications. The
affidavit recounted the manner in which the recording of the meeting was made,
Khurana’s statement about the conversation he had heard and the unsuccessful
efforts to identify the conversation on the recording.626 The affidavit did not
seek to link this information with the intended targets of the intercept or to use
it to support the application.627 It appears that the information was included
only for the purpose of making full disclosure.
In testimony before the Inquiry, Insp. Lorne Schwartz, who was an investigator
with the renewed Air India Task Force in the late 1990s, discussed the investigation
of Lakhbir Singh Brar which followed the receipt of information about the
purported Parmar confession in 1997. Schwartz stated that he believed that,
even before 1997, there had been “…lots of investigation done in relation to
Mr. Brar to the ISYF, to any potential involvement that they may have had or
contributed to the Air India conspiracy and bombing.” He did not, however,
provide details of the investigative steps that had been taken. Schwartz was
also under the impression that there had been a lengthy investigation by the
RCMP to identify those who were present at the Khurana meeting, but again
could provide no details and was not aware whether Lakhbir Singh was “…
purported to have been there or not.”628
623
624
625
626
627
628
Exhibit P-101 CAF0883, p. 1.
Exhibit P-101 CAF0883, p. 1.
Exhibit P-391, document 208 (Public Production # 3341), p. 4.
Exhibit P-101 CAD0180a.
See, generally, Exhibit P-101 CAD0180.
Testimony of Lorne Schwartz, vol. 51, September 24, 2007, pp. 6345-6346, 6359.
�Chapter II: RCMP Post-Bombing
In June 1997, Schwartz and Cpl. Doug Best had interviewed Pushpinder Singh
to ask about the Khurana information. Pushpinder Singh explained that he
had been taken to Khurana’s residence by Lakhbir Singh Brar, and that one
of the reasons he was invited was because Khurana had two daughters and
Pushpinder Singh was an eligible bachelor at the time. Pushpinder recalled that
Manmohan Singh was present at the meeting. He acknowledged that he might
have made a comment during the meeting about waiting two weeks to see
something happen, but was adamant that he was not referring to Air India. He
explained that he would have been referring to the state of affairs in India and
the Punjab and that, as this was an emotional time, he might have simply made
the comment in an incensed state of emotion. The investigators noted that the
description of the meeting provided by Pushpinder Singh was consistent with
the description Manmohan Singh had previously provided to the RCMP.629
During a subsequent interview with the RCMP, Pushpinder Singh indicated that
he may have met Reyat at a gurdwara in Duncan at some point. He reiterated
that the ISYF was not involved in the Air India bombing. He also continued to
deny having had any prior knowledge of the conspiracy.
In 2005, the RCMP advised the Hon. Bob Rae that, despite having extensively
investigated the Khurana information, the Force had not been able to
corroborate the “wait two weeks” statement made by Pushpinder Singh, or his
association with Parmar or other Air India bombing associates.630 In 2008, the
Attorney General of Canada, acting on behalf of the RCMP (as well as all other
government agencies involved), advised in its Final Submissions to the Inquiry
that the Khurana information had been “…thoroughly investigated over the
years” and that no connection to the Air India bombing “…has in any way been
substantiated.”631
Conclusion
The Khurana information, signalling as it did that the leader of an important
Sikh extremist organization had indicated two weeks before the bombing that
something would be done in two weeks, was clearly a matter that had to be
investigated once the bombing occurred, as was recognized by all of the actors
involved at the time. The information was especially significant in light of the
possible connections between the organization it implicated – the ISYF – and
the main Air India suspects – Parmar and the BK, including Reyat and Bagri.
Yet, the follow-up investigation conducted by the RCMP was plagued by an
exaggerated focus on the recording of the meeting (despite the availability of a
reliable source who had reported the information before the bombing); by a lack
of meaningful cooperation with the police force that had originally obtained
the information; by an early re-orientation away from the ISYF members present
at the meeting; and by a strong resistance at E Division to HQ suggestions that
the matter be pursued further.
629 Exhibit P-391, document 209 (Public Production # 3342), p. 3.
630 Exhibit P-101 CAA1099, p. 3.
631 Final Submissions of the Attorney General of Canada, Vol. I, para. 177.
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The failure to pursue interviews with Lakhbir Singh Brar as a witness or suspect
in the Air India investigation until 2001, and the fact that this was only done
in response to the purported Parmar confession information, provides an
indication of the comparatively low priority which was accorded to the followup investigation of the Khurana information after the focus of the investigation
was re-assessed in August 1985. Information that did not directly implicate the
known BK member suspects was viewed as “alternate” to the main theory of the
case. This may have impacted the vigour with which the Khurana information
was pursued, in the same manner as it may have impacted the follow-up
investigation of the purported Parmar confession.
�VOLUME TWO
PART 2: POST-BOMBING INVESTIGATION AND RESPONSE
CHAPTER III: CSIS POST-BOMBING
3.0 The CSIS Investigation
Introduction
Following the bombing of Air India Flight 182, CSIS launched a full-scale
intelligence investigation. While the stated priority was an investigation into
Sikh extremism with the aim of preventing the next “Air India,” the investigation
could not avoid overlapping with the RCMP’s criminal investigation of the
bombing. CSIS at times took an over-expansive view of its mandate, which
actually led it to investigate the Air India bombing – ostensibly, as part of its
intelligence probe and, in some cases, to pursue clearly criminal leads as part
of this work.
Because of CSIS’s approach to information sharing and because of its methods for
gathering and preserving information1 – which often impaired the admissibility
of the information in court proceedings – CSIS’s heavy involvement in the Air
India investigation resulted in the loss of potential evidence for the criminal
investigation. The CSIS methods, in particular, the destruction of the Parmar
intercepts, as well as of the notes and recordings of interviews with an individual
who became an important witness, gave rise to findings in the Malik and Bagri
trial that the Charter rights of the accused had been violated.2 In the end, these
findings did not have an effect on the outcome of the prosecution, because
the accused were acquitted for other reasons.3 The main prosecution witnesses
were not found sufficiently credible to convince the trial judge of the accused’s
guilt beyond a reasonable doubt.
The CSIS Air India Task Force
In the months following the bombing, a CSIS Air India Task Force was formed.
CSIS increased its resources devoted to the investigation of Sikh extremism and
began to investigate many issues closely connected to the bombing.
CSIS investigator Ray Kobzey returned from his leave on the evening of June 22,
1985. He woke up the next morning unaware of the bombing and placed a call
1
2
3
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation
and Section 4.3 (Post-bombing), The Preservation of CSIS “Evidence.”
See Section 4.4.2 (Post-bombing), The Air India Trial.
The main prosecution witnesses were not found sufficiently credible to convince the trial judge of the
accused’s guilt beyond a reasonable doubt.
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Volume Two: Part 2: Post-Bombing Investigation and Response
to his partner, David Ayre, to find out what had happened while he was away.
Ayre’s wife answered the phone and advised Kobzey that Ayre was in the office,
which was unusual for a Sunday. Ayre’s wife asked Kobzey if he had heard the
news:
I said, “Heard what?” and she said, “The plane, it went down.”
I said, “What plane?” and she said, “Air India,” and my reply to
that was, “That [expletive] Parmar, he did it, they did it”; and
that was my gut instinct….4
Kobzey hurried into CSIS which was already in a “…state of intense operational
activity.” He was immediately assigned to conduct interviews and to brief the
other investigators, who had been reassigned from other units. CSIS launched
into a full-blown operational response to the bombing.5
CSIS HQ Post-Bombing Organization
At CSIS HQ, Chris Scowen was the de facto Deputy Director General CT, a
position that was formalized in August 1985. Scowen immediately became
the operational head of the CSIS investigation at HQ.6 Mel Deschenes, the
DG CT, “…did not have direct involvement with the investigational or analytical
activities,” nor did he have “…any direct dealings with the Region on the Parmar
investigation.” His responsibilities were limited to oversight and “adherence to
policy” with respect to the Air India and Parmar investigation.7 Glen Gartshore,
head of the HQ Sikh Desk, was also involved in the early part of the investigation.
He testified that the Desk tasked the regions, particularly BC and Toronto,
to provide investigative leads that could then be given to the RCMP.8 In the
aftermath of the bombing, Gartshore travelled to India on July 11th returning
July 22nd, following which he commenced three weeks of annual leave. Shortly
thereafter, on September 3, 1985, he was transferred to the Middle East
Section.9
In the days and weeks following the bombing, there were frequent meetings
at a very senior level within the Government of Canada. CSIS prepared a brief
on Sikh extremism for Prime Minister Brian Mulroney on June 28th.10 Scowen
became the point person for information flowing in from the regions concerning
the investigations as well as for cooperation between CSIS and the RCMP.
Scowen would brief Archie Barr, Deputy Director of Operations at CSIS HQ, daily
at 8:30 AM regarding developments in the CSIS investigation. This allowed Barr
to be up-to-date with the latest developments when he attended the daily 9 AM
meetings at the Privy Council Office convened by J.A. (“Fred”) Doucet, the Prime
Minister’s Chief of Staff.11
4
5
6
7
8
9
10
11
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3812.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3812-3813.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6118.
Exhibit P-101 CAD0157, p. 4.
Testimony of Glen Gartshore, vol. 31, May 22, 2007, p. 3547.
Exhibit P-101 CAD0144, p. 2.
Exhibit P-101 CAB0373.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6130-6131, 6133-6135.
�Chapter III: CSIS Post-Bombing
BC Region Post-Bombing Organization and Task Force
At the regional level, Randy Claxton, the BC Region DG, immediately realigned
the CT section, with the Sikh interest area becoming a separate operational
unit demanding high priority.12 Claxton ordered the creation of a CSIS Task
Force and placed Bob Smith in charge. Smith was responsible for coordinating
and directing the activities of the Task Force and for reviewing, evaluating
and disseminating intelligence at the regional level. Smith was to keep Ken
Osborne, the regional Deputy Director General of Operations, fully informed,
and Osborne in turn would brief Claxton.13 Jim Francis, who had been Kobzey’s
and Ayre’s unit head in CT, was transferred and assigned on June 25th as the
CSIS liaison member interfacing with the RCMP.14
The CSIS Task Force was composed of an “expanded investigational team,”15
consisting of 13 local investigators, including BC Region CT Chief and Task Force
head Smith, investigators Kobzey, Ayre and Neil Eshleman, and Francis, the CSIS
liaison officer to the RCMP Task Force.16 The CSIS Task Force worked out of the
Operations Centre and a direct line to the RCMP was set up.17 In addition to
Parmar, five additional CSIS targets were quickly established, including Hardial
Singh Johal and Surjan Singh Gill, though, notably, Malik and Bagri were absent
from this initial list.
Kobzey and Ayre were a vital resource for the Task Force as “…they had most
of the knowledge between them and what was on file.”18 Responsibilities were
parceled out according to skills – community interviewing, source development,
and liaison with the RCMP and other departments.19
Task Force Interview Program
The CSIS Task Force was ordered to “…undertake a comprehensive interview
program of the East Indian communities throughout BC.”20 Ayre was the
coordinator and resource person for the community interview program.21 The
investigators were tasked with getting out into the Sikh community to capitalize
on the widespread shock and grief in order to get people to talk to them. Smith
described CSIS’s use of the bombings as “a door opener,” with investigators
projecting the image that they were investigating the bombings. While CSIS
hoped to gain new sources concerning the Sikh extremist community, Smith
later said that “…the interviews didn’t produce anything.” In almost all cases,
copies of the intelligence reports produced from interviews were provided to
the CSIS Liaison Officer for transmission to the RCMP.22
12
13
14
15
16
17
18
19
20
21
22
Exhibit P-101 CAD0136, p. 3.
Exhibit P-101 CAD0139, p. 4.
Exhibit P-101 CAD0136, p. 3.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9376-9377.
Exhibit P-101 CAA0253, p. 2.
Exhibit P-101 CAD0127, p. 18.
Exhibit P-101 CAD0130, pp. 4-5.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9376-9377.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9376-9377.
Exhibit P-101 CAD0138, p. 3.
Exhibit P-101 CAD0130, pp. 4-6.
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Volume Two: Part 2: Post-Bombing Investigation and Response
Task Force Warrant Writing and Research
Osborne quickly received approval for the formation of a warrant application
and file review team within the Task Force consisting of five people including
Kobzey and John Stevenson.23 This team completed six affidavits for intercept
warrants by July and more throughout the summer. Stevenson testified that
selection of targets was based on Kobzey’s knowledge of and expertise in Sikh
extremism. Kobzey chose targets based on his belief about who would produce
the most intelligence and who would be connected to what was going on in the
Sikh extremism milieu. To this end, Stevenson wrote three affidavits, including
one with respect to Ajaib Singh Bagri and one with respect to Surjan Singh Gill.24
Kobzey was also instrumental in the creation and supervision of a research unit
“…undertaking projects directly relating to the Narita and Air India incidents.”
Because of his involvement in the warrant writing process and with the research
unit, Kobzey terminated his direct participation in the active investigation a few
days after the bombing.25
In July 1985, when the first post-bombing intercepts were implemented,
investigators who had previously been doing community interviews were
instructed to review the intercept product and prepare reports. Copies of those
reports were, in most cases, sent to the RCMP, but in an edited form.26
The new warrant applications and intercepts were in addition to the technical
intercept already in place against Parmar. CSIS immediately considered Parmar
to be a key suspect in the bombing.27 Jack Hooper testified that, soon after the
bombing, CSIS investigators from BC Region “…had a very good sense that Air
India and Narita were the product of a conspiracy by a number of people” and
that they were fairly confident they knew the identities of the conspirators.28
The Parmar Intercept
CSIS continued its technical intercept of Parmar after the bombing. A large
portion of the pre-bombing intercepts had yet to be listened to. Kobzey did not
listen to the tapes, though he did review some of the notes of the transcribers
prior to being transferred to warrant writing and research duties with the CSIS
Task Force. Ayre was the investigator responsible for “…supervision of the
intelligence product” following the bombing. Other CSIS investigators would
also review material and transcribers’ logs in order to assist in the “…conduct
of the planning of our interview program and later on in any research that was
necessary to obtain additional warrants.”29
23
24
25
26
27
28
29
Exhibit P-101 CAB0495, p. 4; Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7651.
Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7651-7652.
Exhibit P-101 CAD0140, p. 6.
Exhibit P-101 CAD0130, pp. 4-5; See, generally, Section 4.1 (Post-bombing), Information Sharing and
Cooperation in the Air India Investigation.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3812; Testimony of Jack Hooper, vol. 50, September
21, 2007, p. 6210.
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6209.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3839-3842.
�Chapter III: CSIS Post-Bombing
HQ had no involvement in reviewing tapes. That was a local responsibility.
CSIS HQ never accessed raw product, such as the tapes, transcriber logs and
translator notes, and only reviewed intelligence officers’ reports written on the
basis of intercepts.30
Toronto Region Investigation
The Toronto Region had an ongoing Sikh extremism investigation at the time of
the bombing. Although the focus of the Air India investigation was in Vancouver,
some of the regional differences in approach are worth noting.
The RCMP, the Metropolitan Toronto Police and Peel Regional Police (who are
the police of jurisdiction for the Toronto International Airport) created a 20person joint forces unit named “Organza.”31 CSIS Toronto Region met daily with
Organza, communicating results to CSIS HQ through a daily situation report.32
CSIS Toronto stated that the purpose of its involvement with Organza was
“…to avoid critical overlap of investigations which has been demonstrated
during recent similar joint investigations.”33 BC Region did not attempt a similar
integration.
CSIS Post-Bombing Resources
Immediately after the Air India and Narita bombings, extra resources were
devoted to the Sikh Desk at HQ. The analytical positions were increased,
though new analysts required training, and the reorganization itself consumed
considerable resources. Authorization was given to enhance technical resources
at the regional and field level. Along with the daily briefings provided to Barr,
special daily Task Force reporting was established. Joint meetings were held,
involving Russell Upton, Barr, Deschenes, Scowen and the section head of the
Sikh Desk. These special briefings were held to review daily situation reports
submitted by the field units and allowed HQ and the senior management the
ability to direct the course of the CSIS investigation effectively. Even with the
added resources and attention, CSIS’s greatest problem continued to be “…a
lack of trustworthy and reliable human sources,” who would have been able to
elaborate upon or to corroborate questionable conversations from intercepts.34
The Post-Task Force Period
A few months after its creation, on October 28, 1985, the CSIS Air India Task
Force was closed down and its members transferred back to their previous units
to continue their CSIS investigation.35 This signalled a shift in CSIS, away from
its original, perhaps misguided, attempt to assist the RCMP more directly in the
criminal investigation.
30
31
32
33
34
35
Exhibit P-101 CAD0153, p. 4.
Exhibit P-101 CAB0349, p. 1.
Exhibit P-101 CAA0264.
Exhibit P-101 CAB0349.
Exhibit P-101 CAD0154, pp. 9-10.
Exhibit P-101 CAA0379(i).
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A number of key changes marked the development of CSIS during this period.
In March 1986, James (“Jim”) Warren replaced Deschenes as the DG CT at HQ.36
Warren immediately set upon the task of conducting an internal investigation
into the erasure of the Parmar tapes. This was done both for CSIS HQ itself, to
understand whether the tapes had been erased as part of a cover-up, as well
as to respond to the questions being put to CSIS by the RCMP on behalf of
James Jardine. The issue of CSIS tape erasure would eventually play a central
role in the CSIS-RCMP relationship with regard to Air India, and is dealt with in
a separate section.37
The CSIS investigation was also profoundly affected by a separate incident, in
which Sikh extremists shot Indian diplomat Malkiat Singh Sidhu on Vancouver
Island on May 25, 1986. CSIS’s failure to prevent this terrorist act deeply affected
the Service and had a fundamental impact on its self-confidence as well as the
confidence of Government in it.38 CSIS BC Region had had an intercept that
warned of the coming attack on Sidhu, but had allowed a time lag over a
weekend in its translation/transcription. In addition, the investigators involved
had deemed the information “…not sufficiently important to be reported.”
These errors were blamed in part on the lack of clear policies.39
Changes to the CSIS Sikh Extremism Investigations
After the bombing, Sikh extremism remained the number one priority at CSIS
for quite some time. In 1986, CSIS began making some changes to the CSIS
HQ Sikh Desk, creating three desks under the umbrella of the Sikh Desk, each
devoted to investigating one of: the Babbar Khalsa, the ISYF and the World Sikh
Organization. Initially the BK desk and the ISYF desk each had five or six CSIS
intelligence officers assigned to them, whereas the WSO desk had only four.
Within two years, CSIS determined that the WSO “…simply weren’t a threat,” and
those intelligence officers were reassigned and the WSO desk discontinued.40 In
1990, Bill Turner was promoted to head of the Sikh Desk and amalgamated the
BK and ISYF desks back into a single Sikh extremism desk.
In the regions, Montreal, Toronto and Vancouver each had dedicated desks
investigating Sikh extremism during the post-bombing era. Only the desk in
Vancouver mirrored the HQ desk, with a split between the BK unit and the ISYF
unit, while the others had a single Sikh extremism desk that handled all of the
investigations. Other regions also pursued Sikh extremism investigations, to a
lesser extent.41
36
37
38
39
40
41
Testimony of James Warren, vol. 48, September 19, 2007, p. 5816.
The issue of the Parmar tape erasure is covered in depth in Section 4.3.1 (Post-bombing), Tape Erasure.
The lengthy debates between Jardine and Warren are covered in Section 4.4.1 (Post-bombing), The
Reyat Trial and the BC Crown Prosecutor Perspective.
See Section 1.6 (Post-bombing), Atwal Warrant Source.
Exhibit P-101 CAB0902, p. 95.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8272, 8286.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8273.
�Chapter III: CSIS Post-Bombing
In 1986, the Vancouver desk had four investigators and a supervisor for the BK
unit and a similar arrangement for the ISYF unit. The BK unit’s number one target
was Talwinder Singh Parmar, and not far behind in importance was Ajaib Singh
Bagri.42 CSIS investigator William Dean (“Willie”) Laurie worked at the BK desk
between 1986 and 1989. During that time his targets included Parmar, Bagri,
and Malik. Malik’s name was found on a list of individuals who had donated
money to the BK, but who were not necessarily members of the organization.
Based on the intelligence in its possession, CSIS concluded that Malik was a BK
member and the BC Region obtained operational priority to target him, even
if others on the list of donors to the BK were not considered members and not
targeted in the same manner.43
In other parts of the country, Toronto had eight investigators working on Sikh
extremism and Montreal had four or five. In comparison, Edmonton, Calgary and
Winnipeg each had one or two investigators dealing with Sikh extremism.44
Starting in 1986, CSIS expanded its investigation to include other groups, such
as the Khalistani Commando Force, the Khalistani Liberation Force, the Khalistan
National Army and the Dusth Sodh Commando Force. At varying times one
or another of these groups may have taken priority but, throughout, Talwinder
Singh Parmar always remained a high priority target.45
Intercepts
Warrant affidavits continued to be written by the CSIS HQ desk, based on
information and intelligence developed from the regions. Resource constraints
continued to be a concern but, despite this, CSIS continued to obtain warrants
on key targets such as Parmar on an individual basis, due to the possibility of
criminal proceedings.46
Resource considerations did, however, affect the warrant process on some
occasions. Arrests by the RCMP could affect CSIS decisions on warrant coverage.
In 1986, Parmar’s son, Jaswinder Singh Parmar, was arrested in connection with
the Hamilton plot. While he was in police custody, the CSIS warrant expired.
CSIS did not renew its warrant because he was not considered to be a threat
while in pre-trial custody and CSIS could therefore not justify their warrant.
Once he was released, however, CSIS was able to get an intercept up on him
within a day or two.47
While police custody may have altered the availability of a CSIS warrant for
a target, leaving the country did not. In 1988, Parmar left Canada. However,
42
43
44
45
46
47
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7397, 7529.
Exhibit P-244, vol. 3 (January 6, 2004 Transcript, Day 66), pp. 5-6.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8273-8274.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8287.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8277-8278, 8286-8289.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8285-8286.
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he was still the leader of the BK, and was in regular communication with BK
members in Canada, and was therefore “…still a factor” according to Turner. In
that case, CSIS did not diminish the resources directed against Parmar.48
A further change that took place was in the location of the translators and their
contact with the various desks. In 1985, the translators constituted their own
separate unit. Ten years later, in 1995-1996, the translators were moved into
the Desk Units with which they were working. Turner testified that this change
was “absolutely” beneficial, since working alongside the investigators enhanced
the ease of communication.49 One may conclude that the arrangements for the
previous decade were suboptimal.
Continuing Difficulties in Defining CSIS’s Role in Investigating the Air
India Bombing
From the day of the Air India bombing, there have been persistent claims
that CSIS was trying to “solve” the case, in spite of its new mandate and at the
expense of cooperation with the RCMP. Robert (“Bob”) Burgoyne specifically
testified that at an HQ daily briefing, Archie Barr said: “We’re going to solve Air
India.” Though Burgoyne qualified this by adding that it was in the context of
the recognition of CSIS’s greater knowledge base and of the fact that it would
allow CSIS to assist the police in their investigation, the implication remains.50
Many feel CSIS’s goal was to legitimize the new organization that had failed to
prevent a bombing by solving the case itself.
Lending credence to this belief is the testimony of former VPD Detective Don
McLean, who worked on the Indo-Canadian Liaison Team as a constable in 1985,
and who was asked for assistance by both CSIS and the RCMP in the immediate
post-bombing period. In his view, CSIS was attempting to solve the crime and
trying to identify the parties involved in the bombing. Though he indicated
that CSIS was investigating terrorism across Canada for national intelligence
purposes, McLean felt that such activities were akin to a criminal investigation
to the extent that they were trying to solve the crime.51
Turner stated that, in the summer of 1985, the roles and responsibilities of both
CSIS and the RCMP were not yet established. As a result, in his view, there were
CSIS members who were “…asking questions quite improperly about Air India,”
a criminal investigation outside of the CSIS mandate.52 This sort of questioning
may have contributed to the impression that CSIS was trying to solve the case.
Turner testified that there was a perception among members of CSIS that if
Kobzey, Ayre, Eshleman and Laurie had been allowed to step outside their roles
as intelligence officers and to move into the criminal sphere, they would have
been able to solve the case. In particular, it was felt that they would have been
able to identify the four or five conspirators, including Mr. X and the persons
48
49
50
51
52
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8288-8289.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8291-8292.
Testimony of Bob Burgoyne, vol. 31, May 22, 2007, pp. 3486-3487.
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4160-4161.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8292.
�Chapter III: CSIS Post-Bombing
responsible for purchasing the plane tickets and checking in the bags, whose
identities were unknown during the first two to three weeks. Turner stated that
there was not a rivalry as to who could solve the case first, but that some CSIS
operatives did hope to get the identities of those involved and pass them to the
RCMP.53
Hooper testified that the concern for CSIS was to continue to examine Sikh
extremism in order to identify other individuals and other plots that posed
threats to the security of Canada.54 He stated, though, that CSIS did have “…a
head start over the RCMP” in terms of their understanding and knowledge of
the Sikh extremism movement and its key players. He explained that CSIS felt it
was in a “…position to assist the RCMP in arriving at some appreciation for what
might have happened in Air India and Narita.”55
Similarly, Stevenson testified that CSIS was not necessarily looking into the
bombing itself but was trying to look into individuals “…who may have been
associated with it” and who were involved in “…matters of Sikh extremism.”56 It
is significant that documentation from the Task Force states that the object of
the CSIS Task Force was to “…develop intelligence on local Sikh activity, gather
information on the bombing incidents and develop human sources for future
needs.”57 Certainly from the perspective of the authors of the memorandum,
which included Bob Smith, Chief of the CSIS Task Force, and Ken Osborne, the
DDG Operations, CSIS was indeed gathering information on the bombing
incidents themselves.58
Osborne later stated that the CSIS community interview program was undertaken
because it was felt that there was “…information out in the community about
the incident itself and about future threats.” Smith, for his part, stated that the
aim of the interview program was to produce sources, not evidence or even
information in relation to Air India – an orientation that would clearly impact
on the criminal investigation. Smith did add that investigators were repeatedly
reminded that they were not investigating a crime, but instead were to advance
CSIS’s ability to investigate the Sikh extremism.59
Overall, it was difficult to separate the investigation of Sikh extremism from
the bombing of Air India. CSIS did have a continuing responsibility to gather
intelligence, and it was felt that information relating to Air India was helpful in
gathering intelligence on what could happen next.60
To add to the confusion, CSIS HQ seemed to have a different view than that of
BC Region as to what they should be investigating. In August, Scowen wrote to
the RCMP expressing his view of what CSIS was investigating:
53
54
55
56
57
58
59
60
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8294-8296.
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6210.
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6210-6211.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7652.
Exhibit P-101 CAA0253, p. 2.
Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7651-7653.
Exhibit P-101 CAD0130, p. 5.
Exhibit P-101 CAD0130, p. 5.
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The CSIS interview program goes to great lengths to avoid
interfering with individuals who may have “evidence” to
impart, i.e. those who could be classified as suspects. CSIS has
concentrated on the periphery of the East Indian community
and has reported to the task force on each of the 65 plus
interviews conducted.61
Coming from the man who was directing the investigation from HQ, this
statement is notable. The definition of the “periphery” implicit in this message
appears to refer to individuals who are not suspected of involvement in the
bombings. Obviously, such individuals could nevertheless possess evidence
central to the criminal investigation. If the only criterion used by CSIS to ensure
that its operations remained “on the periphery” was whether the Service was
interviewing actual known suspects, the potential for overlap with the RCMP
investigation would clearly be high.
In addition, while it was true that CSIS had passed intelligence reports based
on community interviews to the RCMP, it was not accurate to state that CSIS
had restricted itself to “the periphery,” even if one were to accept the generous
definition of the term put forward by HQ. There was no attempt to interview
Parmar but, within days of the bombing, CSIS had interviewed or attempted to
interview Surjan Singh Gill and Ajaib Singh Bagri, two persons who were viewed
as potential conspirators in the Air India bombing early on and for whom CSIS
was also writing intercept warrant applications.62
Eshleman not only admitted that some contacts made in the days following
the bombing were likely inappropriate, in that they involved individuals who
were or would soon become key Air India suspects, but added that, even aside
from those early contacts, the CSIS effort was not, in fact, “on the periphery”.
Eshleman understood that limiting CSIS’s activities to “non-suspects” was not
the equivalent of focusing “on the periphery”:
…the BK which was responsible for this incident had a number
of people that we would be interested in dealing with. They
were perhaps close associates of Mr. Parmar, Mr. Bagri. And I
don’t think we were hesitant to interview those people who
may offer close information, or if they were perhaps relatively
close associates. Certainly, they weren’t on the periphery of it.63
The confusion and the difficulties in defining CSIS’s role in connection with the
bombing continued well after the summer of 1985. Laurie explained that the
purpose of his work in the BK unit between 1986 and 1989 was to gather security
intelligence information about the BK, but also, if possible, to obtain information
about the bombing of Air India Flight 182 as well, to ensure that if any other
similar acts were planned, CSIS would be able to gather enough information
61
62
63
Exhibit P-101 CAA0299(i), p. 2.
Exhibit P-101 CAA0261, p. 4; Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7651.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9393-9394.
�Chapter III: CSIS Post-Bombing
to prevent them. Laurie testified that his overall workload during this time was
very heavy. Part of the reason for the intensity and pace of the work was that
there was an imperative, at least at some points, to get information to help solve
the crime.64
According to Laurie, the instructions CSIS provided to its investigators about
their role in relation to the criminal investigation into the Air India bombing
were inconsistent and changed frequently:
…sometimes it would be an instruction to be aggressive
and do what you can, and then the next day it would be
quite the opposite and it would be no, we’re contaminating
an investigation, so do not do that today. We are getting
clarification and we will have to see until tomorrow. And over a
period of months, the message was very unclear.65
Laurie explained that these instructions reflected directions his supervisors in
the BC Region were receiving from Ottawa HQ. The changes in position affected
his work and that of his superiors in BC. They had objectives to accomplish and
this was “…practically impossible when someone tells you to stop.” He explained
that the BC Region investigators did follow each conflicting directive as it was
issued, in spite of the frustration that this caused.66
In January 1987, the Minister directed that CSIS cooperate with the RCMP
“…to coordinate the preparation of evidence which would be used for court
purposes” (the Kelleher Directive),67 and the CSIS Director indicated that he had
directed that “…the full cooperation of the Service be placed at the disposal of
the RCMP in this regard.” The Director also promised to provide a chronology
of relevant events.68 The Kelleher Directive and the subsequent transmission of
this chronology to the RCMP would symbolically mark the end of an era in the
CSIS investigation of the Air India bombing.
One month later Barr wrote a crucial memo to all regions in CSIS signifying this
shift at CSIS. This memo reinforced the CSIS mandate and appears intended to
signal CSIS’s exit from its previous equivocal role in the Air India investigation:
Due to some excellent investigation and analysis by the
Service, important leads have recently been developed
relating to the Air India crash flight 182. These leads have been
passed to the RCMP and to our Minister. Additionally, the
Service is attempting to develop a chronological timetable
of the events and the actions of certain key suspects based
64
65
66
67
68
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7395, 7406-7407.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7398.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7398-7399, 7528-7529.
Exhibit P-101 CAD0095, pp. 1-2; See, generally, Section 4.1 (Post-bombing), Information Sharing and
Cooperation in the Air India Investigation.
Exhibit P-101 CAD0094, p. 2.
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upon the disclosures of Service [redacted] and a detailed
and thorough analysis of information within our data base.
This will be completed and in the hands of the RCMP by early
March at which point, it is fully expected that the conduct
of the investigation will move into the hands of the RCMP.…
[Emphasis added]
I don’t need to remind you that the events that unfolded
over the Irish Sea and at Narita Airport in Japan on 1985 06
23, reflect one of the most callous and heinous crimes in the
history of Canada. There can be no higher priority for the law
enforcement authorities of this country and, incidently [sic], for
this Service, than bringing the persons who perpetrated these
crimes, before the courts. While information developed by the
Service has been of critical importance in helping the RCMP
understand how the crime was committed and in identifying
suspects, we have not uncovered evidence sufficient to
support convictions. Indeed, it is not the role of the Service to
do so. This is clearly the responsibility of the RCMP. The Service
can, however, continue to be of assistance to the RCMP by
providing information that may shed new light on this crime
and by providing a comprehensive data base against which
to test information developed by the police. The Minister has
directed that the Service and the RCMP cooperate very closely
in this regard and I would ask every member of the Service to
be guided accordingly in assuring that the full cooperation of
the Service is at the disposal of the RCMP in what both we and
the RCMP share as the only satisfactory outcome of this matter;
the conviction of those responsible.69
Though there would be more developments in the Air India case as a result
of CSIS activity, most notably CSIS source development work with Ms. E and
Ms. D, the bulk of its work in relation to the bombing had by this point been
concluded. CSIS moved on to focusing on what Sikh extremists might be up to
in the future, and its more overt investigation of the Air India bombing was, for
the most part, at an end.
Yet, the confusion in the instructions received continued after this period.
When Ms. E provided information clearly relevant to the bombing in September
1987, there was hesitation at CSIS about whether the information needed to be
passed on to the RCMP right away or whether CSIS could continue to develop it
on its own for a time.70
The confusion was still apparent in January 1988 when the RCMP requested CSIS
assistance before arresting Reyat.71 The CSIS BC Region sent a message to CSIS
69
70
71
Exhibit P-101 CAB0711, pp. 1-2.
See Section 1.3 (Post-bombing), Ms. E.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
�Chapter III: CSIS Post-Bombing
HQ and to all CSIS regions and districts to inquire about past instructions it had
received from HQ indicating that “…CSIS participation in the investigation of Air
India is restricted to providing investigative leads to the RCMP should they be
developed during the course of other [CSIS] investigation” and stating that, “…in
essence, CSIS is no longer involved in the Air India investigation, but rather back
to our mandated role of investigating Sikh terrorist activities.” The Region was
concerned because, with Reyat’s arrest, information about the Air India bombing
might be obtained and, depending on how aggressively the Region pursued its
investigations, it might well be obtained by CSIS and not by the RCMP.72 Despite
HQ’s attempts to define and redefine CSIS’s role in connection with Air India, the
Region was left with little practical guidance on how to conduct its operations
when it was confronted with the overlap between its investigations and the
RCMP criminal investigation. The Region also requested clarification about the
steps to take in cases where it had provided investigative leads that were not
exhaustively followed up by the RCMP.73
Laurie, who authored this message, explained that what really brought about
the request from BC Region was the confusion created in the field by the lack of
consistent tasking from CSIS HQ:
If one of the tasks of your inquiry is to measure whether or
not there is consistent tasking of us, or whether or not we in
the field became confused about whether they wanted us to
do something or did not, then this inquiry from the field to
Headquarters which is forwarded with my supervisor could
be evidence that it was inconsistent because it looks like the
Chief of Counter Terrorism also put a forwarding minute on
that and it – we’ve been told “yes” and then we’ve been told
“no” and we’ve been told “yes” and we’ve been told “no”. Now
we have an opportunity, because it appears that the police are
going to be doing some arrests and for those of you who don’t
know it, the police are going to be doing arrests then a lot of
the people we’re watching are going to have an impact; they’re
– they’re going to respond in some way; they’re going to be
talking to their friends and it’s a time where the CSIS need to
be busy. So this is an inquiry of our Headquarters saying, “Are
we a ‘yes’ or are we a ‘no’ today? Like tell us, are we assisting
these people with an investigation or do you want us to sit?
You tell us.”74 [Emphasis added]
The Chief of the Counter Terrorism Section of the Region commented that the
BC Region request for clarification was based on earlier discussions with the
72
73
74
Exhibit P-101 CAA0627(i), p. 4.
Exhibit P-101 CAA0627(i), p. 5; See, generally, Section 4.1 (Post-bombing), Information Sharing and
Cooperation in the Air India Investigation.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7526-7527.
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Region CT Unit Head and the HQ DG CT.75 Generally, the Region felt that it was
in a difficult position, because it had refrained from pursuing certain avenues of
investigation because of instructions to stay away from the criminal investigation
and to avoid contaminating it.76
The only response provided by CSIS HQ to Laurie’s message that could be
identified in the documents provided to the Commission, was a memo sent
to all regions and districts, simply stating that the contents of the BC Region
message were “…not/not to be discussed with anyone outside the Service
under any circumstance.”77 An exception was made for the RCMP but, CSIS HQ
specified, “…ONLY/ONLY if the RCMP raises the matter first.”78
Conclusion
CSIS felt well-positioned to solve the Air India bombing crime, as its agents had
the skill and experience in national security investigations, as well as knowledge
about the key suspects, all of which the RCMP lacked. In effect, CSIS had a
head start on the RCMP, but did not have the mandate to pursue a criminal
investigation. CSIS immediately knew the key suspects, and some felt that if
they had had the mandate, they could have identified the remaining suspects.
At least some members of CSIS believed that what they should have been
investigating, from an intelligence point of view, was the bombings and not
just Sikh extremism. They hoped to either find the “smoking gun,” or to uncover
investigative leads that would allow the RCMP to close the case.
The parallel CSIS Air India Task Force was short-lived and terminated in October
1985. It is clear that, even after the Task Force was shut down and CSIS officially
redirected its efforts to preventing future acts, some CSIS individuals were still
trying to solve the Air India case. The directives issued by HQ were conflicting
and inadequate, and did not clarify the role which CSIS investigators were
expected to play in relation to the criminal investigation into the bombing.
While it is clear that CSIS personnel were at least at times attempting to
investigate the Air India bombing, it appears that, ironically, they did so by using
a full range of investigative means, but without regard to issues of evidence
collection. In fact, CSIS employees, both at the field and managerial levels,
seemed obsessed with ensuring that they did not retain evidence of any kind.79
This meant that the difficulties in defining CSIS’s role in relation to the criminal
investigation, which continued throughout the post-bombing period, would
by definition have an impact on the criminal investigation and on the eventual
prosecutions. Whenever CSIS got involved in collecting information relevant
75
76
77
78
79
Exhibit P-101 CAA0627(i), p. 6.
Exhibit P-101 CAA0627(i), p. 6. See, generally, Section 4.1 (Post-bombing), Information Sharing and
Cooperation in the Air India Investigation.
Exhibit P-101 CAA0628, p. 1. The redacted portions of this document contain identifying information
(such as file numbers) only and no substantive response to the BC Region enquiries.
Exhibit P-101 CAA0628, p. 2.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
�Chapter III: CSIS Post-Bombing
to solving the crime, difficulties would inevitably arise because of its inability
or unwillingness to collect, record and retain the information in a manner that
would not jeopardize its admissibility in court.
Though it may not have found the “smoking gun,” CSIS did indeed uncover
information that was eventually used at both the Reyat trial and, later, the
Malik and Bagri trial. But as Volume Three of this Report makes clear, the use
of intelligence in a criminal trial is a process fraught with difficulty. Indeed, the
process was long and difficult in the Air India case, and the need to use CSIS
information led to intensive negotiations and raised difficult legal issues.80 The
combined effect of the CSIS investigators’ desire to solve the case, the lack of
clear instructions from CSIS HQ, and the refusal by CSIS to apply any police-like
methods to its work, had a negative impact on the RCMP effort, particularly
when information uncovered by CSIS was either destroyed or not fully shared
with the RCMP in a timely fashion.
80
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation
and Section 4.4 (Post-bombing), CSIS Information in the Courtroom.
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�VOLUME TWO
PART 2: POST-BOMBING INVESTIGATION AND RESPONSE
CHAPTER IV: CSIS/RCMP INFORMATION SHARING
4.0 The Evolution of the CSIS/RCMP Memoranda of Understanding
The Memoranda of Understanding (MOUs), signed between the RCMP and
CSIS, are the central instruments used to define the nature of CSIS/RCMP
cooperation, especially in relation to the issue of information sharing. The aim
of an MOU is to provide additional clarity in defining the distinct mandates of
the two organizations, as well as to offer general guidance as to ways in which
the organizations need to, and should, share information.1
Professor Wesley Wark testified that, historically, RCMP/CSIS MOUs were
agreements made solely between these two agencies. There was “…nothing
built into them particularly that would provide for ministerial direction,” nor was
there any other support to make that agreement work,2 aside from a limited
conflict resolution role, which the agencies left to the Solicitor General in the
first MOU.3 Wark stated that the early MOUs reflected the reality that, generally,
the intricacies of CSIS/RCMP cooperation were left to CSIS and the RCMP to
work out on their own.4
The 1984 Memorandum of Understanding
On July 17, 1984, the RCMP and CSIS entered into their first MOU, consisting
of 17 separate agreements.5 The 1984 MOU was in place at the time of the Air
India bombing. The most important agreement, at least in relation to the Air
India investigation, was the one entitled “Transfer and Sharing of Information.”6
This MOU provided that, “…pursuant to section 12 of the CSIS Act,” CSIS “shall
provide” assessments or information to the RCMP respecting a number of RCMP
responsibilities, including the investigation of security offences and various
protective duties, as they became available or when they were specifically
requested.7 Section 12 of the CSIS Act8 is the general provision empowering CSIS
to collect and report to the Government of Canada information about threats to
the security of Canada.
1
2
3
4
5
6
7
8
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1465.
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1466.
Exhibit P-101 CAA0076, p. 4.
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1466.
Exhibit P-101 CAA0062.
Exhibit P-105, Tab 2; Exhibit P-101 CAA0076; Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1650.
Exhibit P-101 CAA0076, p. 2.
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23.
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Volume Two: Part 2: Post-Bombing Investigation and Response
The MOU further provided that, pursuant to section 19(2) of the CSIS Act, CSIS
“shall provide” information to the RCMP respecting the “…investigation and
enforcement of alleged security offences or the apprehension thereof,” as
well as with respect to certain indictable offences where the RCMP was the
police of jurisdiction.9 Section 19(2) is the provision specifying circumstances
under which CSIS is permitted to disclose the information it collects, including
disclosure as necessary for the performance of CSIS’s duties and functions, and
specifically including disclosure to peace officers of information relevant to
the investigation or prosecution of “…an alleged contravention to any law of
Canada.”10
There were debates between the agencies about the interpretation of the MOU,
and particularly the extent of the obligations that it imposed on CSIS.11 Section
19(2) of the CSIS Act provides that “…the Service may disclose information” in
the enumerated circumstances, leaving a legislated discretion as to whether
information would in fact be disclosed [Emphasis added]. In contrast, the MOU
used the word “shall” when describing the information that CSIS was to provide
to the RCMP.12 The RCMP interpreted the MOU as making CSIS disclosure
mandatory. According to then RCMP Deputy Commissioner of Operations,
Henry Jensen, who was involved in the discussions with CSIS leading up to the
MOU, the MOU imposed an obligation on CSIS to provide information to the
RCMP about security offences. Essentially, he viewed the MOU as converting
the discretion to share, conferred on CSIS by section 19 of the CSIS Act, into a
positive obligation that made sharing mandatory and regulated the manner in
which CSIS could exercise its discretion under the law.13 Jensen explained that
this was done pursuant to a Cabinet directive passed on through the Solicitor
General to the group who developed the MOU.14 CSIS disagreed and interpreted
section 19 as permitting CSIS to disclose, but leaving the final discretion in the
hands of the CSIS Director.
Other contentious issues related to the nature of the materials that CSIS had
agreed to provide under the MOU and the timing of disclosure. Jensen stated
that the obligations imposed on CSIS to provide information through the MOU
applied to both raw materials and analysis.15 CSIS, however, would often take
the position that access to raw materials would not be provided, and that only
the resulting information obtained had to be disclosed.16 Jensen also believed
that the MOU imposed an obligation on CSIS to provide information as soon
as it was available, in “real time”, when it was “live” and “fresh.”17 He stated that
this was meant to overcome the delay that could arise if CSIS waited until the
information was fully assessed and analyzed before passing it on, as this delay
9
10
11
12
13
14
15
16
17
Exhibit P-101 CAA0076, pp. 2-3.
Canadian Security Intelligence Service Act, S.C. 1984, c. 21, s. 19 (R.S.C. 1985, c. C-23, s. 12).
See Section 3.5.1 (Pre-bombing), CSIS/RCMP Relations and Information-Sharing Policies.
Exhibit P-101 CAA0076.
Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1651, 1654-1656, 1676-1677.
Exhibit P-101 CAA0059; Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5365-5366.
Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1651-1652, 1654.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1651, 1664.
�Chapter IV: CSIS/RCMP Information Sharing
would have been unacceptable to law enforcement.18 Again, however, CSIS did
not appear to share Jensen’s view, and it generally waited until the information
had been assessed in order to make a decision about whether or not it should
be passed to the RCMP.19
The MOU also made RCMP sharing with CSIS mandatory for information
relevant to CSIS’s role, in particular information “…relevant to activities that
may be suspected of constituting threats to the security of Canada.”20 Though
there would be complaints by CSIS about the RCMP’s failure to share some of its
information,21 there were no debates about the interpretation of the MOU itself
in this respect.
The MOU provided that neither agency would have an “unrestricted right of
access” to the operational records of the other, and that the agency receiving
information could not “…initiate action based on the information” without the
consent of the agency that provided it. One exception to this rule was joint
RCMP/CSIS operations, about which the 1984 MOU stipulated that, except for
source protection and third-party rule information, all operational information
acquired through the joint operation would be shared freely.22 This resulted in
CSIS taking a strong initial position against any joint operations with the RCMP
for fear of exposing its employees, methods and sources in a court procedure.23
This position made the 1984 MOU section on unrestricted sharing of information
in a joint operation context irrelevant in practice.
Finally, under the 1984 MOU, the Solicitor General was to be the final arbiter in
case of disputes between the agencies.24 The MOU provided that disagreements
respecting the sharing or use of information that could not be resolved between
the CSIS Director and the RCMP Commissioner were to be referred to the Solicitor
General for resolution.25
The 1984 MOU was meant to be the source of the cooperative principles upon
which further established procedures would be based. These procedures were to
be agreed upon by both CSIS and the RCMP.26 As of August 1986, however, it was
unclear what procedures had in fact been established to implement the MOU.27
In fact, in preparatory notes written in August 1986 for the Deputy Solicitor
General in advance of a meeting with RCMP Commissioner Simmonds and CSIS
Director Finn, key issues relating to the transfer of information between CSIS
and the RCMP were noted, including: “Is there a need for procedures to facilitate
timely CSIS disengagement from investigation and the transfer of information to
18
19
20
21
22
23
24
25
26
27
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5373.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Exhibit P-101 CAA0076, p. 3; Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1666.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Exhibit P-101 CAA0076, p. 4.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1659.
Exhibit P-101 CAA0076, p. 4.
Exhibit P-101 CAF0045, p. 3.
See, generally, Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India
Investigation.
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the RCMP to foreclose or limit the use of s. 36(1) and (2) of the Canada Evidence
Act?”28 Wark testified that the Minister of the day, Solicitor General Robert
Kaplan, correctly predicted that the MOU itself would be insufficient, and used
the associated ministerial directive to underpin the agreement.29
Despite the agreement and the directive, however, the inability to find a
solution to limit CSIS’s potential exposure in court, while still sharing sufficient
information with police, continued to plague the Service, and no doubt affected
its willingness to share information with the RCMP.
According to Wark, the MOU provided “doctrinal guidance” based on the
findings and recommendations of the McDonald Commission, the legislative
parameters of the CSIS Act, and “…essentially the political will of the day.” Though
he stated that there were no clear weaknesses and that there was nothing in
the agreement that struck him as inherently deficient, Wark concluded that
the 1984 MOU created a system that was “…overly rigid, that made sense in
theory, but wasn’t going to make sense at the end of the day.”30 Indeed, Jensen
testified that, according to the RCMP, the MOU did not function “…the way it
was intended,” especially with respect to the timely sharing of information.31
The problem, according to Wark, was that the MOU reflected an understandable
desire “…to rigidly separate the mandates of the RCMP and the Canadian Security
Intelligence Service,” based on the belief that intelligence and police work could
easily be distinguished from one another. The MOU lacked sensitivity to the fact
that the RCMP might need intelligence in order to properly fulfill its duties, or
that CSIS might require a “…significant understanding of law enforcement” to
communicate and share usefully with the RCMP.32
The 1986 Memorandum of Understanding
In November 1986, CSIS and the RCMP signed an all-encompassing MOU
covering 14 areas.33 This MOU replaced the 17 MOU agreements signed in 1984.34
Difficulties soon arose in implementing two areas of the new MOU: access by
CSIS to the CPIC database,35 and the transfer and sharing of information. Those
areas were targeted for renegotiation.36 In the meantime, CSIS and the RCMP
relied on another MOU, one that had been specifically developed for “Project
Colossal,” for the principles to guide the transfer and sharing of information in
relation to the Air India investigation.
28
29
30
31
32
33
34
35
36
Exhibit P-101 CAF0045, p. 4.
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1468.
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1469-1470.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5373.
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1469-1470.
Exhibit P-101 CAA0688.
Exhibit P-101 CAA0520, p. 1.
For a review of the debates surrounding access to CPIC, see Section 3.5.1 (Pre-bombing), CSIS/RCMP
Relations and Information-Sharing Policies.
Exhibit P-101 CAA0580.
�Chapter IV: CSIS/RCMP Information Sharing
The “Project Colossal” Memorandum of Understanding
In October 1986, CSIS and the RCMP signed a modified MOU on the transfer and
sharing of information.37 The MOU only applied to certain RCMP investigations,
collectively named “Project Colossal,” which related to the criminal investigation
of Sikh terrorism in Canada, including the Air India/Narita investigation.38
The agreement contained conditions, the first of which provided that the RCMP
would provide to the Minister progress reports on the Task Force investigations.
CSIS was to advise the Minister “on issues that arise” only on an “as required”
basis, with a requirement to consult with the RCMP first if the issue also was of
concern to the RCMP.39
The MOU stated that, when targets were shared, the RCMP would attempt
to obtain its own wiretap authorizations under the Criminal Code in order
to protect CSIS sources and methodology and to minimize the risk of CSIS
involvement in a court process. If, however, the RCMP required CSIS information
for judicial purposes, the RCMP was required to consult with CSIS in advance.
If the consultation resulted in an impasse “…the issue will be raised with the
Director/Commissioner for resolution.”40
To avoid duplication, consultation was required on the deployment of physical
surveillance units. When CSIS was required to assist the RCMP, its units were
to be deployed against “…targets least likely to require court appearances.”
Similarly, avoidance of duplication was to be practiced when tasking foreign
liaison officers. CSIS analysts were also to have a continuous presence in the
RCMP Task Force.41 There was no reciprocal arrangement for an RCMP analyst to
be placed anywhere within CSIS.
Most importantly, on the topic of sharing of information, the agencies agreed
in this MOU that “…[a]ll information that impacts on, or relates to, the RCMP
investigation of Project Colossal shall be fully disclosed to the Force by CSIS.”
[Emphasis added] The agreement required the RCMP to reciprocate “in a like
manner” for information relating to the CSIS mandate. Information so shared
would not be further disseminated or reclassified without the consent of the
agency providing the information. Consultation between the RCMP and CSIS
was required in advance of any involvement by the RCMP of a third party (i.e.
another agency, whether Canadian or foreign) in its National Security Offences
Task Force.42
The MOU specifically imposed an obligation on the RCMP Commissioner and
the CSIS Director to “…establish procedures to implement these principles.” It
also provided for the arrangement to be reviewed at the end of one year.43
37
38
39
40
41
42
43
Exhibit P-101 CAA0500.
Exhibit P-101 CAA0457. See also Section 4.1 (Post-bombing), Information Sharing and Cooperation in
the Air India Investigation, under the heading “Project Colossal.”
Exhibit P-101 CAA0500, p. 1.
Exhibit P-101 CAA0500, p. 2.
Exhibit P-101 CAA0500, pp. 2-3.
Exhibit P-101 CAA0500, pp. 2-3.
Exhibit P-101 CAA0500, p. 4.
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When CSIS Director Finn signed the Project Colossal MOU, he noted that the
process of creating project-specific MOUs “…may not be the most expeditious
and practical approach” to enable the transfer and sharing of information. He felt
that the existing Transfer and Sharing of Information MOU covered everything
that was included in the new Project Colossal MOU and that, in the future, a
preferable approach would be to provide for the possibility of annexing to
existing MOUs particular provisions for “…joint CSIS/RCMP operations such as
‘Project Colossal’.”44 The Solicitor General agreed in early 1987 that this was a
preferable approach.45
Liaison Officer Exchange Agreement
In addition to the Project Colossal MOU, RCMP and CSIS entered into an
agreement relating to the exchange of liaison officers which was signed on
December 10, 1986.46 The liaison officer agreement was eventually replaced by
clauses 25 and following of the 1989 MOU.47
The 1989 Memorandum of Understanding
In April 1988, a notice of intention was forwarded to the Solicitor General by
the RCMP Commissioner and the CSIS Director that an all-encompassing MOU
would be ready for the Solicitor General’s review and signature by June 1988.48
Proposed changes submitted by the RCMP just prior to the June deadline
resulted in renewed negotiations that delayed the MOU.49 As a result, the MOU
was not signed until August 22, 1989.50
The 1989 MOU superceded the 1986 MOU.51 It consolidated the previous MOU
and expanded on it in three key areas: exchange of information; provisions of
assistance and operational support; and principles underlying cooperation. On
November 1, 1989, amendments were made “…to remove sensitive operational
information” from the ambit of the agreement, at CSIS’s request, and to correct
a reference made to the RCMP regulations in an introductory clause. The MOU
was slightly revised in April 1990 to permit its public release to the House of
Commons Special Committee on the Revision of the CSIS Act and the Security
Offences Act.52 It then remained in place until 2006.53
Wark testified that the 1989 MOU was not designed to make truly radical changes
to the landscape of CSIS/RCMP relations. Instead it was meant to strengthen
the mechanisms for cooperation, such as through the Liaison Officers Program.
44
45
46
47
48
49
50
51
52
53
Exhibit P-101 CAA0502, p. 2.
Exhibit P-101 CAC0044.
Exhibit P-101 CAA0968. See, generally, Section 4.2 (Post-bombing), The Liaison Officers Program.
Exhibit P-101 CAA0968, p. 2.
Exhibit P-101 CAA0688.
Exhibit P-101 CAA0688, CAA0714.
Exhibit P-101 CAA0968, p. 2.
Exhibit P-101 CAA0580.
Exhibit P-101 CAA0968, pp. 2-3.
Exhibit P-101 CAA0580.
�Chapter IV: CSIS/RCMP Information Sharing
However, in terms of understanding the relationship between CSIS and the
RCMP, the MOU did not represent a significant difference from the earlier MOUs,
but rather, a “fine-tuning.”54
Ongoing Debates
Almost as soon as the 1989 MOU was signed, the RCMP and CSIS began debating
what it meant. In particular, the nature and extent of CSIS’s obligations to disclose
information to the RCMP remained a contentious issue. Notably, this time, the
MOU did not use the word “shall” in its information-exchange provisions, using
instead the phrase “agrees to,” which signified more flexibility for each agency to
make information-sharing decisions.55
A particular debate arose over the interpretation of Article 7 of the 1989 MOU,
which provided for the possible use of CSIS intelligence as evidence in a criminal
prosecution. The RCMP felt that information in the hands of CSIS constituted
essential evidence in an attempted murder case, and heated discussions
between the agencies about the use of the CSIS information followed. A letter
dated April 30 1990, from Ian MacEwan, the CSIS DG CT to C/Supt. Pat Cummins,
who was in charge of national security investigations at RCMP HQ, highlights
the tensions between the two agencies on the use of intelligence as evidence:
Your interpretation of article 7 of the CSIS/RCMP MOU
suggests that the use of Service intelligence as evidence is the
norm. Contrary to your inclination, I am of the view that your
interpretation does not take into account the discretionary
powers awarded to the Service by section 19(2)(a) of the CSIS
Act. Your reference to the Deputy Solicitor General’s briefing
before the 5 Year Review Committee fails to point out that he
called for “potential” use of Service information and not a right
to access it.56
In reply, Cummins stated, “For the record, I have never suggested nor ever
advanced the interpretation of article 7 of the MOU in the manner you suggest.”
Although Cummins denied that he felt that the use of CSIS intelligence as
evidence was the “norm,” he noted that, despite CSIS’s particular mandate and
the fact that it is not “…in the business of collecting evidence,” the fact is “…CSIS
sometimes does end up with evidence.” The matter was referred to the Senior
Liaison Committee for resolution.57
Nearly a decade later, no new changes had been made to the 1990 MOU, and the
conflicts encountered by the agencies in the sharing of information continued.
54
55
56
57
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1471-1472.
See Exhibit P-101 CAA0758, pp. 8-9.
Exhibit P-101 CAA0765, p. 1.
Exhibit P-101 CAA0771, p. 1. The Liaison Committee was established in 1986 to resolve issues arising
in the counterterrorism liaison arrangements between CSIS and the RCMP. See, generally, Section 4.2
(Post-bombing), The Liaison Officers Program.
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In 1999, the National Security Offences Review report was released by the RCMP.
This internal examination of the RCMP Security Offences Program was conducted
in consultation with CSIS. One of the key issues reviewed was the cooperation
with CSIS and, in particular, the MOU. The report noted that problems in the use
of security intelligence information threatened to undermine the RCMP/CSIS
relationship:58
Senior management of the RCMP attempted to stimulate
greater partnership opportunities by creating a separate
National Security Investigation Section (NSIS) and a centralized
Criminal Intelligence Directorate (CID), but aspects of this
attempt actually increased discord between the two agencies.
The case law decision of Regina vs. Stinchcombe further
restricts both agencies’ ability to properly share in an open and
public environment.59
The report went on to state that both agencies could make better use of the
mechanisms for conflict resolution in the MOU and that problems could have
been avoided or greatly reduced through the “…appropriate application of the
processes outlined in the MOU.” In particular, the review found “little evidence”
that section 29(c) of the MOU, which authorized the HQ liaison officer from each
agency to address problems with the RCMP Deputy Commissioner or the CSIS
Deputy Director, had ever been used. Section 30 provided for the resolution
of conflicts at the Senior Liaison Committee. However, despite the use of that
committee to successfully resolve problems in the past, the Senior Liaison
Committee was disbanded in 1993 “…in favour of an informal consultation
process.” In addition, although section 30(e) of the MOU required the Senior
Liaison Committee to file an annual report to the Commissioner of the RCMP
and the Director of CSIS, this requirement had not been followed since 1991.60
The report reviewed the concerns regarding the MOU documented in several
memos written by RCMP divisions between 1990 and 1999. According to the
review, the memos “…considered the MOU one-sided in favour of CSIS” and
recommended four amendments to address the needs of the RCMP, including:
the ability to form a joint management team in investigations where the
interests of both agencies coincide; mechanisms to designate a lead agency
in certain investigations of common interest; problem-solving mechanisms to
resolve any issues that arise; and an “MOU escape clause” allowing either agency
to refuse to work within the MOU in a particular case. The review noted however
that “…all four of these proposed amendments have existed within the present
MOU since its revision in 1990.” The report stated that few members of either the
RCMP or CSIS were aware of the MOU provisions and that, as a result, the MOU’s
problem-solving and operational guidelines had “…never been fully used, with
58
59
60
Exhibit P-101 CAA0970, pp. 2, 22.
Exhibit P-101 CAA0970, p. 7.
Exhibit P-101 CAA0970, pp. 7, 25.
�Chapter IV: CSIS/RCMP Information Sharing
the exception of the Senior Liaison Committee meetings held prior to 1993.” The
report concluded, therefore, that only minor changes were required to make
the MOU contemporary.61 Nevertheless, it would be years before any changes
at all were made.62
4.1 Information Sharing and Cooperation in the Air India
Investigation
Introduction
In 1984, when CSIS was created, the emphasis was on maintaining a separation
between CSIS’s security intelligence function and the RCMP’s criminal
investigation function. While this separation made sense in relation to the
RCMP Security Service’s historical focus on Cold War counter-intelligence issues,
it was less relevant in dealing with counterterrorism investigations.
Information sharing between CSIS and the RCMP became an issue early in the
Air India investigation, as each agency struggled to develop an understanding
of the role and obligations of the other agency and of its own responsibilities.
The tangled policy thicket that emerged at CSIS, starting right after the Air India
bombing, was the result of CSIS’s struggles to differentiate its civilian intelligence
mandate from how things were done in the old RCMP Security Service. Prior to the
creation of CSIS, if there were unresolved issues in relation to what information
could be transferred from the intelligence side of the RCMP to the police side of
the RCMP, the problem would be solved by the RCMP Commissioner. Had the
bombing occurred prior to the separation of the agencies, the Commissioner
would have “…cut down on the bureaucracy,” made the decision and – in the
words of CSIS DDG CT Chris Scowen – “…that would be that.” CSIS felt that,
by enacting the CSIS Act, Parliament had signalled that that was not to be the
system for the future. The transition to CSIS created many issues, as the Service’s
policy perspective was continually evolving. CSIS and the RCMP were often
at odds over what to provide to whom, and on what basis. Regrettably, this
struggle occurred at a crucial time for the Air India investigation.63
As CSIS continued to pursue its intelligence investigation into the ongoing
activities of Sikh extremists after the Air India bombing, the RCMP pressed
on with its law enforcement investigation to uncover the perpetrators of the
Air India and Narita bombings. Due to the inevitable overlap of the agencies’
investigations, a two-way exchange of information was critical. Coordination
was crucial to avoid conflicts in investigational strategies and to ensure that the
investigations did not overlap in a way that could lead to unnecessary exposure
of CSIS information in court proceedings or that could derail the RCMP’s case on
account of CSIS information that could not be disclosed.
61
62
63
Exhibit P-101 CAA0970, pp. 7, 25.
See Section 4.5 (Post-bombing), Recent Cooperation and Information-Sharing Mechanisms.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6137-6139.
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CSIS often obtained information of interest to the RCMP’s criminal investigation.64
Yet, in an apparent attempt to civilianize, CSIS initially took overly restrictive
positions about the access it would grant to some of its materials and the use
that could be made of what the RCMP was allowed to see. The RCMP, for its
part, felt entitled to use any information that could further its investigation
and was not always sensitive to CSIS’s legitimate concern about protecting
its operations by avoiding public disclosure of information about its sources,
methods and personnel. Tensions between the agencies escalated due to
conflicts in information sharing and source sharing, particularly human sources.
This had a negative impact on the investigations of both agencies. In some
cases, this was an inevitable consequence of the difficulties associated with
the use of intelligence in criminal prosecutions. In many other cases, however,
the tensions that the agencies allowed to grow created situations that could
unnecessarily compromise both their investigations.
Early Days of the Investigation
At the time of the bombing, CSIS had already collected a mass of information
about the Sikh extremist movement in Canada, as well as about several potential
conspirators such as Parmar, Bagri and Gill. Meanwhile, the RCMP had little in
terms of its own independent information on Sikh extremists with which to
launch its investigation into this terrorist act of mass murder.
CSIS investigator Neil Eshleman testified that “…CSIS had an advantage over
… another organization such as the RCMP who were starting from scratch.”65
Recognizing, at least to some extent, the limits of its own knowledge base,
the RCMP E Division received briefings about the major players in the Sikh
extremism movement from members of the dedicated community policing
unit of the Vancouver Police Department.66
According to Eshleman, there was a “…close, informal, constant ongoing
discussion” between the CSIS Task Force and the RCMP in BC in the days following
the bombing. CSIS was supplying information to individuals within the RCMP “…
even before … the RCMP created their own task force to investigate Air India.”67
Sgt. Robert Wall joined the Air India Task Force in Vancouver on June 25, 1985,
as the NCO in charge of operations for the Task Force, a position that made him
second-in-command. He testified that, initially, few members the Task Force
had any familiarity with Sikh extremism. For that reason, particularly during the
early days of the investigation, the Task Force relied heavily on CSIS information
for background and details concerning Sikh extremism.68
After the bombing, the need for increased liaison was recognized by both the
RCMP and CSIS. Ad hoc liaison arrangements were implemented, but these often
64
65
66
67
68
See Section 3.0 (Post-bombing), The CSIS Investigation.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9376-9377.
Testimony of Don McLean, vol. 21, May 1, 2007, pp. 1986, 2037; Testimony of Don McLean, vol. 35, May
29, 2007, pp. 4143-4144, 4157-4159.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9376-9377.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9657-9658, 9661-9662.
�Chapter IV: CSIS/RCMP Information Sharing
resulted in inconsistent information-sharing practices. On June 27, 1985, LOs
from the RCMP and CSIS were assigned to facilitate the exchange of information
between CSIS BC Region and the newly formed RCMP E Division Task Force.69
This arrangement was intended to ensure a timely two-way flow of information
passed through the LOs who were both supposed to be fully informed about
what was going back and forth.70
Supt. Lyman Henschel of the E Division Federal Operations Branch testified at
the hearings that his understanding was that the Air India liaison program was
intended to allow the RCMP Task Force investigators to take an active role in
reviewing CSIS information with the full knowledge of the intricacies of the
investigation. He felt it was understood that the RCMP investigators were best
qualified to determine the ultimate relevancy to the criminal investigation
of the often subtle and obscure information CSIS would be gathering.71 This
understanding differed from that of CSIS personnel, who did not provide the
RCMP full access to CSIS information, but rather insisted on the Service being
the one to select what it determined was “…all information … that had any even
remote connection to the [AITF] investigation to be passed to the RCMP.”72
The intended role of the CSIS LO, a position filled by Jim Francis, was to gain
familiarity with both the avenues of investigation being pursued by the RCMP
Task Force and the mass of information being uncovered by CSIS, in order to
be equipped to make an intelligent first judgment of the relevance of CSIS
information to the RCMP investigation into the Air India and Narita bombings.73
Francis would deliver relevant CSIS materials to the RCMP LO, Sgt. Michael
(“Mike”) Roth, on a daily basis. Francis would highlight any information of
possible interest to the RCMP and leave the reports with Roth for review.74
Roth was responsible for identifying specific information of interest to the RCMP
Task Force in the information passed by Francis, after which he was to request
CSIS authorization for formal disclosure to the RCMP of this select information.
CSIS HQ would consider Roth’s requests, in consultation with CSIS legal counsel.
The RCMP LO was intended to be the conduit for all CSIS requests for RCMP
information.
Immediately after the bombing, CSIS began to pass its Situational Reports
(sitreps) regarding relevant Sikh extremist investigations to the RCMP Task Force,
a practice that continued from June 26 to November 4, 1985.75 The sitreps were
the daily intelligence reports submitted by the BC Region to CSIS HQ, as well
as some reports from other CSIS regions “…on an irregular basis.”76 The sitreps
essentially contained daily summaries of the regional investigations. They were
69
70
71
72
73
74
75
76
Exhibit P-101 CAA0802, p. 1, CAF0193.
Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5607-5608.
Testimony of Lyman Henschel, vol. 46, September 17, 2007, p. 5538.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6135. AITF is the abbreviation for the Air
India Task Force.
Testimony of Lyman Henschel, vol. 46, September 17, 2007, p. 5532.
Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5609-5610.
Exhibit P-101 CAA0379(i), CAA0802, p. 1, CAB0447(i).
Exhibit P-101 CAA0379(i).
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prepared on the basis of the CSIS investigators’ review of intercept products, as
well as on the basis of the reports produced following community interviews.
The investigators extracted the information they felt to be relevant from the
original records of intercepts, surveillance reports, or interview notes and
provided their analysis and comments. The context in which the information
was obtained was not always described exhaustively and the source of the
information was not always identified.
Francis brought the sitreps to Roth each day. Roth would informally brief the
rest of the AITF on the pertinent details of the sitreps at daily meetings. The
reports would then be processed through the Task Force’s readers or analysts
section. If there was something of interest, the RCMP would generate a “tip”77
in its filing system for further investigation. Both Roth and the RCMP records
analysis section kept copies of the sitreps.78
CSIS also provided copies of its surveillance reports to the RCMP Task Force.79
Surveillance targets were shared and coordinated daily between CSIS and the
RCMP in BC and “…all information produced by either organization” as a result
of the physical surveillance was shared.80
In the days immediately following the bombing, CSIS re-examined its own
surveillance information about the Duncan Blast incident on June 4th, when
CSIS followed Parmar, Reyat and an associate and heard a loud noise in the
woods. After the bombing, CSIS began to understand that the sound heard
by its surveillants might have been an explosion – and not a gunshot, as was
initially mistakenly believed. This led to speculation that Parmar, Reyat, and
their associate might in fact have been conducting tests in advance of the
bombing. CSIS “reminded” the RCMP of the Duncan Blast information it had
provided prior to the bombing, and suggested that the RCMP visit the Duncan
Blast site with one of the CSIS surveillants. The RCMP Explosives Detection Unit
(EDU) conducted searches on June 28th, July 2nd and July 4th and uncovered
some items that tended to indicate that a blasting cap had been handled at
the location. Though the evidentiary value of the items would prove limited in
the end, the RCMP searches did serve to orient the investigation towards Reyat
early on.81
In mid-July 1985, RCMP O Division requested a briefing from CSIS on the
organizational structure of the BK and the ISYF “…concentrating on the Sikh
members of these organizations who may be described as being the most
dedicated extremists.”82 In response, Toronto Region personnel briefed an
RCMP O Division analyst on July 17, 1985. In British Columbia, on the other
77
78
79
80
81
82
According to the filing system used by the RCMP, the “tip system,” every investigative lead was made
the subject of a “tip” or file with its own folder or number. The documentation respecting all initiatives
related to the investigation of that particular lead would then be housed in that tip folder: See Section
2.0 (Post-bombing), Set-up and Structure of the Federal Task Force.
Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5608-5611.
Exhibit P-101 CAA0379(i), pp. 1-5.
Exhibit P-101 CAA0299(i).
See Section 1.4 (Pre-bombing), Duncan Blast.
Exhibit P-101 CAB0440.
�Chapter IV: CSIS/RCMP Information Sharing
hand, it was only on August 29th that a similar briefing was requested and that
Ray Kobzey consequently briefed the RCMP on Sikh extremism.83 The length
of time it took for the RCMP to take the obvious step of requesting a briefing
from an agency with more knowledge of the landscape and of the issues might
have been the result of the rapid deterioration of the CSIS/RCMP relationship,
particularly in BC, during the period following the bombing. It is clear that by
the end of the summer of 1985, relations had soured significantly.
Emerging Issues in BC
Wall testified that he had, early in the investigation, formed the opinion that CSIS
had been intercepting Parmar’s communications since before the bombing. This
was an inference drawn from the fact that CSIS had been conducting physical
surveillance on Parmar during this period.84 Similarly, the Crown prosecutor
assigned to assist the Task Force, James Jardine, testified that he had concluded
that “…if there were watchers there would be wires,” and that he had mentioned
this possibility to the Task Force members as early as July 1st.85
In a briefing written for the Honourable Bob Rae during his review of the Air India
investigation, CSIS took the position that it had been very prompt in informing
the RCMP about its intercept activities concerning Parmar:
The Service informed the RCMP the day after the crash that
we had intercepted Parmar’s telephone and later provided
information relating to some of those interceptions in support
of the RCMP obtaining [Criminal Code of Canada] warrants.86
Deputy Commissioner Gary Bass, who took over the Air India investigation in
1995, testified that he saw nothing in his review of the investigation to indicate
that CSIS had notified the RCMP of its telephone intercepts of Parmar the day
after the crash.87 The Commission also saw no evidence of any notification to
the RCMP about the CSIS Parmar intercept on the day after the bombing.
What can be ascertained from the evidence is that the RCMP was aware that
CSIS was intercepting the communications of Parmar early in July 1985. The
RCMP had obtained a CSIS situation report, dated June 27, 1985,88 which referred
to a number of intercepted conversations between Parmar and Surjan Singh
Gill, Parmar and Hardial Singh Johal, and Parmar and his brother.89 The report
did not directly mention the existence of an electronic intercept of Parmar’s
communications. It simply referred to the information as having originated
83
84
85
86
87
88
89
Exhibit P-101 CAA0313, p. 2, CAD0115, p. 8.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9673-9674.
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Exhibit P-101 CAA1086, p. 7.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11225.
Exhibit P-101 CAB0360.
Exhibit P-101 CAB0360, pp. 6-7.
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from “a reliable source.”90 However, the report described Parmar’s telephone
conversations in detail, including verbatim quotes of the language used. It
would have left little doubt in the mind of an experienced RCMP investigator
that the information must have originated from an intercept. Indeed, Cpl.
Robert Solvason, who would join the Task Force in September,91 immediately
noted that the information in the CSIS situation reports appeared to have come
from technical intercepts, even though the source was not identified.92
It is unknown exactly when the RCMP received the June 27th sitrep document.93
According to a subsequent report, Roth began his review of the CSIS situation
reports on July 5, 1985.94 He testified that, to the best of his recollection, he
received the situation reports in volumes, which were provided in chronological
order, beginning with the reports for June 26th, 27th, and 28th.95 That would make
July 5th the earliest date that the RCMP could have seen the June 27th sitrep.
From that date onward, though it may not have been officially confirmed by
CSIS, the RCMP Task Force would certainly have had reason to believe, with
a high degree of certitude, that CSIS had in fact been intercepting Parmar’s
communications during the pre-bombing and immediate post-bombing period.
Wall’s notes contain a reference to a July 12th meeting between the RCMP and
CSIS where Francis directly mentioned the Parmar intercept.96 On July 21, 1985,
the Task Force explicitly reported that it was aware that CSIS was intercepting
communications of at least one target, and that several other intercepts would
be put in place.97
On July 11, 1985, Roth asked the CSIS BC Region what intercept warrants they
had in effect. He renewed that request on July 23rd and asked for information
about the intercepts. He was told that the request would be addressed by
CSIS HQ.98 Roth testified that he was never given a direct answer about what
warrants CSIS had in place. However, he indicated that he became convinced
on July 24th that CSIS had an intercept on Parmar, after Insp. John Hoadley, one
of the officers in charge of managing the RCMP Task Force, informed him that
arrangements had been made for him to go to CSIS to read the transcriber notes
from their intercepts.99
In late July 1985, the RCMP E Division Task Force advised its HQ that “Liaison with
CSIS continues and we are assured that we will be apprised of any information
they surface having a bearing on this investigation.”100 Chris Scowen, who became
the Deputy Director of Counter Terrorism at CSIS shortly after the bombing,
90
91
92
Exhibit P-101 CAB0360, p. 6.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11549.
Exhibit P-101 CAA0797(i), p. 1; Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 1155211553.
93 Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11231.
94 Exhibit P-101 CAA0379(i), p. 9.
95 Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5608-5609.
96 Exhibit P-101 CAA0379(i), p. 9.
97 Exhibit P-101 CAA0282(i), p. 1; Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11230-11231.
98 Exhibit P-101 CAA0802.
99 Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5619-5620; Exhibit P-101 CAA0802, p. 2.
100 Exhibit P-101 CAA0294, p. 1.
�Chapter IV: CSIS/RCMP Information Sharing
maintained in his testimony that Roth’s access to CSIS information provided “…a
very clear statement of the level of cooperation that the Service provided the
RCMP very early in their investigation.” He stated that CSIS supplied the RCMP
with “…many dozen surveillance reports,” pages of observation post reports,
and “…ten volumes of daily Situation Reports.” He noted that the number of
investigative leads passed was enormous. According to him, the RCMP Air India
Task Force was getting “…virtually everything we knew.” He stated that “…it was
a litany of activity and cooperation.”101
Roth did not share Scowen’s views on the matter, mostly because of his
experience in connection with the access, or lack thereof, he was given, as RCMP
LO, to the product of the Parmar intercepts. The process of obtaining access to
the CSIS materials proved to be a lengthy one, requiring repeated discussions
between the agencies, as well as ongoing policy debates at CSIS HQ concerning
the terms and the extent of that access. The end result was often a “revolving
door” of access that was marked by intermittent access punctuated by long
periods without it. Scowen explained that, for CSIS, the intermittent access
was all based on the evolving policy about access to sensitive material and on
CSIS’s paramount concern for protecting the identities of sources and targets.
He stressed that when access to the intercept product was denied, the denial
did not extend to intelligence reports.102 Nevertheless, the process strained the
early relationship between the Service and the RCMP significantly.
After Roth started inquiring about CSIS intercepts, the E Division Task Force
transmitted a request to CSIS BC Region Director General Randil Claxton in
late July for direct access to CSIS intercept product. When Claxton transmitted
the request to CSIS HQ, HQ initially granted the request.103 On July 25, 1985,
Roth signed a declaration that indoctrinated him into CSIS so that he could
receive CSIS information. Following this step, he was given access to the Parmar
intercept “product,” meaning the CSIS transcriber and translator notes and logs
that had been prepared on the basis of the recorded conversations. There was
no discussion at this point about direct access to the recordings themselves.
Roth subsequently prepared a document chronicling the shifting conditions
for his access to the intercept product.104 His July 25th entry reads “started
debriefing notes,” which meant he had started looking through the Parmar
intercept product on that day. He went to CSIS to review the material on two
other occasions in July. On August 6th, however, his note states: “Informed by
CSIS that I no longer had access to their material and to obtain data from Bob
Smith.”105 Roth immediately went to try to speak to Claxton about the change of
access, but he was unable to meet with him until the next day, August 7th. Claxton
informed Roth that, from then on, he would only receive situation reports, some
of which would be based on the Parmar intercepts. Claxton further informed
101
102
103
104
105
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6146, 6148.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6148, 6152.
Exhibit P-101 CAA0726, p. 4.
Exhibit P-101 CAA0379(i).
Exhibit P-101 CAA0379(i), p. 6; Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5621.
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Roth that if CSIS determined that there was urgency to the information, Roth
would be informed right away so that he could determine the evidentiary value
of the information.106
In his testimony before the Inquiry, Roth explained that there was a difference in
being granted access to the transcribers’ notes and simply seeing the intelligence
reports derived from them. The reports were only a summary of the information
in the original notes and were “…cleansed for protection of material.”107
Roth testified that he was never personally informed as to why his access was
refused.108 Scowen testified that he believed that BC Region had given Roth
full access to the intercept product, but that when either BC Region senior
management or CSIS HQ became aware of the extent of the access, it was
deemed improper and further access was denied.109
On September 3, 1985, Solvason joined the Task Force.110 Solvason began to
review the information that the Task Force had collected, including the CSIS
situation reports provided to the RCMP Liaison Officer, and he soon pointed out
that access to more CSIS information and materials would be necessary to go
forward with the investigation.111
Hoadley solicited the help of C/Supt. Norman Belanger, the OIC of the RCMP HQ
Task Force, to negotiate new terms for access to the Parmar intercept logs with
CSIS.112 Hoadley advised Solvason on September 6th that CSIS had authorized
the release, and that Solvason would likely be designated as a person to liaise
with CSIS as a result. On September 9, 1985, Roth was once again given access
to the intercept product. On September 10th, Solvason was sent to CSIS along
with Roth. He signed an “official secrets form” and began to review the Parmar
intercept logs with Roth.113 After that date, the two officers went to CSIS to
review the material almost every day until they were again denied access to the
logs on September 18th.114
The RCMP would later take the position that “meaningful access” to the Parmar
intercept notes was obtained only on September 10th.115 An RCMP report
prepared in early September indicated that the Task Force believed that CSIS had
been monitoring Parmar since March 1985, but that “…thus far, no substantive
information acquired from the surveillance activities has been passed on to
the E Division Task Force by CSIS Pacific Region,” with the exception of the CSIS
surveillance report on the Duncan Blast.116
106
107
108
109
110
111
112
113
114
115
116
Exhibit P-101 CAA0802, p. 3.
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5622.
Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5612-5613.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6146.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11549.
Exhibit P-101 CAA0797(i), p. 1; Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 1155211553.
Exhibit P-101 CAB0551.
Exhibit P-101 CAA0797(i), p. 2.
Exhibit P-101 CAA0802, p. 4.
Exhibit P-101 CAA0335, pp. 22-23.
Exhibit P-101 CAA0313, p. 5.
�Chapter IV: CSIS/RCMP Information Sharing
Roth testified that the delay in obtaining access to the Parmar intercept logs
impeded the progress and speed of the investigation.117 The nature of the
access provided was also not always considered satisfactory for the RCMP.
Both Roth and Solvason signed official secrets forms that indoctrinated them
into CSIS prior to receiving access to the Parmar logs. In effect, they signed
agreements providing that they would not disclose what they learned without
CSIS authorization.118 Roth could not recall ever having been briefed on what
he could do with the CSIS information and testified that no one advised him
about restrictions on his ability to pass information to the RCMP.119 Solvason,
on the other hand, documented that on September 10, 1985, Joe Wickie of CSIS
advised him that he and Roth were not allowed to make copies of the Parmar
intercept logs but could write notes, provided they were written “…in such a way
as to disguise or shield source of information.”120 As a result, Solvason reported
that all information recorded was referenced as originating from an anonymous
source, code E2255.121
To speed up the process, however, Roth and Solvason read significant verbatim
portions of the translator’s notes into a tape recorder, and these recordings were
later transcribed and typed into reports for use by the RCMP.122 Roth testified
that when he read information from the Parmar logs into the tape recorder,
he read in verbatim extracts, including dates and names.123 The end result was
that the RCMP reports often ended up being identical to the original CSIS logs
to which the RCMP was denied copies.124 Under the circumstances, it would
have saved time to have allowed the RCMP to simply make copies rather than
verbally recording the material, transcribing it and then writing up a report.
It is unknown whether CSIS knew Roth and Solvason were making verbatim
recordings of what they read.
HQ-Level Debates between CSIS and the RCMP
While the tensions were rising in British Columbia, relations between the
agencies were also difficult in Ottawa.
In late July 1985, a dispute erupted between Archie Barr, the CSIS Deputy
Director of Requirements (DDR), and C/Supt. Belanger. While the two agencies
were still sharing communications facilities at RCMP HQ, a message sent to CSIS
HQ, which dealt with information that still remains classified, was inadvertently
picked up by the RCMP. Belanger, making certain incorrect assumptions, wrote
to Barr suggesting that CSIS was involved in something that was properly within
117
118
119
120
121
122
123
124
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5623.
Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11554.
Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5633-5634.
Exhibit P-101 CAA0335, pp. 22-23, CAA0797(i) p. 2.
Exhibit P-101 CAA0797(i), p. 4; Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11554.
Exhibit P-101 CAA0797(i), pp. 2-3, CAA0802, p. 4.
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5625.
Exhibit P-101 CAA0802; Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5624. For an
example of identical RCMP and CSIS notes, see Exhibit P-101 CAD0013, pp. 42-43 (original CSIS notes)
and Exhibit P-101 CAA0322 (RCMP transcription).
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the RCMP’s mandate.125 Scowen testified that the memo sent by Belanger “…
was setting the tone for a relationship that Mr. Barr considered was getting
off track.”126 Barr used strong language in his response, accusing the RCMP of
improperly accessing classified CSIS documents,127 and stating that Belanger
seemed unaware of CSIS’s role. He also dealt with the pressing issue of
information sharing between the RCMP and CSIS in relation to Air India:
We are very conscious of the fact that while carrying out this
mandate we may generate information or intelligence which
may be of interest to police forces, or may relate to a specific
criminal offence. The Act provides authority for us to pass such
information to the police of jurisdiction. With specific reference
to the recent incidents involving Air India and Canadian
Pacific Airlines, our policy has been in keeping with the spirit
and intent of the CSIS Act. We have offered full cooperation
to the RCMP and have kept the Force apprised of relevant
information which we have collected.… the nature and tone
of your message does little to encourage a continued spirit of
cooperation.128 [Emphasis in original]
Scowen explained that Barr’s reaction was the result of what CSIS viewed as
the incessant and voracious demand for information and intelligence from
the RCMP and from Government in the immediate aftermath of the bombing,
and the exceptional pressures faced at the time by both CSIS and the RCMP.129
The exchange illustrates the fears and the animosity that sometimes existed
between the management of the two agencies. Along with other incidents, it
paints a picture of mistrust between the two agencies and a struggle to define
mandates and their limits.
Another debate occurred on July 28, 1985, when then RCMP Deputy
Commissioner of Operations, Henry Jensen, and James (“Jim”) Warren, then
CSIS DG Foreign Liaison, returning on the same flight from London, stopped
for a beer on arrival in Montreal. In a memo written afterwards, Warren stated
that Jensen pointed out that CSIS was “…unnecessarily intruding into a police
investigation.”130 In testimony, Jensen said that there were serious problems with
cooperation, but denied thinking that CSIS was attempting to do police work.131
He explained that the problems brought to his attention were with regard to
the RCMP Task Force access to necessary CSIS information and intelligence.
Warren’s memo said that Jensen predicted that the RCMP would soon develop
a completely parallel investigative capacity – which Jensen denied in testimony,
125
126
127
128
129
130
131
Exhibit P-101 CAA0287.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6133-6135.
Exhibit P-101 CAA0289, p. 1.
Exhibit P-101 CAA0289, pp. 1-2.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6133-6135.
Exhibit P-101 CAA0293.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5426.
�Chapter IV: CSIS/RCMP Information Sharing
saying that what he actually said was that the RCMP would have to develop its
“…intelligence capacity to deal with crime.”132 Regardless of what Jensen said
precisely to Warren, CSIS believed that the RCMP was trying to circumvent and
undermine the new agency, while the RCMP believed that CSIS was withholding
information, sentiments that could only damage the relationship between the
two organizations.
CSIS Information Used in Judicial Proceedings: The September 19th Affidavit
and Subsequent Tensions
In the months following the bombing, CSIS information was used in RCMP
affidavits in support of warrant applications. This use raised the possibility that
these warrants would be challenged in court at a later date,133 and it caused
significant tensions between the agencies.
On August 22, 1985, the RCMP had presented an affidavit in support of an
application for judicial authorization to intercept the communications of
Inderjit Singh Reyat and Lal Singh.134 At that time, the Task Force did not believe
that there was enough information available for the RCMP to obtain a judicial
authorization to intercept Parmar’s communications.135 The August affidavit
was based mostly on RCMP information, but did make reference to some CSIS
information, including the Duncan Blast surveillance, identifying one of the CSIS
physical surveillance unit (PSU) members, Larry Lowe, by name.136 The affidavit
made no reference to the CSIS Parmar intercept.
When Solvason joined the Task Force in early September, he was put to work
analyzing the information that the Task Force already possessed to determine
whether another intercept authorization could be obtained, as he had expertise
in wiretaps.137 Solvason explained in his testimony before the Inquiry that at this
point in the investigation, it was important to obtain judicial authorizations to
intercept the communications of various suspects, especially given the limited
knowledge of the Task Force. Solvason examined the information gathered, and
he concluded that the Task Force should seek a new authorization to intercept
communications with respect to an expanded set of targets. He also understood
immediately that there was no question that “…if there was going to be any
application, we would have to get authority to use the CSIS information for
that because that was by far the majority of what meaningful information we
had.”138
Solvason advised his immediate supervisor, Sgt. Wayne Douglas, that a “…
considerable amount of information and cooperation would have to be
132
133
134
135
136
137
138
Testimony of Henry Jensen, vol. 44, June 18, 2007, pp. 5426-5427.
Exhibit P-101 CAA0480, p. 1.
Exhibit P-101 CAA0310.
Exhibit P-101 CAA0282(i), p. 5.
Exhibit P-101 CAA0310, p. 5.
Exhibit P-101 CAA0797(i), p. 1.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11551-11553.
373
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forthcoming from CSIS” if the RCMP were to make any attempt at a wiretap
application.139 He also advised Hoadley and Wall that in order for the RCMP to
obtain an authorization to intercept private communications, CSIS information
would be necessary and “…authority for use of same in our application” would
have to be obtained. In his notes, Solvason wrote that he was advised by
Hoadley on September 6th that “…authority had been granted for release of
CSIS information,” and that Solvason would likely be designated as a person to
liaise with CSIS as a result.140 It is unclear whether this referred to the use of CSIS
information in the RCMP intercept application or whether it simply referred to
the fact that access to the Parmar intercept logs would resume.
During the next days, Solvason began to work on drafting an affidavit in
support of an application for authorization to intercept private communications
under Part IV.I (now Part VI) of the Criminal Code of Canada, using some of the
information that he and Roth had gleaned from the CSIS intercept logs.141 Cst.
Howard D.Walden, another member of the Task Force, swore the affidavit on
September 19, 1985. Reyat and Lal Singh were again listed as targets, but this
time the list also included Talwinder Singh Parmar, Surjan Singh Gill, Hardial
Singh Johal, Gurchuran Singh Reyat, and Amarijit Pawa. Additionally, since
Parmar and Reyat were evidently alert to the risk of discussing sensitive matters
over the telephone and preferred to speak face to face, the application sought
authorization to enter their residences in order to install and operate listening
devices to allow for interception of their conversations within the home.142
The September 19th affidavit made extensive use of CSIS information. Like the
August 22nd application, the document identified covert CSIS personnel, such
as Larry Lowe, by name. It also listed details that the RCMP obtained from CSIS
intercept logs. The affidavit revealed that CSIS was conducting an investigation
into Parmar’s activities, as well as those of Johal, Gill, and Reyat, and that CSIS had
been intercepting Parmar’s communications since March 1985, information that
had been provided to Solvason by Joe Wickie of CSIS. The affidavit discussed the
purpose of the CSIS investigation, referring to information provided by Claxton,
the CSIS BC Region Director General, to RCMP Supt. Les Holmes, which indicated
that CSIS was not pursuing an investigation of either the bombing of Air India
Flight 182 or the bombing at Narita airport, but was focused on matters of
national security and on information relevant to the protection of Indian Prime
Minister Rajiv Gandhi and other internationally protected persons.143
The September 19th affidavit included a substantial amount of information
obtained from the CSIS intercept logs, summarizing over 20 different
conversations. For example, the affidavit referred to an April 8, 1985, conversation
between Parmar and an individual named Jung Singh, in which the RCMP stated
139 Testimony of Robert Solvason, vol. 89, December 5, 2007, p. 11553.
140 Exhibit P-101 CAA0797(i), pp. 1-2; Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 1155311555.
141 Exhibit P-101 CAA0797(i); Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11554-11555.
142 Exhibit P-101 CAA0324(i), pp. 23-26.
143 Exhibit P-101 CAA0324(i), pp. 5, 11-12, 22.
�Chapter IV: CSIS/RCMP Information Sharing
that the two discussed the possibility of assassinating Indian Prime Minister
Rajiv Gandhi. Details of the other CSIS intercepts relied upon also included a
telephone conversation on June 22, 1985, in which Parmar asked Johal, “Did he
mail those letters?” to which Johal replied, “Yes, he did.”144
The affidavit provided details about the number of Parmar intercept tapes
believed to be in CSIS’s possession, noting that CSIS had “…only translated a
portion of those private communications.” The affidavit stated that Solvason
had advised that the Parmar intercept materials “…have been released subject
to the condition that they are provided for intelligence purposes only and for
the purposes of an application to obtain an authorization [to intercept private
communications], and are not to be used as evidence at a trial.” The affidavit
also set out a request by Solvason to CSIS to obtain all material acquired by CSIS
during this investigation and stated that CSIS’s response to Solvason was that
the RCMP Task Force had “…received all relevant material” with the exception of
the material pertaining to the interception of Parmar’s communications.145
The application also made reference to the access the RCMP had received to the
CSIS materials. The frustration of the Task Force members was apparent on the
face of the affidavit. For example, the application stated that the initial request
for the CSIS materials (obviously a reference to the Parmar intercept logs) had
been made in July 1985, but that Solvason had only been cleared to receive the
materials on September 10th. The affidavit also stated that CSIS “…refuses, on
policy grounds, to release copies of the taped private communications” and has
reserved to itself “…the decision of what is relevant and what will be released
to the Air India Task Force investigation.” In another paragraph, the affidavit
added that Claxton had informed Holmes, the RCMP Task Force OIC, that CSIS
would not disclose the names or telephone numbers of any individuals it had
under surveillance for national security reasons, but would provide all relevant
material to the Task Force.146
At the Inquiry hearings, Crown counsel Jardine, who presented the affidavit to
obtain the wiretap authorization to the Justice of the Peace, testified that, from
a legal standpoint, it was necessary to set out the sources of the information
in detail in the September 19th affidavit so that the judicial officer reviewing
the application could come to his own conclusions about the evidence.
He explained that the law required the Crown to make “…full, fair, and frank
disclosure before the judicial officer at the time of the application for and
granting of an authorization.” This was important not only to ensure that the
authorization was obtained, but also to ensure that it was sustainable “…from a
constitutional scrutiny perspective,” so that the evidence collected pursuant to
the authorization could be used.147
According to Jardine, in order to ensure that full disclosure was made and that
the grounds for the application were sufficiently established, it was necessary
144
145
146
147
Exhibit P-101 CAA0324(i), pp. 13-17.
Exhibit P-101 CAA0324(i), pp. 12-13.
Exhibit P-101 CAA0324(i), pp. 12, 22.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5667-5668, 5676-5677.
375
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Volume Two: Part 2: Post-Bombing Investigation and Response
to set out exactly what information the RCMP investigators had been provided
with, how it was provided, in what context and what amount of detail was
available in the materials. Jardine explained that the September 19th affidavit,
as drafted, contained the degree of information that he considered necessary
and appropriate to support the application. Nevertheless, he continued to be
concerned about “…whether the judicial officer would grant the authorization
on that kind of information,” and he would have preferred to have been given
access to the intercept tapes themselves or to complete transcripts.148 His initial
position had been that he was not prepared to proceed with the application
because of the CSIS involvement,149 but he testified that after lengthy discussions
with the RCMP officers involved, he was persuaded and became satisfied that
there were reasonable grounds disclosed within the affidavit.150
CSIS reacted badly to the use of its information in the September 19th affidavit.
When Roth was denied access to the Parmar intercept logs on September 18th,151
he testified that although no one from CSIS had ever explained precisely why
the conditions of access had changed, he understood that this decision was
likely made as a result of the RCMP use of CSIS information in the September
19th affidavit.152 In its response to the RCMP submission to the Honourable Bob
Rae, CSIS stated bluntly that Roth’s access to CSIS intercepts was discontinued
“…because the RCMP had used CSIS information in a Part IV.I (now Part VI)
application, contrary to the Service’s caveats, and without permission.”153
At a meeting between the CSIS Director General for Communications Intelligence
and Warrants, Jacques Jodoin, and Belanger, held on September 26, 1985, Jodoin
indicated that “…previous intelligence should not have been used to secure [a]
Part IV.I (now Part VI) warrant.”154 New and stricter conditions that CSIS would
now impose in order to grant the RCMP access to its information were discussed
during this meeting.155
There is disagreement between the RCMP and CSIS as to whether the use of
CSIS information in the September 19th affidavit was in fact authorized by CSIS.
The September 19th affidavit itself stated that CSIS had authorized the RCMP
to use its information for purposes of an application to obtain an authorization
to intercept private communications. This information was said to have been
provided by Solvason to the member who swore the affidavit.156 In testimony
before the Inquiry, Solvason indicated that it was not his responsibility to secure
CSIS’s consent prior to use of the information in an RCMP affidavit.157 Wall made
148
149
150
151
152
153
154
155
156
157
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5672, 5676-5677, 5799.
Exhibit P-101 CAA0797(i), p. 2.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5676-5677.
Exhibit P-101 CAA0802, p. 4.
Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5630-5631.
Exhibit P-101 CAA1088, p. 3. This was in response to the RCMP complaints about the denial of access
to the Parmar intercepts materials at various times in August and September 1985. See also Exhibit
P-101 CAA0335, p. 22.
Exhibit P-101 CAA0327, p. 2.
Exhibit P-101 CAA0327.
Exhibit P-101 CAA0324(i), pp. 12-13.
Testimony of Robert Solvason, vol. 89, December 5, 2007, pp. 11555-11556.
�Chapter IV: CSIS/RCMP Information Sharing
a note on September 16th in his notebook indicating that he had been informed
by Wickie of CSIS that the information in the Parmar intercept logs could be used
by the RCMP for intelligence purposes and for purposes of a wiretap application,
and that Holmes had been advised accordingly.158
On the other hand, CSIS has steadfastly insisted that it had not granted any such
approval.159 In a 1987 letter to Solicitor General James Kelleher, CSIS Director
Reid Morden wrote “…we can locate no record of having been told in advance”
that a CSIS surveillance report on Parmar would be used in the September 19th
affidavit.160
When Belanger had negotiated access to the Parmar intercept product with
CSIS HQ in early September, he had specifically indicated that the review of
the CSIS materials by the RCMP, if authorized, would “…not be utilized to glean
information of an evidentiary nature.” CSIS HQ had agreed to grant access,
but had advised the CSIS BC Region that certain conditions would have to
be respected, including that “Material must not be used as evidence for court
purposes.”161
During a meeting between the RCMP and CSIS on September 18th, the RCMP
had advised CSIS that Crown prosecutor Jardine insisted that he would require
access to CSIS intercept materials “…in order to properly prepare applications
for wiretap warrants against Parmar et al.,” and that he would require “…the
freedom to use [the CSIS materials] as necessary for evidentiary purposes.”
Yet the Commanding Officer of the RCMP E Division, Deputy Commissioner
Tom Venner, was reported to have stated that he did not agree with Jardine’s
position, and that the RCMP Task Force was satisfied to receive CSIS intercept
materials for investigative leads purposes only. Venner was said to have added
that he foresaw further procedural difficulties down the road because of the
“…pressures being generated by Crown Counsel Jardine” and that he might
attempt to have the case transferred to a federal prosecutor.162
The confusion created by the agencies’ differing perspectives on whether the
use of CSIS information in the September 19th affidavit was authorized is such
that even the official position taken by the Attorney General of Canada on
the matter has been inconsistent. In its Final Submissions to this Inquiry, the
Attorney General of Canada states that, even though it had been suggested
that the RCMP improperly used CSIS information in support of the September
19th affidavit, it remained that “…[w]hether due to a miscommunication or not,
officers understood that they had permission from Joe Wickie to use the CSIS
material in the Affidavit.”163 Conversely, in another part of the same volume of
the Final Submissions, the Attorney General of Canada maintains that the RCMP
use of CSIS information was clearly not authorized:
158
159
160
161
162
163
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9674-9675.
Exhibit P-101 CAA1088, p. 3.
Exhibit P-101 CAA0609, p. 17.
Exhibit P-101 CAB0551, p. 1.
Exhibit P-101 CAB0553, p. 2.
Final Submissions of the Attorney General of Canada, Vol. I, p. 133, Footnote 401.
377
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CSIS HQ had not authorized the use of its information in this
manner, and on September 25, 1985 made it clear to RCMP HQ
that this should not happen again. It is possible that BC Region
had indicated a willingness to obtain permission from HQ on
behalf of the RCMP to use CSIS information; Bob Wall testified
that he believed Joe Wickie of CSIS BC Region had actually
given permission.164
Regardless of which agency was correct about the actual granting of
authorization, or whether all parties, including the various levels within each
organization, misunderstood the situation, it is clear that the incident contributed
to increasing tensions between the agencies. From this point forward the
RCMP had to adjust to new restrictions on the use of CSIS’s information as it
conducted its investigation. The RCMP E Division Task Force investigators had
already experienced significant frustrations as a result of the back-and-forth on
access to the Parmar logs and of what they felt was unsatisfactory access to CSIS
information, even before the September 19th affidavit. In fact, the day before
that affidavit was sworn, Wall had raised the possibility of executing a search
warrant against CSIS during a meeting with Crown Counsel Jardine.165
After the September 19th affidavit and the suspension of access to the Parmar
intercepts materials, negotiations for access to the logs recommenced between
CSIS and the RCMP.166
On September 27, 1985, RCMP HQ advised the E Division Task Force of the new
conditions tabled by CSIS in order for access to its information to be granted to
the RCMP.167 Among the restrictions imposed by CSIS was the condition that “CSIS
information is not to be used for judicial purposes such as Part IV.I (now Part VI)
authorizations, search warrants, court briefs, etc.”168 CSIS also denied the RCMP
access to transcripts or tapes of intercepts, and stated it would only provide
information assessed by CSIS as relevant in “…summary form under third-party
rule.”169 The Third Party Rule generally requires that information obtained from
one agency not be further disseminated or disclosed without the consent of the
original agency.170 Finally, CSIS demanded that its information not be blended
with any RCMP data of a criminal nature that would likely be used as evidence,
as this would risk disclosure of the CSIS information in judicial proceedings.
Scowen testified that he felt these conditions were appropriate “at the time.”171
The conditions outlined were clearly more restrictive than the access that the
RCMP had enjoyed previously, at least in terms of access to intercept logs.
Discontent was also growing at CSIS for other reasons. In October 1985, lowerlevel management personnel at CSIS HQ were complaining about the lack of
164
165
166
167
168
169
170
171
Final Submissions of the Attorney General of Canada, Vol. I, para. 368.
Testimony of Robert Wall, vol. 76, November 15, 2007, pp. 9675-9676.
Exhibit P-101 CAA0802.
Exhibit P-101 CAA0331.
Exhibit P-101 CAA0331, p. 1.
Exhibit P-101 CAA1089(i), p. 2.
Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1656-1657.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6144.
�Chapter IV: CSIS/RCMP Information Sharing
any benefit to CSIS from the HQ-level liaison arrangements made in connection
with the Air India file. One CSIS personnel official wrote that the assignment of
a CSIS LO at the RCMP HQ Task Force had become a “…one-way street giving
the RCMP advantage and no return for our effort.” He noted that, though liaison
itself should continue, the practice of “…having one of our personnel tied up
on a daily basis at the ‘beck and call’ of the RCMP” should stop. He indicated
that, when CSIS HQ had suggested to RCMP HQ that it was “…the RCMP’s turn”
to send someone down to CSIS “for a change,” the RCMP had “…scoffed at this
suggestion.”172 He also felt that, more generally, the RCMP was taking advantage
of CSIS’s indecision and unwillingness to take a stand in policy matters as to
CSIS’s primary role in national security investigations to “…increase its presence
in our historical territory,” and was using the liaison arrangements to “…expand
their wings.” He was particularly critical of the CSIS regions, as he felt that, in
a spirit of cooperation, they were allowing the RCMP essentially to run their
operations.173 The writer closed the note by stating:
Maybe some members of CSIS still think they’re working for
the RCMP. Myself – I say we are an independent org. & should
act that way.174 [Emphasis in original]
Russell Upton, the Chief of the Section responsible for the Sikh Desk at CSIS
HQ, agreed and echoed the criticism that the regions were setting up their
own independent liaison arrangements, with the result being “…confusion,
complications and more alarming, loss of control over CSIS’s intelligence.”175
Upton also felt that CSIS was not gaining a great deal from the present HQ liaison
arrangement. He indicated that if the RCMP HQ section in charge of the Air India
investigation felt a Liaison Officer was needed to facilitate regular RCMP access
to CSIS information, then the RCMP, rather than CSIS, should provide all liaison
representatives.176
It would not be until October 11, 1985, that the RCMP would again be granted
access to CSIS intercept materials.177 At that time, the Service granted access to
the Parmar intercept notes, as well as intercept notes on other Sikh extremist
targets.178 CSIS’s position was that its material was to be used as investigational
leads only, and not for judicial purposes. Access to transcripts and tapes would
occur only at the discretion of the CSIS regional directors general in consideration
of specific RCMP investigative needs.179
Solvason continued to be tasked as a liaison to CSIS along with Roth and to
attend CSIS offices to review what material was made available. On November
18th, Solvason was instructed to “…compile and co-ordinate” CSIS information
172
173
174
175
176
177
178
179
Exhibit P-101 CAA0338, p. 1.
Exhibit P-101 CAA0338, pp. 2-5.
Exhibit P-101 CAA0338, p. 5.
Exhibit P-101 CAA0341.
Exhibit P-101 CAA0341.
Exhibit P-101 CAA0802, p. 4.
Exhibit P-101 CAA0379(i), CAA0802.
Exhibit P-101 CAA0346.
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Volume Two: Part 2: Post-Bombing Investigation and Response
for use in an evidence package.180 On November 27th, CSIS denied access to
physical surveillance reports on Surjan Singh Gill, while continuing to allow
access to Parmar physical surveillance reports.181 According to Solvason’s notes,
Wickie explained that the RCMP access was being reviewed by CSIS because the
RCMP was looking for “evidence,” while CSIS believed that the RCMP access was
supposed to be for “intelligence purposes” only.182 CSIS reversed its decision
two days later, allowing the RCMP access to reports on Gill.183
Meanwhile, the RCMP had to conform to strict conditions when it again wanted
to use CSIS information in support of a warrant application, this time to conduct
a search of the suspects’ residences. In early November 1985, the RCMP executed
search warrants on the residences of Parmar and Reyat, as well as Hardial Singh
Johal, Surjan Singh Gill, and Amarjit Singh Pawa.184 Both Parmar and Reyat were
arrested.185 In crafting the affidavit in support of the application for this search
warrant, the RCMP sought CSIS’s authorization to make use of its intercept
materials.186 Authorization was granted on November 4, 1985,187 but the affidavit
in support of the application sworn by Cpl. Glen Rockwell on November 4th
had to be drafted in collaboration with CSIS, and certain conditions had to be
observed. These conditions would later be viewed by Crown counsel as having
the potential to put the prosecution in jeopardy.188
The November affidavit again described the Duncan Blast observed by the
CSIS PSU and referred to Parmar’s communications. However, the affidavit was
written in a way to hide the fact that CSIS was the source of information. Instead
of naming CSIS, the affidavit indicated that the affiant was “…informed by a
source of known reliability, whose identity for security reasons I do not wish to
reveal at this time….”189
In spite of the new conditions that were observed in the November search
warrant application, when the RCMP Task Force sought later in the same month
to renew its September wiretap authorizations against Parmar et al., it prepared
an affidavit that reproduced much of the content of the September 19th affidavit.
The affidavit once again made reference to CSIS as the source of a considerable
amount of information, and again referred to covert CSIS operatives such as
Lowe by name.190 The affidavit disclosed information about the fact that CSIS
had been conducting an investigation into Parmar’s activities and intercepting
180
181
182
183
184
185
186
187
188
189
190
Exhibit P-101 CAA0797(i), p. 3.
Exhibit P-101 CAA0802, p. 5.
Exhibit P-101 CAA0797(i), p. 3.
Exhibit P-101 CAA0802, p. 5.
Exhibit P-201.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5683.
Exhibit P-101 CAA0354, p. 1, CAA0365.
Exhibit P-101 CAA0367.
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Exhibit P-201, pp. 5-6, 8.
Exhibit P-203, p. 10. This document was used in a motion brought during the trial of Malik and Bagri
and portions of this document, referring to CSIS members by name and other private information, had
been manually redacted at that time.
�Chapter IV: CSIS/RCMP Information Sharing
his communications since March 27, 1985,191 and it summarized dozens of
CSIS intercepts concerning the named targets. Obviously, having used CSIS
information in the September 19th affidavit, the RCMP could not include less
information in the application for renewal of the same authorization. However,
there is no record of a specific warning to CSIS that its information would again
be used or of a request for its use in this context.
The intermittent and delayed access provided by CSIS to the Parmar intercepts,
the use of information that CSIS clearly viewed as unauthorized, and the new
and changing restrictions on the access to CSIS materials and on the use that
could be made of them fuelled significant interagency conflicts and mistrust.
By November 1985, tensions had risen significantly. An incident documented
by Roth illustrates the level of distrust and animosity that appeared to prevail
in BC.192 Just after charges were laid against Reyat and Parmar in relation to the
Duncan Blast,193 Francis asked Roth for photographs of Parmar, Reyat and the
supporters who had attended the court, for use in updating CSIS files. CSIS also
requested access to an RCMP report relating the court proceedings.194 Roth was
informed by a member of the Task Force that Wall had instructed that nothing
was to be given to CSIS.
When Roth approached Wall about the issue, Wall walked away from Roth and
refused to talk to him. As a result, Roth approached Sgt. Bob Beitel, who was in
charge of administrative matters at the Task Force, to obtain the material CSIS had
requested. Roth explained the reason he wanted the photographs and stated
that the information would “…further [CSIS’s] files and update their photos and
biographical data on whatever we were able to obtain.” Beitel indicated that he
would identify the photos first and process them, and then make them available
to Roth in a couple of days. However, he wanted a letter from CSIS requesting the
information, indicating that he would forward it once he received the request.
When Roth asked for copies of RCMP interviews of Reyat and Parmar to pass on
to CSIS, Beitel responded “no way,” adding that “…we did all the work and they
get the benefit.”195
Roth felt that, as the RCMP Liaison Officer, he had been properly contacted by
the CSIS Liaison Officer with the request, and that insisting on a written request
defeated the purpose of having a Liaison Officer whose job it was to transmit
requests in the first place. He noted, however, that this was “a stressful time”
and a “…very high pressure environment.”196 Indeed, it is hard to imagine that
an investigation into a crime as horrendous as the Air India bombing would
not result in stressful times. However, it is precisely because the pressure was
so acute and the stakes so high that clear and precise policies for information
sharing and cooperation between CSIS and the RCMP would have been required.
191
192
193
194
195
196
Exhibit P-203, p. 18.
Exhibit P-101 CAF0207.
See Section 1.4 (Pre-bombing), Duncan Blast.
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5635.
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5637.
Testimony of Michael Roth, vol. 46, September 17, 2007, pp. 5638, 5650-5651.
381
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Instead, the lack of clear policies allowed serious tensions and conflicts to fester,
and controversy about the incidents that occurred in the months immediately
after the bombing continued to rage for years between the agencies.197
Debate over Access to CSIS Toronto Information
The growing differences between the agencies’ perspectives are well illustrated
by a protracted debate, which began in December 1985, about the level of
access to CSIS information to be granted to the RCMP.
The RCMP E Division Task Force asked the RCMP O Division Task Force in Toronto
to inquire about accessing CSIS Toronto files to review “…any surveillance and
intercepts relating to our main players.”198 The O Division Task Force reported
in January 1986 that their projected meeting with CSIS Toronto to discuss this
request was cancelled by CSIS because of instructions from CSIS HQ that any
review should take place in Ottawa rather than at the Toronto Region.199 On
instructions from RCMP HQ, the O Division Task Force resubmitted in writing a
request for information about Parmar, Reyat and Bagri. In response, in February
1986, CSIS Toronto Region provided limited materials, consisting of a booklet
of 150 pages of handwritten surveillance notes with no covering reports and
no photographs. The Region advised that no relevant intercepts were available.
In March 1986, O Division formulated another written request, this time for
access to all CSIS Toronto files on a list of 18 individuals and businesses that
were believed to have connections with Parmar. This request was forwarded to
CSIS HQ by the Toronto Region.200
During a subsequent meeting between Inkster and Barr in early May 1986, Inkster
mentioned that the RCMP had encountered a delay of 45 days without obtaining
a response to this latest request from RCMP BC investigators to be given access
to CSIS Toronto files. He asked Barr “…whether this was some indication of the
service CSIS was prepared to offer them?”201 Following further discussions at the
HQ level, with Scowen indicating that he was “somewhat disturbed” by the long
list of individuals covered by the RCMP request, the RCMP narrowed its request
to Parmar and ten other individuals.202
On May 26, 1986, CSIS HQ provided a response indicating that the Service agreed
in principle to provide the requested access.203 However, CSIS asked the RCMP
to refine its request further in accordance with the protocol already in place for
the RCMP access to CSIS files in the BC Region:
197
198
199
200
201
202
203
See, for example, Exhibit P-101 CAA0609, p. 17, CAD0881.
Exhibit P-101 CAA0395.
Exhibit P-101 CAA0403.
Exhibit P-101 CAA0439.
Exhibit P-101 CAB0226.
Exhibit P-101 CAA0443.
Exhibit P-101 CAA0447.
�Chapter IV: CSIS/RCMP Information Sharing
[I]t is requested that prior to access, the specific nature of your
requirements be made known. To ask for “All Seuveillance [sic]
reports”, “All technical intercepts” … and “All information” …
as your letter to us states, is not sufficiently specific for us to
render assistance.204
Two months passed before the RCMP reformulated its request. In correspondence
dated July 25, 1986, the RCMP asked that its investigators “…be granted access
to all technical and physical surveillance reports in the possession of the
Toronto Region which contain information on Parmar’s activities, contacts,
travels, associations since 1984.”205 This level of particularity was not satisfactory
to CSIS. Scowen testified that CSIS would not “…countenance fishing trips
through our database in search of information that they thought would be of
interest in their investigation.”206 CSIS HQ advised the RCMP in August that the
CSIS Toronto Region had been asked to review its holdings to identify relevant
material in response to the RCMP request.207 When this decision was relayed to
the E Division Task Force, it wrote to RCMP HQ to complain about the delay in
obtaining access to the information and insisted on having its own investigators
conduct the review. The Task Force insisted that “…the importance of having
our investigators do a hands-on review of the CSIS info to solicit the relevant
points cannot be over emphasized” and maintained that the identification of
specific information relevant to the investigation would only be possible “…
upon gaining access (if ever) to Toronto CSIS info.”208
After further discussion between the agencies,209 CSIS finally agreed to grant
the RCMP investigators access to the Toronto materials, specifying that the
information would be provided for “investigational leads only” and that any use
of the information for court purposes would have to be approved by CSIS.210 In
the end, after nine months of negotiations to access the materials, the RCMP
did not identify “anything of importance” from its review of the CSIS Toronto
files.211
Project Colossal
In 1986, Project Colossal became the code name adopted by the RCMP for its
investigations of Sikh extremism, including the Air India and Narita bombings,
the Montreal Plot investigation (code name Project Scope), the Hamilton Plot
investigation (code name Project Outcrop) and the Sidhu shooting conspiracy
investigation.212
204
205
206
207
208
209
210
211
212
Exhibit P-101 CAA0447.
Exhibit P-101 CAA0470.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6162-6163.
Exhibit P-101 CAA0472.
Exhibit P-101 CAA0477.
Exhibit P-101 CAA0478.
Exhibit P-101 CAA0489. See also Exhibit P-101 CAA0494.
Exhibit P-101 CAA0494, p. 16.
Exhibit P-101 CAA0457; Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement –
Canada’s Response to Sikh Terrorism,” pp. 45-48.
383
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Volume Two: Part 2: Post-Bombing Investigation and Response
The Hamilton and Montreal investigations were largely developed by the
RCMP alone. However, some of the RCMP’s actions during these investigations,
in particular what CSIS perceived as the Force’s attempts to open channels of
liaison with foreign security and intelligence services, caused concern to CSIS.
The Service felt that it could not discourage direct contact between the RCMP
and foreign police forces, but that, in cases where security services operated
within those police forces, this led “…to confusion as to who in Canada is in fact
responsible for the collection of intelligence respecting terrorism.” CSIS sent out
a memo to its Security Liaison Officers (SLOs) abroad to debunk a rumour that
the RCMP had “…full, unfettered access to CSIS data banks.” CSIS wanted to
ensure that its allies knew that the information they passed to the Service would
not end up being made public in criminal proceedings without their knowledge
or permission, and was concerned that the RCMP may have misinformed allies
about this matter.213
On June 2, 1986, CSIS wrote to the RCMP to set out conditions for the passage
of information from CSIS to the RCMP in relation to Project Colossal. The new
procedures allowed the RCMP to view some CSIS “intercept transcripts” (the
notes or logs prepared by CSIS translators and transcribers) with CSIS HQ
approval. The possibility that some CSIS information could be used to support
applications for judicial authorizations was left open, but the proposed text of
such applications had to receive approval from CSIS HQ as well.214
On June 23, 1986, the CSIS conditions were replaced by guidelines, agreed upon
by CSIS and the RCMP, for information sharing relating to Project Colossal.215
The agreement included provisions to protect CSIS sources and methodologies
as well as third-party information.216 The guidelines stipulated:
• When advice would be given to the Minister and by which
organization;
• That the RCMP would attempt to obtain its own warrants to reduce
the possibility of CSIS involvement in court proceedings;
• That the RCMP would consult with CSIS prior to using CSIS
information for judicial purposes, with impasses being resolved
at the Commissioner/Director level;
• That consultation was to be undertaken to avoid duplication of
surveillance;
• That CSIS would disclose all information that impacts on or relates
to Project Colossal, with the RCMP to reciprocate;
• That Foreign Liaison tasking would be coordinated to avoid
duplication;
• That CSIS would assign dedicated CSIS analysts to RCMP Task
Forces;
213
214
215
216
Exhibit P-101 CAA0456, pp. 1-2.
Exhibit P-101 CAA0449.
Exhibit P-101 CAA0455.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6171.
�Chapter IV: CSIS/RCMP Information Sharing
• That all information shared would not be further disseminated; and
• That consultation would precede any third-party involvement.
These arrangements were circulated at CSIS on June 27th. The Ministerial Directive
received by CSIS on May 29, 1986 was also circulated for CSIS employees to review.
This directive stated that CSIS was “…to cooperate with and make available to
the RCMP all information that relates to Project Colossal.”217 Retired CSIS Deputy
Director of Operations (DDO) Jack Hooper testified that the grouping of Sikh
extremism investigations under one project and the negotiation of specific
information-sharing agreements was aimed at facilitating cooperation between
the RCMP and CSIS on the broad issue of Sikh extremism.218 A project-specific
MOU on the transfer and sharing of information for Project Colossal was signed
and circulated in October 1986.219
The Kelleher Directive, The Barr Memo and The CSIS Theory of the Case
On January 28, 1987, the Minister issued what has become known as the “Kelleher
Directive” about the Air India/Narita investigation. In a letter addressed to CSIS
Director Finn, the Minister discussed three major concerns. First, he ordered the
development of a “…fully coordinated Ministry approach to the handling of
media and other public inquiries” in advance of any arrests in the case. Second,
he stated that it was “…essential that both CSIS and the RCMP commence
action now to coordinate the preparation of evidence which would be used for
court purposes,” again in the expectation of a criminal trial. Third, he asked to be
updated on certain source development issues.220
This Directive signalled a departure from the early days of CSIS in dealing with
disclosure of CSIS information that might have evidentiary value.221 In his reply,
Finn stated that CSIS “…fully appreciates the vital importance of bringing those
responsible for the crash of Air India before the courts.” He noted that he had
“…directed that the full cooperation of the Service be placed at the disposal of
the RCMP in this regard and that all information that may possibly be relevant is
made available to the RCMP to assist in its investigation,” and he stated that CSIS
would “…develop a chronological timetable of the events the Service believe[d]
led up to the commission of the crime.”222
In a memorandum that Barr authored shortly afterwards, he clarified that CSIS
was not responsible for investigating the bombing, and that the investigation
would now “…move into the hands of the RCMP.” He stated that, in their treatment
of the information uncovered by CSIS, the RCMP had agreed that “…everything
possible will be done to prevent damage to CSIS sources and operational
217 Exhibit P-101 CAA0457, p. 3.
218 Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6218.
219 Exhibit P-101 CAA0500. See Section 4.0 (Post-bombing), The Evolution of the CSIS/RCMP Memoranda
of Understanding.
220 Exhibit P-101 CAD0095, pp. 1-2.
221 Testimony of Mervin Grierson, vol. 75, November 14, 2007, p. 9479.
222 Exhibit P-101 CAD0094. See also Section 3.0 (Post-bombing), The CSIS Investigation.
385
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Volume Two: Part 2: Post-Bombing Investigation and Response
methods and that the Service will be kept fully informed of the progress of the
criminal investigation.” CSIS personnel were directed to “…continue to be of
assistance to the RCMP by providing a comprehensive database against which
to test information developed by the police,” and to be guided in offering
this cooperation by the common goal of convicting those responsible for the
crimes.223
Within two months of the Kelleher Directive, CSIS had submitted its
comprehensive analysis of the intelligence it had collected on the bombing to
the Minister and the RCMP. The document included a chronology of events, a
summary of new source information, supplementary information, and a link
analysis chart. The conclusion set out the CSIS perspective that “…the concept
of blowing up a civilian airliner originated in the minds of a small group of
men,” and that the main protagonist was Parmar. The CSIS analysis also listed
persons it felt were the “weakest links” in the conspiracy who could potentially
be pressured to provide further information. This list included Surjan Singh Gill
and Hardial Singh Johal.224
Though the degree of direct CSIS involvement in pursuing avenues of
investigation related or directly impacting on the criminal investigation
changed somewhat after this period,225 the information sharing and cooperation
problems continued.
Norman Inkster (who was a Deputy Commissioner in March 1987 before being
promoted to Commissioner in September 1987) was asked about the level of
cooperation the Force received from CSIS in the period from April 1987 onwards.
He stated that “…it was certainly a relationship that had its difficulties,” but he
did not think that it would be fair to characterize it as one involving “…people
simply being difficult and not wanting to cooperate.” He thought, however,
that attempts to obtain documents and information from CSIS in a timely way
continued to be a difficult process, partly because of the constraints created
by the CSIS Act itself and partly because of cautious legal opinions CSIS had
obtained regarding the sharing of information. According to Inkster, CSIS “…felt
obliged to move very, very cautiously,” which caused frustration to investigators
who wanted to be “…able to move on it expeditiously.”226 There was always a
review process involved, during which CSIS would assess the purpose for which
the information was needed and the manner in which it could be used. It was,
from Inkster’s perspective, never a case of asking for the information and “…
simply getting it. There was always a delay of various lengths.”227
The Reyat Arrest
Even after CSIS had made a decision to follow the ministerial direction and
specifically instructed its investigators to stay out of the Air India investigation,
223
224
225
226
227
Exhibit P-101 CAB0717.
Exhibit P-101 CAB0717, pp. 15, 18.
See Section 3.0 (Post-bombing), The CSIS Investigation.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10317.
Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10317-10318.
�Chapter IV: CSIS/RCMP Information Sharing
separating the roles of the agencies did not always prove as easy in practice. It
was particularly difficult when CSIS was faced with situations where it perceived
that it had better chances of obtaining information from certain individuals
than the RCMP had, or when RCMP actions in the criminal investigations risked
generating relevant information which would end up in CSIS’s hands.
In January 1988, the RCMP was planning to arrest and extradite Reyat back
to Canada. CSIS BC Region was advised of the RCMP plans for conducting
interviews once the arrest became known, and was asked to avoid contacts
with those targets, as such contact “…may jeopardize our criminal investigation.”
The RCMP also requested that CSIS provide any information in its possession
about the targets and advise the RCMP of the interviews it intended to conduct
in connection with the arrest, as well as the targets on whom CSIS would be
conducting physical surveillance. In reaction, the CSIS BC Region wrote to CSIS
HQ, copying all CSIS regions and districts, explaining that the Region remained “…
cognizant that the investigations into the Air India/Narita disasters are criminal
matters and they are the responsibility of the Royal Canadian Mounted Police
(RCMP),” but that the arrest would have an impact on the CSIS investigations, as
it was felt that the entire Sikh community would be affected by the arrests. BC
Region intended to monitor sources for feedback “…which may prove useful to
the RCMP” and to comply with the RCMP requests.228
While the Region felt that its intended investigations fell within the guidelines
requiring that CSIS participation in the investigation of Air India be restricted to
providing investigative leads, it was concerned and asked for guidance from CSIS
HQ because, with Reyat’s arrest, information about Air India might be obtained.
The Region stated it was “…intensely aware of the enormous importance of
this criminal case” and that it hoped its actions would contribute “…toward a
successful end to the criminal case.”229
Parmar’s Death
Though CSIS had effectively ended its investigation of the Air India bombing,
Parmar remained a target of the Service’s Sikh extremism investigations. In
1988, however, Parmar left Canada.
On July 15, 1988, a briefing note was written to the Director of CSIS, Reid
Morden, asking whether CSIS should notify Indian authorities that, as of July
15th, CSIS was able to place Parmar in Pakistan.230 CSIS believed that Parmar was
attempting to return to India, possibly to commit further acts of terrorism. The
conclusion of the briefing note was that it was recommended that “…because of
Parmar’s stature as a dangerous Sikh terrorist, CSIS notify the GOI [Government
of India].”231 The decision was referred to the Director level due to the fact that
CSIS was concerned that, once alerted, Indian authorities might kill Parmar, a
228
229
230
231
Exhibit P-101 CAA0627(i), pp. 1-4.
Exhibit P-101 CAA0627(i), pp. 4-5.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8337.
Exhibit P-101 CAB0780.
387
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Canadian citizen. The Director made the decision to notify the Government of
India. On October 13, 1992, another briefing note was sent to the Director. This
note updated the Director on the search for Parmar. The next day Parmar was
reportedly killed following a gun battle with Indian authorities.232
Bill Turner, who became the head of the Sikh Desk at CSIS HQ in 1990, testified
that he did not accept the “official story,” that Parmar had been killed in a
shootout with Indian authorities. Turner stated that they had sources in the
community and within the BK, and that there were indications that Parmar had
been captured first. Turner also saw photos of his body and stated, “…there
[were] clear indications that he had been tortured prior to being killed.”233
Turner was not surprised that the Government of Canada had not been informed
of Parmar’s capture. There had been a prior case where a Canadian citizen had
been captured, held in custody and tortured. When Canada was informed,
External Affairs Minister Joe Clark travelled to India to make representations on
behalf of the imprisoned Canadian citizen. The capture and torture of Canadian
citizens became “…a bit of a sticky issue” between the Government of Canada
and the Government of India. In order to avoid further tension, Turner believed
it was simpler for the Government of India to do what it was going to do along
these lines without informing the Canadian government. Turner said this
included the case of Parmar.234
The death of Parmar, the prime suspect in the Air India/Narita bombings,
obviously had an impact on the Air India investigation. There has been no
evidence to suggest that CSIS was aware of Parmar’s capture prior to his death.
Nevertheless, CSIS had occasionally informed the Government of India of
Parmar’s suspected whereabouts with the full knowledge that such information
could lead to his death. Conversely, there was no evidence before the Inquiry that
CSIS informed the RCMP of either its knowledge of Parmar’s whereabouts or its
concerns about the actions the Government of India might take on the basis of
CSIS information, including that Parmar might be caught and killed rather than
being repatriated to Canada to face charges in the Air India bombing. Finally,
there was no evidence presented that the Director informed the Minister of
the CSIS decision to inform the Government of India, regardless of the possible
consequences for Parmar.
CSIS stated in 1987 that there was “…no higher priority for … this Service, than
bringing the persons who perpetrated these crimes, before the courts.”235 In
subsequent years, no charges were laid and Parmar slipped out of the country.
When faced with information that suggested Parmar was planning to return to
India, CSIS needed to balance the threat posed to innocent people abroad from
possible terrorist acts by Parmar, against the possible capture and death of a
Canadian citizen and a prime suspect in the bombing.
232
233
234
235
See Section 2.3.3 (Post-bombing), The Purported Parmar Confession.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8339.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8337-8340.
Exhibit P-101 CAB0717(i).
�Chapter IV: CSIS/RCMP Information Sharing
It is not known how the ultimate decision to inform the Government of India
about Parmar’s whereabouts was taken. It is not known whether the Director
consulted with the Minister. It is not known whether CSIS’s action had any
impact on Parmar’s capture and death, though the evidence seems to suggest
otherwise.236 But in this age of globalization, including the globalization of
terror, a similar situation may arise again. The question of how the Government
of Canada and its agencies should react to such a situation is a difficult one, with
no easy answers. It does seem, however, that the decision cannot be that of CSIS
or of any other single agency alone.
The Disclosure and Advisory Letters Process
A new process for disclosing material to the RCMP was developed in the 1990s.
During this period, relations between the agencies continued to be difficult.
Ron Dicks, the former RCMP LO in Toronto,237 became the Officer in Charge of
the E Division National Security Investigations Section (NSIS) responsible for the
Air India investigation. He testified that, in his interactions with CSIS in his new
position, he felt that the flow of information between the agencies continued to
be restricted.238 He described the relationship that NSIS had with CSIS as a very
bureaucratic one, characterized by great formality, and far from fluid.239
According to the new process for exchanging information devised in the 1990s,
CSIS would provide “disclosure” and “advisory” letters to the RCMP. When CSIS
gathered information, the intelligence would be written up in an investigator’s
report. A copy of this report was to be given to the RCMP, usually through the
RCMP LO, and was called a “drop copy.” If the RCMP was interested in some, or all,
of the information, it would request it through the LO. CSIS would then provide
the information in the form of a “disclosure letter.”
Disclosure letters were typically provided at the regional level. Their purpose
was to let the RCMP know that “something is afoot.”240 They contained a refined
version of the drop copy report with some analysis. Over the course of the Air
India investigation, Turner estimated that CSIS sent 3,000 disclosure letters to
the RCMP.241
Disclosure letters were not meant to be used in court or in support of judicial
authorizations. If the information was required by the RCMP for use in court or
for an affidavit, the RCMP had to request its use. In response, CSIS prepared an
“advisory letter,” drafted by HQ, which would provide “…the information to the
extent possible that the RCMP were seeking,” available for use in court. Advisory
letters were “far more polished” and included a CSIS assessment with additional
caveats added.242 The aim of the advisory letters was to be more probative
236
237
238
239
240
241
242
See Section 2.3.3 (Post-bombing), The Purported Parmar Confession.
See Section 4.2 (Post-bombing), The Liaison Officers Program.
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7565.
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7565.
Testimony of Ches Parsons, vol. 82, November 23, 2007, pp. 10480-10481.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8313.
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6230, 6232.
389
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in nature and of more utility to the police.243 However, the disclosure letters
typically contained a much broader amount of information than the advisory
letters.
The RCMP complained that at each level of disclosure, from disclosure letter
to advisory letter, the information provided was narrowed and sanitized.
Sgt. Laurie MacDonell, who joined E Division NSIS in 1990, testified that the
information contained in CSIS advisory letters was generally “…nowhere near
the standards that a criminal court would expect.” He explained that as a result,
it was “…frustrating to obtain information from the Service.” MacDonell recalled
that, in some instances, CSIS would provide advisory letters in which even the
limited information provided would change from version to version. According
to him, the release of vague, and at times inconsistent, information was “…not
consistent with evidence or full disclosure; it became a little bit confusing.”244
Indeed, although the agencies could devise protocols between themselves
for sharing information, it would ultimately be for the court to decide whether
additional information was required if an attempt was made to use the sanitized
information in court or in support of a judicial authorization. Pursuant to the
habitual rules of evidence, a letter containing a summary of information available
from original sources could probably not have been admitted in evidence in
a trial without presenting underlying testimony and original materials. As for
judicial authorizations, it would always be open to the defence to challenge the
lack of detail and to request more information to evaluate the sufficiency of the
grounds for the searches or wiretaps.
From his perspective as an investigator, MacDonell emphasized that the RCMP
needed “raw data” and the “exact source” of information and that, in order to
satisfy disclosure requirements, police officers needed access to the source of
the information, and not “a crafted letter.”245
There were also significant delays in the process. In one particular case,
MacDonell had to wait a considerable amount of time while attempting to get
direct evidence to support criminal charges on a homicide. The issue had to
go to the “highest levels” of CSIS and the RCMP, with RCMP management fully
supporting MacDonell’s request. Nevertheless, it took well over a year for the
issue to get resolved.246 MacDonell indicated that the delays encountered in
obtaining information from CSIS hindered the police investigations.247
Despite the legal and practical difficulties in the disclosure and advisory
letters system for passing CSIS information to the RCMP in potential criminal
cases, this system continued to be used as of the close of the hearings of the
Commission.248
243
244
245
246
247
248
Testimony of Ches Parsons, vol. 82, November 23, 2007, p. 10481.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, p. 9649.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9649-9650.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9648-9650.
Testimony of Laurie MacDonell, vol. 76, November 15, 2007, pp. 9648-9650.
See Testimony of Larry Tremblay, vol. 96, February 14, 2008, pp. 12766-12768.
�Chapter IV: CSIS/RCMP Information Sharing
Post-1995 CSIS/RCMP Relationship
Turner testified that 1995 was a key date in the CSIS/RCMP relationship. Prior to
that date, he described the relationship as “difficult.”249 The 1992 SIRC report had
noted personality problems, but had concluded, based in part on a less-thancomplete briefing from the RCMP,250 that “…there was no indication that these
problems had any long-term effect on the overall conduct of the investigations.”251
According to Turner, mainly as a result of a “change of personalities,” relationships
between the two organizations improved after 1995.252 At that time, Insp. Gary
Bass (now Deputy Commissioner) was asked to review the Air India investigation
and to provide advice about any additional steps that could be taken.253 A
renewed Task Force was assembled to first conduct the review, and then to
pursue the new investigative initiatives identified.254
Turner stated that the relationship, post-1995, was “…excellent, a sentiment
echoed by SIRC in 1998.” Turner became the CSIS Liaison Officer to the 1995
RCMP Air India Task Force, and he testified that, as the CSIS representative,
he was treated as a full partner.255 This era saw greater cooperation between
CSIS, the RCMP and, notably, the Crown. The use of CSIS intelligence in court
proceedings continued to be the primary liaison issue, one that occupied the
majority of Turner’s efforts, and, though some aspects could never be fully
resolved, the situation was much improved when compared to the earlier Reyat
trial.256
However, some of the problems experienced throughout the earlier years of
the investigation continued. The back-and-forth arguments about the scope of
RCMP requests for information in light of the risk of exposure for CSIS, as well
as the complex logistics associated with the review done by the Service prior
to determining the information to be provided, were still present in the late
1990s.257
On February 9, 1996, Bass wrote a memorandum to the OIC of the Air India Task
Force at E Division headquarters which provided an overview of the challenges
faced in preparing an application to intercept the communications of the
principals in the investigation, as well as in proceeding with charges. Making
reference to the abuse of process concerns expressed by Jardine during the
Narita prosecution, Bass noted that there would be “…intense criticism of CSIS”
during the process of getting the CSIS wiretap evidence into court at trial,
and that “…we can only hope that other relevant information has not been
withheld.”258 He concluded that if such a discovery occurred, the prosecution
would collapse.
249
250
251
252
253
254
255
256
257
258
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8271.
See Chapter V (Post-bombing), The Overall Government Response to the Air India Bombing.
Exhibit P-101 CAB0902, p. 74.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8340-8341. See Section 2.2 (Post-bombing), The
RCMP Investigation: Red Tape and Yellow Tape.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11177.
See Section 2.2 (Post-bombing), The RCMP Investigation: Red Tape and Yellow Tape.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8270, 8310.
See Section 4.4.2 (Post-bombing), The Air India Trial.
See, for example, Exhibit P-101 CAA0966, pp. 24-25.
Exhibit P-101 CAA0932, p. 2.
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In his testimony, Bass took care to emphasize that this was not a criticism of
CSIS:
They’re operating in a different environment than we are.
We were still growing through disclosure. We could see
through our experience in the courts and criminal cases how
these things were likely to go. And as it turns out, I think
we predicted it fairly accurately. But CSIS didn’t have that
experience in the courts. And I fully expected and accepted
that we didn’t know everything at that stage about what they
knew about Air India. I mean, that’s the nature of the business.
And so I’m not saying that as a criticism. But what I was
pointing out is that it’s something that we need to be aware of,
that as this thing progresses, you know, hopefully, there won’t
be any instance happen that would look like nondisclosure.259
When CSIS learned in 1999 about the Bass February 1996 memorandum, a file
review was conducted. CSIS noted that the Bass memorandum was written
“in a vacuum” and “without balanced views,” and believed that Bass relied
mostly on “…tribal knowledge from those involved in the Reyat prosecution,”
and was influenced by those who had deeply negative attitudes towards CSIS.
CSIS concluded that if Bass could apply “…the wisdom of 20/20 hindsight,” he
would “…most likely regret everything he wrote in 1996.”260 In his testimony
before this Inquiry, Bass recognized that some CSIS members were of great help
in resolving many large disclosure issues in the post-1996 investigation and
in moving the case forward. He stated, however, that this did not change the
opinions he expressed in 1996 and that therefore he did not regret what he had
written.261
In February 1996, the RCMP had completed the preparation of a first draft affidavit
in support of its wiretap application.262 The affidavit made extensive reference
to CSIS information, in particular from the Parmar intercept logs. The Task Force
informed CSIS of the targets for the intended wiretap and soon afterward,
CSIS informed the RCMP for the first time that it possessed over 200,000 tapes
containing the intercepted communications of Parmar, Bagri, and Malik, among
others, recorded between 1985 and 1996.263 The RCMP investigators had to
review 60,000 pages of intercept logs regarding these recordings to determine
whether the tapes contained information that would be useful to the case, a
task that had to be completed before the Force could satisfy the requirements
of the Criminal Code for the wiretap application.264
In the end, the RCMP concluded that the new materials did not contain any
substantive evidence that would exonerate the suspects.265 However, the
259
260
261
262
263
264
265
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11192.
Exhibit P-101 CAA0977, p. 1.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11207-11211.
Exhibit P-101 CAA0936(i), p. 1.
Exhibit P-101 CAA0952, p. 1, CAD0180, p. 6.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11182.
Exhibit P-101 CAD0180, pp. 6-7.
�Chapter IV: CSIS/RCMP Information Sharing
unexpected discovery of their existence and the associated need to conduct
a review took “considerable time” and delayed the RCMP’s plans for the new
wiretap application.266 This naturally caused frustrations for the Task Force
investigators. S/Sgt. Bart Blachford, who was a member of the Task Force at the
time and is now the lead Air India investigator in E Division, testified that the
RCMP had “no idea” of the existence of the CSIS tapes prior to its own approach
to CSIS to advise of its intended targets for the new wiretap. He indicated that
the CSIS disclosure effectively “shut down” the RCMP’s wiretap application
process for months while the material was reviewed, and that the Force simply
“…couldn’t move forward” until this was done.267
Clearly, the post-1995 improvements in the CSIS/RCMP relationship did not
resolve all the issues. Indeed, Merv Grierson, former Director General of the
CSIS BC Region, testified that until his retirement in 1997, disclosure of CSIS
information continued to be a major problem.268
Nevertheless, the relations between the agencies did change in the post-1995
era, with fewer back-and-forth and legalistic debates being observed in this
period. Having gone through the experience of the Reyat trial, where, after
much delay and resistance, CSIS finally agreed to provide some materials for
the prosecution,269 CSIS advised that its approach would be different this time.
At a February 1996 meeting between Supt. Rick MacPhee and S/Sgt. Doug
Henderson of the RCMP and Grierson, it was made clear that CSIS was ready to
assist with the investigation and to provide evidence for use in court. Grierson
indicated to the officers that, within the bounds of its guidelines and security
concerns, “…CSIS would provide whatever evidence they can with respect to the
seriousness of the Air India disaster, and that their position on this has modified
over the years.”270 Grierson acknowledged the access and disclosure issues prior
to the Reyat trial, but emphasized that these were successfully worked out in
the end and resulted in a conviction. The RCMP officers in turn assured Grierson
that they would go through the normal disclosure and advisory letters process
for any CSIS information that had not previously been disclosed in the Reyat
trial or otherwise become part of the public domain.
In September 1996, the authorization to intercept communications sought by
the RCMP was finally granted,271 but the wiretaps put into place did not yield any
useful information that could be entered as evidence.272 In November 1996, Bass
sent a memorandum to Grierson to update him regarding the investigation.273
He acknowledged that CSIS and the RCMP enjoyed a close working relationship
at the time and that CSIS’s cooperation had been very helpful to the investigation.
However, he noted that there were outstanding issues with respect to the CSIS
intercept tapes – which the RCMP intended at that time to make use of as evidence
266
267
268
269
270
271
272
273
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11183.
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7820-7822.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9475-9476.
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Exhibit P-101 CAA0942.
Exhibit P-101 CAA1127. The application itself can be found at Exhibit P-101 CAD0180.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11214-11215.
Exhibit P-101 CAA0958.
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– such as continuity and the erasure of many of the tapes. Bass testified that
the RCMP still believed that the CSIS intercept materials were the best evidence
available at the time, though the prosecution team would subsequently decide
not to attempt to enter the material in evidence.274 In the memorandum, Bass
expressed the concern that if defence challenges to the admissibility of the CSIS
intercept information were successful and the prosecution collapsed as a result,
the failure could be attributed to the erasure of the tapes.275
The Recurring Challenges of Information Sharing
CSIS always had concerns about the RCMP’s ability to protect CSIS information,
regardless of the state of the relationship with the RCMP and of the various
agreements reached. Warren testified that, in providing access to its information,
CSIS was concerned about losing control of its intelligence. Warren was also
concerned about potential loss of protection for CSIS information in the
courtroom.276 He testified that the “bottom line” of the cooperation issue was:
How does one maintain control? How does one ensure that …
responsible control over the disclosure of information relating
to Canadians is being maintained by the Service if one invites
other organizations into one’s midst….277
CSIS was always concerned about the ultimate use of its information. If it
was eventually introduced in court, this would obviously mean making some
information public about CSIS operations and possibly exposing some of its
personnel. This, for the most part, is what drove the CSIS resistance to answering
certain types of requests and to sharing certain types of information. Turner
explained in testimony that the RCMP advised CSIS early on that there would be
difficulties in protecting the CSIS information that was passed to the Force from
disclosure in a criminal prosecution. In response, CSIS did its own “vetting” at
every stage of information sharing, in an attempt to protect the information.278
Concerned about the extent of its exposure, CSIS sought to restrict the amount
of material provided to the RCMP.
CSIS’s concern for protecting its information from public disclosure was based
on a very real – and legitimate – fear of the consequences that could result from
exposure. Jack Hooper explained in testimony that if CSIS sources, methodology
or translators were exposed, CSIS would have to start again “…from ground
zero” in an attempt to “…reconstitute an inventory of assets.” He stated that
when a human source became exposed, “…it chills an entire community.” He
added that once methodologies are exposed, “…you are in real trouble.” As an
274 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11221-11222. See Section 4.4.2 (Post-bombing),
The Air India Trial.
275 Exhibit P-101 CAA0958, p. 2.
276 Testimony of James Warren, vol. 48, September 19, 2007, pp. 5909-5910.
277 Testimony of James Warren, vol. 48, September 19, 2007, p. 5910.
278 Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8298-8299.
�Chapter IV: CSIS/RCMP Information Sharing
example, he explained that, not long ago, “very important targets” believed that
cellular phone communications could not be intercepted. However, once that
ability was publicly disclosed, targets became guarded in their communications
and CSIS was required to spend a great deal of time and money to develop new
methods for the interception of communications.279
CSIS was determined to keep secret the details of how technical intercepts
were put together, placed, and installed, as well as their capacity and their
characteristics. Scowen testified that CSIS needed to protect its methodology
in order to do its job effectively, since all fields, not just CT, employed the same
methodologies. He stated that “…methodology is a crucial part in the tool bag
of any intelligence service and all of us protect it to a maximum degree.”280
Another important concern for CSIS was the protection of its translators and, to
a lesser extent, its transcribers. This was of particular concern because finding
translators who could be security cleared was also an ongoing problem for CSIS.
The Director General for Communications Intelligence and Warrants, Jacques
Jodoin, wrote in a 1986 document that “…cleared and proven translators are a
scarce commodity, especially in the people recruited from the visible minority
groups.”281 Translators were “…an exceptionally important resource” for CSIS, and
often came from, and lived in, the community where the language needs arose.
It was generally imperative for translators to keep their involvement with CSIS
a secret from their community. Compromising the identity of a translator could
lead to that person being ostracized in the community, and could possibly place
the person at risk of physical harm. If CSIS was unable to protect translators,
it would experience difficulty in recruiting more translators, and its ability to
monitor threats to the security of Canada would thereby be compromised.282
Despite CSIS’s desire not to have its information, methods or sources exposed
in a court case, that possibility was at least likely, and perhaps inevitable, in the
Air India case. Even where the RCMP felt that it might be able to collect the
necessary evidence on its own on the basis of the leads provided by CSIS, the
need to use CSIS information in support of the RCMP’s warrant applications
could also lead to the exposure of CSIS information to public disclosure in
judicial proceedings. By gathering its own information, the RCMP avoided
the risk of exposing sensitive information regarding CSIS operations, and also
improved the chances of successful prosecution by ensuring that the evidence
was collected and preserved in accordance with the legal standards. Ironically,
however, where the RCMP needed CSIS information in order to gather its own
information, CSIS would not be protected. Hence, even when its information
was provided to the RCMP as investigative leads only, CSIS risked exposing
confidential matters because the information would ultimately be exposed if it
turned out to be the only source available, or if it was needed to obtain RCMP
warrants.
279
280
281
282
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6272-6273.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6189-6190.
Exhibit P-101 CAF0279, p. 2.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6155-6157.
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Norman Inkster acknowledged that the friction between the RCMP and
CSIS concerning access to information was very much a product of the “…
fundamental differences between the RCMP and CSIS.”283 Each organization had
its own mandate and priorities, and was subject to different legal thresholds
and constraints regarding the collection and disclosure of information. CSIS
itself was frequently bound by caveats imposed by foreign agencies as well as
the desire and obligation to protect its sources and personnel, while the interest
of the RCMP was on placing as much evidence as possible before a court should
an investigation lead to an arrest and charges. These differences were not
necessarily irreconcilable, but understandably led to mutual frustration.
In practice, CSIS’s fear of exposure led to numerous debates at all stages of the
information-sharing process. Not only was CSIS reluctant to grant the RCMP
authorization to use its information in judicial proceedings, but CSIS attempted
to restrict the extent of the RCMP’s access to its materials to ensure that this
possibility never materialized. This led to debates about the nature of the
RCMP’s requests for information, about CSIS’s ability to identify independently
the criminal relevancy of its information, and, importantly, about the type of
materials to which CSIS would grant access. There was a particular difficulty in
providing the RCMP with “raw” or original materials, as opposed to summaries
of information.
The RCMP, for its part, often failed to distinguish between CSIS’s reluctance to have
its information exposed in court or to provide raw materials, and a reluctance to
share information. As a result, the RCMP made blanket accusations of a lack of
sharing, when, in fact, it was being provided with countless investigative leads
but simply could not use the information for prosecution purposes.
The increasing tensions between the agencies were also fuelled by CSIS
complaints about the RCMP’s own lack of willingness to share its information
and by particular issues associated with human sources, as well as by structural
issues relating to the level of centralization within each agency and the internal
responsibility for decisions about the sharing of information.
The Range of CSIS Information Shared: Who Decides?
Specific Requests versus “Fishing Trips”
From the early days of the Air India investigation onwards, CSIS and the RCMP
often appeared to be talking at cross-purposes when discussing the access
to CSIS information that would be provided to the RCMP. The agencies were
continually at odds about the fundamental issue of how much material should
be provided to the RCMP, and about who should decide what was relevant to the
RCMP investigation. In addressing these issues, CSIS often took initial positions
that were very restrictive in terms of sharing, only to acquiesce later and provide
at least part of the access or information initially requested.
283 Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10326-10327.
�Chapter IV: CSIS/RCMP Information Sharing
CSIS’s general position was that it would advise the RCMP of any information
that was obtained that had a bearing on the investigation.284 When it requested
information from CSIS, the RCMP traditionally asked for “…everything CSIS had,”
apparently assuming that it would then be able to make its own selection of
relevant materials. At CSIS, this was viewed as the RCMP’s opening “stance,”
despite the fact that there would inevitably be conditions on any information
passed. CSIS replied with the standard response that the RCMP would be
supplied with “…all information we had that had any even remote connection
to their investigation” – an answer that never satisfied the RCMP, since the
selection of relevant material would be done by CSIS. Scowen testified that CSIS
was constantly telling the RCMP that their requests had to be more specific, and
that it was “…a response that they understood.”285
The RCMP felt entitled to receive access to all CSIS information that could be of
assistance, whereas CSIS felt that it had a responsibility to protect information
for long-term intelligence and to provide only “investigative leads” to the
RCMP, rather than broad access to its holdings. According to Grierson, when
CSIS explained its perspective to the RCMP, “…that wasn’t accepted.” Grierson
testified that the RCMP’s perception was “…that our job was to dump – all our
stuff to them, give them everything, including sources, identities, whatever it
was, and because they had to mount a criminal investigation.”286
Inkster explained that, from the RCMP’s perspective, the difficulty was that the
RCMP was interested only in information pertaining to the Air India crash, and
he felt that this should have provided a sufficient basis for CSIS to retrieve and
review material in line with its requests. He added that it was “disconcerting”
when CSIS was looking for more specificity – “…you couldn’t be more specific
if you didn’t know what they had; and that was the challenge.”287 According
to Inkster, CSIS’s position “…compounded the difficulties that the police had in
terms of investigating this and in as speedy a fashion as possible.”288
The problem with requiring the RCMP to be more specific was that it did not
necessarily know what it needed to ask for. CSIS required the RCMP to have a
notion of what it was looking for before making the request, but it would be
difficult for the Force to know what to look for without knowing what information
CSIS had. Hence, the Force made broad requests, and this was viewed by CSIS as
an indication that the RCMP was on a “fishing trip” for missed leads.289
According to CSIS, there was a logistical problem with blanket requests from the
RCMP. Because of the size of its informational holdings, it would be very difficult
without a specific request to bring up the actual information being searched
284
285
286
287
Exhibit P-101 CAA0294, p. 1.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6135, 6162-6163.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9459-9460.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10321. An example of the RCMP being
required to provide precise, narrow requests can be found at Exhibit P-101 CAD0182.
288 Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10321.
289 Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6164.
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for. Further, CSIS was concerned that to allow the RCMP access to its extensive
database would have an impact on other areas which were of no proper interest
to the RCMP and that were outside the scope of the RCMP/CSIS relationship.
The RCMP, for its part, felt that CSIS could not be relied on for the purpose
of “pre-screening” its information to decide what would be of relevance or
interest to the RCMP. Inkster testified that having CSIS make the assessment
as to what was relevant for the RCMP “…added an area of doubt and concern”
that was “a serious one.” He explained that it would be the police who would
have to continue the criminal investigation and ultimately to appear before
court and give evidence or to swear affidavits for search warrants and wiretap
authorizations. With these responsibilities, Inkster felt that the officers needed
to be in a position to determine, on the basis of their professional training and
experience, whether there was information that was relevant and important to
the issues that needed to be resolved.290
It would seem natural to assume that the criminal investigators would be in the
best position to determine what was relevant to their investigation. For CSIS,
however, providing the open access requested by the RCMP was inconceivable.
It would have meant that the Force would have known more than “…most
intelligence officers in the BC Region.”291 The need-to-know principle, as applied
at CSIS, meant that individuals were provided access to classified or designated
material only to the extent necessary to properly carry out their current duties
or responsibilities. Stevenson explained that colleagues working side by side
would not necessarily know what the other was working on. Even CSIS agents
would have to justify their own legitimate need to know before being given
access to restricted information in their own department.292 CSIS felt justified in
applying this need-to-know principle to information passed to the RCMP. The
result was that CSIS, rather than the RCMP Task Force, made the decisions on
what the RCMP needed to know.
Lack of Trust
There was also significant mistrust between the agencies that impacted on the
access debates. As Warren explained:
I guess one of the other problems – and I think it’s just endemic
with the nature of the job – it’s sometimes really as much a
function of the personalities involved as it is any structure
you want to put in place. If there’s a trust built up between
individuals, then information tends to flow a lot quicker than if
there is an aura of suspicion that surrounds the relationship.293
290
291
292
293
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10322.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7726.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7726.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5908.
�Chapter IV: CSIS/RCMP Information Sharing
The RCMP’s distrust of CSIS’s abilities or good faith led the Force to fail to
appreciate the value of some of the CSIS information that was being provided
to it, while continuing to suspect that CSIS was withholding other information.
CSIS investigator Neil Eshleman explained that in the course of their duties
and in order to be informed about community issues and better able to make
contacts in the community, CSIS investigators made a significant effort to
educate themselves on Operation Bluestar and its consequences, on the views
of the community towards the Government of India and on Sikh extremism in
general. In Eshelman’s experience, the RCMP had little appreciation for the value
of this type of information. When he tried to explain to them the nuances of
community attitudes about the Sikh separatist movement, Sikh extremism and
the bombing, he felt it was “…not appreciated to the degree that [he] thought it
would be helpful to them.” Instead, the RCMP was focused on the “…immediate
criminal investigation” and was not interested in the background or “…the larger
picture of understanding the extremism that was in the community.”294
Eshleman was under the impression that CSIS was passing “…just about
everything we had developed”to the RCMP. He felt that this may have contributed
to information overload, given that the RCMP was starting at “square one.”295
Eshleman indicated that there appeared to be a belief within the Force that
CSIS was actively withholding important factual information. He felt that this
allegation was incorrect. From CSIS’s perspective, the RCMP seemed continually
dissatisfied with the information it received, yet appeared to make little use of
the community and background information which CSIS investigators felt was
important.296
The lack of appreciation at the RCMP for the knowledge and expertise developed
at CSIS is well illustrated by the treatment received by three of the BC Region’s
main Sikh extremism investigators – Ray Kobzey, William Dean (“Willie”) Laurie
and Neil Eshleman – when they returned to the RCMP. After six years with
CSIS, Eshleman returned to the RCMP. He testified that he was not necessarily
welcomed back to the Force with open arms.297
This experience was common to all the key CSIS investigators who went back
to the RCMP. None of Kobzey, Eshleman or Laurie was assigned to the RCMP
Air India Task Force. The RCMP did not see fit to utilize their skills or expertise in
the Sikh extremism area. Even when the RCMP received the Ms. E information
and was advised that Laurie had been the source handler at CSIS and had
developed a good rapport with her, the Force decided not to utilize Laurie’s
services to continue relations with Ms. E on behalf of the RCMP. Instead, the
RCMP treated Laurie with suspicion, making implicit accusations that he had
withheld information or that the information he related about what Ms. E had
told him was inaccurate.298 In many respects, the RCMP missed the opportunity
to capitalize on the extensive experience of the CSIS investigators.299
294
295
296
297
298
299
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9383-9384.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9384.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9382-9385.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9452.
See Section 1.3 (Post-bombing), Ms. E.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8345.
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There was, reciprocally, at CSIS, a lack of confidence in the RCMP’s abilities.
There was a perception that the RCMP was generally unable to capitalize on the
CSIS information it had already been given, because of an apparent lack of “…
continuity of knowledge, and their method of retrieving that was more labourintensive than ours.”300 From CSIS’s perspective, extensive turnover in the RCMP
investigation only added to the problem by limiting institutional memory.301
CSIS investigators felt that the RCMP was not appropriately following up on or
investigating some of the leads and information provided by CSIS. There was
frustration for the CSIS investigators at having to restrict some of their activities
for fear of being accused of contaminating the RCMP investigation, while at the
same time they did not see the RCMP pursuing avenues CSIS believed to be
worthwhile as vigorously as the CSIS investigators would have or could have. In
the message it sent to CSIS HQ and to all CSIS regions and districts, requesting
clarification about the best way to proceed when the RCMP requested
assistance in connection with the Reyat’s arrest, the CSIS BC Region specifically
addressed the issue of past cases where it had provided investigative leads
which the Region felt “…were not given exhaustive follow-up” by the RCMP. BC
Region asked HQ whether, in such cases, it had to continue to stay out of the
Air India investigation, or whether it could do its own follow-up where “avenues
of investigation” still remained after information was passed to the RCMP. The
Chief of the Counter Terrorism Section of the Region explained that on the
basis of the RCMP E Division response to some leads provided by CSIS, “…the
perception was that these were not exhausted.”302 CSIS HQ provided no further
guidance to assist the Region with this matter.303
Further, CSIS did not trust that the RCMP would refrain from using its information
in judicial processes without authorization, especially after the September 19th
affidavit experience. CSIS was also concerned about the RCMP’s handling of
sensitive material. Some of the information passed to the RCMP was occasionally
lost, misplaced or forgotten.304 This resulted in the need to request missing
information from CSIS, even when the information had already been requested
and provided in the past.305 Not only could this cause confusion and delays, but
it would obviously do nothing to reassure CSIS that its information was being
treated with care.
Security of Information and Risk of Exposure
Another cause of concern for CSIS was the manner in which the RCMP protected
the confidentiality of CSIS information internally. Stevenson testified that the
need-to-know principle was not relied upon to the same extent in the RCMP as
it was at CSIS. Whatever deficiencies the rigid application of the need-to-know
principle might create for an effective investigation in terms of the sharing of
300
301
302
303
304
305
Testimony of Mervin Grierson, vol. 75, November 14, 2007, p. 9461.
See Section 2.0 (Post-bombing), Set-up and Structure of the Federal Task Force.
Exhibit P-101 CAA0627(i), pp. 5- 6.
Exhibit P-101 CAA0628; See Section 3.0 (Post-bombing), The CSIS Investigation.
See, for example, Exhibit P-101 CAA0969, p. 24.
See Section 2.0 (Post-bombing), Set-up and Structure of the Federal Task Force.
�Chapter IV: CSIS/RCMP Information Sharing
relevant information, it was nevertheless viewed as very effective in terms of the
security of that information. CSIS expected the RCMP to understand its need-toknow orientation and to act in a similar manner. However, Stevenson found the
situation in RCMP operations to be in stark contrast with the CSIS approach. On
a “daily basis” he found files and information “…left lying on desks.” Though this
was in a restricted area, cleaners, often of a similar background to individuals
the RCMP was investigating, “…were wandering around freely within the
working bullpen of the RCMP.” Similarly, at the RCMP, Stevenson could “…quite
easily figure out who the translator or translators were.” He felt this pointed to
a security risk for those translators. In sum, he stated, “I didn’t think it was good
security.”306
CSIS also repeatedly expressed fear that the RCMP would come to know the
identities of CSIS sources and targets through the “mosaic effect,” that is “…the
possibility that an analyst adding to [CSIS] information their own information
would be able, over a period of time, to identify sources.”307 Scowen on the other
hand, testified that the threat posed by the mosaic effect “…wasn’t an overriding
concern, but it was a consequence of our cooperation.”308 It was enough of an
issue, however, to be the subject of a high-level memo to the DDR in 1986, in
which it was identified as a concern that was not capable of being addressed by
an MOU on the transfer and sharing of information.309
Information Sharing Issue Left Unaddressed
Overall, the RCMP and CSIS seemed to lack the ability to communicate their
needs to each other. The basic assumptions made by each agency about the
fundamental issue of who should decide what information was relevant were
clearly at odds with each other, but the issue was apparently never addressed
directly. No resolution was found for the impasse – at least through the Reyat
trial and, arguably, even after that. Miscommunications persisted and the
relationship between the two organizations continued to falter. Valuable time
was wasted while the agencies repeated the same debates over and over again
but never addressed the underlying issues. Both agencies failed to recognize
the problem for what it was and to take steps to correct it.
Raw Material versus Information and Leads
While the RCMP Task Force obtained free-flowing access to the relevant CSIS
sitreps during the early days of the investigation, requests for raw data, such as
underlying surveillance reports, interview notes, or intercept logs were generally
met with resistance.
As a matter of policy, CSIS only shared intelligence reports dealing with its
intercepts and never the intercepts themselves. What the RCMP got was a
document outlining information derived from CSIS wiretaps that CSIS believed
306
307
308
309
Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7674-7675.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6165.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6166-6167.
Exhibit P-101 CAA0415.
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would be of assistance to the RCMP. The intercept tapes or the notes prepared
by the CSIS transcribers and translators who listened to the tapes were not
made available.310
On an “exceptional basis,” CSIS would allow the RCMP to use its own resources to
translate tapes. This expedient was employed when RCMP Cst. Manjit (“Sandy”)
Sandhu was indoctrinated into CSIS to help review the Parmar Tapes in the fall
of 1985.311 The result was to reduce CSIS exposure, by removing the need for a
CSIS translator to appear in court, avoiding the issue of naming the translator in
public. However, this solution was only adopted by CSIS when its resources did
not allow for the timely translation of the Parmar Tapes and did not appear, at
the time, to be intended as a long-term policy solution geared towards avoiding
exposure of the translators and transcribers.
CSIS’s view of its information-sharing obligations to law enforcement was based
on its model of providing investigative leads with possible added CSIS assessment
to “…facilitate the RCMP’s job.”312 In his testimony, Hooper explained that CSIS’s
practice, which was generally not to provide “transcripts” (intercept notes),
notes or other “raw material” to the RCMP, was based on CSIS’s interpretation of
what he characterized as the proscriptive nature of section 19 of the CSIS Act.
Section 19 forbids the dissemination of CSIS information obtained during the
course of its duties and functions, but then sets out four exceptions, including
disclosure to a law enforcement body. Hooper noted that the exceptions were
to be triggered at the discretion of the CSIS Director, and thus, in his view, it
was the Director alone who was to decide whether to release certain classes of
information to the RCMP.
In considering the possibility of routinely passing information to the RCMP and
providing full access to raw materials, a possibility Hooper described as doing a
“data dump” on the RCMP, CSIS had to consider whether it was failing to meet the
expectations of Parliament by stripping the Director of the discretionary power
accorded by the statute.313 According to Hooper, it was on this basis that CSIS felt
that the “…wholesale release of all forms of information to the RCMP would not
be in keeping with the law,”314 and consequently tried to draw a line based on a
distinction between original records (“raw materials”) and intelligence reports.
As a matter of statutory interpretation, and also as a matter of logic, this argument
is difficult to defend. A blanket prohibition on disclosing raw intercept materials
is hardly necessary as a means to preserve the Director’s discretion. Indeed the
initial decision to grant access to the Parmar intercept logs is clearly an example
of exercising the discretion granted by section 19. Distinguishing between raw
materials and summaries is equally unrelated to ostensible privacy concerns,
since it is the content of the disclosure, not its form, that might damage privacy
rights.
310 Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6142.
311 Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6191; See Section 4.3.1 (Post-bombing),
Tape Erasure.
312 Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6221.
313 Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6220-6221.
314 Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6221.
�Chapter IV: CSIS/RCMP Information Sharing
In the end, it appears that CSIS’s attempt to control the form in which
information was made available to the RCMP was in fact intended to prevent
the possibility of future use and disclosure of the information in court. Grierson
stated that when leads were provided by CSIS, the RCMP would ask for evidence
such as “…notes, tapes of interviews, verbatim, all of the things that they do,
in an evidentiary collection model.” Grierson testified that, in his view, the Act
prohibited CSIS from keeping such material, because Parliament had opted for
a civilian service. This is another way of stating that, as a civilian agency, “CSIS
does not collect evidence.” The result was that the RCMP kept revisiting the issue
of CSIS disclosure and persistently complained that CSIS was not giving over
everything it had.315
Inkster explained that access to original documents or “raw data” – as opposed
to summaries of information from CSIS – is important in the policing context
because only RCMP officers have a full understanding of all relevant documents
and information in relation to the investigation and thus it would be “impossible”
for “…a CSIS individual to conclude the relative merits and value of that
information” without that background.316 Roth testified that the raw intercept
notes provided much more information than the sitrep summaries which were
cleansed to protect CSIS’s interests.317 According to Inkster, direct access to raw
materials was necessary since the RCMP investigators on the file were in the best
position to understand the subtleties of information and to make connections
and understand the significance of information relating to the case.318 In other
words, aside from issues surrounding the possible use of CSIS materials as
evidence, the RCMP felt that CSIS was unjustifiably denying access to important
information by refusing to provide raw materials. From the RCMP point of view,
this was another instance of CSIS unilaterally deciding what information was
relevant to the criminal investigation.
An RCMP memorandum, likely written in the fall of 1989, makes clear the RCMP’s
view of the effect of CSIS policies on the RCMP investigation of the bombing.
The document states that “…RCMP investigators should have received any
and all surveillance material in the raw data form of surveillance notes, tapes,
verbatim transcripts, verbatim translations (if they existed) and the ‘final reports’
prepared.”319 However, the conversations that were intercepted by CSIS were
only “…summarized in a paraphrased manner” and verbatim transcripts were
not made available to RCMP reviewers.320 The document notes that:
During the Air India investigation CSIS was unwilling
to provide to the RCMP complete verbatim transcripts
of intercepted private communications or any details
315
316
317
318
319
320
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9459-9460.
Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10322-10323.
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5622.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10324.
Exhibit P-101 CAA0750, p. 1 [Emphasis added].
Exhibit P-101 CAA0750, p. 1.
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surrounding how, where and when their information was
developed and obtained. These measures required the Force
to develop information supplied by CSIS thereby restricting
appropriate investigative avenues.321
The delay, uncertainty and limited access provided by CSIS to certain materials, as
a result of its legalistic and narrow approach and of its inability to devise policies
based on common sense in the early stages of the post-bombing period, were
perceived as hindering the RCMP investigation. About the changing access to
the Parmar intercept logs, Hooper testified that “…in many respects we were
trying to be quite reasonable actually.”322 The overall impression for the RCMP,
however, was not one of reasonableness, especially in the context of such an
immense tragedy. Instead, it appeared that CSIS was acting erratically, without
well thought-out policy guidelines, as it kept changing the rules.
The Use of CSIS Information
In its briefing to the Honourable Bob Rae, CSIS pointed to the vast quantity of
information it had made available to the RCMP Task Force early on, but noted
that frustrations emerged because of the limits which the Service felt had to be
placed on the use that could be made of its information:
Because of its mandate and the requirement to protect the
methodologies, targets and sources, and because it does not
collect evidence, the Service necessarily placed a caveat on the
use to which this information could be put. It is clear that this
prompted considerable frustration on the part of the RCMP.
The Service understands the frustration that this caused within
the RCMP, and how their perception would have coloured any
cooperation that did take place.323
Certainly, the inability to use CSIS information as evidence or in support of
warrant applications by the police – whether because the CSIS raw materials
were not provided because they had not been preserved or because CSIS
refused to grant authorization – was the cause of significant frustrations for the
RCMP investigators in the early days of the Air India investigation and was the
most important factor contributing to the escalation of the tensions between
the agencies.
Many criticisms have been levelled against CSIS’s approach to sharing
information with the RCMP. Given the debates about the need for more specific
RCMP requests and the refusal to provide raw materials, in many cases these
criticisms were not entirely unwarranted. However, the recriminations were
taken a step further, with many at the RCMP eventually coming to believe that
321 Exhibit P-101 CAA0750, p. 2.
322 Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6224.
323 Exhibit P-101 CAA1086, p. 7.
�Chapter IV: CSIS/RCMP Information Sharing
the disputes over access to CSIS information, and the delays in obtaining the
information, prevented the RCMP from identifying those responsible for the
Air India bombing early on and caused the investigators to focus on the wrong
suspects. Early on in his review of the Air India file, Bass concluded that, if CSIS
had cooperated more fully with the RCMP at the beginning of the investigation,
“…the case would have been solved at that time.”324 Bass believed that because
of the time it took for CSIS to inform the RCMP about the existence of the
communications intercepts, and because of the subsequent erasure of the
tapes, the RCMP began its investigation in June 1985 focusing on the wrong
targets. In a 2003 briefing note to the RCMP Commissioner, Bass noted that:
As a result of the Force not being aware of the contents of the
intercepted material on Parmar until September [1985], the
crucial linkages between Parmar and the key [co-conspirators]
went unknown to the Force. In August, the Task Force swore a
Part IV.I (now Part VI) affidavit on persons not connected with
the offences.325
In its submission to the Honourable Bob Rae, the RCMP indicated that it was
only when it received access to the Parmar intercept notes in September 1985,
two and one-half months into the investigation, and was then able to analyze
some of the coded conversations in the intercept notes, that its perspective on
the investigation shifted “…to consider Parmar more of a primary suspect rather
than as peripheral to Reyat.”326
In fact, however, the RCMP was aware of Parmar as a prime CSIS target early in
July 1985. At the time, all of the CSIS surveillance and intelligence reports were
turned over promptly in British Columbia. Those reports contained all of the
information that CSIS itself considered relevant to its analysis, and set out CSIS’s
theories of the case. In particular, the June 27th CSIS sitrep, which would have
been available to the Task Force in early July,327 contained references to some of
the Parmar conversations which were later identified by the RCMP as providing
serious indications of Parmar’s involvement.328 CSIS also advised the RCMP, as
soon as it became aware through its own analysis in August 1985, that coded
language was used in some of Parmar’s conversations.329
The real debate was not about the RCMP being kept in the dark about the CSIS
information pointing to the identity of the prime suspects. The root of the problem
was the RCMP’s continuing focus on access to the underlying, or “raw,” materials,
and the desired ability to use those materials in support of its own warrant
applications, and CSIS’s resistance to provide this access and authorization. On
the one hand, it appears that CSIS believed that simply informing the RCMP of
324
325
326
327
328
329
Exhibit P-101 CAA0932, p. 5.
Exhibit P-101 CAA1007, p. 3.
Exhibit P-101 CAA0335, pp. 22-26.
Exhibit P-101 CAA0379(i), p. 9.
Exhibit P-101 CAB0360, pp. 6-7.
Exhibit P-101 CAA0308, CAA0309(i).
405
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what it learned would be sufficient to enable the Force to go off and do its own
separate investigation, when in fact, at the very least, the RCMP would have
had to include detailed information about what CSIS knew and how it knew
it in any application it would have made for the warrants and authorizations
needed to conduct its investigation. On the other hand, the RCMP confused
CSIS’s reluctance to grant access to raw materials and to authorize their use in
judicial proceedings with a lack of access to the actual information, even while
the information was, for the most part, available from the beginning.
The reason for the Task Force’s frustration was that it believed it could not
proceed with a wiretap application against its most important suspects without
the detailed “raw” information contained within the CSIS translators’ notes
and intercept logs. Bass explained that the failure to obtain RCMP wiretaps
against Parmar much sooner than was ultimately done was a lost opportunity.
He believed that the immediate post-bombing period was critical to the
investigation in terms of intercepting communications.330 He testified that
if he had been involved in the investigation in 1985 and had been aware of
the information obtained via the CSIS pre-bombing intercepts, he would have
concentrated more directly on the principals suspected in the conspiracy and
would have sought authorizations to intercept communications at the pay
telephones within proximity to their places of residence.
The RCMP expected CSIS to be able to provide information that could be used
as evidence. Bass believed that had the CSIS Parmar intercept tapes not been
erased, a successful prosecution could have been brought against at least some
of the principals in the bombing of Air India Flight 182, using the CSIS tapes as
evidence.331 Wall indicated that the sense of frustration amongst the members
of the Task Force was caused by the fact that “…we weren’t getting what we
thought we should in terms of hard evidence or original evidence.”332
In August 1985, the RCMP did reorient its investigation to focus more on
Parmar.333 This was done on the basis of an analysis at RCMP HQ of the
information already in the RCMP’s possession, along with the information that
was being acquired about Reyat’s suspicious purchases. This decision could have
been made earlier by the RCMP. The summaries provided by CSIS in its sitreps
were sufficient to lead to the conclusion that Parmar and his close associates
should be prime suspects. The need for raw data about the CSIS intercepts and
the delay in accessing it cannot fairly be said to have “caused” the RCMP to focus
on the wrong targets, though it is possible that it may have prevented the Force
from being able to support a wiretap application earlier. Even on this last point,
Bass could not state with certainty that the other information available to the
RCMP would have been insufficient to obtain an authorization to intercept the
communications of Parmar and his associates earlier, although he thought it
was likely the case.334
330
331
332
333
334
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11239-11241.
Exhibit P-101 CAA0932, p. 3.
Testimony of Robert Wall, vol. 76, November 15, 2007, p. 9674.
Exhibit P-101 CAA0303; See Section 2.3.4 (Post-bombing), The Khurana Tape.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11241. See, generally, Section 2.0 (Postbombing), Set-up and Structure of the Federal Task Force.
�Chapter IV: CSIS/RCMP Information Sharing
The real issue which divided CSIS and the RCMP from the early days of the Air
India investigation was about the use of CSIS information for court purposes.
CSIS was concerned not to be seen to be collecting evidence, while the RCMP,
as a police entity, felt it had a need for evidence, not intelligence.
When it provided information to the RCMP, CSIS generally specified that it was
provided as “investigative leads” and attached caveats restricting the use that
could be made of the information without CSIS’s prior consent.335 The 1984
information-sharing MOU also provided that “…the receiving agency shall not
initiate action based on the information provided without the concurrence
of the providing agency.”336 All information released to the RCMP would be
accompanied with the caveat that it could not be disseminated further without
CSIS authorization.
In his testimony, Warren noted that CSIS places caveats on almost all information
it passes.337 The caveat is a boilerplate warning, intended to conceal the identity
of the source of the information and to protect sensitive information from further
dissemination. Stevenson testified that “…any intelligence service worth its salt
will put caveats on its information,” particularly information passed to the police,
in order to have “…care and control” of the information and to know where it
has gone and how it is being used.338
Bass testified that he understood why CSIS felt from its perspective that it was
important to place caveats on the use of its information, but he did not agree
that the caveats were always “necessary.”339
Deputy Commissioner Henry Jensen wrote to the Assistant Deputy Solicitor
General about the issue on July 14, 1988.340 He noted that CSIS information was
heavily caveated, and that this was problematic because it precluded the use
of CSIS information in subsequent criminal investigations and prosecutions.
Jensen was concerned that while CSIS had committed to passing information on
criminal conspiracies as early as possible, this passage would in practice generally
only occur after the conspiracy was formulated. At that late stage, Jensen felt
that the conspirators would already have become more cautious, resulting in
a “catch-22” situation where the RCMP needed to rely on CSIS information to
support its investigation. Jensen noted CSIS’s fears of exposure of its sensitive
information in court, as well as the potential perception that cooperation
between CSIS and the RCMP would indicate that CSIS was performing a quasipolice function. While Jensen recognized these fears, he emphasized the
seriousness of the conspiracy offences. Jensen noted that the Solicitor General’s
office had previously recognized the need to develop specific policy guidelines
governing the RCMP use of CSIS information, but that no such guidelines had
been formulated. Jensen pressed the Ministry to address these issues.341
335
336
337
338
339
340
341
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6163; Exhibit P-101 CAA0447.
Exhibit P-101 CAA0076, p. 4.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5846.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7657.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11225.
Exhibit P-101 CAC0061.
Exhibit P-101 CAC0061, pp. 1-3.
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In the absence of concrete policy guidelines from Government, CSIS made its
own decisions about whether to authorize the use of its information, based on
its own concerns and on its own assumptions about the criminal process. In
1986, CSIS stated in an internal memorandum:
In the event that intelligence provided is requested for use as
evidence or court purposes, then CSIS HQ must be consulted
prior to any authorization being granted.… HQ will request a
legal opinion and a management judgment will be based on
that opinion. While we accept the importance of the judicial
system in fighting terrorism, it is not our intention to hand over
carte blanche all intelligence required for court by the RCMP.342
In testimony before the Inquiry, Scowen commented that the overriding
consideration in deciding whether to authorize the use of CSIS information in
court was the preservation of CSIS capabilities in the long-term.343
As illustrated by the September 19th affidavit episode, the CSIS concern was
not only about the attempt to use its information as evidence in a court of law.
Using the information in support of intercept or search warrant applications
presented by the RCMP could also expose the information to ultimate public
disclosure. This possibility was tied to the change in criminal procedure that
took place in the mid-1980s whereby the “sealed packets” containing affidavits
in support of wiretap authorizations were now routinely “opened” and examined
in court.344 In a 1987 memo, Barr noted that recent court cases had made it a
virtual certainty that CSIS information used in Criminal Code wiretap affidavits
and warrant applications would be disclosed to the defence. As such, the
decision to provide CSIS information for any use in the criminal process was a
“…very serious one indeed and must be weighed in the light of the competing
public interests of successful prosecution and the need to protect the national
security of Canada.”345
For the RCMP, CSIS restrictions on the use of its information were viewed as
creating a dilemma and as complicating its legal position:
The RCMP viewpoint on using CSIS information in judicial
affidavits was that if the information was provided for
investigative leads only, the RCMP was then seized with
knowledge of criminal activity yet was unable to use the
information to fulfil its mandate under the Security Offences Act
when attempting to further the investigation.346
342
343
344
345
346
Exhibit P-101 CAB0666, p. 3.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6180-6181.
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6227.
Exhibit P-101 CAF0272, p. 3.
Exhibit P-101 CAA0881, p. 13.
�Chapter IV: CSIS/RCMP Information Sharing
As explained by Inkster, “…when someone gives you the information and yet
tells you how you can or cannot use it, you’re sometimes better off not to have
it.”347
On this issue, James Jardine testified that it was necessary, in order to fulfill the
police and Crown’s legal obligations, to include information in the September
19th affidavit about the nature of the CSIS materials, the difficulties encountered
by the RCMP in accessing them, and the type of access finally provided.348 About
the November search warrant application, which did not reveal the fact that CSIS
was a source of the information in an attempt to accommodate CSIS concerns,
Jardine testified that he was not consulted before this approach was adopted,
and that he felt it made the warrant vulnerable to constitutional attack.349 This
was particularly significant in the Reyat trial, because the Crown’s case rested
in large part on the forensic analysis of some of the items seized at Reyat’s
residence pursuant to the search warrant. If the warrant was found to be invalid,
defence counsel could seek the exclusion of these items from the evidence as
a remedy.350
CSIS ultimately authorized the use of much of its information and materials in
the Reyat trial in the early 1990s and then in the recent prosecution of Malik
and Bagri.351 Issues arose as to the admissibility of some of the material, and
constitutional challenges were mounted because of CSIS’s failure to preserve
original records,352 but CSIS nonetheless did authorize the use of its information
in court. It would appear, however, that this authorization was largely driven by
the view that Air India was a “special case.”
Grierson stated that the Air India investigation was an exception and that
the public interest dictated that CSIS needed to do everything it could to
assist.353 Scowen also indicated that special exceptions were made from a
policy standpoint in the Air India case due to the overwhelming magnitude of
the bombings. According to Scowen, Barr made it very clear that if CSIS were
to come across the “smoking gun” or uncover investigative leads that would
allow the RCMP to close the Air India case, “…all bets are off.” The information
would be passed directly, regardless of whether it exposed a source, and the
consequences would be dealt with later.354
Given the constant tensions and debates over every request for CSIS information,
one wonders how the RCMP’s initial approaches to CSIS for access to raw
347
348
349
350
351
352
353
354
Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10325-10326.
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5721-5722; Exhibit P-101 CAA0575(i), p. 6;
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5721-5722; Exhibit P-101
CAA0575(i), p. 6.
See Section 4.4 (Post-bombing), CSIS Information in the Courtroom.
See Section 4.3 (Post-bombing), The Preservation of CSIS “Evidence” and Section 4.4 (Post-bombing),
CSIS Information in the Courtroom.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9459-9460.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6145, 6160-6162.
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material or for the use of CSIS information in judicial proceedings would have
been received if CSIS had not considered the Air India case to be exceptional.
Most importantly, even where, after much discussion and many difficulties, the
disclosure of an important amount of CSIS information was obtained, as was
the case in the preparation for the Reyat trial,355 such robust disclosure was not
necessarily a precedent-setting move by CSIS. Grierson testified that the CSIS
position in the Reyat case was due to the significance of the Air India bombing,
and that in future cases CSIS’s willingness to disclose sensitive information would
depend on the nature of the crime. He stated, “…in terms of the magnitude of
that issue, and the public interest, we did a lot of things that we wouldn’t have
normally done in the due course of intelligence exchanges in order to support
that prosecution, and it was successful.”356
In June 1987, Barr noted that “…in counterterrorism, the distinction between
intelligence and evidence collection will never be absolute and crystal clear.”357
Yet, CSIS’s difficulty to come to terms with situations where it did end up in
possession of evidence continued. It continued to refuse to use police-like
methods for gathering and storing information. It maintained an acutely
cautious approach to authorizing the use of any of its information in judicial
proceedings. Even the successes eventually achieved in the Air India case cannot
be taken as a sign that the problem is resolved.
Human Sources
The issue of protection of human sources was always a central concern for CSIS
in its decisions about information sharing and cooperation with the RCMP.
According to CSIS, human sources are the “most important resource” for any
intelligence service. The protection of these resources is seen as “absolutely
paramount” for CSIS, since the ability to protect sources has a direct impact
on its ability to keep and recruit other human sources. When recruiting human
sources, CSIS would guarantee anonymity “…to the best of their ability” and
would “…go to great lengths to ensure that that is the case throughout their
relationship with us.”358
Concerns about the RCMP’s ability to protect the anonymity of CSIS sources
extended throughout the Air India investigation. In a memo dated November
13, 1986, Warren wrote to all CSIS regions that, due to events demonstrating “…
the apparent inability of the RCMP to restrict dissemination of CSIS information
relating to human sources,” Barr had imposed a temporary moratorium on
the sharing of information with the RCMP where that information could lead
to human source identification.359 The memo noted that the issue would be
discussed at an upcoming CSIS/RCMP Liaison Committee meeting, where a
resolution to the problem would be sought. Whatever the incident that had
355
356
357
358
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, p. 9481.
Exhibit P-101 CAF0272, p. 3.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6154-6155. This promise was not always
fulfilled: See Section 1.3 (Post-bombing), Ms. E.
359 Exhibit P-101 CA0682(i), p. 1.
�Chapter IV: CSIS/RCMP Information Sharing
precipitated this particular crisis, CSIS’s concern for the protection of its sources
continued to influence the nature and the extent of the information it was
willing to share with the RCMP. CSIS’s belief that its paramount concern for the
protection of human sources was not shared by the RCMP, or at least not to the
same extent,360 caused additional tensions between the agencies.
Over the years, CSIS did develop a number of sources who became relevant
to the Air India investigation.361 CSIS agents seemed to have a better sense of
the Sikh community and were often able to make better community contacts
than the RCMP.362 Eshleman testified that CSIS had a “…good success rate in
utilizing casual sources,” who provided CSIS with good intelligence and a useful
understanding of the various organizations they were targeting.363
As CSIS developed sources, the RCMP responded by demanding access to those
sources, often demonstrating a sense of entitlement in pursuing a purported
right to “take over” CSIS sources or contacts where it was felt the individuals
provided or could provide information relevant to the Air India investigation.364
Grierson testified that, despite the fact that the RCMP’s own policy was not to
identify sources, whenever CSIS shared information with them the “first question”
they would ask pertained to the identity of the source. Grierson viewed such
behaviour as unprofessional. He stated that in a number of cases “…it was almost
unbelievable that they would have – take the aggressive nature that they did in
terms of demanding it.”365 In a memo discussing Ms. E, Stevenson described the
RCMP attitude in these matters as follows: “…these individuals will not rest, or
desist until they have interviewed the source or satisfied their curiosity as to the
source’s identity.”366
The transfer to the RCMP of information from CSIS sources, and, in some cases,
of the sources themselves, led to serious morale problems for CSIS investigators,
in particular among the source handlers.
Grierson testified that the BC Sikh unit had five or six very dedicated investigators
who had a “…wealth of knowledge” about the Sikh extremism milieu. He
stated that “…one after another” they would put their efforts into developing
a source, only to lose that source to the RCMP. Grierson stated that this was
very discouraging for the investigators and left them asking “…why do we even
bother doing this anymore?” It became an immense challenge to try to keep the
investigators motivated.367
Morale issues and lack of motivation may have contributed to the loss by the
CSIS BC Region of three of its most knowledgeable Sikh extremism investigators.
Ray Kobzey, Willie Laurie and Neil Eshleman all returned to work for the RCMP in
360
361
362
363
364
365
366
367
See Section 1.5 (Post-bombing), Ms. D and Section 1.2 (Post-bombing), Tara Singh Hayer.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8326-8327.
See Section 1.0 (Post-bombing), Introduction.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9402-9403.
See, generally, Chapter I (Post-bombing), Human Sources: Approach to Sources and Witness Protection.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9485-9486.
Exhibit P-101 CAF0404, p. 5.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9508-9509.
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the late 1980s. Eshleman testified that he returned for a number of reasons, “…
some personal, some operational.” He testified that there was often a “…lack of
recognition” at CSIS from senior people for the work done in the field. He stated
that a number of the people who testified at the Inquiry “…put their heart and
soul” into the Air India investigation, but that their efforts were not appreciated
by CSIS.368 No doubt, being forced to give up sources an investigator had spent
long hours cultivating, only to see the RCMP scare the source away or reject
their information,369 would be perceived as a sign that the investigator’s work
was not being appreciated by senior management. It appears that investigators
felt they were at risk of being personally blamed, and not backed up by their
organization, whenever the RCMP accused CSIS of interfering with the criminal
investigation.370
The general sentiment among CSIS investigators appeared to be one of outrage
that the RCMP would demand and often obtain access to their sources. They
distrusted the RCMP’s professionalism in handling its relations with sources, and
even questioned its basic competence and ability to recruit sources. In one note
written in connection with the Ms. E issue, Stevenson wrote: “…one of these
days they will surprise us and develop a source or an asset of their own.”371
The dissatisfaction among CSIS investigators with the results when the RCMP
took over the CSIS sources also naturally made them more reluctant to share
information that might enable the RCMP to identify those sources and ask for
direct access to them. When the Ms. E information was first received by CSIS,
despite its clear relevance to the criminal investigation, the CSIS investigator
and his supervisors all concluded that it was better to allow CSIS to continue to
develop the information, since the source would most likely provide nothing to
the RCMP.372
Information Sharing by the RCMP
The difficulties in sharing did not operate in only one direction. The RCMP also
was often hesitant to share its information with CSIS. Throughout the postbombing period, many at CSIS felt that the RCMP, while aggressively demanding
access to CSIS information, was reluctant to share its own information. CSIS
complaints about information sharing being a “one-way street” from CSIS to the
RCMP, both generally and in the context of the LO program,373 were recurrent.
What can be observed, interestingly, is that the RCMP often adopted practices
that were very similar to the CSIS practices which it so consistently complained
about. Like CSIS, the RCMP was vetting its information prior to sharing, was
providing partial documents in order to tailor its responses to the requests, and
was adding caveats to the information it provided.
368
369
370
371
372
373
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9450.
See Chapter I (Post-bombing), Human Sources: Approach to Sources and Witness Protection.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9498-9499.
Exhibit P-101 CAF0404, p. 5; Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7692.
See Section 1.3 (Post-bombing), Ms. E.
See Section 4.2 (Post-bombing), The Liaison Officers Program.
�Chapter IV: CSIS/RCMP Information Sharing
Though RCMP sharing with CSIS was made mandatory under the 1984
information-sharing MOU,374 the RCMP decided that its files would have to be
reviewed prior to providing access to CSIS and that, even after such a review,
only the portion of the file specific to the particular CSIS inquiry could be shown
to CSIS. Decisions about whether access would be provided to CSIS to materials
of mutual interest and if so, to what extent, were described by the RCMP
Director of Criminal Investigations as “…subjective decisions that the RCMP
member will have to make based on all the circumstances.” It was concluded
that in some cases it would be impossible to provide the information requested
or that the information would have to be transferred to a separate document in
order to be sufficiently isolated.375 RCMP members responding to CSIS requests
for RCMP HQ files vetted the materials and provided or shared only “releasable
information.”376
Part of the Project Colossal agreement was that RCMP information related to
CSIS’s mandate would be shared with CSIS. Scowen testified, however, that the
volume of information CSIS supplied to the RCMP always greatly outweighed
what the RCMP provided to CSIS.377 While this may have resulted simply from
the fact that CSIS gathered more information than the RCMP, the Service saw
indications, in some instances, that there was also a failure on the part of the
RCMP to share the information that it did gather.378 At the same time, some
members of the E Division RCMP Task Force got caught up in an attitude of
suspicion and competition, and were reluctant to share the product of their
work for fear that it would provide CSIS with a “free benefit,” while they believed
CSIS continued to hold out on providing its own information.
CSIS took issue with “…the RCMP’s restrictive use of caveats on the grounds of
conducting a criminal investigation,” arguing that this was “…hindering the CSIS
from fulfilling its responsibilities.” In particular, CSIS was concerned about an
RCMP practice of putting caveats restricting the use of its information relevant
to Air India until the investigation was completed. While CSIS understood that
an RCMP caveat could be necessary in some circumstances, for example to avoid
jeopardizing the execution of a search warrant, the Service noted that the RCMP
“…should not use the caveats frivolously to obtain a competitive advantage.”379
The Centralization of Information Sharing
Decisions about information sharing between CSIS and the RCMP were often
made at the HQ level in both organizations. While this was more conducive to
creating and applying consistent policies, this structure contributed to creating
tensions within and between the agencies. In CSIS’s case, it often operated as an
additional pressure militating against sharing with the police.
374
375
376
377
378
379
Exhibit P-101 CAA0076, p. 3; Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1666.
Exhibit P-101 CAC0018, p. 2.
Exhibit P-101 CAC0026(i).
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6175.
See, for example, Exhibit P-101 CAB0590, pp. 4-9, 11-14.
Exhibit P-101 CAA0743(i), p. 6.
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CSIS policy generally required that if there was a possibility that information to
be shared would lead to, or become relevant to, a criminal investigation, the
exchange of information had to be pre-cleared with CSIS HQ, which was where
the decisions about information sharing with the RCMP were made. Where
authorization was sought by the RCMP to use CSIS information in the judicial
process, CSIS HQ also insisted on being advised and on making the decision, in
light of the risk that its information would be disclosed to the defence.380
In practice, this centralized decision-making structure resulted in a delay in the
exchange of information while the CSIS regions sought authorization from HQ
and waited for a response. This left the RCMP with the impression that CSIS was
not providing information fast enough.381
During a 1987 meeting about the LO program,382 the CSIS BC Region cited
ongoing problems associated with passing perishable or life-threatening
information to the RCMP, noting that often this information surfaced late in the
day, or on weekends, when CSIS HQ offices in Ottawa were closed. The CSIS
policy at the time provided that the regions had the autonomous authority
to pass such information directly to the RCMP, provided HQ was immediately
advised of the information that had been passed.383 In practice, when the
regions exercised this autonomy in cases involving time-sensitive information
or “immediate threats,” internal tensions arose.
During the attempted murder trial of the Sidhu shooters, the CSIS BC Region
came into possession of information about an upcoming meeting of Sikh
extremists and obtained technical coverage. During the meeting a statement
was made with reference to “…a judge, a courtroom and the difficulty of killing
people who are afforded some form of security.”384 The Region believed the
information constituted a threat to a judge while sitting in court, possibly the
judge involved in the Sidhu trial.385
Not wishing to make the same mistake that had resulted in the shooting of Sidhu
– when information warning of the attack was obtained by CSIS and was not
provided to the RCMP386 – BC Region made the decision to pass the information
to the RCMP immediately, without first seeking guidance from HQ. The Region
provided extensive access to raw materials. Corporal Don Brost of the RCMP was
allowed to review the pertinent verbatim material written by the translators,
raw materials usually restricted to CSIS. Brost did not disagree with the CSIS BC
Region assessment that a threat to a judge was involved.387
380
381
382
383
384
385
386
387
Exhibit P-101 CAF0272, p. 3.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9465-9467.
See Section 4.2 (Post-bombing), The Liaison Officers Program.
Testimony of Chris Scowen, vol. 50, September 21, 2007, pp. 6151-6152, 6154; Exhibit P-101 CAF0272,
pp. 2-3, CAF0275, p. 1.
Exhibit P-101 CAB0724(i), p. 2.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9467-9469.
See Section 3.0 (Post-bombing), The CSIS Investigation.
Exhibit P-101 CAB0724(i), p. 2.
�Chapter IV: CSIS/RCMP Information Sharing
BC Region reported the incident to CSIS HQ and was criticized for its actions.
The information was assessed at HQ and the Region was advised that it should
not have disclosed the information because “…quite clearly they weren’t really
talking about killing a judge.” Grierson, then the Deputy Director CT in the BC
Region, testified that the Region could not risk making a mistake. The Region
made the decision based on the possible risk and what they perceived to be the
immediacy of the threat. Grierson testified that, faced with a similar situation
in the future, the Region would have made the same decision and would have
incurred the criticism from HQ. This position caused friction because the Region
was “…questioning the authority and the wisdom and the analytical ability of
our counterparts in Headquarters vis-à-vis our analysis.”388
In 1988, BC Region was again criticized by HQ for passing an investigative lead
to the RCMP without first clearing it with HQ. At the time, the Region intercepted
a discussion between Parmar and some of his followers. While discussing a Sikh
in the Punjab, who was caught due to a betrayal by other Sikhs, Parmar stated:
If someone implicates me or gets me arrested for planting the
bomb, that person would have been an insider. How any other
person can do it who doesn’t know anything?389
Grierson testified that, considering who was in the room when Parmar said
those words, the Region thought the statement was “fairly significant.” BC
Region passed the information immediately. HQ was critical of the decision to
pass the information, as HQ felt that there was no “…immediacy of the threat.”
Instead, HQ felt the decision could have waited for HQ to weigh in on the matter.
Grierson stated that the Region only cared that the statement represented a
“significant” investigative lead for the RCMP and hence made the decision to
pass it.390
Though Grierson testified that he would make the same decisions again, despite
having incurred criticism, it must be recognized that the possibility of incurring
criticism from HQ if information was shared without authorization could only
operate as an incentive not to share at the regional level. With the passage of
time, a more relaxed policy was adopted by CSIS HQ that allowed the regions
more autonomy and simply urged them to use common sense in deciding what
information could be passed.391
On the RCMP side, centralizing information sharing was problematic for different
reasons. Because of the RCMP’s decentralized structure, the HQ members often
lacked the knowledge necessary to identify information of interest, to explain
the needs of the RCMP divisions, or to know when to push for more access to
certain information or sources.392 This also made it difficult for the Force to
388
389
390
391
392
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9454-9455, 9467-9469.
Exhibit P-101 CAA0630, p. 2.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9470-9472, 9515-9516.
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9467-9469.
See Section 2.1 (Post-bombing), Centralization/Decentralization and Section 1.3 (Post-bombing), Ms. E.
415
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provide CSIS with the information it needed. The CSIS Liaison Officer at RCMP
HQ received little information because very little was available at HQ.393 Often
CSIS, with its centralized structure, would know about developments at one of
the RCMP divisions before RCMP HQ found out about it. Warren testified that
he understood that the RCMP had a real logistics problem moving intelligence
around because of its decentralized structure. He did not attribute the perceived
lack of sharing at HQ to any bad will on the part of the RCMP.394
The Overly Legalistic Approach to Information Sharing
CSIS legal services played a key role in determining the appropriate level of
access to be granted to the RCMP. Turner testified that all access and disclosure
decisions were made in consultation with the legal branch. In the early years after
the creation of CSIS, the Service relied heavily on its legal counsel to interpret
the effect of the CSIS Act on its operations. In the early stages after the bombing,
all information-sharing decisions were made in consultation with the CSIS legal
branch. CSIS was concerned about second-guessing the Federal Court, which
had been assigned a new oversight role over CSIS information and warrants.
It felt unsure of how the Court would react to the sharing of CSIS information
in light of the new civilian mandate.395 In 1987, Barr noted that the decision to
authorize the RCMP to use CSIS information in support of judicial applications
for warrants or wiretaps had to be made in consultation with CSIS legal counsel,
the Solicitor General and in some cases, the Department of Justice, considering
the “virtual certainty” that it would lead to the disclosure of CSIS information to
the defence.396
This focus on legal aspects, while arguably necessary at times, often led to
unnecessary debates and delays. The lawyers who were consulted about
information-sharing decisions would naturally exercise as much caution as
possible to protect CSIS interests and did not always have a full understanding
of the requirements of the criminal process.397 The ultimate decisions on
information sharing had to be made on the basis of broad public interest
considerations and had to take practical factors into account. They could not be
based solely on legalistic arguments. The over-reliance on legal advice tended
to narrow the scope of information shared by CSIS.
Leaving information-sharing decisions to CSIS HQ could also result in an overly
legalistic focus. When Parmar’s statement about the fact that only an insider could
implicate him or get him arrested was intercepted by the CSIS BC Region, HQ was
stuck in a debate as to whether the statement was inculpatory or exculpatory and
as to its ultimate interpretation if revealed in a court of law. CSIS did have reason
to be concerned about the potential exposure, if its information was used in
court. It is understandable that it might, for that purpose, attempt to assess the
risk that the information would indeed be so used if passed. It does, however,
appear well beyond its role, expertise or qualifications to attempt to determine
393
394
395
396
397
See Section 4.2 (Post-bombing), The Liaison Officers Program.
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5907, 5915.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8297-8298.
Exhibit P-101 CAF0272, p. 3.
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
�Chapter IV: CSIS/RCMP Information Sharing
the substantive interpretation that a court might make of the information and
whether the information would assist in prosecuting a certain individual or not.
In this case, the Region took a more appropriate approach, one that was more
pragmatic as would be expected from those working closer to the ground and
having more operational interactions with the RCMP. Grierson testified that the
Region saw the information as “…a significant potential investigative lead for
the RCMP,” while HQ “…chose to look at it from a legalistic” approach. He argued
that the “bigger question” was the significance of the information and that the
legal ramifications could be determined later, and hence his decision to pass the
information directly to the RCMP.398
Overlap and the Lack of Coordination
While CSIS was concerned about the RCMP’s use of its information and wished
to see the RCMP develop its own information, at times there were also concerns
about potential overlap in the information-gathering activities of both agencies.
Grierson testified that the RCMP did not entirely appreciate CSIS’s role as
intelligence collector, but often took the position that, in order to assess and
interpret investigative leads, it needed to collect its own intelligence. This could
make CSIS’s work in the community more difficult in instances when the RCMP
conducted its own community interviews and community members became
confused about the role of each agency and about the risk of being required to
testify in court.399
The overlap created by the necessity for the RCMP to conduct its own enquiries
separately – whether resulting from the RCMP’s inability to use CSIS’s information
or from the Force’s mistrust in CSIS’s ability to gather information or in its
willingness to share it – was also viewed as inefficient. Grierson testified that
it was counterproductive, because two federal departments were “…working
in the community with a tremendous amount of overlap.” He stated that the
overlap went beyond the interviews and stretched into all of the professional
resources used by both CSIS and the RCMP to collect information. There was
overlap on community interviews, targets and surveillance – all of which made
each agency’s tasks more difficult.400
The overlap problem also went further for CSIS. Because of the risk of
contaminating the RCMP investigation and, at least after the Kelleher Directive,
the explicit requirement not to get involved in or to interfere with the criminal
investigation, CSIS had to refrain from “…actively or aggressively” pursuing
certain of its interests in the BK players suspected of being involved in the
bombing. In the summer of 1987, the CSIS DG CT advised the RCMP E Division
Commanding Officer that if the RCMP investigations were completed, CSIS
would begin to pursue its interests aggressively. BC Region was left in a difficult
position: if it got “…actively involved in ‘pro active’ investigations surrounding
the RCMP’s operations,” it risked interfering with the criminal investigation or
398 Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9470-9472, 9515-9516.
399 See Section 1.0 (Post-bombing), Introduction.
400 Testimony of Mervin Grierson, vol. 75, November 14, 2007, p. 9459.
417
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Volume Two: Part 2: Post-Bombing Investigation and Response
getting “…dragged into a criminal prosecution.” However, given the breadth of
the RCMP list of targets, that did not leave CSIS “much room to [manoeuvre].”401
The Possibility of Joint Operations
One possibility – to avoid some of the negative consequences of overlap and
to achieve better coordination that would have allowed both agencies to work
more efficiently – might have been the conduct of joint operations.
CSIS investigator Laurie testified that the possibility of having himself and his
colleagues Kobzey and Eshleman seconded to a unit where they could work with
the police was discussed within the Region. It was thought that this could help
to make “some strides” towards solving the Air India case, given the knowledge
that the CSIS investigators had acquired and their familiarity with the community.
It seemed as though CSIS had information and expertise that the police did not
have, and vice versa.402 BC Region hoped that CSIS HQ could grant authority
to disclose source information without jeopardizing source identity and that if
they did not have to deal directly with police, CSIS sources such as Ms. E could
be convinced to participate in operations to obtain incriminating statements
from the suspects.403
In the end, however, the secondments did not occur and no true joint operation
took place in the Air India case, although physical surveillance was at times
coordinated.
The 1984 information-sharing MOU contemplated the possibility of joint RCMP/
CSIS operations, and specifically provided for a broader sharing of information
in this context.404 CSIS, however, generally believed that involvement in a joint
operation with a police force would run the risk of exposing its assets.405 Grierson
stated that, in the early years of CSIS, suggesting a joint operation was “…like
horrors of horrors for operational people.” He explained that police forces are able
to combine for “true joint operation[s]” that involve a “…structured, formalized
agreement” and full sharing, including full sharing of sources. However, when
CSIS considered the possibility of such joint operations or task forces, it was felt
that this type of operation would be unacceptable. If all sources and information
were shared, it was thought that CSIS assets and long-term collection goals
would be compromised by making CSIS operations known publicly and thereby
limiting its ability to continue its covert activities and to recruit more sources.
Grierson explained that even the limited coordination for physical surveillance
exposed CSIS to court proceedings: “…when we did that, we knew there was an
associated risk to that because those surveillances could uncover something
that would take them into court and in fact, that did happen.”406
401 Exhibit P-101 CAA0627(i), p. 6.
402 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7433-7434.
403 Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7434-7435. See Section 1.3 (Post-bombing),
Ms. E.
404 Exhibit P-101 CAA0076, p. 4. See also Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1656-1659.
405 Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9335.
406 Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9476-9477, 9491-9492.
�Chapter IV: CSIS/RCMP Information Sharing
Over the years, CSIS modified its initial stance of opposing any joint operation
with the RCMP. Jim Warren, when he became Deputy Director of Operations,
was more open to the possibility of joint operations and rejected the sentiment
that a joint operation would cause “…the sky to fall in.” Rather, he felt that the
risks associated with involvement in a joint operation could be dealt with “…
down the road.”407 While joint operations would clearly entail risks of exposure
for CSIS, Warren’s position shows that the Service’s initial categorical rejection
was at least as much the product of CSIS’s preconceptions as of the real added
risks which could result from such operations.
Despite later changes in CSIS, and its purported newfound willingness to
involve itself in joint operations, the flexibility required to deal with the Air India
investigation was not present in the immediate aftermath of the bombing,
when it was most needed, and the consequences of CSIS’s stubborn, legalistic
adherence to its interpretation of the Act and of its attempts to minimize all risks
reverberated throughout the rest of the investigation.
Conclusion
While some people at CSIS were attempting to solve the Air India case more
or less directly,408 others felt it was their responsibility to support the RCMP
investigation, a task which they completed with varying degrees of success.
The evidence shows that, even within CSIS, there were differing views as to the
appropriate level of support to offer the RCMP. Some felt the pressure of the
McDonald Commission and advocated an austerely legalistic view of what could
and could not be shared, to the point that the discussion and debate slowed
down the transfer of information to the RCMP and created tension between
CSIS HQ and the regions. Others felt that Air India was a case where exceptions
to the rules could be made in the public interest, a sentiment that became more
prevalent in later years.
Throughout, one significant failure was CSIS’s blanket refusal to make any attempt
to collect its information in a manner that would improve the prospect for its
admissibility in court if necessary.409 Ultimately, in its determination to avoid
becoming a “cheap cop shop,” CSIS lost sight of its legitimate role in support of
the RCMP investigation. While it insisted that the collection of national security
intelligence was a clear part of its mandated powers, it failed to recognize that
the RCMP would then need to rely on CSIS for such intelligence in national
security investigations.
Another failure was CSIS’s inability to share its information effectively with the
RCMP. This was often exacerbated by the RCMP’s own actions, which often
showed a lack of understanding for the role of CSIS and a lack of respect for
CSIS’s most important concerns. At times, the manner in which the RCMP
pursued (or failed to pursue) the leads provided by CSIS, and the manner in
407 Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9491-9492.
408 See Section 3.0 (Post-bombing), The CSIS Investigation.
409 See Section 4.3 (Post-bombing), The Preservation of CSIS “Evidence.”
419
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Volume Two: Part 2: Post-Bombing Investigation and Response
which it interacted (or failed to interact) with CSIS sources, caused the CSIS
investigators to propose making their own attempts to pursue criminal leads
and to attempt to avoid turning sources over when they felt better positioned
to obtain information of benefit to both agencies.
This is not to say that every RCMP complaint about CSIS information sharing was
well-founded. In particular, it is not clear that the RCMP was in fact held back
from pursuing Parmar, and other principal suspects, early in the investigation
because of information-sharing failures by CSIS. For all of the difficulties
experienced by the RCMP in obtaining access to the Parmar intercept materials
in order to include them in an affidavit for purposes of obtaining a wiretap, it
cannot be said that the RCMP was misled as to who the key suspects would be.
The security of CSIS human sources, translators and methods was, and is, of
great importance. The Air India investigation, however, raised the question of
the limits of the protection CSIS could legitimately invoke in the face of the
imperative of prosecuting those involved in the murder of 331 persons. Because
of the numerous problems in the CSIS/RCMP relationship, and because of the
overly rigid and legalistic approach often adopted by CSIS, information-sharing
disputes often prevented this balancing act from being properly carried out.
Information was refused or delayed because CSIS did not – and in some cases
legitimately could not – trust that it would not be used without authorization.
Information sharing was also affected by the fear not only of losing sources
to the RCMP, but also of the manner in which the RCMP would handle those
sources and follow up on CSIS information. A legalistic distinction between “raw
material” and information was sometimes invoked to refuse access to certain
types of materials. In the back-and-forth debates about the breadth of RCMP
requests, some questions were obviously never answered because they had not
been asked in a sufficiently specific manner. All of this occurred quite aside from
the rational and objective examination that should have been conducted by
the agencies about the value of the information to the investigation and/or the
importance of the prosecution in light of the extent of the potential damage to
CSIS operations.
Each agency had a tendency to exaggerate the public interest that corresponded
to its particular interests in any given situation. Hence, the RCMP generally
claimed that every piece of information was essential to the investigation/
prosecution, while CSIS often took the initial position that disclosing the
requested information was too dangerous to its operations, without any real
analysis having yet been conducted on either side. Not surprisingly, the agencies
came to have little respect for each other’s broad claims and assertions, creating
a context where they could hardly have the type of dialogue that would
have been necessary to balance fairly the interests involved. To this day, the
sharing and use of CSIS information in the criminal process remains a complex
problem.410
410 See discussion and recommendations in Volume Three of this Report: The Relationship between
Intelligence and Evidence and the Challenges of Terrorist Prosecutions.
�Chapter IV: CSIS/RCMP Information Sharing
4.2 The Liaison Officers Program
Introduction
The RCMP Commissioner and the CSIS Director discussed the possibility of a
permanent and more formalized Liaison Officers (LO) Program, shortly after the
creation of the new agency. Based on the experience of the Air India, Narita and
Turkish embassy investigations, in July 1985, Commissioner Robert Simmonds
and Director Ted Finn jointly recognized the need for “…good and strong liaison”
between the organizations. They discussed proposals to exchange personnel
on a permanent basis in the main regions and divisions, as well as to exchange
liaison officers between the CSIS HQ CT Unit and RCMP HQ.411
Initial Discussions and CSIS Opposition
By July 1985, Finn was of the view that both agencies could benefit from the
exchange of liaison officers at HQ in the counterterrorism area.412 However, Finn’s
enthusiasm for an LO Program was not shared by all senior CSIS executives and
the creation of a formal program was put on hold.
On April 17, 1986, the CSIS DDO Ray Lees and CSIS DG CT James (“Jim”) Warren
met to discuss the wisdom of an exchange of liaison officers between RCMP
and CSIS in the area of counterterrorism. Warren concluded that “…no useful
purpose would be served” in implementing an LO Program. He felt that there
were already two excellent daily liaison channels, one involving RCMP NCIB
(including the HQ Coordination Centre for the Air India investigation) and CSIS
HQ CT, and the other, RCMP P Directorate and the CSIS Threat Assessment Unit.
Warren noted that problems in cooperation between the agencies were, more
often than not, based on personality differences and deep-rooted competition
over turf, issues that would not be helped through an exchange of liaison
officers.413
In his testimony before the Inquiry, Warren added that he was concerned that
an LO Program would result in CSIS losing control of its intelligence, specifically
through erosion of the CSIS Director’s discretion to pass information to the
RCMP that had been granted by section 19 of the CSIS Act.414
Simmonds, for his part, felt that difficulties in cooperation were based on flaws
in policy that failed to allow CSIS intelligence to be available to the courts as
evidence, rather than on personality problems. In his opinion, it was never a
problem of personalities or people. He reported that he had a good relationship
with Finn.415 However, Simmonds’s viewpoint was necessarily that of a highlevel official not personally exposed to any of the daily frustrations experienced
by members working at the local level.
411
412
413
414
415
Exhibit P-101 CAD0035, p. 4.
Exhibit P-101 CAD0035, p. 4.
Exhibit P-101 CAA0432.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5909.
Testimony of Robert Simmonds, vol. 74, November 8, 2007, pp. 9360-9361.
421
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Volume Two: Part 2: Post-Bombing Investigation and Response
Chris Scowen testified at the Inquiry that one of the reasons that the LO Program
was not embraced early on by CSIS was opposition to the idea (espoused by
CSIS BC Region) that CSIS should embark on an LO Program simply to prove to
the RCMP that CSIS was not withholding relevant information from the RCMP.
The feeling at HQ was that this was not a sufficient rationale, as CSIS was already
acting in good faith with the RCMP. CSIS felt that it was acting professionally
with the RCMP and should not have to prove its good faith by participating in
an LO Program.416
In June 1986, Finn suggested that the possible exchange of liaison officers be
postponed in order to allow the deputies of both agencies to discuss it at a later
date.417 However, on August 6, 1986, Simmonds reiterated to the Solicitor General,
James Kelleher, the ongoing RCMP recommendation for the formal exchange of
LOs.418 Simmonds held the firm view that the best, and most effective, way to
enhance the agencies’ complementary roles in counterterrorism investigations
would be through the exchange of liaison officers. He felt the exchange should
occur at a “reasonably senior level” and on a permanent basis. Simmonds felt that
the underlying principle behind the program would be open and free access
to all information held by each agency in areas of common interest.419 He had
been advised that the liaison arrangement with the RCMP’s National Security
Offences Task Force investigating Air India was working well and he felt this
provided evidence that the liaison concept could work elsewhere. Simmonds
considered such an exchange “vital and necessary” to ensure that the RCMP and
CSIS could “…capitalize on the strengths each can bring.”420
The Solicitor General Directs the Implementation of the LO Program
On August 14, 1986, Kelleher wrote to Finn and Simmonds to propose
initiatives intended to improve cooperation between the two agencies in the
counterterrorism area. A main feature of these initiatives was the implementation
of a formal LO Program, with LOs given full access to the other agency’s files in
the counterterrorism area:
[L]iaison officers with specific mandates in the
counterterrorism area, will be exchanged in key operational
offices across Canada and in the Headquarters of your
two organizations. This arrangement will be for an initial
period of one year and will be evaluated at the end of that
period. Throughout the one year period liaison officers will
have full access to information, discussions and briefings in
the counterterrorism area to the same extent as officers of
equivalent rank in the host organizations are accorded.421
[Emphasis added]
416
417
418
419
420
421
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6197.
Exhibit P-101 CAC0029, p. 2.
Exhibit P-101 CAA0474, p. 11.
Exhibit P-101 CAC0030, p. 4.
Exhibit P-101 CAA0474, p. 11.
Exhibit P-101 CAA0484.
�Chapter IV: CSIS/RCMP Information Sharing
Kelleher also called for the creation of a Standing Liaison Committee, made up
of HQ liaison officers and such other senior officers as considered appropriate by
the CSIS Director and RCMP Commissioner, to review ongoing CT investigations
of common interest, to review and eliminate any irritants in the CT liaison
arrangements and to superintend the evaluation of the liaison exchange
experience. Finally, Kelleher recommended the creation of a committee to
review and update the existing ministerial directions and MOUs related to
liaison and information sharing.422
Kelleher called for the implementation of these initiatives as soon as possible.
In fact, he requested a progress report regarding the exchange of LOs, the
establishment of the Standing Liaison Committee, and the review of existing
policies by September 15, 1986. A major impetus expressed by Kelleher for
these initiatives was their potential to alleviate public concerns about the CSIS/
RCMP relationship, as well as the concerns expressed by SIRC in its second
annual report.423
Early Doubts and Criticisms
When Ronald (“Ron”) Atkey, the Chairman of SIRC at the time, learned of
Kelleher’s call to implement a CSIS/RCMP LO Program, he wrote on his copy of
the letter:
Until someone defines the difference between security
intelligence and criminal intelligence in this area of common
concern; especially what the role of liaison officers is about, all
this will represent is a papering over of the cracks.424
At the Inquiry hearings, Atkey testified that, in spite of his concerns about the
logistics of the program, he felt the Kelleher measures were good ideas overall.
He testified that they were not unanimously approved by RCMP and CSIS
officials, but nevertheless may have been in the public interest and certainly
were well-received by SIRC.
The LO Program met with opposition almost as soon as the Solicitor General
directed its implementation. On September 5, 1986, Archie Barr, Deputy Director
of National Requirements, registered his objections against the LO Program. Barr
felt that the program was bad policy, both for CSIS and more importantly for the
Solicitor General. Barr felt that the rationales behind the LO Program were based
on unwarranted allegations against CSIS, and that the LO Program would fuse
the two agencies together against the intention of Parliament.425
Barr noted that, on the surface, the program “…seems to paper over the cracks”
426
in CSIS’s dealings with the RCMP, language coincidentally similar to that used
422 Exhibit P-101 CAA0484.
423 Exhibit P-101 CAA0484.
424 Exhibit P-101 CAA0484. See, generally, Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat
Assessment Structure and Process.
425 Exhibit P-101 CAA0492.
426 Exhibit P-101 CAA0492.
423
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Volume Two: Part 2: Post-Bombing Investigation and Response
by Atkey in his personal notes at the time.427 Barr felt that the initiative would
give Kelleher something to say in the House about directions he had given to
improve that relationship, but felt that the LO Program was ultimately a shortterm public relations solution that ignored the real problems.428 In his testimony
before the Inquiry, Warren explained that there was a concern at CSIS that the
RCMP was advocating for authorization to recreate a security service within
the Force and that the type of “data transfer” that would be done under the LO
Program would represent one more step towards achieving this aim.429
At a minimum, Barr asked that the Terms of Reference for any liaison agreement
be made much tighter and more clearly defined than the Kelleher’s directive for
“…full access to information, discussions and briefings.” He recommended that
Kelleher be made aware that the directive to grant the RCMP “full access” to CSIS
information would conflict with previous ministerial directives providing that
neither agency was to have “…an unrestricted right of access to the operational
records of the other agency.” Barr also noted that the media and CSIS’s
intelligence partners would be highly critical if they learned that the police had
complete access to CSIS intelligence.430
According to Scowen, the implementation of the LO Program put an end to the
evolving policy dynamics at CSIS that had resulted in RCMP officers experiencing
continually changing access to CSIS material.431 However, while it apparently
allowed CSIS to adopt more consistent positions, the program did not put an
end to the difficulties associated with the sharing and use of CSIS information,
nor to the tensions in the RCMP/CSIS relationship – far from it.
Terms of Reference for the Liaison Officers Exchange Program
Negotiations about the specific implementation of the LO Program took place
between the agencies in the fall of 1986,432 and Terms of Reference (TOR) for
the RCMP/CSIS Liaison Officers Exchange Program were signed in December
1986.433 The TOR provided means to limit information sharing between the
agencies in order to accommodate CSIS’s concerns. For instance, Warren had
insisted that the identity of sources had to remain off limits to the RCMP LO,
despite Kelleher’s direction for “full access.”434 In contrast, Deputy Commissioner
Inkster initially persisted in asserting that the RCMP LO should be present at all
CSIS operational meetings, including at discussions regarding CSIS sources.435
Eventually, however, faced with strong CSIS opposition, Inkster agreed that the
LO would not be included in such meetings.436
427
428
429
430
431
432
433
434
435
436
Exhibit P-101 CAA0484.
Exhibit P-101 CAA0492.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5912.
Exhibit P-101 CAA0492, pp. 3-4.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6192.
Exhibit P-101 CAA504.
Exhibit P-101 CAA0511, p. 1.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5914.
Exhibit P-101 CAA0504.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5914.
�Chapter IV: CSIS/RCMP Information Sharing
Under the TOR, CSIS was required to consult the RCMP LO where it perceived
that a crime falling under RCMP jurisdiction was being planned or had
taken place. In turn, the RCMP was required to consult the CSIS LO when it
uncovered information of interest to CSIS activities in the CT area. Each agency
was directed, with some exceptions, to grant the respective LO access, upon
request, to all information relevant to “identified” investigations and interests.
The TOR provided that the respective LOs had to be invited to attend CT internal
operational meetings held by the host agency.437
While the disclosure of information to the LO was said to constitute sharing
with the LO’s agency, the TOR specifically provided that, before the LO could
actually give the information to his agency, approval from the host agency was
necessary.438 When such approval was sought by the LO, the source agency
could apply caveats and the receiving agency was required to treat the material
in accordance with the need-to-know principle. The receiving agency was
prohibited from disseminating or using the information received without again
requesting the approval of the source agency.439 Key to responding to some of
CSIS’s concerns was a provision that called for full protection to be afforded to
RCMP and CSIS sources, methods of operation and targets, meaning that this
information would not be routinely shared.440
The TOR also explicitly specified that “all possible steps” were to be taken to
avoid the need to expose CSIS information or witnesses in court.441
Implementation of the Liaison Officers Program
The exchange of LOs was to commence on November 1, 1986 for a one-year
period, after which the program would be evaluated.442 The LO Program was
duly implemented at HQ offices, and duplicated in each of the major regions,
namely BC, Toronto, Quebec and Ottawa.443 Those who first filled the LO
positions found that the program was difficult to implement and that relations
between the agencies continued to be problematic.
RCMP Liaison Officer Experience
S/Sgt. Ron Dicks was the first RCMP LO at the RCMP O Division in Toronto.444 He
had an office at CSIS in Toronto445 and reported directly to the Officer in Charge
of the RCMP O Division Intelligence Branch.446
437 Exhibit P-101 CAA0511, pp. 1-2.
438 Exhibit P-101 CAA0511, p. 2.
439 Exhibit P-101 CAA0511, p. 2. Conflicts about this last issue were to be referred to the Standing Liaison
Committee and ultimately to the Director of CSIS and the Commissioner of the RCMP.
440 Exhibit P-101 CAA0511, p. 3.
441 Exhibit P-101 CAA0511, p. 3.
442 Exhibit P-101 CAA0511, p. 3.
443 Testimony of James Warren, vol. 48, September 19, 2007, p. 5915.
444 Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7549-7550; Exhibit P-101 CAC0052, p. 1.
445 Exhibit P-101 CAC0052, p. 1; Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7563.
446 Exhibit P-101 CAC0052, p. 1.
425
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Volume Two: Part 2: Post-Bombing Investigation and Response
CSIS had decided to accept requests for information only from the RCMP LO,
so RCMP detachments were instructed to channel their requests for CSIS files
through the LO.447 While the main focus of the program was on CT investigations,
the RCMP LO, at least in Toronto, could request access to CSIS material relevant
to other RCMP criminal investigations.448
In Toronto, CSIS decided not to maintain a “permanent on-site presence” at RCMP
offices. CSIS requests for RCMP information were to be channeled through the
CSIS LO, who would in turn make his requests from Dicks.449
Dicks testified at the Inquiry about his experience as the LO in Toronto. It was
his understanding that the LO Program was meant to remedy a problem in
communication between CSIS and the RCMP. Dicks felt that the program was a
useful “initial effort” to try to improve communication, but that the CSIS/RCMP
relationship was evolving. Overall, he felt that his access to CSIS material as
RCMP LO was “constrained and restricted.” He testified that there was not a free
flow of information coming from CSIS.
The process of information exchange was almost exclusively triggered by Dicks’s
requests. He never had free access to CSIS records nor to entire investigational
files to peruse at his leisure. Instead, he was able to review only the material
brought to his attention by CSIS following his general requests, and his requests
had to be tied to a particular RCMP investigation in O Division. Dicks was never
involved in any CSIS operational meetings, in spite of the Terms of Reference for
the LO Program. He could not recall any circumstance where CSIS came to him
to request his expertise regarding whether the criminal threshold for passing
information over to the RCMP had been reached. In general, Dicks described
the RCMP/CSIS relations at the time as “difficult”, “not fluid” and, on occasion,
“strained.”450
In terms of the practical application of the LO Program, Dicks explained that he
was kept informed of the ongoing RCMP investigations in the Division in order
to know what to focus on. For him to review CSIS material, there had to be some
criminality involved. Dicks had to identify in advance for CSIS the documents or
information he was looking for before receiving any materials. He would then
review what was brought to his attention and identify pieces of information
to be excised from the CSIS documents and provided to the RCMP. The “needto-know” principle required that Dicks refrain from disclosing information,
even within the RCMP, outside of those members involved with the particular
investigation for which the CSIS information had been exchanged.451
Dicks explained that the caveats that were commonly imposed on the flow of
information from CSIS to the RCMP generally put the RCMP in a position where
the only possible purpose for the Force in reviewing the information was “…
447
448
449
450
451
Exhibit P-101 CAC0052, pp. 1-2.
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7551.
Exhibit P-101 CAC0052, p. 2.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7553-7554, 7563-7564, 7628, 7637-7638.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7552, 7555-7556, 7562-7563.
�Chapter IV: CSIS/RCMP Information Sharing
to see if the RCMP could develop other investigative leads.”452 For example,
in April 1987, Dicks presented a written request to CSIS for the release to the
RCMP of surveillance information about Ripudaman Singh Malik during a visit
to Toronto.453 CSIS provided a copy of their surveillance report to Dicks with the
following caveat:
It is requested that no investigative action be taken by the
RCMP ‘O’ Div, based on the information contained in this
surveillance report without prior consultation with Toronto
Region. The reason being we have an ongoing interest in
Malik’s activities in Canada as we do not wish to see your
ongoing investigation conflict with our investigation.454
According to Dicks, the restrictive nature of the caveats could often prevent the
RCMP from using the CSIS information – even as investigative leads – without
going back to CSIS for approval. Dicks commented “…we never had a liberty to
simply use the information as we pleased in other judicial processes or to be
overt in our investigative approach to people.”455
Dicks explained that the process in place provided for him as LO to have
discussions with his CSIS counterparts to ensure that investigations did not
conflict and to obtain authorization for the RCMP to use CSIS information in
more overt investigative initiatives. He commented, however, that it was a
difficult process in that “…discussions would have to go back and forth,” there
were additional “time lags” and “…many more persons would get involved in the
discussion at various levels of the management of the two organizations.”456
The process in place for Dicks to review CSIS materials and to request the
release of information to the RCMP also required protracted discussions and
created delay. For example, Dicks was provided with a second CSIS surveillance
report on Malik at the end of April 1987. According to the usual procedure, he
was expected to select extracts of interest to the RCMP and to request their
production. However, Dicks concluded that because Malik was “…suspected
of conspiracy in most if not all BK Terrorist Canadian activities,” and because
his activities were “…a constant concern to the RCMP,” no portion of the CSIS
report could be disregarded.457 He explained in testimony that, in light of the
conspiracy investigation, he believed it was important that the RCMP receive
the whole report and “…not just snippets of information.”458 CSIS agreed to
provide the entire report after retyping it to remove the identification numbers
of its surveillance employees, but this did not occur until late September, five
months after Dicks’s request.459
452
453
454
455
456
457
458
459
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7559, 7565-7566.
Exhibit P-101 CAF0416, pp. 1-2.
Exhibit P-101 CAF0416, p. 2.
Testimony of Ron Dicks, vol. 62, October 16, 2007, pp. 7559, 7565-7566.
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7560.
Exhibit P-101 CAF0417, p. 2.
Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7562.
Exhibit P-101 CAF0417, p. 2, CAF0419.
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CSIS Liaison Officer Experience
The first CSIS LO in BC Region, John Stevenson, also testified that his experience
was difficult. Stevenson had undertaken informal liaison duties in June 1986.
Stevenson was tasked with liaising directly with a spokesman representing each
of the three RCMP investigative units looking after the major Sikh extremism
investigations, including the Air India investigation. Stevenson continued in a
liaison role upon the implementation of the formal LO Program called for by
Kelleher.460
Stevenson testified that he was responsible for transporting the daily
investigative reports from CSIS up to the RCMP units. The RCMP LO would
read this information and could request disclosure to the RCMP of any of that
material.461
Stevenson testified about the problems he encountered early on in his liaison
duties, remarking that, in general, he felt run off his feet. He explained that many
RCMP officers regarded him with suspicion. There were constant assertions
on the part of the RCMP that CSIS was withholding information. Stevenson
indicated that he was constantly being told, “This isn’t good enough, you must
have more than this.” He even heard that the RCMP was so convinced that
CSIS was withholding information that it had considered obtaining a search
warrant for CSIS premises. The RCMP members also complained about CSIS
caveats, indicating that they rendered the information that was passed to them
essentially useless. Stevenson was of the view that part of his job was to explain
to the RCMP members, who seemed to expect that CSIS would be handing over
everything, that, in accordance with the liaison agreement, only select relevant
information would be passed, and only as investigative leads.462
Stevenson noted that there were “331 very tragic reasons” why CSIS and the
RCMP had to make the LO Program work, and he felt CSIS did its best to make
the program work, bringing a tremendous number of investigative leads to the
RCMP. Though he was of the view that the LO Program “…for the most part”
did “…work overall quite well,” Stevenson testified that friction nevertheless
remained, which he attributed mainly to certain personalities within the RCMP
who would never be satisfied. He explained that certain personalities on the
RCMP side were not that well disposed towards CSIS, and seemed to have
trouble grasping what the mandate of the intelligence service was all about.463
He stated:
Certain personalities in the RCMP were self-professed CSIS
bashers. That is how they described themselves. We dealt with
them. I was ignored by them but I dealt with them because
CSIS was determined to make it work.464
460
461
462
463
464
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7655.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7655.
Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7657, 7673.
Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7658-7659.
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7723.
�Chapter IV: CSIS/RCMP Information Sharing
Stevenson also had his own complaints about the RCMP information-sharing
practices. He felt that information sharing was “…essentially a one-way street,”
and he recalled giving the RCMP subtle reminders to look for information
germane to CSIS investigations.465 Warren received the BC Region complaints
about the lack of RCMP information, and he went out to the Region to tell them
“…that they had to be a little bit more aggressive in going over and looking
at the RCMP stuff.” The CSIS Liaison Officer at RCMP HQ also received little
information, since most of the RCMP information was available in the divisions
only and not at HQ.466
Attempts to Clarify the Terms of the LO Program
The problems encountered in the implementation of the LO Program were
brought to the attention of CSIS management early on. At a February 5, 1987
meeting, Barr noted the RCMP complaints about lack of access, and called on all
CSIS regions to ensure adequate access was being provided to RCMP LOs:
RCMP raised the issue of access by the RCMP LO to
operational information held by CSIS. It appears this access
has been severely limited, likely resulting from too strict an
interpretation of advice from CSIS legal counsel. While it was
agreed that the RCMP cannot be given full and unfettered
access to CSIS databanks, it was agreed that when a matter is
raised that might have relevance to the responsibilities of the
RCMP under Part IV of the CSIS Act, the RCMP LO is to be given
all related info, short of identifying sources.467
On June 17, 1987, Barr issued another memorandum to dispel continuing
confusion that existed in the regions, and, to some extent, at HQ, about the
CSIS/RCMP LO Program. He noted that the LO Program was in place to assist
the Service in deciding specifically what parts of its information could be
relevant to the mandate of the RCMP and thus ought to be reported to the
Force. He explained that the transfer of CSIS information to the RCMP could be
triggered in two ways. First, the RCMP could make a request for information.
Second, and far more commonly, CSIS itself could decide its information was
possibly relevant to an RCMP investigation. The information being passed to
the RCMP LO at this stage could include technical intercepts and human source
information. In both cases, the information would be shown to the RCMP LO,
whose role would be to assist CSIS in determining what parts of the information
could be relevant to an RCMP investigation and should be released to RCMP
investigators as investigative leads.468
Barr went on to explain that once the RCMP LO had identified the relevant
information requested for release, the request was to be submitted to the
465
466
467
468
Testimony of John Stevenson, vol. 62, October 16, 2007, p. 7656.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5915.
Exhibit P-101 CAF0270.
Exhibit P-101 CAF0272, pp. 2, 5.
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appropriate CSIS HQ Desk. The CSIS HQ Desk was to consult with Human
Sources and/or Legal Services. The release of sensitive information that might
put in jeopardy a human or technical source could be restricted based on
consultations with the DDR, Director and/or Solicitor General. CSIS HQ was to
release the information to the RCMP HQ and the requesting RCMP LO with the
“…clearly understood caveat that it is for the purpose of investigative leads
only.” Technically, it was only at this point that the RCMP LO would be able to
discuss the information with other members of the RCMP.469
Barr addressed situations in which the RCMP might want to use CSIS information
in the criminal process, emphasizing the importance of having HQ make the
decision on whether to authorize this or not, in light of the risk that the CSIS
information could be disclosed to the defence.470 Barr also noted that after the
commission of a specific criminal act, interviews and investigations into the act
should be conducted by the RCMP. In such cases, CSIS was to be kept updated
on the investigation through the LO, rather than by conducting its own direct
investigation.
In addition to providing needed clarification for CSIS Regions, Barr’s memo
noted that it had become clear that CSIS was not taking full advantage of the
LO Program and had not received adequate access to police information.471
One-Year Review of the LO Program
The Terms of Reference for the LO Program called for a review within one year
after its implementation. Both the RCMP and CSIS held consultations in relevant
regions and divisions across the country in preparation for the one-year review.
On the morning of August 27, 1987, RCMP E Division and CSIS BC Region held
internal meetings to discuss the LO Program in BC. A joint RCMP/CSIS meeting
was held in the afternoon of the same day.
The internal RCMP E Division meeting was documented in a memorandum by
the RCMP HQ LO, J.J. Paul Ouellet, who visited the Division in connection with
the LO Program review. The general consensus was that cooperation and liaison
between the agencies was very good, but there was a growing awareness that
CSIS was bound by stringent guidelines. While informal disclosure was almost
immediate, the formal disclosure process through CSIS HQ was very timeconsuming. Continuing personality clashes were also noted.472
The internal CSIS BC Region meeting, which included Jim Warren from CSIS HQ,
was recorded in a memorandum by John Stevenson.473 CSIS HQ requirements
for specificity in RCMP requests, as well as the delays caused by the need for
HQ approval before passing information to the RCMP, were discussed. Warren
agreed that the Region did not have to require as much specificity, but simply
469
470
471
472
473
Exhibit P-101 CAF0272, p. 2.
Exhibit P-101 CAF0272, p. 3.
Exhibit P-101 CAF0272, pp. 3-4.
Exhibit P-101 CAC0057, pp. 1-3.
Exhibit P-101 CAF0275.
�Chapter IV: CSIS/RCMP Information Sharing
had to be satisfied that RCMP requests were connected to the performance of
police duties. Concerning the delays, it was agreed that the Region could make
its own decisions in certain emergency situations and, in other cases, could pass
information to the RCMP when an HQ response was not received after a certain
period. In terms of CSIS access to RCMP information, Warren asked the Regional
LOs to adopt a “tougher” stance in demanding intelligence files on targets of
common interest. He also requested that any reluctance by the RCMP to share
information be immediately relayed to CSIS HQ.474
At the joint RCMP/CSIS meeting, the agencies conveyed the concerns raised at
their internal meetings. The meeting concluded favourably, with both agencies
confident that the LO Program should continue. CSIS’s fear that its information,
once passed to the RCMP, would be exposed in court proceedings, remained
unresolved and was noted as a restraint with which both agencies would have
to continue to work.475
A senior-level CSIS/RCMP HQ meeting was held on September 23, 1987 in
Ottawa to evaluate the LO Program, to discuss means of improving liaison, and to
ensure that each organization’s mandate and responsibilities were understood.
The agencies agreed to allow access as broadly as possible and to use a “…
more common-sense approach” to the sharing of information. CSIS agreed to
provide information of a criminal nature at the earliest possible juncture. In
cases of joint interest, the agencies agreed to have operational discussions at
the working level or to exchange complete case-related information at a senior
level. Importantly, they recognized the continuing problem of the use of CSIS
information in court proceedings. Ultimately, the agencies agreed that the LO
Program was beneficial and should be continued.476
On April 20, 1988, CSIS Director Reid Morden and RCMP Commissioner Norman
Inkster wrote to Solicitor General Kelleher to report on the implementation of
the initiatives he had directed in August 1986. They reported that the measures
were very successful, and specifically that the LO Program helped to facilitate
trust between the organizations.477
Conclusion
Some of the witnesses who testified at the Inquiry also made positive comments
about the program. Warren concluded that the program had worked by easing,
somewhat, the tensions between the two organizations. He stated that the
program ultimately did help, despite his initial strong opposition.478 Simmonds
testified that the early liaison arrangements and the LO Program led to better
discussions at HQ and in the divisions, and was useful because it solved many of
the cooperation problems.479
474
475
476
477
478
479
Exhibit P-101 CAF0275, pp. 1-2.
Exhibit P-101 CAC0057, pp. 4-7.
Exhibit P-101 CAF0277, pp. 2-4.
Exhibit P-101 CAA0641, pp. 1-2.
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5915, 5921.
Testimony of Robert Simmonds, vol. 74, November 8, 2007, pp. 9344-9345.
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However, the evidence also shows that CSIS often appeared to view the LO
Program as an unnecessary and cumbersome process, set up in response to
concerns on the part of the RCMP and of the public about a perceived resistance
to information sharing by CSIS. CSIS officials concluded that the program was
a success, but this assessment was largely due to the fact that it alleviated the
police and public perceptions about CSIS’s lack of sharing. When asked during
his testimony about his overall conclusions about the LO Program, Warren
stated that, as the program unfolded and the two organizations got more used
to working with one another, it started doing what the Minister had hoped
it would do, which was to reassure the public that CSIS and the RCMP were
working together.480 Scowen stated that the benefit of the LO Program was that
it curtailed the criticism that CSIS received about withholding information from
the RCMP.481
The full potential of the LO Program was limited by a number of recurring
problems, including structural issues surrounding the centralization of
information sharing and issues relating to personality conflicts.482
Overall, even when individuals were cooperating and the LO Program was
being used as intended, the program still failed to address the main hurdle in
RCMP/CSIS cooperation, the use of CSIS intelligence in court proceedings. The
program did little to change CSIS’s information-sharing practices, as the Service
maintained the discretion to decide what information would be shared with the
RCMP and continued to limit the use of the information passed, to protect its
sources, its methodology and third-party information.
Initially, the RCMP appeared to view the LO Program as an opportunity to access
the counterterrorism intelligence it felt it required to carry out its policing
operations.483 Through the years, the RCMP attempted to use the LO Program
to gain unfettered access to CSIS’s intelligence information, but these attempts
were continuously rebuffed by CSIS’s insistence on protecting its categories of
sensitive information and limiting the use of its information.
In the end, perhaps because the agencies themselves were unable to resolve
the disclosure issues to their satisfaction, the Liaison Officers Program was
quietly discontinued in 2002 and replaced with a secondment program that
abandoned the historical focus on improving specific information-sharing
practices in favour of an arrangement set up to facilitate an understanding of
each other’s mandate for the agencies.484
480
481
482
483
484
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5921-5922.
Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6182.
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5921-5922.
Testimony of Robert Simmonds, vol. 74, November 8, 2007, p. 9345.
See Section 4.5 (Post-bombing), Recent Cooperation and Information-Sharing Mechanisms.
�Chapter IV: CSIS/RCMP Information Sharing
4.3 The Preservation of CSIS “Evidence”
4.3.1 Tape Erasure
Introduction
On December 14, 1987, the Canadian public learned from a CBC interview of
then CSIS Director, Reid Morden, that CSIS had destroyed intercept tapes on the
prime Air India suspect, Talwinder Singh Parmar. Those tapes were recorded
between March 27 and July 1, 1985, which spans, roughly, the period from two
months prior to the terrorist attack on Air India Flight 182 to one week after
the attack.485 About three-quarters of “the Parmar Tapes” recorded during that
period were destroyed, with only about 25 per cent retained and made available
for review to the RCMP and BC Crown counsel. The news prompted shock across
the nation.
Questions and allegations began to surface immediately about possible reasons
for the destruction of the Parmar Tapes. Did CSIS erase the tapes to destroy
information indicating that it had advance knowledge of the bombing? Did
the erasures destroy critical information that could have led to the successful
prosecution of the Air India conspirators? Or, as CSIS has long claimed, were
the erasures done in accordance with established tape retention policy after
Service personnel had diligently ensured that no incriminating information had
been recorded?
Despite investigations by CSIS, the RCMP and SIRC,486 the controversy arising
from the erasure of the Parmar Tapes continued unabated.
The Commission undertook a comprehensive review of the erasures of the
Parmar Tapes, focusing on not only on what happened and why, but also on the
effect that the erasures had on the investigation and eventual prosecution.
There are certain facts about the erasure of the Parmar Tapes that are beyond
controversy:
a. CSIS applied to wiretap Parmar’s phone. Archie Barr testified under
oath before the Federal Court that Parmar posed a threat to national
security.487 Barr described Parmar as a terrorist who is “…expected
to incite and plan acts of violence including terrorism”488 against
Indian interests and Hindus. He also told the Federal Court that
wiretapping his phone was important and necessary because all
other investigative means had failed or were likely to fail;
b. The warrant to intercept Parmar’s telecommunications was issued, and
the interceptions began, on March 25, 1985;
485 Exhibit P-198.
486 These investigations include Security Intelligence Review Committee, “CSIS Activities in Regards to
the Destruction of Air India Flight 182 on June 23, 1985: A SIRC Review,” November 16, 1992: Exhibit
P-101 CAB0902.
487 Exhibit P-101 CAA0333: Affidavit in support of the application for the warrant.
488 Exhibit P-101 CAA0333, p. 6.
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c. In total, approximately 210 tapes were recorded between March 27 to
July 1, 1985;
d. Approximately 156 of these tapes were erased;
e. 54 were retained and made available for review to the RCMP and
Crown counsel for use during the investigation of the terrorist
attack on Flight 182.
While it seems inconceivable that CSIS would destroy any of the Parmar Tapes,
the systematic destruction of the Parmar Tapes after the terrorist attack on Flight
182 is particularly disturbing.
The RCMP, despite learning about the existence of the Parmar Tapes after the
terrorist attack on Flight 182, knowing the importance of Parmar, and knowing
– at least a few members of the Air India Task Force knew – of the existence of
CSIS’s erasure policy, failed to take any concrete steps to request the preservation
of the original intercepts. No one from the RCMP bothered to write a letter
demanding that the tapes be preserved. It appears that the RCMP just assumed
that the Service was retaining the intercepts.
CSIS continued to record Parmar’s communications and to erase the tapes
until February 1986, when the Department of Justice lawyer who defended the
Government in the civil litigation launched by the families asked that the tapes
be retained. It was only then that the erasure stopped.489
How did this state of affairs come to be? Why did CSIS behave with “unacceptable
negligence,” as found by Justice Ian Josephson?490 How could our national police
force fail to gain access to all of the Parmar Tapes or, at the very least, to write a
letter to prevent CSIS from destroying them?
James Jardine was the BC Crown counsel who prosecuted Reyat for the Narita
bombing. He began requesting information from CSIS in connection with that
case in the spring of 1986.491 The first time he received clear confirmation of the
destruction of the Parmar Tapes was in December 1987, while watching Morden
admit their destruction to the CBC.492 Jardine summed up his feelings at that
moment in an internal note which read:
“Inconceivable, incomprehensible, indefensible, incompetence.”493
The Key Questions
The controversy surrounding the destruction of the Parmar Tapes essentially
involves the following key questions:
489
490
491
492
Exhibit P-101 CAA0549, CAA0609, p. 15, CAA0913(i).
R. v. Malik, Bagri and Reyat, 2002 BCSC 864.
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5702; Exhibit P-198: CBC videotape dated
December 14, 1987.
493 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5703.
�Chapter IV: CSIS/RCMP Information Sharing
• Should the Parmar Tapes have been retained based on CSIS policy?
• Should the Parmar Tapes have been retained for use as evidence in
the RCMP investigation?
• Was any information of significance lost due to the erasure of the
Parmar Tapes?
• What effect did the destruction of the Parmar Tapes have on the
criminal prosecutions?
To answer these questions it is important first to understand what in fact
happened.
What Happened?
Tape Processing Standard Operating Procedures
In 1985, CSIS lacked clear, accessible policies for the physical handling,
monitoring and processing of intercept tapes.494 As a consequence, each region
developed its own system.495 In BC Region, the Communications Intelligence
and Warrants (CI&W) Unit was responsible for the technical processing of tapes,
and had established a standard procedure.
Communications Intercept Operators (CIOs) were responsible for ensuring that
the tapes were running and recording correctly. CIOs would watch and replace
tapes as needed. Each tape was marked with the line number and the date, as
it was removed. At 11:00 PM each day, a new tape was placed on each line to
record the overnight activity. The tapes were then stored in a separate room
where the transcribers could retrieve and listen to them.496
Each morning, the transcribers would collect the tapes recorded the previous
day. Each transcriber was responsible for making a log of each reel, showing
the time of each call, the identity of the caller and a transcription of the English
portion of the tape. The reel and log would then be passed to a translator, who
would translate those portions that were in a foreign language. The translator
would then return the translation and logs to the transcriber, who would put
the relevant information into a report for submission to the investigator.497
The transcribers would return the tapes when they were finished. After a short
holding period, the tapes would then be erased by the CIO on duty.498
Throughout this process, the transcriber was to meet with the investigator to
discuss the investigation and to obtain updates in order to better understand
the orientation of the investigation. It was thought that, as time went on, the
494 Exhibit P-101 CAB0902, p. 79.
495 Exhibit P-101 CAB0902, p. 70. It was believed that a BC Region Head was responsible for administering
the local tape retention and erasure program: Exhibit P-101 CAB0902, Annex F, p. 11.
496 Exhibit P-101 CAD0003, p. 3, CAD0096, p. 4.
497 Exhibit P-101 CAD0096, p. 4.
498 Exhibit P-101 CAD0003, p. 3, CAD0096, p. 4.
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transcribers and translators would gain familiarity with the target, including the
target’s use of coded language and secretive approaches,499 as well as with the
subject matter of the investigation, and that this would lead to higher-quality
reporting.
In 1985 CSIS employed analog recording techniques.500 Warranted interceptions
of private communications were recorded on large analog tapes. Unlike modern
digital recording methods, the use of analog equipment created significant
storage issues, which constituted a practical reason for the erasure and reuse
of tapes. Intercepted conversations could not be reduced to a digital computer
file, meaning that the entire reel of analog tape would have to be indexed and
stored. Access to the content of these reels was by manual means alone, and
there were no automated or digitized search capabilities.
Actual Processing of the Parmar Intercepts
CSIS BC Region had been unable to hire a security-cleared Punjabi translator to
coincide with the authorization to intercept communications which commenced
March 25, 1985.501 Thus, the standard tape processing procedures could not be
followed and interim procedures were developed.
Throughout the pre- and post-bombing period, the English communications
on the Parmar intercept were processed by a single transcriber in BC Region,
Betty Doak. Doak transcribed the English portion of the tapes on a daily basis,
with the exception of weekend material which was processed two to four days
later.502
Meanwhile, the Punjabi communications recorded on the Parmar intercept
during the pre-bombing period were processed by three different Punjabi
translators. The translation of individual tapes was often delayed, sometimes
for several months from the date of the interception.
The initial Parmar Tapes were sent to CSIS HQ in Ottawa for translation. CSIS
HQ had a large pool of translators, and thus Ottawa Region often received
tapes from the other regions. This arrangement was less than ideal, as the BC
Region investigators were unable to brief the translators properly and keep
them updated on the progress of the investigation. The tapes were processed
and returned to the BC Region investigators in batches, inevitably resulting
in investigators reviewing material weeks after it was recorded. This made it
impossible to conduct the security investigation with real time knowledge of
Parmar’s activities.
499 Testimony of James Warren, vol. 48, September 19, 2007, p. 5857.
500 Analog recording stores audio signals by physically storing a wave – for example by grooves on a
record or changing magnetic field strength on magnetic tape. Digital recording, by contrast, stores
audio in the form of discrete numbers.
501 See Section 3.2 (Pre-bombing), The CSIS Investigations into Sikh Extremism, for more detail about the
search for a Punjabi translator.
502 Exhibit P-101 CAB0613, p. 3, CAD0003, p. 3.
�Chapter IV: CSIS/RCMP Information Sharing
BC Region sent a total of 82 tapes to Ottawa for translation during the prebombing period.503 The first 14 tapes were sent to Ottawa on April 4th and
transcriptions were sent back to Vancouver on May 8th. The next 15 tapes
were sent on April 11th, with transcriptions returned to Vancouver on May 29th.
Subsequent shipments were sent, but Ottawa translators were able to process
only three more tapes.504
Eventually, a translator was hired in Vancouver, who immediately commenced
work on June 8, 1985.505
By the time of the terrorist attack, 82 of the approximately 191 tapes recorded
between March 27th and June 23rd had been transcribed and translated: 32 by
the Ottawa translator (covering March 27th to April 9th) and 50 by the BC Region
translator (covering June 8th to June 21st). All processed tapes were erased
except for four tapes, recorded from May 6th to 7th, which had been set aside for
voice print purposes.506 Tapes recorded after the bombing were processed as
soon as possible after interception.507
Processing the Backlog of Parmar Intercepts
On July 5, 1985, Ottawa returned 50 unprocessed tapes (covering April 9th to
April 25th) to add to the backlog of pre-bombing tapes already in existence
at BC Region. In the meantime, CSIS had obtained warrants to intercept the
communications of several other Sikh extremist targets, which meant that the
Punjabi translators were fully occupied processing current intercepts.508 By
September 1985, a full two months after the attack, a backlog of 80 to 85 prebombing tapes (covering April 9th to May 7th) remained.509
The backlogged tapes were finally processed in late September, and into October,
1985.510 BC Region translators processed 33 of the backlogged tapes covering
the time period between April 26 and May 7, 1985. The 50 tapes returned by
Ottawa Region were processed by Cst. Manjit (“Sandy”) Sandhu of the RCMP
Vancouver Task Force, who was indoctrinated511 into CSIS for the task.512 The
RCMP and CSIS agreed that Sandhu would transcribe the 50 tapes, identifying
503 The tapes were sent in a number of shipments. 14 tapes covering March 27th to April 2nd were sent on
April 4th, 15 tapes covering April 3rd to 7th were sent on April 11th, 15 tapes covering April 8th to 13th
were sent on April 18th and 12 tapes covering April 14th to 18th were sent on April 19th. Additional
tapes (likely 16) from April 19th to 22nd were sent on April 25th and 10 tapes covering April 23rd
to 25th were sent on April 26th. See Exhibit P-101 CAA0625, p. 1, CAB0613, p. 3, CAD0003, p. 11.
504 Exhibit P-101 CAA0625, pp. 2-3, CAD0003, p. 6. Ottawa translators were able to work on the Parmar
intercepts intermittently. During this period, they processed Parmar tapes only on April 19th, 30th, May
6th, 24th, and July 3rd.
505 Exhibit P-101 CAB0613, p. 3.
506 Exhibit P-101 CAA0625, pp. 2-3.
507 Exhibit P-101 CAB0902, p. 84.
508 Exhibit P-101 CAB0613, p. 3.
509 Exhibit P-101 CAB0613.
510 Exhibit P-101 CAA0609.
511 Meaning that he swore an oath of secrecy and acknowledged that he could face penalties should he
divulge the information improperly.
512 Exhibit P-101 CAB0613, p. 3.
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portions of interest to the RCMP, and that CSIS would then summarize and
package the product for RCMP use. Sandhu was also given access to the CSIS
logs for the Parmar intercepts for the period May 5th to September 19th to identify
anything of interest to the RCMP.513 Sandhu completed his review of the tapes
on October 7th, and reported that he did not uncover any significant criminal
information.514 Other RCMP investigators had been provided some access
to the logs for the pre-bombing tapes in September 1985 and had identified
information they found to be of interest. This information was included in an
RCMP application for authorization to intercept the communications of Parmar
and his associates, presented on September 19, 1985.515 CSIS retained the 50
intercept tapes reviewed by Sandhu with the intention that CSIS personnel
would review them at a later date to assess their intelligence (as opposed to
criminal evidence) value.516 By the fall of 1985, the backlog of Parmar Tapes was
finally processed.517
The 33 backlogged tapes processed by the BC Region translator were erased
by early November, except for the four tapes retained for voice-identification
purposes.518 By early November 1985, CSIS had erased all Parmar Tapes recorded
between March 27 and July 1, 1985, as well as most of the tapes recorded after
July 1st, except for the 50 tapes reviewed by Sandhu and the four tapes retained
for voice-identification analysis.519
Should the Tapes Have Been Retained Based on CSIS Policy?
CSIS Policies on Tape Retention
The relevant policies and instructions relating to the handling and processing of
electronic intercepts evolved over time. In 1985, the newly-formed Service had
not developed a uniform, written policy governing the handling and processing
of electronic intercepts. James (“Jim”) Warren testified at the Inquiry that, at the
time, CSIS was less than a year old and was operating under policies inherited
from the RCMP Security Service (SS). There was little time to think through the
inherited policies comprehensively to determine their continued suitability in
light of the new mandate.520 Indeed, one would have thought that this exercise
would have been undertaken in the year prior to the creation of CSIS, as part of
the preparation for the launch of the new agency. CSIS, by not having considered
the suitability of various RCMP SS policies, was faced with four relevant policies
and instructions governing retention of intercepted communications, which
were inconsistent with one another and served to confuse rather than to provide
clarity. The four seminal documents were:521
513
514
515
516
517
518
Exhibit P-101 CAA0329.
Exhibit P-101 CAA0578, CAB0902, p. 99.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Exhibit P-101 CAB0613, pp. 2-3.
Exhibit P-101 CAA0609.
Tapes were retained for voice identification purposes in the event that an intelligence monitor needed
to listen to a voice whose identity had already been confirmed to compare it with an unknown voice.
519 Exhibit P-101 CAB0902, p. 85.
520 Testimony of James Warren, vol. 48, September 19, 2007, p. 5875.
521 Exhibit P-101 CAD0184.
�Chapter IV: CSIS/RCMP Information Sharing
• A Ministerial Directive issued on July 14, 1980;
• The Technical Aids Policy and Procedures (TAPP) Manual – an
operational manual inherited from the former RCMP Security
Service, issued in 1981;
• An internal memorandum by Archie Barr, then Director of Security
Policy Development in the Security Intelligence Transition (SIT)
Group, issued on April 5, 1984;
• An internal memorandum issued by Jacques Jodoin, then Director
General, Communications Intelligence and Warrants (CI&W), on
February 18, 1985.
Ministerial Directive: July 14, 1980
The Ministerial Directive set out guiding principles governing tape retention.522
The Minister had reviewed a draft version of the TAPP Manual523 sent by RCMP
Commissioner Robert Simmonds, and set out the following objectives:
• “Innocent” third-party and any other “non-target” intercepts
inadvertently picked up, would be destroyed except in relation to
the preservation of Master Evidentiary tapes, in accordance with the
protection of individual rights.524
• The maximum time for tape retention would be one month.
TAPP Manual: 1981
The TAPP Manual incorporated the objectives of the Ministerial Directive
and set out a comprehensive policy governing the handling and processing
of electronic intercepts for the RCMP Security Service. Chapters 16 and 21 of
the TAPP Manual outlined the policy specifically dealing with the erasure and
retention of tapes.
Chapter 16 outlined the procedures for processing and reporting intelligence
information derived from intercept operations.525 Three categories of information
for which tapes should be immediately erased were defined: privileged
communications (solicitor-client), communications of confidence and thirdparty information. Methods of reporting (e.g., in summary or verbatim form)
for time-sensitive and non-time-sensitive information were canvassed and
coordination between the intelligence monitors (transcribers and translators)
and investigators was encouraged. The need for future evolution of these policies
522 Exhibit P-101 CAA0010.
523 Exhibit P-101 CAA0009.
524 Master Evidentiary tapes were intercepts in investigations deemed likely to result in prosecution with
communications intercept information likely to form a vital part of the case. Exhibit P-101 CAA0008:
Chapter 10 of the TAPP Manual outlined the procedure for the processing and retention of these tapes
designed to ensure their conformity with the rules of evidence.
525 Exhibit P-101 CAA0013.
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was recognized and there was an expectation that the operational branches
would continually provide updated lists of requirements and guidelines.
Chapter 21 governed the retention of intercept tapes.526 The importance of
retaining tapes for a reasonable period of time after processing was emphasized,
as this would permit investigators to access the original communication if
necessary. The policy was to retain relevant tapes for a minimum of 10 days after
they had been listened to, and preferably after the submission of the transcriber’s
and/or translator’s report to the investigator. The maximum retention period
was set at one month, in accordance with the 1980 Ministerial Directive.
There were three exceptions to the retention policy:
• the immediate erasure of non-relevant and confidential
communications as defined in Chapter 16;
• the retention to an evidentiary standard of Master Evidentiary
tapes; and
• indefinite retention of “communications that significantly
incriminate a target subject in subversive activity.”
The TAPP Manual was a Top Secret document distributed on a need-to-know
basis.527 Whether because it was felt that they had no “need to know” or because
reading the TAPP manual was simply not a part of formal training procedures,
analysts and investigators who dealt with the actual content of the intercepts
were not generally provided direct access to the Manual. Often, senior personnel
within the CI&W Unit528 had access to the TAPP Manual and were responsible for
passing on information about relevant portions to other Service employees.529
Personnel at HQ had not generally reviewed the TAPP Manual.530 The intelligence
526 Exhibit P-101 CAA0014.
527 Exhibit P-101 CAA0614, p. 1: The introduction to the TAPP Manual states that “The sensitivity of the
information contained in the TAPP Manual dictates that it be classified as TOP SECRET.… Access
to the TAPP Manual is governed by the “need to know” principle as explained in the Operational
Manual…. This principle must be practiced at all times in the area of communications intercept
operations. Persons involved in such operations must ensure that this principle is being following at all
times.”
528 See Exhibit P-101 CAD0162: The CI&W Unit was responsible for the processing of communications
intelligence and its transmission of that information to operational units. The CI&W unit included the
monitors, transcribers and translators, along with the management staff.
529 See Testimony of Jacques Jodoin, vol. 49, September 20, 2007, p. 6036: Jodoin had a copy of the
TAPP Manual in his office; Exhibit P-101 CAD0163: Richard Wallin, Vancouver Chief, CI&W had read
the TAPP Manual and had it explained to him by his predecessor; he believed that his subordinates
within CI&W would have read the TAPP Manual and trainers would have passed on the relevant
procedures to other personnel; Exhibit P-101 CAD0152, p. 5: Eugene John Pokoj, second in charge
to Jim Laking, Deputy Chief, Communications Intelligence Production in Ottawa, had gone through the
TAPP Manual and his staff passed on relevant portions to other employees. The CIP Division had a copy
of the TAPP Manual.
530 At HQ, see Exhibit P-101 CAD0154, p. 6: Russell Upton, Chief of the Western Europe and Pacific Rim
desk at CSIS HQ, had never read the TAPP Manual at that time but was aware of the need to set aside
raw material if there was information that could be used by a police force; Exhibit P-101 CAD0157,
p. 5: Mel Deschenes, Director General, Counter Terrorism at HQ, was familiar with the policy in general
terms but felt that HQ personnel would not need to know the specifics as they were not handling
the tapes. In the BC Region, see Exhibit P-101 CAD0115, CAD0138: Neither of the two Sikh extremism
investigators in the BC Region read the TAPP Manual.
�Chapter IV: CSIS/RCMP Information Sharing
monitors and the people who transcribed the Parmar intercepts never personally
reviewed the TAPP Manual and only knew about the policy through word of
mouth.531
Barr Memorandum: April 5, 1984
During the transition from the RCMP Security Service to CSIS, the Security
Intelligence Transition (SIT) Group recognized the need to modify the TAPP
Manual to meet the civilian mandate of the new security service. Archie Barr,
then Director of Security Policy Development, issued a memorandum intended
to reflect CSIS’s new identity as a civilian, rather than police, agency.532 It stated:
As the CSIS Act contains no requirement for collection by
the Service of information for evidentiary purposes, no such
capacity will be provided for within CSIS facilities.
Soon after the creation of CSIS, Minister Robert Kaplan issued a Directive
(the Kaplan Directive) that stated “…since information provided by a CSIS
investigation is unlikely to be usable in law enforcement work, the RCMP would
be required to investigate and collect the evidence required.”533 Employees of
the new civilian intelligence service were reminded that they were no longer
police officers. As of July 16, 1984, CSIS did not collect evidence, but only
intelligence.534 Accordingly, CSIS ceased handling recordings of intercepts to an
evidentiary standard.535
The Barr memorandum radically altered the Service’s tape retention policy
by ending the practice of retaining Master Evidentiary tapes to assist in court
prosecutions. The memorandum reversed the policy set out in the 1980
Ministerial Directive and made a clear statement that the role of the new Service
was to collect intelligence, not evidence.536 The Barr memorandum became the
accepted operating standard despite the fact that he did not have the authority
to reverse the 1980 Ministerial direction.537
Jodoin Memorandum: February 18, 1985
After CSIS was created, Jacques Jodoin, the DG CI&W at CSIS HQ (the unit
responsible for the processing of communications intelligence and the
transmission of that information to operational units), recognized the need
to adjust the warrant policy to reflect the new Federal Court warrant process.
On February 18, 1985, he issued a memorandum to all regions intended to
531 See Exhibit P-101 CAD0148, CAD0151, CAD0166, CAD0167: The Vancouver intelligence monitors and
transcribers never read the TAPP Manual but knew about the policy through word of mouth.
532 Exhibit P-101 CAA0636, p. 2.
533 Exhibit P-101 CAA0081, p. 12.
534 Testimony of James Warren, vol. 48, September 19, 2007, p. 5829.
535 Exhibit P-101 CAA0453.
536 This policy included Chapter 10 (Evidentiary Recordings) and paragraph 3 of Chapter 21 (Tape
Retention) of the TAPP Manual.
537 Exhibit P-101 CAF0260.
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ensure that details of significant information were available for inclusion in
CSIS’s warrant renewal applications for consideration by the Federal Court.538
The memorandum called for the retention of tapes containing information
that “…significantly incriminated a target subject in subversive activity or was
contentious in nature or open to interpretation.” The tapes were to be retained
for one year or up to the renewal date of the warrant, whichever came first.
The memorandum requested that the regions inform all employees involved
in investigations and in the processing of communications intelligence of
this requirement. However, the regional offices did not interpret Jodoin’s
memorandum as a policy directive, but rather as a suggested approach. In fact,
as of 1988 no region had adopted the procedures set out by Jodoin.539
Applying the Policies to the Parmar Tapes
The four different policies under which CSIS personnel who processed the Parmar
Tapes were notionally operating were ambiguous, outdated and in conflict
with one another. However, as a minimum common standard, tapes were to
be retained for at least 10 days and a maximum of 30 days after having been
listened to, and preferably until after submission of a report to the investigator
(as specified in the TAPP Manual and the 1980 Ministerial Directive). The criteria
for further retention were vague and unclear. Two separate notions can be
extracted from the policies reviewed:
• Indefinite retention of communications that “…significantly
incriminate a target subject in subversive activity” (TAPP Manual);
and
• Retention for one year or up to the renewal date of the warrant
(whichever came first) of communications that “…significantly
incriminate a target subject in subversive activity or are contentious
in nature or open to interpretation” (Jodoin Memorandum).
CSIS employees had inconsistent interpretations of CSIS policies on retention
of intercepts.540 They held differing views about the criteria for retention, the
identity of the individuals responsible for making the determination about
retention and the availability of CSIS information for evidentiary purposes.541 This
resulted in general uncertainty as to what information to retain, with everyone
appearing to rely on others to make that decision. The consequence was that
there was virtually no consideration given to the importance of retaining the
Parmar Tapes to assist the police in their investigation of the terrorist attack on
Flight 182.
What Is “Significant Subversive Activity”?
At the time of the Air India bombing, the emphasis was on erasing tapes to
respect privacy and to protect innocent parties and privileged communications.
538
539
540
541
Exhibit P-101 CAA0125.
Exhibit P-101 CAD0037.
Exhibit P-101 CAB0902, Annex F.
Exhibit P-101 CAB0902, Annex F, pp. 173-174, 182-183. See also Exhibit P-101 CAB0902, p. 79.
�Chapter IV: CSIS/RCMP Information Sharing
This is best understood in light of the McDonald Commission’s severe criticism
of the RCMP Security Service for retaining too many files with questionable or
no security intelligence value. Solicitor General Kaplan was concerned that the
RCMP Security Service files be retained in accordance with a clear policy based
on security need and under properly constituted authority.542
Despite that sentiment, no such clear policy existed in 1985. While the TAPP
Manual required retention of communications which “…significantly incriminate
a target subject in subversive activity,” there was no guidance given on how to
apply that criterion.
The term “significant subversive activity” in the TAPP Manual was developed
in the early 1980s, when the RCMP Security Service was focused on counterintelligence and counter-subversion targets. It was of marginal utility when
the CSIS focus turned to counterterrorism targets. Warren noted that in the
old RCMP Security Service days, “subversive activity” would have referred to
membership “in the Communist Party.” He noted that in the CSIS days, the term
was understood to include a broader range of activities, but admitted that, for
people on the ground, the criterion was “very imprecise,” which was one of the
faults of the policy that existed at the time.543
As revealed in interviews conducted in 1990 in preparation of the Reyat trial, CSIS
personnel had varying understandings of the meaning of the term “significant
subversive activity.” Some understood it to mean “…trying to overthrow the
government by violent means,”544 while others included terrorism-related
activities within the definition.545 Still others admitted to having a vague
understanding of the term, offering general definitions such as “…any activity
that is subversive to Canada,”546 and “…something that has a derogatory impact
on an individual’s freedoms and rights.”547 Most expressed the view that the
term would be satisfied only by clear, blatant information relating to an act of
political violence or a serious criminal act.548
The confusion over the meaning of the term can be illustrated by the controversy
over the “Jung Singh” intercept. The following conversation was recorded on
April 8, 1985 and reported to both CSIS HQ and BC Region on May 31, 1985:
542
543
544
545
546
547
548
Exhibit P-101 CAA0011.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5938.
Exhibit P-101 CAD0148, p. 5: Doak, Transcriber, BC Region.
Exhibit P-101 CAA0453, p. 2: Jodoin, Director General, CI&W, CSIS HQ.
Exhibit P-101 CAD0155, p. 5: Ottawa translator, CSIS HQ.
Exhibit P-101 CAD0154, p. 6: Upton, Chief, Western Europe and Pacific Rim Unit, CSIS HQ.
Randy Claxton defined the term as “…any information that would offer an investigative lead to the Air
India/Narita incidents” (See Exhibit P-101 CAD0156, p. 5) and “…any indication that a violent unlawful
act would be about to be committed or entertained” (See Exhibit P-101 CAD0127, p. 12); Bob Smith
felt it would have to be a “…blatant confession that the individual … has committed or is about to
commit a serious act” (See Exhibit P-101 CAD0130, p. 8); Ken Osborne defined the term as activity
on which a serious prosecution could be based (See Exhibit P-101 CAD0191, p. 3); Ray Kobzey looked
for material that would blatantly suggest that “…someone was about to commit a significant act … an
act of political violence” (See Exhibit P-101 CAD0115, p. 13).
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J. SINGH: I have heard that that woman’s (Indira Gandhi) son
is coming on the 6th of June. I am presenting all my … on the
9th of April, now if you can do something….
PARMAR: Keep quiet. Everything will be taken care of.
J. SINGH: Well, he is arriving, and how do I contact you … and
… somehow or other you have to …
PARMAR: I said I understand, now shut up, I shall get
everything done.
J. SINGH: I am willing to serve in any way.
PARMAR: Don’t require this kind of service, but things will
somehow work out.
J. SINGH: Something should be done…. I beg you from all my
family he should not be allowed to go back … those in India,
we can hope that they will do something.
PARMAR: No, they cannot do anything.
…
J. SINGH: I beg you send somebody or something, there are
three us here, one of us can have the killer number (a number
to kill).
PARMAR: Do you have a passport? Can you move around
easily?
J. SINGH: Yes sir, there is no problem, I can come and go freely.
PARMAR: Good then, maybe you’ll be able to do something.
J. SINGH: Give me this chance to serve, if you can do this,
because I don’t think I can have any success in India. The … I
had thought about has already been taken by God (referring to
Indira Gandhi’s death) … this is the only thing you are lacking.
PARMAR: O.K.; O.K., don’t worry, everything will be alright.
Find out about his complete plan.
J. SINGH: But you tell me, who and when and where I have to
meet somebody for instructions …
�Chapter IV: CSIS/RCMP Information Sharing
PARMAR: I said keep quiet, if somebody wants to meet you,
they will find you.
J. SINGH: I am very happy to have talked to you.549
The translator felt this was significant, as it was a threat to Gandhi during his
planned visit to Germany in early June 1985. The translator prepared a verbatim
transcript and passed it on to the investigators for consideration and further
distribution.550 Both CSIS HQ and BC Region were notified. Neither ordered
retention of the tape.
CSIS claimed that, while the communication was seen as being of significant
intelligence value, it was not regarded as “…significantly incriminating a target
subject in subversive activity.”551 Bob Smith, Chief of CT at BC Region, stated that
it was believed that the caller was “not all there,” that Parmar did not pay any
attention to it, and that therefore it was not a bona fide call.552 In any case, CSIS
argued that its intelligence requirements were met with the summary reporting
of the Jung Singh/Parmar conversation and the retention of the verbatim
transcripts.553
Meanwhile, the RCMP Air India Task Force investigators and some CSIS personnel
felt that the Jung Singh intercept was obviously “significant subversive activity.”554
Dave Ayre, one of CSIS BC Region’s two main Sikh extremism investigators, noted
that he was not even aware of the Jung Singh comments at the time.555 Warren,
in his testimony at the Inquiry, stated that the conversation was something he
probably “would have kept.”556 If the Jung Singh conversation was not considered
to be significantly subversive, it is difficult to imagine what sort of information
would qualify as such.
Since CSIS personnel had no uniform understanding of what constituted
“significant subversive activity,” it is not possible to rely confidently upon CSIS
assurances that its personnel were capable of properly identifying critical
information and able to ensure that such information was not lost through the
erasure of the Parmar Tapes. In fact, not only was there no clear understanding
of the policy, but personnel like Ayre, with the most knowledge of the file, and
who may have been best able to identify information of interest, were not even
always aware of the contents of the intercepts.
549
550
551
552
553
554
555
556
Exhibit P-101 CAD0013, pp. 42-43.
Exhibit P-101 CAD0117, p. 5, CAD0155, p. 7.
Exhibit P-101 CAD0003, p. 13, CAD0117, p. 5.
Exhibit P-101 CAD0003, p. 13.
Exhibit P-101 CAD0117, p. 5, CAD0124, p. 6.
Exhibit P-101 CAD0003, p. 13.
Exhibit P-101 CAD0183, p. 16.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5938; Exhibit P-101 CAD0003, p. 13.
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Who Was Responsible for Requesting Retention?
The TAPP Manual did not identify which official or officials had the power to order
the indefinite retention of “…communications that significantly incriminate a
target subject in subversive activity.”557
Warren outlined the responsibility to request retention within CSIS in a November
30, 1987 letter to the RCMP:
The determination of “information to significantly incriminate
a target in subversive activity” … is the responsibility of
the investigator(s) assigned to the case, the analyst at HQ
in Ottawa and the supervisors in the chain of command.
The investigator coordinates all information about a target
including that from interviews, electronic intercepts and
physical surveillance, and submits the intelligence report to
HQ. There, it is read and put into a broader national context.
If any one piece of information is thought to be particularly
significant within the context of the mandated responsibilities
of this Service, or alternatively, if a piece of information is felt
to require clarification, the investigator, the analyst or the
supervisor may request a verbatim transcript and/or that the
tape or, at least, the relevant portion of it, be kept beyond the
maximum 30 day period.558
R.H. Bennett, DG CT at CSIS HQ in 1988, admitted that BC Region investigators
were in the best position to make the determination to retain, bearing in mind
that they had access to the raw product and, in most cases, direct access to
the translator.559 At the time of the terrorist attack on Flight 182, BC Region DG
Randy Claxton stated that he was satisfied that all investigators were cognizant
of the need to identify significantly incriminating subversive activity, together
with the requirement to preserve the tapes and to immediately notify their
respective supervisors.560
Despite Warren’s November 30, 1987 letter to the RCMP, neither investigators
Ayre nor Ray Kobzey were familiar with the tape retention policy.561 Both were
BC Region investigators on the Sikh extremism file.562 Neither had ever read the
TAPP Manual. They described it as a “need to know” policy and, as investigators,
they were of the view that HQ did not feel that investigators had a “need to
557
558
559
560
561
Exhibit P-101 CAA0009, p. 5.
Exhibit P-101 CAA0595(i), pp. 3-4.
Exhibit P-101 CAD0124, p. 3.
Exhibit P-101 CAD0139, p. 4.
In 1985, Kobzey was not familiar with the term “significant subversive activity.” In fact, he did not
become familiar with this phrase until March 1988: See Exhibit P-101 CAD0002, p. 12.
562 Exhibit P-101 CAD0112.
�Chapter IV: CSIS/RCMP Information Sharing
know” the policy.563 Ayre and Kobzey thought that decisions about the retention
of tapes were not their responsibility, but rather that of the technical support
section. In fact, most surprisingly, Ayre believed that the Parmar Tapes were
being retained.564
This confusion about roles is a direct result of the need-to-know
compartmentalization employed by CSIS. Investigators responsible for retention
were not fully cognizant of the tape retention policy. Meanwhile the technical
personnel with access to the TAPP policy were not aware of the investigative
details of the case.
Ayre and Kobzey understood that they were responsible for moving significant
information up the chain of command. In deciding what was significant,
the investigators had to rely on the transcribers and translators to identify
information relating to “significant subversive activity.” CSIS translators were
generally civilians hired out of the community with no background in policing
or intelligence matters. Despite this, Ayre relied heavily on the translator’s innate
knowledge to identify information on “significantly subversive activity.” So
complete was his reliance on the translator and transcriber – who had no police
or intelligence background and little familiarity with Parmar – that Ayre never
read all of their notes, but rather relied on them to apprise him of conversations
containing evasive or peculiar language.565
Ayre and Kobzey were responsible for reporting any such information to Jim
Francis, the Desk Supervisor. From there it would go to the Chief, Bob Smith,
who was aware of all investigative activities in BC and signed all outgoing
final reports,566 and from him to the Deputy Director General Operations, Ken
Osborne, who coordinated and directed the activities of the investigators,
read incoming and outgoing reports, and ensured appropriate dissemination
of intelligence at the regional level. The CI&W Section, headed by Joe Wickie,
would be brought in, and a decision would be made about what to do with the
information, whether tapes would be retained, and to whom the information
would be reported. An investigator’s recommendation to retain would not be
final,567 but would require the approval of BC Region investigative and technical
supervisors, as well as Claxton, the Director General of the BC Region. Claxton
stated that even he did not have the authority to order the retention of tapes
and that he would have had to obtain the authority from the CSIS HQ policy
centre.568 However CSIS HQ was never called upon to consider such an order, as
BC Region never sought retention.
A similar reporting structure existed at HQ, with incoming and outgoing reports
on the Parmar Tapes channelled through Glen Gartshore, the Supervisor of the
563
564
565
566
567
568
Exhibit P-101 CAD0115, pp. 4, 12-13, CAD0183, p. 12.
Exhibit P-101 CAD0138, p. 5.
Exhibit P-199, p. 69; Exhibit P-101 CAD0138, p. 4.
Exhibit P-101 CAD0002, p. 12.
Exhibit P-101 CAD0115, pp. 2, 12-13.
Exhibit P-101 CAD0002, p. 12.
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Sikh Desk. Gartshore brought all intelligence that he felt was significant to the
attention of the Unit Chief (Russell Upton before the bombing and Chris Scowen
after the bombing) who reported directly to Mel Deschenes, the Director
General, CT. None of these personnel had direct access to the TAPP Manual,
but all were aware of a general duty to bring “significant” information to the
attention of their supervisors.569
In theory, the final decision to retain intercept tapes appears to have been a
joint responsibility between Deschenes and Jodoin, the CI&W DG, with approval
from the CSIS Director.570
At the Inquiry, Warren offered his perspective on why no one had asked for
retention of the Parmar intercept tapes.
Why it happened, I don’t know, but it was [an] oversight.
Nobody gave the order and things just kept rolling on as if
nothing had happened and the people who were at very
junior levels were actually in this process of destroying the
tapes. In the absence of any instructions from up above, [they]
kept doing what they had always been doing.571
It is true, in theory, that anyone in the chain of command at BC Region and CSIS
HQ could have requested retention. It is equally true is that no one individual
was assigned that responsibility. The reality is the decision could not have been
made by a single individual, but rather it would have required approval by both
investigative and technical personnel in BC Region and at CSIS HQ. Ultimately, if
somebody had sought the retention of the Parmar intercepts, they would have
had to engage an approval process involving the BC investigators right up to
the CSIS Director, a cumbersome process that few, if any, CSIS personnel appear
even to have been aware of.
The Jodoin Memorandum: “Contentious in Nature or Open to
Interpretation”
The Jodoin memorandum purported to expand the class of communications to
be retained to include those “contentious in nature or open to interpretation.”
To be sure, Jodoin stated that the purpose of his directive was to maintain the
intercepts to assist in wiretap renewals by advising the Federal Court about what
information had been obtained to justify the renewal. Nevertheless, Jodoin
understood that intercepts rarely reveal the “smoking gun” conversation that ties
a conspiracy together. The process of understanding intercepted conversations
is incremental and requires an integrated assessment of the content with other
known investigative facts.572 In light of the translators’ lack of familiarity with
569
570
571
572
Exhibit P-101 CAD0120, p. 5.
Exhibit P-101 CAD0003, p. 9.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5818.
Testimony of Jamie Jagoe, vol. 82, November 23, 2007, pp. 10478-10479.
�Chapter IV: CSIS/RCMP Information Sharing
Parmar and with Parmar’s use of veiled language and guarded conversations,
the adoption of Jodoin’s directive would have been especially useful to them in
the interpretation of Parmar’s communications.
The expanded criteria for retention recommended by Jodoin were never
employed by any CSIS region. Even though a verbatim report was made and
used on subsequent warrant renewals, BC Region did not retain the tape of
the intercepted Jung Singh conversation, in direct contradiction of the Jodoin
memorandum.573
Jodoin testified at the Inquiry that, as DG CI&W, he had authority to issue
guidelines but not to rewrite policy – a role reserved for the CSIS Director. However,
Jodoin issued the memorandum with the intention that all regions would
follow his instructions. Jodoin did not realize that no region had followed his
instructions and felt that, although the regional DGs had autonomy in directing
their region, it was wrong of them not to notify him of their disagreement with
his recommendations.574
It is not clear why Jodoin’s memorandum was generally ignored. According to
SIRC, the wording of the Jodoin memorandum and the explicit request that the
instructions be forwarded to all responsible personnel contradict the notion
that it was only meant as a “suggestion.” Had the suggestion been heeded, it
might have resulted in the retention of some Parmar Tapes.575
CSIS Failures
Any assessment of whether CSIS ought to have retained the Parmar Tapes has
to take into account two important considerations. On the one hand, CSIS had
intelligence that Parmar was a dangerous terrorist. The Service described him
in as someone who is “…expected to incite and plan acts of violence including
terrorism” against Indian interests and Hindus.576 On the other hand, there is the
reality that CSIS was a new agency, intent on making a break with its previous
Security Service orientation.
Prior to the bombing of Flight 182, the failure to have maintained the tapes
might be understandable (except in cases which present clear “significantly
subversive activity,” like the Jung Singh intercept, which should have been
preserved under CSIS’s own policies), particularly in the wake of the McDonald
Commission’s recommendations about the privacy abuses perpetrated by
the RCMP Security Service. Wishing to respond to those concerns, CSIS rightly
sought to chart a path distinct from law enforcement. This entailed a greater
respect for the privacy of their targets than that employed by the RCMP Security
Service.
573
574
575
576
Exhibit P-101 CAA1032.
Testimony of Jacques Jodoin, vol. 49, September 20, 2007, pp. 6034, 6051.
Exhibit P-101 CAB0902, pp. 72-73.
Exhibit P-101 CAA0333, para. 3(g): Affidavit of Archie Barr filed in support of the application to obtain a
warrant to intercept Parmar’s communications.
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While the Jodoin memo sets out an approach which is more in tune with our
present-day understanding of the utility of intelligence information, it would be
inappropriate to suggest that the Service had failed in the pre-bombing era. It is
the Commission’s view that that conclusion would unduly favour hindsight.
Hindsight, however, is not the sole reason for believing that the tapes obtained
following the bombing of Flight 182 should have been retained. Once the
bombing had occurred, there was no excuse for the continued systematic
destruction of the tape recordings. That the terrorist act was rooted in the
Sikh extremist movement was immediately suspected by the Service, and as
the leader of the most dangerous group in Canada,577 Parmar was immediately
suspected.578 The fears of terrorist violence outlined in the Barr affidavit in
support of the warrant to intercept Parmar’s conversations literally came to pass.
The failure to put a stop to the destruction of the tapes represented a failure on
the part of the Service to perform its function in the public interest. It was a
triumph of blind adherence to a practice that could not then and cannot now
be justified.
CSIS adopted a policy that its information would not be available as evidence
out of an interest in protecting privacy, as well as from a desire to distinguish
itself from the former Security Service. Warren, in his testimony at the Inquiry,
stated that the pendulum had swung too far at the time of the creation of
CSIS, and perhaps CSIS was being overly sensitive to the issue of being more
attentive to the privacy rights of Canadians.579 In an overzealous effort to
ensure that the new agency followed the recommendations of the McDonald
Commission, it failed to consider the shift in paradigm from counter-intelligence
to counterterrorism, or to recognize the critical role that CSIS intelligence would
play in the investigation and prosecution of the Air India and Narita terrorist
attacks.
In the aftermath of the terrorist attack on Flight 182, CSIS should have preserved
all the tapes in its possession. This applies not only to the backlogged tapes
from the pre-bombing period, but also to the tapes of the conversations CSIS
continued to intercept after the bombing, and which it continued to translate,
summarize and erase until February 1986.
Should the Tapes Have Been Retained as Evidence?
While it is clear from the foregoing that CSIS did not consider that it had a
mandate to collect and preserve information as evidence for subsequent use by
law enforcement, it was certainly the mandate of the RCMP to collect evidence
for use in a criminal prosecution. The focus therefore now shifts to what the
RCMP did to preserve the Parmar Tapes for their criminal investigation of the
terrorist attack on Flight 182.
577 Exhibit P-101 CAB0144.
578 Testimony of Ray Kobzey, vol. 33, May 24, 2007, p. 3812.
579 Testimony of James Warren, vol. 48, September 19, 2007, pp. 5814, 5941.
�Chapter IV: CSIS/RCMP Information Sharing
CSIS justified its lack of retention for criminal purposes on the basis that the
responsibility to request retention for evidentiary purposes lay with the RCMP.
Warren noted that the BC Region practice in the immediate aftermath of the
bombings was to provide copies of final intercept reports to the RCMP members
involved in the Air India Task Force. He emphasized that the RCMP should have
been aware of the existence of the Parmar intercept, and thus the onus was on
the RCMP to indicate its opinion on the evidentiary value of any intercept.580
CSIS found absolutely nothing in its files to suggest that a request for retention
had ever been made or that anybody had even considered saving all the Parmar
Tapes.581
In October 1987, the RCMP learned that CSIS was claiming that it had not
received a request to preserve potential evidence. The RCMP E Division Task
Force performed a cursory search of its own files and failed to identify any written
correspondence recording such a request.582 Given the importance of this fact
in the face of a potential abuse of process motion in the planned prosecution of
Reyat for the Narita bombing, the RCMP undertook efforts to verify whether and
when it had made a request for retention to CSIS.
Sgt. Robert Wall contacted members who had liaised with CSIS after the
bombing to enquire about their recollection of “…when, how, how often and
by whom we requested of CSIS that they preserve any potential evidence they
might possess.”583 In the months following the bombing, CSIS and the RCMP had
met regularly to negotiate access for the RCMP to CSIS information. The RCMP
claimed that it made various representations to CSIS expressing its interest in
the preservation of CSIS information of evidentiary value.
Henschel-Claxton: Days after the Bombing
Supt. Lyman Henschel was the OIC of Support Services with the RCMP E
Division in 1985. He was responsible for the RCMP units in charge of physical
surveillance, communications intercepts and the gathering of criminal
intelligence in the Division. In the aftermath of the Air India bombing, Henschel
took on the responsibility of coordinating intelligence in support of the Air India
Task Force investigation. On June 26, 1985, Henschel was contacted by Chief
Superintendent Gordon Tomalty, the OIC of RCMP Federal Operations in the
Division, who inquired whether there was a problem of disclosure of information
from CSIS to the RCMP. Henschel recalled that the issue was raised as one that
should be clarified at an early date in the investigation, without anticipation of
difficulty.584 Henschel contacted Claxton and made the following notes of the
meeting:
580
581
582
583
584
Exhibit P-101 CAA0466.
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5819-5820.
Exhibit P-101 CAA0585, CAA0606, p. 3.
Exhibit P-101 CAA0583(i).
Testimony of Lyman Henschel, vol. 46, September 17, 2007, pp. 5518-5520, 5523.
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Discussed disclosure problem with Randy Claxton – disclosure
to Force no problem as per Sec. 19(2)(a) CSIS Act – CSIS to
RCMP. Problem of vital evidence being secured on a CSIS
intercept discussed. Agreed that where there is indication of
likelihood the intercept may yield evidence we will proceed
with separate Part IV.I (now Part VI) authorization. CSIS may
have continuity problem – as only one tape produced. In
event of capture of crucial evidence, best effort would be
made to introduce notwithstanding continuity problem.585
Claxton endeavoured to obtain CSIS HQ’s official position on the procedure that
was to be employed if the Service were to obtain “crucial evidence.” 586 Henschel,
at the time of his meeting with Claxton, was not aware that CSIS had been
intercepting Parmar’s conversations or those of any other targets relevant to
the terrorist attack on Flight 182. He thought that the situation discussed was
intended to apply in the future, to ensure that arrangements were in place to
facilitate CSIS’s sharing of information of evidentiary value with the Air India
Task Force.587 Henschel informed the Task Force members and the RCMP Liaison
Officers of this tentative arrangement.588
The following day, Claxton contacted Henschel with CSIS HQ’s official position,
recorded in Henschel’s notes as follows:
Any incriminating evidence off CSIS installation will
immediately be isolated and retained for continuity with
advice to ourselves. Told him where criminal activity appears
likely we will parallel with separate Part IV.I C.C. (now Part VI)
authorization. He asked that we touch base with his office
… before this is done as they have one or two very sensitive
installations which they would want to consider very carefully.
If they are asked to tender evidence Randy will seek ministerial
approval.589
On June 27, 1985, Henschel advised Inspector John Hoadley, who was in charge
of managing the E Division Air India investigation, of this CSIS position.590
Several years later, on November 18, 1987, Hoadley reviewed his notes of his
conversation with Henschel. Hoadley recalled that they had discussed the need
to preserve all wiretap information that came into CSIS’s possession, and that
Henschel had subsequently called Claxton to secure his concurrence.591
585
586
587
588
589
590
591
Exhibit P-101 CAF0166, pp. 2-3.
Exhibit P-101 CAF0166, p. 3.
Testimony of Lyman Henschel, vol. 46, September 17, 2007, p. 5525.
Exhibit P-101 CAF0166, p. 3.
Exhibit P-101 CAA0260.
Exhibit P-101 CAA0260.
Exhibit P-101 CAA0592.
�Chapter IV: CSIS/RCMP Information Sharing
Henschel, in his testimony at the Inquiry, disagreed with Hoadley’s recollection.
Henschel testified that there was no request to retain non-evidentiary material,
as he was not aware that any relevant tapes were in existence.592
On November 4, 1988, in response to a request from CSIS HQ for an explanation
of Henschel’s notes about the conversations, Claxton set out in a telex his own
recollection of his conversations with Henschel. Claxton wrote that he agreed to
preserve any incriminating evidence, to isolate the vital information, to advise
the RCMP Division immediately and to refer the matter to CSIS HQ for direction.593
His position was that what would be retained pursuant to this agreement, if a
need ever arose, were particular pieces of information only, not the entirety of
the CSIS holdings.594 He stated that there were no specific requests to retain any/
all non-evidentiary wiretap material from any RCMP officer.595 Certainly, Claxton
was of the view that unless there was value to a piece of information, it would
not be retained. According to him, it was clear that his agreement with Henschel
was not meant to result in the retention of the Parmar Tapes.
Henschel’s recollection was that Claxton committed to retain possession of and
to isolate any relevant material. In his opinion, any intercept activity on a prime
suspect in the bombing should probably have been considered “relevant” and
resulted in a decision to retain all tapes and related material on that person.596
Therefore, while he agreed with Claxton that the agreement was not meant to
provide specifically for the retention of the Parmar Tapes, he felt that the Parmar
intercepts were in fact “vital evidence,” and that CSIS should have recognized
them as such and retained them pursuant to the general agreement with
Claxton.
The Commission’s review of the Henschel-Claxton exchange revealed that the
language used was ambiguous and open to interpretation. Henschel noted
that the agencies were operating on trust at the time and they did not go into
details about specific warrants.597 He felt confident that CSIS would interpret
his request properly and retain relevant intercepts, which he felt should have
included all of the Parmar Tapes. However, it appears that CSIS did not have a
similar understanding. The arrangement on this important matter should have
been clearly understood and committed to writing to achieve clarity and to
avoid disagreements.
The Jardine Request to Retain Information
James Jardine testified that he asked the RCMP to request retention of all relevant
CSIS material, including intercepts, during the week of July 1, 1985. Jardine
was involved in a number of briefings that week, which included discussion of
592
593
594
595
596
597
Testimony of Lyman Henschel, vol. 46, September 17, 2007, pp. 5537, 5549.
Exhibit P-101 CAD0002, p. 4.
Exhibit P-101 CAD0003, p. 9.
Exhibit P-101 CAD0019(i).
Testimony of Lyman Henschel, vol. 46, September 17, 2007, pp. 5539, 5561.
Testimony of Lyman Henschel, vol. 46, September 17, 2007, pp. 5563-5564.
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whether the Crown would have access to CSIS information. Jardine asked that
all evidence or information or tapes or surveillance be retained for use in the
prosecution, if possible.598
Jardine referred to his notes in his evidence and stated that he met with
Hoadley and other members of the Task Force on July 1, 1985. Jardine said that,
at that time, he asked for any information CSIS may have obtained relevant to
the case.599 Jardine had just finished prosecuting the “Squamish Five” case, in
which he had experienced the reluctance of the Security Service to make its
information available for use as evidence. As a result, he told the RCMP Task
Force to make sure to obtain all relevant information from CSIS.600 By then, the
Task Force knew that CSIS had been conducting physical surveillance on Parmar
– as a result of the Duncan Blast information.601 Jardine recalled that CSIS would
neither confirm nor deny that it was intercepting Parmar’s conversations, but
Jardine suspected that it was.602 Jardine was confident, and the Commission
accepts, that in July 1985 he made his desires to have all CSIS information clearly
known to the officers in charge of the RCMP Task Force, though neither agency
had any such recollection.603
Negotiations over Access to the Parmar Tapes
Following the destruction of Air India Flight 182 in June 1985, and throughout
the summer and fall, CSIS continued to erase the Parmar Tapes. CSIS personnel
indicated that they assumed that the RCMP knew of the Service’s tape retention
policy, as it was developed during the time of the RCMP Security Service.604
Indeed, early drafts of the TAPP Manual had been sent to the Solicitor General
in 1980 and had been signed by RCMP Commissioner Simmonds.605 In addition,
some of the RCMP Air India Task Force members were former RCMP Security
Service officers, including Hoadley and the RCMP Liaison Officer, Sgt. Michael
(“Mike”) Roth. As such, it was thought that they would have knowledge of the
TAPP Manual.
Though the TAPP Manual was a Top Secret document, not widely circulated within
the Service, and not known to some of CSIS’s own Sikh extremism investigators
(e.g., Ayre, who thought that the Parmar Tapes were preserved), Roth testified
that he did have an understanding of the RCMP Security Service’s tape erasure
policy from his days with the RCMP Security Service. He recalled that tapes
would be maintained for 30 days and then recycled. When serious information
came up, requiring action by the RCMP or local police, Roth’s understanding
was that the tape would be marked and a “slave tape” made.606
598
599
600
601
602
603
604
605
606
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5663.
Exhibit P-101 CAA0578.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5662-5663.
See Section 1.4 (Pre-bombing), Duncan Blast.
Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Exhibit P-101 CAA0578; Testimony of James Jardine, vol. 47, September 18, 2007, p. 5663.
See Exhibit P-101 CAD0002, CAD0003, p. 9.
See Exhibit P-101 CAA0009.
Testimony of Michael Roth, vol. 46, September 17, 2007, p. 5633. According to Roth, a slave tape, or
copy, was made off the “master slave” and kept for use by the RCMP.
�Chapter IV: CSIS/RCMP Information Sharing
RCMP Task Force members were aware of the existence of the CSIS Parmar
intercept early in July 1985, and by July 12th at the latest. During the first
weeks after the bombings, CSIS provided the Task Force with summaries of
pre-bombing intercepted conversations pertaining to Parmar. This material
included information contained in a June 27th CSIS report, sent to the RCMP in
early July 1985, which reported coded conversations about “delivering papers,”
“that work,” and “mailing letters,” recorded on June 21 and June 22, 1985, during
two separate calls between Parmar and his brother, Kulwarn Singh, and Hardial
Singh Johal, respectively.607 It was quickly clear to the RCMP that the CSIS reports
about such conversations were based on intercepts.608
Wall’s notes contain a reference to a meeting between the RCMP and CSIS on
July 12, 1985, at which Francis mentions the Parmar intercept.609 He did not,
however, ask for specific retention of the Parmar Tapes at that time.
On July 25, 1985, Roth was given access to some of the Parmar intercept logs.
He stated that the first time he knew that CSIS had an intercept on one of the
RCMP targets was the previous day, when Hoadley instructed him to go to CSIS
to review the logs.610 Roth did not submit a request for specific retention of the
Parmar Tapes.
RCMP Gains Access to Parmar Tapes
Over the fall of 1985, the RCMP gained increased access to the Parmar intercept
logs, and RCMP personnel were eventually made aware of the fact that the
Parmar Tapes were being erased. On September 6, 1985, C/Supt. Norman
Belanger, the OIC in charge of the Air India investigation at RCMP HQ, requested
that members of the E Division Task Force be given access to CSIS intercept logs
on major Sikh targets for investigative leads and intelligence. Barr approved
the request on the basis that the RCMP officers would be indoctrinated into
CSIS, the material would be viewed on CSIS premises and it would not be
used as evidence in court.611 During the following days, Roth and his colleague
Cpl. Robert Solvason reviewed the Parmar intercept logs and took extensive
notes.612 Though the information uncovered was considered to be of interest to
the RCMP investigation, and was eventually used in an affidavit in support of an
RCMP authorization to intercept private communication, access to the Parmar
Tapes themselves was not discussed with CSIS at the time and the officers did
not request that the tapes be retained.
In early October, after Constable Sandhu had completed his review of the 50
backlogged Parmar Tapes, he requested access to the tapes recorded in June.
Betty Doak, the CSIS transcriber, informed him that a CSIS translator had already
607
608
609
610
611
612
Exhibit P-101 CAB0360.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Exhibit P-101 CAA0379(i), p. 9.
Exhibit P-101 CAA0802, p. 6.
Exhibit P-101 CAB0551.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
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processed these tapes. Even so, Sandhu pressed his request – to which Doak
replied that she thought the tapes had been erased. A few days later, Sandhu
returned to CSIS and requested access to the Parmar Tapes. He was told by John
Stevenson that the tapes were unavailable.613
One month later, awareness of the Parmar Tape erasures appears to have
reached the highest levels of the RCMP. On November 13, 1985, Mel Deschenes,
CSIS DG CT, sent a telex to CSIS BC Region,614 following a request from RCMP
Assistant Commissioner Norman Inkster, asking whether tapes pertaining to
all Sikh targets were still available since the Air India explosion, or had been
erased after processing. CSIS HQ requested that if some tapes had been erased,
BC Region should specify which tapes were still available. BC Region replied to
CSIS HQ that only tapes recorded from November 4th onward, along with the
tapes translated by Sandhu and four tapes retained for voice-print analysis,
remained.615 All other tapes had been erased, in accordance with the usual
10-day retention period set out in CSIS policy. BC Region offered to hold the
remaining and future Parmar Tapes for a further period of up to 30 days or until
advised not to retain.616
Inkster testified that there were “…frequent requests, perhaps oral in large
measure to retain the tapes,” and that this was a “preoccupation of Chief
Superintendent Belanger.” Inkster indicated that, when he learned from
Belanger that CSIS was still erasing the Parmar Tapes, he called CSIS Director Ted
Finn to say, “Ted, if that is occurring it has to stop.” Inkster was not able to recall
the date of his discussion with Finn on this matter, but he stated that he became
Deputy Commissioner of Criminal Operations in August of 1985 and that the
conversation occurred very early in his new mandate.617 No written record of
this exchange appears to have been made, nor was this request distributed to
the CSIS personnel handling the Parmar Tapes.
Even after these direct exchanges, CSIS could locate no record of the RCMP
having asked CSIS to retain intercept material from November 4th forward.618 CSIS
continued to erase the Parmar Tapes until the Department of Justice ordered a
stop to erasures on February 6, 1986 only in order to defend the Government
against the civil damages claim filed by the victims’ families.619 Beginning in late
September 1985, the RCMP had its own intercept of Parmar’s communications
and could conduct its investigation without the CSIS tapes. For the period
preceding this, however, the CSIS tapes that were now erased had been the
only original records of Parmar’s conversations in the months preceding and
following the bombing.
613
614
615
616
617
618
619
Exhibit P-101 CAA0583(i).
Exhibit P-101 CAA0374.
Exhibit P-101 CAA0376.
Exhibit P-101 CAA0376.
Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10338-10340.
Exhibit P-101 CAA0609, pp. 14-15.
See Exhibit P-101 CAA0549, CAA0609, p. 15, CAA0913(i).
�Chapter IV: CSIS/RCMP Information Sharing
On September 18, 1985, RCMP Deputy Commissioner Tom Venner requested a
meeting with CSIS BC Region to convey Jim Jardine’s insistence that he be given
access to the Parmar intercept information, as well as the freedom to use it as
evidence in an eventual prosecution and in support of RCMP judicial applications
for search warrants and authorizations to intercept communications. Jardine
feared that, unless he could access and cite the intercept material, any RCMP
warrant affidavit would be challenged and the resulting case could be imperilled.
Jardine was under the impression that an agreement already existed between
CSIS and the BC Provincial Government to ensure that CSIS would release this
information for evidentiary purposes. Venner, on the other hand, stated that he
did not accept Jardine’s concern that CSIS intercept material would be required
as evidence and affirmed that the RCMP Task Force was satisfied to receive
CSIS technical information for “investigative lead” purposes only. Venner even
suggested that it might be necessary to transfer the prosecution away from
Jardine to avoid further difficulties on this issue.620
At the meeting on September 18, 1985, Claxton addressed the existence of
“…an underlying suspicion in some RCMP quarters that CSIS was withholding
relevant information.” Assistant Commissioner Donald Wilson reassured Claxton
that no mistrust existed between the agencies, and that these suspicions would
be due to “…intense pressures being placed on Task Force investigators by
Headquarters, Crown Counsel, etc. for results.”621 In the spirit of cooperation,
CSIS BC Region recommended that the RCMP Task Force be given full access to
intercept material on other Sikh extremist targets.622
On September 19th, the RCMP made use of CSIS information in an application
for authorization to intercept the communications of Parmar and his associates.
CSIS HQ denied that this use was authorized. As a consequence, CSIS took this
opportunity to restrict access to further intercept material.623
While some RCMP members agreed with CSIS that its information should be
used only for investigative leads, others, like Belanger, clearly felt that the
information, including the original intercept tapes, should be available for
prosecutorial purposes.
Throughout this period, while the RCMP continued to negotiate access to the
Parmar transcripts, there was no written request or demand of CSIS to retain the
actual tapes.
RCMP Failures
After the terrorist attack, members of both the RCMP and CSIS appreciated the
need for cooperation. RCMP and CSIS members communicated frequently and
620
621
622
623
Exhibit P-101 CAB0553, p. 2.
Exhibit P-101 CAB0553, p. 3.
Exhibit P-101 CAB0553.
Exhibit P-101 CAA0327, CAB0554; See Section 4.1 (Post-bombing), Information Sharing and
Cooperation in the Air India Investigation.
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agreed to general information-sharing arrangements.624 However, no specific
details were discussed. The agencies were apparently confident that they would
do everything in their power to assist in each other’s investigation.
This confidence failed to take into account the differing understanding of
their mandates by the two agencies. There was a surprising lack of clarity to
the arrangements and to the understanding of the arrangements by senior
personnel, given the importance of the investigation. At times it appeared as if
each were relying upon unspoken and incorrect assumptions about the other
agency’s understanding.
While CSIS continued to insist that its information was not to be used as evidence
and to refuse access to its raw materials to the RCMP,625 the RCMP position was
captured by Chief Superintendent Frank Palmer, OIC Federal Operations, who
wrote to Commissioner Simmonds in October 1987:
It’s possible we, involved as we are in evidence preservation
in our day to day activities, assumed the same of C.S.I.S. &
thus never specifically requested they not destroy any tapes.
Certainly it would be our expectation that such destruction of
tapes if it was being done, would have ceased after the events
of 22/23 June 85.626
In other words, the RCMP expected that CSIS would voluntarily decide to retain
the Parmar Tapes. Nevertheless, when the RCMP became aware of the existence
of the tapes, it ought to have made a clear request for retention.
Was any Significant Information Lost?
CSIS has consistently claimed that no incriminating evidence was lost due to
the erasure of the Parmar Tapes.627 CSIS noted that Parmar was very surveillance
conscious, often making calls from phone booths or driving several hours for
a meeting rather than talking on his home phone. Significantly, even after the
bombing, Parmar continued to plot attacks, and neither CSIS nor the RCMP
obtained information of real probative value from their intercepts.628 CSIS also
points to the fact that Sandhu found no incriminating evidence in his review of
the 50 backlogged Parmar Tapes.
However, from the perspective of Assistant Commissioner Gary Bass, the
information that had been retained from the pre-bombing tapes presented
a clear picture of a conspiracy between Parmar and his associates. He felt
624
625
626
627
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Exhibit P-101 CAD0102, p. 4.
See Exhibit P-101 CAD0115, p. 13, CAD0138, pp. 4-5. The lead Sikh extremism investigators in the BC
Region, Ray Kobzey and David Ayre, have both stated that there was nothing in the material that
would have triggered a request for tape retention. Exhibit P-101 CAD0136, p. 4: Similar claims
have been made by Jim Francis, Unit Head, Counter Terrorism Section.
628 Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8308.
�Chapter IV: CSIS/RCMP Information Sharing
that, had the tapes not been erased, they would have been used as evidence
in the trial. The Crown ultimately decided not to attempt to rely on the logs
due to the likelihood that the prosecution would not withstand the inevitable
abuse of process motion by the defence. Bass also stated that, if he had had
the information in CSIS’s intercepts, he would have put up intercepts on
payphones immediately after the bombing. He felt that the delay in acquiring
the CSIS information meant that valuable information that would have been
communicated after the bombing was lost.629
Over the years, concerns have been raised about whether CSIS properly
processed all the Parmar intercepts and whether, despite the Service’s claims,
information of significance was in fact lost. Were all the intercepts listened to?
Were the translators and transcribers properly briefed to detect “significantly
subversive activity”? Was CSIS aware of the need to be mindful of the use of coded
language by Parmar and his associates? In short, was CSIS in a position where it
could reasonably conclude that nothing of value had been intercepted?
Were all the Tapes Listened to?
The 1992 SIRC Report attempted to address this issue and concluded that, due
to incomplete processing records, it was impossible to determine whether
all the Parmar Tapes were reviewed prior to erasure.630 Ronald (“Ron”) Atkey,
Chairman of SIRC from 1984 to 1989, testified that, to this day, it is his belief
that some tapes were erased without being listened to.631 When Jardine was
asked whether he was able to conclude, on the basis of the information he had
obtained from CSIS over the years, that all the Parmar Tapes had been listened
to prior to being erased, he answered: “I don’t know.”632
By contrast, Warren testified that BC Region had assured him that every tape had
been listened to.633 It is impossible to confirm BC Region’s assertion, given the
confusion over the erasure policy and the fact that CSIS failed to keep accurate
records of the processing of the Parmar Tapes. Indeed, in his correspondence
with the RCMP on the topic, Warren was, on several occasions, obliged to
retract previous statements about the intercepts and their erasure, including
the number of tapes that had been recorded.634 In short, a reliable and proper
accounting does not exist, including a complete log of the dates of erasure.635
It is plausible that tapes may have been erased prior to processing due to the
fact that some CSIS personnel held the view that tapes were to be erased 10 days
after interception, not 10 days after transcription. This is a rather surprising view,
given that Chapter 21 of the TAPP Manual stressed the importance of intercepted
629
630
631
632
633
634
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11184, 11240, 11249.
Exhibit P-101 CAB0902, p. 78: 1992 SIRC Report.
Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5988.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5763.
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5826, 5858.
See Exhibit P-101 CAA0581, CAA0595(i). See, generally, Section 4.4.1 (Post-bombing), The Reyat Trial
and the BC Crown Prosecutor Perspective.
635 Exhibit P-101 CAD0159, p. 3.
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communications to the investigators.636 For this reason the Manual called for
retention for a reasonable time after processing. The Manual provided:
…that tapes be held at least ten working days after having
been listened to and preferably for ten working days after
submission of the C-237 (the transcriber’s and/or translator’s
report on the intercept’s contents).
However, in a July 14, 1986 memo, Warren wrote that CSIS policy was to erase
“…10 days following the intercept.”637 This interpretation raises the alarming
possibility that tapes would be erased before they would be transcribed and
translated.638
In 1989, CSIS undertook a review of the processing of the Parmar intercept tapes.
The document describing the review outlines estimated dates of recording,
translation, transcription and erasure, as well as the personnel involved and other
relevant notes. The May 1, 1985 record notes that a reel appears to have been
erased without being processed. The record also shows discrepancies between
the number of tapes processed for certain days, as noted by the transcriber on
the one hand and the translators on the other.639
In 1991, the RCMP interviewed several CSIS employees involved in the processing
of the Parmar Tapes. The RCMP concluded that CSIS personnel interviewed did
not have a clear and consistent understanding of the tape erasure policy. The
CIOs, who were responsible for erasing tapes, stated that the actual process
they followed was to erase the tapes 10 days after the recording date.640 Claxton
admitted that erasure of tapes 10 days after recording could have occurred in
BC Region, despite the fact that it was contrary to policy.641
The number of actual tapes processed has been reported differently at different
times. In an October 19, 1987 letter, CSIS claimed that, during the period between
March 27 and July 1, 1985, there were 169 tapes processed with respect to the
Parmar intercept.642 On November 30, 1987, Warren corrected that estimate,
reporting that CSIS had collected 210 tapes, rather than 169.643
CSIS made subsequent attempts to clarify the total number of Parmar Tapes
processed. In a 1991 review, CSIS estimated that 203 to 207 tapes were
processed.644 In 1998, CSIS again attempted to account for the number of
processed tapes, concluding that the number was 207.645
636
637
638
639
640
641
642
643
644
645
Exhibit P-101 CAA0014.
Exhibit P-101 CAA0466, p. 3.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5826.
Exhibit P-101 CAD0159, pp. 9, 15, 19, 24, 34.
Exhibit P-101 CAF0250, p. 2.
Exhibit P-199, p. 10.
Exhibit P-101 CAA0581.
Exhibit P-101 CAA0595.
Exhibit P-101 CAD0159.
Exhibit P-101 CAD0184.
�Chapter IV: CSIS/RCMP Information Sharing
CSIS explained that the lack of precision was due to discrepancies between the
number of reels in the translator and transcriber logs. CSIS alleged that these
discrepancies were related to tapes not passed to the translator because they
contained no Punjabi content.646 However, there is no record to substantiate
this theory, and no mention in the transcriber notes of any tapes not being
passed on to the translators.
In light of this confusion and the lack of reliable records or record keeping, the
Commission cannot rely on CSIS’s claim that all tapes were listened to prior
to erasure. The available evidence appears to point to a different conclusion.
Moreover, it is astonishing that something as simple as a proper accounting
of the processing of intercept tapes was not undertaken and is therefore not
available.
Lack of Appropriate Briefings for the Transcriber and Translators
The role of transcribers and translators was critical in determining if Parmar was
engaged in “significant subversive activity.” Ayre, the lead investigator in charge
of reviewing the Parmar intercept reports, admitted that he relied heavily on
the translators’ innate knowledge and experiences to capture the nuances of
Parmar’s communications.647 However, it is clear that the Punjabi translators
working on the Parmar Tapes were ill-equipped to provide meaningful
intelligence information in the period preceding the bombings.
Transcribers and translators were generally civilians with no police or intelligence
background, and no specific training in national security matters.648
CSIS has admitted that, in the case of the Parmar warrant, any briefing provided
prior to the bombings would have been “necessarily skimpy,” as little was known
about Parmar at the time, due to the newness of the intercept itself.649 Doak,
who could not understand Punjabi, was the lead transcriber. To prepare herself,
she read the Parmar warrant and affidavit to become familiar with the target.650
The Ottawa translator, although familiar with some Sikh extremist targets, did
not recall being provided any specific briefing or instructions with respect to
the Parmar investigation. She was never provided with, nor did she read, any
material regarding the investigation prior to undertaking the translation.
She never interacted with the transcriber or with the investigators in the BC
Region.651 The Vancouver translator was given a briefing by Ayre, including an
overview of the Sikh extremism investigation in Canada, and was provided
with detailed instructions on what to look for. However, as work began on the
Parmar intercepts on June 8, 1985, there was little time to gain familiarity with
the nuances of his communications.652
646
647
648
649
650
651
652
Exhibit P-101 CAD0159, pp. 9, 15, 19, 34.
Exhibit P-101 CAD0138, p. 2; Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3842-3843.
Exhibit P-199, p. 69.
Exhibit P-101 CAA0597, p. 3.
Exhibit P-101 CAD0184, p. 17.
Exhibit P-101 CAA0595(i), CAD0003, p. 11, CAD0184, pp. 18-19.
Exhibit P-101 CAA0595(i).
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The transcribers and translators were asked to log only calls of value to the
investigators, looking for calls indicating all types of planning, meetings and
travel involving Parmar and his associates – Gill, Bagri and Malik. They were
also instructed to log any conversations indicating criminal activity, such as
plans to kill or beat people, explosions, bombings or destruction of property.653
Any information identified by the transcriber or translators as relevant was
generally summarized. Occasionally, significant communications were recorded
verbatim.654
The lack of coordination between the Ottawa-based translator and BC
investigators likely resulted in translators failing to appreciate what was
significant in any particular case.
A further complicating factor was the suspicion that the translators might have
been sympathetic to the Khalistani movement and might have allowed this
bias to affect their translations. At one point Warren was reported to have made
comments to the effect that he did not trust the translators 100 per cent because
of this suspicion.655 Claxton was aware of this possibility, but felt that he had no
reason not to trust them.656 Jodoin was not familiar with any questions about
the loyalty of the translators and stated that he had no reason to doubt their
loyalty and integrity.657
With minimal experience in national security matters and little knowledge
about Parmar in particular, the transcribers and translators could not effectively
undertake the critical responsibility of identifying information of significance.
The practice of reporting in summary form meant that relevant details that
might have been missed by the transcriber or translators would not be caught
by the investigators, who had the most knowledge to form an understanding of
the actual words spoken.
Coded Language
Initially nothing was known about the use of coded language by Parmar. As CSIS
began to build a picture of Parmar, however, it became clear that he was “phone
conscious” and, from time to time, resorted to coded language to disguise his
true meaning.658
On June 19, 1985, shortly before and immediately after the call to book the Air
India tickets, the intercept recorded conversations between Hardial Singh Johal
and Parmar.659 In the first conversation, Parmar asked Johal whether he “wrote
the story.” Johal replied that he had not and Parmar suggested that he write it.
In the second conversation, which occurred minutes after the Air India tickets
653
654
655
656
657
658
659
Exhibit P-101 CAD0016, p. 2, CAD0184, p. 17.
Exhibit P-101 CAD0184, pp. 17-18.
Exhibit P-101 CAF0815, p. 85.
Exhibit P-199, p. 86.
Testimony of Jacques Jodoin, vol. 49, September 20, 2007, p. 6072.
Exhibit P-101 CAA0308, CAA0309, CAA0595(i).
Exhibit P-201, paras. 48-50. See also Exhibit P-203, paras. 59(e), 59(f ); Exhibit P-101 CAD0180, paras. 269,
276.
�Chapter IV: CSIS/RCMP Information Sharing
were booked, with Johal’s former phone number left as contact information,
Johal (who was also seen at the airport on the day the suitcases were checked
in) told Parmar that he “wrote the story” and suggested that Parmar “come over
and see it.” Shortly afterwards, Parmar was observed by CSIS leaving his home
and driving in the general direction of Johal’s house. A short time later, another
call was made to CP Air to make changes to the reservations.660 The RCMP, in
an Information to Obtain in 1985 and in a 1996 Affidavit, indicated that, on the
basis of these intercepted conversations, they believed that the reservations
for the Air India tickets were made by Hardial Singh Johal and that Johal then
informed Parmar of what he had done.661
On June 20, 1985, an unidentified man went to CP Air to pick up the tickets. The
following day, Parmar telephoned Surjan Singh Gill and asked whether he had
delivered “those papers.” Gill confirmed that he had, and Parmar instructed him
to deliver “the clothes” to the same place.662 The RCMP subsequently concluded
that the “papers” referred to the tickets and the “clothes” to the suitcases to be
checked in on the flights. A few days before the tickets were picked up and paid
for in cash, Parmar asked Surjan Singh Gill to convert a cheque into cash in the
form of one hundred dollar bills.663 On June 22, 1985, shortly after the bags were
checked in at the airport, Parmar asked Johal if he had “mailed the letters” and
the two men agreed to meet in person to discuss the mailing of the “letters.”
Earlier that same day, Parmar’s brother Kulwarn called Parmar and asked “…
whether that work has been done yet.” Parmar replied “not yet.”664 In addition,
conversations intercepted on June 6, 1985, respecting airline ticket reservations
for a person visiting from Toronto, were believed by the RCMP to be relevant
to the identification of Mr. X, the person who accompanied Parmar and Reyat
during the June 4th Duncan test blast.665
CSIS and the RCMP officially became aware of Parmar’s use of coded language
on August 22, 1985, when Charlie Coghlin at CSIS HQ wrote to Belanger at RCMP
E Division indicating that the Narita suspects were using coded language.666
With the tapes erased, only the translators’ and transcriber’s original notes were
available to check for the use of coded language. This is another reason why the
retention of the original tapes would have been useful, as investigators could
have reassessed their contents for the use of codes.667 A review of the original
intercept tapes would likely have yielded a better understanding of how Parmar
employed coded language.
To this day, CSIS continues to claim that, while it is true that Parmar used coded
language, there remains no reason to suspect that the erased tapes contained
660 Exhibit P-101 CAD0180, paras. 278-279.
661 Exhibit P-201, para. 51; Exhibit P-101 CAD0180, para. 284.
662 Exhibit P-101 CAD0180, para. 301. This conversation is also mentioned in the September 19, 1985
Affidavit: Exhibit P-101 CAA0324(i), para. 50(s).
663 Exhibit P-101 CAD0180, paras. 228, 301.
664 Exhibit P-101 CAA0324(i), paras. 50(t), 50(u), CAD0180, paras. 307, 318.
665 Exhibit P-101 CAD0180, paras. 196, 199-200.
666 Exhibit P-101 CAA0308, CAA0309.
667 Exhibit P-101 CAA0595(i).
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information about the planning of the Narita/Air India terrorist attacks.668 The
fact that CSIS maintains this position is surprising, as there is a complete absence
of adequate evidence on the point. In this respect, the most that can be said
is that it is not known, and likely never will be known, whether the intercepts
captured the planning of the terrorist attacks.
It is impossible to determine what information was lost due to the Parmar Tape
erasures or its potential importance to the investigation and prosecution of the
Air India and Narita bombings. It is clear that CSIS did not take the necessary
steps to properly educate and train the translators and transcribers for this
investigation, and this leaves the quality of CSIS’s analysis of the intercepts in a
state of uncertainty. We cannot conclude that CSIS preformed its functions in
this respect in a competent manner.
Effect on the Prosecution
Jardine considered the information erased by CSIS to be critical to the prosecution
of the Air India and Narita matters. It was his view that, through the destruction
of the Parmar Tapes, the court lost a major piece of evidence that would have
been essential to the unfolding of the narrative at any subsequent trial.669
In a letter to Warren, dated November 3, 1987, Jardine expressed his opinion
that CSIS intelligence could be admissible as evidence:
One need only use the words “information” that they were
involved in a subversive activity, or “intelligence” that they
were involved in subversive activity or “evidence” that
they are involved in subversive activity to realize that we
are talking about degrees of relevance and evidence of
potential admissibility in a court room in order to make the
determination. The words are almost interchangeable.670
Jardine felt that, after the bombings, the test for retention should have been the
possible legal use of the tapes in a prosecution rather than the normal CSIS test
of “significantly incriminating.” Throughout the protracted negotiations with
CSIS in preparation for the Reyat prosecution, Jardine emphasized the need
to make disclosure to the defence of the relevant information, and the impact
of the tape erasure on the prosecution’s ability to fulfill its obligations in this
respect.671 If CSIS would not admit that a mistake was made in erasing the tapes,
Jardine hoped that the Court would find that CSIS was in error in not retaining
the tapes rather than concluding the alternative – that CSIS wilfully destroyed
evidence – a finding that had the potential to stay the prosecution as an abuse
of process.672
668
669
670
671
672
Exhibit P-101 CAD0117, p. 2.
Exhibit P-101 CAF0168, p. 6.
Exhibit P-101 CAD0106, p. 6.
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Exhibit P-101 CAD0121, p. 3.
�Chapter IV: CSIS/RCMP Information Sharing
At the Reyat trial, the Crown made no attempt to introduce any evidence
obtained in the form of the summaries that CSIS had provided regarding the
content of the erased Parmar intercept tapes. The defence, however, did launch
an abuse of process motion based on the erased tapes, which the Crown
successfully resisted. In his March 1991 decision on the matter, Justice Paris
stated: “As to the erasure of the tapes, it is clear that that occurred strictly as
a result of the then-existing administrative routine. There was obviously no
question of improper motive in that regard.” He also noted that it was unlikely,
on the basis of the evidence before him, “…because of the way Parmar was
acting,” that there was “anything of significance” on the tapes which could have
assisted the defence.673
In the Malik and Bagri trial, the Crown decided that the CSIS intercept logs could
not be used as evidence, and did not attempt to introduce them to support
the prosecution.674 The Crown also considered whether the remaining CSIS
intercept tapes could be used as evidence, and decided that they could not
because the CSIS warrant regime was not consistent with Part IV.I (now Part
VI) of the Criminal Code. This was a conclusion based on a CSIS research paper
but never tested in court,675 and one that is arguably incorrect, as discussed in
Volume Three of this Report.
The defence brought a motion claiming that the destruction of the Parmar Tapes
violated the accused’s rights under section 7 of the Charter because the erasure
deprived the accused of essential evidence compromising the right to a fair
trial. The Court agreed with the defence submission, as conceded by the Crown,
that the erasures amounted to “unacceptable negligence.”676 The trial judge was
not called on to craft a remedy for this Charter breach, as both accused were
acquitted on the merits.
Certainly, the destruction of the tapes had a negative impact on the Malik and
Bagri trial, as the Service was found to have violated the accused’s right to a fair
trial. Viewed in that light, the destruction of the tapes was a most serious error.
Another consequence of the destruction of the tapes was that the Crown was
deprived of information that it could have attempted to use to prosecute the
crime. What may not have appeared to be significant in July of 1985 may very well
have been significant in the hands of a skilled prosecutor. Again, the destruction
of the tapes minimized any possible advantage for the prosecution.
Conclusion
The Parmar Tapes were erased by CSIS personnel operating during the infancy
of CSIS, a period characterized by a lack of clear policies and direction. Warren
testified that there was little time to sit back and comprehensively think through
673
674
675
676
Exhibit P-101 CAA0808, pp. 2, 6-7.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11214-11215.
Exhibit P-101 CAA1086, p. 8.
Exhibit P-101 CAA0335, p. 18. See Section 4.4.2 (Post-bombing), The Air India Trial.
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the appropriateness of the policies inherited from the RCMP Security Service.
CSIS personnel handling the Parmar intercepts seemed to have been operating
in “default mode.”677 Thus the Parmar Tapes were routinely erased without
considering whether that was a sound practice in light of terrorist attacks on Air
India Flight 182 and at Narita.
Both the RCMP and the BC Crown appear to have recognized the importance of
the Parmar intercept material to the eventual prosecution of the bombings: as
an important possible source for inculpatory and/or exculpatory information.
At the core of this conclusion is the belief that, intrinsically, all that Parmar
may have said is relevant and important, given the central role he played in
the Sikh terrorist movement. Yet there was no written request to preserve this
information. It is surprising that the RCMP did not demand that CSIS retain
intercepts on all Sikh extremists in the immediate aftermath of the terrorist
attacks or, at a minimum, as soon as the RCMP knew of the Parmar Tapes. It is
also unfortunate that the Department of Justice only ordered the retention of
the intercepts in preparation for the civil litigation months after the bombing,
though one of its prosecutors was involved in assisting the RCMP Task Force
early on in the criminal investigation.678
By contrast, CSIS has continued to justify the erasure of the Parmar intercepts
on the basis that it was simply following policy. In 1988, R.H. Bennett, Director
General, Counter Terrorism at CSIS at the time, described the situation this way:
The requirements of the CSIS Act and CSIS’s tape erasure policy
were not necessarily fully compatible with the requirements of
a police agency to build a criminal case. However this reflects
a deliberate choice by Parliament to separate these two
functions.679
Bennett noted that, although with hindsight one might conclude that the
system is not perfect, it will not change these events as they happened. He
wrote: “Hindsight will also not alter the professional analysis and determination
required by the ministerial policy.”680
In effect, CSIS was defending its erasure of the Parmar Tapes as conforming to
policy, regardless of whether the policy was appropriate to the circumstances.
Over the years and continuing into testimony at this Inquiry, while various
CSIS personnel have expressed regret that the Parmar Tapes were erased, the
Government would not acknowledge that this was an error, since it was done
pursuant to a valid policy.681
677 Testimony of James Warren, vol. 48, September 19, 2007, pp. 5817, 5875.
678 See Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5662-5664; Exhibit P-101 CAD0005,
p. 6.
679 Exhibit P-101 CAD0124, p. 7..
680 Exhibit P-101 CAD0124, p. 7.
681 See, for example, Final Submissions of the Attorney General of Canada, Vol. I, para. 353.
�Chapter IV: CSIS/RCMP Information Sharing
At the Inquiry hearings, for the first time, a former CSIS employee admitted the
erasure was an error. Warren candidly testified that:
[The tape erasure was] not done in an attempt to obstruct
justice or maliciously or an attempt to deprive the defence of a
defence. It was done in error. 682 [Emphasis added]
The Commission found no evidence that CSIS erased the tapes for ulterior
motives. CSIS simply failed to appreciate its potential role in assisting in the
prosecution of terrorism offences. There was also no apparent understanding
that preserving the Parmar Tapes could have been an element of an ongoing
intelligence operation, given the threat to national security that Parmar posed.
The failure to have properly educated and trained transcribers and translators
made it impossible to ‘mine’ the intercepted communications for valuable
intelligence. The failure to retain the tapes in the aftermath of the terrorist
attacks is inexcusable, and represents a key failure of the intelligence agency,
regardless of the presumed value of those intercepts. To appreciate the
staggering incompetence displayed in handling the Parmar Tapes, one need
only recall that, in securing the warrant to intercept Parmar’s conversations,
CSIS told the Federal Court that Parmar was a terrorist who would likely commit
overt acts of terrorism. The affidavit was accurate in its prediction, yet once the
terrorists exploded the bombs at Narita and on Air India Flight 182, CSIS, for
some reason, failed to change its habitual operational methods and continued
erasing tapes as if nothing had happened. The Commission is satisfied that there
is no convincing explanation, let alone acceptable excuse, for CSIS to continue
to erase the Parmar Tapes in the aftermath of the bombings
.
4.3.2 Destruction of Operational Notes
Introduction
During the Air India investigation, CSIS at times received information that might
have been relevant to an eventual prosecution, or that could have significantly
assisted the RCMP’s criminal investigation. In those cases, CSIS would provide
to the RCMP access to CSIS official records, generally intelligence reports held
on NSR.683 However, the RCMP often insisted on accessing the “raw materials,”684
or the original notes and reports prepared when the information was received,
as they felt that these contained the most complete and accurate record. Such
notes were often not provided to the RCMP, at least not immediately, or in some
cases, not at all. During the early years of the Air India investigation, the official
682 Testimony of James Warren, vol. 48, September 19, 2007, p. 5895.
683 Testimony of Chris Scowen, vol. 50, September 21, 2007, p. 6146.
684 Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10322-10325. See also Testimony of
Henry Jensen, vol. 18, March 7, 2007, pp. 1651-1652; Testimony of Robert Simmonds, vol. 74, November
8, 2007, pp. 9338-9339. See, generally, Section 4.1 (Post-bombing), Information Sharing and
Cooperation in the Air India Investigation.
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policy in force at CSIS recommended that contemporaneous notes be taken,
and it provided for the preservation of notes in cases which might result in court
appearances by CSIS personnel. However, in practice, CSIS employees often
did not make contemporaneous notes and, when they did, those notes were
destroyed after reports were prepared.
Where original notes or reports were not provided to the RCMP, or no longer
existed, problems could arise because the information received by the RCMP
did not always contain all the details. In fact, the information could easily be
inaccurate in those cases where the original notes or reports were incorrectly
reproduced.685 Where CSIS investigators or surveillance personnel were the only
ones who might be able to provide evidence about important facts, they could be
required to testify. In such cases, their testimony would be less accurate and less
credible, as they did not have access to memory-refreshing contemporaneous
notes. In the case of the Ms. E information, which the Crown sought to introduce
in the Air India trial through the CSIS reports and the testimony of the CSIS
investigator involved, the unavailability of contemporaneous notes recording
CSIS’s interactions with Ms. E weakened the weight that the trial judge was able
to place on the CSIS reports as evidence of Ms. E’s out-of-court statements.686 The
destruction of notes also gives rise to disclosure issues in criminal prosecutions.
An instance of that occurred in the Air India trial when the trial judge found that
Bagri’s Charter rights had been violated because of the destruction of the notes
and recordings of CSIS interviews with Ms. E.687
Initial CSIS Note-Taking Policy
When the decision was made by the Government to create CSIS, it acted quickly.
The CSIS Act was passed and put into force almost immediately. There was no
time to devise an adequate set of operational policies for the new agency. As
a result, it was decided that the Security Service policies that governed dayto-day operations would be transferred to CSIS, and revised as necessary over
time.688
The Security Service policy entitled “Investigator’s Notebook and Notetaking”
provided that where there was “reason to believe” that an investigation would
“…result in court appearances being necessary,” investigators were to keep a
separate notebook and securely retain it.689 The policy also stated that it was
“sound practice” to keep notes in all cases, even if most of the Security Service
investigations would not result in legal proceedings.690 This policy was not
reassessed or strictly followed by CSIS. In September 1987, the CSIS Policy Task
Force reviewed the policy and concluded that it was “…in the RCMP format”
and would need to be rewritten “to CSIS standards,” with possible additions or
685 See, for example, Section 1.4 (Pre-bombing), Duncan Blast and the discussion about the phone
number dialed by Parmar.
686 See Section 1.3 (Post-bombing), Ms. E.
687 See Section 1.3 (Post-bombing), Ms. E.
688 Exhibit P-101 CAA0812. See Section 3.3.1 (Pre-bombing), The Infancy of CSIS.
689 Exhibit P-101 CAA0007, p. 2.
690 Exhibit P-101 CAA0007, p. 4.
�Chapter IV: CSIS/RCMP Information Sharing
deletions.691 It was not until 1992 that CSIS finally replaced the Security Service
policy with its own policy on Operational Notes.692
Note-Taking Practices
Despite the written policy in place, a completely different practice was used at
the Security Service and then at the newly-created CSIS. In most cases, notes
were not taken contemporaneously, but were written shortly after interviews
or meetings.693 Surveillance personnel only began to take notes, albeit in an
unstructured way, after the 1983 incident known as the “Squamish Five” case.694
Further, at least in the case of notes made after interviews or meetings, the
general practice adopted by the intelligence officers was to shred the notes
after they had written and submitted their intelligence reports.695
Deputy Commissioner Henry Jensen testified that it was his impression
that, prior to the creation of CSIS, RCMP Security Service members had been
following the regular police protocols in terms of note-taking when faced
with “…material that had criminal evidentiary value”696 in order to be able to
legitimately refresh their memories if called to testify.697 He thought that the
Security Service members kept two notebooks, in accordance with the policy.698
However, as former RCMP Commissioner Robert Simmonds explained in his
evidence, the Security Service operated, in many respects, separately from the
rest of the RCMP. It was no longer embedded in the regular command structure
of the Force and “…really all the Commissioner knew was what this new Director
General would choose to tell him.”699 While it is natural that Jensen would assume
that Security Service members followed the policies found in their operations
manual,700 he would not necessarily have had access to information about the
actual practices that had developed within the Service in the years preceding
the creation of CSIS.
In reality, employees of the Service were not made aware of the existence of
the “Investigator’s Notebook and Notetaking” policy, before or after the creation
of CSIS. CSIS BC Region investigator William Dean (“Willie”) Laurie explained
that, not only was he never informed about the policy, but that he had “…never
known a member of the Security Service or the CSIS that either was aware of
this or practiced this.”701 On the contrary, CSIS employees viewed the practice of
shredding the notes as the “policy”.702
691
692
693
694
695
696
697
698
699
700
701
702
Exhibit P-101 CAA0007, p. 1.
Exhibit P-101 CAA1057, p. 2.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3735.
Testimony of Lynne Jarrett, vol. 22, May 3, 2007, p. 2158.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3738. See also, Testimony of William Laurie, vol. 61,
October 15, 2007, pp. 7431-7432.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5355.
Testimony of Henry Jensen, vol. 18, March 7, 2007, p. 1637.
Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1637-1638; Exhibit P-111 or P-101 CAA0007.
Testimony of Robert Simmonds, vol. 74, November 8, 2007, pp. 9317-9318.
Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1640-1641.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7468-7469.
Testimony of Ray Kobzey, vol. 32, May 23, 2007, p. 3738.
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When Laurie interviewed Ms. E in 1987 and received information about a request
by Bagri to borrow her car to take luggage to the airport the night before the
Air India bombing, he was never instructed to preserve the notes he had made
immediately after the interviews. He did not preserve them, even though it was
clear to him that the information received related to a criminal investigation and
that he would most likely be called to testify about it.703 Laurie’s supervisors at the
BC Region were also aware of the possible implications of the Ms. E information,
yet took no steps to have the materials preserved,704 apparently also unaware
of the official Security Service policy that was supposed to be applied in such a
situation.
Laurie explained that it would have appeared contrary to the general philosophy
prevailing at CSIS to follow a new procedure or policy requiring the preservation
of notes in a manner similar to police procedures:
The Security Service, and later the CSIS, did not commonly
work in areas where criminal cases arose and they behaved
differently. Now after CSIS was created – it was created
because there was – and I’m paraphrasing but there was a
need to do things differently from the police, and that was
something that was constantly brought up. We are not them.
We don’t have peace officer status. We don’t do things that the
police do. We don’t have to do some of the things that they
have to do and we can do things that they can’t do.
So the notion – in retrospect that we have to adhere to this
policy that the police had for keeping notes is pretty far
removed, especially considering the amount of work that was
being done and … the atmosphere at the time.705 [Emphasis
added]
The inconsistency between the note-taking practices of CSIS employees and
the official policy was not addressed by CSIS until 1990, when the office of the
Deputy Director of Operations (DDO) noted that it was “not clear” to all CSIS
employees “…whether operational notes, personal notes” and other documents
constituted official CSIS records, and that “…some employees are therefore
uncertain as to the procedures regarding the maintenance and destruction of
such records.”706 The DDO requested that interim guidelines be drafted pending
the adoption of a new policy on operational notes.707 The DDO believed that
guidelines were necessary because of what he described as the “existing void”,
and he instructed that a draft be prepared after consultation with CSIS personnel
to establish current practices and possible legal issues.708
703
704
705
706
707
708
See Section 1.3 (Post-bombing), Ms. E.
See Section 1.3 (Post-bombing), Ms. E.
Testimony of William Laurie, vol. 61, October 15, 2007, p. 7537.
Exhibit P-101 CAA0801, p. 1.
Exhibit P-101 CAA0801, p. 1.
Exhibit P-101 CAA0801, pp. 5-6.
�Chapter IV: CSIS/RCMP Information Sharing
Evolution of Note-Taking Policies and Practices
In November 1990, draft interim guidelines were transmitted to the DGs and the
CSIS regions, along with a message indicating that the “Investigator’s Notebook
and Notetaking” policy inherited from the Security Service was now obsolete
and that existing copies needed to be destroyed.709 The interim guidelines
were to replace that policy, and they were specifically meant to apply to CSIS
investigators as well as to other employees.710
The draft guidelines provided that “…CSIS is not an evidentiary collecting
agency.”711 As a result, the employees were not required to keep notes that
“withstand evidentiary rules,” and operational notes were to be destroyed
after reports were written. An exception was provided for cases in which, “…in
exceptional circumstances, some of the information collected may be required
for evidentiary purposes and when such information has not already been
included in a report.”712 Where a CSIS regional DG was of the view that notes
had to be retained in this context, the DG was to direct that only those notes
relevant to the “specific incident” be retained and that the notes be kept in the
operational file and classified according to government policy.713
The draft interim guidelines were based on instructions from the DDO, who had
suggested that notes did not need to be kept and “should/could” be destroyed
once reports were prepared.714 However, as was the case under the previous
Security Service policy, the DDO had specified:
When an investigation has been identified as one leading to
possible prosecution, PSU/investigators should be required to
maintain a separate notebook.715
The draft guidelines that were actually prepared took a more restrictive view
of the nature of the material that had to be retained than did the instructions
from the DDO. Notes containing information otherwise included in reports did
not have to be retained under any circumstances. Even when the information
was not included in a report, only the notes containing the information that
could be required for evidentiary purposes had to be retained, as opposed to
the retention of a separate notebook for entire investigations that could lead to
possible prosecution, as had been suggested by the DDO.
The policy on operational notes adopted by CSIS in 1992, which was in force,
in a slightly modified form, as of the completion of the Inquiry hearings, again
709
710
711
712
713
714
715
Exhibit P-101 CAA0801, p. 1.
Exhibit P-101 CAA0801, p. 1.
Exhibit P-101 CAA0801, p. 2.
Exhibit P-101 CAA0801, p. 2 [Emphasis added].
Exhibit P-101 CAA0801, p. 2.
Exhibit P-101 CAA0801, p. 5.
Exhibit P-101 CAA0801, p. 5.
471
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Volume Two: Part 2: Post-Bombing Investigation and Response
changed the criteria for the retention of notes.716 The notes now had to be
destroyed, except where the information they contained “may be crucial” to
the investigation of unlawful acts of a “serious nature” (defined as criminal
acts posing a threat to life or property and constituting indictable or possibly
indictable offences717), and where CSIS employees “may require” to refer to the
notes to refresh their memories prior to recounting the facts.718 The policy stated
that CSIS “…does not normally collect evidence for criminal investigations,” but
recognized that information relating to unlawful activity of a “serious nature”
could be obtained by CSIS employees and, in “exceptional circumstances”
where the “…police of jurisdiction is unable to obtain their own independent
evidence,” the CSIS information could be “…crucial to the successful prosecution
of a serious criminal case,” and employees could be required to provide evidence
about such matters, supported by their notes.719
Where CSIS employees uncovered information “…of possible evidentiary value,”
they were to advise their supervisor.720 The ultimate decision about whether
police would be advised and whether notes would be retained was left to the
regional Director General.721 Where a decision was made to retain notes, they
were to be placed in a sealed envelope on file, and efforts were to be made, in
cooperation with the police or Crown, to protect non-related information found
in the notes.722
The new policy provided that, in order to prepare “accurate and complete
reports” about the information CSIS investigators were expected to gather,
it might be necessary to “…temporarily record information as it is received,”
including while conducting interviews or debriefing human sources.723 The
policy expressly recognized that audio or video recordings made by a CSIS
employee for the purpose of being used in the preparation of CSIS reports
constituted “operational notes” subject to the retention policy.724 Notably, had
the policy been in force – and applied – when Laurie interviewed Ms. E, the tapes
and transcripts of those interviews would have been required to be retained.725
In June 2008, the Supreme Court of Canada ruled that the CSIS policy on
operational notes was contrary to the CSIS Act as well as to the “…case law on the
disclosure and retention of evidence.”726 The Court found that CSIS has a duty
to retain operational notes and to disclose them (subject to national security
confidentiality claims), even in cases not involving information relevant to the
716 See Exhibit P-101 CAA0889 for the 1992 policy. It was slightly modified in 1994 (see Exhibit P-101
CAA0917), in 2002 (see Exhibit P-101 CAA0994) and in 2006, when the current version was produced
(see Exhibit P-101 CAA1061), but the substance remained unchanged. See, generally, chart of
Operational Notes policy evolution: Exhibit P-101 CAA1057, p. 2.
717 Exhibit P-101 CAA0889, p. 14.
718 Exhibit P-101 CAA0889, p. 12.
719 Exhibit P-101 CAA0889, pp. 8, 14.
720 Exhibit P-101 CAA0889, p. 14.
721 Exhibit P-101 CAA0889, p. 14.
722 Exhibit P-101 CAA0889, pp. 14, 16.
723 Exhibit P-101 CAA0889, p. 10.
724 Exhibit P-101 CAA0889, p. 4.
725 See Section 1.3 (Post-bombing), Ms. E.
726 Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 at para. 64.
�Chapter IV: CSIS/RCMP Information Sharing
investigation of criminal offences. LeBel and Fish JJ. noted that section 12 of
the CSIS Act does not require CSIS to destroy the information it collects in order
to ensure that it is retained only “…to the extent that it is strictly necessary.”727
The Court ruled that the section requires that CSIS collect information to the
extent strictly necessary and then analyze and retain it. As a result, the Court
found that CSIS officers have a legal duty to retain their operational notes when
conducting investigations that are targeted at a particular individual or group.728
The Supreme Court of Canada noted that this duty would have a practical benefit
in proceedings involving CSIS information since the original notes – being a “…
better source of information, and of evidence” than CSIS summaries or reports
– would allow officials to verify the summaries, and would allow CSIS witnesses
to refresh their memories should they have to testify.729
The case that was heard by the Supreme Court of Canada related to security
certificate proceedings that were not criminal in nature. In such cases, the CSIS
policy in place did not provide for retention of notes under any circumstances.
In contrast, a large portion of the information that CSIS passed on to the RCMP
in relation to the Air India investigation would have qualified for retention under
the Service’s various policies, other than in the period between 1990 and 1992,
under the interim guidelines, as this information related to the investigation
and prosecution of a “serious” criminal offence. The issue of the destruction of
materials, raised in court with regard to the Ms. E notes, resulted from the fact
that existing policies were not applied within the Service.
However, even in cases involving criminal information, the fact that all the CSIS
policies always provided for the destruction of notes as a default position is in
itself problematic. Even if the post-1992 policy had been applied, it would still
have been possible for original records relevant to the Air India investigation and
to an eventual prosecution to have been destroyed, if the information had not
been viewed as “crucial” to the investigation or to a successful prosecution, or if
its importance to a criminal matter were only to have come to light subsequently,
after the default routine erasure of the notes had already taken place.
When CSIS agent Nicholas Rowe met with Ms. D in 1997 over a period of two
weeks, before CSIS “…determined that she should be handed over to the RCMP,”
he prepared detailed notes during the meetings, including verbatim quotes and
summaries. These notes were not preserved by CSIS.730 In the Air India trial, Ms.
D was one of the main witnesses in the case against Ripudaman Singh Malik.731
Yet, as Justice Josephson indicated, the notes for her meetings with CSIS were
“…destroyed as a matter of policy” after the CSIS reports were prepared.732
Whether this was because in 1997 CSIS employees continued to not follow or be
aware of the note retention policy, or whether it was because it was not realized
727
728
729
730
731
732
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 at paras. 36-38.
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 at para. 43.
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 at para. 39.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 378-386.
See Section 1.5 (Post-bombing), Ms. D.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 386.
473
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in time that Ms. D’s information could be crucial to the investigation of “serious”
unlawful activity (although she had been quickly handed over to the Air India
Task Force733), it appears that CSIS’s own written policy on operational notes was
not sufficient to prevent the ongoing destruction of the materials.
Rowe was called to testify in the Air India trial and he did not have notes to
refresh his memory of events which had occurred over a period of two weeks,
more than five years earlier. He could only rely on his intelligence reports, which
were admittedly not prepared for use in court and not exhaustive.734 Malik did
not follow Bagri’s example and argue that the destruction of the notes violated
his Charter rights. However, based on the reasons provided by Justice Josephson
when he allowed Bagri’s application,735 there is little doubt that an application
similar to Bagri’s could have led to a similar judgment that Malik’s rights were
violated, posing an additional challenge for the prosecution.
Conclusion
CSIS had a policy in place that could have prevented the destruction of original
notes containing information relevant to the Air India investigation and eventual
prosecution. This policy, while it had been inherited from the RCMP Security
Service and (in the haste to create the new agency) may not have been adapted
to its needs in all respects, was consistent with the policy that CSIS itself would
ultimately adopt eight years later. The policy provided that notes had to be
preserved in cases that might result in prosecutions where CSIS evidence would
be necessary.
Because of a failure to enforce policy dating back to the Security Service days,
CSIS was unable to apply its own policy – or even to inform its own employees
of its existence. It took six years for CSIS to revise its inherited policy and to
address the issue, ultimately devising a policy consistent with the old policy
that the Service had failed to follow. When Laurie interviewed Ms. E between
1987 and 1989, had an updated and well-distributed policy been available
within CSIS, it could have made a difference in the Air India case.
This failure on the part of the intelligence agency to follow its own policies is
reminiscent of some aspects of the infamous tape erasure incident, where some
of the Parmar intercept tapes might have been retained had the applicable policy
actually been applied.736 By 1987, the RCMP and the BC Crown prosecutor were
already signalling in clear terms to CSIS that the tape erasure was a problem, and
were asking pointed questions about applicable policies.737 It is unfortunate
that CSIS did not take this opportunity to ensure that its other policies, which
could have an impact on the criminal investigation, were updated and applied.
It is even more unfortunate that, even after these policies were revised, sufficient
steps were still not taken to enforce them, with the result that, in 1997, CSIS was
733
734
735
736
737
R. v. Malik and Bagri, 2005 BCSC 350 at para. 383.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 386, 390, 397.
R. v. Malik and Bagri, 2004 BCSC 554. See generally, Section 1.3 (Post-bombing), Ms. E.
See Section 4.3.1 (Post-bombing), Tape Erasure.
See Section 4.3.1 (Post-bombing), Tape Erasure and Section 4.4 (Post-bombing), CSIS Information in the
Courtroom.
�Chapter IV: CSIS/RCMP Information Sharing
still destroying its notes for interviews with an individual whose importance to
the Air India criminal investigation was quickly understood and who eventually
became one of the main witnesses in the Crown’s case against Malik in the Air
India case.
The Supreme Court of Canada has recently recognized that, particularly in
relation to the investigation of terrorism, CSIS activities often converge with
those of the RCMP, and the division of work between the agencies is not always
clear.738 As a result, the Court noted:
In this light, we would qualify the finding of the Federal Court
that CSIS cannot be subject to the same duties as a police force
on the basis that their roles in respect of public safety are,
in theory, diametrically opposed. The reality is different and
some qualification is necessary.739
Indeed, throughout the Air India investigation, many individuals who were to
become RCMP sources or witnesses spoke with CSIS, often before speaking
to police.740 The evidence at the Inquiry demonstrated that CSIS destroyed
all notes and recordings for interviews with Ms. E, Ms. D and Mr. A. Given the
generalized practice of destruction adopted at CSIS, it is fair to assume that CSIS
also destroyed any notes or recordings for interviews with Tara Singh Hayer and
Mr. Z. All of these individuals eventually spoke with the RCMP, but the RCMP
had no access to accurate and complete records of their interactions with CSIS.
They all provided information relevant to the Air India investigation and were all
potential witnesses in an eventual prosecution.
Under the circumstances, it was a serious deficiency for CSIS to continue to
destroy its notes and recordings, either ignoring its own policies or not taking
care to ensure that its policies would not hinder criminal investigations and
prosecutions for terrorism offences. The Supreme Court of Canada has now
made clear that CSIS has a duty to retain notes and recordings prepared in
investigations targeted at specific individuals or groups, and that CSIS’s belief
that destroying such materials was necessary under the CSIS Act was simply
inaccurate. CSIS must now enact and enforce the appropriate policies in order
to prevent a recurrence of what happened in the Air India investigation. Volume
Three of this Report addresses the nature of the policies that are needed.
4.4 CSIS Information in the Courtroom
4.4.1 The Reyat Trial and the BC Crown Prosecutor Perspective
Introduction
James Jardine (now His Honour Judge James Jardine of the Provincial Court
of British Columbia) became Crown counsel at the Ministry of the Attorney
738 Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 at para. 26.
739 Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 at para. 28.
740 See Chapter I (Post-bombing), Human Sources: Approach to Sources and Witness Protection.
475
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Volume Two: Part 2: Post-Bombing Investigation and Response
General for British Columbia (AG BC) in 1974. Between July 1, 1985 and
October 1, 1991, he was involved in the Air India investigation and the Narita
investigation and prosecution.741 He assisted the RCMP Air Disaster Task Force
in seeking authorizations for wiretaps and in obtaining search warrants in the
early days after the bombing, and he was involved in the prosecution of Parmar
and Reyat in connection with the Duncan Blast charges and, subsequently, in
the prosecution of Reyat in connection with the Narita bombing.
During the years he worked on the Air India case, Jardine often had to work
with CSIS information and provide advice to the RCMP about the materials
that had to be obtained from the intelligence agency. In preparation for the
Narita prosecution, he transmitted numerous requests to the RCMP for access
to CSIS information and for explanations about CSIS policies and procedures.
He eventually attended high-level meetings involving representatives of CSIS,
the RCMP, the Department of Justice (DOJ) and the Solicitor General, in order to
resolve differences of opinion about the level of access to CSIS information that
was necessary for the Crown and the extent of disclosure of such information
that had to be made to the defence. In his testimony, Jardine summarized these
interactions with CSIS succinctly:
MR. FREIMAN: Mr. Jardine, you … dealt throughout this
period of time with the Canadian Security Intelligence Service,
CSIS. Would you describe your relationship with CSIS as open
and cooperative?
MR. JARDINE: No.
MR. FREIMAN: And would you describe their attitude towards
you as being forthright?
MR. JARDINE: No.742
Initial Stages of the Investigation
Jardine was advised early on by the members of the RCMP Air Disaster Task
Force in British Columbia that CSIS might have information relevant to the
investigation.743 According to his notes, on July 1, 1985 he met with Insp. John
Hoadley and others from the Task Force and specifically requested that the
RCMP obtain any information that CSIS had.744 He explained in testimony that,
given that CSIS had been conducting surveillance on Parmar and, as a result, had
observed the Duncan Blast, he advised the Task Force that there might be CSIS
intercepts in existence, pointing out that “…if there are watchers there will likely
be wire.” He testified that he asked accordingly that any evidence or information,
including intercept tapes, be retained for use in an eventual prosecution.745
741
742
743
744
745
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5657-5658.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5657.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5662-5663.
Exhibit P-101 CAA0578, p. 2.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5653; See Section 4.3.1(Post-bombing),
Tape Erasure.
�Chapter IV: CSIS/RCMP Information Sharing
From the very beginning of the investigation, Jardine felt that accessing CSIS
materials was crucial. During a September 1985 meeting with CSIS, the RCMP
conveyed Jardine’s position as follows:
[Crown Counsel Jim Jardine] is fearful that unless he has access
to and can evaluate all relevant information in possession of
Crown Agencies (ie: CSIS), he runs the eventual risk of having
any warrant he might obtain being challenged and possibly
invalidated on grounds of inadequate disclosure – with the
Crown’s case thereby being imperilled.746
Jardine was under the impression that an agreement was in place between
CSIS and the BC Government for CSIS to release information for evidentiary
purposes in a case like Air India. During their meeting, CSIS and the RCMP both
said that they were not aware of such an agreement. The CSIS BC Region sought
direction from CSIS HQ about Jardine’s “…access to and use of CSIS evidence
for evidentiary purposes.”747 CSIS HQ responded that CSIS legal representatives
would discuss the issue of full disclosure with Jardine.748
At that time, Jardine was assisting the RCMP Task Force in preparing an
application to intercept private communications which he then presented to a
judicial officer.749 He was told by the investigators that they had not been given
access to the CSIS materials, in particular to intercept tapes or transcripts.750 In
the end, the CSIS information that could finally be accessed was set out in the
affidavit in support of the authorization (the “September 19th affidavit”). The
affidavit summarized 21 of Parmar’s conversations during the months of May
and June 1985 which were believed to constitute grounds for suspecting the
involvement of Parmar, Reyat, Surjan Singh Gill, Amarjit Pawa and Hardial Singh
Johal, the intended targets of the RCMP intercept, in the Air India and Narita
bombings. It also mentioned a number of the targets of the CSIS investigation
and specifically discussed the processing of the Parmar intercept, detailing the
requests for access made by the RCMP, the status of the CSIS translation efforts
and the nature of the materials provided to the RCMP in the end.751
Jardine testified that he had been making “…repeated requests for access to
the Canadian Security Intelligence Service information” since July 1985. He
commented that, as of the end of November 1985, no progress had been made
in terms of accessing the materials, except for the information made available
to the Task Force about the Parmar intercepts which was used in the September
19th affidavit, information that was third or fourth-hand hearsay, as it was based
on RCMP notes made while reviewing CSIS intercept logs summarizing the gist
of intercepted conversations.752
746 Exhibit P-101 CAB0553, p. 2; Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5677-5678.
747 Exhibit P-101 CAB0553, pp. 2-3.
748 Exhibit P-101 CAB0554.
749 Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5667-5677; See Section 4.1 (Postbombing), Information Sharing and Cooperation in the Air India Investigation.
750 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5675.
751 Exhibit P-101 CAA0324(i); See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the
Air India Investigation.
752 Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5687-5688; Exhibit P-101 CAA0324(i).
477
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Volume Two: Part 2: Post-Bombing Investigation and Response
In early November 1985, the RCMP executed search warrants on the residences
of Parmar and Reyat and arrested both suspects.753 In order to accommodate
CSIS concerns, prior to submitting the Information to Obtain sworn in support
of the application for the search warrants, RCMP HQ had communicated
with E Division suggesting the language to be used to avoid revealing CSIS
involvement.754 As a result, unlike the September 19th affidavit, the Information
to Obtain did not name CSIS as a source of information and did not reveal the
nature of the materials the RCMP had access to in connection with the Parmar
intercepts.755 Instead, when referring to CSIS information about the Duncan Blast
and about Parmar’s conversations, it identified the source of the information as
“…a source of known reliability, whose identity for security reasons I do not wish
to reveal at this time.”756
The AG BC had not been consulted about the wording of the Information to
Obtain,757 and Jardine was not even aware of the RCMP decision to arrest Reyat
and Parmar and search their homes. In reviewing the materials in the possession
of the RCMP after the searches, he agreed with his colleagues at the AG BC’s
office that there was not a body of evidence capable of supporting a charge
of conspiracy against Parmar and Reyat in the Air India or Narita bombing
cases, a charge that some RCMP officers wanted the Crown to approve.758 As a
result, Reyat and Parmar were at that time only charged in connection with the
Duncan Blast.759 Jardine explained that the AG BC had to be careful in approving
discrete charges to ensure that no double jeopardy issues would later preclude
the Crown from prosecuting Reyat and Parmar in connection with the actual Air
India bombing if sufficient evidence was eventually obtained.760
Duncan Blast Prosecution
Though he was not involved in the November 1985 RCMP decision to arrest
Parmar and Reyat, Jardine soon became responsible for the Duncan Blast
prosecution.761 To prepare for that case, the RCMP requested authorization to
disclose CSIS information to Jardine.762 CSIS’s initial response was that information
that the Service had already authorized for use in judicial proceedings (for the
purposes of search warrant applications or wiretap authorizations), including
the surveillance reports for the Duncan Blast, could be disclosed to Jardine, but
that any requests for additional information would be considered by CSIS HQ on
a case-by-case basis.763 Jardine explained that this type of disclosure was clearly
insufficient for the purposes of the prosecution, as he needed access to CSIS
753
754
755
756
757
758
759
760
761
762
763
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5683.
Exhibit P-101 CAA0836, p. 23.
Exhibit P-201, paras. 46, 48-49, 53.
Exhibit P-201, paras. 23, 46, 48, 53; Exhibit P-101 CAA0575(i), p. 6; See, generally, Section 4.1 (Postbombing), Information Sharing and Cooperation in the Air India investigation.
Exhibit P-101 CAA0836, p. 22.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5683, 5685, 5689.
See Section 1.4 (Pre-bombing), Duncan Blast.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5689.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5686.
Exhibit P-101 CAA0384, CAA0385.
Exhibit P-101 CAA0388, CAA0393, CAB0575.
�Chapter IV: CSIS/RCMP Information Sharing
personnel who could appear as witnesses, and not just access to CSIS reports.764
Jardine advised the RCMP that the testimony of members of the CSIS surveillance
team would be necessary in the Duncan Blast case.765 He was already aware
that there might be controversy about this because of his previous experience
with the “Squamish Five” case. In that case, which took place in 1983 prior to
the creation of CSIS, an issue had arisen when the prosecution requested the
attendance of a Security Service surveillance team.766
In December 1985, the RCMP requested access to the members of the Duncan
Blast surveillance team for interviews to determine which of the CSIS surveillants
would be required to testify.767 CSIS authorized the interviews, but specified that
the issue of the potential testimony of its personnel had yet to be addressed.768
Jardine commented in his testimony at this Inquiry that the interviews were a
first step, but would not be sufficient for court purposes.769
In late February and early March 1986, members of the RCMP Task Force met with
representatives of the CSIS BC Region and wrote to CSIS to request authorization
for some members of the surveillance team to testify.770 Discussions were then
held about CSIS’s concern that its methodology, training, policy and practices
be protected when the surveillants testified. Jardine’s view was that he would
object to questions only where they were not relevant to the proceedings. A
meeting was scheduled with Department of Justice counsel representing CSIS
to discuss the Service’s concerns.771
Jardine explained that, at this time, it was still uncertain whether the CSIS
witnesses would be permitted to testify, and under what conditions. There were
issues about whether they could be identified publicly, whether some form of
in camera hearing would be sought or whether screens would be used to hide
their appearance.772 It was also anticipated that objections to the disclosure
of information relating to CSIS’s investigative techniques would be made
by counsel for the Attorney General of Canada on behalf of the agency.773 In
the end, agreement was reached with CSIS about which witnesses would be
allowed to testify and what they would be allowed to say.774 But the case did not
proceed, as Reyat pleaded guilty to two of the four counts and the Crown called
no evidence against Parmar.775
764
765
766
767
768
769
770
771
772
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5692.
Exhibit P-101 CAF0187; Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5689-5690.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5690.
Exhibit P-101 CAA0391.
Exhibit P-101 CAA0392.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5693.
Exhibit P-101 CAA0417, CAF0213.
Exhibit P-101 CAF0213; Testimony of James Jardine, vol. 47, September 18, 2007, p. 5698.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5699; See also Exhibit P-101 CAA0425(i),
CAF0215.
773 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5698; See also Exhibit P-101 CAA0425(i),
CAB0669(i), CAF0215.
774 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5700.
775 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5686; Exhibit P-101 CAA0421, CAA0422,
CAF0168, p. 7; See, generally, Section 1.4 (Pre-bombing), Duncan Blast.
479
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Volume Two: Part 2: Post-Bombing Investigation and Response
Preparation for the Narita Prosecution
Jardine’s Questions about the Parmar Tapes
In March 1986, before the Duncan Blast case was resolved, Jardine wrote to the
RCMP Task Force about his view that the weaknesses in the evidence against
Parmar in the Duncan Blast case might be cured by “…ascertaining with certainty
all of the evidence currently in the hands of the Canadian Security Intelligence
Service, which has not been disclosed to the Royal Canadian Mounted Police or
to me as Crown Counsel during the course of this investigation from June 22, and
23, 1985 onward.” Jardine felt that the evidence about the Parmar conversations
intercepted by CSIS would assist in the Duncan Blast prosecution and, most
importantly, could disclose the intentions and knowledge of those associated
with Parmar around the time of the Air India and Narita bombings.776
Given the destruction of the Parmar Tapes,777 Jardine had serious doubts about
whether this evidence could be admissible, but he nevertheless attempted to
find out more about the tapes in order to provide a more informed opinion.778
In addition to pointing out that neither he nor the RCMP had received written
confirmation from CSIS that the Parmar Tapes had indeed been erased, Jardine
asked five questions about the CSIS intercepts that would become the object of
protracted discussions for the following months and years:
(i) By what methodology were the private communications
intercepted?
(ii) How were the private communications transcribed?
(iii) What was the exact methodology used to translate the
private communications?
(iv) In what way were notations made of the translations, and
how much of the translation was verbatim and how much a
summary or précis of the conversation?
(v) What were the dates of interception, of transcription, of
translation, and destruction of the evidence?779
Jardine testified at the Inquiry that he did not receive a response to his questions
in time to make a more informed decision about the strength of the evidence
against Parmar in the Duncan Blast case. Nevertheless, he explained that
obtaining an answer was still important after the Duncan Blast prosecution
ended because the investigation of the Air India and Narita bombings was
continuing.780
776
777
778
779
780
Exhibit P-101 CAF0168, pp. 4-5.
See Section 4.3.1 (Post-bombing), Tape Erasure.
Exhibit P-101 CAF0168, pp. 5-6.
Exhibit P-101 CAF0168, p. 6.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5707-5708.
�Chapter IV: CSIS/RCMP Information Sharing
In the spring of 1986, Jardine was assigned on a full-time basis as standing
counsel to the RCMP Air Disaster Task Force. At that time, a decision was made
by Canadian authorities to engage in diplomatic discussions with Japan to
obtain the release of the physical evidence found at the scene of the Narita
bombing so that prosecution could be pursued in Canada.781 In addition to
providing advice to the RCMP investigators as required, Jardine began to
examine the file to determine what charges could be brought in connection
with the Narita bombing, now that it was known that physical evidence would
likely be obtained. He subsequently determined that Reyat could be charged
with manslaughter, and an indictment was signed in 1988.
In the context of his review of the Narita evidence, Jardine felt that it was
important to obtain a response to his questions about the Parmar Tapes
because, whether the conversations would have served to prove the intent of
Parmar and Reyat or to exonerate them, “…their existence would have enabled
the investigators and the prosecutors to assess the evidence in light of all of the
other evidence acquired in the investigation.”782
Jardine explained in testimony before the Inquiry that, throughout the
preparation of the Narita bombing case, “…there was a sense of frustration
both in the investigators and in the prosecution side of the house” as they
were getting information from CSIS “…in dribs and drabs, piecemeal” and they
wanted to advance the investigation. He added that CSIS continued to provide
information “…in bits and pieces” between 1986 and 1991, with new information
being received by the Crown even as the trial was taking place.783
The then Deputy Director of the CSIS Counter Terrorism Branch, James (“Jim”)
Warren, who was involved in attempting to formulate responses to Jardine’s
requests, testified that dealings with Jardine in relation to the Air India
investigation quickly became the “number one priority” at CSIS when Jardine
began sending questions in 1986. This remained the case as Warren, who had
joined the RCMP Security Service in 1960, rose through the ranks of CSIS to
become in 1987 the Assistant Director of Requirements, overseeing the dayto-day operations of the Service, and then, in 1990, the Deputy Director of
Operations, with overall responsibility for CSIS operations and policy.784
Over this period, Warren was extensively involved with the conundrum of
CSIS evidence in the courtroom. He testified that the McDonald Commission
recommendations, spurred by “…when a little barn got burned,” influenced his
approach to CSIS operations. He remained constantly aware that a balance had
to be found between the need to further the Service’s investigations and the
need to protect the rights and freedoms of Canadians.785 Warren testified about
where he felt this balance lay in the case of the Air India investigation:
781
782
783
784
785
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5686.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5709.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5695, 5742, 5805.
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5812, 5815.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5814.
481
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I think we had come to realize from day one that at the end of
the day when push came to shove, we would have to lay out –
whatever it took to achieve a successful prosecution.
What we were trying to do in – perhaps our own fumbling way,
was to find some way of protecting the covert assets that we
had so that we could continue to go on and do our job after
this prosecution was over.786
Jardine’s March 1986 questions about the Parmar Tapes were transmitted to CSIS
on May 6, 1986.787 Supt. Les Holmes, the Officer in Charge of the E Division Task
Force, provided explanations to CSIS when he passed on the request, stating
that Jardine wished to obtain the information even though he was aware that
the tapes probably had little evidentiary value, in order to “…be in the position
to state for the record that he had evaluated the Parmar intercepts and duly
considered their worth when making his decision as to whether or not to
proceed with prosecution” in his evaluation of the overall case against Reyat.788
Warren testified that, on the basis of this explanation, it appeared at the time
that there was agreement between the RCMP and CSIS that CSIS intelligence
would have little, if any, evidentiary value. Warren admitted that he was unsure
to what extent Jardine shared this consensus, but felt that “…everyone [was]
onside and recogniz[ing] what [was] happening.”789
In response to Jardine’s five questions, the CSIS BC Region did provide some
information to CSIS HQ.790 However, the Region’s responses were not transmitted
to the RCMP or to Jardine.791 On May 16, 1986, the Officer in Charge of the
Air India investigation at RCMP HQ, C/Supt. Norman Belanger, met with Chris
Scowen of CSIS HQ and discussed Jardine’s questions. Scowen stated that he did
not understand the purpose of the request, and Belanger agreed that it might
seem obscure to someone not familiar with the issues. He provided Scowen
with some background information and advised the E Division Task Force to put
the enquiry on hold at the BC Region level.792 On May 22, 1986, CSIS made a
note in its file that Belanger had indicated that Jardine’s request for information
about the intercepts could be “put on hold” until further notice.793
On July 29, 1986, the RCMP E Division Task Force wrote to RCMP HQ, indicating
that no response had been received to the Jardine questions and requesting that
HQ undertake to obtain a response from CSIS HQ. On August 6, 1986, RCMP HQ
transmitted to the E Division Task Force a draft letter for CSIS, which requested a
response to the Jardine questions and attached a list of conversations from the
CSIS intercepts that the RCMP considered relevant. HQ asked the Division to
786
787
788
789
790
791
792
793
Testimony of James Warren, vol. 48, September 19, 2007, p. 5838.
Exhibit P-101 CAD0070.
Exhibit P-101 CAB0613, p. 2.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5959.
Exhibit P-101 CAB0613, pp. 3-4.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5710-5711.
Exhibit P-101 CAF0188, pp. 2-3.
Exhibit P-101 CAA0559, p. 1, CAF0188, p. 3, CAF0278, p. 1.
�Chapter IV: CSIS/RCMP Information Sharing
provide comments about the draft and to add relevant conversations to the list.794
However, the issue was apparently not pursued with CSIS during the following
months, though numerous discussions took place about access to CSIS materials
and the use of CSIS intercepts in other Sikh extremism prosecutions.795
In September 1986, the RCMP requested intercept tapes from CSIS in connection
with the prosecution of Parmar and others for the Hamilton Plot.796 CSIS replied
that no tapes were available, and that the only way to obtain the evidence
would have been to have CSIS translators testify, which CSIS was not prepared
to allow.797
Apparently, no discussions about Jardine’s request took place between the
agencies during the following year. Then, on September 16, 1987, shortly after
the Director of CSIS resigned when the Atwal prosecution collapsed because
of inaccurate information in a CSIS warrant application,798 RCMP HQ wrote to
E Division to advise that the Solicitor General had requested a full briefing on
the information provided by CSIS in relation to the Air India investigation. HQ
asked a number of questions, including whether the Division could identify
information received from CSIS “…which could hinder any future prosecution.”799
In response, E Division explained the use that was made of CSIS information in
its investigation, and noted that no written confirmation had yet been received
from CSIS about the erasure of the Parmar Tapes, but went on to note that
Jardine was of the view that, if evidence had been destroyed in this manner,
there was a real possibility that the accused in an eventual prosecution would
present abuse of process arguments. The Division reminded HQ of its July 1986
request to obtain answers to Jardine’s questions about the CSIS intercepts,
noting that no response had been received as the request had been “blended”
with requests from other Divisions for CSIS material in connection with other
Sikh extremism investigations.800
On September 21, 1987, RCMP HQ wrote to CSIS HQ, indicating that no
response had been received by the Force to the May 6, 1986 correspondence
listing Jardine’s questions about the Parmar intercepts.801 In a letter written by
Warren on September 24th, CSIS responded that the Service had been told by
Belanger to wait until further notice before providing answers and had never
received any additional request. The letter went on to note that the issues raised
by Jardine’s questions had already been discussed at length with the RCMP in
the context of other Sikh extremism prosecutions where the Crown sought to
use CSIS intercepts (including the Atwal and the Hamilton Plot cases). Warren
794 Exhibit P-101 CAA0471, pp. 1-3.
795 Exhibit P-101 CAF0188, pp. 3-5.
796 See, generally, Exhibit P-102: Dossier 2, “Terrorism, Intelligence and Law Enforcement – Canada’s
Response to Sikh Terrorism,” p. 46.
797 Exhibit P-101 CAA0496, CAF0188, pp. 6-7, CAF0261.
798 See Section 1.6 (Post-bombing), Atwal Warrant Source.
799 Exhibit P-101 CAF0262.
800 Exhibit P-101 CAA0554, pp. 1-3.
801 Exhibit P-101 CAA0558.
483
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stated that the Service did not understand which conversations were at issue,
especially since it was of the view that the Parmar intercepts were unlikely to
have any relevance, since only Reyat, not Parmar, was under prosecution.802 At
the Inquiry hearings, Warren noted that he could not recall what led him to this
“…very curious paragraph,”803 as he was aware that Parmar and Reyat were often
intercepted in conversation. In the September 1987 letter, Warren indicated that
the Service was aware that some information from the Parmar intercepts had
been used in the application for the November 1985 search warrant for Reyat’s
residence, but that he failed to understand how the defence could have found
out that this information came from CSIS, since that fact was not stated in the
application, and there was, according to him, only a limited risk that the law
would allow access to this information.804
From a file review of the CSIS/RCMP correspondence and meetings between
May 1986 and September 1987, the RCMP C Directorate concluded that the
Force had not failed to pursue its request for responses to Jardine’s questions
after it was put on hold following the CSIS conversation with Belanger. On the
contrary, numerous discussions about access to CSIS intercepts and transcripts
were held in the context of the Sidhu shooting (Atwal) and the Hamilton Plot
prosecutions, and it was clear to the RCMP that CSIS was refusing to provide
information of the nature requested by Jardine. C Directorate further noted
that one of the problems in obtaining a response from CSIS was the Service’s
apparent perception that the Parmar Tapes and information about them could
not be relevant.805
Warren, in his testimony, confirmed this perception. He testified that he felt
that the evidentiary value of the Parmar Tapes was always suspect, and that
preservation would have been useful only for their potential intelligence value in
the future.806 Warren noted that CSIS early on was concerned about the issue of
disclosure. Upon receipt of Jardine’s initial May 1986 request, CSIS legal counsel
had warned that disclosing CSIS information to the police – if the information
was ultimately considered admissible in court – could lead to the exposure in
open court proceedings of CSIS personnel who had handled the information.807
CSIS understood that this sensitive information would go over to the defence,
a result that Warren called “…handing the keys to the church … to the devil.”
Warren testified that, throughout this period, CSIS was trying to find some way
to avoid or limit this exposure, but ultimately that it cooperated with the RCMP
in light of its understanding that a successful prosecution of those responsible
for the Air India tragedy was in the interests of the greater public good.808
Warren explained that he ordered a review of the CSIS files in order to provide
answers to Jardine’s questions. Following this review, Warren concluded that,
802
803
804
805
806
807
808
Exhibit P-101 CAA0559, pp. 1-2.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5842.
Exhibit P-101 CAA0559, p. 2.
Exhibit P-101 CAF0188, pp. 8-10.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5817.
Exhibit P-101 CAF0278, p. 1.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5839.
�Chapter IV: CSIS/RCMP Information Sharing
despite Jardine’s allegations that he had asked for retention of the Parmar Tapes,
no such requests were received by CSIS from the RCMP or Jardine. Warren also
found that there had been no deliberate destruction of the Parmar Tapes and
that there was nothing nefarious in the decision to erase the tapes. Rather he
concluded that the tapes were simply destroyed by people following CSIS policy
in default mode.809
Following further discussions between CSIS and the RCMP, CSIS HQ provided a
first response to Jardine’s March 1986 questions on September 28, 1987.810 The
letter provided information about CSIS’s methodology for recording, transcribing,
translating and erasing the Parmar Tapes, as well as some information about
the general time frame in which this took place. However, with respect to the
questions about the exact number of verbatim transcriptions and the dates
of interception, transcription, translation and destruction, CSIS advised that
it would not be able to provide a response until it obtained a more accurate
description of the tapes at issue, which CSIS described as the “…interceptions
the Crown intends to rely upon.”811 Warren testified that the methodology
outlined in the letter described the general CSIS policy on tape processing rather
than the actual process that CSIS followed in relation to the Parmar Tapes.812
Indeed, the letter omitted details about the deficiencies in the processing of the
Parmar Tapes, including the absence of the transcriber during the key period
immediately preceding the bombings.
Jardine recalled receiving the response and trying to ascertain whether the
information it contained provided a foundation for the defence to mount an
abuse of process argument. He explained in testimony that some issues remained
unclear: for example, the dates when the backlog of tapes from April 9 to July
7, 1985 was translated, and when the tapes were destroyed. In particular, there
was a suggestion in the CSIS reply that this may have happened in the fall of
1985, which, to Jardine, raised questions as to why the tapes would have been
erased, given the timing of the explosions.813
On September 29, 1987, the day after the CSIS response was received, Jardine
met with members of the RCMP Task Force to discuss it. It was quickly concluded
that the CSIS reply contained “…little in the way of specifics from which an
informed evaluation might be drawn re possible probative merit.” In order to
avoid any misunderstandings on CSIS’s part about Jardine’s request for access
to its materials, Jardine drafted a letter to the RCMP, which was passed to CSIS
on the same day. The letter noted that CSIS did not appear to appreciate the
“…directness and specificity” of the AG BC concerns. Jardine asked to receive
raw materials about all CSIS surveillance and intercepts, indicating that the
Crown could not specifically point to a particular tape or conversation as being
relevant without knowing details of the surveillance and intercepts, and that
CSIS itself, not being aware of the details of the Narita investigation, could not
possibly determine the relevance of the material. The CSIS raw materials, Jardine
809
810
811
812
813
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5816-5820.
Exhibit P-101 CAA0563.
Exhibit P-101 CAA0553, pp. 3-4.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5845.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5716-5717.
485
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Volume Two: Part 2: Post-Bombing Investigation and Response
noted, would be used by the AG BC to determine the relevance of the CSIS
intelligence as evidence. Jardine stated pointedly that the Attorney General of
BC had requested to be fully briefed by October 2nd in order to decide whether
to contact the Solicitor General of Canada directly to obtain “the evidence.”814
In that same letter, Jardine went on to state that, with respect to “…the issue
of destruction of evidence,” it was clear that the Crown could face an abuse of
process attack and therefore needed to know which tapes had been destroyed,
when, why, under whose direction and pursuant to which policy, as well as which
tapes still existed. Finally, Jardine noted that the Deputy Attorney General of BC
had received assurances from the Deputy Solicitor General of Canada that CSIS
“…would provide absolute cooperation and full exchange of documents and
information in this case.”815
After transmitting Jardine’s letter to CSIS, the RCMP E Division wrote to RCMP
HQ:
It is clear that Jardine and senior staff of A.G.’s office including
the Attorney General himself are distraught at apparent
inability or unwillingness of CSIS HQ to respond to the specific
questions raised by him through us, approximately 1 and ½
years ago.816
Jardine explained in testimony that the matter was becoming urgent, as
Canada was having discussions with Japanese authorities to release some of the
physical evidence, and charge approval decisions could not be made by the AG
BC without knowing whether there would be access to the CSIS evidence.817
On October 1, 1987, the Honourable James Kelleher, the Solicitor General of
Canada, wrote to RCMP Commissioner Norman Inkster to advise that he had
been made aware of Jardine’s letter about obtaining the CSIS materials. The
Solicitor General explained that he anticipated being contacted by the Attorney
General of British Columbia and that he had requested a full report from the
Director of CSIS. He also requested a report from the RCMP about its cooperation
with the AG BC and whether there were any requests from the AG BC to which
the RCMP was not able to respond fully.818
The October 1987 Meetings
Meetings were held in Ottawa to attempt to resolve the issues.819
On October 2, 1987, almost 18 months after the initial request by Jardine, a
first meeting took place between representatives of the RCMP, CSIS and the
814
815
816
817
818
819
Exhibit P-101 CAF0169, pp. 1-3.
Exhibit P-101 CAF0169, p. 3.
Exhibit P-101 CAA0567(i).
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5719-5720.
Exhibit P-101 CAA0572.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5717; See also Exhibit P-101 CAA0567(i).
�Chapter IV: CSIS/RCMP Information Sharing
Solicitor General. The RCMP advised of the nature of Jardine’s request, and other
participants expressed concern about its scope and the potential for conflict with
the CSIS Act. The RCMP indicated that Jardine was prepared to add parameters to
his requests. The Solicitor General’s “bottom line” was that there would continue
to be full cooperation within the legal framework. This would require that both
the RCMP and CSIS be satisfied that the material was transferred in a manner
that addressed all concerns, both safety-related and operational.820
A second meeting was held on the same day, this time with Jardine present.821
The representative from the Solicitor General’s office, Ian Glen, began by
reaffirming a commitment “…to do anything possible” to ensure a successful
prosecution.822 Jardine explained that he was aware of CSIS’s concerns because
of his previous experience with the “Squamish Five” case and his discussions with
the prosecutor in charge of the Sidhu shooting case. He “…went on to ensure
all in attendance that it was not his nor his Minister’s intention to destroy CSIS
or unduly hamper its operational abilities.”823 Jardine explained in testimony
before the Inquiry that concerns had been raised about the AG BC’s motivations
for “pushing so hard” for the CSIS information, and that he wanted to reassure
CSIS. He also wanted to make it clear that the AG BC was only trying to make
an informed decision, and that it would treat the CSIS information in keeping
with its sensitivity and would not disclose information that CSIS did not want
disclosed.824
Warren explained in his testimony that he never concluded that Jardine was
trying to “…destroy the Service.” He did find that Jardine was making his life
difficult from time to time, but he understood that he was simply “doing his
job.”825 Warren described CSIS’s relationship with Jardine. He admitted the
meetings with Jardine were not easy, as Jardine was a tough negotiator with
whom Warren had differences. Warren understood their different roles: Jardine’s
job was to prosecute and Warren’s job was to help Jardine understand that the
Service had the responsibility to continue its own intelligence investigation
after the prosecution.
At the meeting, Jardine explained two reasons why obtaining answers to his
requests for information was important.826 The first reason related to the fact that
CSIS information had been used in the application for the search warrant that
authorized the search of Reyat’s home in November 1985. As some of the items
seized during the search would be entered into evidence during an eventual
prosecution, the Crown wished to avoid a challenge to the warrant in order
to ensure that the evidence was admitted. This was particularly problematic
because the Information to Obtain, while it referred to CSIS information, did not
identify CSIS as the source. This fact could leave the warrant open to an attack
820
821
822
823
824
825
826
Exhibit P-101 CAA0575(i), p. 1.
Exhibit P-101 CAA0575(i), p. 2.
Exhibit P-101 CAA0574(i), p. 5, CAA0575(i), p. 5.
Exhibit P-101 CAA0575(i), p. 5.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5720-5721.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5848.
Exhibit P-101 CAA0575(i), pp. 5-7.
487
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Volume Two: Part 2: Post-Bombing Investigation and Response
by the defence based on an argument that full disclosure was not made to the
judicial officer who issued it.827 At the Inquiry, Jardine explained that this was a
matter of some urgency because counsel for Reyat and Parmar, David Gibbons,
was already seeking the release of some of the items seized pursuant to the
search warrants and, for this purpose, had petitioned the courts for access to the
materials supporting the warrant application.828
The November Information to Obtain contained information about the Parmar
conversations intercepted by CSIS, but was silent on a number of matters. It
did not reveal the nature of the CSIS materials reviewed by the RCMP nor the
fact that no verbatim transcripts of the tapes existed. It did not disclose that
the RCMP investigators had not been permitted to take copies of the CSIS logs
containing the notes made about the tapes.829 Many of these facts had been
revealed in the September 19th affidavit in support of the RCMP’s application for
authorization to intercept private communications.830 That affidavit was about
to be unsealed, and this would have allowed Gibbons to see the difference in
the extent of the disclosure made in support of each application and perhaps
thereby attack the validity of the search warrant.831 The fact that the CSIS tapes
had been erased was not mentioned in the Information to Obtain, but might
now be raised by the defence to challenge the grounds for the search, as the
application relied in part on the destroyed materials.
In a presentation he gave at a seminar in 1991, Jardine, who was at that time a
private member of the bar and no longer Crown counsel,832 discussed his concerns
about the possible weaknesses of the search warrant.833 He explained that “…the
full, fair, and frank disclosure expected of the Crown in the application for and
obtaining of search documents had been frustrated” by the concern for security
that was reflected in the RCMP HQ correspondence providing instructions about
the language to be used in the Information to Obtain. Jardine was of the view
that the manner in which the CSIS information was described did not provide
sufficient disclosure to the justice issuing the warrant because it did not provide
a “…full description of the nature of the communications referred to.” He felt
that the warrant could nevertheless remain valid as it related to Reyat, since the
rest of the information included in the application provided sufficient grounds
for a search. However, according to Jardine, the warrant could not have been
upheld as it related to the search of Parmar’s home.834 Had items of interest been
found and Parmar been charged, the warrant would have been susceptible to
attack and any evidence gathered as a result may have been excluded. Even
as it related to Reyat, there was a risk that the correspondence from RCMP HQ
827 Exhibit P-101 CAA0574(i), p. 3, CAA0575(i), p. 6.
828 See Exhibit P-101 CAA0417, pp. 2-3; Testimony of James Jardine, vol. 47, September 18, 2007, pp. 57215722.
829 Exhibit P-201, paras. 46, 48-49, 53.
830 See Exhibit P-101 CAA0324(i); Section 4.1 (Post-bombing), Information Sharing and Cooperation in the
Air India Investigation.
831 Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5721-5722.
832 Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5769-5770, 5804-5805.
833 Exhibit P-101 CAA0836, pp. 21-37.
834 Exhibit P-101 CAA0836, p. 22.
�Chapter IV: CSIS/RCMP Information Sharing
dictating the language to be used could be viewed as “…a considered attempt to
keep the true nature of the information from the judicial officer,” hence opening
the warrant to attack on the ground that there was an intentional attempt to
mislead.835
The second reason raised by Jardine at the October 2, 1987 meeting for why
the AG BC needed the CSIS information related to the disclosure that had to
be made to the defence in advance of the eventual trial and to possible abuse
of process arguments that could be raised.836 Jardine explained that defence
counsel would learn through disclosure that the CSIS intercepts had been erased
and would argue that they might have proved the innocence of his client. In
this context, it was “paramount” to show that the tapes were disposed of in the
normal course of events, pursuant to the policies in place, and that, therefore,
no deliberate breach of the accused’s right to full answer and defence had been
committed.837
Having explained his need for the information, Jardine then agreed in discussions
with CSIS to delineate his requests and restrict them in time.838 The surveillance
and intercept information requested in the end was confined to material related
to Parmar, Reyat and a short list of their associates. Information about the
Parmar Tapes was requested only for the period from March 27, 1985 to July 1,
1985.839 It was also understood that any other information held by CSIS that the
Service believed might be relevant to the Air India/Narita investigation would
be provided.840 It was agreed that this would be accomplished by providing the
information to the RCMP E Division investigators, who would take appropriate
steps to “…protect the various interests.”841 The material was to be fully
identified before October 19, 1987. Glen indicated that the Solicitor General
was concerned about the use that could be made of this information, and it was
accordingly agreed that further discussions could be held about that issue once
the material was identified and obtained.842
Overall, Jardine explained in testimony that he left this meeting with a sense
of relief, as he had understood from Glen that there would be full cooperation.
He advised his Attorney General accordingly. He testified, however, that these
hopes did not materialize.843
On October 19, 1987, CSIS provided materials to the RCMP about Parmar, Reyat
and their associates as agreed during the October 2nd meeting. CSIS specified in
the cover letter that, in line with what the Service had understood was agreed to
during the October 2nd meeting, the information was provided as investigative
835 Exhibit P-101 CAA0836, p. 23. This argument was made by Reyat during the Air India trial in 2002, but
Justice Josephson rejected it: See Section 4.4.2 (Post-bombing), The Air India Trial.
836 Exhibit P-101 CAA0574(i), p. 3, CAA0575(i), p. 6.
837 Exhibit P-101 CAA0575(i), pp. 6-7.
838 Exhibit P-101 CAA0574(i), pp. 1-2, CAA0575(i), pp. 7-8.
839 Exhibit P-101 CAA0575(i), pp. 7-9.
840 Exhibit P-101 CAA0577, p. 2.
841 Exhibit P-101 CAA0575(i), p. 8.
842 Exhibit P-101 CAA0574(i), pp. 5-6, CAA0575(i), p. 8.
843 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5723.
489
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Volume Two: Part 2: Post-Bombing Investigation and Response
leads only, and that any use Jardine wished to make of the materials for judicial
authorizations or as evidence would have to receive prior approval from CSIS.
CSIS also provided information in response to some of Jardine’s questions about
the destruction of intercept tapes, outlining that since the Service was “…not
mandated to collect evidence nor are its members peace officers,” the intercepts
were destroyed according to the policy which was, and continued to be, applied
at CSIS. Information was provided about the number of tapes recorded and
destroyed, and about the retention period provided for in the policy, but CSIS
stated that it could not, “…at this late date,” determine exactly when any specific
tape was erased.844 CSIS provided information about the process for translating
and transcribing the tapes,845 but denied having received a request to retain the
tapes in July 1985.846 It did provide intercept logs containing the notes made by
the transcribers and translators who listened to the Parmar Tapes.
On October 27, 1987, Jardine wrote to the RCMP with his comments on the
recently received CSIS materials. He outlined many of the issues about the Parmar
Tapes that, in his view, still remained outstanding, in particular: the manner in
which they were translated, the manner in which decisions were made to destroy
them, and the timing of their destruction. He noted that some of the questions
set out in his March 1986 letter were still not answered. He also pointed out
that pages were missing from the translation notes and translators’ notebooks,
and that “…in some instances the sanitization has destroyed the context of
conversations.” He requested that CSIS provide the full text of the conversations
and suggested that, if the issue could not be resolved, another meeting with
Glen might be necessary. Jardine asked when specific conversations of interest
were translated, when the tapes were erased and when the determination was
made that they contained no significant information to incriminate a target in
subversive activity (the threshold which, according to the policy applied by CSIS
at the time, would have required that the tapes be retained).847 Jardine noted
that, while CSIS was an intelligence-oriented agency, “…the facts indicated they
had evidence from which the intentions of Parmar, Reyat and others could be
inferred.” He explained that it was likely that an abuse of process argument
would be raised, and that in this context, issues of competence, negligence or
bad faith would have to be investigated. For this reason, full particulars would
be needed for each tape, particularly since some of the tapes that had been
destroyed recorded conversations which were used in RCMP applications for
search warrants and intercepts, indicating that they contained evidence which
could have been led in Reyat’s case.848
The RCMP met with Jardine on October 28th to discuss the CSIS materials and
the outstanding issues. C/Supt. Frank Palmer, the Officer in Charge of Federal
Operations in E Division, felt that the information provided by CSIS had failed to
comply with the RCMP request and was “most unsatisfactory.”849
844
845
846
847
848
849
Exhibit P-101 CAA0581, p. 2.
Exhibit P-101 CAA0581, pp. 3-5.
See Section 4.3.1 (Post-bombing), Tape Erasure.
Exhibit P-101 CAF0170, pp. 1-4; See Section 4.3.1 (Post-bombing), Tape Erasure.
Exhibit P-101 CAF0170, pp. 4-6.
Exhibit P-101 CAA0584, p. 1.
�Chapter IV: CSIS/RCMP Information Sharing
Continuing Discussions Regarding Jardine’s Requests
On November 3, 1987, C/Supt. Palmer wrote to CSIS to express his concerns and
to pass on Jardine’s October 27th enquiries.850
On November 30, 1987, CSIS responded with a letter providing additional details
about the Parmar Tapes. Warren, who authored the letter, provided information
about the total number of tapes recorded and destroyed, correcting an earlier
estimate sent in the October 19th letter. Where possible, he included information
about the dates of translation and transcription, as well as about the processing
of the backlog of 80 to 85 tapes, which were only reviewed in the fall of 1985.
He reiterated that CSIS was unable to provide information about the dates of
erasure by interviewing its personnel or consulting its records, other than to state
that the tapes were kept between 10 and 30 days, according to policy. Warren
noted that erasing the tapes was important in view of the CSIS Act which only
empowered the Service to collect information “…to the extent strictly necessary.”
He provided explanations about the briefings and instructions received by the
translators, and about the determination of whether conversations contained
information to significantly incriminate a target in subversive activity, which he
stated was made by the investigators, the HQ analysts and their supervisors.
The letter also provided specific details about the Parmar intercepts, including
the fact that the transcriber was on leave during the week of the bombings, and
admitted that there were areas where CSIS could not answer “with precision,”
including every date of erasure, translation or transcription and the total number
of backlogged tapes.851
Warren denied that pages were left out of the transcribers’ and translators’ notes,
except for two pages overlooked in photocopying, or that the materials were
sanitized, indicating that the notes provided contained the conversations exactly
as set down by the translators and transcribers at the time. He reiterated CSIS’s
intention to cooperate fully with the AG BC and assured that there was nothing
that CSIS was “…deliberately withholding or failing to disclose that we know or
even suspect may be relevant to this case.” Warren then added that there was
not only one, but two public interests at stake in this case: the administration of
justice and the protection of national security. Raising the stakes somewhat, he
pointed out that courts had shown a willingness in the past to curtail the extent
of disclosure necessary in order to protect national security secrets, and that
he was counting on the RCMP’s cooperation and assistance in balancing the
conflicting interests.852
The CSIS response was transmitted to Jardine,853 who then wrote to the RCMP
on December 11, 1987 with more questions for CSIS. Jardine indicated that
he had analyzed the CSIS information and that some of the questions posed
in his October 1987 correspondence still remained unanswered.854 He noted
850
851
852
853
854
Exhibit P-101 CAA0589(i).
Exhibit P-101 CAA0595(i), pp. 1-4.
Exhibit P-101 CAA0595(i), pp. 5-6.
Exhibit P-101 CAA0602.
Exhibit P-101 CAF0189.
491
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that it was necessary, in light of the potential abuse of process argument, to
find out who had made the determination that there was no “…information to
significantly incriminate a target in subversive activity” on the Parmar Tapes,
and to know when that determination was made, adding that the person
responsible would have to be interviewed and would have to testify.855 In
light of the concerns raised by Warren about national security secrets, Jardine
also asked that CSIS be approached to find out its position with respect to any
objections to disclosure of information under the Canada Evidence Act, as the
issue needed to be addressed before charges were laid against Reyat in order
for the AG BC to properly assess the proposed prosecution.856
At the Inquiry, Jardine explained that the November 30th CSIS letter was
perplexing to him in many respects. First, the information earlier provided about
the total number of tapes collected by CSIS was corrected and a different number
was now provided. Second, the Service still could not provide exact information
about the dates of erasure of the tapes, but did confirm that there was a backlog
of tapes which had been erased in the fall of 1985. Jardine explained that, at
that stage, the prosecution team needed to obtain information about the dates
of erasure in order to respond to the anticipated abuse of process argument,
and needed to understand why there was a backlog and why the tapes were
erased in the fall after Parmar and Reyat were already targeted in the Air India
investigation. The prosecutors felt that if the erasure had been done before the
end of July 1985, it would most likely have been done pursuant to policy and
not because CSIS failed to identify significant subversive activity. However, after
that time, when a clear connection between Parmar and Reyat was beginning
to emerge, the prosecution’s case that the erasure was not an abuse of process
would be more difficult to make.857
Warren commented on Jardine’s two concerns at the Inquiry.858 He testified that
he was “very chagrined” about BC Region’s error in the initial estimate of the
total number of tapes collected. He anticipated that Jardine, who had already
expressed suspicions that CSIS was not being totally forthcoming, would
interpret this necessary correction as reinforcement of these suspicions. Warren
admitted that due to a lack of records, there could never be complete certainty
about the number of tapes collected nor their processing. However, he justified
the lack of records on the basis that once an intercept was processed, CSIS
assumed that the intelligence information had been extracted and that there
was no further use for the raw intercept tape.
Jardine commented further on the CSIS letter, testifying that it provided
information about the Parmar Tapes that was “…in effect, third party,”859 meaning
that it contained a clause stipulating that the information could not be further
disclosed or used as evidence without CSIS’s consent.860 To Jardine, this signaled
855
856
857
858
859
860
Exhibit P-101 CAF0189.
Exhibit P-101 CAF0189.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5725-5727.
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5854-5855, 5859-5861.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5728.
See Exhibit P-101 CAA0595(i), p. 6.
�Chapter IV: CSIS/RCMP Information Sharing
an assertion that CSIS viewed the national security interest as outweighing
the needs of the prosecution, and that he was not going to be able to use the
information in the prosecution.861
On December 15, 1987, Roger McMeans, who was assisting Jardine with the
preparation for the Reyat prosecution, wrote a memorandum explaining why
the Crown needed access to information about the CSIS tapes and why it
needed to be able to disclose the information to the defence and to use it in
Court. He noted that, because the Parmar Tapes were erased, both evidence
that could have assisted in the prosecution of Reyat and evidence that could
have assisted the defence might have been lost. The only remaining trace of
the conversations was in the translator and transcriber notes, which McMeans
described as “sketchy” and, most importantly, as specifically not covering
innocuous conversations consistent with the innocence or non-involvement of
Parmar or others, since it was not the purpose of the CSIS operations to gather
this type of intelligence. As a result, the destruction of the tapes opened the
door to an abuse of process argument by the defence or to a motion for a stay
of proceedings on the basis that the unavailability of the evidence breached
the rules of fundamental justice. From a review of the applicable law, McMeans
concluded that, in order to respond to such arguments, the Crown would have
to show that the tape erasure was done innocently, with no ulterior purpose
to deprive the accused of the right to full answer and defence and with no
intention to “…bury evidence of a badly conducted investigation.” This required
knowledge of who ordered destruction (or failed to order retention), when and
why.862
Further, since the issue of the impact of erasure had to be determined by the
Court and not by the Crown, this meant that the Crown would have to disclose
to the defence the facts known to it about the CSIS erasure. If CSIS were to
prevent this disclosure, the prosecution could not go ahead with the Crown
having knowledge of a possible defence and withholding it, since this would
breach the prosecutors’ ethical obligations and duty to act fairly. If CSIS allowed
disclosure to the defence, but then invoked the Canada Evidence Act to object
to the presentation of evidence on the issue, this could also lead to a stay of
proceedings. It was therefore necessary for the Crown to obtain complete
information about the CSIS tape erasure and to know what information the
Crown would be allowed to disclose to the defence and to use in Court. McMeans
noted that, should CSIS refuse to allow the information to be disclosed to the
defence, the AG BC’s intentions at the time were nevertheless to proceed with
the laying of the charges, and then to bring a motion “…to cause CSIS to disclose
this information.”863
In testimony before the Inquiry, Jardine explained that the question of whether
the destruction of the tapes was done inadvertently and in good faith remained
central to the prosecutors’ understanding “…of whether it was proper for us
861 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5728.
862 Exhibit P-101 CAF0171, pp. 1-7, 10.
863 Exhibit P-101 CAF0171, pp. 8-10.
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to proceed with a criminal prosecution against Mr. Reyat.” He added that the
questions that were being asked by the AG BC were aimed at understanding
whether the prosecution could comply with its duties and responsibilities to
provide disclosure to the defence.864
The Officer in Charge (OIC) of Special Projects at RCMP HQ relayed Jardine’s
concerns about the responses received from CSIS to the RCMP Deputy
Commissioner of Operations, in preparation for a meeting between the RCMP
Commissioner and the CSIS Director on December 18, 1987, suggesting that
the issues could be addressed by the RCMP Commissioner. He explained that
one of the issues that would soon arise out of Jardine’s efforts would be the
need to find out who had made the decision that there was no information to
significantly incriminate a target on the Parmar Tapes, and when that decision
was made. Most importantly, the possibility of CSIS making an objection to the
disclosure of its information, as hinted at in Warren’s latest correspondence,
was of concern. In this respect, the OIC noted that “…Jardine cannot in good
conscience proceed with a direct indictment if he knows this is what CSIS
may well do which in effect would conceivably scuttle the prosecution.”865 In
testimony, Jardine explained that he needed to advise his Attorney General
about the possibility of preferring a direct indictment (thereby taking the case
directly to trial in the Superior Court without a preliminary inquiry), and that
the Attorney General “…wanted to know whether or not he was going to be on
solid ground if he was going to sign an indictment.” Jardine explained that, at
the time, the Japanese had indicated that they were willing to release the Narita
evidence and that, as a result, the AG BC’s office anticipated that they would be
able to proceed with charges against Reyat if they received an assurance from
CSIS that the full cooperation that had been promised by Glen at the October
1987 meeting would be forthcoming.866
On December 18, 1987, C/Supt. Frank Palmer wrote to Warren at CSIS HQ to
seek further clarifications on behalf of Jardine. He first asked exactly who had
made the determination that there was no information that would significantly
incriminate a target in subversive activity on the Parmar Tapes, and when,
noting that this person would have to be interviewed in order to determine
his or her potential testimony. About the issue of possible objections by CSIS
to disclosure of its information under the Canada Evidence Act, which had been
specifically raised in CSIS’s most recent letter, Palmer explained that, though
Jardine and the RCMP would request permission prior to using CSIS information,
Jardine needed to know whether he could proceed on the assumption that the
information disclosed to him could be used as evidence and, if not, what specific
information would be protected by CSIS. As Jardine was to seek approval to
proceed with a criminal charge, he needed to know whether he would be able
to use the CSIS information in his possession, since the whole exercise might
prove to be futile if it turned out that he could not use the information. Palmer
therefore requested that the questions posed “…be answered forthrightly and
conclusively” by CSIS.867
864
865
866
867
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5731.
Exhibit P-101 CAA0606, pp. 1-2.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5731-5734.
Exhibit P-101 CAA0612(i), pp. 2-4.
�Chapter IV: CSIS/RCMP Information Sharing
R.H. Bennett, who had recently taken over as DG CT, since Warren had assumed
the role of Assistant Deputy Director, Operations, provided a response on
behalf of CSIS on December 24, 1987. He explained that CSIS would continue
to cooperate, but that the Service simply could not give Jardine “carte blanche”
to use all CSIS information as evidence. He stated that CSIS retained the right
to object to disclosure and would seek ministerial guidance as soon as Jardine
had identified the specific information he wanted to use as evidence. Bennett
also indicated that CSIS was prepared to identify the person who had made the
determination that there was no significant information to incriminate a target
in subversive activity on the Parmar Tapes, and had requested the advice of its
BC Region for this purpose.868
Warren testified that, at that time, CSIS knew that the needs of the prosecution
were paramount to CSIS’s own interests, and thus, it would not have objected
to disclosure of its information under the Canada Evidence Act to frustrate the
Crown.869 However, CSIS did want to preserve the option of using the Canada
Evidence Act protection to prevent a “fishing expedition” by the defence. For
example, if the Crown agreed to allow CSIS personnel to testify behind a screen
but the defence objected, Warren noted that CSIS might have considered the
use of Canada Evidence Act protection to thwart the defence objection only. The
official positions taken by CSIS in the early stages of the discussions, including
in Warren’s own November 30, 1987 letter, which raised a “distinct possibility” of
CSIS making an objection to disclosure,870 did not clarify the limited scope of the
objections that CSIS in fact intended to make.
After reviewing the December 24, 1987 CSIS response, Jardine advised the
RCMP that he could not pinpoint the pieces of information required for court,
as it would be for the defence to decide “…what issues it wishes to make of the
destroyed evidence.” Further, some CSIS methodology would necessarily have
to be revealed in order to make a “good faith” argument. At the time, Jardine had
received instructions from his Assistant Deputy Minister to present a motion to
the Court for full disclosure of the CSIS information if it was not forthcoming
voluntarily.871 Discussions were held between CSIS and the RCMP to arrange a
meeting between Jardine, the senior RCMP officers involved and the CSIS HQ
executives in charge.872 The Solicitor General’s office was favorable to such a
meeting and there was a possibility that it would send a representative.873
The Assistant Deputy Solicitor General, Ian Glen, met with CSIS on December 31,
1987, to discuss the Service’s concerns about Jardine’s requests. Glen assured
CSIS that the Minister would not “…take an all or nothing stance on the issue of
disclosure of CSIS information” and that he was quite sensitive to concerns for
the safety and security of individuals and their families. Glen had discussions
868
869
870
871
872
873
Exhibit P-101 CAA0618, pp. 1-2.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5872.
Exhibit P-101 CAA0606, p. 2.
Exhibit P-101 CAF0190, pp. 1-2.
Exhibit P-101 CAA0617, CAA0622.
Exhibit P-101 CAA0617.
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with Jardine and indicated that some information would not be available for
trial. Glen felt that a motion from the AG BC for disclosure of the CSIS information
could be avoided as a result of the planned meeting between CSIS, Jardine and
the RCMP. He urged all parties to meet in order to see how CSIS could satisfy
the prosecution’s needs without providing a “blank cheque” to use all of its
information.874
The January 1988 Meeting
On January 4, 1988, a meeting was held in Vancouver between Jardine and his
colleague McMeans, on behalf of the AG BC; Bennett and Joe Wickie, on behalf
of CSIS; Palmer, Insp. Terry Hart, Sgt. Robert Wall and Cst. O’Connor, on behalf
of the RCMP; and Harry Wruck and Dan Murphy, Department of Justice (DOJ)
counsel for CSIS.875
Jardine indicated that he was “…not prepared to state categorically that he has
now received all ‘relevant’ materials from CSIS,” given the discrepancies in some
of the materials reviewed.876 At the Inquiry, Jardine explained that, not only
were there discrepancies in the material provided, but that he had only received
a summary instead of statements from the persons involved, and hence could
not acknowledge that he had received everything.877 As a result, Jardine stated
at the meeting that if the defence claimed that CSIS had further information
which was not being made available, he would not be able to deny it. Bennett
asked if the RCMP felt that CSIS was holding back material. Wall indicated that,
since he did not know what CSIS had available, he would not say the RCMP
had received everything. This prompted Bennett to ask what CSIS could do to
assure the RCMP that the Service had provided everything, and to ask whether
there were specific files the Force wanted to see. The RCMP did not request to
review specific files for the time being.878
Bennett reiterated the CSIS position that the Service could not grant “carte
blanche” access to its materials, and requested copies of all documents passed
to the RCMP on Air India in the past. Jardine explained that it was not possible
to predict exactly what materials the defence would/could ask for, but that
he anticipated that the areas pursued would relate to: the gap in physical
surveillance on Parmar at the time of the bombing; the intercepted conversation
about Reyat’s bow and arrows; CSIS’s knowledge of code words in the intercepted
conversation; and, most importantly, the erasure of the Parmar Tapes. He added
that, at trial, the Crown would be seen to represent both CSIS and the RCMP, and
would have to answer the defence attack that CSIS was selective in the material
it kept, or that it intentionally destroyed evidence relevant to the defence.
Bennett and Jardine discussed the issue of tape erasure and Jardine stressed
that, as it was already in the public domain, it could not be avoided and had to
be dealt with up front.879
874
875
876
877
878
879
Exhibit P-101 CAF0009, pp. 1-3.
Exhibit P-101 CAF0172.
Exhibit P-101 CAF0172, p. 2.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5735-5736.
Exhibit P-101 CAF0172, pp. 4, 8.
Exhibit P-101 CAF0172, pp. 1-3.
�Chapter IV: CSIS/RCMP Information Sharing
Bennett stated categorically that CSIS would simply not allow disclosure of
certain facts, including the names of the translators and documents identifying
human sources or cooperating community members. Jardine explained that
the Crown would not present the intercept notes or logs in evidence, but might
want to call the translators to testify in response to an abuse of process motion,
as they were the only ones who could explain their notes about the tapes.
Bennett reiterated that CSIS would not identify translators, but would make
supervisors available.880 At the Inquiry hearings, Warren testified that Bennett’s
strong position was a “bluff,” and that it did not reflect the policy of the Service
at the time. Warren reiterated that, as per Archie Barr’s direction in the spring
of 1987, CSIS was committed to cooperating to ensure a successful prosecution
and certainly would not have taken a national security certificate against the
Crown.881
At the January 4, 1988 meeting, Jardine explained that the destruction of the
tapes that took place after the crash, at a time when CSIS was fully aware of the
RCMP investigation, would be analyzed differently from the erasures done prior
to the bombing. Bennett indicated that CSIS had not been officially requested
by the RCMP to retain the tapes and had never been provided with materials
that convinced the Service that there was significant information on the tapes,
and that the lack of such information was the reason they were destroyed in
accordance with CSIS policy.882 Bennett expressed concern about the language
used by Jardine and the RCMP to describe the erasure of the Parmar Tapes:
Bennett states that his people are quite concerned about
RCMP references in letters that CSIS “destroyed evidence.” CSIS
feel this is not accurate and puts them into a bad position
for future civil proceedings. He requests that we [the RCMP]
refrain from using reference to destruction of evidence in
future correspondence.883
Bennett indicated that, while the Service did erase tapes, they did not contain
evidence of a specific crime and CSIS considered they were not significant to
its inquiries. Jardine disagreed. He felt that evidence was in fact erased by CSIS,
either intentionally or not, as the tapes of conversations with Reyat and others
around the time of the bombing would be relevant as evidence of association.
Jardine added that “…we will never know if ‘evidence’ was destroyed,” but
that he felt that it was. CSIS counsel requested to be present when the RCMP
interviewed CSIS employees involved in decisions about the Parmar Tapes.884
At the conclusion of the January 4th meeting, Jardine requested a letter from
CSIS as soon as possible advising of exactly what material would be exempt
880
881
882
883
884
Exhibit P-101 CAF0172, pp. 4-5.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5880.
Exhibit P-101 CAF0172, pp. 5-6.
Exhibit P-101 CAF0172, p. 8.
Exhibit P-101 CAF0172, pp. 7-8.
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Volume Two: Part 2: Post-Bombing Investigation and Response
from disclosure.885 Overall, Jardine explained in testimony that his recollection
of this meeting was that it was simply one where he had to explain again the
type of argument the defence was anticipated to make at trial. At the end of
the discussions on that day, Jardine testified that there was still no “meeting of
minds” or agreement between CSIS and the police and prosecution about the
next steps.886
The CSIS Policy Review
While the discussions about disclosure of CSIS information in the Reyat
prosecution continued, there was a growing recognition within the Service that
efforts needed to be made to avoid the “intelligence into evidence” conundrum
that had arisen in the Air India case.887CSIS was interested in looking for ways
to help the police, while providing the fullest protections possible to CSIS
information. On January 9, 1988, Warren sent a letter internally within CSIS
stating that the CSIS Director, after consultation with the Deputy Solicitor
General, had called for a policy review with respect to the handling of electronic
intercepts. Warren emphasized that the review did not signify a fundamental
change in CSIS’s tape retention policy, but rather that it was intended to come
to grips with the reality that the Service, from time to time, would be seized with
information of potential probative value in a criminal investigation.888
Warren testified that the review allowed the Service to consider how it might
have handled things differently, and what could be done to mitigate the damage
that inevitably occurs when CSIS intelligence is required as evidence in an open
court. Effectively, CSIS was looking for a way to “flip a switch” for information
relating to criminal matters, to enter into an information-retention mode that
complied with rules governing continuity of evidence, while minimizing the
number of CSIS employees who could be potentially identified publicly.889
Receipt of CSIS Materials and Ongoing Debates
On January 28, 1988, the AG BC signed an indictment charging Reyat with
two counts of manslaughter and six counts of acquisition, possession and use
of explosive substances in connection with the Narita bombing.890 Shortly
afterward, the indictment was filed in Court. The RCMP travelled to England,
where Reyat had been living, to interview him, following his arrest by British
authorities at Canada’s request. Proceedings then began for Reyat’s rendition to
Canada to stand trial for the Narita bombing.891
On March 29, 1988, CSIS provided the RCMP with a package of its materials
identifying the portions for which there would be disclosure objections by CSIS
and setting out the reasons for those objections. Another copy was provided
885
886
887
888
889
890
891
Exhibit P-101 CAF0172, p. 9.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5737-5739.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5874.
Exhibit P-101 CAF0264.
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5874-5875.
Exhibit P-101 CAF0218, p. 1; R. v. Reyat, 1991 CanLII 1371 (BC S.C.).
Exhibit P-101 CAF0218, p. 1; See also Testimony of James Jardine, vol. 47, September 18, 2007, p. 5743.
�Chapter IV: CSIS/RCMP Information Sharing
with the passages blacked out for use in court or for disclosure to the defence.
Further, CSIS asked to be advised if any of the material it planned to refuse to
disclose was seen as vital to a successful prosecution or essential for disclosure
purposes, as CSIS would be willing to reconsider its objections on a case-bycase basis in such an event. About the erasure of the Parmar Tapes, CSIS noted
that the names of three members involved in the handling of the intercepts had
already been provided, and that the RCMP could also interview Wickie of the BC
Region to find out about CSIS operations and policies on the destruction and
retention of intercepts.892
On April 25, 1988, Jardine drafted a memorandum outlining his impressions after
reviewing the CSIS materials. He reviewed many of the intercepted conversations
that tended to show Parmar’s involvement in a conspiracy, and pointed out the
numerous conversations with Reyat that were recorded in the notes, particularly
around the time of the Duncan Blast. Jardine expressed concern about the
fact that there was no exact translation of the initial material, the consequence
being that a proper analysis of the information was not possible at the time
that the determination of whether the intercepts contained information about
significant subversive activity was made. Most importantly, he was concerned
that many of the conversations were actually erased in September 1985, after
the bombing and after it was known that Reyat had purchased a tuner that
could tie him to the Narita crime scene. Since the intercepts appeared to contain
material that went beyond simply raising suspicion about Parmar’s involvement
in a conspiracy, Jardine felt that the defence would ask when the tapes were
destroyed, at whose direction and “…how can the Crown argue good faith
destruction when all of this information was available to review by the Canadian
Security Intelligence Service by the second week of September 1985?” According
to Jardine, the defence would also argue that any investigator, in the interest of
accurate information and given the totality of the information available, would
have wanted to know the exact words spoken in the conversations recorded.893
Shortly after, McMeans wrote a supplementary memorandum containing further
observations about the problems raised by the CSIS materials. He noted that,
given that the defence would most likely raise the point that the destruction
of the CSIS tapes prevented the accused from making full answer and defence,
evidence would have to be heard about CSIS procedures, and CSIS witnesses
would have to testify. Once it heard this evidence, the Court would have to
“…ascribe a reason for the destruction of this evidence which will range from
incompetence and negligence to possibly a finding of a cover-up attempted by
CSIS.”894 McMeans then went on to examine the information that was available
to CSIS in order to anticipate the possible conclusions the Court could draw
about the tape erasure. He noted that CSIS was already aware of significant
information prior to the bombing, and that, after the bombing, the Service
learned of important facts that should have alerted it to the possible need to
retain at least some of the Parmar intercepts:
892 Exhibit P-101 CAA0637, pp. 1, 3.
893 Exhibit P-101 CAF0173, pp. 1-9.
894 Exhibit P-101 CAF0174, pp. 1-2, 7.
499
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By August 22, 1985 CSIS should know that Parmar, a militant
terrorist leader of the B.K., who is expected to conduct a
terrorist act against an Indian interest, is acting on a highly
secret project. He is scheming and apparently conspiring,
taking great pains to ensure his conversations with other
radical Sikhs cannot be intercepted. He attends Duncan
June 4 to view a test explosion conducted by another radical
Sikh, Reyat. Reyat has sought dynamite and fuses to help his
countrymen. On June 22, Air India and Narita explosions occur.
Very quickly these are attributed to Sikh extremists because of
the L. Singh and M. Singh tickets. Fragments of a Sanyo Tuner
and can of liquid fire are found at the Narita explosion site.
Reyat purchased the same model of tuner the day after the
test explosion. The company Reyat works for distributes liquid
fire. ‘E’ Division identified Reyat and Johal [whose suspicious
conversations with Parmar in the days preceding the bombing
had been intercepted] as suspects.895
McMeans concluded that it was therefore possible that the Court would rule that
CSIS should have retained its intercepts after the bombing, and was absolutely
required by legislation and common sense to retain them after August 22nd (the
date on which CSIS was advised of all of the information gathered by the RCMP
that pointed to Parmar’s and Reyat’s involvement in the bombing), which made
the issue of the exact date when tapes were translated and erased particularly
relevant. Since CSIS refused to make its translators available as witnesses,
McMeans wondered how these facts could be proven, and concluded that it
would assist the prosecution if CSIS could provide “…some answers relating to
the dates the tapes were ordered not to be retained.”896
Jardine explained in testimony that, at this stage of the proceedings, in the spring
of 1988, there was still information which he anticipated would be required for
trial, and that had not been provided by CSIS.897
On May 3, 1988, Jardine wrote to the RCMP to request that the Force again
approach CSIS to obtain answers to the outstanding questions. In particular,
Jardine asked who in the chain of command at CSIS determined that there was
no “…information to significantly incriminate a target in subversive activity” on
the Parmar Tapes and therefore failed to retain the tapes; who had authority
to make that determination; and when the determination was made. Jardine
noted that the questions had already been asked in a December 1987 letter, and
that the AG BC’s intention was not “…to embarrass or to conduct a witch hunt,”
but rather that the issue of CSIS’s “good faith” required answers. He indicated
that the two investigators CSIS had made available for RCMP interviews had
not been the persons who had made the determination and were not even
895 Exhibit P-101 CAF0174, p. 7.
896 Exhibit P-101 CAF0174, pp. 8-9.
897 Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5741-5742, 5746-5747.
�Chapter IV: CSIS/RCMP Information Sharing
aware of the term “…significant subversive activity.” He added that Wickie, the
BC Region DDG of Services, who supervised the individual in charge of technical
operations relating to intercept warrants and to the processing of the tapes, had
told the RCMP investigators that the tapes were erased pursuant to policy; that
five persons were involved in the determination; and that he would have to “…
deal with Ottawa” before revealing their identities. As a result, Jardine requested
that CSIS be asked to determine who was involved and to provide statements
from these individuals.898
On May 4, 1988, during a meeting between CSIS and RCMP HQ representatives,
CSIS members voiced the concern that some of the material provided to the
RCMP for possible evidence or disclosure in the pending Reyat trial “…had no
relevance to the prosecution and should not be disclosed.”899
On May 16, 1988, Palmer transmitted Jardine’s May 3rd letter to the CSIS BC
Region, emphasizing that answers to Jardine’s questions were necessary because
the issue would most likely be raised at trial and the prosecution needed to
know the answers in advance and be able to produce witnesses to explain the
facts.900
On June 9, 1988, the BC Region transmitted an interim response from CSIS
HQ, which identified some of the CSIS members involved in the decisions
surrounding the Parmar Tapes,901 and, on June 15, 1988, an official letter from
CSIS HQ was provided. The letter reported the results of interviews conducted by
CSIS HQ personnel with three CSIS BC Region members, Jim Francis, Bob Smith
and Ken Osborne, who were part of the chain of command of individuals who
would have been in a position to order the retention of some or all of the Parmar
Tapes. An explanation was added specifying that tape retention was “…not a
common practice within the Service” and that the opinion of senior managers
would therefore have been sought if this step had been considered for the
Parmar Tapes. The letter also specified that, while CSIS HQ would have had the
authority to request the retention of some of the tapes, in this case it did not do
so, and the BC Region “…was in the best position to make that determination
bearing in mind they had access to the raw product and the translators for
clarification.”902 Finally, in answer to Jardine’s question about the time when the
determination to erase the Parmar Tapes was made, CSIS HQ explained that the
process of erasure was automatic and ongoing, with the determination also
being an “…ongoing daily process” as information was brought to the attention
of the members involved.903
On June 14, 1988, having received the interim response from CSIS, Jardine
again wrote to the RCMP, indicating that the “…CSIS reply does not answer the
questions.”904 Jardine noted:
898
899
900
901
902
903
904
Exhibit P-101 CAA0643, pp. 1-3.
Exhibit P-101 CAA0645.
Exhibit P-101 CAA0646.
Exhibit P-101 CAA0649.
Exhibit P-101 CAA0654, p. 3.
Exhibit P-101 CAA0643, p. 4.
Exhibit P-101 CAF0175.
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The general references to policy do not indicate whether J. S.
Francis, R. W. Smith or K.G. Osborne determined there was no
significant subversive activity. Francis points to Smith, Smith
says he was not aware of anything significant, Osborne says
nothing was brought to his attention by Smith, which would
warrant retention. Who is going to testify about this?905
Jardine appeared exasperated by the difficulty in obtaining clear answers
from CSIS. He indicated: “…if no one can answer then please tell us no one can
answer.” He noted that the person who would testify on behalf of CSIS would
have to be prepared to say when the material was destroyed and who made
that determination. He proposed a different formulation of his questions to
see if answers could be obtained, drawing attention to: the issue of who was
coordinating and analyzing the Sikh information; whether the material was
ever “…analyzed by that person with the total picture (translations) known”;
and whether a complete analysis was done by the Sikh Desk after the Air India
bombing, since tapes were still in existence as a result of the backlog. Jardine
explained that an early response was required, since the extradition hearing
for Reyat was to commence in July 1988, and the defence might raise the tape
erasure issue there. Jardine requested that CSIS be asked “…again whether
they can answer the questions posed” and, if not, who the witness would be to
testify on behalf of CSIS that the questions could not be answered.906 The RCMP
transmitted Jardine’s letter to CSIS on June 20, 1988.907
Meanwhile, CSIS HQ personnel met with CSIS legal counsel Harry Wruck on
June 14, 1988. Wruck stated that, in his opinion, Jardine’s hope was that CSIS
would admit that it was an error not to retain the Parmar Tapes which were still
in existence after the bombing. Wruck explained that, if CSIS did not admit a
mistake, Jardine hoped that the Court would find that one was made, since the
alternative, in Jardine’s view, was that “…the Court will find that CSIS willfully
destroyed evidence that would clear the defendant through an abuse of
process.”908
On June 22, 1988, Bennett wrote to Wruck in response to several questions that
had been raised about the Parmar Tapes in early May 1988. Bennett’s responses
set out familiar CSIS themes, focusing on the differences between CSIS’s
mandate as an intelligence agency and the way that law enforcement agencies
worked. In response to why CSIS had not seen fit to retain information and
tapes falling within its own mandate of political threats, Bennett wrote that,
for CSIS’s purposes, retention requirements are met by retaining translators’
notes, verbatim transcripts and/or final reports compiled from the transcripts.909
Bennett pointed out that the conditions under which CSIS was operating
905
906
907
908
909
Exhibit P-101 CAF0175, p. 1.
Exhibit P-101 CAF0175, pp. 1-2.
Exhibit P-101 CAA0656(i).
Exhibit P-101 CAD0121, p. 1.
Exhibit P-101 CAD0124, p. 4.
�Chapter IV: CSIS/RCMP Information Sharing
immediately after the Air India and Narita bombings had to be borne in mind.
He noted that Parliament, following the recommendations of the McDonald
Commission, had decided to separate security intelligence work from criminal
investigations. CSIS information was to be used as intelligence only. He specifically
cited the SIT Group instruction issued by Archie Barr in April 1984 that called for
the removal of all facilities on CSIS premises for the collection of information for
evidentiary purposes as proof of CSIS’s “intelligence only” mandate. Notably, the
authority of Barr’s memorandum was later challenged by the Solicitor General’s
office, which raised doubts that a decision of the SIT Group could be used to
modify a Ministerial direction.910 While this challenge called into question the
basis upon which CSIS justified the Parmar Tape erasures, it does not appear
that Jardine was notified.
On June 23, 1988, Bennett provided answers to Jardine’s latest questions.911 He
described the functions of those responsible for coordinating and analyzing the
Sikh information, and discussed the nature of the ongoing analysis performed
from the intelligence reports.912 He specified that the post-bombing analysis
was done on an ongoing basis, and that tapes were not retained for the purpose
of performing a complete analysis, as it was thought that this could be done on
the basis of the reports. Bennett also reiterated that CSIS could not determine
the date of the erasure of the individual Parmar Tapes.913
Nevertheless, on June 28, 1988, a chart was transmitted to the RCMP containing
a list of approximate dates of erasure based on the dates when the tapes were
translated and on the policy of retention for 10 to 30 days.914 A contemporaneous
briefing note to Bennett provides some insight into CSIS thinking at the time.
It states that, having granted the RCMP Task Force access to the CSIS personnel
who had been involved in the review of the Parmar Tapes at the time of the
bombings,915 CSIS felt that it had “…successfully laid the TAPP policy issue to
rest.” Despite this, CSIS expected that Jardine would continue to be unsatisfied
with the decision to erase the tapes “…as a result of his hindsight review of the
intercept logs and reports.” 916
The briefing note did raise a new concern about CSIS’s justification for the
Parmar Tape erasures. CSIS found a memorandum dated February 18, 1985
from Jacques Jodoin, Director General, Intelligence Communications and
Warrants, at the time, which called for retention of tapes when a verbatim was
prepared.917 This instruction was problematic, as the RCMP Task Force members
and Jardine had been asserting in their interviews with CSIS personnel that the
tapes of certain conversations that had been reported verbatim by CSIS should
910
911
912
913
914
915
Exhibit P-101 CAF0260.
Exhibit P-101 CAF0221.
Exhibit P-101 CAF0221. See also Exhibit P-101 CAD0126.
Exhibit P-101 CAF0221, pp. 3-4.
Exhibit P-101 CAA0658.
The investigators, David Ayre and Ray Kobzey, and management, J.S. Francis, R.W. Smith and K.G.
Osborne.
916 Exhibit P-101 CAA1032, p. 1. The acronym TAPP stands for Technical Aids Policies and Procedures.
917 See Section 4.3.1 (Post-bombing), Tape Erasure.
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have been retained. The CSIS BC Region personnel interviewed had disagreed
that the conversations met the threshold of “…significant subversive activity,”
and therefore denied that retention would have been justified. However, the
briefing document noted that this position was in direct contradiction with
Jodoin’s memorandum.918
The October 1988 Meeting
On September 7, 1988, Jardine wrote to the RCMP to advise that a decision had
been rendered in London providing for Reyat’s rendition to Canada to stand
trial in the Narita matter. He noted, however, that “…on the CSIS issues, it would
appear we have made little or no progress.” He therefore requested that a
meeting be arranged in Ottawa with the appropriate persons to decide on the
next steps, since he felt that the evidence available so far was not credible and
would not be found credible by the Court.919 Jardine noted:
We are concerned about the possible impact on our case and
our position should be predetermined to control the potential
damage and minimize its impact on the trial and in the public
forum.920
The RCMP made arrangements in preparation for the meeting, which was to
bring to the table representatives of CSIS, the AG BC, the RCMP and the DOJ.921
RCMP Deputy Commissioner Henry Jensen initially expressed an interest in
being present and requested that senior personnel from CSIS also attend, as
in his view, “…the lesser levels are the problem so there is no point in trying to
work it out there.”922 In the end, Jensen could not attend,923 but the meeting
proceeded as planned on October 4, 1988, with six CSIS representatives, three
RCMP representatives and seven DOJ lawyers, including CSIS counsel and
counsel representing the Government in the civil lawsuit launched by the
families of the Air India victims.924 Jardine provided an update on the status of
the case and explained the purpose of the meeting. He indicated that, though
the cooperation that had followed the October 1987 meeting had allowed him
to receive a great deal of information from CSIS, the current situation was one
of a lack of communication. He indicated that further dialogue was necessary
to preclude “…the continued lack of understanding exhibited by the responses”
received from CSIS to recent questions transmitted via the RCMP.925
Several issues were discussed and some were resolved, or at least appeared to
be. Reyat was expected to be returned to Canada in March 1989, if his appeal
on the rendition was not successful. The AG BC had to prepare a package for
918
919
920
921
922
923
924
925
Exhibit P-101 CAA1032, pp. 1-2.
Exhibit P-101 CAF0176, p. 1.
Exhibit P-101 CAF0176, p. 2.
Exhibit P-101 CAA0671, CAA0673.
Exhibit P-101 CAA0673, p. 2.
Exhibit P-101 CAA0676.
Exhibit P-101 CAA0707(i), p. 2.
Exhibit P-101 CAF0177, pp. 1-2.
�Chapter IV: CSIS/RCMP Information Sharing
disclosure to the defence upon Reyat’s return, and Jardine explained the AG BC’s
policy to disclose “…all relevant material which the accused may use as relevant
to a defence or which the accused may use as relevant to the investigation of
the investigation.” In Reyat’s case, the disclosure package would include CSIS
information. It was agreed at the meeting that the AG BC would meet with the
DOJ counsel in the civil litigation and with CSIS officials to review all of the CSIS
materials and prepare a disclosure package that would be provided both to the
plaintiffs in the civil litigation and to Reyat in the criminal prosecution.926
On the merits of the tape erasure issue, spirited exchanges took place, with CSIS
counsel objecting strenuously to the analysis in the memoranda prepared by
Jardine and McMeans and maintaining that there was nothing in the intercepted
material that connoted “…significant subversive activity.” CSIS counsel advised
that this would be CSIS’s official position and the position taken by CSIS witnesses.
The positions of the parties in the civil litigation and the Narita prosecution were
discussed, and Jardine pointed out to CSIS counsel that “…a defensive hostile
attitude” would be of no assistance to the Crown in the criminal prosecution, to
the DOJ in the civil litigation, or to CSIS in the preservation of its public image
when the information was revealed publicly.927 Jardine emphasized the object
of the meeting:
The point of the October 4, 1988, meeting was to establish
lines of communication and positive dialogue with a view to
developing strategy to lead evidence in the most favourable
light in both the criminal and civil cases.928
Jardine explained the attacks that the defence was anticipated to make in the
Reyat prosecution, noting that, because the erasure of the Parmar Tapes was
disclosed on public television in December 1987, when CSIS Director Reid
Morden admitted it had taken place, the defence would most likely raise the
failure to retain evidence. This would require the Crown to present evidence
about the reasons for failing to retain the tapes and the good faith of CSIS
throughout the erasure process. This, in turn, would require an examination of
the information which was in CSIS’s possession at the time.929
In the end, it was decided that CSIS’s position on whether the translators would
testify would have to be the subject of further discussions, as CSIS would take
no firm position until the defence position was ascertained. In the meantime,
other avenues to avoid the necessity of their testimony would be explored.
Explanations were to be provided by CSIS about whether BC Region Director
General Randy Claxton had received a request to preserve the Parmar Tapes
during a conversation with RCMP Supt. Lyman Henschel shortly after the
bombing, as well as about Mel Deschenes’s early return from Los Angeles
926
927
928
929
Exhibit P-101 CAF0177, pp. 3, 9.
Exhibit P-101 CAF0177, pp. 4-5, 8.
Exhibit P-101 CAF0177, p. 5.
Exhibit P-101 CAF0177, pp. 6-7.
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immediately before the bombing.930 Finally, at least six CSIS witnesses would
have to testify about the timing and reasons for the erasure of the tapes, but
further discussions were to be held once the witnesses were identified.931
Overall, Jardine felt at the time that the meeting was successful in that “…the
logjam had been broken and much progress had been made.” According to him,
it was clear from the previous correspondence that the respective positions of
the various agencies involved had not been understood in the past.932
Immediately after the meeting, Jardine reviewed over 200 pages of CSIS
material with DOJ counsel and a CSIS representative. Agreements were reached
about some pages, paragraphs and information which would be removed
or blacked out in the package that would be provided to the defence.933 On
October 6, 1988, CSIS advised that it would agree to allow the dates of reports
to be disclosed, but requested that the page numbering be removed from the
package disclosed to the defence, as it would allow Reyat’s counsel to see that
pages had been removed and would make it more likely that he would request
access to this material.934 In the end, it was agreed that page numbers had to
remain because of concerns related to civil disclosure issues.935 CSIS noted that,
like Jardine, the Service felt that the October 4th meeting was “…successful in
clearing up certain misunderstandings between the RCMP, CSIS and the B.C.
Crown Attorney.”936
However, though an initial disclosure package was prepared in the fall of 1988
and the winter of 1989,937 Jardine still did not obtain the complete information he
was looking for from CSIS until 1991.938 Additional information and documents
continued to be requested and provided. CSIS advised in late October 1988 that
there were errors in its earlier chart of approximate erasure dates for the Parmar
Tapes and corrected some of the information.939 In November 1988, Jardine had
to clarify the type of statements he needed from CSIS witnesses, explaining that,
to date, the correspondence provided by CSIS had “…generated a corporate
response rather than the individual witness statements the prosecution sought.”
Jardine asked for individual statements about the witnesses’ personal knowledge
and recollection.940 In March 1989, Jardine wrote to the RCMP to request that
CSIS be reminded about its undertaking to provide these statements, as he
had learned from DOJ counsel that statements were taken from the employees
involved in December 1988.941 In testimony, Jardine explained that he did not
receive the witness statements he needed for another two years.942
930 Exhibit P-101 CAF0177, p. 10; See also Section 4.3.1 (Post-bombing), Tape Erasure and Section 1.8 (Prebombing), Rogue Agents (Deschenes).
931 Exhibit P-101 CAF0177, p. 10.
932 Exhibit P-101 CAF0177, p. 10.
933 Exhibit P-101 CAA0708(i).
934 Exhibit P-101 CAA0708(i), p. 2.
935 Exhibit P-101 CAA0710, p. 1.
936 Exhibit P-101 CAA0708(i), p. 2.
937 See Exhibit P-101 CAA0710, CAF0179, CAF0181, CAF0224, CAF0225, CAF0226, about the
discussions which took place during this process.
938 Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5754-5755.
939 Exhibit P-101 CAA0713.
940 Exhibit P-101 CAF0182, p. 1.
941 Exhibit P-101 CAA0732.
942 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5756.
�Chapter IV: CSIS/RCMP Information Sharing
In 1989, Jack Hooper was transferred from CSIS HQ to the BC Region in order
to actively oversee the CSIS disclosure that was to be made in connection with
the Reyat trial. The process at the time involved a “…comprehensive review of
all BC Region’s holdings in respect of Reyat and associates.” BC Region was the
principal repository for the information involved in the trial and so the majority
of the work was to be done there. Hooper had a number of dedicated full-time
personnel reviewing file holdings and identifying material for disclosure to the
RCMP. During that process they would also flag sensitive material. The teams
would also inform CSIS HQ of the disclosure, which enabled HQ to conduct
damage assessments for the sensitive information released in support of the
Reyat trial.943
A disclosure package was provided to the defence on December 20, 1989.944
In August 1990, Reyat’s counsel requested disclosure of the edited portions of
the CSIS materials, as well as of the transcripts and tapes of “…all intercepted
communications referred to in CSIS materials.”945 Jardine responded that, as he
did not have access to the edited portions of the CSIS materials, he could not
provide them to defence counsel. As for the request for transcripts, he advised
that the notes or “gist translation” were already provided in the disclosure
package and that, to his knowledge, there existed no transcripts of the Parmar/
Reyat communications intercepted by CSIS. Finally, in response to the request
for tapes, Jardine noted that he had learned, as a result of media disclosures in
1987 which were subsequently confirmed by letter, that the tapes had been
erased.946
The Reyat Trial
Inderjit Singh Reyat’s trial began in September 1990 and the Crown presented
its evidence until the end of the year.947 While the trial was proceeding, the
defence continued to make disclosure requests about the CSIS information. An
RCMP member who provided information to Jardine in September to assist in
responding to those requests noted that CSIS had not authorized the release of
the 54 Parmar Tapes remaining in existence as part of the disclosure package,
and that the tapes could not be disclosed beyond the RCMP and the AG BC
without CSIS’s consent.948 Disclosure of those tapes was ordered by Justice
Raymond Paris, who was presiding over the trial, following a disclosure motion
by the defence.949
In October 1990, Jardine was advised that the defence would be bringing an
abuse of process motion at the close of the Crown’s case. He advised the RCMP
that the process would most likely “…not cast CSIS in a favourable light” and
would “…reflect a certain level of incompetency.” Jardine also advised that
evidence would have to be presented about the RCMP’s efforts to secure evidence
943
944
945
946
947
948
949
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6219-6220.
Exhibit P-101 CAF0255, p. 2.
Exhibit P-101 CAA0774.
Exhibit P-101 CAA0775, p. 1.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5756.
Exhibit P-101 CAF0227, p. 3.
Exhibit P-101 CAF0255, pp. 6-7.
507
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about the Parmar Tapes over the years, and that once this area was opened, he
expected it would “…eventually lead to the political arena as to who knew what,
when and what they did about it.”950 Jardine suggested a high-level meeting
with CSIS and RCMP representatives in order to keep all involved informed of
the Crown’s planned strategy in the response to the abuse of process motion.951
He indicated that a representative from the Solicitor General’s office should
attend, as a policy decision maker from that office would most likely have to
testify in the proceedings about CSIS’s tape destruction policy.952 However, the
Ministry wanted to avoid the appearance of such a witness.953
Meanwhile, the RCMP continued to seek additional information and documents
from CSIS to enable Jardine to prepare for the response to the abuse of process
motion. On November 21, 1988, the RCMP wrote to CSIS to request witness
statements from six of the BC Region CSIS employees involved in the processing
of the Parmar Tapes. The RCMP also inquired about identifying a senior CSIS
official who could testify about how the tape retention/destruction policy was
formalized as a CSIS policy.954
Tensions were rising as the interagency meeting, scheduled for November
24, 1990, approached. On November 16th, Ian MacEwan, who had replaced
Bennett as DG CT, prepared a memorandum outlining the history of the CSIS
tape erasure policy and of its application to the Parmar Tapes. He then reviewed
the explanations provided by CSIS and the statements of the CSIS employees
involved, indicating that the Service made numerous attempts to provide
explanations and clarifications, but that confusion remained.955 MacEwan
commented:
In spite of the Service’s best efforts, I doubt that the Crown,
and possibly the RCMP to this day “accept” the reasons for,
and the application of the Service’s tape retention/destruction
policy. I think that this lack of acceptance has nothing to do
with shortcomings in their comprehension abilities, nor in the
clarity of the explanation that has been delivered. Rather, I am
of the opinion that there are ‘none so blind as those who will
not see’.
I think it apparent that the BC Crown Attorney’s office is
looking for a ‘fall guy’ in the event the Reyat prosecution
ultimately fails. This belief is reinforced in Attachments O and
P, where the suggestion is made that the tapes were destroyed
as a result of a CSIS ‘mistake’.”956 [Emphasis added]
950
951
952
953
954
955
956
Exhibit P-101 CAF0259, p. 1.
Exhibit P-101 CAF0186, CAF0233, CAF0234.
Exhibit P-101 CAF0186, p. 1.
Exhibit P-101 CAD0146, p. 7.
Exhibit P-101 CAA0720(i), pp. 1-2.
Exhibit P-101 CAD0146, p. 5.
Exhibit P-101 CAD0146, pp. 5-6.
�Chapter IV: CSIS/RCMP Information Sharing
MacEwan then went on to state that “CSIS did NOT make a mistake,” but only
followed established policy. He indicated that admitting a mistake would have
left the Service open, “…once again, to accusations of operating without proper
control and management” which would then be cited as the reason for the
failure of the Reyat prosecution. As a result, MacEwan suggested that CSIS take
the position at the upcoming meeting that the Crown “…MUST, no matter the
cost, demonstrate to the Court that the Service did nothing wrong.”957
At the Inquiry, Warren testified that he did not agree with MacEwan’s position
and felt that, to some extent, MacEwan’s suggestions were inappropriate.958
The RCMP, in a briefing note dated November 21, 1990, noted that there would be
obvious difficulties with the CSIS evidence indicating that the Parmar Tapes were
erased pursuant to policy because they contained no indication of significant
subversive activity, especially since some of the intercept information provided
to the RCMP, that had been used in support of applications to intercept private
communications, indicated that Parmar and others were involved in activity
suspected to be related to the Narita explosion. The Force noted that Jardine
would attempt to cast the RCMP’s effort to obtain information and evidence in
a positive light in response to the abuse of process argument, but that there was
“…definite potential for CSIS to endure a negative image.”959
Jardine, in a legal memorandum dated November 21st analyzing the anticipated
Crown response to the abuse of process argument, noted:
The facts are not clear. The administrative system in the
Canadian Security Intelligence Service does not allow the
Service to ascertain exactly when the tapes were erased, nor
does it allow them to ascertain who determined there was no
significant subversive activity.960
Jardine hoped to be able to show that the destruction of the Parmar Tapes had
been inadvertent and not done for an ulterior purpose. At the time, he still did not
know whether CSIS would object to the disclosure of its policies and procedures
in Court – an objection he felt would be detrimental to the Crown’s case – and
he still required answers to a number of questions about the witnesses who
would testify on behalf of CSIS.961 In an agenda he prepared for the November
24th meeting, Jardine noted that the position of the Crown in response to
the abuse of process argument would have to be that administrative policy,
translation delay and the administrative system, structure and procedures at
CSIS “…precluded discovery of overt criminal activity or significant subversive
activity” until after the Parmar Tapes were erased.962
957
958
959
960
961
962
Exhibit P-101 CAD0146, p. 6 [Emphasis in original].
Testimony of James Warren, vol. 48, September 19, 2007, p. 5901.
Exhibit P-101 CAA0798(i), pp. 1-2.
Exhibit P-101 CAF0240, p. 2.
Exhibit P-101 CAF0240, pp. 21-23.
Exhibit P-101 CAA0800, p. 2.
509
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The meeting took place as planned on November 24, 1990. As a result of the
discussions held, CSIS provided a list of personnel involved in the processing
of the Parmar Tapes and allowed RCMP investigators to conduct interviews.963
The CSIS representatives who attended the meeting made it clear to Jardine, as
had been outlined in MacEwan’s memorandum, that the Service would take the
position that no mistake had been made in erasing the Parmar Tapes. Jardine
testified at the Inquiry that at that time, he had updated materials based on
charts prepared by CSIS which indicated dates of erasure in July 1985 for many
of the conversations considered potentially important in Reyat’s case. The
prosecution team had decided that it would argue that, given the facts known
in July 1985, there was nothing that would justify retention of the intercept “…
for the purposes of Inderjit Singh Reyat (note Parmar is different).”964
Jardine explained that Reyat’s position was different from Parmar’s, since there
was much inculpatory evidence against Reyat, including forensic evidence
gathered in Narita, and Reyat had made a confession about his involvement
in testing explosive devices for Parmar. Under the circumstances, the Crown
could argue that any conversations on the tapes would have incriminated
and not exonerated Reyat, such that there was no factual foundation for the
defence’s abuse of process allegation. As there was no real evidence against
Parmar, the impact of the tape erasure in case he was eventually charged might
well be different, especially since he was the actual target of the CSIS intercept.
However, as far as the Reyat prosecution was concerned, Jardine was ultimately
convinced that the defence attack “…should not impact” the prosecution. In any
event, the Crown’s argument would be that the erasure was done innocently in
July 1985.965
In December 1990 and January 1991, the RCMP interviewed many of the CSIS
employees involved in the processing and erasure of the Parmar Tapes and
prepared witness statements in anticipation of the abuse of process motion.966
In January 1991, the Reyat trial was adjourned until February 18, 1991, at
which time the defence was expected to present its abuse of process motion.
On January 22, 1991, CSIS wrote to the RCMP to express concern about the
materials to be disclosed to the defence in this context. The Service requested
that no CSIS witness statements or “will says” be disclosed to the defence until
they were reviewed by CSIS HQ, and asked to receive a copy of the intended
disclosure package.967 On January 24, 1991, the RCMP responded, explaining
that the December 1990 and January 1991 statements had not yet been
provided to Jardine. The Force indicated that the defence had not yet filed its
motion, and that disclosure would not be made until the content of the motion
was known.968
963
964
965
966
967
968
Exhibit P-101 CAF0250.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5758-5759, 5761-5762.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5759-5760.
Exhibit P-101 CAF0242, p. 1.
Exhibit P-101 CAF0263.
Exhibit P-101 CAF0242, p. 1.
�Chapter IV: CSIS/RCMP Information Sharing
On February 5, 1991, counsel for Reyat transmitted a Notice of Motion for a
judicial stay of proceedings to Jardine.969 On February 8, 1991, the RCMP wrote
to CSIS to advise that, now that the motion had been filed, the Crown would
be disclosing to the defence a booklet of 10 witness statements that had been
provided to Jardine in 1989 for disclosure purposes. As for the most recent
RCMP interviews of CSIS personnel, the investigators were still completing their
interviews and would be turning over all of the notes and statements to Jardine
shortly. The RCMP promised to advise CSIS if Jardine felt that these materials
had to be disclosed to the defence.970 The 1989 booklet of witness statements
was disclosed to the defence on February 12, 1991.971
On February 14, 1991, the RCMP wrote to CSIS again, attaching 18 witness
statements obtained between December 1990 and February 1991 by its
investigators. The Force advised CSIS that the statements were being provided
to Jardine, and asked the Service to advise of any information contained in
them which CSIS would object to being disclosed to the defence “…should that
become a requirement.”972 Following conversations with Jardine, the RCMP
learned that he intended to disclose the additional materials to the defence on
the following day, and advised CSIS verbally when the package was delivered.973
In the cover letter accompanying the copies of the statements sent to Jardine,
the RCMP noted that the latest interviews had revealed that the document
provided by CSIS with approximate erasure dates might be incorrect, since the
CSIS monitors had indicated that, rather than waiting 10 days after the tapes
had been processed, they generally erased them 10 days after the recording
date.974
Having received the information contained in the latest witness statements,
and all the other information he obtained from CSIS, Jardine was asked at
the Inquiry whether he was able to conclude on that basis that all the Parmar
Tapes had been listened to prior to being erased. His answer was: “I don’t
know.” Jardine explained that until the very end of the proceedings, there was
always information outstanding that he thought CSIS could provide and did not
provide.975 He testified:
MR. JARDINE: Sir, that continued right to the close of the
Crown’s case. We still did not know exactly what evidence
would be tendered from the Canadian Security Intelligence
Service until the evidence was tendered at trial.976
On February 15, 1991, CSIS advised the RCMP that it had no objection to the
disclosure of the most recent CSIS witness statements to Reyat’s counsel.977 The
969
970
971
972
973
974
975
976
977
Exhibit P-101 CAF0244.
Exhibit P-101 CAF0246, pp. 1-2.
Exhibit P-101 CAF0255, p. 8.
Exhibit P-101 CAF0249.
Exhibit P-101 CAF0248, p. 1.
Exhibit P-101 CAF0250, p. 2.
Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5742, 5763.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5742.
Exhibit P-101 CAF0251.
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18 statements were disclosed to the defence on the same day.978 The Crown
made a decision not to call any of the CSIS witnesses, but to let the defence call
the witnesses and to cross-examine them.979 The defence conducted its own
interviews with some of the CSIS witnesses and advised Jardine that the attack
would be based on the allegation that the tapes were erased in bad faith by
CSIS and that they might have contained evidence that might have assisted
the defence.980 On February 26th, the Court ordered CSIS to disclose the Parmar
warrant to defence counsel, who then learned for the first time that the Parmar
intercept continued until 1990, whereas the material previously disclosed only
extended to July 1985.981
On March 5, 1991, after only a few of the CSIS witnesses had testified, counsel
for Reyat read into the record a 30-paragraph document containing the
admissions of facts on which he would rely for his abuse of process motion. He
then indicated that he would not be presenting other evidence.982 As the Crown
did not present evidence,983 most of the CSIS witnesses who had provided
statements did not testify.984 The admissions of fact recounted the extent of the
disclosure received by the defence throughout the proceedings, documented
the disclosure requests and the responses received and insisted on the fact that
counsel had only learned recently about the ongoing interception of Parmar’s
communications by CSIS during the last six years.985
Ultimately, Justice Paris accepted the Crown’s arguments and dismissed the
defence motion for a stay of proceedings.986 He stated:
As to the erasure of the tapes, it is clear that that occurred
strictly as a result of the then-existing administrative routine.
There was obviously no question of improper motive in that
regard.987
On May 11, 1991, Justice Paris found Inderjit Singh Reyat guilty of manslaughter
for his role in assembling the bomb which exploded in Narita.988
Conclusion
In the end, the Reyat prosecution was successful. After much correspondence,
many requests leading to unresponsive answers, followed by further requests,
978
979
980
981
982
983
984
985
986
987
988
Exhibit P-101 CAF0251, CAF0252.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5757; Exhibit P-101 CAF0248, p. 1.
Exhibit P-101 CAF0253.
Exhibit P-101 CAF0255.
Exhibit P-101 CAF0255, p. 1.
Exhibit P-101 CAF0255, p. 1.
See Exhibit P-101 CAF0255, p. 12, CAF0256.
Exhibit P-101 CAF0255.
Exhibit P-101 CAA0808; See also Testimony of James Jardine, vol. 47, September 18, 2007, p. 5760.
Exhibit P-101 CAA0808, p. 2.
R. v. Reyat, 1991 CanLII 1371 (BC S.C.).
�Chapter IV: CSIS/RCMP Information Sharing
heated discussions and high-level meetings, CSIS ended up providing most
of the information sought by Jardine. In fact, CSIS would later point out that
none of the “doom and gloom” predictions made by the BC Crown came to pass
and that Reyat’s conviction was a sign of success in the RCMP/CSIS relationship.
Grierson testified that CSIS declassified material and provided the defence with
“…five boxes of highly sensitive reports.” He indicated that when the problem
of full disclosure came to a head, “…CSIS disclosed information to the provincial
Crown, and indirectly to the RCMP, of issues that originally we wanted to
protect.”989 This was largely driven by the particular circumstances of the Air
India case, which was viewed as a “special case” by CSIS.990 However, despite the
exceptional circumstances of the case, it took years of efforts and debates to
achieve the “success.”
When asked about comments he made that the CSIS cooperation and disclosure
in the Reyat case was unprecedented, Jardine stated:
MR. JARDINE: Mr. Brucker, timing is everything. The
unprecedented disclosure took place in 1991, sir.
MR. BRUCKER: All right.
MR. JARDINE: It did not take place in 1985.991
Delay in obtaining necessary information, whether for the purpose of introducing
it into evidence as part of the Crown’s case or for the purpose of making full
disclosure to the defence pursuant to constitutional obligations, can have
an impact on the prosecution. As Jardine explained, “…time doesn’t usually
help prosecutors,” because “…it doesn’t help the witnesses.” The less fresh the
events are in the witnesses’ minds, the more difficult the prosecution will be.992
Obtaining information in a timely manner is important for the prosecution, and
it also prevents the possibility of defence attacks on the grounds of untimely
disclosure.
The difficulties experienced by Jardine in obtaining disclosure of CSIS information
illustrate the difficulties that can be encountered in converting intelligence into
evidence. Some of those difficulties are inherent in the nature of the functions
of intelligence agencies, others are not. In this case, CSIS’s initial reluctance to
disclose materials and to provide information and complete explanations was
not on the whole a necessary consequence of the nature of the Service’s work.
The fact that by 1991, CSIS ended up providing most of the information that had
been requested since 1986 shows that the material was in fact capable of being
provided without jeopardizing national security. The reasons why it took so long
989
990
991
992
Testimony of Mervin Grierson, vol. 75, November 14, 2007, pp. 9480-9481.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5805.
Testimony of James Jardine, vol. 47, September 18, 2007, p. 5768.
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and required such extraordinary efforts are to be found, in part, in what appears
to be a “turf war.” Misunderstandings and a lack of communication were often
observed – for example, when CSIS and the RCMP argued about whether the
initial 1986 request had, by agreement, been put on hold for a year and a half.
Also, because of the lack of a uniform understanding of the tape erasure policy
at CSIS and because of the inconsistency in its application, CSIS had difficulty
providing explanations about its own practices and needed to conduct an
internal investigation in order to understand how the events leading up to
the erasure of the Parmar Tapes had unfolded.993 More fundamentally, CSIS’s
understanding of its mandate and of the requirements of criminal prosecutions,
coupled with an attitude of defensiveness in the face of criticism directed at
the tape erasure episode, contributed to the delay and the difficulty. CSIS’s
tendency to provide narrow answers, and to advance broad National Security
Confidentiality (NSC) claims initially, was also evident throughout its dealings
with Jardine and contributed to the dysfunction.
Warren admitted in his testimony that relations with the BC Crown could have
been improved had CSIS had clearer policies to deal with the handling of
intelligence relevant to criminal matters, and better training of the operational
personnel on the policies that did exist.994 He felt that CSIS personnel at the
time lacked rigour in the examination of intelligence, and that this led to the
inconsistent responses to Jardine’s requests. Warren stated that more face-toface discussions might have eased the process and reduced the amount of
time it took to come to an agreement. However, he did note one remaining
and pervasive issue, “…how one squares the circle between evidence and
intelligence.” Warren felt that this was an intractable sort of problem that would
continue to arise.
CSIS appeared to perceive its role and mandate as one that prevented it from
providing information for use in a criminal prosecution; this was a view to
which CSIS adhered rigidly in the early years. Jardine challenged this view.
He noted that “…there is little value in gathering intelligence for intelligence
purposes.”995 Since the purpose of CSIS information is to inform government
so that action can be taken,996 Jardine felt that in the case of criminal offences
related to the security of the country, it was not contrary to CSIS’s mandate to
pass on its information to police in a form that would be useable for purposes
of prosecution:
The preservation and security of the “evidence” for potential
court purposes must also be considered. Does this change
the “mandate” of the Service? I submit it does not. The very
offences outlined in the legislation are of such a serious nature
they demonstrate the requirement for such an approach. The
fact the legislation provides the Service may call in the RCMP
993
994
995
996
See Section 4.3.1 (Post-bombing), Tape Erasure.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5903.
Exhibit P-101 CAA0836, p. 38.
Exhibit P-101 CAA0836, p. 38.
�Chapter IV: CSIS/RCMP Information Sharing
for the purpose of investigative assistance does not diminish
the need that the Service pass the information in a useable
form to the “police” investigative arm. If this was not the intent
at the time the civilian intelligence service was created now
is the time to change the perspective of those who have the
power to enable such policy changes.997 [Emphasis in original]
For Jardine, the most important issue in the discussions relating to the
availability of CSIS information for the Reyat prosecution was that “…there was
no understanding at the beginning and there was little understanding at the
end” by CSIS of the requirements of the prosecution or of the legal and ethical
obligations of the Crown prosecutor.998 CSIS often challenged the Crown’s
assessment of the relevance of its information for the prosecution, and initially
failed to understand that the information might be required for disclosure
purposes, even if the Crown did not intend to tender it as evidence.
In the initial stages, CSIS appeared reluctant to provide information, unless
it was convinced of the necessity of the information for the criminal process.
Without sufficient information about the legal issues involved, CSIS had
difficulty making the determination of what might be necessary, and constantly
requested specifics about the prosecution’s intentions. As Jardine later put it in
his 1991 presentation:
It is my view that CSIS should consider the development
of the Service to include the capacity to pass information,
intelligence and evidence to the appropriate police agency in a
form which will allow the police agency to use the information
in evidence gathering for prosecution. To do that the Service
must come to grips with the thorny issues created by the
disclosure requirements for full answer and defence in criminal
prosecutions.999 [Emphasis added]
Jardine testified that, throughout the course of his efforts to obtain information
from CSIS, the agency did not generally volunteer any information, and only
responded to precise questions. The Honourable Ronald (“Ron”) Atkey, the
former chair of the Security Intelligence Review Committee (SIRC) which had
the mandate to report about CSIS’s activities, also noticed this same tendency,
indicating that “…CSIS were very good at responding to your questions but only
to your questions.”1000 Jardine understood some of the CSIS concerns behind
this attitude, but felt that the prosecution’s need for information became more
urgent as time passed:
997 Exhibit P-101 CAA0836, p. 38.
998 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5772.
999 Exhibit P-101 CAA0836, p. 38.
1000 Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5969.
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MR. FREIMAN: Was it your experience throughout your
dealings with CSIS that questions were answered in a full,
broad way or that they were answered only to the extent of
the precise question and the precise words?
MR. JARDINE: I believe that the persons trying to answer
the questions that were brought to my attention during the
course of all of this period of time were providing information
pursuant to their policy and pursuant to their interpretation
of their Act and that the concerns that they had with respect
to the privacy interests of the targets, at least in their minds,
precluded them from being open. So it was not open to them,
at least in my understanding, to be voluntarily forthcoming. So
I understood that reticence and from whence it came and I was
sensitive to that – at least I tried to be sensitive to that – during
the course of 1986-1987 and certainly during 1988. It became
more urgent as we got to the abuse of process argument in
1990 and 1991.1001
The initial objections to disclosure and the NSC privilege claims were often very
broad, but these positions were regularly revised during the negotiations. In
the end, most of the requested information was released with few NSC claims,
making it clear that the initial positions adopted by the Service were not
necessarily based on an accurate evaluation of any harm to national security that
might have resulted from disclosure. At the very least, the CSIS perception and
attitude in this respect evolved, albeit slowly. In some respects, this Commission
has had a similar experience in dealing with the Attorney General of Canada’s
NSC claims on behalf of all government agencies involved.1002 Apparently, it
remains difficult for CSIS and other government agencies to make information
public, even when on closer examination, no risk to national security is found
to exist that might justify withholding the information. The reflex of making
broad NSC claims as an opening position seems slow to subside, even after
the lessons that should have been learned from the Reyat and the Malik/Bagri
prosecutions.
The fact that the information being sought by Jardine dealt with tape erasure,
an issue that had attracted significant public criticism and carried with it the
potential for civil liability for CSIS, did not do anything to simplify matters. The
Service was naturally protective of its own policy choices and practices, and this
prompted it initially to provide “corporate position” explanations in response to
Jardine’s inquiries rather than the detailed facts he needed for court preparation
purposes – facts that were eventually provided. Though the Government did
make a policy choice to prioritize the Reyat prosecution over its own litigation
interests, in some instances, the Service was openly concerned about the
impact of its discussions with the AG BC and the RCMP on its position in the civil
litigation, notably in its request that no reference be made to the “destruction of
evidence” in the correspondence.
1001 Testimony of James Jardine, vol. 47, September 18, 2007, p. 5713.
1002 See Volume One of this Report: Chapter II, The Inquiry Process.
�Chapter IV: CSIS/RCMP Information Sharing
Jardine undoubtedly faced what he perceived to be serious challenges in the
Reyat prosecution as a result of the CSIS tape erasure. Regardless of one’s view
on the legal significance of the tape erasure issue, it is difficult to understand
how it could have taken years for CSIS simply to provide the information and
documents that still existed, and to account for and explain its own procedures.
This delay and reluctance created unnecessary difficulty and led to a significant
expenditure of resources in the preparation for the Reyat prosecution. It also
provided a foretaste of the tape erasure issues that would bedevil the Bagri/
Malik prosecution.
4.4.2 The Air India Trial
Soon after the RCMP Air India Task Force was renewed, in late 1995, a decision
was made to “…proceed to prosecution” and “…leave the matter to the courts
and a jury,” whether or not “fresh evidence” was uncovered.1003 By November
1996, the RCMP had begun to have meetings with the BC Crown office. A
prosecution team was assembled and a review of the file began for purposes of
charge approval.1004
Ripudaman Singh Malik and Ajaib Singh Bagri were charged in connection
with the Air India and Narita bombings on October 27, 2000 and Inderjit Singh
Reyat was subsequently added as a defendant in June 2001. The proceedings
lasted almost five years in total. Reyat pleaded guilty to the manslaughter of
the Air India Flight 182 victims in 2003, and Malik and Bagri were both acquitted
in 2005.1005 CSIS information was introduced in evidence during the trial and
present and former CSIS investigators were called as witnesses.
Cooperation with CSIS in Trial Preparation
Extensive cooperation with CSIS was necessary in preparation for the trial. It
was clear early on that CSIS information would be required in the process, and
that much more information would need to be disclosed than even Jim Jardine
had envisioned during the Reyat trial in the Narita case, due to the changes in
the law following the landmark Supreme Court of Canada decision concerning
disclosure in R. v. Stinchcombe.1006 According to Deputy Commissioner Gary Bass,
who was in charge of the renewed RCMP Task Force, the extensive disclosure
obligations meant that a large amount of embarrassing information would
be disclosed, including “…thousands of pages of memos and telexes wherein
our Force and CSIS argue over the release of information between 1985 and
1990.”1007
Bill Turner was a member of the CSIS BC Region who had extensive experience
in the Sikh extremism investigation as a result of his previous positions as head
of the Sikh desk in both the BC Region and at HQ. In 1997, he became the CSIS
1003
1004
1005
1006
1007
Exhibit P-101 CAA0958, p. 2; Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7815-7816.
See Chapter V (Post-bombing), The Overall Government Response to the Air India Bombing.
R. v. Malik and Bagri, 2005 BCSC 350.
[1991] 3 S.C.R. 326.
Exhibit P-101 CAA0932, p. 4.
517
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representative at the Air India Task Force and began to work with the RCMP and
Crown counsel in advance of the trial. He became a “…fully integrated member
of the Task Force.”1008
On January 20, 1997, there was a significant meeting of the Crown, the RCMP
and CSIS. Turner was in attendance. The meeting focused on a review of the
case as it was understood at that point. The view was expressed that there
was a very strong case against a few individuals, including Ajaib Singh Bagri,
Inderjit Singh Reyat, Hardial Singh Johal, Ripudaman Singh Malik, Surjan Singh
Gill and the deceased Parmar.1009 There was also discussion of potential use
of CSIS information at trial. Other matters were discussed, including the need
for a “…good clean source who is willing to turn witness,” critical gaps in the
surveillance of Parmar, the validity of the Parmar Warrants, and destruction/
erasure of the Parmar intercept tapes,1010 as well as the difficulty in obtaining
statements from CSIS employees whose work was covert. This meeting appears
to have marked a turning point. Turner stated that, from then on, every issue was
discussed jointly amongst CSIS, the RCMP and the Crown. According to Turner,
this marked an evolution in the CSIS/RCMP relationship. It also marked a change
in the relationship between CSIS and the Crown. Unlike the situation which had
prevailed when Jardine was preparing for the Reyat trial, when communications
were always channelled via the RCMP, there was now frequent direct contact
between CSIS and Crown counsel. By 1999, Turner had moved into the Crown’s
office for the duration of the trial to be of greater assistance.1011
Defence Undertaking
A key mechanism employed in the Air India trial to facilitate the disclosure of
sensitive information was a defence undertaking. This mechanism allowed the
disclosure of CSIS material on the basis that defence counsel undertook not
to share that information with their clients.1012 This unusual arrangement was
the result of an attempt to resolve all disclosure issues prior to the start of the
trial in order to complete the trial with as little delay as possible and without
the interruption that would have resulted from CSIS resorting to objections to
disclosure under the Canada Evidence Act which would have had to have been
resolved in the Federal Court.1013
Turner explained how the decision to adopt the undertaking approach was
made.1014 He indicated that the defence announced early on that one of the
alternate theories they planned to present on behalf of the accused was that
it was the Government of India who was responsible for the bombing. In a
February 1996 memorandum that was disclosed to the defence, Bass noted that
1008
1009
1010
1011
1012
1013
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8269, 8271.
Exhibit P-101 CAB0913, p. 4.
Exhibit P-101 CAB0913, p. 5.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8270-8271, 8315-8317.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8323.
For more on the use of the undertaking see Volume Three of this Report: The Relationship between
Intelligence and Evidence and the Challenges of Terrorist Prosecutions.
1014 Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8323.
�Chapter IV: CSIS/RCMP Information Sharing
“…some serious concerns regarding possible Indian Government involvement”
remained, that this possibility had not been investigated in depth by either CSIS
or the RCMP, and that this could open the door for the defence to explore the
knowledge of the Canadian agencies about this matter.1015 When the defence
asked for disclosure of all information related to “…certain Government of India
individuals prior to the bombing,” CSIS took the position that providing the
material would endanger national security. Since neither side would budge,
Turner explained that there was a risk that the proceedings would be stayed
due to non-disclosure “…of what they said was clearly relevant material.”1016
Instead of litigating the stay of proceedings issue, all parties agreed to a process
that allowed defence counsel to view the material, with the vetting or redactions
lifted in order that they could satisfy themselves that the information was not
relevant and not needed as part of the defence at trial. The disclosure was
made on the condition that counsel would not reveal what they saw to anyone,
including their own clients. The accused persons agreed to this condition.
As a result of the undertaking, though there was other litigation relating to
CSIS information and methods, there was no litigation during the Air India trial
relating to objections to disclosure under the Canada Evidence Act and no need
to interrupt the trial to take such issues to the Federal Court. Turner testified that
this was a “band-aid” fix, and that it worked due to “…very capable, competent
defense counsel who went along with it.” He cautioned that he was quite sure
that this arrangement would not work in every instance.1017
Indivisibility of the Crown and the Kelleher Directive
At various times during the trial, Bagri argued that his Charter rights had
been violated as a result of a failure by CSIS to preserve and disclose certain
materials.1018 Based on Stinchcombe,1019 the general rule is that, in any criminal
case, the defence is entitled to disclosure of any relevant materials in the
possession of the Crown or the police. The Crown is therefore obliged to disclose
anything that it has, or that the police have, that is not clearly irrelevant. Where
materials have been destroyed, a legal test has been devised to determine
when their unavailability constitutes a violation of disclosure obligations.1020
The nature of the disclosure obligations, and of the legal test to be applied in
case of destruction, can vary significantly if the material is in the possession of
a third party rather than the Crown and the police.1021 In the Air India trial, this
raised the issue of whether CSIS was to be considered an “indivisible” part of
the Crown for purposes of disclosure obligations, or whether it was, for these
purposes, simply a third party.
1015
1016
1017
1018
1019
1020
1021
Exhibit P-101 CAA0932, p. 4.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8323-8324.
Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8324.
See R. v. Malik, Bagri and Reyat, 2002 BCSC 864 and R. v. Malik and Bagri, 2004 BCSC 554.
[1991] 3 S.C.R. 326.
R. v. La, [1997] 2 S.C.R. 680.
R. v. O’Connor, [1995] 4 S.C.R. 411.
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Initially, the Crown took the position that CSIS was to be viewed as a separate
entity, but ultimately conceded that it was subject to the full Stinchcombe
disclosure obligations in the circumstances of the case because of an “access
agreement” between CSIS and the RCMP.1022
In 1987, the Solicitor General, James Kelleher, issued what has become known
as “the Kelleher Directive,” which ordered the full cooperation of CSIS with the
RCMP in the “preparation of evidence” for an eventual prosecution in the Air
India case.1023 CSIS Director Ted Finn’s response stated:
I have directed that the full cooperation of the Service be
placed at the disposal of the RCMP in this regard and that all
information, that may possibly be relevant, is made available to
the RCMP to assist in its investigation.1024
Following the Crown’s concession, despite the fact that the Crown later
attempted to change its position, Justice Josephson ruled that the exchange
of correspondence between CSIS and the Solicitor General crystallized an
agreement between the agencies which gave the RCMP “…unfettered access to
all relevant information in the files of CSIS.”1025
Having found that the Crown was indivisible for the purposes of the Air India case,
Justice Josephson ruled that the destruction of CSIS materials would be judged
by the standards applicable to the destruction of materials in the possession
of the police. He also added in passing that “…all remaining information in the
possession of CSIS is subject to disclosure by the Crown in accordance with
the standards set out in R. v. Stinchcombe….”1026 This meant that, even if it had
been collected for a different purpose, everything in the possession of CSIS that
was related to the Air India bombing was part of the Crown’s material for the
purposes of the trial and needed to be disclosed to the defence.1027
Turner testified that the implications of the decision on indivisibility were
“devastating” for CSIS and resulted in a massive undertaking. CSIS “…had to
start from square one now” to try to document what had and had not been
disclosed over the past 17 years. In order to accomplish this, CSIS suspended its
training class and put together a team of 25 to 30 people working full-time on
the disclosure package. Turner stated that it was a “…far from perfect process,”
due to the fact that new recruits with no intelligence experience were making
the determination about what documents would be passed. It was a process
that Turner admitted led to mistakes in the vetting of information for National
Security Confidentiality concerns.1028
1022 R. v. Malik, Bagri and Reyat, 2002 BCSC 864 at para. 10.
1023 See Exhibit P-101 CAD0095 and Section 4.1 (Post-bombing), Information Sharing and Cooperation in
the Air India Investigation.
1024 Exhibit P-101 CAD0094, p. 3.
1025 See R. v. Malik, Bagri and Reyat, 2002 BCSC 864 at para. 10 and R. v. Malik and Bagri, 2004 BCSC 554
at paras. 4, 16-17.
1026 R. v. Malik, Bagri and Reyat, 2002 BCSC 864 at para. 14.
1027 Testimony of Bill Turner, vol. 66, October 25, 2007, p. 8321.
1028 Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8321-8322.
�Chapter IV: CSIS/RCMP Information Sharing
Parmar Tapes Revisited
The issue of the erasure of the Parmar Tapes was revisited during the Air India trial.
The Crown decided that the intercept tapes that remained in existence, as well as
the intercept logs for the tapes that were erased, could not be used as evidence
and therefore did not attempt to introduce them to support the prosecution.1029
Meanwhile, the defence brought a motion arguing that the destruction of the
Parmar Tapes violated Bagri’s Section 7 Charter right to disclosure. In contrast
to Justice Paris’s finding in the Reyat trial, Justice Josephson ruled, following
a concession by the Crown, that the erasures amounted to “unacceptable
negligence.”1030 However, no Charter remedy was awarded since both accused
were acquitted of all charges.1031
Destruction of Operational Notes
During the trial, Bagri also brought a motion arguing that the destruction by CSIS
of the notes and recordings for interviews with Crown witness Ms. E violated
his Charter rights.1032 Absent any concessions from the Crown this time, Justice
Josephson ruled that CSIS’s behaviour did amount to unacceptable negligence.
He accepted the evidence showing that the CSIS investigator involved, William
Dean (“Willie”) Laurie, was simply following his normal practice, but found that
“CSIS appears to have failed at an institutional level to ensure that the earlier
errors in the destruction of the Parmar tapes were not repeated.”1033 He noted
that a “…procedure should have been in place” at CSIS to preserve “…this clearly
relevant evidence for the criminal investigation.”1034
Challenge to the November 1985 Search Warrant
As had been the case in the earlier Narita trial, the evidence against Reyat in the
Air India trial rested in large part on the items seized at his residence in November
1985, pursuant to the warrant then obtained by the RCMP. The application
presented to obtain this warrant made reference to CSIS information, including
the Duncan Blast surveillance and information from the Parmar intercept logs.
In order to accommodate CSIS concerns, and at CSIS’s request, the application
did not name CSIS as a source of information and did not reveal the nature of
the materials to which the RCMP had access.1035 Instead, the Information to
Obtain sworn in support of the warrant application referred to the source of the
CSIS information as “…a source of known reliability, whose identity for security
reasons I do not wish to reveal at this time.”1036
1029 Exhibit P-101 CAA1086, p. 8; Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11214-11215.
1030 R. v. Malik, Bagri and Reyat, 2002 BCSC 864.
1031 For detailed examination of this issue, see Section 4.3.1 (Post-bombing), Tape Erasure and Section
4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective, as well as Volume
Three of this Report: The Relationship between Intelligence and Evidence and the Challenges of
Terrorist Prosecutions.
1032 See Section 1.3 (Post-bombing), Ms. E.
1033 R. v. Malik and Bagri, 2004 BCSC 554 at paras. 19, 22.
1034 R. v. Malik and Bagri, 2004 BCSC 554 at para. 21. See, generally, Section 4.3.2 (Post-bombing),
Destruction of Operational Notes.
1035 Exhibit P-201, paras. 46, 48-49, 53; Exhibit P-101 CAA0836, p. 23.
1036 Exhibit P-201, paras. 23, 46, 48, 53; Exhibit P-101 CAA0575(i), p. 6. See Section 4.4.1 (Post-bombing),
The Reyat Trial and the BC Crown Prosecutor Perspective and Section 4.1 (Post-bombing),
Information Sharing and Cooperation in the Air India Investigation.
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Before he pleaded guilty to reduced charges in February 2003, Reyat challenged
the validity of the RCMP search warrant. In his December 2002 ruling on this
motion, Justice Josephson found that the officer who swore the Information
to Obtain did not deliberately mislead the Justice of the Peace who issued
the warrant by concealing the identity of the source of the CSIS information.
He concluded that the Information clearly indicated that the source was
concealed for security reasons, allowing the issuing judge to inquire further if
necessary, and that it distinguished the concealed source from other sources
of information, such as human sources and RCMP wiretaps. Justice Josephson
added that, if he was wrong on this point, he still would find that the use of this
“deliberate deception” by the RCMP did not invalidate the warrant, since it was
a condition imposed by CSIS in order to allow the Force to use its information.
He noted that the RCMP was “…at the mercy of CSIS” and had little choice but to
accept the condition. Justice Josephson indicated that he could not assess the
reasonableness of CSIS’s insistence on concealing its involvement. He did add
that, as the Information was sworn during the early years of CSIS’s existence, and
since the Air India case was unique, the issue was both “unprecedented” and
“unlikely to re-occur.”1037
Though the November search warrant was held to be invalid for unrelated
technical reasons, Justice Josephson held that the evidence found at Reyat’s
house was admissible under the Charter.1038
Conclusion
The Air India trial preparation marked a new era of greater cooperation between
CSIS and the RCMP, though all issues were far from resolved.1039 Most importantly,
the cooperation between CSIS and the Crown improved significantly. Despite this
cooperation, however, the use of CSIS information in the courtroom remained
problematic. Numerous legal challenges resulted from CSIS’s involvement,
many of which could not be successfully defended. It is only due to exceptional
circumstances that a defence undertaking could be entered into and that this ad
hoc solution could prevent the disclosure issues from disrupting the trial even
further by requiring Federal Court litigation. Volume Three of this Report, The
Relationship between Intelligence and Evidence and the Challenges of Terrorist
Prosecutions, discusses the underlying difficulties in using CSIS information in
criminal prosecutions and proposes policy solutions for achieving longer-term
resolution of some of the issues encountered in the Air India trial.
4.5 Recent Cooperation and Information-Sharing Mechanisms
The mechanisms recently devised for the exchange of certain types of
information differ in some respects from the manner in which such information
was shared in the past.
1037 See R. v. Malik, Bagri and Reyat, 2002 BCSC 1731 at paras. 69-71.
1038 See R. v. Malik, Bagri and Reyat, 2002 BCSC 1731 at paras. 81-96.
1039 See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
�Chapter IV: CSIS/RCMP Information Sharing
CSIS appears to be showing a greater willingness to discuss some of its
operations with the RCMP, whether or not information relevant to a criminal
investigation has been uncovered. Meanwhile, the RCMP has apparently
adopted the motto of “less is more” rather than attempting to obtain and use
as much CSIS information as possible. Fearing unwanted evidentiary issues
if it were to rely on CSIS information, the RCMP tries to make as little use as
possible of such material. Once alerted to the existence of possibly relevant
information uncovered or likely to be uncovered by CSIS, the RCMP will attempt
to conduct its own investigation separately, relying as little as possible on the
CSIS information.
The aim of the “less is more” approach is for both agencies to avoid having to
deal with the implications of having to introduce CSIS information into evidence
or of having to disclose it to the defence in a trial. The Commission has serious
doubts about the effectiveness and utility of such a strategy.1040
National Priorities
The national priorities for counterterrorism, counter-proliferation and counterintelligence are set on a yearly basis by the Privy Council Office, with input from
CSIS as well as from other departments such as Foreign Affairs and the RCMP.
Priorities are first identified by the Government. CSIS, as well as other involved
organizations, then advises the Government on the status of those threats and
on other threats that it considers should be priorities. The Privy Council submits
the priorities to Cabinet, to be reviewed by the Cabinet Committee which is
chaired by the Prime Minister. When approved, the national priorities are then
transferred back to CSIS through the Minister of Public Safety as direction
from the Government. CSIS then sets its internal priorities at HQ based on that
direction.1041
These national priorities are general in nature and assist in the allocation
of resources. These may or may not be directly related to what the RCMP is
investigating. Assistant Commissioner Mike McDonell, in charge of National
Security Investigations at the RCMP, testified that, in a reversal of how the
priorities used to be set, in recent years the RCMP has been taking its strategic
priorities from CSIS.1042 Within these priorities, at the level of the investigation of
specific groups and organizations, the RCMP becomes much more involved.1043
New Structures
Integrated National Security Enforcement Teams
The Integrated National Security Enforcement Teams (INSETs) are RCMP units
located in major centres throughout the country and charged with preventing
1040 See Volume Three of this Report: The Relationship between Intelligence and Evidence and the
Challenges of Terrorist Prosecutions.
1041 Testimony of Luc Portelance, vol. 88, December 4, 2007, p. 11470.
1042 Testimony of Mike McDonell, vol. 95, December 13, 2007, p. 12628.
1043 Testimony of Luc Portelance, vol. 88, December 4, 2007, p. 11472.
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and disrupting national security offences in Canada.1044 The INSETs were formally
launched on April 1, 2002.1045
The INSETs are made up of members seconded from different agencies, including
federal partners such as the Canada Border Services Agency (CBSA) and CSIS,
and provincial and municipal police services, such as Peel Regional Police Force,
Toronto Police Services and the Vancouver Police Department. Lawyers from the
Department of Justice as well as from the Provincial Attorney General’s office
are also involved in the INSETs.1046
The INSETs remain RCMP units. They are subject to the RCMP chain of command
for national security investigations, operate within the structure of the RCMP
and are managed by RCMP officers. The members from other agencies who join
an INSET are seconded to the Force.
The majority of the RCMP national security investigations are conducted out of
INSETs in the major city regions of Vancouver, Toronto, Ottawa and Montreal.
In other jurisdictions, National Security Criminal Investigations Section
(NSCIS) units exist, but these units are not integrated with members of other
agencies.1047
Integrated Threat Assessment Centre
The Integrated Threat Assessment Centre (ITAC) was founded following
the release of the National Security Policy by the Government in 2004. A
Memorandum of Understanding signed between the National Security Advisor
and CSIS sets out the ITAC operating structure and the agencies it can deal with.
ITAC gains its authority from the CSIS Act.1048
The role of the Integrated Threat Assessment Centre (ITAC) is to centralize security
intelligence in the counterterrorism domain for the purposes of helping to “…
prevent and reduce the effects of terrorist incidents on Canada and its people,
both at home and abroad.”1049 ITAC is housed at CSIS, and incorporates members
from participating departments including CSIS, CSE, CBSA, Foreign Affairs,
the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC),
Transport Canada, Public Safety Canada, PCO and the RCMP. ITAC may also
include members with “specialized knowledge” from other federal government
departments as needed.1050
1044 Online: Royal Canadian Mounted Police <http://www.rcmp-grc.gc.ca/secur/insets-eisn-eng.htm>
(accessed February 11, 2009); Testimony of Jamie Jagoe, vol. 82, November 23, 2007, p. 10445.
1045 Testimony of Jamie Jagoe, vol. 82, November 23, 2007, p. 10505.
1046 Online: Royal Canadian Mounted Police <http://www.rcmp-grc.gc.ca/secur/insets-eisn-eng.htm>
(accessed February 11, 2009); Testimony of Jamie Jagoe, vol. 82, November 23, 2007, pp. 1044510446.
1047 Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12622-12623.
1048 Testimony of Daniel Giasson, vol. 89, December 5, 2007, pp. 11751-11752.
1049 Online: Integrated Threat Assessment Centre <http://www.itac-ciem.gc.ca/bt/rl-eng.asp> (accessed
February 11, 2009).
1050 Online: Integrated Threat Assessment Centre <http://www.itac-ciem.gc.ca/bt/rl-eng.asp> (accessed
February 11, 2009); Testimony of Daniel Giasson, vol. 89, December 5, 2007, pp. 11752-11753.
�Chapter IV: CSIS/RCMP Information Sharing
ITAC’s mandate is to “…produce comprehensive and authoritative threat
assessments on terrorism mainly in Canada, and make those analyses and
those assessments available to a wide range of leadership in the Government
of Canada,” as well as to international partners and first responders across
Canada.1051 ITAC assessments are also important for the development of threat
assessments for Canadian missions, interests, and persons abroad.
ITAC does not collect intelligence, but rather analyzes it. To that end, members
of ITAC review databases and finished threat assessment products from partner
agencies. ITAC applies its own analysis and produces its own threat assessment
products for release to relevant government departments.1052
ITAC today produces threat assessments relevant to the RCMP Protective
Services unit in charge of the safety of diplomatic missions and VIP persons in
Canada. This is a change from the time of the Air India bombing when these
threat assessments were produced by the CSIS Threat Assessment Unit with the
aid of the relevant desk at CSIS HQ.1053 CSIS still maintains a threat assessment
function, however its threat assessments are considered to be more long term,
with ITAC producing the more immediate TAs.1054
CSIS Intelligence Assessment Branch
The CSIS Intelligence Assessment Branch (IAB) conducts intelligence
assessments regarding threats to Canada, such as terrorism. The IAB sees these
intelligence assessments as distinct from threat assessments, emphasizing that
the intelligence assessments are focused on “the bigger picture” of how threats
are progressing or changing.1055 It is a strategic view, and the IAB distributes its
assessments on a need-to-know basis. On request, however, the IAB conducts
threat and risk assessments pertaining to the entire range of threats to a
particular government department, in conjunction with other agencies such as
the RCMP and the CSE.1056 ITAC and the IAB are housed in the same facilities and
work closely together.
RCMP Role in Threat Assessments
National Security Threat Assessment Section
The RCMP National Security Threat Assessment Section (NSTAS), which is
housed within the National Security Criminal Operations Support Branch,
monitors events and prepares threat assessments pertaining to criminal
threats that may impact Canada or Canadian interests abroad.1057 The role of
the Section is primarily to support protective operations, though on occasion
1051
1052
1053
1054
1055
1056
1057
Testimony of Daniel Giasson, vol. 89, December 5, 2007, p. 11750.
Testimony of Daniel Giasson, vol. 89, December 5, 2007, p. 11758.
Testimony of Kim Taylor, vol. 89, December 5, 2007, p. 11764.
Testimony of Daniel Giasson, vol. 89, December 5, 2007, p. 11774.
Testimony of Louise Doyon, vol. 96, February 14, 2008, pp. 12844-12855.
Testimony of Louise Doyon, vol. 96, February 14, 2008, p. 12846.
Exhibit P-101 CAA0335, p. 47.
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it will provide assistance to national security investigations.1058 The Section is
roughly equivalent to the P Directorate unit at Headquarters in 1985, which was
a non-operational unit that serviced the needs of its on-the-ground protective
operations across Canada. The primary clients of NSTAS are the RCMP Protective
Services and Major Events Branch, the Prime Minister’s Protection Detail Branch,
the International Operations Branch, and the Canadian Air Carrier Protective
Program (CACPP).1059 The assessments produced by the RCMP unit are described
as being “tactical” in nature, meaning that they are oriented towards assessing
specific intelligence regarding one event, person, or set of circumstances.1060
At the outset of the threat assessment process, the NSTAS opens an occurrence
file and tasks the divisional INSETs, or the NSCIS in jurisdictions where there is
no INSET, with providing information in support of the threat assessment. The
INSETs have their own dedicated threat assessment resources to accomplish
these tasks for the NSTAS.1061 The NSTAS also contacts CSIS, and will approach
other agencies such as DFAIT and Transport Canada, and request that they
provide any relevant information they may possess.1062 The goal is to make use
of an “all source” approach – that is, to look to all possible sources of information
when assessing a threat.
The limited evidence before the Inquiry showed that the RCMP still faces some
ongoing challenges in its Threat Assessment (TA) mandate, some reminiscent of
the issues observed during the period preceding the Air India bombing.
The focus of the NSTAS TA process has been described as centered on bringing
matters of potential criminality to the protective unit’s attention.1063 This
orientation is reminiscent of the unsuccessful RCMP attempts at distinguishing
“criminal intelligence” from “security intelligence” in the pre-bombing period,
and is difficult to understand. The protective mandate of the RCMP requires
that protectees be kept safe from harm – whether or not the harm arises from
criminality. According to Supt. Reg Trudel, the OIC of National Security Criminal
Operations Support Branch and head of the NSTAS, a NSTAS threat assessment,
despite its criminal focus, may “on occasion” mention a large gathering or
protest which could eventually have an impact on the safety and security of a
protectee.1064 Indeed, sensitive protective operations may require that measures
be put in place in response to a potential threat, even if the threat falls far short
of the threshold that might be required to launch a criminal investigation.
Especially given the placement of NSTAS within the national security structure,
it is unclear whether the focus on “criminality” affects the utility of RCMP threat
assessments for protective operations.
1058
1059
1060
1061
1062
1063
1064
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12801.
Exhibit P-101 CAF0717, p. 7.
Testimony of Reg Trudel, vol. 96, February 14, 2008, pp. 12836-12837.
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12820.
See Exhibit P-101 CAF0717, p. 8, for a chart describing the threat assessment process.
Testimony of Reg Trudel, vol. 96, February 14, 2008, pp. 12826-12827.
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12807.
�Chapter IV: CSIS/RCMP Information Sharing
Despite its stated focus on criminal aspects, the NSTAS is not viewed as a resource
by the criminal operations side of the RCMP. When an INSET begins to look at a
particular national security problem, it does not generally consult NSTAS to help
assist it in understanding any particular phenomenon. In fact, national security
operational units generally resort to the NSTAS in the course of an investigation
only if a target in the investigation is also a protectee. In such a case, NSTAS will
prepare a TA on that person and then provide it to the protective units to allow
them to respond appropriately.1065
NSTAS does not perform any ongoing analysis or monitoring of national security
threats, and acts proactively only to the extent that a domestic or international
incident may cause concern due to the potential impact on the protection of a
protectee or embassy.1066
Risk Assessment
The NSTAS members testified that they do not conduct risk assessments, but
rather attempt to produce “criminal threat assessments.” The threat assessments
generated specifically include the caveat that they are not intended to
direct protective security operations or measures,1067 making it clear that the
operational side of RCMP protective policing is free to provide the level of
protection it judges most appropriate, regardless of the threat level assigned in
the assessment.1068 NSTAS does no analysis of the vulnerability of the target or
of the impact that a threat may have should it come to fruition.1069
The current definitions of threat levels used by NSTAS contain terms that are
subjective and incapable of definition – reminiscent of the use of the undefined
and subjective term “specific threat” during the pre-bombing period. The
highest level of threat is the “imminent threat,” which is defined as a threat in
the “immediate future.” However, as explained by Trudel, to qualify under this
description, a threat would generally be received “…sometime during the event
or close to the event…. It’s again very subjective.”1070 “Imminent” also requires
that there be a “specific target.” Again, the level of particularity does not seem
reducible to a definition. Of note is the fact that the June 1st Telex1071 would not
have qualified as “specific,” and thus would not have been considered as an
“imminent” threat under the definitions currently in use, as corroborated by the
testimony of NSTAS members before the Commission.
In 1985, P Directorate did not incorporate risk analysis into its operations,
and threat levels ended up taking on operational significance that was never
intended. One would hope that if the June 1st Telex was received today in a
context similar to that of 1985, it would receive a highly robust on-the-ground
response, whether or not it met the definition of an “imminent threat,” given
1065
1066
1067
1068
1069
1070
1071
Testimony of Reg Trudel, vol. 96, February 14, 2008, pp. 12807-12808.
Testimony of Reg Trudel, vol. 96, February 14, 2008, pp. 12807-12808.
Exhibit P-101 CAF0717, p. 13.
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12832.
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12814.
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12817.
See Section 1.2 (Pre-bombing), June 1st Telex.
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the magnitude of the possible consequences. As NSTAS does not conduct a risk
analysis that includes an assessment of vulnerabilities and a calibration of the
protective resources in light of the potential harm, it must be assumed – and
hoped – that this analysis occurs somewhere within protective operations.
Distribution of Threat Assessments and Sharing of Information
Unnecessary compartmentalization of threat information in the pre-bombing
period limited the ability of participants at all levels of the RCMP’s threatresponse system to identify and report potentially relevant information. Some
of these issues continue today. As a general rule, the NSTAS TAs are sent only to
the requesting unit. The threat assessments are usually classified at the Secret
level, but they may be classified as Top Secret if relying on sensitive foreign
intelligence. The “need-to-know” principle is “…applied at all times” when
distributing threat information. This applies even within the RCMP, as caveats
restrict a TA’s dissemination outside the section or unit to which it was provided
without the consent of the originator.1072
On a case-by-case basis, the NSTAS assesses whether the threat assessment
should be shared with another unit or agency.1073 NSTAS members explained
in testimony that, as the information contained in the threat assessments is
often sensitive and heavily caveated, it is necessary for them to approach the
originating agencies for all information provided in order to obtain clearance to
disseminate the assessments further.1074 This can be a time-consuming exercise,
though Trudel was confident that the process could be conducted very quickly
if there was an urgent need.
Before the Air India bombing, the limited distribution of RCMP threat assessments
deprived RCMP units and other agencies of information which could have
assisted them in recognizing activities on the ground that were relevant to
threat assessment. This limited distribution appears to continue today.
It is in the sole purview of the NSTAS to assess who may benefit from a threat
assessment and to take steps proactively to distribute it. Given that the section
does not generally perform any type of ongoing threat monitoring function
and has limited access to, and understanding of, investigations outside, and
perhaps even within, the national security context, its ability to make this
determination may be limited. The only information automatically shared
between HQ and the divisions is that which is uploaded to the Secure Police
Reporting Operating System (SPROS), which is a computer system that allows
updates to shared national security investigation files in real time.1075 From a
threat assessment perspective, the information in this Top Secret national
security database arguably constitutes only one small part of the potentially
relevant information.1076
1072
1073
1074
1075
1076
Exhibit P-101 CAF0717, p. 13.
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12809.
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12831.
Testimony of Trevor Turner, vol. 82, November 23, 2007, pp. 10450-10451.
Testimony of Dan Mayer, vol. 96, February 14, 2008, p. 12830.
�Chapter IV: CSIS/RCMP Information Sharing
The NSTAS TAs are entered onto SPROS, but this database is not generally
accessible to units outside of the national security investigative sphere.1077
This means that the RCMP members in charge of implementing the protective
measures necessary to meet a given threat do not have SPROS access, since it is
limited to national security investigations.1078
Members of local police forces have testified about the importance of their
front-line officers being sensitive to the signs of potential threats.1079 It is the
INSETs that are generally left to provide the information that may foster that
awareness.1080 The INSETs are also relied on to provide training and other
information necessary to non-INSET RCMP units and detachments to assist them
in providing information to support threat assessments, with the expectation
“…that if there is something that surfaces of national security interest, then it
would be passed on to the INSET….”1081 There is no formal national structure
for this relationship; each divisional INSET or NSCIS has its own method of
working with, and educating, local forces in order to obtain relevant security
information.
Given that NSTAS is entirely dependent on the INSETs and NSCIS to liaise
with other divisional RCMP units and local forces, the quality of the relevant
information gathered by these units will depend on how well they understand
and are able to explain the scope of relevant information to these other units
and agencies.
The NSTAS threat assessments are retained pursuant to guidelines.1082 In general,
they are kept on file for 24 to 48 months after the conclusion of an event, after
which they are purged.1083 It is unclear to what extent the purging of past threat
information could affect the ability of the NSTAS to properly situate and assess
any new threat.
Overlapping Functions
As was the case in the pre-bombing period, there appears to be significant
potential for overlap in the work of the players in the threat assessment field in
the current regime.1084
ITAC’s role is to centralize security intelligence in the counterterrorism domain.1085
Trudel distinguished the RCMP’s product from the type of assessment that
1077
1078
1079
1080
1081
1082
1083
1084
1085
Testimony of Reg Trudel, vol. 96, February 14, 2008, pp. 12818-12819.
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12831.
See for example Testimony of the Provincial and Municipal Police Forces Panel, vol. 83, November 26,
2007, pp. 10579-10652.
Testimony of Dan Mayer, vol. 96, February 14, 2008, pp. 12822-12823.
Testimony of Dan Mayer, vol. 96, February 14, 2008, pp. 12824-12825.
Testimony of Reg Trudel, vol. 96, February 14, 2008, pp. 12818-12819.
Testimony of Dan Mayer, vol. 96, February 14, 2008, p. 12829.
See Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment Structure and Process. As
demonstrated in the pre-bombing period, overlap not only wastes resources but it can also create
confusion and the risk that existing gaps may remain unaddressed.
Online: Integrated Threat Assessment Centre <http://www.itac-ciem.gc.ca/bt/rl-eng.asp> (accessed
February 11, 2009).
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would be done by ITAC, stating that the RCMP product is primarily tactical, more
focused on protective operations, and is distributed to protective personnel
(rather than being geared towards the whole of government).1086 However,
members of ITAC create both “tactical” and “strategic” threat assessments. ITAC’s
tactical threat assessments were described as being designed to provide “…
forewarning of an incident or a threat to an event,” or in advance of a state visit.
Moreover, ITAC members indicated that ITAC does “a lot” of threat assessment
work directly in support of the RCMP’s protective operations.1087
When ITAC is tasked directly by NSTAS in support of its threat assessments,1088
the seconded RCMP member will consult RCMP databases, including SPROS, in
support of ITAC’s assessment. It is therefore unclear what additional value the
NSTAS itself adds to the process – other than perhaps adding its own assessment
of the threat level to the information provided.
The potential overlap with ITAC’s products does not end with the “tactical” type
of assessment. The RCMP also creates its own more “strategic” product – the
“threat scan” – which is done in advance of a threat assessment. A threat scan is
produced 28 days before an event and is a “…high-level scan of the environment
to see if there’s any threats existing.” It is done using open-source material and
basic database searches as well.1089 This type of product would seem to duplicate
precisely what ITAC produces.
Members of the NSTAS agreed in their testimony that there was “slight overlap”
between the assessments produced by the agencies,1090 but stated that the
RCMP was in “constant” coordination with ITAC and CSIS during the production
of a given threat assessment in order to minimize duplication and conflict.
Potential for overlap also exists between ITAC and the IAB. When asked to
distinguish between the roles of ITAC and the IAB, Louise Doyon, the Director
General of the IAB, testified that the difference was primarily one of expertise
and breadth.1091 In contrast to the ITAC analysts, who are secondees, the IAB
analysts are CSIS personnel with graduate degrees in relevant areas, who produce
broader assessments with a longer-term view. The distinction appears to be
one of degree rather than kind, however, since ITAC members also emphasized
the strategic nature of its threat assessments and the fact that ITAC draws on a
wide range of intelligence sources, including CSIS databases1092 and, through its
RCMP members, SPROS.
The members of the ITAC Panel testified, however, that they believed the IAB
was focused on threat and risk assessments beyond simply terrorism, and that
1086
1087
1088
1089
1090
1091
1092
Testimony of Reg Trudel, vol. 96, February 14, 2008, pp. 12812-12813.
Testimony of Kim Taylor, vol. 89, December 5, 2007, pp. 11763-11765.
Testimony of Kim Taylor, vol. 89, December 5, 2007, p. 11780.
Testimony of Reg Trudel, vol. 96, February 14, 2008, pp. 12812-12813.
Testimony of Reg Trudel, vol. 96, February 14, 2008, pp. 12813-12814.
Testimony of Louise Doyon, vol. 96, February 14, 2008, p. 12850.
Testimony of Daniel Giasson, vol. 89, December 5, 2007, p. 11755.
�Chapter IV: CSIS/RCMP Information Sharing
their strategic assessments were even longer-term than those of ITAC. The
CSIS assessments were also provided in the context of advising government,
whereas ITAC did not see itself as specifically providing advice but rather factual
assessments of the threat. The features identified by ITAC as distinguishing its
mandate from that of the IAB only serve to reinforce the similarities between
the role of ITAC and the RCMP NSTAS. Ultimately, it was admitted that there is
potential for overlap and duplication between ITAC and the IAB. ITAC members
testified that communication between the agencies is intended to minimize
this phenomenon.1093
What is clear from all of this is that while the agencies often distinguish their
mandates from one another using the terms “tactical” and “strategic,” these are
not sufficiently precise markers to delineate their respective responsibilities,
given the ambiguity in the meaning of the terms.
Protection of Critical Infrastructure
In 1985, the threat-response system was set up to fight hijacking, and had not
yet been adjusted to detect and prevent the phenomenon that was known
would increasingly pose the greater danger to civil aviation: sabotage. Today, the
vulnerability of critical infrastructure (such as the electrical grid, nuclear power
plants, telecommunications networks, the financial system, and municipal water
systems) to sabotage, terrorist attacks, or “cyber attacks” is well understood,
and has been identified as a priority in Canada’s National Security Policy.1094
Professor Martin Rudner referred to this critical infrastructure as “…the things
upon which we live or we die.”1095 Rudner’s opinion was that Canada’s critical
infrastructure was highly vulnerable, and that protective efforts were moving
much too slowly.1096
Most critical infrastructure is owned by the private sector or by different levels
of government, and much of it is connected to international networks. Such
infrastructure systems are generally large and decentralized, and are therefore
difficult to protect. As a result, critical infrastructure components pose tempting
targets for terrorist attacks.
Canada’s threat assessment capacity with regard to critical infrastructure is
not necessarily ready to meet these daunting challenges. The RCMP Critical
Infrastructure Criminal Intelligence group is a relatively new group; its focus is
currently limited to rail and urban transit, and, even then, only in the form of pilot
projects being rolled out in “…certain cities of our country.” ITAC, meanwhile, is
under-resourced for the task at hand. While the intention of the RCMP Critical
Infrastructure Criminal Intelligence group is to work with public and private
partners across Canada to exchange information about threats, there will be
1093
1094
1095
1096
Testimony of Daniel Giasson, vol. 89, December 5, 2007, p. 11776.
Exhibit P-101 CAF0539, pp. 18, 35-36.
Testimony of Martin Rudner, vol. 92, December 10, 2007, p. 12278.
Testimony of Martin Rudner, vol. 92, December 10, 2007, p. 12278.
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a need for MOUs and a secure information-sharing structure before this can
be implemented.1097 Security clearance issues pose obstacles in working with
parties outside of the RCMP, particularly in the private sector, although the
RCMP has worked to provide security clearances to a number of officials within
these companies to permit the exchange of information where appropriate.1098
The fact that as of the date of the panel’s testimony, the RCMP had yet to roll
out its pilot project or to execute MOUs in this area,1099 raises questions about
the preparedness of the RCMP, and therefore of Canada, to deal with the current
threat to critical infrastructure.
MOU Negotiations and the 2006 RCMP/CSIS MOU
Following the 1999 RCMP National Security Offences Review report, which noted
that many of the problems between CSIS and the RCMP resulted from the fact
that the MOU provisions were not widely known and were not being applied,
the agencies embarked on negotiations to modify the MOU.1100 Issues relating
to the disclosure of CSIS information in judicial proceedings and the objections
that could be made, in particular, were discussed.1101 Despite the earlier belief
that only minor amendments to the 1989 MOU would be necessary to make it
current, the review of the MOU soon encountered problems. In one CSIS memo,
written in late September 1999, the Head of CT Litigation discussed the issue of
the “…general misunderstanding of how, or even if, intelligence can be used by
the RCMP.” CSIS felt that the RCMP was misinterpreting the Stinchcombe decision
rendered by the Supreme Court of Canada, which first imposed the obligation
upon the Crown and police to disclose materials to the defence. CSIS believed
that this misinterpretation could have an impact on the negotiations between
the agencies for new MOU provisions. The CT Litigation Head concluded that,
given the current state of legal matters related to disclosure, “…extreme care and
attention” needed to be paid to the redrafting of the RCMP/CSIS MOU, and that
“…it should probably not be attempted without extensive legal counseling.”1102
Negotiations about control of CSIS information once disclosed to the RCMP1103
seemed to have been resolved by late November 2000, when a draft of the new
RCMP/CSIS MOU was produced.1104 For unknown reasons, the draft was not
approved. After a pause of two more years, the revision of the MOU process
began again in 2002. At that time the RCMP reviewed the 2000 proposal and
noted the areas in which the proposal was outdated. A new 2002 draft was
tabled, but again the negotiations were not successful and the 1989 MOU
remained in effect.1105
1097
1098
1099
1100
1101
1102
1103
1104
1105
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12815.
Testimony of Reg Trudel, vol. 96, February 14, 2008, p. 12827.
Testimony of Reg Trudel, vol. 96, February 14, 2008, pp. 12827-12829.
See Section 4.0 (Post-bombing), The Evolution of the CSIS/RCMP Memoranda of Understanding.
Exhibit P-101 CAF0281.
Exhibit P-101 CAA0973, pp. 2-3.
Exhibit P-101 CAF0313, p. 2.
Exhibit P-101 CAA0982.
Exhibit P-101 CAA0985, pp. 1, 3-9.
�Chapter IV: CSIS/RCMP Information Sharing
After the Honourable Bob Rae was asked to conduct a review of the Air India
file to determine whether a public inquiry was merited, RCMP Commissioner
Giuliano Zaccardelli and CSIS Director Jim Judd began a “modernization” process
to address ongoing issues in the RCMP/CSIS relationship.1106 At a meeting on
October 17, 2005, senior members of both organizations met to discuss a
number of issues, including the MOU. The members agreed that the 1989 MOU
was out of date and inaccurate. Discussion ensued as to whether a new MOU
was necessary, “…as really the ideal situation is about changing behaviour
versus the creation of a legal document,” but consensus was reached to proceed
with a new MOU anyway.1107 Later, Zaccardelli and Judd wrote to Rae to inform
him that work on a renewed MOU had begun, with the objective of creating
a document that would “…refine the existing framework for sharing, handling
and use of information and intelligence, and for the provision of operational
support between the two agencies.”1108
On July 2, 2006, Judd wrote to the Minister of Public Safety, the Honourable
Stockwell Day, asking for approval of the new MOU. According to Judd, the MOU
“…reflects the reinvigorated structures and mechanisms established by CSIS
and the RCMP for the purpose of cooperation and consultation between the
two organizations,” though it was noted that the principles guiding cooperation
between CSIS and the RCMP remained unchanged.1109 The new MOU was signed
on September 12, 2006.1110
The 2006 MOU contained some provisions about information sharing that were
similar in substance to the ones found in the previous MOU. Again, the word
“shall,” which some thought would impose a positive obligation on CSIS to share
information with the RCMP (even though the CSIS Act gave CSIS discretion in
the matter), was not used.1111 Instead, the new MOU expressly recognized the
CSIS discretion.1112
The new MOU specifically provided that CSIS would advise the RCMP in cases
where it became aware “…that its investigative activities may adversely affect
an RCMP investigation.” A high-level committee in charge of managing such
conflicts and resolving operational issues was established. The provisions
governing the Liaison Officers Program that were found in the previous MOU
were replaced with provisions dealing with secondment programs.1113
According to Professor Wesley Wark, the result of the negotiations between the
agencies (the 2006 MOU) was a “…fairly radical departure, in terms of how they
expressed the nature of the CSIS/RCMP relationship.” Notably, the comments
on the distinctiveness of the mandates of CSIS and the RCMP, and “…the old
1106
1107
1108
1109
1110
1111
1112
1113
See Chapter V (Post-bombing), The Overall Government Response to the Air India Bombing.
Exhibit P-101 CAA1043(i), p. 3.
Exhibit P-101 CAA1110, p. 2.
Exhibit P-101 CAA0152, p. 1.
Exhibit P-101 CAA1073.
Section 4.0 (Post-bombing), The Evolution of the CSIS/RCMP Memoranda of Understanding.
Exhibit P-101 CAA1073, pp. 10-11.
Exhibit P-101 CAA1073, pp. 7-9, 11, 14.
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language that described how they would cooperate as distinctive and separate
agencies,” were eliminated. These were replaced with “…a new concept of
partnership … meant to reflect the thrust of the 2004 National Security Policy
document” which called for an integrated national security effort.1114
Wark felt that the change reflected “…more than a semantic shift” from
institutional distinctiveness towards partnership, backed by “…some fairly
significant departures, in terms of how that partnership should be brought into
being” – the most important being the need for CSIS and the RCMP to develop
an “…entirely new way of operating together,” via the introduction of joint
management committees. These committees would be comprised of senior
members of both organizations, who would, in theory, work together and foster
the cultural shift deemed necessary for proper cooperation.1115
Additionally, a new officer exchange program, involving the secondment
of officers, had been created to replace the earlier Liaison Officers Program.
Wark noted that the importance of the secondment program was that greater
knowledge of the other organization was to be gained through the exchange of
senior operational officers, as opposed to employees simply being charged with
ensuring the passage of intelligence.1116
The 2006 MOU expressly recognized the implications of the Stinchcombe
decision and the concerns regarding the disclosure of CSIS information to the
defence in the event of a criminal prosecution, by adding a provision specifically
stating that the agencies recognized that information provided by CSIS to the
RCMP “…may be deemed for purposes of the prosecution process to be in
the control and possession of the RCMP and the Crown and thereby subject
to the laws of disclosure….” The specific procedure set out to address such
circumstances was reliance on the ability to claim national security privilege
under the Canada Evidence Act to protect information.1117 Wark explained that
the MOU attempted to create a cultural mechanism for dealing with disclosure,
whereby the RCMP and CSIS would “…understand disclosure matters using a
similar language and a similar set of concerns.”1118
Wark concluded that the 2006 MOU reflected the new thinking that partnership,
integration and a closer relationship between CSIS and the RCMP were required.
One example of such partnership was the introduction of joint training
programs. According to Wark, the MOU also called for an abandonment of the
“initial worries” and “…concern with distinctiveness of mandates” of the RCMP
and CSIS which, even in 1984, were backward-looking. Replacing those concerns
were new concerns about effectiveness of mandates and about “…translating
cooperation into effectiveness.”1119
1114
1115
1116
1117
1118
1119
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1472-1473.
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1474.
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1474-1475.
Exhibit P-101 CAA1073, p. 13.
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1476.
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1477.
�Chapter IV: CSIS/RCMP Information Sharing
In offering his analysis of the new MOU, Wark cautioned that the problem with
the new MOU was that, as a fundamental departure from the previous MOUs,
“…we’re going to have to watch very closely how it is translated from words
on a page and doctrine into practice.”1120 The evidence heard in this Inquiry has
shown that the new cooperation mechanisms appear to have brought some
improvements in the relationship, but have not been adequate to resolve the
fundamental issues faced by the agencies in terrorism investigations.1121 Neither
a reliance on section 38 of the Canada Evidence Act nor an RCMP policy of “less
is more” have been able to accomplish what James (“Jim”) Warren described as
“squaring the circle” in converting intelligence into evidence.1122
Current Information-Sharing Mechanisms
Target “Deconfliction”
The term “deconfliction” refers to the mechanism by which CSIS and the RCMP
exchange information about their respective operations (or targets) in order
to avoid conflicts in the event that both agencies are investigating the same
target. The process of deconfliction of targets is accomplished by the use of a
matrix at the regional level, whereby the RCMP and CSIS reveal their CT targets
to one another. This procedure began in late 2005 in an effort to identify CSIS
investigations that had reached a criminal threshold. During the deconfliction
process, the RCMP and CSIS reveal their targets to each other and then enter
into more specific discussions regarding those targets who appear on both
lists in order to avoid conflict. Superintendent Jamie Jagoe of O Division
INSET testified that these formal deconfliction meetings occur on an ongoing
basis, approximately every two months. At these meetings case inventories
are compared and all CT investigations are outlined with a short background
for both agencies. Any unresolved conflicts are referred to HQ, where a Joint
Management Team will solve any issues that may remain.1123
Jagoe explained that the deconfliction process does not preclude parallel
investigations of similar targets, nor does it attempt to descend to a level of
detail that would involve each organization in fine-tuning its investigation
to avoid any overlap. Instead the aim is simply to avoid “…tripping over each
other.” The deconfliction process does not prevent either CSIS or the RCMP
from conducting investigations within its mandate. Neither CSIS nor the RCMP
attempts to direct the activities of the other organization.1124 While targets are
discussed at the deconfliction meetings, the identity of sources is not divulged,
nor is information that could identify a confidential human source.1125
1120 Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1502.
1121 See Chapter V (Post-bombing), The Overall Government Response to the Air India Bombing.
1122 Testimony of James Warren, vol. 48, September 19, 2007, p. 5903. See, generally, Volume Three
of this Report: The Relationship between Intelligence and Evidence and the Challenges of Terrorist
Prosecutions.
1123 Testimony of Jamie Jagoe, vol. 82, November 23, 2007, p. 10459.
1124 Testimony of Jamie Jagoe, vol. 82, November 23, 2007, pp. 10459-10460.
1125 Testimony of Ches Parsons, vol. 82, November 23, 2007, p. 10461.
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Luc Portelance, DDO of CSIS at the time of the Inquiry, explained that CSIS made
the decision to approve CT investigations only after they have been discussed
with the RCMP to determine whether or not there is an opportunity to pursue a
criminal investigation rather than a national security investigation. To that end,
CSIS discusses its intended investigations in terms of the activities the target is
involved in and the threats involved. These discussions are held at the regional
level, and are meant to determine whether the activities of the intended CSIS
target meet the threshold for criminal investigation. If the activities do not meet
the threshold, then CSIS pursues its investigation.1126
The Joint Management Team
Senior members of CSIS and the RCMP also meet at the HQ level on a regular
basis through the Joint Management Team (JMT), a structural arrangement
created by Luc Portelance and A/Comm. Mike McDonell that was also launched
in late 2005. The JMT does not manage individual cases, but instead is aimed
at “…joint management of the relationship” between CSIS and the RCMP. The
goal of the JMT is to outline and share all CT investigations the organizations
are conducting in order that each may know in general what the other is doing.
The JMT also serves as an opportunity to discuss whether or not investigations
are progressing and to re-evaluate them in that light. The JMT meetings do not
occur as often as the regional deconfliction meetings, but are held periodically
to review what is occurring across the country.1127 McDonell testified that the
JMT, for the most part, looks at “…commonalities amongst the files that may
serve as impediments or impairments to investigations.” He added that the
deconfliction at the regional level is more robust and that the JMT serves to
make the transfer of information work more effectively.1128
According to Portelance, the launch of the JMT and of the regional deconfliction
process has been “…a significant departure” from the past. Previously, CSIS
would disclose information to the RCMP when it believed a criminal threshold
had been reached. While this sort of exchange still occurs, the deconfliction and
JMT meetings deal with all the CSIS counterterrorism investigations and thus
involve the Force in the discussion of whether a specific investigation meets the
criminal threshold.1129
CSIS Decisions to Share Information
The information collected by CSIS “…is collected to be shared,” and for the
purpose of advising the Government of Canada. Often, it will be relevant to
other government agencies that are not involved in law enforcement. In order
to carry out its role of advising the Government, it is to the advantage of CSIS
to know its clients, to have an understanding of their mandates and what they
require and to exchange information on that basis.1130
1126
1127
1128
1129
1130
Testimony of Luc Portelance, vol. 88, December 4, 2007, pp. 11472, 11474-11475.
Testimony of Luc Portelance, vol. 88, December 4, 2007, pp. 11478, 11481.
Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12629-12631.
Testimony of Luc Portelance, vol. 88, December 4, 2007, pp. 11479, 11482, 11486.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12780.
�Chapter IV: CSIS/RCMP Information Sharing
The decision about whether to share information, and with which department, is
made exclusively by CSIS. It is based on CSIS’s analysis of who is best equipped to
deal with the information.1131 In cases where the information may be of interest
to law enforcement, a special decision-making process has been devised at CSIS
to determine the nature and the extent of the information that will be shared
in each case.
CSIS generally launches an investigation when there is suspicion of a threat
to the security of Canada. Supt. Larry Tremblay, the RCMP manager currently
seconded to CSIS, explained that CSIS investigations often span a lengthy
period of time and are aimed at assessing the intent, the ability and the means
for a given group or individual to actualize the threat. Tremblay testified that
suspicion of a threat is a broader concept than suspicion of criminal activity,
which is the threshold used to launch a police investigation.1132 However, as
discussed in Volume Three of this Report, in the age of the Anti-terrorism Act,
the overlap between CSIS counterterrorism investigations and instances where
police investigations could be conducted is not as limited as Tremblay perceived
it to be.
At CSIS, the decision about when information is to be passed to the police
is triggered at the point when there is activity in support of a threat, such as
when a group or individual starts to physically acquire the ability to act on the
threat. There is no attempt by CSIS at this stage to identify the exact elements
of an offence, to specify the Criminal Code offence implicated, or to address
the admissibility of the information in court. Instead, when the activity of an
individual or group indicates that “…there is something going on” that is serious
in relation to a threat to the security of Canada, or that is criminal in nature,
then that activity triggers the decision-making process about whether the
information will be passed on to law enforcement.1133
In order to determine whether to advise the police or another government
institution, CSIS employs a 13-step vetting process, used by Tremblay while he
was working in the CSIS Litigation Unit. The 13 factors are intended to help assess
the various types of jeopardy that could result from sharing CSIS information.
Of concern are decisions to share information that would jeopardize ongoing
investigations, methodology, third-party information, human sources, and CSIS
employees. The public interest is a main consideration, as well as the risk for
CSIS if disclosure is made, and, conversely, if disclosure is not made.
The decision to share information varies in accordance with the seriousness
of the threat or crime. Information indicating a threat to life will be treated
differently from information implicating credit card theft. In cases where the
offence implicated is not seen as serious by CSIS, such as a facilitation offence,
disclosure to the police may not always be forthcoming. For such offences,
disclosure will be considered on a case-by-case basis, with more consideration
given to the jeopardy to CSIS should the information be shared.1134
1131
1132
1133
1134
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12780.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, pp. 12769-12770.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, pp. 12769-12770, 12779.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, pp. 12772, 12779.
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One of the factors considered to decide whether information will be passed is the
likelihood of CSIS being able to protect the information through an application
under section 38 of the Canada Evidence Act. This analysis is done in consultation
with the CSIS legal team and the Litigation Unit.1135 Once the information has
been fully vetted and approved for initial passing to law enforcement, CSIS will
place a caveat on the information, retaining the ability to apply for protection
from disclosure under section 38.
CSIS always caveats the information passed to try to retain some control should
circumstances change when the matter goes to court, and should CSIS conclude
that it needs to protect its assets. CSIS will continue to reassess its position
prior to its information being made public through a judicial proceeding, even
though the information has already been shared outside of CSIS.1136
According to Tremblay, whether the discussion in relation to the transfer of
information is internal at CSIS or takes place after sharing with the RCMP, the
Stinchcombe decision and its effect on disclosure at trial “…is at the forefront of
every discussion.”1137
The Service is well aware of the obligation under Stinchcombe
and well aware of what could be the outcome, what are the
outcomes when disclosure requirement kicks in, and it does
factor on what information is or can be shared, understanding
that that information, one day, depending on the nature of the
threat, could be made public.1138
At CSIS, the decision on whether to share information with a law enforcement
or other agency is viewed as an operational one. Operational managers are
expected to identify information that could be of interest to law enforcement.
The information is then sent to the Litigation Unit and Legal Department for an
assessment of the jeopardy to a CSIS interest should the information be shared.
Where the release of an “advisory letter” authorizing the use of CSIS information
in court is contemplated, the Litigation Unit and Legal Department prepare a
recommendation on the basis of their assessment of jeopardy, and the final
decision to authorize release rests with the executive at CSIS. Where it is
contemplated to pass information to law enforcement without authorization to
use it in court, the assessment of jeopardy prepared by the legal departments is
provided to the operational units, who then have authority to make the ultimate
decision about sharing the information.1139
1135
1136
1137
1138
1139
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12774.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12773.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12776.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12777.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, pp. 12764-12765, 12768-12769.
�Chapter IV: CSIS/RCMP Information Sharing
Secondment Program
In 2002, the secondment program replaced the RCMP/CSIS LO program. The goal
of the secondment program is to facilitate an enhanced understanding in CSIS
and the RCMP of each other’s “…mandate, responsibilities and methodologies”
and to allow each agency to benefit from the skill and expertise of the other
agency’s members.1140 The secondments are instituted on both a permanent
and an ad hoc basis.
Professor Wark saw the creation of the secondment program as an example of
the “…cultural shifts in attitude” that have taken place since 1985. Previously, the
liaison officers acted as channels for the passage of information. The seconded
members fulfill an entirely different purpose; they immerse themselves in the
institution and help foster knowledge of the partner institution at a senior level
so that the agencies have a way to “…personally exchange concerns on a daily
and ongoing basis about the development of operations and the nature of
threats.”1141
The secondment agreement stipulates that RCMP officers are to be seconded
to each of the four CSIS regional offices and to Headquarters. These officers do
not report back to the RCMP. Similarly, CSIS agents are to be seconded to each
of the INSETs. Again, these agents do not report back to CSIS.1142 As of February
2008, none of these secondments were active, which leads the Commission to
question their value.
In addition, a similar management secondment program currently involves the
secondment of a CSIS manager to RCMP HQ to be in charge of the RCMP Threat
Assessment Section and of an RCMP inspector to a management level position
within CSIS HQ.1143 These secondments have been active for several years, and
the current individuals involved from CSIS and the RCMP testified before the
Inquiry about their experience.
RCMP Manager Secondment to CSIS
Supt. Larry Tremblay, who was seconded to CSIS as part of the management
secondment program, discussed the program in his evidence at the Inquiry. Jack
Hooper, who served in the position of Deputy Director of Operations at CSIS
from 2005 until his retirement in 2007, stated in his testimony that Tremblay is
a “…highly talented RCMP inspector who is managing our highest priority CT
target program and he is doing an amazing job of that.”1144
1140 Exhibit P-101 CAA1073, p. 14, CAA1081.
1141 Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1474-1475.
1142 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Policy Review:
The RCMP and National Security – A Background Paper to the Commission’s Consultation Paper
(Ottawa: Public Works and Government Services Canada, 2004), p. 67 [Policy Review: The RCMP and
National Security].
1143 Policy Review: The RCMP and National Security, p. 67.
1144 Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6253.
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Tremblay is an RCMP officer experienced in drug investigations and major
organized crime investigations.1145 In late November 2004, Deputy Commissioner
Garry Loeppky and Assistant Commissioner John Neily asked Tremblay to take
the management secondment position at CSIS, based on his background and
experience.
Tremblay was assigned a position within operational support at CSIS. His initial
position was at the CSIS Counter-Proliferation (CP) branch at the level of Chief.
At the time, the CP branch housed the Threat Assessment Unit, the Immigration
Assessment Unit and the Litigation Unit. In May 2006, CSIS underwent a
restructuring, at which time the International Terrorism (IT) branch was formed.
Tremblay was moved to the IT branch for a two-year secondment as a fully
operational manager responsible for part of the national program.1146
During the first part of his secondment with the CP branch and the IT branch,
Tremblay was involved in the determination of what information, if any, ought
to be passed to the RCMP. The duties of the Litigation Unit, which reported to
Tremblay, included providing the assessment of the jeopardy for CSIS in sharing
information. The Litigation Unit also had a role in the management of disclosure
and advisory letters, the formal documents that provide the RCMP with CSIS
information.1147
In 2006, Tremblay moved to an operational position. It became his responsibility
to make the ultimate decision as to whether information that CSIS believed
could be of interest to law enforcement would in fact be shared.
Tremblay testified with regard to his experience with CSIS’s current ability to
identify criminal information. About his work at CSIS, Tremblay stated that the
“…scope of what I look at presently is far wider from an intelligence perspective
than what I would look at from a criminal perspective.”1148 He explained that,
in his experience, when CSIS uncovers information that could be of interest to
law enforcement, because it indicates that something serious is happening or
that targets are acquiring the ability to act on a threat, the information is passed
to the RCMP at such an early stage that there have been occasions where the
information disclosed by CSIS did not yet meet the threshold that would allow
the police to commence their own investigation. Tremblay testified, however,
that the vetting process which he developed during his secondment at the
Litigation Unit, operates to reduce the amount of information shared,1149 because
the evaluation of the possible jeopardy to CSIS will at times lead to decisions not
to share information of potential interest.
Tremblay gave his personal opinion that if there was a mechanism in place
whereby the CSIS information could be introduced but the sensitive information
– essentially CSIS methods, human sources and third-party information – could
1145
1146
1147
1148
1149
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12764.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, pp. 12764-12765.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, pp. 12764-12766, 12768.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12769.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, pp. 12769, 12771-12773, 12779.
�Chapter IV: CSIS/RCMP Information Sharing
be held back, then the problems with the use of CSIS information in the judicial
process would be alleviated. He did not view the current legal protection
provided under the Canada Evidence Act as sufficient. Tremblay noted that a
mechanism that ensured that the sensitive information would not have to be
disclosed would increase the likelihood of CSIS sharing its information with law
enforcement, particularly with regard to offences perceived as less serious, such
as terrorist financing and facilitation.1150 The current system militates against
CSIS sharing information about such offences where there is potential for
jeopardy to CSIS assets and investigations.
Tremblay offered his opinion about the RCMP’s sensitivity towards CSIS’s
concerns for the protection of its assets that highlights some of the difficulties
faced by CSIS and the RCMP in relation to sharing information. Tremblay stated
that as an RCMP officer with a law enforcement perspective, he would always
want more information. As a police officer, he is tasked with continuously trying
to obtain the best possible evidence in court. In his words, “I still have [yet] to
meet a Crown that tells me to stop my investigation; they have enough to go to
trial.”1151 From a law enforcement perspective then, the task is to obtain as much
relevant information as possible. Tremblay contrasted this outlook with the CSIS
perspective that he gained through the secondment program, which is that the
ideal amount of information to share with law enforcement is the minimum
amount required to allow the police to proceed with their investigation without
jeopardizing Service interests. These two viewpoints are inherently in conflict.
CSIS Manager Secondment to RCMP
The Inquiry also heard testimony from the CSIS management secondee to the
RCMP, Neil Passmore. As of April 2007, Passmore was seconded to the position of
Acting OIC of the National Security Threat Assessment Section. As with the RCMP
secondee, his role was not to act as a liaison for the passage of information.1152
Rather, he was expected to use his years of experience at CSIS to benefit the
RCMP Threat Assessment Section.
In that position, Passmore applied his experience at CSIS to the management of
the Threat Assessment Section and the improvement of its threat assessment
product. He implemented enhanced quality control measures. His goal was to
make it easier to produce an assessment product through the development
of templates with standardized wording. He also implemented a timeline
procedure that allows the tracking by date in the threat assessments of specific
tasking and of the corresponding response.1153
Passmore liaised with ITAC in order to provide his colleagues at the RCMP with
an improved understanding of the mandate and role of ITAC. Part of his role
was to harmonize the information produced by the RCMP Threat Assessment
Section and that produced by the multi-agency ITAC. His work involves ensuring
1150
1151
1152
1153
Testimony of Larry Tremblay, vol. 96, February 14, 2008, pp. 12782-12784, 12788.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12776.
Testimony of Neil Passmore, vol. 96, February 14, 2008, pp. 12799-12800, 12833.
Testimony of Neil Passmore, vol. 96, February 14, 2008, pp. 12833-12834.
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that both agencies are reaching the same conclusions, as well as avoiding the
historic problem of duplication of threat assessment products. Passmore’s
section is provided with the ITAC schedule of assessments and, in response,
tasks ITAC with the information needs of the RCMP.1154
Improving Relationships versus Sharing Information
Representatives of both CSIS and the RCMP have indicated that the secondments
contribute to strengthening CSIS/RCMP relations.1155
Jack Hooper testified that the management secondment program had been
“…a tremendously successful experiment.” He credited the senior executive
group within CSIS and their RCMP counterparts with the creation of the program
as a replacement for the LO Program. Hooper stated that, as a result of the
management secondment program, CSIS benefited from two “…very talented
RCMP officers who both came in at the inspector level and who we put into
management positions within CSIS.”1156
Hooper believed that the need for the secondment program arose because
there were fewer and fewer ex-RCMP members populating CSIS ranks and
that therefore the Service was losing its understanding of the RCMP and
how it worked. The goal was that, following the secondment, RCMP officers
would go back to the RCMP with a very extensive understanding of CSIS’s
mandate and how it operates. With regard to the management and workinglevel secondment programs, Hooper stated that the benefit derived from the
secondment program “…far outweighs those benefits that accrued [from] the
old liaison officer program.”1157
The RCMP, for its part, felt that the secondment program would help address a
deficiency in the Force’s understanding of the Service’s “…standard operating
procedures and investigative processes.”1158
The secondment program is vastly different from the LO Program that preceded
it. While secondment may enhance each institution’s understanding of the
other, it is not an information-sharing mechanism and, as such, it cannot replace
the LO Program that was focused on transferring information. The personnel
exchanges are intended to foster cooperation and understanding on a
personal level. While these are worthwhile goals, they do nothing – as Tremblay
admitted – to resolve the problem encountered when CSIS decides not to share
information in order to protect its own interests, thereby causing the RCMP to
lose relevant information.1159
1154
1155
1156
1157
1158
1159
Testimony of Neil Passmore, vol. 96, February 14, 2008, pp. 12834-12835.
Exhibit P-101 CAA1035; Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6253.
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6252-6253.
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6253.
Exhibit P-101 CAA1043(i), p. 9.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12776.
�Chapter IV: CSIS/RCMP Information Sharing
Regardless of whether the secondment program is an effective replacement for
the LO Program, the program does have merit in fostering greater understanding
that can assist in effecting cultural changes that will improve cooperation.
However, Tremblay has yet to return to the RCMP to share his new insights with
his law enforcement colleagues, and concerns have been raised about the level
of enhanced understanding that is achieved through the secondment of CSIS
managers to the RCMP under the current circumstances.
CSIS managers seconded to the RCMP are assigned civilian roles only, with no
peace officer status. In 2005, CSIS raised concerns about the “…inconsistent use
by the RCMP of CSIS managers,” and questioned the value for the Service of
seconding its managers to the RCMP under those circumstances.1160 Indeed,
being seconded to the management of a threat assessment unit at the RCMP does
not provide CSIS managers with many opportunities to observe the day-to-day
issues that arise when the RCMP needs to rely on CSIS information in the context
of criminal investigations. While Passmore attempted to use his experience at
CSIS to benefit the RCMP, and did devise some improved procedures for threat
assessments, he was not able to gain the level of understanding of the current
information-sharing problems that Tremblay acquired through his secondment
experience as an operational manager at CSIS.
Relying on just one management secondment each to foster cooperation
and understanding throughout two large organizations is problematic. The
secondment program could have had further impact through implementation
of the agreed upon secondments at the working level. For unknown reasons, as
of the end of the Commission’s hearings, those secondment arrangements had
not been put in place.
Less Is More
The concept of “less is more” is increasingly used by both CSIS and the RCMP
in decisions about information sharing and about cooperation mechanisms.
Tremblay explained in testimony that “…law enforcement took the position
that, at times, it’s preferable for their prosecution to have less than more
information.”1161 Mike McDonell testified that he was a “firm believer” in the
philosophy of “less is more.”1162 In practice, the concept means that both CSIS
and the RCMP aim at the minimal amount of CSIS disclosure to the RCMP that
is necessary for the RCMP to proceed with its own investigation.1163 McDonell
explained his belief that, if the police can gather information themselves on the
basis of limited initial information from CSIS, then the issues of how the CSIS
information will impact on the criminal process can be avoided.1164 The “less
is more” approach is used in an attempt to protect as much CSIS information
as possible from potential disclosure, while also protecting the prosecution
from potential collapse should the presence of sensitive CSIS information in the
RCMP’s possession make full disclosure to the defence impossible.1165
1160
1161
1162
1163
1164
1165
Exhibit P-101 CAA1043(i), p. 12, CAA1081, p. 3.
Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12777.
Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12634-12635.
Testimony of Jamie Jagoe, vol. 82, November 23, 2007, pp. 10467-10468.
Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12634-12635.
Testimony of Jamie Jagoe, vol. 82, November 23, 2007, p. 10467.
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The prevalence of the “less is more” philosophy in shaping the recent
cooperation mechanisms is obvious. The RCMP no longer seeks full access to
CSIS information for its LO to review and to select all relevant materials. Instead,
the secondment program is aimed at fostering better understanding, while
ensuring that seconded members cannot bring information back to the host
agency. While deconfliction discussions can serve incidentally as the basis for
identifying a need to share information about a specific matter, they are mostly
aimed at ensuring that investigations do not overlap and that the RCMP can
gather for itself the information and evidence it deems necessary. The insistence
on advising the RCMP early on of the existence of a CSIS investigation serves to
ensure that the Force can proceed on its own and advise CSIS of the potential
conflict.
In fact, there are serious questions surrounding the necessity and the
effectiveness of “less is more” as a strategy for allowing CSIS to share some
information with the RCMP while avoiding legal issues surrounding disclosure
to the defence. It is also clear that the “less” that CSIS and the RCMP contemplate
that CSIS will pass to the RCMP, diminishes to “nothing” when CSIS decides that
the potential criminal offence involved is not serious enough to outweigh the
perceived jeopardy to CSIS operations that might result from disclosure.1166
Conclusion
The events of 9/11 led to a renewed interest in issues of national security. Both
CSIS and the RCMP again looked to improve their relationship. In 2005, partly
in anticipation of the Rae review, renewed effort by the agencies produced new
changes aimed at overcoming the difficulties that still remained in the cooperation
between CSIS and the RCMP.1167 The current situation remains challenging,
especially in terms of the effective transfer and sharing of information and of
the use of CSIS information in support of criminal prosecutions. Volume Three of
this Report addresses some of the legal and procedural recommendations that
aim to solve the problems that remain.
1166 For an in-depth discussion of these issues and of the manner in which they can be addressed, see
Volume Three of this Report: The Relationship between Intelligence and Evidence and the Challenges
of Terrorist Prosecutions.
1167 See Chapter V (Post-bombing), The Overall Government Response to the Air India Bombing.
�VOLUME TWO
PART 2: POST-BOMBING INVESTIGATION AND RESPONSE
CHAPTER V: THE OVERALL GOVERNMENT RESPONSE TO THE AIR INDIA
BOMBING
5.0 Introduction
The Government of Canada took a defensive stance early on in relation to
the Air India bombing and maintained this attitude throughout the years
in its interaction with the families of the victims and in its response to public
questions and external review. Rather than admitting their mistakes and taking
steps to address them, government agencies blamed each other and expended
their resources to unite in the defence of the Government against potential civil
liability and to act in a concerted effort, first to oppose external review, and
then to present a common position. Meanwhile, few meaningful changes were
made to address the deficiencies apparent from the Air India narrative until
the agencies were confronted with the prospect of an Inquiry, at which point
they took action to demonstrate that initiatives were now being put in place to
address long-standing cooperation problems.
At this Inquiry, the response of the Government followed along the lines of
the past response: mistakes were not admitted, an attempt at a common
front was presented, but overtones of mutual blame and criticism among the
agencies nevertheless remained. Despite all this, the limited evidence heard
at this Inquiry about the current level of interagency cooperation was, perhaps
surprisingly, overwhelmingly positive. This evidence, along with the overall
submissions presented on behalf of the Government, must be assessed in light
of the history of the Government’s response to the Air India terrorist attack in
the past decades.
5.1 Early Government Response
Immediate Public Response
In the immediate aftermath of the bombing, the Government issued statements
denying that there had been any deficiencies in the pre-bombing security
in relation to Air India Flight 182 and insisting that the screening of checked
luggage was entirely the responsibility of Air India, and not of the Government
of Canada.
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Shortly after the crash, the media were already reporting that three suspicious
bags, destined for Air India Flight 182, had been left behind at Mirabel.1 Transport
Canada took a public position immediately, on the day of the bombing, which
blamed Air India for allowing the plane to depart Mirabel without informing
Canadian authorities about the three suspicious bags. This position was
forwarded on the same day by the Department of External Affairs to Canadian
authorities in India to answer “…GOI [Government of India] or Indian Press
enquiries.”2
The Transport Canada statement of June 23, 1985 also implied that it would
have been Air India’s responsibility to identify and report any “specific threat”
to Canadian authorities, in which case “emergency procedures” would have
been followed.3 The evidence heard in this Inquiry revealed that the concept
of “specific threat” was only meant to apply to a narrow set of circumstances,
generally involving a call-in bomb threat, but that the Government nevertheless
remained responsible for implementing adequate security measures to respond
to threats which it was aware of through its intelligence collection activities.4
In the heat of the moment, however, officials turned to the lack of a “specific
threat” as an explanation and justification for any perceived laxness in security.
On June 25, 1985, the Minister of Transport, the Hon. Don Mazankowski,
responded to questions in the House of Commons in relation to the Air India
crash. He made repeated statements that there had been “…no indication that
there was a specific threat to Flight 182,” and that as a result “…the extraordinary
precautionary measures were not/not in place.” He also asserted that “…
whenever the Air India people had requested additional security or assistance
with regard to the surveillance of passengers and baggage and whenever there
were any suspicions and such requests had come to us, we responded on every
occasion.” The issue of the three suspicious bags left behind at Mirabel was raised
again, but this time the Minister decided not to discuss the incident, indicating
that it was the subject of “…a very delicate and intensive investigation by the
RCMP” and that it would therefore be inappropriate to comment further.5
Early Days of RCMP Task Force
In the early stages of the Air India investigation, the HQ RCMP Task Force had to
devote time and resources to the coordination of the RCMP public response, or
the response to those in office, even while attempting to set up and organize
the RCMP’s largest ever criminal investigation.
In the first days of the investigation, there was “mass confusion” at RCMP
Headquarters. Sgt. Warren Sweeney, a member of NCIB at RCMP HQ, who was
assigned to work on the Air India matter from the beginning, explained that
1
2
3
4
5
Exhibit P-101 CAF0057, p. 43; See Section 1.11 (Pre-bombing), The Cost of Delay – Testimony of Daniel
Lalonde.
Exhibit P-101 CAE0209, pp. 1-2.
Exhibit P-101 CAE0209, p. 2.
See Section 4.3 (Pre-bombing), The Role of the “Specific Threat” in the 1985 Threat-Response Regime.
Exhibit P-101 CAF0825, pp. 2-4.
�Chapter V: The Overall Government Response to the Air India Bombing
the analysts and readers were entirely consumed by the requirement to make
18 copies of each piece of paper dealing with the investigation for distribution
amongst RCMP senior management and line officers “…so everyone could
read the same report at the same time at the general meetings held in the
Commissioner’s office.”6 HQ members were “…running all over the place,”
getting telexes, answering phone calls and responding to requests from senior
management.7 As a result, the RCMP members working at HQ had “…no time
to analyze any information,” and telexes to Liaison Officers and to the RCMP
Divisions were “…sometimes overlooked and definitely delayed.”8
The situation improved somewhat a few days after the bombing, when the HQ
and divisional Task Forces began to be more formally organized.9 However,
during the following weeks, the RCMP had to participate in daily meetings
of the Interdepartmental Task Force into Air India Flight 182 chaired by the
Prime Minister’s Office, along with other government agencies, including
CSIS, Transport Canada and the Department of Justice.10 The purpose of these
meetings was to “…ensure that key government officials possessed up-to-date
information, and to devise timely strategy concerning response to the press,
assistance to victims’ families, assistance to the Indians in their investigation,
etc.”11 The RCMP HQ Task Force had to produce situational reports on a daily
basis for the information of senior management. As a result, daily update reports
were requested from each division and from Liaison Officers abroad. HQ then
compiled the information received and outlined investigative leads, Liaison
Officer assistance and “…general information dealing with PMO’s decisions and
aspects of [the] civil aviation investigation.”12 The reporting requirements were
heavy for the divisional investigators involved in this large-scale investigation,
and E Division, in particular, could not always keep up.13
One of the matters Sweeney was asked to look into immediately after the
bombing was the issue of the three suspicious bags left behind at Mirabel. On
June 23rd, he called Mirabel to find out why luggage was removed from the
plane and to obtain details of the incident.14 Then, on the same day, C Division
reported to HQ officials with an explanation of what had occurred.15 Further
inquiries were made by HQ during the day about the use of explosives detection
dogs at Mirabel airport.16 It was learned that no dog search had been done in
Toronto at Pearson International Airport, and that the special security had been
at level 4.17
6
7
8
9
10
11
12
13
14
15
16
17
Exhibit P-101 CAF0055, p. 3; Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2646-2647.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, pp. 2646-2647.
Exhibit P-101 CAF0055, pp. 3-4; Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2646.
Testimony of Warren Sweeney, vol. 25, May 8, 2007, p. 2646.
Exhibit P-101 CAF0055, p. 4, CAF0880, p. 1.
Exhibit P-101 CAF0880, p. 1.
Exhibit P-101 CAF0055, p. 4.
See Section 2.1 (Post-bombing), Centralization/Decentralization.
Exhibit P-101 CAF0035, pp. 5-8.
Exhibit P-101 CAF0057, p. 43.
Exhibit P-101 CAF0035, pp. 18-19.
Exhibit P-101 CAF0035, p. 27. A telex was apparently prepared requesting RCMP airport security to
increase security following the bombing and, where explosives detection dogs were available, to
use them to check all the baggage destined for Air India flights or flights connecting to India: Exhibit
P-101 CAF0035, p. 30.
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On June 27th, an RCMP member, Cpl. Leblond, was asked to go to Mirabel airport
for the purpose of “clarifying” a newspaper article, published the previous day,
which alleged that security was lax at Mirabel. He interviewed two RCMP
airport policing members, one RCMP member from the local detachment and
the Air Canada security officer. The individuals interviewed were aware of the
article, and explained how Burns Security had set aside three bags because
they were suspicious. Leblond learned that the three bags incident had been
discussed during a meeting involving RCMP, Transport, Air India and Air Canada
officials, held at Mirabel on June 25th, to enhance the implementation of security
measures. A union representative for Air Canada was present, and Leblond
noted that this was probably how a “…deformed version of the facts” was given
to the press, which then used it for “propaganda.” Leblond submitted a report
about his investigation and concluded that no further action was necessary.18
Government Interaction with the Families of the Victims and Early Inquiries
On July 22, 1985, representatives of the Canadian Government met on Parliament
Hill with representatives of the Canadian families who lost relatives in the Air
India crash.19 The meeting was chaired by J.A. (“Fred”) Doucet, Senior Advisor to
Prime Minister Brian Mulroney, and attended by four Members of Parliament.
By then, some of the family members had already produced Notices of Claim
against the Crown as a result of the crash, and many more Notices were received
by the Government in the following weeks and months20 (as of January 1986,
approximately 155 law suits had been launched against the Government).21
The purpose of the meeting was described by Doucet as an “…update on
information.” Members of various departments of the Government, including
External Affairs, Transport Canada and the Department of Multiculturalism,
made short presentations to the families. There were also presentations by the
Canadian Aviation Safety Board and the Canadian Coast Guard. In his opening
comments, Doucet stated that the purpose of the meeting was to update the
families on the latest information available and stressed that the meeting was
not a forum for “…presenting petitions or ascribing blame.”22
Terry Sheehan, Director General of Consular Affairs for the Department of External
Affairs, described the consular task force that was established after the crash
and explained the consular services that had been arranged and made available
to next of kin following the bombing. Daniel Molgat, also from Consular Affairs,
explained the consular operation that had been put into place in Cork, Ireland,
and the nature of assistance that had been provided to families.23
Paul Sheppard, Director of Civil Aviation Security, Department of Transport,
described the security measures in place for civil aviation at Canadian airports
and the special measures that had been announced by the Minister of Transport
after the bombing. Sheppard began his remarks by stating that:
18
19
20
21
22
23
Exhibit P-101 CAC0482, pp. 2-3, 7.
Exhibit P-101 CAF0819.
Exhibit P-101 CAF0785, pp. 15-19; CAF0880, p. 2.
Exhibit P-391, document 100 (Public Production # 3224), p. 6.
Exhibit P-101 CAF0819, p. 1.
Exhibit P-101 CAF0819, p. 1.
�Chapter V: The Overall Government Response to the Air India Bombing
We have no knowledge that even if a criminal act was involved
that there was a breach of Canadian security – an explosive
device, if it existed, could have been placed on the aircraft
anywhere.24
He noted that Canada “…meets or exceeds” international civil aviation standards.
He stated that Air India met Canadian standards, but that, in response to threats
received by the airline about one year ago, “…stricter measures were applied to
Air India flights with respect to security of baggage.” He noted that “no specific
threat” had been lodged against Air India Flight 182, but that there had been
“strict precautions” in place due to the overall level of threats involving Air India
flights. He explained that, had there been a specific threat, “…additional security
measures would have been imposed on Air India by Transport Canada and the
law enforcement authorities.”25 He explained the assignment of responsibilities
between the Government of Canada and Air India, and discussed the additional
aviation security measures that were now being taken.
The Chief of Staff for the Department of Multiculturalism described a grant
that had been provided by the Federal Government to assist in providing
“information assistance” to bereaved families. Toll-free information lines had
been set up to cover Ontario, BC, Quebec and the Atlantic provinces, to provide
information on where families could go to receive counselling on psychological,
legal and financial matters. A press release announced the establishment of
these services. Doucet also informed the group of the monument that was to
be erected in Ireland.26
During the meeting, a “recurring theme” expressed by the families was the need
for further assistance to bereaved families with respect to financial, psychological
and other counselling. A government official provided additional information
on how the Information Centres (Vancouver, Toronto, and Montreal) would
function, and their roles in helping families to access all resources which could
be of assistance. Several participants raised concerns about the financial plight
of bereaved families, and asked whether the Canadian Government would be
providing financial assistance to the families, particularly those who had lost
the breadwinner. One participant asked whether the Canadian Government
planned to set up a special fund for the families of the victims of Flight 182.27
Doucet explained that there were:
…already structures and programs in place to assist families
in financial need in Canada. The Federal Government
participates, through a cost sharing programme with the
provinces, in a number of social programmes designed to
provide financial assistance to those in need.28
24
25
26
27
28
Exhibit P-101 CAF0819, p. 10.
Exhibit P-101 CAF0819, pp. 3, 11.
Exhibit P-101 CAF0819, p. 4.
Exhibit P-101 CAF0819, pp. 6-7.
Exhibit P-101 CAF0819, p. 8.
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In other words, the families were directed to existing financial aid programmes
– such as welfare assistance – with no special assistance offered in light of their
particular plight.
In response to the families’ concerns about the need for provision of information
to other bereaved families not in attendance, Doucet agreed that “…every effort
should be made to maintain and increase the flow of information to bereaved
families,” and undertook to provide a summary of proceedings, produce a
checklist of steps families could take to access services offered by various level
of government, and to maintain open and effective communication between
the Government and the families.29
It appears that this promised open communication between the Government
and the families was not successfully maintained. By 1987, the families were
claiming that “…the only way they have of finding out anything about the
tragedy is through the media.”30 In testimony before this Inquiry, current RCMP
Commissioner William Elliott commented that part of the “lessons learned”
from the Air India tragedy was that the RCMP “…need to do a better job” in
communicating with the public and with victims’ families.31 He stated:
I think we have a role to play with respect to providing
support or access to support, and I think we need to be more
forthcoming, recognizing that there may be appropriate and
necessary limitations on how forthcoming we can be.32
He noted that there were a number of instances unrelated to Air India where the
RCMP had been criticized for not being more forthcoming, and that “…not all of
that criticism is unfounded.”33
In the mid-1990s, the RCMP finally opened a dialogue with groups representing
the families and held several meetings to discuss the investigation, meetings
the Force found “…very useful in establishing understanding and confidence.”
CSIS, however, did not participate. The RCMP invited the Service to take part
in this dialogue but the agency refused.34 CSIS Director Jim Judd testified that,
beginning in 2005, CSIS had been participating in meetings with the families
and that he believed this was appropriate. He explained that he had tried to
find out why the Service had previously had little or no contact with the families
and that he still did not have a clear answer, but had heard that it was “…on the
basis of legal advice or policy advice.”35 CSIS has provided this Inquiry with no
further documents or information explaining what legal or policy advice could
justify its refusal to meet the families.
29
30
31
32
33
34
35
Exhibit P-101 CAF0819, p. 8.
Exhibit P-101 CAB0737, p. 2.
Testimony of William Elliott, vol. 90, December 6, 2007, p. 11841.
Testimony of William Elliott, vol. 90, December 6, 2007, pp. 11841-11842.
Testimony of William Elliott, vol. 90, December 6, 2007, p. 11842.
Exhibit P-101 CAA0969, p. 24.
Testimony of Jim Judd, vol. 90, December 6, 2007, pp. 11847-11848.
�Chapter V: The Overall Government Response to the Air India Bombing
Though communication with the families was not always maintained, the
Government of Canada did invest a great deal of time and resources in
attempting to preserve its public image and to avoid liability in the civil suits
launched by the families.
Shortly before the July 1985 meeting with the families, the Government of India
had appointed Justice Kirpal to conduct a public inquiry into the crash of Air
India Flight 182. Earlier in the same month, the Government of Canada had
appointed Ivan Whitehall, General Counsel with the Department of Justice, to
“…coordinate all litigation on behalf of the Government of Canada,” in light of
the Notices of Claim produced by the families. Whitehall was also instructed
to seek standing on behalf of the Government of Canada at the Kirpal Inquiry.36
A Government memorandum to the Minister of Transport, dated August 15,
1985, warned of a possible conflict in the Government’s position before the Kirpal
Commission.37 The Canadian Aviation Safety Board (CASB) was independent
from the Department of Transport (DOT), and had already begun to provide
assistance to the Indian officials who were investigating the wreckage of Air
India Flight 182. However, the memorandum indicated that CASB now “…may
perceive itself as being in a position of conflict” in terms of representation at
the Kirpal Inquiry. The memorandum explained that CASB viewed its interests,
described as “…aviation safety, determination of the cause of the accident” as
being “…possibly at odds” with those of the Government as a whole, which were
described as “…ensuring that the commission of inquiry receives in the best
light evidence concerning Canada.”38
The Minister of Transport was informed of the possible conflict, described as
“purely hypothetical” for the time being, between CASB and DOT because he was
responsible for both entities and could be asked to intervene if Whitehall and
CASB could not reach an agreement.39 In the event that the conflict did present
itself, the memorandum indicated that CASB had no legal authority to represent
Canada at the Kirpal Commission, and could not act as an independent party at
an inquiry in a foreign state, unlike the situation at domestic judicial inquiries.
The memorandum argued:
It is important for Canada’s international image that Canada
speak with one voice, and it would seem that that voice should
not be that of the CASB. The DOT, if its security measures are
found blameworthy, has most to lose in such an inquiry. If
Justice Kirpal determines that Canada is blameworthy by
virtue of its inadequate security measures, then even in the
event the courts in Canada do not subsequently find liability,
the political and financial costs may be unavoidable. The DOT
should therefore at the least provide the lead role in advising
counsel in the conduct of the inquiry.40
36
37
38
39
40
Exhibit P-101 CAF0880, p. 2.
Exhibit P-101 CAF0880.
Exhibit P-101 CAF0880, p. 2.
Exhibit P-101 CAF0880, pp. 3-4.
Exhibit P-101 CAF0880, p. 3.
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The memorandum recommended that Whitehall be instructed by all
departments and agencies concerned, including CASB, and that dispute
resolution take place in the Prime Minister’s Office or at the Cabinet level.41
The Government memorandum went on to express concern about the cost
of representing Canada at the Inquiry, indicating that it had not yet been
determined who would be responsible for the costs of DOJ counsel – the DOJ,
the DOT, the PMO on behalf of the Government, or all agencies involved. In
any event, the memorandum suggested that the agencies who had expressed
interest in sending observers or advisers – the RCMP, CASB and the DOT – should
do so at their own cost.42
The resources required to prepare for the Kirpal Inquiry were also a concern
for the RCMP. Pursuant to international law, Canada had to provide India,
the requesting state, with all information gathered about civil aviation at
the Canadian airports involved.43 As a result, in addition to conducting its
purely criminal investigation, the RCMP was required to conduct an extensive
investigation into civil aviation security measures applied at Vancouver, Pearson
and Mirabel airports on June 22, 1985,44 which meant also investigating some of
the measures implemented by the RCMP itself.
The RCMP committed to providing the Kirpal Commission with comprehensive
and detailed reports about this investigation. From an administrative perspective,
this required the HQ Air India Task Force to compile and index over 5000 pages
of documents, photographs and drawings and to produce a 12-volume interim
report in August 1985, a two-volume supplementary report in October and a
final report in November. RCMP members working in the divisional Task Forces
had to conduct countless interviews with all personnel involved at the three
airports, including cleaning crews, Burns Security employees, RCMP Airport
Detachment members, airline employees and others who worked at the airport.
The investigation was described by Sweeney as “…lengthy, detailed and at
times frustrating,” since the individuals to be interviewed were difficult to locate
and lawyers were present at the interviews.45 In practice, this meant that, in the
weeks and months following the bombing, many of the 200 RCMP members
who were assigned to the Air India investigation in its early stages46 were, in fact,
employed in the conduct of the aviation security investigation. According to
Sweeney, this hampered the RCMP criminal investigation.47
Despite its concerns, the Government did expend the necessary resources to
prepare for the Kirpal Inquiry and to send Whitehall to represent the Canadian
Government’s position. Before the Kirpal Commission began its hearings,
Whitehall was also sent to represent Canada at the Coroner’s Inquest held
41
42
43
44
45
46
47
Exhibit P-101 CAF0880, p. 4.
Exhibit P-101 CAF0880, pp. 4-5.
Exhibit P-101 CAF0055, pp. 3-4.
Exhibit P-101 CAF0055, p. 3.
Exhibit P-101 CAF0055, pp. 4-5.
See Exhibit P-101 CAA0335, p. 11, CAF0438, p. 20.
Exhibit P-101 CAF0055, p. 4.
�Chapter V: The Overall Government Response to the Air India Bombing
in Cork, Ireland, from September 17 to September 22, 1985. The purpose of
the inquest, presided over by Coroner Cornelius Riordan, was to establish the
identities of the victims whose bodies were recovered and to determine how,
when and where their deaths occurred.48
At the inquest, a lawyer representing several of the victims’ families attempted
to show that the crash had most likely been caused by an explosion and that the
airport security measures applied were insufficient.49 According to an internal
government report, this attempt was “successfully balanced” by Whitehall, who
indicated that bombing was “…only one of several possibilities” and that there
was no evidence as to what had taken place on the aircraft. When the Coroner
“…appeared to have made up his mind” that the crash was most likely caused by
a bomb and contemplated instructing the jury to recommend “…closer scrutiny
of baggage at airports,” Whitehall intervened on behalf of the Government of
Canada to remind the Coroner that his powers were limited to assigning the
cause of death of the victims, and that there were a “…number of possible causes”
for the crash itself which had not been the subject of complete evidence at the
inquest and would be investigated at the Kirpal Commission. Whitehall further
argued that there was “…no/no evidence to indicate that security at Montreal
or Toronto airports had been at fault.”50 The Coroner ultimately accepted this
argument, instructing the jury that there was no conclusive evidence about
the cause of the crash and that they should make no recommendations.51 The
Government provided a report to the families summarizing the proceedings at
the inquest, but made no mention of this debate and of the position adopted
by Canada.52
Before the Kirpal Commission, the Government continued to take the position
that there was no conclusive evidence of a bomb or of any inadequacies in
the Canadian security measures. The Government also blamed Air India for
any security breaches. On October 24, 1985, a DOT lawyer swore an affidavit
for the Kirpal Inquiry, which described the statutory regime in place for the
regulation of civil aviation in Canada and stated that it placed “…a duty on the
owner or operator of a foreign aircraft to ensure the security of its passengers
and aircraft.”53
On January 7, 1986, Whitehall met with representatives of the RCMP, DOT and
CSIS to discuss “…the matter of security as it was in place on 85-06-22.” Sheppard
of DOT outlined the history of Air India in Canada. He explained that Air India
had requested the same security measures as another airline, but noted that
this other airline “…is prepared to live with the problems resulting from its
stringent security measures, i.e. long lineups, passenger anger, etc.,” clearly
implying that Air India was not. Sheppard mentioned that “…for the sake of
credibility and passenger confidence,” Air India had decided to use an x-ray
48
49
50
51
52
53
Exhibit P-101 CAF0879, p. 1.
Exhibit P-101 CAE0339, pp. 2-3, CAF0878, p. 1.
Exhibit P-101 CAE0339, pp. 3-4.
Exhibit P-101 CAE0339, p. 4; Exhibit P-391, document 295 (Public Production # 3428), p. 2.
See Exhibit P-101 CAF0879; Exhibit P-391, document 295 (Public Production # 3428).
Exhibit P-101 CAF0785, p. 3.
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machine to examine baggage for its flights. He then explained that beginning
with the original Air India flight from Canada and continuing with subsequent
flights, “…there were perceived threats to the airline” which were brought to the
attention of the RCMP and Transport Canada through letters from Air India. He
indicated that “…almost every flight was preceeded [sic] by a letter outlining a
threat.” Most of those present at the meeting felt that “…this was Air India’s way
of having increased security for their flights at no extra cost to them.”54
The RCMP Airport Detachment members present discussed the security measures
in place at Mirabel and Pearson, and mentioned that “…it is impossible to have
a dog search all luggage going on board as it is too time consuming.” They did
state, however, that “…for best results, a combination of dog and physical search
of all luggage is required,” though they admitted that no physical searches of
bags were done at Pearson or Mirabel on June 22, 1985.55 As is now known, no
dog searches were done either.56
Whitehall asked about Government powers to prevent the aircraft from
departing if conditions were unsafe and was told by Bruce Stockfish of DOT
that “…there must be a specific threat” to the plane for the Government to be
empowered to detain an unsafe plane under the regulations. Stockfish insisted
that “…there was no/no specific threat to Air India 181/182 on 85-06-22.” The
CSIS threat assessments immediately preceding the bombing were discussed
and Whitehall inquired about who had received them. He learned that the June
18th CSIS assessment had not been transmitted to security officers at Pearson
and Mirabel.57
During the meeting, Whitehall also learned that there was no uniform policy,
either at Transport Canada or at the RCMP, for response to threats across the
country, as the handling of threats was left to local authorities. Sheppard did
mention, however, that CSIS threat assessments were routinely passed to the
directors of security of the airlines concerned. The deficiencies in the security
measures applied by Air India were then reviewed, including the documented
inefficiency of the PD4 Sniffer, the “…several mechanical failures” which plagued
the x-ray machine because it had to be moved constantly, and the poor pay
and training of Burns Security employees. Whitehall then made inquiries about
Transport Canada’s supervisory role with respect to those security measures
and learned that there was no systematic check of whether airlines were
complying with their security plans, and that there was no monitoring of Air
India’s security plan. He also learned that if problems were to be found in the
airline’s security measures, the only remedies available were either simply to
notify the airline of the deficiency in writing or to stop authorizing it to fly out
of Canada altogether.58
54
55
56
57
58
Exhibit P-101 CAC0517, pp. 1-2.
Exhibit P-101 CAC0517, pp. 2-4.
See Section 4.6 (Pre-bombing), RCMP Implementation Deficiencies in the Threat-Response Regime.
Exhibit P-101 CAC0517, pp. 3-4.
Exhibit P-101 CAC0517, pp. 4-5.
�Chapter V: The Overall Government Response to the Air India Bombing
At the close of the meeting, Whitehall requested that investigator notes and all
correspondence concerning Air India “…be frozen for future civil litigation.”59
Also in January 1986, a CASB preliminary report suggesting that the Air India
crash was caused by an explosion in the forward cargo compartment caused
concern in the Government. In November 1985, the Kirpal Inquiry had
concluded a first round of hearings, and the CASB had asked its staff to prepare
a report on “the accident” before the beginning of the next round of hearings
on January 22, 1986. At the time, the RCMP and DOT had both indicated that it
was “…far too premature” to prepare this report, as there was “…no conclusive
evidence” of what had happened with the flight. The RCMP had developed “…
strong circumstantial evidence” of a bag getting on board through the system in
Vancouver and had more details than the CASB, but was still “…not prepared to
say that an explosive device entered the system this way and that it caused the
disintegration of Air India 182.”60 Between November 1985 and January 1986,
the RCMP participated in a number of meetings with the Department of Justice
and other government agencies, where the evidence to be presented and “…
the posture to be taken by Canada were laid out.”61
On January 16, 1986, the CASB introduced its report at a meeting chaired by
Doucet of the PMO. Whitehall “…felt very strongly” that he had to review the
report before it went forward, and that “…the report should not go to the Kirpal
Inquiry if it had any information which was not in line with other facts being
brought forward through the Canadian input into the Kirpal Inquiry.” Heated
discussions followed, and the jurisdiction and authority of the CASB to write
this report in the first place was questioned. Eventually, a decision was made at
the PMO meeting that the report would not be presented to Kirpal, but that its
author would testify and his evidence would constitute “…just another piece of
testimony for Kirpal.” The Cabinet Ministers involved supported this decision.62
On January 23, 1986, Sheppard prepared a confidential memorandum about the
CASB report after “…knowledge of its existence surfaced at the Kirpal Inquiry.”
The author of the report was scheduled to testify the following week, which
Sheppard noted would “…cause much publicity.” Sheppard wrote that there
were “…many reasons for not wishing to enter the report,” including the fact
that it was based on inconclusive evidence and could not be completed in time
for the close of the Kirpal Inquiry. In addition, he explained that Justice Kirpal
had been trying to tie the Narita incident with the crash of Air India Flight 182
for some time and had been unsuccessful. A “…potential damaging part” of the
CASB report was that it would provide Justice Kirpal with “…the linkage that
was not given to him by the Japanese police or the RCMP.”63 In a previous status
report, the RCMP had noted that the “sensitive matter” of Japanese evidence in
Canadian hands had been discussed extensively with Whitehall. It was noted
that Justice Kirpal viewed the Narita explosion as relevant to his mandate and
59
60
61
62
63
Exhibit P-101 CAC0517, p. 5.
Exhibit P-101 CAF0881, p. 1.
Exhibit P-391, document 100 (Public Production # 3224), p. 5.
Exhibit P-101 CAF0881, p. 1.
Exhibit P-101 CAF0881, pp. 1-2, 5.
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would attempt to learn facts about Narita. While the RCMP could understand
the rationale behind Justice Kirpal’s interest, the Force decided to act “…in the
best interests of our criminal investigation” and was trying, in close consultation
with Government legal counsel, to “…meet the competing interests of the Kirpal
Inquiry and the criminal investigation.”64
In his memorandum, Sheppard provided an analysis of the CASB report,
explaining that though “…one cannot find too many points of factual error” in it,
the report was “…probably more damaging” because of the way it was written
and what it did not say, leading one to conclude that there was only one possible
way an explosive device could have been put on board the flight.65
Sheppard provided a list of the difficulties DOT had with the report, which
included: the fact that it left out possibilities that a device could have been
put on board in places other than Vancouver; that it went “way beyond” the
CASB mandate by attempting to determine how an explosive device was put
on board the plane, as opposed to whether the cause of the crash was such
a device; that it did not discuss the interlining of bags in the rest of the world,
which could give the impression that it was only the Canadian system that
would allow this; that it dismissed without consideration expert testimony
going against the idea of a bomb as the cause of the crash; that it only used “…
the RCMP evidence which it finds suitable to arrive at its conclusions” – even
if the RCMP had other evidence that could not be mentioned because of the
investigation; that it did not “…really bring out” the fact that the noise heard
from the PD4 sniffer in Toronto was not the one that would be generated by
the detection of an explosive device; and that Burns Security and the DOT were
condemned for having provided inadequate training, while, in fact, DOT “…only
requires people to be trained at the passenger screening point,” and the Burns
employees screening checked luggage “…were working for Air India and were
not part of the Canadian program.”
One additional entry on the list was that the report implied that Air India only
asked for increased security in June 1985, whereas, according to Sheppard,
they had asked for additional security for “…just about all of their flights since
June 1984”; and whereas the June 1985 request related mostly to the period
surrounding the Gandhi visit to the US, which was concluded before June
22nd (Sheppard was not then aware of the June 1st Telex from Air India,66 which
warned that increased vigilance was necessary for the entire month, and which
neither Air India nor the RCMP had transmitted to DOT).67
Sheppard, in his memorandum, also expressed concern about some of the
conclusions of the CASB report. He noted that the report concluded that
there was no evidence of a structural failure, but that CASB had found nothing
64
65
66
67
Exhibit P-391, document 100 (Public Production # 3224), p. 7.
Exhibit P-101 CAF0881, p. 2.
See Section 1.2 (Pre-bombing), June 1st Telex.
Exhibit P-101 CAF0881, pp. 3-5.
�Chapter V: The Overall Government Response to the Air India Bombing
conclusive to indicate that it was not a structural failure which caused the crash.
Further, the report concluded that an unaccompanied suitcase was interlined,
while the RCMP could not be “this positive” since the suitcase was never
recovered.
Sheppard noted that the objective of his memorandum was not to deny that
the Air India crash happened as described in the CASB report. In fact, he wrote
that there was “…very strong circumstantial evidence that it was brought down
in the manner described.” However, the DOT and RCMP positions remained that
there was “…no conclusive evidence that the aircraft was brought down by an
explosion in a piece of checked luggage.”68
The Government’s stance – denying that there was proof that Air India Flight 182
was brought down by a bomb – made the families’ position in the civil litigation
particularly difficult, since, according to the rules of evidence, they had to prove
on the balance of probabilities that the plane was brought down by a bomb,
which would require complex and costly expert evidence, and which might not
be possible without access to the wreckage of the plane. In his memorandum
about the CASB preliminary report, Sheppard noted that as of January 1986,
the RCMP had not come to the conclusion that the plane was brought down
by a bomb put on board in Vancouver, and was “…still actively investigating
several other alternatives.”69 Yet, the documents and testimony presented in this
Inquiry show that the RCMP viewed the Air India tragedy as a bombing from the
outset,70 and quickly gathered evidence which, though it may not have been
sufficient in itself to fulfill the criminal burden of proof beyond a reasonable
doubt, was sufficient to confirm this theory for the RCMP and to eliminate the
need to investigate other possible causes for the crash. As early as June 24,
1985, CSIS noted that, though the “definite cause” of the crash had not been
determined, “…mounting evidence suggests a bomb blast aboard the plane.”71
RCMP Deputy Commissioner Henry Jensen indicated in testimony that, by
July 1985, the RCMP “…certainly had very good reason to believe that a bomb
originated out of British Columbia.”72
Counsel for the Government of Canada in this Inquiry confirmed during
representations on behalf of the RCMP and other government agencies that the
RCMP Task Force was “…operating on the assumption that there was a bomb”
from very early on, and could appreciate the significance of the connections
between the Narita and Air India incidents. According to counsel, the RCMP’s
continued attempts to gather physical evidence were simply meant to ensure
that the presence of the bomb could be proven in a criminal courtroom.73 It
was not until the 1990s that the RCMP was able to obtain evidence it considered
68
69
70
71
72
73
Exhibit P-101 CAF0881, p. 5.
Exhibit P-101 CAF0881, p. 3.
See, for example, Testimony of Don McLean, vol. 21, May 1, 2007, p. 1986. Already on June 23rd, the
RCMP had requested a briefing on Sikh militants in the Vancouver community.
Exhibit P-101 CAB0851, p. 14.
Testimony of Henry Jensen, vol. 44, June 18, 2007, p. 5425.
Representations by Loretta Colton, Counsel for the Attorney General of Canada, Transcripts, vol. 21,
May 1, 2007, p. 2058.
557
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sufficient to prove that Air India Flight 182 was bombed.74 However, S/Sgt. Bart
Blachford, currently the lead Air India investigator in British Columbia, explained
that the investigation was already proceeding on the assumption that there was
a bomb, long before this evidence was obtained:
Well, sir, I mean the evidence alone speaks that it was a
bomb; one phone call books both tickets. I mean that is sort
of our mantra. So, I mean, there is really not much – no other
conclusion….75 [Emphasis added]
Despite this general agreement amongst the RCMP members investigating Air
India, the RCMP went along with the official Government position that it was
not proven nor admitted that there was a bomb. The effect, if not the purpose,
was to make the families’ legal position much more difficult.
The Kirpal Commission completed its public hearings in February 1986. Whitehall
reported that Canadian interests were “fully served,” as Justice Kirpal had
indicated that his report would deal solely with the cause of the crash and would
not seek to allocate responsibility.76 With this issue resolved, the Department of
Justice could now focus its work on the defence of the Government in the civil
litigation.
In this context, on February 7, 1986, the DOJ Civil Litigation Section instructed
CSIS to retain all original tape intercept materials relating to Sikh extremism.
As a result, CSIS instituted a moratorium on its routine erasure of tapes.77
Previously, CSIS had been erasing its intercepts of Parmar’s communications,
whether recorded before or after the Air India bombing, to the (subsequent)
great dismay of RCMP investigators.78 Yet, as soon as civil litigation counsel
got involved to request that all tapes be preserved, CSIS immediately made its
contribution to the common efforts to defend the Government and ceased its
erasures. While the DOJ may not have been aware of CSIS’s erasure policies
in July 1985, it is noteworthy that the careful steps to preserve any potential
evidence which were taken in 1986 for purposes of the civil litigation were
not taken immediately after the bombing for the purposes of furthering the
criminal investigation, even though a DOJ counsel was involved with the RCMP
Task Force and the BC Crown in the early stages of the investigation.79 At that
time, neither the RCMP nor the DOJ made a formal request to CSIS to preserve
all Sikh extremism intercepts or even all intercepts of Parmar, once it was known
that Parmar’s communications were being intercepted.80
74
75
76
77
78
79
80
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7813.
Testimony of Bart Blachford, vol. 63, October 17, 2007, p. 7813.
Exhibit P-101 CAE0414, p. 1.
See Exhibit P-101, CAA0549, CAA0609, p. 15, CAA0913(i).
See Section 4.3.1 (Post-bombing), Tape Erasure.
See Testimony of James Jardine, vol. 47, September 18, 2007, pp. 5662-5664; Exhibit P-101 CAD0005,
p. 6.
See Section 4.3.1 (Post-bombing), Tape Erasure.
�Chapter V: The Overall Government Response to the Air India Bombing
DOJ counsel representing the Government in the civil litigation also
participated in the negotiations about the release of CSIS information for the
Narita prosecution. Several high-level meetings were held in Ottawa, with
representatives from the Attorney General of British Columbia (AG BC), the
RCMP, CSIS, the Solicitor General and the DOJ (in its capacity as legal counsel
for the agencies), to discuss the release of CSIS information and documents
to Crown prosecutor James Jardine, and the use which could be made of that
information in terms of disclosure to the defence or regarding introduction into
evidence to rebut an eventual abuse of process motion based on CSIS’s erasure
of the Parmar Tapes.81 One of the meetings took place on October 4, 1988, with
civil litigation counsel also in attendance.82 The purpose of the meeting was:
…to establish lines of communication and positive dialogue
with a view to developing strategy to lead evidence in the
most favourable light in both the criminal and civil cases.83
The issues facing the Crown in the criminal prosecution and those facing the
Government in the defense of the civil litigation were discussed. Whitehall
explained that, in terms of the civil litigation, important issues would include
threat assessment and whether CSIS had sufficient information in its possession,
including the information gleaned from the Parmar intercepts, to justify a
conclusion that it “…knew or ought to have known that there was a possibility
of bombs being targeted for Air India flights or being interlined to Air India
Flights.” In an earlier meeting with the RCMP and the AG BC, the CSIS Director
General of Counter Terrorism had stated that CSIS was “…quite concerned
about references in RCMP letters that CSIS ‘destroyed evidence’,” since this put
CSIS “…into a bad position for future civil proceedings.” CSIS had requested that
the RCMP “…refrain from using reference to destruction of evidence in future
correspondence.”84
In the end, however, though there could be ramifications in the civil proceedings
resulting from the disclosure of CSIS materials, Whitehall received instructions
indicating that the criminal prosecution was to take precedence. In fact, civil
litigation counsel worked together with the Crown prosecutors to review CSIS
materials and to prepare a disclosure package of relevant materials for the
plaintiffs in the civil action and the defendant in the criminal case.85
In addition to its efforts to defend the civil litigation, the Government also
attempted to limit the resources it would have to expend to assist the families
of the victims. In a March 1986 memorandum, Douglas Bowie, Assistant Under
Secretary of State – Multiculturalism, provided an update about Multiculturalism
Canada’s involvement in the Air India incident to date. That department had
been called upon to assume the cost of a number of “…community-based or
81
82
83
84
85
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Exhibit P-101 CAF0177.
Exhibit P-101 CAF0177, p. 5.
Exhibit P-101 CAF0172, pp. 7-8.
Exhibit P-101 CAA0708(i), CAF0177, pp. 7, 9.
559
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community-related activities.” These included: making the arrangements and
paying for costs for selected members of the Indo-Canadian community to
attend the information meeting on July 22, 1985; providing a $30,000 grant to a
Toronto-based group called “Flight 182 Relief Program” to act as a focal point for
community contact and liaison for problems related to the crash; drafting and
designing an information “Guide to Services” for bereaved families; installing
and operating a toll-free hotline, which remained in operation until “demand
fell off ”; liaising with PCO on the drafting and mailing of an information circular
sent out by the Prime Minister’s Office (Doucet); and assuming the cost of
three community representatives to accompany the Minister of Transport to a
memorial ceremony held in Cork on August 5, 1985.86
The unveiling of a new commemorative monument was being planned for
June 23, 1986 in Cork, Ireland, and Bowie indicated that “informal approaches”
had already been made to Multiculturalism Canada about the “…possibility of
assisting those families who would face financial difficulties in paying their way.”
He explained that External Affairs was chairing an interdepartmental group to
coordinate planning for the unveiling, and that the advice of this group was that
it would be “…impractical and extremely costly to provide financial assistance
to families. It would also be inconsistent with government action around other
disasters.” Bowie noted, however, that given “…our experience during the year,
we anticipate that the Prime Minister’s Office might once again direct us to
provide some assistance.”87
Ongoing Public Image Concerns and Interagency Debates
Government agencies continued to be concerned with preserving their public
image during the years following the Air India bombing. CSIS and the RCMP
often pointed the finger at one another with respect to specific incidents which
occurred during the investigation, with each agency attempting to preserve its
own reputation.
At times, concern with preserving public image had an impact on the conduct
of the RCMP Air India investigation. In relation to the November Plot, the
RCMP began to pursue interviews with Person 2’s associates and possible
November Plot co-conspirators only in April 1986, after the media reported
in February 1986 that the RCMP had received a prior warning of the Air India
bombing.88 Reviews of the file were conducted in E Division immediately after
the media reports – which referred to the November Plot information – and a
determination was made that the November Plot issue should be investigated
further.89 Previously, E Division had done very little to pursue the issue, and the
RCMP had practically decided, before truly investigating it, that the November
Plot information was not reliable and not related to Air India. The desire to
refute public allegations that the RCMP had not heeded a prior warning of the
86
87
88
89
Exhibit P-391, document 311 (Public Production # 3444), pp. 1-2.
Exhibit P-391, document 311 (Public Production # 3444), p. 3.
Exhibit P-120(c), p. 5 (entry for Feb. 13-15, 1986: doc 526-3, pp. 71-73), see also p. 7 and following.
Exhibit P-120(c), p. 6 (entry for Feb. 17, 1986: doc 3, entry for Feb. 19, 1986: doc 526-3, pp. 76-83 and
entry for Feb. 26, 1986: doc 518-3).
�Chapter V: The Overall Government Response to the Air India Bombing
Air India bombing contributed to “reviving” the November Plot information
investigation, with many possible connections to other Air India suspects being
discovered as a result.90 The Solicitor General would later state, in response to
media questions, that the November Plot information provided by Person 2 “…
did not pinpoint the exact date or flight and provided no additional leads for
the investigators,”91 even while the RCMP was following up on the leads related
to Person 2’s information. This follow up extended for well over a decade, with
many issues still remaining unresolved.92
CSIS was also concerned about preserving its reputation. In July 1986, the Service
learned that the RCMP, while not formally complaining to CSIS about a failure
to pass relevant intelligence, had “…suffered a certain amount of innuendo to
flow around” which implied a lack of cooperation by CSIS.93 In particular, the
RCMP had complained to civil litigation counsel representing the Government
about an alleged failure by CSIS to extend sufficient cooperation in providing
information about the Duncan Blast incident that had been observed shortly
before the bombing,94 as well as an alleged failure by CSIS to pass information
about, and/or to preserve a recording of, key conversations between Parmar
and his associates on or about June 21 and 22, 1985.95
The CSIS Director General of Counter Terrorism, James (“Jim”) Warren,
immediately had the CSIS files about these incidents examined and wrote
a memorandum to John Sims of CSIS Legal Services two days later. The
memorandum provided a detailed explanation of all of the steps taken by CSIS
to share the Duncan Blast information with the RCMP, concluding that it was
impossible to understand “…how the RCMP can construe anything about this
incident as reflecting a lack of cooperation by CSIS.” Warren then explained how
information about the Parmar conversations was shared with the RCMP shortly
after the bombing through the transmission of a report referring to them. He
explained that the actual recordings were erased “…in accordance with the
policy of the Service,” but that the RCMP investigators could have indicated their
opinion about their evidentiary value beforehand. He added that it was not
possible at the time for CSIS to recognize that the conversations might have
been referring to the planning of the Air India bombing, and again noted that it
was “…difficult to conceive” how this incident could be “…in any way construed
as a lack of cooperation by this Service with the police investigation.” Warren
asked that the facts he outlined be provided to civil litigation counsel for the
Government. He noted that it was important, not only for CSIS’s reputation but
for “…the unified efforts of the Canadian Government to defend the Air India
litigation, that the rumours in respect to these two particular incidents be put
to rest once and for all.”96
90
91
92
93
94
95
96
See Section 2.3.1 (Post-bombing), November 1984 Plot.
Exhibit P-101 CAA1099, p. 2.
See Section 2.3.1 (Post-bombing), November 1984 Plot.
Exhibit P-101 CAA0466, pp. 1, 3.
See Section 1.4 (Pre-bombing), Duncan Blast.
Exhibit P-101 CAA0466, p. 1.
Exhibit P-101 CAA0466, pp. 1-4.
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During the difficult negotiations with Crown prosecutor Jardine and the RCMP
for the release of information in the Narita prosecution,97 CSIS also expressed
concern about its position in the civil litigation and, generally, adopted a defensive
attitude, strenuously defending its erasure of the Parmar Tapes as justified by
applicable policy. During a January 1988 meeting with representatives of CSIS,
the RCMP and the AG BC, the then CSIS DG CT, R.H. Bennett, indicated that,
while CSIS had erased the Parmar Tapes, the tapes contained no evidence “…of
any specific crime” and no information significant to CSIS’s investigation which
would have justified their retention.98
During a subsequent meeting on October 4, 1988, with civil litigation counsel
present, CSIS counsel defended the erasure of the Parmar Tapes, maintaining
that there was nothing in the intercepted material which connoted “…significant
subversive activity” and that erasure was therefore justified. Counsel for CSIS
objected strenuously to the BC Crown analysis of the potential impact of tape
erasure on the prosecution, and maintained that the official position of CSIS
and its witnesses would be that erasure was justified under policy, as there was
no significant material on the intercepts. This gave rise to spirited exchanges.
Jardine eventually pointed out to CSIS counsel that “…a defensive hostile
attitude” would be of no assistance to the Crown in the criminal prosecution,
nor to the DOJ in the civil litigation, nor would it assist CSIS in the preservation
of its public image when the information was revealed publicly.99
Two years later, in preparation for yet another interagency meeting to discuss
the abuse of process motion to be presented in the Reyat case, a new CSIS DG
CT, Ian MacEwan, took a similar position. MacEwan felt that the BC Crown was
“…looking for a ‘fall guy’ in the event the Reyat prosecution ultimately fails”, and
that the RCMP and the BC Crown refused to understand CSIS’s policies because
“…there are ‘none so blind as those who will not see’.” MacEwan was adamant
that “…CSIS did NOT make a mistake in its application of the tape retention/
destruction policy in relation to the Parmar Tapes,” and that admitting such a
mistake would leave CSIS open “…once again, to accusations of operating
without proper control and management,” and that such concerns could then
be cited as the main reason for the failure of the Reyat prosecution, if it failed.
He felt that the CSIS position had to be “…that the Crown MUST, no matter the
cost, demonstrate to the Court that the Service did nothing wrong in applying
Ministerial approved policy in processing ALL of the 210 Parmar Tapes.”100
The RCMP also defended its own position during the Jardine negotiations
and conducted file research in an attempt to exonerate itself from blame
for unfortunate occurrences. In particular, the RCMP developed a singular
interpretation of documents in its possession to support the claim, which it then
maintained for years, that the Force had made a request to CSIS to preserve all
of the Parmar Tapes that were eventually erased.
97
98
99
100
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Exhibit P-101 CAF0172, p. 8.
Exhibit P-101 CAF0177, pp. 4-5.
Exhibit P-101 CAD0146, p. 6 [Emphasis in original].
�Chapter V: The Overall Government Response to the Air India Bombing
On October 1, 1987, Solicitor General James Kelleher wrote to RCMP
Commissioner Norman Inkster requesting a report on the extent of the RCMP’s
cooperation with officials from the AG BC in the Narita investigation, and asking
whether there were any oral or written requests to which the RCMP had not yet
been able to respond in full.101 A meeting was held on October 2, 1987, with
members of the AG BC and the RCMP, where a number of unresolved issues
were discussed – one of which was in regard to the “…existence of a specific
request of CSIS to retain all the tapes.” The response to this issue would form
part of the RCMP’s report to the Minister.102 While Jardine was confident that, in
July 1985, he had made his desire to obtain all CSIS information and to ensure
that CSIS retained it known to RCMP officials, RCMP and CSIS searches of their
respective files did not produce evidence of such a request.103 Time was spent at
E Division searching through files for a request and nothing was located.104
In an attempt to determine “…when, how, how often, and by whom” the RCMP
requested CSIS to preserve any potential evidence it might possess, Sgt. Robert
Wall contacted Inspector John Hoadley and Sgt. Robert Beitel and asked that
they look at their notes on this issue. Hoadley contacted Wall on October 22nd
and indicated that his notes from June 27, 1985, reflected a discussion between
RCMP Supt. Lyman Henschel and CSIS BC Region Director General Randil Claxton,
where Claxton had indicated that “…CSIS will secure evidentiary info.” Wall then
spoke to Henschel and asked him to review his notes. Henschel located two
relevant entries and Wall made photocopies.105
The portions of Henschel’s notes that had been flagged evidenced a discussion
between Henschel and Claxton about the potential continuity problem that
could occur if CSIS captured “crucial evidence” on its intercepts, as well as a
subsequent conversation during which Claxton indicated that any incriminating
evidence found on CSIS tapes would immediately be isolated and preserved for
continuity purposes with advice to the RCMP.106 These exchanges were part of a
larger discussion about whether there were legal impediments in terms of the
disclosure of information between the two agencies.107
In testimony before this Inquiry, Henschel clarified that he was not even aware
that there were tapes in existence at the time he spoke to Claxton. He explained
that the conversation was a theoretical discussion about the “continuity issue”
and about concerns relating to CSIS’s recording methods and the potential
impact on future admissibility.108
Wall attended the October 4, 1988 meeting with Jardine and RCMP, CSIS and
DOJ representatives.109 During the meeting, he pointed to Henschel’s notes as
101
102
103
104
105
106
107
108
109
Exhibit P-101 CAA0572.
Exhibit P-101 CAA0578, p. 1.
Exhibit P-101 CAA0578, CAA0581.
Exhibit P-101 CAA0578.
Exhibit P-101 CAA0583(i), pp. 1-4.
Exhibit P-101 CAA0260.
Exhibit P-101 CAF0166; See, generally, Section 4.3.1 (Post-bombing), Tape Erasure.
Exhibit P-101 CAA0255; Testimony of Lyman Henschel, vol. 46, September 17, 2007, pp. 5525-5527.
Exhibit P-101 CAD0134, CAF0177.
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indicating that CSIS had been asked by the RCMP to retain the Parmar Tapes.110
RCMP HQ viewed this information as a “revelation” and wrote to E Division
requesting that E Division forward supporting documentation to assist in the
briefing of the D/Comm Ops and the Commissioner if necessary.111
CSIS HQ wrote to Claxton and discussed the allegation made by Jardine and the
RCMP about the request to preserve the tapes. HQ forwarded the text of the
Henschel notes by telex and requested that Claxton provide his interpretation
of the conversation.112 Claxton replied that, according to his recollection, the
discussion with Henschel was about CSIS’s obligation to disclose vital evidence
to the RCMP should it be identified and isolated on an intercept. He indicated
that his commitment to Henschel was to notify the RCMP if vital evidence was
identified and to make it available as quickly as policy permitted. Claxton had
no memory of a specific request to preserve any and all non-evidentiary tapes.
He stated that, had he received such a request, he would have forwarded it to
CSIS HQ.113
In fact, it would appear that the two individuals who were actually party to these
conversations had essentially the same interpretation of the conversations.
While they would later differ on the “evidentiary significance” of the Parmar
Tapes, they were in agreement that the discussion was prospective and not
meant to refer to all tapes, regardless of their content.114 Yet, in its effort to
counter CSIS’s argument that the Parmar Tapes were erased in due course and
in accordance with policy, because the information they contained was not
significant and because there was no specific request by anyone to preserve
them, the RCMP presented the Henschel notes as evidence of precisely such
a request to preserve the Parmar Tapes. This position reappeared, at least
implicitly, in the RCMP’s submission to the Hon. Bob Rae in 2005.115
Before they returned to debating their conflicting positions during the Rae
review, government agencies united to oppose external review of the Air India
matter, and to limit the amount of information about the interagency conflicts
that would be disclosed outside of Government.
5.2 Government Attempts to Avoid/Delay Reviews or Inquiries and
Government Response to External Review
SIRC’s Initial Interest in Air India
In April 1986, the Security Intelligence Review Committee (SIRC), which was
established in 1984 to review the activities of CSIS, received its first briefing from
CSIS. At that time, the Air India case and particularly the erasure of the Parmar
Tapes were discussed. The Committee was immediately concerned because
110
111
112
113
114
115
Exhibit P-101 CAF0177, p. 8.
Exhibit P-101 CAA0709.
Exhibit P-101 CAD0134.
Exhibit P-101 CAD0019(i), p. 2. See also Exhibit P-101 CAD0003, pp. 8-9.
See Section 4.3.1 (Post-bombing), Tape Erasure.
Exhibit P-101 CAA0335, p. 26.
�Chapter V: The Overall Government Response to the Air India Bombing
there appeared to be a disconnect between, on the one hand, the official policy
and the manner in which it was understood by senior management and, on the
other hand, the “blind erasure” which had occurred at the lower and middlemanagement levels. After the initial briefing, SIRC concluded that it would need
to receive further briefings and complete information about this issue.116
During the following years, SIRC submitted numerous questions to CSIS about
the processing and erasure of the Parmar Tapes, many of which paralleled the
questions that were being asked by BC prosecutor Jardine.117 Initially, SIRC had
been trying to allow CSIS and the RCMP “…time to do their job.” The Committee
had received information indicating that prosecutions might be going ahead
and that the authorities could be successful in bringing to justice some of those
responsible for the bombings. As a result, SIRC members decided not to do
anything that might slow down the criminal investigation and accordingly
proceeded slowly with their enquiries.118
In December 1987, during an appearance before the Standing Committee
on Justice, the chairman of SIRC, the Honourable Ronald (“Ron”) Atkey, was
besieged with questions about Air India. Atkey explained in testimony before
the Inquiry that while SIRC had been patient with CSIS, by this time its patience
had begun to run short. SIRC sent a letter directly to the Director of CSIS
requesting answers. More questions were sent out on New Year’s Eve 1987, after
an initial response was received from the Director. By then, there was a sense of
urgency for SIRC to receive answers. In fact, the Committee was moving toward
a position where it felt that it was not receiving complete answers about tape
erasure and that a more formal inquiry might be necessary. At its January 1988
meeting, the Committee essentially decided it would hold an inquiry, as the
responses received from CSIS kept raising more questions. SIRC instructed its
staff to draft terms of reference for an inquiry and to hire counsel.119
In January 1989, a draft of the terms of reference for the proposed SIRC review
was provided to the CSIS Director as part of the SIRC “no surprises” policy.120
Atkey explained in testimony that there were discussions with the Director
about the proposed SIRC inquiry, and that there was generally no resistance
from CSIS to SIRC’s proposal. However, there was significant resistance from
other parts of the Government.121
On January 25, 1989, Whitehall, who was still representing the Government in
the civil litigation, contacted Jardine, the BC Crown prosecutor,122 to advise that
SIRC was contemplating conducting a review and holding hearings about CSIS’s
116 Testimony of Ronald Atkey, vol. 49, September 20, 2007, pp. 5968, 5987-5988.
117 Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5988; See Section 4.4.1 (Post-bombing), The
Reyat Trial and the BC Crown Prosecutor Perspective.
118 Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5994.
119 Testimony of Ronald Atkey, vol. 49, September 20, 2007, pp. 5989-5996.
120 Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5996; Exhibit P-101 CAF0285.
121 Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5997.
122 See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
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investigation into the Air India and the Narita bombings.123 Whitehall indicated
that, should such a review be conducted, Jardine (who was attempting to
obtain CSIS information and to investigate the Parmar Tapes erasure)124 would
most likely be called as a witness. Whitehall requested that Jardine travel to
Ottawa at his earliest convenience at the DOJ’s expense to meet and discuss the
matter.125
On January 28, 1989, Jardine attended a meeting in Ottawa with representatives
of the DOJ, the RCMP and the Solicitor General. The terms of reference for the
proposed SIRC review were discussed. The DOJ, the RCMP, the Solicitor General
and the AG BC all expressed a concern about “…the purpose of such a review
by that Committee.” The timing of the proposed review was also of concern
because the discovery process for the Air India civil litigation and the rendition
of Reyat from England were both proceeding. One of the purposes of the
Ottawa meeting was to determine the positions of the agencies involved, “…
to ascertain whether or not a united front could be established, with a view
to either delaying the SIRC Review, or having it set aside for the purposes of
another review at a later date.” At the commencement of the meeting, Whitehall
discussed his concerns about a document that the DOJ had obtained unofficially
which he stated indicated “…a breadth to the review far beyond that afforded
the review committee by its mandate under the provisions of the Canadian
Security Intelligence Service Act.” From the questions proposed to be examined
and the witnesses to be called, it appeared that the SIRC investigation would
entail decisions on threat assessment, therefore “…affecting the civil case,”
and on the destruction of evidence, thereby having an impact on the abuse of
process argument in the criminal case. The DOJ representatives present felt that
SIRC was the wrong forum to investigate CSIS’s actions in dealing with Air India
“…or any other criminal/intelligence pass over of information.”126
The RCMP, for its part, was concerned about the possible impact of the
proposed review on the continuing investigation into Air India and on the Reyat
prosecution. Jardine reported that it appeared that the RCMP Commissioner “…
would attempt to circumvent the review committee in so far as he could legally
do so.” The Solicitor General did not want to be the one person “…to be seen
as an obstacle to the review,” and therefore wanted to ascertain the positions of
the DOJ, the RCMP and the AG BC.127
In the end, the unanimous opinion expressed at the meeting was that the
appropriate forum for a review of CSIS’s failure to retain information in connection
with Air India would be a parliamentary committee or joint Parliament and
Senate committee, which could conduct a review after the Reyat prosecution.
SIRC was perceived by those present at the meeting as “…a group of persons
who are interested in their own personal advancement and media coverage.”128
123
124
125
126
127
128
Exhibit P-101 CAF0183, p. 1.
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Exhibit P-101 CAF0183, p. 1.
Exhibit P-101 CAF0184, pp. 1-2.
Exhibit P-101 CAF0184, p. 2.
Exhibit P-101 CAF0184, p. 2.
�Chapter V: The Overall Government Response to the Air India Bombing
Jardine advised the Assistant Deputy Attorney General of BC that, after the
discussions held at the meeting, he felt that the proposed SIRC review could
have a negative impact on the Reyat prosecution through pre-trial publicity, by
drawing potential jurors’ attention to weaknesses in the investigation and by
mobilizing Crown resources otherwise necessary to prepare the case. Jardine
also explained that the review could have a negative impact on the Department
of Justice position regarding threat assessment issues in the civil litigation, that
this would also create pre-trial publicity, and that the publicity surrounding the
review could hamper the ongoing RCMP investigation. Prior to attending the
Ottawa meeting, Jardine had been instructed to take the position on behalf
of the AG BC that, if conducted immediately, the proposed SIRC review could
impact negatively on the abuse of process argument in the Reyat case, but that
the AG BC would cooperate once it was appropriate for the information to be
released in the public forum.129
In a letter to Joseph Stanford, Deputy Solicitor General, dated January 30, 1989,
RCMP Commissioner Inkster updated Stanford on the progress of the Narita
proceedings, and indicated that, though charges had been laid only with
respect to the Narita bombing, the “active pursuit” of the Air India aspect of
the investigation was continuing to receive “high priority.”130 Inkster expressed
concern that SIRC’s proposed review “…duplicates some critical issues” that
would be determined in the criminal proceedings, and that an opinion expressed
by SIRC could “…jeopardize the successful resolution of either or both the Narita
or Air India investigations.” Inkster suggested that such a review would also
cause “significant concern” to allied agencies that had provided information
to the RCMP and could lessen the RCMP’s ability to “…obtain information from
human sources.”131 While the SIRC review was, by definition, a private report
in which no significant information that was sensitive would be revealed to the
public, Inkster testified at the Inquiry hearings that in general, the RCMP was
concerned about “…the net, the circle widening about who had information
about what” during a time when “…these investigations were coming to some
very crucial stages of development.”132 Similarly, Sgt. Terry Goral, a member of
the RCMP HQ Air India Task Force from 1986 to his retirement in 2000, explained
that the danger of conducting an inquiry during an ongoing investigation is
that “…the more you wash this out in the public, in laundry, about the strength
of your evidence and weaknesses of evidence, so that gives a heads-up to the
suspects.”133
Inkster’s letter to Stanford also noted concerns in relation to the “…ongoing Air
India civil litigation,” since “the essence” of the SIRC investigation “…parallels a
129 Exhibit P-101 CAF0183, pp. 1-3.
130 Exhibit P-101 CAF0439, p. 1. In fact, witnesses before the Commission characterized the Air India
investigation in the late 1980s and early 1990s as tired. It was characterized by a lack of
resources dedicated to the Air India investigation and the discouragement of pursuits in furtherance of
this investigation. See Section 2.2 (Post-bombing), The RCMP Investigation: Red Tape and Yellow
Tape.
131 Exhibit P-101 CAF0439, p. 2.
132 Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10346.
133 Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9258.
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major portion of the allegations set out in the statement of claim in the civil
action.” In addition to the “…burden of review” that would be occasioned by
the RCMP having to prepare documentation, the SIRC review could also “…put
some of the defendants in the civil action in jeopardy.”134 When asked at the
Inquiry hearing about the relevance to the RCMP of the effects of an inquiry
on civil litigation, Inkster testified that this letter was prepared as a result of
discussions with officials from the Department of Justice, and that it was simply
a matter of making sure that the RCMP “…had covered off our bases in terms
of any potential harm that might come to anybody anywhere in terms of the –
both of the Air India and Narita.”135
In February 1989, the SIRC chairman was called to a meeting at the office of
the Deputy Solicitor General, where he learned that the Solicitor General’s
department was not in favour of a SIRC inquiry at the time.136 He was eventually
shown a draft letter from the Deputy Attorney General of Canada, speaking on
behalf of the Government and of the RCMP Commissioner, which essentially
requested that SIRC not undertake a review of the CSIS practices and policies in
the Air India matter at that time.137 The reason invoked in the draft letter was that
the review could cause an “…unwarranted interference with the administration
of justice,” particularly with respect to the ongoing RCMP investigation (which
was said to have reached a “critical stage”), to the Reyat prosecution and to the
civil proceedings arising from the loss of Air India Flight 182.138
Atkey explained in testimony that he also received a call from Jardine, who
expressed his concerns about the possible difficulties that a SIRC review could
cause for the Reyat prosecution, particularly if information about the CSIS tape
erasure was made public. Jardine told Atkey that the AG BC was working with
the RCMP and that they had “…everything under control here.”139 Further, a
SIRC staff member had been provided with information by Whitehall about
the civil litigation issues. Whitehall specifically expressed concern about the
potential impact of a SIRC review on the civil case, and also noted that SIRC,
as it had jurisdiction only over CSIS, would likely not get the complete picture,
since other parties involved would not be inclined to cooperate or would be
somewhat protective because of the civil actions and criminal investigation.140
All this confirmed to Atkey that there were “…many parts of the system where
an inquiry was not favoured at that time.”141
Atkey indicated in his testimony that the Government’s concern with the
impact of a SIRC Inquiry on the civil litigation was not necessarily related to the
risk that information might be used for an improper purpose, but rather to the
concern that a SIRC report would not be helpful to the Government’s case, not
134
135
136
137
138
139
140
141
Exhibit P-101 CAF0439, p. 2.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10347.
Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5997.
Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5997; Exhibit P-101 CAF0306.
Exhibit P-101 CAF0306, pp. 1-2.
Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5998.
Exhibit P-101 CAF0301.
Testimony of Ronald Atkey, vol. 49, September 20, 2007, pp. 5999-6000.
�Chapter V: The Overall Government Response to the Air India Bombing
only causing embarrassment, but possibly “…cost[ing] the Government more
money” if there were adverse findings respecting CSIS. He agreed that “…an
implication that one can draw” from the Government’s attempt to delay the
SIRC review was that it was trying to “…delay the full knowledge of the facts
until they solved their civil litigation” with the families of the victims.142
At the next meeting of SIRC, Atkey distributed a copy of the draft letter from the
Deputy Attorney General and reported on the concerns that had been conveyed
to him. The Committee considered the request to refrain from holding its inquiry
very seriously, since it was made on behalf of the Government as a whole, and
the Committee did not want to interpose itself into a process when criminal
convictions could be imminent. SIRC was also concerned about its ability to
conduct a proper inquiry, since its jurisdiction was limited to CSIS, and other
agencies such as the RCMP and Transport Canada would be free to refuse to
cooperate and could therefore put up barriers in any inquiry that SIRC would
conduct. In addition, the Committee was concerned about accomplishing the
task with limited resources, since the Government did not appear to be inclined
to grant additional resources for the review.143
In the end, SIRC reluctantly agreed not to proceed with its review and notified
the Deputy Attorney General of this decision.144 It was decided that the SIRC
review would be held in abeyance until such time as the Air India civil litigation,
the Reyat trial and the criminal investigation would no longer be affected.145 At
the Inquiry hearings, Atkey explained that SIRC was not happy at the time to be
“…put off the trail, if you will, of what had occurred,” but felt that the reasons for
not having the inquiry were compelling. Atkey testified that he did not know
whether anything was lost because of the delay in conducting the SIRC review,
but indicated that he sometimes wonders what could have been learned if the
SIRC inquiry had been held earlier. He noted that the passage of time causes
memories to fade, and that the longer it takes, the fewer will be the number of
people with recall of the events.146
Renewed Calls for an Inquiry and the Air India Working Group
In the spring of 1991, calls for an inquiry or a review of the Air India matter were
renewed. By early June 1991, the Reyat sentencing hearings had begun and the
sixth anniversary of the bombing was approaching.147 That month, the Solicitor
General’s department struck an Interdepartmental Working Group, with
representatives from the RCMP and several other government departments, to
discuss options to address mounting pressure for an inquiry into the bombing of
Flight 182. This group was headed by Margaret Purdy of the Solicitor General’s
department.148
142
143
144
145
146
147
148
Testimony of Ronald Atkey, vol. 49, September 20, 2007, pp. 6016-6017.
Testimony of Ronald Atkey, vol. 49, September 20, 2007, pp. 5998-6001.
Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 6001.
Exhibit P-101 CAF0286.
Testimony of Ronald Atkey, vol. 49, September 20, 2007, pp. 6001, 6004.
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9189.
Exhibit P-101 CAA0846, p. 1.
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A meeting was held on June 27, 1991, with representatives from the RCMP,
PCO, CSIS, DEA and Justice, and chaired by Ian Glen, Assistant Deputy Solicitor
General. The purpose of the meeting was to ensure that the ADM (Glen) would
be prepared with advice in case the Minister needed a position on whether or
not there should be an inquiry. The role of the Working Group, chaired by Purdy,
was to coordinate and obtain opinions from various government departments
and agencies about a possible inquiry into Air India.149 The Working Group
was to prepare a report by September to address options, advantages, and
disadvantages in terms of inquiries. The report would be reviewed by the group
that had attended the meeting. It was suggested that Sgt. Goral, because of his
extensive experience at Headquarters and with the Air India file, represent the
RCMP on the Working Group.150 Goral had joined the RCMP in 1969 and had
worked as a police officer in Alberta and in the Yukon, mostly in the General
Investigation Sections (GIS), investigating serious crimes. In December 1986,
he was posted to Ottawa and began working at the HQ Air India Task Force.
He continued to work on the Air India and other Sikh extremism investigations
until his retirement in 2000.151
At the June 27th meeting, a number of options were canvassed. The preference
of the ADM and others present was that there be no inquiry, as it would “…serve
no purpose” from a public policy point of view.152 Another option was for SIRC to
“…proceed on its own,” which would only allow it to look at a “…portion of the
big picture,” a process that could result in “…more questions than answers.” The
option of a Royal Commission was seen as a “…long and costly” one that would
allow “…venting of frustrations and could lead to a lot of work by RCMP.”153
Other options mentioned were a review by a Parliamentary committee or by a
competent, respected person.
The various options for reviews or inquiries were discussed during the initial
meetings of the Working Group, and the RCMP took the position that any
inquiry would adversely affect ongoing RCMP investigations.154 From the RCMP
perspective, Goral explained that an inquiry would not assist in the collection
of further evidence, and that the Force felt that it could have a negative impact
on the various investigative initiatives being pursued, including the wreckage
recovery attempts and the possibility of offering a reward. The RCMP was also
concerned because Reyat had appealed his conviction. The appeal proceedings
were ongoing and could lead to a new trial being ordered.155
However, even within the RCMP, there were some who questioned how long the
Force could maintain the position that the investigation would be jeopardized
by any review.156 At the June 27th meeting, a concern was expressed that
149
150
151
152
153
154
155
156
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9190.
Exhibit P-101 CAA0815, p. 2.
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9187.
Exhibit P-101 CAA0815, p. 1; Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9191, 9200.
Exhibit P-101 CAA0815, p. 1.
Exhibit P-101 CAA0817, p. 1; Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9190.
Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9191-9192.
Exhibit P-101 CAA0825.
�Chapter V: The Overall Government Response to the Air India Bombing
using the excuse of an ongoing investigation to delay an inquiry could put the
institutional integrity of the RCMP and of the Commissioner in question,157 as it
was unclear what possible harm would be done to the investigation by holding
an inquiry.158
Goral explained in his testimony that the concern was that the RCMP opposition
to the holding of an inquiry could be perceived as a cover-up attempt, since it
was less credible to claim that the investigation would be adversely affected by
an inquiry when the facts and the problems in the investigation were already
well publicized and had been covered in the Reyat trial.159
Nevertheless, Goral felt that, from the RCMP perspective, continuing to have
the process exposed in the media, while trying to investigate, was not in the
best interests of collecting admissible evidence. He indicated that those who
questioned the position that a review might jeopardize the ongoing investigation
might not have been fully informed of the initiatives that were being undertaken
by the RCMP. He noted that “…there has always been a belief that there was a
stalemate after the Reyat trial,” and that the RCMP “…weren’t going anywhere,”
but that, in his opinion, that belief was wrong since initiatives were constantly
being pursued.160 Goral did admit, however, that the basic activity of the RCMP
after the Reyat trial was to conduct wreckage recovery operations and to attempt
to prove that there was a bomb, and that, aside from this, there was “…very little
activity” at the time.161 Goral went on to explain that the RCMP was looking into
pursuing other initiatives in the investigation after the Reyat trial and that this
was only a short time after the verdict, which explained why the initiatives were
not yet put in place and not discussed with the Working Group. He indicated
that, overall, while it was true that there was “…not very much going on in the
investigation” at that moment, many initiatives were in the planning stages and
the RCMP was planning to go forward now that the Reyat trial was over.162
One month after the June 27th meeting, RCMP HQ wrote a briefing note163 for
the Solicitor General, using precisely the reason of the continuing investigation
to argue against a SIRC review. The Solicitor General had a meeting scheduled
with John Bassett, who had replaced Atkey as the SIRC chairman, and had
requested an update from the RCMP about the status of the investigation,
particularly about the wreckage recovery attempts, and the RCMP position
about the possible SIRC review.164 The briefing note stated the RCMP position
that:
157 Exhibit P-101 CAA0817, p. 1; Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9192; Exhibit P-101
CAA0815, p. 2.
158 Exhibit P-101 CAA0815, p. 2.
159 Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9192-9193.
160 Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9193, 9197.
161 See Exhibit P-101 CAB0847, p. 1; Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9193.
162 Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9200-9201.
163 Exhibit P-101 CAA0826.
164 Exhibit P-101 CAA0824, CAA0825.
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Under the present circumstances the RCMP recommends
against a SIRC review because the Reyat appeal has not
been concluded and the results of laboratory analysis on the
recovered wreckage [have] not been completed.165
Asked about this position at the Inquiry proceedings, Inkster testified that the
RCMP would “…want anyone who was contemplating a review” to take into
account the “…reality that the investigation was ongoing” and that, whether or
not this could do any harm, it was necessary to “…speculate that that was a
possibility.”166
On August 1, 1991, the Working Group had a confidential meeting, where the
positions of each agency about the possibility of an Air India Inquiry were
discussed. The Privy Council Office (PCO) was in favour of a clear conclusion
recommending that no inquiry be held, and suggested that the Government
“…get its message out” by issuing a statement about what was known and
done to “…put SIRC in the position of being extremely limited in the scope of
its work and hindered from providing anything new.” CSIS was also generally
opposed to an inquiry, indicating that it could cause persons with information
to withhold it and that it could “…upset the environment” and make Sikh
extremism investigations more difficult. CSIS added that a SIRC review could
“…stimulate overwhelming public pressure for a broader inquiry.” The Service
was of the view that a public statement about the case would not be advisable,
since there were “…too many unanswered questions.” According to CSIS, only
arrests and prosecutions could satisfy those calling for an inquiry. The Service
was still optimistic that answers would be found in the case, and indicated that
a comprehensive briefing from the Government might convince the SIRC chair
that a SIRC inquiry would serve no purpose.167
Transport Canada also expressed a preference for not having an inquiry,
suggesting that a White Paper describing the resources expended, the training
provided, the equipment upgrading done and the research underway since the
bombing, would be sufficient. The department went on to state that it “…could
not guarantee that the same thing that happened in 1985 could not happen
today,” but stated that if all the rules were followed, it could not happen again.
If the fallback position of an inquiry was necessary, Transport Canada expressed
a preference for a one-person commission with deadlines and “…controlled
terms of reference.” The Department of External Affairs (DEA) also wished to not
have an inquiry, indicating that, if one were to be held, it should be with a single
commissioner and a clear mandate. DEA thought that a SIRC inquiry would do
more to generate controversy than to resolve questions.168
Surprisingly, the RCMP was reported to have offered the opinion that a SIRC
review would not hurt or compromise its investigation, which was described as
now being “…at a stalemate.” It was even noted that an inquiry might encourage
165
166
167
168
Exhibit P-101 CAA0826.
Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10348-10349.
Exhibit P-101 CAB0847, pp. 2-3.
Exhibit P-101 CAB0847, pp. 3-4.
�Chapter V: The Overall Government Response to the Air India Bombing
someone to come forward with evidence, though it would drain investigative
resources. However, the Force disagreed with the notion that the public was
becoming “…increasingly impatient and sceptical.” The RCMP felt that there was
no strong and broad-based public desire for an inquiry, and no desire within the
public service or among politicians. The Force was uncertain how the public and
lobbyists would react to a Government statement about Air India, and felt that
public pressure would peak each year with the anniversary of the bombing, but
would not become so overwhelming that it would result in a public inquiry.169
The Department of Justice (DOJ) representative present at the meeting indicated
that contact would be made with Jardine, and that he did not expect him to
object to a SIRC review on the grounds that it could jeopardize the Reyat appeal.
Similarly, the DOJ warned that, unless the RCMP had a “cogent rationale,” the
Deputy Minister of Justice would not use the ongoing RCMP investigation as
grounds to object to a SIRC inquiry, as the privilege claim would be weakened
“…unless the RCMP investigation is active and vulnerable to compromise.” The
DOJ noted that the three reasons cited in 1989 to discourage the SIRC review –
the ongoing investigation, the Reyat prosecution and the civil litigation – were
“…no longer valid.” By then, the civil litigation launched by the families had
been settled out-of-court by the Government. According to the DOJ, the public
was missing an explanation of why charges had not been laid, which could be
provided in a White Paper discussing the criminal burden of proof and the inability
of the AG BC to lay charges. However, the DOJ felt that the Transport Canada
perspective would be difficult to present in a White Paper since, regardless of the
improvements, “…an Air India-type disaster could happen again domestically
within the new rules.”170 The DOJ concluded that, in the absence of strong public
demand, the White Paper option was not persuasive.171
After these discussions, the Working Group recommended making one more
attempt to dissuade SIRC from conducting a review.172 It was decided that
Ministers should arrange a comprehensive Government briefing for the SIRC
chair, which would convey the Government’s view that there was “no public
benefit” to be gained from a public inquiry, including a SIRC review, since the
public pressure was for arrests and the criminal burden of proof had not yet
been met. The briefing would indicate that both CSIS and the RCMP were
“still optimistic” and working on the case; that the RCMP had discovered some
wreckage items that might have evidentiary value; that CSIS had disclosed much
information in the Reyat trial; that improvements had been made in RCMP/CSIS
relations and in aviation security since 1985; and that counterterrorism was
now being accorded a high priority. It was also noted that the status of the
Reyat appeal and the “possible impact” of an inquiry should be discussed in the
briefing.173
169
170
171
172
173
Exhibit P-101 CAB0847, p. 2.
Exhibit P-101 CAB0847, p. 4 [Emphasis in original].
Exhibit P-101 CAB0847, p. 4.
Exhibit P-101 CAB0847, p. 4-5; Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9203-9204.
Exhibit P-101 CAB0847, pp. 4-5.
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Volume Two: Part 2: Post-Bombing Investigation and Response
A communication strategy aimed at pre-empting any momentum for a call for
a SIRC inquiry was also recommended.174 It was decided that Ministers should
“…get the Government’s position in the public domain before SIRC issues its
annual report,” which would include a section on Air India. A Minister’s response
to a “blind” question in the House was the preferred option contemplated by
the Working Group to ensure that the Government would “…pre-empt SIRC by
getting its position out.” The Solicitor General’s office also considered the option
of having the Minister of Justice read a prepared statement in the House prior to
Question Period, noting that this would provide “…a greater impression of the
Government being in control of the agenda than would a reply by a Minister to
a ‘blind question’ in the House.”175
On August 16th, Goral prepared a briefing note about this matter. He summarized
the initial discussions about the possibility of an inquiry and the advantages
and disadvantages of the various options. Goral reiterated his previous
recommendation that a SIRC review was not advisable because of the Reyat
appeal and the ongoing initiatives to investigate the wreckage, and noted that
he had also made this recommendation during a Working Group meeting on
August 1, 1991. However, Goral reported that, by then, it appeared likely that a
SIRC review would nonetheless be held and that Purdy had advised that, if the
review proceeded, the Solicitor General would want the RCMP to provide SIRC
with a briefing on the status of the file.176
SIRC Review of Air India and Government Response
Despite the Working Group’s careful planning, the attempt to prevent SIRC from
conducting a review did not succeed. In mid-August 1991, Bassett met with
Cabinet ministers and then announced that SIRC would likely conduct a review
of CSIS files on the Air India bombing.177
On August 30, 1991, Purdy wrote a confidential memorandum to the members
of the Air India Working Group. She advised that SIRC had decided at its August
22nd meeting to conduct a review of CSIS activities in relation to the Air India and
Narita incidents. She reported that SIRC had already held preliminary meetings
with CSIS and would be announcing its review in its Annual Report, which was
expected to be released in October. Bassett planned to hold a press conference
and to issue a news release after the Annual Report was tabled, as well as to make
the Air India review project known to interested lobby groups. Purdy remarked
that “considerable media coverage” on the issue was to be expected since the
SIRC Annual Report otherwise contained little controversial material. She noted
that drafts of the press lines and of a questions-and-answers package to be used
by the Solicitor General would be provided to the Working Group members
for comment. She added that, during their meetings with the SIRC chair, the
Cabinet ministers had extended offers of “information-sharing briefings” by the
174
175
176
177
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9204.
Exhibit P-101 CAB0847, p. 5.
Exhibit P-101 CAA0817, pp. 1-2.
Exhibit P-101 CAA0827.
�Chapter V: The Overall Government Response to the Air India Bombing
other government agencies affected and that letters requesting this cooperation
would soon be sent to the Minister of Justice, the Minister of Transport and the
RCMP Commissioner. The Solicitor General would be setting out the “ground
rules” for the briefings in a letter to Bassett. Purdy advised that the Solicitor
General’s department “…recognize[d] that this is a sensitive area and will work
closely with you in preparing these exchanges of correspondence.” The format
and content of the “non-CSIS briefings” to SIRC would be discussed at the next
Working Group meeting.178
It was later decided that the Working Group would coordinate all SIRC questions
and requests for briefings and that, to the extent possible, briefings would be
provided in written format.179 The Working Group was to “…try to keep control
over the message,”180 and was to ensure that SIRC was “…kept within its mandate,”
and that “…SIRC access to various departments [was] controlled.”181 Goral
explained in testimony that, at the RCMP, it was felt that the Working Group
would be the best and the “least intrusive way” to provide information to SIRC.
He explained that the Working Group would be monitoring the content of the
briefings by the various agencies involved to ensure that Government “…spoke
with one voice” and that the content provided by each agency was integrated.
Essentially, the Working Group would ensure that all the agencies adhered to
the same perspective.182
In a September 12, 1991 RCMP briefing note, Goral reported what he had learned
about the upcoming public announcement of the SIRC review and the Solicitor
General’s offer of briefings by the RCMP. He indicated that the Working Group
would be meeting at the end of the month to discuss the current status of the
SIRC review, the press lines for the announcement of the review and the format
and content of the briefings to be provided by peripheral agencies, as promised
by the Ministers. A discussion paper about the Government’s options after the
completion of the SIRC review would also be prepared. Goral recommended that
the Solicitor General be discouraged from offering any RCMP briefings to SIRC,
noting that the Narita investigation closely paralleled the Air India investigation
and that, since Reyat had been convicted in that case, “…a trial transcript is felt
to be the best briefing material available.”183 Goral explained in testimony that
participating in the SIRC review would bring no benefit to the ongoing RCMP
investigation and, therefore, if the Force did not have to provide a briefing,
it would be better for the investigation.184 He noted in the September 1991
briefing note that RCMP briefings to SIRC could create an unwanted precedent,
but that, if they were necessary, it would be preferable if SIRC provided a list of
issues of interest and allowed the RCMP to make a decision to provide or not
provide briefings on a case-by-case basis for each issue.185
178
179
180
181
182
183
184
185
Exhibit P-101 CAA0830, pp. 1-2.
Exhibit P-101 CAA0846, p. 2.
Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9205-9206.
Exhibit P-101 CAA0846, p. 2.
Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9195-9196.
Exhibit P-101 CAA0818, p. 1.
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9194.
Exhibit P-101 CAA0818, p. 2.
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In preparation for the RCMP Commissioner’s attendance at a Deputy Ministers’
meeting on September 13, 1991, the RCMP Criminal Intelligence Directorate
(CID) prepared a “talking points” note that discussed the issue of whether RCMP
cooperation should be extended to the SIRC inquiry. The document indicated
that the RCMP continued to be opposed “…to any call for an external review of
this matter while the investigation is in progress” and “…until all avenues have
been exhausted,” and expressed concern that RCMP participation in the SIRC
review could be used to support arguments for an expanded SIRC jurisdiction
to review some RCMP activities on a routine basis.186
RCMP Resistance to External Review
Opposition to external review was often a matter of principle for the RCMP. The
CID “talking points” about RCMP cooperation in the SIRC review noted that a
parliamentary review committee had recommended that SIRC be established
as the review body not only for CSIS, but also for the conduct of the RCMP’s
security enforcement responsibilities. The “talking points” note explained that
the Force had opposed the recommendation, indicating that the RCMP functions
were already subject to ultimate oversight by the courts and other review
bodies such as the RCMP Public Complaints Commission. CID was concerned
that, having succeeded in gaining Government support to oppose extending
SIRC jurisdiction to cover RCMP activities, the Force would now risk reopening
the debate by cooperating in the Air India SIRC review. The “talking points”
cautioned that the arguments against subjecting the RCMP to SIRC’s control
remained valid and that the type of cooperation provided by the RCMP had to
be considered carefully, “…as it may well lead” to SIRC “…gaining an oversight
role with respect to the RCMP.”187
In earlier years, the RCMP had reacted strongly to any implication that more
oversight was required for the Force. When SIRC mentioned in its 1985-86
Annual Report that there was “…comparatively little independent oversight of
the RCMP” as compared to CSIS,188 Commissioner Robert Simmonds responded
in a letter to the Solicitor General that this was based on an “erroneous premise.”
He listed in detail many mechanisms for legal and extra-legal accountability
that existed to control police conduct, including applications for judicial
authorizations, mandamus, criminal and civil proceedings against police
officers and the exclusion of evidence, internal discipline, public complaints, the
media and accountability to Government through various reports and requests
for directions.189 The SIRC chair of the time, the Honourable Ronald Atkey,
commented in testimony before this Inquiry:
186 Exhibit P-101 CAA0831, p. 1.
187 Exhibit P-101 CAA0831, p. 1.
188 Exhibit P-144: Security Intelligence Review Committee Annual Report 1985-86, p. 7; See also Exhibit
P-101 CAA0536, p. 1.
189 Exhibit P-101 CAA0474, pp. 1-4.
�Chapter V: The Overall Government Response to the Air India Bombing
Obviously, Commissioner Simmonds and his staff had spent
some time on this and were in – what I could call a defensive
mode at that point, in terms of resisting what might be
concern – calls for some kind of review of the RCMP, an issue
which has not gone away.
…
But certainly there was before Parliament at that time,
legislation establishing the Public Complaints Commission and
there is now, of course, before the Government of Canada the
report of Part 2 of Justice O’Connor in Arar and this is being
considered by a committee within the government by David
Brown. So these issues are quite current.190
The issue indeed remains current, with both the 2006 Arar Report, following
Justice O’Connor’s policy review, and the December 2007 report of the Task Force
on Governance and Cultural Change in the RCMP (the David Brown committee)
having recommended improved independent oversight mechanisms for the
RCMP.191 Former RCMP Commissioner Norman Inkster shared the concerns of
his predecessor, Simmonds, about the risks associated with political interference
in police investigations,192 but indicated in testimony before this Inquiry that he
had “…absolutely no hesitation in underscoring the need for civilian review of
law enforcement operations” in an “…after the fact way.”193 Inkster was a member
of the Task Force that advocated for more oversight for the RCMP, indicating in
its report:
Police are vested with extraordinary powers. They have long
been held to account for the use of their powers through
the courts, internal discipline and review bodies as well as
media. With evolving public expectations, growing distrust
and calls for greater transparency and accountability, the Task
Force believes that there is a need to strengthen the current
legislative scheme for dealing with complaints against the
RCMP.194
Current RCMP Commissioner William Elliott indicated that, while he felt that
oversight by the courts – which is a constant reality for the RCMP – is not less
onerous than the review mechanisms in place for CSIS, this did not mean that
190 Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 5978.
191 See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New
Review Mechanism for the RCMP’s National Security Activities (Ottawa: Public Works and Government
Services Canada, 2006) and the Task Force on Governance and Cultural Change in the RCMP, Rebuilding
the Trust (Ottawa: Public Works and Government Services Canada, 2007) [Rebuilding the Trust].
192 See Testimony of Robert Simmonds, vol. 74, November 8, 2007, pp. 9335-9336; Exhibit P-101 CAA1033,
p. 8; Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10336.
193 Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10336.
194 Rebuilding the Trust, p. 12.
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Volume Two: Part 2: Post-Bombing Investigation and Response
the current review and oversight for the RCMP is sufficient. He recognized that
there is “…certainly room for improvement,” as outlined in Justice O’Connor’s
recommendations with respect to independent review of the RCMP’s national
security activities, and that there is a “…requirement for an enhanced regime [of
review], at least as it relates to the RCMP.”195 He expected to see the improvements
introduced by Parliament, as did CSIS Director Jim Judd, who also favourably
looked upon the possibility of having an independent body review the activities
of the RCMP in the national security realm.196
On a more fundamental level, Elliott emphasized that, while the RCMP must
remain independent from Government in terms of its operational decisions about
its investigations, the Force remains a federal agency that is not independent
in many important respects (such as funding and overall policies) and that the
Force’s insistence on independence had in some instances been exaggerated
and counterproductive: “I think, I would describe the RCMP as being at times
more standoffish than independent and our standoffishness has not worked to
our advantage.”197
In general, resistance to external review seems to have diminished at the RCMP.
A/Comm. Mike McDonell testified that he thought the RCMP could benefit from
review of its national security activities by an independent body, as he found “…
reviews most instructive and constructive.”198
In the Air India case, had stronger independent review mechanisms for the
RCMP been in place, the families might have been able to obtain some of the
answers they were looking for earlier. Certainly, it would have been more difficult
for the Force to resist review and to present the type of defensive corporate
position that at times was advanced, if it had been directly accountable to an
independent body with complete powers to launch investigations, compel the
production of documents and the attendance of witnesses, and make binding
recommendations. Unfortunately, the Government has yet to implement
the numerous recommendations for stronger independent review of RCMP
activities.
RCMP Briefing to SIRC
In the end, the RCMP did provide a briefing to SIRC. Despite its strong claims
to independence, the RCMP also agreed to attempt to present a position in line
with the Government’s efforts to minimize interagency criticisms and to let the
Interdepartmental Working Group vet this briefing. The Force itself had noted in
the September 1991 CID “talking points” that, despite the dangers of extending
cooperation to SIRC, a failure to cooperate would lead to many questions
remaining unanswered which, in turn, could trigger a Royal Commission or a
195 Testimony of William Elliott, vol. 90, December 6, 2007, pp. 11798-11799, 11835-11836.
196 Testimony of William Elliott, vol. 90, December 6, 2007, pp. 11798-11799; Testimony of Jim Judd, vol. 90,
December 6, 2007, p. 11877.
197 Testimony of William Elliott, vol. 90, December 6, 2007, pp. 11822-11823.
198 Testimony of Mike McDonell, vol. 95, December 13, 2007, p. 12666.
�Chapter V: The Overall Government Response to the Air India Bombing
“…prejudiced or slanted view of the RCMP involvement in this matter.” It was
felt that a SIRC inquiry would allow the RCMP to maintain control over classified
information and to provide in camera briefings, which “…may not be true”
for a Royal Commission.199 On this point, Goral agreed that, from an RCMP
perspective, a Royal Commission would have been “…more intrusive into the
ongoing investigation,” and therefore if it had to provide a briefing about the
case, it was preferable for the Force to do it through SIRC rather than through a
Royal Commission.200
On November 20, 1991, Inkster wrote to the Deputy Solicitor General to thank
him for transmitting a copy of the terms of reference for the SIRC review. Inkster
indicated that he agreed that the Interdepartmental Working Group should
be used to channel SIRC requests for information. He also suggested that any
briefings should be provided in writing.201 Goral confirmed in testimony that
providing a written rather than a verbal briefing was the preference of the RCMP,
because a verbal briefing “…can go a lot further than what you want to go” and,
in the interest of the ongoing investigation, the less the Force was required to
say, the better it would be.202
On November 29, 1991, Goral prepared a briefing note about an upcoming
request which the SIRC chair would be forwarding to the RCMP Commissioner in
December for a briefing on the Air India and Narita investigations. Goral noted
that, at the time, the Solicitor General had not yet received responses from all
agencies involved about the type of briefings which would be offered and, as
a result, had not yet advised the SIRC chair. The Solicitor General’s department
was urgently soliciting comments and would immediately advise SIRC upon
receipt.203
The request for a briefing came that same day in a letter to Inkster from the chair
of the SIRC review, John Bassett. Bassett stated that the briefing should provide
“…the Committee with an overview of the RCMP’s concerns relating to the CSIS
investigations and the information exchanges.” SIRC wanted to learn the views
of the Force concerning the CSIS/RCMP relationship prior to and after the crash,
and whether the RCMP was satisfied with the information passed to the Force by
CSIS or whether it perceived “…that there were gaps in that information.” SIRC
also wanted the RCMP’s views regarding the tape destruction issue in relation to
Parmar, and whether the tapes still extant were found to contain useful criminal
intelligence. It also expressed interest in the possible role of the Government of
India (GOI) in relation to Sikh extremism in general, and the Air India bombing in
particular. It was noted that, to a large extent, the purpose of the briefing was to
ensure that SIRC’s research “…neither overlooks important areas of inquiry nor
misinterprets the RCMP’s perception and actions.”204
199
200
201
202
203
204
Exhibit P-101 CAA0831, p. 1.
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9199.
Exhibit P-101 CAA0839.
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9205.
Exhibit P-101 CAA0820, p. 1.
Exhibit P-101 CAA0840, pp. 1-2.
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Volume Two: Part 2: Post-Bombing Investigation and Response
Goral was appointed to coordinate the RCMP’s SIRC briefings.205 On December
11, 1991, he wrote a memorandum to the Assistant OIC of the Security Offences
Section (SOS) indicating that he had forwarded SIRC’s November 29th letter to
Purdy, the chair of the Working Group, and had discussed the letter with her.
He recommended that the RCMP Commissioner respond to SIRC with a letter
indicating that the Working Group had been set up to respond to SIRC’s requests
and that the SIRC letter would be forwarded there. He also recommended
that the issues SIRC inquired about should be addressed in a written RCMP
briefing.206
Goral noted that the major issue of interest for SIRC was the destruction of the
Parmar Tapes by CSIS, which was “well documented” by the RCMP. For the rest,
the issues could be summarized briefly by stating that “…CSIS/RCMP relations
were/are good,” and that CSIS had tried to cooperate within its mandate; that the
RCMP was initially not satisfied with the CSIS information; that CSIS would not
initially provide full access to the RCMP or authorize the use of its information in
judicial proceedings, but eventually came around after a lot of negotiation; and
that the “…tape destruction created suspicion.”207
Goral noted that the issue of the tapes still in existence and the information they
contained could be addressed by E Division. In response to SIRC’s inquiry in this
respect, he indicated that there was “…no proof GOI was involved.” He added
that it was important that E Division agree with the RCMP briefing to SIRC. He
expected that verbal briefings would take place, even in the divisions, and noted
that the RCMP was “…more likely to respond in a cohesive manner in the future”
if there was agreement now on the written briefing. Finally, he wrote that if
the RCMP was to give verbal briefings that were complete, E Division should be
involved, “…in particular S/Sgt. Wall who has headed the investigation from the
start.”208
In a December 13, 1991 memorandum to the OIC SOS, Goral sought direction
on how to respond to SIRC’s request for information. He provided his own
recommendations along with this request. He indicated that the RCMP should
provide only a “brief comment” on each issue and stay away from opinions,
allowing SIRC to form its own opinion on the facts. He also noted that, about
the tape destruction issue, the RCMP “…should maintain the line as in previous
briefing notes.”209
When asked during his testimony at this Inquiry about the reference to “the line”
in previous briefing notes, Goral was unable to comment specifically, as he did
not know which briefing notes were being referred to, but stated that:
205
206
207
208
209
Exhibit P-101 CAA0846, p. 4.
Exhibit P-101 CAA0847, p. 1.
Exhibit P-101 CAA0847, pp. 1-3.
Exhibit P-101 CAA0847, pp. 3, 5.
Exhibit P-101 CAA0852, p. 1.
�Chapter V: The Overall Government Response to the Air India Bombing
…it’s always been our position that the tapes were important.
There were summaries – there were only summaries of those
tapes and we always wanted them. To be able to investigate
further it certainly would have helped to see if there was
further leads on those tapes. There were definitely leads on
the summaries and, however, we didn’t have the tapes and
that’s what we were faced with. We couldn’t recreate them.210
A subsequent notation by Goral, dated December 18th, indicates that he
received a response from his superiors to his memorandum. The Deputy
Commissioner of Operations directed that the RCMP was “…not to criticize
CSIS.”211 Speculating about the reason for this direction, Inkster commented
that there were ongoing negotiations at the time between the RCMP and CSIS
about obtaining information and “…no one wanted to say anything to upset
that relationship.” It was felt that criticizing one another “…didn’t serve any
organization well,” and would “…just bring harm to the relationship.”212
According to an RCMP briefing note, on December 23, 1991, Margaret Purdy and
Assistant Deputy Solicitor General Wendy Pourteous met with SIRC to discuss
the logistics of an RCMP briefing. SIRC was “adamant” that the RCMP provide
a verbal briefing, citing offers of full cooperation from the Justice Minister, the
Solicitor General and Deputy Commissioner Michael Shoemaker. The note
stated that it appeared the Force would “…have to provide a verbal briefing”
and a tentative date of February 12, 1992, was set. It was noted that RCMP
Criminal Intelligence Directorate would meet with Purdy and Maurice Klein
of SIRC on January 2, 1992 to discuss in greater depth the issues which SIRC
had identified for the briefing. It was suggested that A/Comm. Mike Thivierge
provide the verbal briefing as he was well versed in the issues.213
A January 7, 1992, letter from Purdy to the members of the Working Group
provided an overview of developments in relation to the SIRC Air India Inquiry.
She indicated that “ground rules” had been agreed to for the RCMP’s briefing
to the Committee, including that the briefing would be “general” and that the
RCMP team would accept “…general questions, but may have to defer certain
questions for research and written response.” The SIRC officials were not to
“…cross-examine RCMP officials or seek their personal opinions.” The RCMP
briefing would “…present the corporate RCMP position” on issues, and SIRC
would channel any follow-up questions to the Working Group for written
responses. It was noted that RCMP officials planned to “…rely largely on public
statements by Commissioners Simmonds and Inkster and Solicitors General on
such issues as tape erasure, Government of India complicity and the ongoing
criminal investigation.”214 While the RCMP would agree to provide a verbal
210
211
212
213
214
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9207.
Exhibit P-101 CAA0852, p. 2.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10350.
Exhibit P-101 CAA0821, pp. 1-2.
Exhibit P-101 CAA0861, pp. 1-3.
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briefing, this briefing would be prepared in writing in advance,215 and Working
Group members would have the opportunity to review the prepared response
prior to the briefing.216
In an internal RCMP document written by the Director of CID, Wayne Eaton,217 it
was noted that, while SIRC would undoubtedly ask questions during or following
the presentation, it was expected that the questions would be general in nature
and that, if Thivierge was not comfortable as to an “appropriate answer,” he would
take the question under advisement and a written response would be provided
later.218 The memorandum suggested that the briefing take the audience “…
from where we were in 1985 to where we are today insofar as co-operation with
CSIS is concerned.” Eaton instructed that members should:
…be positive when it is appropriate – i.e. CSIS documents
disclosed at Reyat Trial etc. You should also ensure that we
do not contradict ourselves. The Committee has made public
statements on the degree of co-operation in the erased tapes
saying basically that it did not hinder our investigation as an
example.219
During his testimony before the Inquiry, Inkster was asked about these past
statements about the tapes. He was shown a note that was passed to Atkey
during the course of his testimony before a House of Commons Committee
about the impact of tape erasure. The note, passed to Atkey by one of SIRC’s
employees, said:
You could say, if you wish, we have been informed by the
Director that no erasure of tapes has left an information gap
which could hinder or has hindered the investigation. All
useful information was transcribed from tapes before erasure
(of those which were erased).220
The document then noted that “…[the] Director was assured of the above by
Commissioner Inkster.”221
In response to this document, Inkster testified that his view was that likely
someone had “taken liberty” with his comments made before the Parliamentary
Committee and the words he had used there. He testified that “Of course, it was
an information gap because we didn’t know what was on the tapes. And we
215
216
217
218
219
220
221
Exhibit P-101 CAA0860, p. 1.
Exhibit P-101 CAA0861, p. 3.
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9212.
Exhibit P-101 CAA0860, pp. 1-3.
Exhibit P-101 CAA0860, p. 3.
Exhibit P-101 CAF0293.
Exhibit P-101 CAF0293.
�Chapter V: The Overall Government Response to the Air India Bombing
had to deal with that reality, just get on with it and do what we could with what
we had.” Inkster said that at the Parliamentary Committee he had been asked
about the impact of tape erasure on the RCMP investigation and had responded
that the tape erasure “…didn’t stop us from investigating.”222
The RCMP’s verbal briefing to SIRC was provided on February 11, 1992.223 The
written document that formed the basis of the briefing was drafted by the RCMP,
then submitted for comments internally and finally circulated for comments
and redrafting to the Working Group.224
A draft of the RCMP’s SIRC briefing was forwarded to the Air India Working
Group members on January 27, 1992. The original RCMP briefing had a full two
pages about the issue of tape erasure. In the final document, the “tape erasure”
issue was dealt with in two paragraphs. Information from the first draft that
was omitted from the final briefing included: the RCMP’s position that there
had been a request to retain the tapes; a statement that pre-crash summaries
indicated that conversations were guarded; and a remark that file research
indicated that “…the RCMP took it for granted that CSIS intercept tapes were
being retained.” The draft briefing had noted that “…it can be expected” that the
erasure of the tapes would be used as an abuse of process defence argument
during any future criminal proceedings. It had also stated that, since complete
transcripts of the “guarded conversations” were not made, they could not be “…
thoroughly analyzed as to whether or not they contained further leads.”225
The complete briefing paper that was ultimately produced was an 11page, double-spaced document. Goral acknowledged that the document’s
conclusions were high-level and “…accentuate[d] the positive,” perhaps at the
expense of drawing attention to the negative.226 In its Final Submissions to this
Inquiry, the Attorney General of Canada took the position that “…[th]ere was
undoubtedly an effort to provide the necessary information to SIRC without
directly attacking other agencies”, explaining that this was meant to preserve the
improving relationship with CSIS.227 When asked about the “…appropriateness
of an 11-page document to deal with the most extensive investigation ever
undertaken by the RCMP,” Goral replied that this was “…not an appropriate way
to brief as far as the so-called relationships and problems were,” but that it was
in the best interests of the ongoing investigation and constituted the “least
intrusive” option.228
Goral noted that the briefing that was provided to SIRC in “no way” compared
to the RCMP’s significantly more extensive submission to the Honourable Bob
Rae on the issue of the CSIS/RCMP relationship, a document he also assisted in
drafting, and which took a somewhat more critical approach to the relationship.
222
223
224
225
226
227
228
Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10342, 10351-10352.
Exhibit P-101 CAA0881.
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9215.
Exhibit P-101 CAB0861, pp. 11-12.
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9217.
Final Submissions of the Attorney General of Canada, Vol. I, para. 320.
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9216.
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According to Goral, the reason for the difference was that, in the case of the Rae
briefing, the RCMP was “…not taking direction … from anyone in government.”
The RCMP did not object to the directions being provided through the Working
Group during the SIRC review, since it was felt that, in light of the ongoing
investigation, this approach would give the RCMP a better chance of “…securing
admissible evidence.”229
Despite the well-chronicled frustrations experienced by the early E Division Task
Force230 and by BC prosecutor James Jardine,231 in terms of their attempts to
obtain and use information from CSIS, the RCMP briefing to SIRC simply stated:
The Force has always considered our cooperation with CSIS to
be good, both before and after the June 1985 Air India crash. It
would be wrong, however, to conclude that difficulties in our
relationship were not experienced.232
The briefing went on to state that, during the first days after Flight 182 crashed,
“…formal and extensive liaison was established” between CSIS and the RCMP.
The framework was “…quickly put in place to allow extensive information
exchanges between the two agencies.” It added that “…CSIS fully cooperated in
producing CSIS documents which were required by the court and for disclosure
to the defence.” It described the level of RCMP access to CSIS materials by stating
that, while CSIS was “cautious” and “…negotiations took a long time to resolve,”
the Force was provided “hands-on” access and was able to conduct its own
analysis. The briefing also stated that “…CSIS caveats have not impeded the
Force’s ability to share information on the Air India criminal investigation.”233
In terms of tape erasure, the briefing stated that CSIS provided the RCMP
with summaries of the tapes that had been erased, and that access was also
provided to the logs of the CSIS translators. It indicated that the RCMP “…does
not know what the erased tapes contained” and that, to the RCMP’s knowledge,
“…complete transcripts of the conversations were not made and therefore no
analysis can now be made to ascertain whether or not they contained further
leads.” The briefing mentioned that, in October 1985, a Punjabi-speaking RCMP
member assisted CSIS in translating a backlog of approximately 50 CSIS tapes
that had not been erased, and that the RCMP review of these tapes “…did not
uncover significant criminal information.”234
229
230
231
232
Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9216-9217, 9245-9246.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor Perspective.
Exhibit P-101 CAA0881, p. 3. Explaining what was meant by the statement that the “…Force has always
considered our cooperation with CSIS to be good,” Goral indicated that the RCMP continued to talk
to CSIS and that dialogue never stopped and the two organizations “…always strived to
– as much as we could – work together because it was in the best interest of the investigation”:
Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9221.
233 Exhibit P-101 CAA0881, pp. 11, 15, 17.
234 Exhibit P-101 CAA0881, p. 17.
�Chapter V: The Overall Government Response to the Air India Bombing
The briefing also emphasized the initiatives put in place since the Air India
bombing to “…further improve the exchange of information” between the
agencies, including the Liaison Officers (LO) Program, the new MOU, and the
“advisory letter” system.235 About the Liaison Officers Program, the briefing
stated that:
The respective L.O.’s are presently provided with full and
complete access to relevant information of the other agency.
This allows a timely identification of information relevant to
the responsibilities of the concerned agency.236
In fact, the members of both agencies who participated in the LO Program
had expressed serious concerns. Ultimately, and in spite of initial doubts,
management in both agencies concluded that the LO Program was successful
overall in improving trust and communication, but the actual extent of the “…
full and complete access” to the other agency’s information was a constant
subject of debate.237
On February 26, 1992, Purdy sent a memorandum to the Working Group
summarizing the results of the RCMP’s briefing to the SIRC Chair.238 Purdy set
out the “messages” that Bassett appeared to have taken away from the briefing,
which were also included in a letter sent by Bassett to Inkster:
• RCMP/CSIS relations around Air India were not always smooth,
largely because of the two agencies’ different, and sometimes
conflicting, mandates
• Both agencies worked hard at solving the problems
• Current RCMP/CSIS cooperation is “first class” (Bassett’s words)
• The RCMP has no reason to believe that anything CSIS did or didn’t
do hampered the criminal investigation
• The RCMP will never give up on this case and has made “every effort
on earth” (RCMP words) to complete a full criminal investigation.239
When asked about Bassett’s impressions, Goral admitted that they may not
have been “…entirely in alignment with the facts,” at least on the issue of the
tape erasure and of the RCMP’s views on the effect that this incident had had on
the criminal investigation.240
235 Exhibit P-101 CAA0881, p. 19, 21.
236 Exhibit P-101 CAA0881, p. 19.
237 See, generally, Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India
Investigation and Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown Prosecutor
Perspective.
238 Exhibit P-101 CAA0883.
239 Exhibit P-101 CAA0883, p. 1.
240 Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9219-9220.
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Purdy noted that Bassett had sent five follow-up questions in writing for the
RCMP, which dealt with specific instances of CSIS/RCMP liaison and RCMP
participation in the translation of CSIS tapes. SIRC also provided a question
for the Solicitor General Secretariat, dealing with a 1986 instruction from the
Solicitor General on the exchange of CSIS and RCMP liaison officers. Purdy ended
her memo by indicating that the Interdepartmental Working Group would “…
have an opportunity to vet the proposed RCMP and Secretariat responses before
they go to SIRC.”241
SIRC Report
The SIRC report was provided to the Solicitor General in November 1992, and an
abridged version was released to the public in July 1993.242
Included in the report was a summary of the “RCMP perspective,” based on the
briefing provided in February 1992. The report noted that the Force’s view was
that cooperation with CSIS was (and is) good, and that, while the investigation
“…put great strains” on both agencies, the RCMP emphasized “…the lessons
learned.” SIRC noted that “…at no time in the briefing was it alleged or intimated
that the investigation was materially harmed by the difficulties or delays that
occurred.”243 Rightly or wrongly, the RCMP’s failure to criticize CSIS was taken by
SIRC as an indication that any difficulties experienced did not ultimately impact
on the investigation or prosecution.
The report concluded that “…apart from questions on the erasure of tapes and
the use of CSIS information in court, though, we saw few examples of specific
complaints and recriminations over the conduct of the case in the CSIS files we
examined.” SIRC found “…no evidence that the provision of CSIS information
relevant to the RCMP investigation of the disaster was unreasonably denied or
delayed to the Force.” It also found that, while some caveats were applied by
CSIS to limit the use to which the material could be put by the RCMP, “…[t]hese
caveats were fully consistent with the CSIS mandate.”244
The report noted a few examples of “good cooperation” between CSIS and the
RCMP. Among these was the June 4, 1985, Duncan Blast episode where SIRC
stated “…CSIS advised the RCMP of the events.”245 At this Inquiry, however,
it became clear that, as also noted in the Rae report, the agencies were still
providing “differing” – in fact contradictory – accounts of the level of cooperation
and information exchange that took place about the Duncan Blast.246
241
242
243
244
245
246
Exhibit P-101 CAA0883, pp. 1-3.
Exhibit P-101 CAA0923, p. 5.
Exhibit P-101 CAB0902, p. 73.
Exhibit P-101 CAB0902, pp. 70, 74.
Exhibit P-101 CAB0902, p. 44.
Exhibit P-35: Lessons to be Learned: The Report of the Honourable Bob Rae, Independent Advisor to the
Minister of Public Safety and Emergency Preparedness, on outstanding questions with respect to
the bombing of Air India Flight 182 (Ottawa: Air India Review Secretariat, 2005), p. 8 and Section 1.4
(Pre-bombing), Duncan Blast.
�Chapter V: The Overall Government Response to the Air India Bombing
With respect to the issue of tape erasure, the SIRC report stated that SIRC “…saw
nothing to suggest that the RCMP asked that the tapes be retained.” The SIRC
report also stated that, since there was no opportunity to review the contents
of the erased tapes in order to ascertain what was contained on the tapes, it
had to rely on statements from the individuals who had direct contact with the
erased tapes, specifically the translators/transcribers and the investigators.247
According to SIRC:
In their statements to the RCMP, each CSIS officer stated
that there was no evidence or information of value to the
Air India case lost with the erasure of the tapes. The RCMP
reviewed all the logs from the transcribers and translators as
well as their own translation of the 50 backlogged tapes of
Parmar’s conversations. The RCMP stated they did not uncover
significant criminal information.248
The SIRC report concluded:
It is impossible to determine independently if any evidence
was lost through erasure. We consider it unlikely that any
information in the erased tapes indicating plans to bomb the
aircraft would have escaped the attention of the monitors,
translators and investigators. The RCMP determined from the
translator/transcriber logs of the erased tapes and from the 54
tapes retained and reviewed by them after the disaster, that no
significant criminal information was revealed.249
The report found that CSIS tape-handling procedures were out-of-date and
ambiguous, and that the new policies (which still specified a 10-day postprocessing retention period) significantly filled in “…many of the gaps” in the
old policy.250
Government Response to the SIRC Report
Prior to SIRC releasing its public report, all concerned government departments
were provided copies and were given opportunities to provide comments to
SIRC.251
A “communications strategy” briefing by the office of the Solicitor General,
dated October 1992,252 detailed how the Government of Canada should handle
the tabling of the SIRC report. It was noted that SIRC’s findings were “not
sensational” and were “…largely of historical interest,” and that the media had
exhaustively covered the crash of Air India Flight 182.
247
248
249
250
251
252
Exhibit P-101 CAB0902, pp. 53, 92.
Exhibit P-101 CAB0902, p. 92.
Exhibit P-101 CAB0902, p. 99.
Exhibit P-101 CAB0902, pp. 97-99.
Exhibit P-101 CAA0335, p. 17.
Exhibit P-101 CAF0440.
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According to the briefing note, the SIRC study made two “…important, positive
conclusions,” that is, that:
• CSIS could not have predicted the Air India flight would be
bombed; and
• All CSIS information was given to the RCMP.253
It was noted that the SIRC report “…contains enough qualifications to lead a
journalist to ask (even if SIRC won’t answer) whether the possible lack of CSIS/
RCMP cooperation, and lack of direction, resulted in critical omissions in the
criminal investigation.” It was felt that “…CSIS will incur some criticism for its
handling of audio intercept tapes in 1985,” but it was also noted that “…SIRC
may be criticized because the Committee is not overly critical of CSIS in respect
of the Air India investigation.”254
The briefing note also stated that, while there had been periodic calls from
Opposition MP John Nunziata and the Air India victims’ associations for a
public inquiry, “…[t]o date, the Government has steadfastly resisted such an
inquiry.”255
The communications strategy briefing note referred to the arrest of Manjit
Singh and the RCMP’s questioning of him along with the “…controversial death
of Talwinder Singh Parmar,” as having “…raised hopes for a breakthrough,” and
that “…sooner or later, the RCMP and the Minister will have to announce that
Manjit Singh provided some investigative leads that are being pursued.” The
briefing note went on to suggest that, if possible, this announcement should be
held off until “…a Sub-Committee appearance or at least until after tabling [of
the SIRC report].”256 In reality, Manjit Singh was not an important suspect at the
time. He had become a suspect in the RCMP investigation immediately after
the bombing, due to his suspected connection to other criminal activity and
his name, “M. Singh,” which was the name listed on the ticket of the individual
believed to have checked in the luggage containing the bomb. However,
by the time news surfaced about Manjit Singh’s arrest, he was no longer
considered to be a central suspect in the plot, and the RCMP was of the view
after his interview that he had no connection to the bombing.257 In terms of
Parmar’s “controversial death,” while the RCMP clearly had suspicions about the
circumstances surrounding his demise in 1992, serious follow-up by the RCMP
on this matter did not begin until many years later.258
The October 1992 briefing note listed a number of “Communications
Objectives.” Important goals were to avoid “…a prolonged discussion of
253
254
255
256
257
258
Exhibit P-101 CAF0440, p. 1.
Exhibit P-101 CAF0440, p. 1.
Exhibit P-101 CAF0440, p. 1.
Exhibit P-101 CAF0440, p. 1.
See Section 2.3.3 (Post-bombing), The Purported Parmar Confession.
See Section 2.3.3 (Post-bombing), The Purported Parmar Confession.
�Chapter V: The Overall Government Response to the Air India Bombing
the Air India issue” and to emphasize “…the Government’s determination
to pursue the criminal investigation.” The suggested strategy was that the
Government should “…adopt a low key” approach to the tabling of the report,
“…concentrating on not jeopardizing the criminal investigation.”259
In terms of timing, it was noted that the Minister should table the report “...
amid the welter of post-recess, post-referendum Government documents,” and
the preferred weekday for tabling would be a “Thursday afternoon, as soon as
possible after Parliament resumes sitting,” but that the Government “…should
not attempt to bury the Annual Report, such as by releasing it on a Friday
afternoon.” The Solicitor General should be “…prepared to deal with the issues
identified with a sound question and answer package,” and “…should not seek
media coverage.” CSIS spokespersons could be used “to deflect” most of the
questions to a “…nuts and bolts discussion (i.e., fixes to tape retention policy),”
while RCMP spokespersons could deal with questions about the “criminal
investigation.” It was noted that the Solicitor General would have to deal with
calls for a public inquiry or a Royal Commission, and the fact that there had been
no arrest. Upcoming National Security Sub-Committee meetings would have
Messrs. Ray Protti, Norman Inkster and (Minister) Doug Lewis as witnesses, and
it was noted that there “…should be no contradictions or variations between
their answers.” If a more formal response was required, the Minister could take
an “assertive approach,” listing the “…comprehensive national security reforms
taken since 1985” and deploring terrorism as a method of forcing political
change.260
The briefing note suggested a “main message” for the Minister, as follows:
I am pleased that an independent body, the Security
Intelligence Review Committee, has laid to rest concerns about
CSIS’ role in respect of the Air India disaster of June 1985. I
know the families of the victims want to see justice done. The
RCMP will investigate the case vigorously for as long as it takes
to solve this tragedy.261
It was also suggested that the Minister end by saying:
I would not support any initiatives that might hinder the
process of bringing to justice the persons responsible for the
crime. The best hope of solving this crime is through police
work.262
This last suggestion appears to be a pre-emptive initiative.
259
260
261
262
Exhibit P-101 CAF0440, p. 2.
Exhibit P-101 CAF0440, pp. 2-3.
Exhibit P-101 CAF0440, p. 4.
Exhibit P-101 CAF0440, p. 4.
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From the RCMP’s perspective, Goral testified that the statement about SIRC
having laid to rest concerns about CSIS was inaccurate because, in contrast to
the “extensive materials” from CSIS, “…SIRC had such a limited input from the
RCMP” which was “…basically, … an 11-page … [d]ouble spaced [briefing].”263
The RCMP and the SIRC Report
Internal RCMP correspondence contradicts statements made to SIRC by the
RCMP and SIRC’s conclusions in its report. An RCMP internal memorandum
written by NCIS, likely in the fall of 1989, and received by RCMP HQ National
Security Investigations Directorate (NSID) on October 30, 1989, discusses the
obstacles that the RCMP investigation encountered in attempting to access
CSIS information in the post-bombing period. The document states that:
“Commensurate with their obvious investigational needs, RCMP investigators
should have received any and all surveillance material in the raw data form of
surveillance notes, tapes, verbatim transcripts, verbatim translations (if they
existed) and the ‘final reports’ prepared.” However, the “critical” telephone
conversations that were intercepted by CSIS were only “…summarized in a
paraphrased manner” and verbatim transcripts were not made available to
RCMP reviewers.264 The document notes that:
During the Air India investigation CSIS was unwilling
to provide to the RCMP complete verbatim transcripts
of intercepted private communications or any details
surrounding how, where and when their information was
developed and obtained. These measures required the Force
to develop information supplied by CSIS thereby restricting
appropriate investigative avenues. The inability to provide
complete information such as intercepted recordings to
support the prosecution of criminal offences jeopardizes and
hampers the court’s determination of whether the accused has
been precluded from full answer and defence, in which [case] a
breach of the Charter may take place.265
The document concludes that “…the availability and disclosure of information
retained by CSIS contributed significantly to impeding the RCMP’s investigation
of the Air India/Narita incident.”266
Documents such as these, along with the extensive back-and-forth
correspondence in relation to the RCMP’s attempts to access CSIS information
in the early post-bombing period and continuing through the Reyat trial, might
have called into question some of the findings of the SIRC report. Perhaps,
unsurprisingly, the RCMP had chosen not to share such criticisms with SIRC and
then decided not to take issue with SIRC’s conclusions. When the report was
263
264
265
266
Testimony of Terry Goral, vol. 73, November 7, 2007, pp. 9223-9224.
Exhibit P-101 CAA0750, p. 1.
Exhibit P-101 CAA0750, p. 2.
Exhibit P-101 CAA0750, p. 3.
�Chapter V: The Overall Government Response to the Air India Bombing
initially released and all government departments were given opportunities to
comment, the RCMP “…chose not to provide any comments.”267 In later years,
even after the RCMP began to see that the SIRC conclusions could be seriously
problematic for its continued investigation, the Force nevertheless continued
to maintain that it was important to “…not proactively criticize the review
publicly.”268
In his testimony at this Inquiry, former RCMP Commissioner Giuliano Zaccardelli
explained that he viewed the RCMP’s participation in the SIRC inquiry as a missed
opportunity to deal with fundamental and unresolved issues of cooperation
between CSIS and the RCMP.269 By 1996, when it produced a wiretap application
based largely on the CSIS logs for the Parmar Tapes, the RCMP began to make
attempts to distance itself from the SIRC conclusions, a development that
continued in the briefing it provided to the Honourable Bob Rae in 2005.
The SIRC Report and the Post-1995 RCMP Investigation
In late 1995, at a time when some government documents were referring to the
RCMP investigation as having “reached an impasse” and were speculating that it
was unlikely that the RCMP would ever solve the case,270 Deputy Commissioner
Gary Bass – who was the Officer in Charge of the BC Major Crime Section at
the time – was asked by the CO for E Division to assemble a team to take a
look at the investigation that had been carried out to date, and to provide
advice on whether or not there was anything else that could be done in the
investigation.271 Bass and his team conducted an extensive file review and, as
a result, in early 1996, began to assemble an application for an authorization to
intercept private communications.
In his testimony before this Inquiry, Bass discussed the discrepancies between
“…what actually happened” and “…the public record as to what happened”
in Air India, which became evident to him during his review of the file.272 He
commented that, in contrast to the extensive critical correspondence generated
during the years that BC Crown prosecutor James Jardine was attempting to
figure out from CSIS what had happened to the Parmar Tapes and why, the SIRC
report essentially said that:
…despite the fact that there were some problems with
cooperation, in a general sense, cooperation was good, and
that the RCMP didn’t ask that the tapes be retained, and that
in any event, it was agreed, apparently, by everyone that there
was nothing of any probative value on the tapes anyway. 273
267
268
269
270
271
272
273
Exhibit P-101 CAA0335, p. 17.
Exhibit P-101 CAA1007, p. 4.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11086-11087.
Exhibit P-101 CAA0923, pp. 4-5.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11177.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11187-11188.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11187-11188.
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This was a conclusion Bass “…obviously disagreed with,” and which, in his view,
was not “…supported by the facts.”274
The findings of the SIRC report became a source of serious concern for the
renewed Task Force when it was decided that the RCMP would rely on the content
of the CSIS Parmar intercepts in support of its application for authorization to
intercept communications. Because SIRC had made findings that the wiretap
material “…contained nothing of significant evidentiary value,”275 there was a
risk that the SIRC report, or other similar statements that had been made by
RCMP management, could subsequently be used to cast doubt on the bona
fides of the RCMP investigative tactics. The RCMP wiretap affidavit material
would “…vary significantly from the findings of the SIRC Review,”276 as it would
present the intercepted Parmar conversations as providing grounds for a wiretap
authorization under the Criminal Code. According to Bass, defence counsel
would undoubtedly suggest to the affiant:
…in very strong terms, that his view of events is diametrically
opposed to the views of CSIS, SIRC and some members of the
RCMP. The entire disclosure, CSIS/RCMP co-operation and tape
erasure issues will be examined in infinite detail.277
Bass discussed the issues at the time with Robert Wright, Regional Crown Counsel
for Vancouver, and Austin Cullen, Regional Crown Counsel, New Westminster,
who were in agreement with his analysis of the situation and with his view that
it would be necessary to “…describe in some detail” for the record where the
1995 Task Force differed with the SIRC report.278
In a February 9, 1996 memorandum, Bass addressed what he termed the
“popular perception” of the issues surrounding erasure of tapes, RCMP/CSIS
cooperation and the assessment of the value of the lost evidence, a perception
he felt “…does not accurately reflect the facts.”279 Bass, who was not aware until
shortly before his testimony at this Inquiry of the nature of the RCMP’s own
participation in the SIRC review, explained in testimony that this memo was an
“…effort to set the foundation” for later demonstrating to a court that the RCMP
did not agree with SIRC, and it was hoped that the “…grounding of the wiretap
that was founded on this would … essentially be found to be solvent….”280 He
wrote in his memorandum:
Without belabouring the issue, it is clear that this entire
procedure will undergo intense scrutiny should we ever reach
the prosecution stage. Many of the issues arising from this
274
275
276
277
278
279
280
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11187-11188.
Exhibit P-101 CAA0934.
Exhibit P-101 CAA0932, p. 4
Exhibit P-101 CAA0934, p. 1.
Exhibit P-101 CAA0934, p. 1.
Exhibit P-101 CAA0932, p. 2.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11188-11189, 11208.
�Chapter V: The Overall Government Response to the Air India Bombing
correspondence were touched upon in the 1992 SIRC report.
There are several important issues which must be resolved
before continued resource commitment to the investigation
can be justified. To proceed without resolution would be
a waste of scarce police resources and merely delay the
inevitable public inquiry.281
He went on to summarize the “…assessment of senior RCMP management”
as well as the findings of the SIRC review conducted in 1992. He noted that
SIRC found that “good cooperation” existed between RCMP and CSIS in the
“post disaster days” and that there was a “…good exchange of information.”
Though SIRC was critical of CSIS’s policy respecting the handling of intercepts,
it found no evidence of an RCMP request to retain the Parmar Tapes, and it also
found that the RCMP had said that “…nothing of an evidentiary nature had
been intercepted” and that therefore CSIS actions had “not resulted in a loss of
evidence.” 282 On the contrary, according to Bass:
…numerous intercepts of high probative value between
several of the co-conspirators leading up to the bombings
were destroyed. If, in fact, someone in the RCMP made the
statement there were no intercepts of evidentiary value, they
were clearly wrong. If the RCMP did not make that statement,
other concerns are raised.283 [Emphasis in original]
In testimony, Bass pointed to the intercepts surrounding the trip to Duncan and
the directions that were being given by Parmar. He stated that, assuming the
existence of a conspiracy could be proven, the utterances of Parmar and Reyat
“…could potentially become admissible against all the other co-conspirators.”
He felt that perhaps the value of these tapes was underestimated in the early
days of the investigation because the conspiracy approach was not a strategy
that “…a lot of people understood.” Bass indicated that, for his part, he continued
to view the tapes as “…valuable and of high probative value.”284
In relation to the impact of CSIS’s delay in providing information to the RCMP
in 1985, Bass indicated that the RCMP put up wires on the wrong targets, and
that it was not until September that a wire on the principals was obtained. He
explained, in this context, that the period directly following an event like the
bombing was a “…really critical time” for investigative purposes. He added
that had he been aware of the information that was available through the
CSIS intercepts at the time, he would have “…been moving towards a wiretap
on different people,” and would have immediately “…wired up all the pay
telephones” that the suspects were using.285
281
282
283
284
285
Exhibit P-101 CAA0932, p. 2.
Exhibit P-101 CAA0932, p. 3
Exhibit P-101 CAA0932, p. 3.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11197-11198.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11202, 11240.
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Bass concluded that there was a “strong likelihood” that, had CSIS retained the
tapes between March and August, 1985, “…a successful prosecution against at
least some of the principals in both bombings could have been undertaken.”286
In his testimony before the Inquiry, he confirmed that he was still of the view
that if the RCMP had had the pre-bombing tapes and they were found to
contain what was recorded in the transcriber notes, there would have been “…
fairly compelling evidence” to put forward to Crown counsel against Parmar,
Reyat and others with respect to the bombings.287
In terms of the information that would have been made public through
disclosure in a criminal trial, Bass’s memo noted that a “…great deal of what
some will classify as embarrassing correspondence” and “…thousands of
pages of memos and telexes wherein our Force and CSIS argue over release
of information between 1985 and 1990 will not be protected.”288 Bass wrote
that “…the gross inaccuracy of the SIRC Review report” would then become
“immediately evident” to anyone reading this correspondence. 289
Subsequent RCMP Submissions about SIRC’s Findings
In its briefing to the Honourable Bob Rae in 2005, the RCMP took issue directly
with some of SIRC’s findings. The briefing outlined areas of disagreement with
the SIRC report and surmised that the mistaken impressions of SIRC may have
been due to SIRC’s mandate:
These differences may stem largely from the nature of SIRC’s
legislative mandate, which dictates that its scope of review
is limited to the actions of CSIS and not of other government
agencies or departments.290
Though not emphasizing directly that many of SIRC’s findings in relation to
RCMP/CSIS cooperation were based on the RCMP’s own statements, the Force
recognized that its briefing to SIRC was not exhaustive:
Prior to completing its report, therefore, SIRC only had the
benefit of a very general 12-page briefing from the RCMP,
without access to its extensive document holdings, nor its
personnel.291
As we know, the decision to provide as little detail as possible to SIRC and to
participate in a coordinated response which avoided interagency criticism was
286 Exhibit P-101 CAA0932, p. 3
287 Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11201.
288 Exhibit P-101 CAA0932, p. 4; See Section 4.4.1 (Post-bombing), The Reyat Trial and the BC Crown
Prosecutor Perspective.
289 Exhibit P-101 CAA0932, p. 4.
290 Exhibit P-101 CAA0335, p. 13.
291 Exhibit P-101 CAA0335, p. 13.
�Chapter V: The Overall Government Response to the Air India Bombing
deliberate. However, the RCMP was not satisfied with the consequences of this
decision and decided to state its position in a different manner. In its briefing to
SIRC, the RCMP had stated that: it had always considered its cooperation with
CSIS to be good, though some difficulties were experienced; that a framework
had been put in place soon after the bombing to allow “…extensive information
exchanges”; and that CSIS had “…fully cooperated in producing CSIS documents”
for disclosure and prosecution, and had provided “hands-on” access to its
materials for the RCMP investigators to conduct their own analysis.292 Yet, in
its Rae briefing, the RCMP stated that SIRC’s comments to the effect that other
than with respect to the tape erasures, these had been a “full exchange of
information”:
…minimize the concerns felt by the RCMP, as well as the
importance of the Force’s requirement to use CSIS information
in court. Arguably, the ability to use CSIS information in
furtherance of a criminal prosecution goes to the heart of the
relationship between the two agencies.293
Although it had been advised that one of the messages the SIRC chair had
taken from the RCMP briefing was that “…the RCMP has no reason to believe
that anything CSIS did or didn’t do hampered the criminal investigation,”294
the RCMP also took issue with SIRC statements that the investigation was not
unreasonably denied or delayed. Even though it had not made any efforts
at the time to correct the chair’s impressions, in its briefing to Rae, the RCMP
indicated:
It appears that SIRC failed to appreciate that, in the law
enforcement milieu, access to all relevant information in a
timely manner is critical to the criminal investigation and
judicial process.295 [Emphasis in original]
The RCMP briefing to Rae pointed to the example of Michael (“Mike”) Roth’s
difficulties in accessing information regarding the intercepts296 as contradicting
SIRC’s assertion that no information was unreasonably delayed.297 It noted
that:
With an appreciation of the context, SIRC’s comments that it
did not see any indication that relevant information was not
being shared with the RCMP could mislead some readers. On
one hand, information was being exchanged, however this
does not hold true for much of the information the Service
292
293
294
295
296
297
See Exhibit P-101 CAA0335, pp. 3, 11, 15, 17.
Exhibit P-101 CAA0335, p. 25.
Exhibit P-101 CAA0883, p. 1.
Exhibit P-101 CAA0335, p. 25.
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
Exhibit P-101 CAA0335, p. 25.
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had from its intercepts. Moreover, meaningful access to this
information was not provided to the RCMP until Aug. 22 and
Sept. 10. The coded conversations were clearly relevant yet
were not being handed over.298
The Rae briefing also correctly pointed out that the RCMP briefing document
to SIRC had only stated that the surviving Parmar Tapes reviewed by Cst. Manjit
(“Sandy”) Sandhu were not found to contain significant criminal information,299
and not, as SIRC concluded, that no significant criminal information was
revealed in the logs from the CSIS transcribers and translators in relation to the
erased tapes.300 Though the former SIRC chair had been advised in 1987 that
the position of the RCMP Commissioner was that no erasure of tapes had left
an information gap which could hinder the investigation.301 However, Goral
agreed in testimony that it would take a very close reading of the language
of the RCMP’s written submission to SIRC to be able to understand that it was
only the 54 tapes listened to by Sandhu that were found to contain nothing of
importance, and not the entire collection.302 The RCMP certainly did not state
that its review of the logs for the erased tapes indicated that they might have
contained significant information. Rather, it simply wrote that the logs were
reviewed; that it could not be known what the tapes contained since they were
erased; and that no analysis could be done to ascertain whether they contained
further leads because of the lack of verbatim transcripts.303 The Force also did
not point out to SIRC, as it did in its briefing to Rae, that information about
the June 1985 Parmar conversations was used in RCMP wiretap authorization
applications in 1985 and that this information was described as “…relevant to
the RCMP investigation.”304
5.3 1995 Anniversary and Renewed Interest in a Public Inquiry
June 1995 marked the 10th anniversary of the Air India bombing. During the
preceding months, the RCMP began attempts to pursue unresolved issues in
the investigation with a renewed sense of urgency, and also began to plan its
media strategy.305
In February 1995, members of E Division NSIS and HQ held a meeting to review
the Air India investigation and to develop and follow up on unresolved initiatives.
The members were considering announcing a reward for new information
and releasing a video presentation, possibly on the television show “Unsolved
Mysteries,” in order to obtain information. HQ had already given approval in
298 Exhibit P-101 CAA0335, p. 24.
299 Exhibit P-101 CAA0881, p. 17.
300 See Exhibit CAB0902, p. 99: “CSIS Activities in Regard to the Destruction of Air India Flight 182 on June
23, 1985: A SIRC Review”; Exhibit P-101 CAA0335, p. 26: RCMP Submission to the Honourable Bob Rae.
301 Exhibit P-101 CAF0293.
302 Testimony of Terry Goral, vol. 73, November 7, 2007, p. 9219.
303 Exhibit P-101 CAA0881, p. 17.
304 See Exhibit P-101 CAA0335, p. 25.
305 Exhibit P-101 CAF0393, p. 2.
�Chapter V: The Overall Government Response to the Air India Bombing
principle for the use of a video presentation and a reward of $300,000, and it
was felt that “…some action should be taken before June 22.”306 According to
the minutes of the meeting, prepared by RCMP Sgt. Ken Laturnus, the following
discussions were then held:
21. What does news release get us? Can we be criticized
for not doing a news release. Video can be done to show
investigation was professionally done. Police have done the
best they can, we now need public assistance.307
After the meeting, E Division NSIS decided to address a number of outstanding
initiatives as soon as possible. The Assistant Officer in Charge of NSIS transmitted
a report to the Officer in Charge of the Criminal Investigations Bureau for the
Division to advise of the results of the Air India file review and of the initiatives
which would be pursued (all of which had been “…identified and documented
previously”). He indicated that NSIS was “…attempting to resolve all the issues”
before the 10th anniversary of the bombing and added that it was “…preferable
to have the RCMP make a public statement beforehand, rather than reacting
to media queries afterwards.”308 At the time, the Solicitor General had rejected
a proposal for offering a reward of more than $300,000, the maximum signing
authority of the RCMP Commissioner. RCMP senior management took the
position that a “…public plea for assistance” had to be a “…last resort after all
other initiatives have failed.”309 E Division NSIS agreed, but noted that, aside
from three proposed initiatives involving approaches to Reyat, Surjan Singh
Gill and Ms. E, the point where all initiatives had failed had been reached and a
presentation to the public had to be ready before the anniversary.310
In June 1995, the RCMP offered a reward of one million dollars for information
leading to an arrest in the Air India case. However, the RCMP Commissioner
also decided at the time that if evidence was not forthcoming in a reasonable
period of time, “…such as six months,” resources would no longer be devoted to
investigating the crash, though the file would not be closed.311
In October 1995, Cabinet members were asked to consider “…whether and how
the Government could respond to continued demands for action on the Air
India disaster.” On October 11th, the Director General of the National Security
Directorate of the Solicitor General’s office, Paul Dubrule, prepared a draft aidememoire to provide Ministers with possible options for dealing with continued
demands for Government action. He noted that, based on the information
then available to the Government, it was believed that “…the RCMP may soon
announce that it has reached an impasse in its investigation of the crash of Air
306
307
308
309
310
311
See Exhibit P-101 CAF0390, pp. 2, 5.
Exhibit P-101 CAF0390, p. 5.
Exhibit P-101 CAF0391, pp. 1-2.
Exhibit P-101 CAF0392, pp. 3-4.
Exhibit P-101 CAF0391, CAF0392, p. 4.
Exhibit P-101 CAA0923, p. 4.
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India flight 182.” As a result, the Government would need to consider “…which
steps it will initiate for managing the issue.”312
The draft aide-memoire provided background on the June 23, 1985 bombings
and indicated that earlier that year, the RCMP “…publicly acknowledged that the
crash was caused by a bomb,” noting that both the “…Canadian Aviation Safety
Board (CASB) (1985) and the Indian Kirpal judicial inquiry (1986) came to the
same conclusion.” The briefing stated that in the first few years after the disaster,
“…amidst continued pressure from victims’ families and from the media, the then
Government did not initiate a full public inquiry” because such an inquiry could
have interfered with the “…ongoing police investigation” and “…compromised
a subsequent trial.” In addition, as the incident was investigated by CASB, Kirpal
and SIRC, it was felt “…that little more, if anything, could be learned about the
bombing through a public inquiry.”313
About the RCMP investigation, Dubrule noted that the “…overriding problem
for investigators is the lack of physical evidence,” which was in “sharp contrast”
to the Narita bombing. It was understood that “…unless an informant comes
forward with new evidence, it is unlikely that the RCMP will solve the Air India
case.” Several options were then set out in the aide-memoire. “Option 1” was
the appointment of a commission of inquiry. It was felt that, given that more
than 10 years had passed since the crash, the commission would report on the
circumstances surrounding the crash and would describe the various lines of
investigation. The commission’s mandate would likely need to cover issues
such as the nature of the security arrangements at Toronto, Montreal, and
Vancouver airports at the time of the incidents, the extent to which safety and
security regulations were met by federal aviation authorities and carriers, the
cooperation between the various agencies in relation to airport security, the “…
thoroughness of the RCMP investigation” and the pre-bombing intelligence.314
The main advantage of a commission of inquiry was noted to be that it would
“…respond to the families’ concerns and perhaps initiate a healing process.” It
would also give the Government the opportunity to set the record straight, and
it would allow the Prime Minister to live up to the pledge he made while Leader
of the Opposition. There were a number of perceived disadvantages listed as
well. A full inquiry would “…likely be costly and lengthy,” lasting “…three or
four years given the complexity of the issues, the quantity of evidence and the
involvement of numerous parties.” Though the Government could establish a
fixed budget and time frame, it would need to “…balance fiscal imperatives”
against the need to undertake a “…credible, transparent and comprehensive
inquiry into the disaster.”315
The document went on to note that:
312
313
314
315
Exhibit P-101 CAA0923, pp. 1, 5.
Exhibit P-101 CAA0923, p. 3.
Exhibit P-101 CAA0923, pp. 4-5.
Exhibit P-101 CAA0923, p. 6.
�Chapter V: The Overall Government Response to the Air India Bombing
Moreover, if there were new revelations about inadequate
airport security that existed in 1985 they could provide
evidence to re-open civil liability suits with the victims’ families
which were previously settled.316
And that:
A full inquiry would likely be inconclusive and ineffective in
uncovering any new information: it would not determine who
planted the bomb. In addition, its terms of reference would,
of necessity, cover areas that have already been the subject of
intense scrutiny.317
It was also thought that a full inquiry would be disruptive to Government and
“…usurp a considerable amount of Ministers’ time,” and that “yet another”
inquiry could “…test taxpayers’ tolerance” and lead to “…widespread criticism of
government inquiries.”318
“Option 2” was listed as maintaining the “status quo,” meaning the Government
“…would not take immediate action of any kind.” As it had been the
Government’s position that for as long as the criminal investigation was ongoing,
“…a public inquiry should be held off,” it was felt that this option would not be
unreasonable.319 Under “advantages,” it was noted that it might not be necessary
for the Government to take further action, as it was “…unlikely that incremental
pressure” would be brought to bear on the Government, given that the ten-year
anniversary “…passed with limited public interest and media attention.” This
option was also perceived to be the least disruptive to Government and it was
stated that:
As time passes, it may become more evident to those calling
for an inquiry that it will likely not uncover new information.
Over time, as the victims’ families are kept apprised of the
progress of the criminal investigation, their commitment to an
inquiry may lessen.320
On the downside, the “status quo” approach could appear as though the
Government was stalling and indecisive, and in the absence of new evidence,
would not bring “…closure to the issue.”321
“Option 3” was a “public statement by the Solicitor General,” whereby the RCMP
would acknowledge publicly that it had come to an impasse in its investigation
316
317
318
319
320
321
Exhibit P-101 CAA0923, p. 6.
Exhibit P-101 CAA0923, p. 6.
Exhibit P-101 CAA0923, p. 6.
Exhibit P-101 CAA0923, p. 6.
Exhibit P-101 CAA0923, p. 7.
Exhibit P-101 CAA0923, p. 7.
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and the Solicitor General would make a statement in the House of Commons
providing an account of the criminal investigation and reviews to date. To be
effective, it was noted that the statement would have to be “…accompanied
by a sound communications strategy” that would include briefings of “…key
journalists, contact with the groups representing the families, and press kits
stressing the work that has been done on the investigation and the results of
all inquiries.”322
Advantages were that this approach would “…bring closure to the issue” without
the necessity of a “…lengthy and costly inquiry,” and would give the Government
the opportunity to summarize the details of the measures that had been taken
since the crash to prevent similar tragedies, and to detail the investigations that
had been done to date. On the other hand, ending the investigation with no
charges and no public inquiry would prompt a negative reaction “…mainly from
the victims’ families.” As well, the Prime Minister could be accused of not keeping
a promise, made while in opposition, that he would hold a public inquiry. It was
noted that there was a risk this approach could “backfire,” leading to increased
pressure for an inquiry and prompting “…accusations of racism which could
tarnish the Government.”323
The final option, “Option 4,” was for a review of the Air India matter under the
chairmanship of a respected, independent person. This option would be a more
“informal inquiry,” allowing the Government to have the review completed
expeditiously. This option would be seen as “…honouring the commitments”
made by the Government while in opposition in a fiscally responsible fashion,
and could bring closure to the Air India issue. As disadvantages, it was noted
that the credibility of the process could be questioned since, without official
status under statute, the chair would have no legal power to compel witnesses
to testify or to compel the production of documents. As well, the victims’ families
might not be satisfied.324
On November 9, 1995, Dubrule forwarded the draft aide-memoire to CSIS for
comment.325 The reply provided on behalf of Jim Corcoran, Assistant Director
of Requirements and Analysis, stated that CSIS’s preference was “Option 2”:
maintaining the status quo, with Option 3, a statement by the Solicitor General,
as a backup only if something needed to be said “…as a result of further public
pressure.” It was the Service’s view that:
…absolutely nothing will be gained by exercising Option 1
or 4. In fact, these two options may lessen the chance for the
healing process to begin as it would only force the victims’
families to once again relive the event.326
322
323
324
325
326
Exhibit P-101 CAA0923, p. 7.
Exhibit P-101 CAA0923, pp. 7-8.
Exhibit P-101 CAA0923, p. 9.
Exhibit P-101 CAA0923.
Exhibit P-101 CAA0923, p. 1.
�Chapter V: The Overall Government Response to the Air India Bombing
It was felt that the “…only one thing that will allow a full and complete healing
process to occur,” would be a conclusion to the investigation leading to charges
being laid, or a “…full and complete explanation of who did it.” CSIS commented
that “…as we now know, this is unlikely to occur.”327
At the RCMP, it was also in October or November 1995 that Bass received a
call from the British Columbia Criminal Operations Officer, A/Comm. Dennis
Brown, and was asked “…to take a look at the investigation that had been done
to date and to give him advice as to whether or not there was anything else
that could be done.” This is how the extensive file review and the post-1995
renewed Air India investigation began. Bass testified that, though this was not
discussed directly with Brown, the increasing calls for a public inquiry and the
fact that the Government was considering its options in light of the state of the
RCMP investigation were “probably the impetus” for Brown’s request that the
investigation be reviewed.328
During the review and renewed investigation process, RCMP management
remained sensitive to the possibility of an eventual public inquiry. In his February
1996 memorandum, where Bass noted that proceeding without resolving the
issues surrounding the SIRC report would be a waste of resources and would “…
merely delay the inevitable public Inquiry,” he commented:
I am confident that the result of such an inquiry will be to
direct severe criticism to the CSIS and, to a lesser extent, the
RCMP in relation to the handling of this investigation. The
fact that some part of the criticism will be with the benefit of
hindsight, will not soften the blow to any great extent.329
Bass later indicated in a May 1996 memorandum to the BC Criminal Operations
Officer that, while he was optimistic that sufficient evidence would be gathered
to lay charges, it was difficult to predict the likelihood of a successful prosecution.
He noted that in any event, the process would “…at the very least, place us in a
better position should an inquiry eventually be held.”330
5.4 The Prosecution of Malik, Bagri and Reyat
By November 1996, the renewed RCMP Task Force had not uncovered any
significant new evidence. However, the RCMP had begun to have meetings
with the BC Crown office, and a decision had been made to “…proceed to
prosecution” and “…leave the matter to the courts and a jury,” whether or not
“fresh evidence” was uncovered as a result of the efforts of the renewed Air India
327
328
329
330
Exhibit P-101 CAA0923, p. 1.
Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11177, 11180.
Exhibit P-101 CAA0932, p. 2.
Exhibit P-101 CAA0952, p. 2.
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Task Force.331 A prosecution team was assembled and a review of the file for the
purposes of charge approval began.332
Ripudaman Singh Malik and Ajaib Singh Bagri were charged on October 27,
2000 with eight counts each, including first degree murder of the Air India Flight
182 passengers and crew, first degree murder of the two Japanese baggage
handlers who died in the Narita explosion, and conspiracy to commit murder.
Inderjit Singh Reyat was subsequently added to a new indictment filed on June
5, 2001, which charged Malik, Bagri and Reyat jointly for all counts except the
murder of the Narita baggage handlers, since Reyat had already been convicted
of manslaughter for the Narita case in 1991.333
On February 10, 2003, Reyat pleaded guilty to the manslaughter of the Air India
Flight 182 victims and the Crown withdrew the other charges against him. He
was sentenced to five years in prison in addition to the 10-year sentence he
had received in 1991.334 Shortly after Reyat’s plea, the Crown announced its
intention to call Reyat to testify.335 Reyat’s testimony did not implicate the other
accused or reveal any information helpful to the prosecution. He denied that
he had knowledge of a plan to bomb Air India Flight 182, admitting only that
Parmar had asked him for an explosive device to be used in India to assist Sikh
people. Justice Josephson, who presided at the trial, found him to be an “…
unmitigated liar under oath” and concluded he was withholding information.336
He is currently being prosecuted for perjury, following the laying of charges at
the end of his five-year sentence in 2008.
The proceedings involving Malik and Bagri lasted almost five years. The trial
itself began in April 2003 in a state-of-the-art electronic courtroom specially
created for the Air India case.337 There were a total of 230 trial days. Extensive
forensic evidence was heard to prove that Air India Flight 182 was bombed and
that the bomb was located in the area where the bag checked in by the still
unidentified “M. Singh” would have been.338 This evidence did not however link
the two accused to the bombing. The case against Malik and Bagri essentially
rested on the testimony of a handful of witnesses, who mostly alleged that the
accused had confessed to the crime. Three main witnesses testified against
Malik. Two alleged that Malik had asked their assistance to take a suitcase to
the airport, and the main witness, Ms. D, alleged that Malik had confessed his
involvement to her on several occasions during the course of their relationship.339
331 Exhibit P-101 CAA0958, p. 2; Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7815-7816. See,
generally, Section 2.2 (Post-bombing), The RCMP Investigation: Red Tape and Yellow Tape.
332 Exhibit P-101 CAA0958, p. 2.
333 R. v. Reyat, 1991 CanLII 1371 (BC S.C.).
334 R. v. Reyat, 2003 BCSC 254.
335 In the Matter of an Application Under s. 83.28 of the Criminal Code and Satnam Kaur Reyat, 2003 BCSC
1152 at para. 21.
336 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1277-1284.
337 Ministry of Attorney General, Court Services Branch, Report of the 2002/2003 Fiscal Year, June 25, 2003,
p. 7.
338 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1262-1268.
339 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1285-1313; See, generally, Section 1.5 (Post-bombing),
Ms. D.
�Chapter V: The Overall Government Response to the Air India Bombing
The case against Bagri was based on the evidence of two witnesses, as well as
some evidence of motive on the basis of a heated speech he gave in 1984. Mr.
C, who was a paid police informant, alleged that Bagri had made comments
after the fact which tended to indicate he was responsible for the bombing. Ms.
E, a former friend of Bagri, had told CSIS that Bagri had asked to borrow her car
to take a suitcase to the airport the night before the Air India bombing, but at
trial testified that she had no recall of the conversation. Some of her previous
statements to CSIS were admitted in evidence.340
During the trial, Justice Josephson found that CSIS’s erasure of the Parmar
intercept tapes and its destruction of notes for interviews with Ms. E violated
the accused’s Charter rights.341
Malik and Bagri were both acquitted on March 16, 2005.342 Justice Josephson
found that, quite aside from the Charter violations, the evidence presented by
the Crown fell “markedly short” of proving guilt beyond a reasonable doubt.343
Serious credibility and reliability issues were identified with the evidence of each
of the witnesses who testified against the two accused. The issues identified
included the fact that many of the witnesses had only come forward many years
after the crime, that they had largely provided information otherwise available
in the public domain, and that they had their own reasons to wish harm to the
accused.344
This Commission learned that there was another individual who was willing
to testify in the trial and whose evidence was never brought to the Court’s
attention. This individual (who will be referred to in this discussion as “Mr. G”) was
an important figure in the Sikh extremist movement in 1985. His name appears
in many of the documents provided to the Commission, and there existed
independent information – known to the RCMP for years – that indicated that
he might have some knowledge about the bombing. Mr. G was approached
by the RCMP in 1995 and he claimed that Bagri was involved in the Air India
bombing, along with other Babbar Khalsa (BK) members. He also indicated that
Reyat should be questioned further about the bombing, though Parmar was the
ringleader. Mr. G initially indicated that Lakhbir Singh Brar was the “…L Singh
in question,” apparently referring to the person in whose name reservations had
been booked on Air India Flight 182 and on the connecting CP flight to Toronto.
Parmar, in his purported confession (which did not become known to Canadian
authorities until years later), also named Lakhbir Singh Brar as one of the Air
India ticket holders.345 Mr. G soon amended his earlier statement, indicating
that he was not referring to the Air India plane that was bombed, but to a CP Air
Flight to Toronto which Lakhbir Singh would have boarded under the name of
L. Singh during the same period.
340 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1324-1342; See, generally, Section 1.3 (Post-bombing),
Ms. E.
341 R. v. Malik, Bagri and Reyat, 2002 BCSC 864; R. v. Malik and Bagri, 2004 BCSC 554.
342 R. v. Malik and Bagri, 2005 BCSC 350.
343 R. v. Malik and Bagri, 2005 BCSC 350 at para. 1345.
344 R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1313-1323, 1330-1344. See Section 1.3 (Post-bombing),
Ms. E and Section 1.5 (Post-bombing), Ms. D.
345 See Section 2.3.3 (Post-bombing), The Purported Parmar Confession.
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Initially, the E Division Air India Task Force investigators felt that Mr. G’s
information could be a “major breakthrough” in the investigation, given
his position in the Sikh extremist movement at the time of the events. The
investigators noted, however, that Mr. G’s cooperation would have to be based
on an understanding that he would not be charged with any offences and, in
fact, they took steps to discuss possible immunity for the Air India case with
the BC Crown. At the time, they felt that this should not be a problem, given
the benefits of obtaining Mr. G’s cooperation.
When Mr. G was further questioned by the RCMP, he stated that he had heard
Parmar and Bagri bragging in the months following the Air India bombing, that
the BK, unlike other extremist organizations which only had guns, had higher
technology to “…further the cause” and to “kill people,” and that one of them
had added “…look what we have done,” which Mr. G interpreted as a reference
to the Air India bombing. Mr. G alleged that Bagri had bragged the most, and
had claimed that the BK had the capability to “…put the government of India in
place.” Parmar and Bagri also discussed Reyat, remarking approvingly “…look
what our Singh has done,” which Mr. G interpreted as a reference to Reyat’s role
in the bombing.
Initially, Mr. G was adamant that he would not testify in court about his
knowledge under any circumstances. However, he indicated that he might be
willing to provide a written or recorded statement. The RCMP was concerned
about Mr. G’s credibility, given some contradictions in his statements and
because of the investigators’ view that, in light of facts known to them, Mr. G
possessed additional information which he was withholding. The Force was also
concerned about Mr. G’s unwillingness to testify. In general, the investigators
believed that Mr. G was “hedging his bets” and refusing to commit himself to
the RCMP until it became absolutely necessary. They decided not to pursue
the matter further, but to re-contact Mr. G periodically to see if his attitude and
willingness to cooperate changed.
In the following months, Mr. G reiterated his willingness to provide information
and to identify individuals, places and events to assist the RCMP, but still did not
want to testify. E Division investigators decided that the RCMP could continue
to receive information from him, since his attitude about giving evidence might
change over time. They indicated clearly, though, that the Force could not
seriously entertain providing any concessions to Mr. G unless he provided “…
full and complete co-operation of an evidentiary nature.”
In 1997, Mr. G agreed to testify. He did not ask for financial considerations
in exchange for his testimony, but did enquire about protection for himself
and his family and compensation for any losses he might incur as a result of
his cooperation. He was told by the RCMP that he first needed to provide a
statement which could be evaluated by the Crown. Mr. G complied. His statement
indicated that he had heard Parmar bragging that the BK had “…the people
and technology to inflict extreme damage against the Indian Government.” He
stated that Parmar did most of the talking, but was supported by comments
�Chapter V: The Overall Government Response to the Air India Bombing
from Bagri. He added that Parmar made comments indicating that he had had
a part in an explosion or had “obliterated something,” which Mr. G felt was a
reference to the Air India bombing. The investigators told Mr. G they would
contact him again once Crown counsel had assessed the value of his evidence.
The following year, Mr. G approached the RCMP again, indicating that he was “…
ready to consider any offers of financial awards and protection from the RCMP”
in exchange for his cooperation, which could include testifying. The RCMP did
not take him up on his offer at this time. No attempts were made to provide
financial assistance or protection.
In 2000, Mr. G again told the RCMP that he was willing to testify. He was advised,
however, that “…the Crown was not intending to call him as a witness.” The RCMP
investigators nevertheless told Mr. G that they did need his assistance in the Air
India case, since they believed he had more information than he had previously
disclosed. Mr. G stated that he had exhausted his memory and could provide
no additional information. He was told by the RCMP that if “the circumstances”
changed and he became willing to provide more evidence, the Force would be
willing to relay this message to the Crown.
There were serious concerns about Mr. G’s credibility and truthfulness, because
he had made several conflicting statements to the RCMP over the years. There
were also concerns about the value of Mr. G’s potential evidence. However, as
reflected in Justice Josephson’s reasons, both these concerns also attached to
most, if not all, of the witnesses who did testify in the Air India trial. Mr. C, in
particular, had received substantial financial compensation for his testimony
and his credibility was of serious concern, ultimately leading the court to reject
his evidence. Given Mr. G’s role in the Sikh extremism movement and the other
information about him that was available to police through independent sources,
it was at least plausible, and indeed perhaps likely, that he had some knowledge
about the bombing. Under the circumstances, it is somewhat puzzling that his
repeated offers of cooperation were simply rejected without further attempts
to satisfy his concerns or demands.
In light of his repeated offers to cooperate – which may put him at risk from
current supporters of religious or political extremism – the Commission has
decided not to identify Mr. G by his actual name, nor to disclose any documents
identifying him, in order to protect his safety. This will also avoid any possibility
of jeopardizing the ongoing investigation. In coming to this decision, the
Commission is heeding the explicit warning of the Attorney General of Canada
through correspondence by its counsel indicating that Mr. G’s safety may be
jeopardized if the extent of his cooperation with the authorities were to be
revealed and that the RCMP may not be able to protect him. The Commission
does note, however, that, like Mr. A’s information, the information Mr. G provided
and the manner in which it was rejected might deserve further examination at
a time when safety and/or ongoing investigation concerns will no longer be
factors.
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5.5 2003 Calls for an Inquiry
In 2003, while the Air India prosecution was ongoing, Bass was again called
upon to address the issue of a possible public inquiry into Air India. On June 5th,
he prepared a note providing advice about a briefing to be given to the Solicitor
General, who had to respond to calls for a public inquiry. The Solicitor General, at
the time, was “…referring back to the SIRC review” as the rationale for his position
that “…an inquiry is not justified.” Bass took issue with this position, noting that
there were “serious problems” in terms of the accuracy of the SIRC report. He
wrote that, contrary to the SIRC conclusions, there were “…incredible problems
between June 23rd, 1985 and mid September [1985]” in terms of cooperation,
and that the Supreme Court of BC had found that CSIS had been “unacceptably
negligent,” in destroying the tapes. Bass wrote that it was “…probably only a
matter of time before the media finds its way” to the defence submissions on
this issue and runs stories on it, adding that the foreseeable scenario would be
that the Solicitor General “…would be asked to choose between the SIRC report
and a court decision.”346
Bass therefore advised that the Solicitor General should be briefed about the
issues with the SIRC report, and provided with advice “…not to use it as grounds
for rejecting calls for an Inquiry.” Rather, Bass indicated that the Solicitor General
should be advised to use “…the usual lines”regarding ongoing prosecutions, with
a comment that the inquiry issue might be revisited after judicial proceedings
had concluded. According to Bass, while it was important not to “proactively
criticize” the SIRC review, it was “…equally important that we do not indicate
acceptance of its validity.”347
Bass also felt it important to “…work with CSIS to ensure we have accurate and
consistent media lines,” though he noted that coming to an agreed position
about the validity of the SIRC review could be problematic. Indeed, when CSIS
was made aware in 1999 of the criticisms in Bass’s February 1996 memorandum,
a CSIS employee reviewed the “complete file” and came to the conclusion that
it was clear that “…SIRC left no stone unturned during their study,” and that the
RCMP “…was clearly aware of and consulted throughout the entire SIRC process,”
and that the cooperation and liaison extended from the “…Commissioner on
down.”348 Bass disagreed, testifying that SIRC certainly did not “…make its way
to the Taskforce file.”349
5.6 The Rae Review
In April 2005, shortly after the acquittal of Malik and Bagri, the Honourable Bob
Rae was appointed to provide independent advice to the Minister of Public
Safety and Emergency Preparedness on whether there remained outstanding
questions of public interest about the bombing of Air India Flight 182 that could
still be answered.350
346
347
348
349
350
Exhibit P-101 CAA1007, p. 2.
Exhibit P-101 CAA1007, pp. 3-4.
Exhibit P-101 CAA0977, p. 2.
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11211.
Exhibit P-35, p. 3.
�Chapter V: The Overall Government Response to the Air India Bombing
Agencies Prepare for Rae Review
The appointment of Bob Rae to review the Air India matter marked the beginning
of a flurry of activities at CSIS and the RCMP to resolve cooperation issues. Then
RCMP Commissioner Zaccardelli testified that the announcement of the Rae
review “…brought a focus to the relationship” between the agencies that had
not been there before, and directed their attention “…to be able to demonstrate
we’re doing something.”351 CSIS Director Judd confirmed that “…there was a
greater acuity, if you will, to the relationship with the RCMP obviously because
of the public perception that, in no small part, arising out of the Air India case
that there were issues that needed to be particularly addressed.”352 Zaccardelli
explained that he and Judd said:
Mr. Rae’s been appointed. There could be an inquiry. We’ve
got to be able to say we’ve done everything we can to deal
with some of these irritants and to demonstrate positive
solidarity amongst the organizations in spite of what’s gone on
in the past. So he [Rae] did, in effect, enable us to focus much
more clearly on some of these issues.353
Thus, beginning in April 2005, RCMP and CSIS held a series of high-level meetings
for the purpose of “…trying to get to the root” of the outstanding problems in
cooperation.354 The agencies agreed to move forward in relation to a number
of initiatives, with the intent of “modernizing” the RCMP/CSIS relationship.
These included: MOU revision; standardizing and centralizing secondment
agreements; improvement of managerial exchanges; potential assignments
of senior advisors from RCMP to CSIS and vice versa; creation of operational
management teams at Divisional/Regional levels; and joint training (to include
DOJ participation/orientation).355
On October 11, 2005, the RCMP met with and provided a briefing to Bob Rae.356
During the briefing, Rae inquired about the RCMP/CSIS relationship and about
the movement of sensitive/security information and intelligence to actionable
criminal information. Importantly, Rae indicated to those in attendance that
he “…does not have confidence that if this tragedy was to occur again, that the
challenges that occurred between the agencies would not happen again as in
the past.”357
The following day, October 12, 2005, there was a meeting at the “highest level”
between CSIS and the RCMP to discuss progress that had been made by the
351
352
353
354
355
356
357
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11055.
Testimony of Jim Judd, vol. 90, December 6, 2007, p. 11854.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11041-11042.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11041.
Exhibit P-101 CAA1043(i), p. 2.
Exhibit P-101 CAA1110.
Exhibit P-101 CAA1043(i), pp. 2-3.
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two agencies on the initiatives discussed during the April 2005 meeting.358 In
advance of this meeting, the RCMP prepared a package of “talking points” for
Zaccardelli in relation to “RCMP/CSIS Modernization” initiatives.359 The 24-page
“talking points” document provided an overview of some of the perceived
shortcomings in the RCMP/CSIS relationship, and then examined a number of
“short-term improvements,” including revising the MOU, creating an Executive
Joint Management Team (JMT) at HQ, and putting in place joint training
programs. For each item, the document highlighted “significant changes” that
would have to be made, “contentious issues” and a recommendation for further
action.360
In terms of the existing situation, the talking points document noted that
there was a desire at the senior executive level in both CSIS and the RCMP to
bring about meaningful improvements in the exchange of information and to
modernize the relationship following 9/11. It also stated that CSIS was motivated
to make “…changes of its own choosing” in advance of “…changes that may be
forced upon it” as a result of the O’Connor Commission and the Rae review.361
From the joint executive meeting on October 12, 2005, a number of initiatives
were listed for follow-up, many of which were specifically dated for completion
prior to the release of the Rae report. Specifically, joint RCMP/CSIS meetings
with the Minister and with Rae were targeted to take place prior to November
15, 2005 (the date mentioned by Rae for the release of his report during the
October briefing with the RCMP). In addition, the agencies agreed to:
• Finalize the draft MOU;
• Finalize the language of secondment agreements (by the end of
October 2005), and bring all secondment agreements in existence
in line with the new language (by the end of October 2005);
• Have the RCMP A/Comm. Criminal Intelligence invited to attend
future TARC meetings as an advocate of the RCMP (starting by
the end October 2005);
• Have the CSIS Assistant Director of Operations (ADO) and RCMP A/
Comm. Criminal Intelligence consult and convene a meeting of
experts to address challenges in the movement of security
intelligence to criminal information (prior to end of 2005);
• Have the CSIS ADO and RCMP A/Comm. Criminal Intelligence
consult their HR groups to identify a training expert for each agency
to commence the design of a joint investigative training course (by
November 15, 2005); and
358 Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11041.
359 Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11041, 11058; Exhibit P-101
CAA1043(i).
360 Exhibit P-101 CAA1043(i), p. 10.
361 Exhibit P-101 CAA1043(i), p. 8.
�Chapter V: The Overall Government Response to the Air India Bombing
• Put in place an HQ level Joint Management Team (JMT) led by the
ADO and the A/Comm. Criminal Intelligence (with its first meeting
to be held by November 15, 2005 or as operationally required prior
to that date).362
After this meeting, Zaccardelli and Judd sent a letter to Rae, updating him
on progress that had been made with initiatives to improve RCMP and CSIS
cooperation and listing specific measures that would be implemented.363
However, despite the agencies’ apparent enthusiasm for reform at the time,
some of the projected initiatives ended up with little follow-up attention and
achieving few positive results.
The CSIS Deputy Director Operations (DDO), Luc Portelance, had pointed out at
the October meeting that there might be barriers that could prevent the effective
legal movement of security intelligence to criminal information. He indicated
that the agencies should therefore focus their actions on “…articulating the legal
barriers or changes that could alleviate those challenges or set up a structure
that allows this to occur.” A discussion followed about the need to review the
legislation in light of the present-day situation, which was “much different” from
the 1985 situation. In that regard, one of the “to do” items agreed upon was
that the agencies would convene a meeting of hand-picked experts, including
DOJ representatives and others deemed appropriate, to come forward with an
innovative set of solutions to this issue.364 Among the initiatives discussed in the
subsequent letter to Rae was a mention that the agencies would:
…convene a meeting of experts before year’s end, to
address the challenges inherent in the movement of security
intelligence to criminal information, and to identify any
legislative changes that would support the goals of both
organizations in moving ahead in that respect.365
During the Inquiry hearings, we learned that this proposed meeting of experts
never did occur:
MR. FREIMAN: …the proposed meeting of experts who were
supposed to identify the problems and start working on
creative solutions, in fact, never did occur?
MR. ZACCARDELLI: I certainly was never advise[d] or – saw
any documents of any work that was done up – nor was I
ever consulted about my views on that. So I’m not aware of
anything – that took place past the meeting with the Deputy
Minister of Justice with us.
362
363
364
365
Exhibit P-101 CAA1043, pp. 4-5.
Exhibit P-101 CAA1110.
Exhibit P-101 CAA1043(i), pp. 3-5.
Exhibit P-101 CAA1110, p. 2.
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MR. FREIMAN: In fact, sir, other than your articulation of
your own problems, and your own issues, and hearing CSIS
articulate its issues and problems, are you aware of any legal
analysis prepared for RCMP or for CSIS or for both of them
jointly by the Department of Justice or anyone else to help to
analyze this problem?
MR. ZACCARDELLI: No, I’m not.366
In explaining why this commitment did not materialize, Portelance indicated
that the idea in October 2005 was to undertake to find someone with enough
neutrality and experience to chair a working group, but that “…events sort
of passed us by,” and those individuals who would have been suitable were
named to positions and were no longer available. According to Portelance, the
agencies then started to engage the DOJ and, more recently, did “…a lot of work
ourselves with Justice to start to think about some of those issues.” While the
expert group was never formed as intended, in Portelance’s view “…the intent
of that exercise has been fulfilled through other means.”367
The joint letter from Zaccardelli and Judd to Rae had also indicated that “…work
[had] begun anew” on updating the MOU, which would “…refine the existing
framework for the sharing, handling and use of information and intelligence.”368
Zaccardelli testified that the revision of the MOU – which was finally signed in
2006 – had actually started in 1998 and that it had taken eight years before
a new agreement was struck. He indicated that there was “…very little done
in the first seven years because there was simply no willingness to make any
modifications on the part of CSIS….”369
Professor Wesley Wark also felt that the Rae review provided the motivation that
had previously been lacking for the agencies to finally create the new MOU.
He explained that there had been “…tremendous political change between
1990 and 2006 in terms of the threat environment, including 9/11, and the
legal environment, particularly the Stinchcombe decision and the Anti-terrorism
Act.”370 Yet, despite the changes to the threat and legal landscape, Wark testified
that it was the “…concern about trying to get ahead of the findings likely to be
reached by the Honourable Bob Rae in his Inquiry” that provided the impetus
for a new MOU. Wark stated that, in the end, the deadlock between the two
agencies in rewriting the MOU was broken by Rae’s Air India review.371
At the October 2005 meeting, there had been considerable discussion about
whether modifying the MOU was really necessary, since the “ideal situation”
was viewed as achieving a change in behaviour rather than creating a legal
document. However, the consensus was to “…create the document now,”
366
367
368
369
370
371
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11052.
Testimony of Luc Portelance, vol. 88, December 4, 2007, pp. 11522-11524.
Exhibit P-101 CAA1073(i), p. 2.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11059-11060.
Testimony of Wesley Wark, vol. 16, March 5, 2007, pp. 1471-1472.
Testimony of Wesley Wark, vol. 16, March 5, 2007, p. 1472.
�Chapter V: The Overall Government Response to the Air India Bombing
but to recognize that it would be a living document, since the modernization
discussions would continue in the future “…and well beyond the November 15,
2005 deadline.”372
In the RCMP Commissioner’s talking points, it was stated that the CSIS position
was that the Service would not accept a requirement to inform law enforcement
of criminality it uncovered because the CSIS Act specifies that the Service “may”
(as opposed to “shall”) inform law enforcement as it deems appropriate. It was
recommended that the RCMP request that CSIS advise the Force of all “serious
crimes” it uncovers through its investigations (i.e., all criminal offences for
which the maximum sentence is five years or more).373 About the utility of this
measure in bridging the gap between the CSIS and RCMP positions, Zaccardelli
commented in his testimony that it helped a little, but that “…it literally adds
nothing in reality,” since, in fact, many people involved in terrorist activity “…
operate at a very low level of criminality.” 374
Ultimately, the MOU signed in 2006 did not incorporate even the requirement
of passing information about the “serious crimes.”375 The information-sharing
provision of the MOU states that:
In accordance with the terms and conditions of this
Memorandum of Understanding and pursuant to the CSIS Act
and ministerial direction, the CSIS may, on its own initiative
or upon request by the RCMP, provide information and
intelligence in its possession that may assist the RCMP in
fulfilling its security related responsibilities.376
In Zaccardelli’s view, this MOU was not “…a good accommodation of the needs
of both the CSIS and the RCMP, and more specifically, the needs of Canada.”
While it showed “…some desire to collaborate,” the underlying structural and
legislative problems that needed to be resolved were not dealt with.377
To Zaccardelli, the type of measures put in place in preparation for the Rae
review could not bring about meaningful change in the relationship between
the agencies:
…in a lot of way[s] what you see now, in terms of talking about
the collaboration and the protocols and so on, I don’t mean
to demean that because I was part of instituting that when I
was the Commissioner, but it’s not much more than window
dressing on a very serious problem and that’s what we have to
change.378
372
373
374
375
376
377
378
Exhibit P-101 CAA1043(i), p. 3.
Exhibit P-101 CAA1043(i), p. 10.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11062-11063.
Exhibit P-101 CAA1073.
Exhibit P-101 CAA1073, p. 10.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11060-11062.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11040.
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The CSIS and RCMP Rae Briefings
Both CSIS and the RCMP provided written reports to Rae.
The RCMP briefing to Rae painted a considerably less rosy picture of the
challenges to RCMP/CSIS cooperation than the Force’s briefing to SIRC. This
time, there was no interdepartmental working group coordinating the agencies’
responses, and CSIS and the RCMP in particular openly challenged and criticized
each other about many aspects of the Air India investigation.
By this time, the RCMP’s position was that legislative changes “must occur.”379
In its briefing, the Force discussed legal impediments to cooperation, but also
directly mentioned the lack of trust between the agencies, which it described as
“…rooted in problems which surfaced during the initial Air India investigation
and were never resolved.”380
The RCMP submission went on to quote an excerpt from a 1999 “RCMP program
review” which described the relationship between CSIS and the RCMP as being
threatened by “…unresolved, contentious issues relating primarily to the use of
security intelligence information for the purpose of criminal prosecutions.” The
RCMP indicated that many of the same challenges and concerns that existed in
1985 still remained, and were even “…exacerbated by the evolution of the law
and shifting nature of the threat environment.”381
CSIS, on the other hand, presented a much more positive view of the current
situation in its briefing to Rae. It insisted on the tremendous evolution within
the Service as a result of “…twenty years of constant review activity” by SIRC,
which CSIS indicated resulted in the creation of a now “…robust and complete
policy regime” providing guidance to its employees.382
Unlike the RCMP briefing, the CSIS briefing to Rae did not mention any current
problems in the CSIS/RCMP relationship, describing it as “a close one,” and
quoting a SIRC comment which indicated that the agencies had shown the
capacity to “…assist each other effectively while working within their respective
mandates.” CSIS concluded its briefing by stating that “…the Service and the
RCMP are working closely together on a series of strategic issues,” including
updating and modernizing the MOU, standardizing and centralizing secondment
agreements, developing a JMT and developing joint training courses.383 Overall,
the CSIS briefing to Rae left the clear impression that any serious problems in
interagency cooperation were now in the past.
379
380
381
382
383
Exhibit P-101 CAA1043(i), p. 17.
Exhibit P-101 CAA0335, pp. 42-43.
Exhibit P-101 CAA0335, pp. 43, 45-46.
Exhibit P-101 CAA1086, pp. 10-11.
Exhibit P-101 CAA1086, pp. 11-12.
�Chapter V: The Overall Government Response to the Air India Bombing
Comments about the Air India Investigation Narrative
In its comments about the Air India case, the RCMP admitted few mistakes in its
own handling of the matter, but this time did not refrain from criticizing CSIS.
CSIS responded directly to some of these criticisms in its own briefing to Rae, with
the result that both agencies’ briefings contained back-and-forth arguments
and finger pointing about issues of historical fact. The RCMP not only took the
opportunity to “…set the record straight” about some of the SIRC findings, but
added other recriminations about the cooperation it had received from CSIS in
the Air India matter. The difference in tone and approach, as compared to the
RCMP briefing to SIRC, is striking.
The SIRC report had deemed that the sharing of information about the Duncan
Blast384 was an example of good cooperation.385 In its briefing to Rae, the RCMP
argued, rather, that it had not been provided with sufficient detail by CSIS to allow
it to understand the significance of this incident prior to the bombing.386 The
CSIS briefing to Rae produced previously had simply stated that “…the Service
alerted the RCMP to this event verbally on the same date….”387 In an internal
RCMP memo about the CSIS briefing, which recorded “…certain specifics within
the [CSIS] report where we have a slight difference of opinion,” it was noted
that the CSIS statement that the RCMP was notified of the Duncan Blast on the
same date was “misleading.”388 In its briefing to Rae, the Force explained that
the Duncan Detachment member who received the information from CSIS was
not provided with “…any additional details to indicate the seriousness of [the
Duncan Blast] information,” and that, in particular, he did not know about the “…
guarded manner that Parmar spoke on the telephone intercepts.”389
In an additional briefing, which it provided to Rae for the express purpose of
responding to the RCMP submission, CSIS countered that its contemporaneous
report did not support the notion that the Duncan Detachment member was
provided with insufficient detail to indicate the seriousness of the information.
The Service indicated that, in fact, the issue of Sikh extremism was discussed
between CSIS and the RCMP in relation to the Duncan Blast and that the RCMP
was aware of Parmar’s involvement and understood “…Parmar’s history and
the threat he presented.” The Service added that the RCMP participated in
disruptive interviews of Parmar and others, along with the US SS on June 12,
1985, after being specifically briefed about the Duncan Blast incident, and that
its significance therefore should have been clear.390
In its submission to Rae, the RCMP discussed SIRC’s conclusion that there was no
suggestion of an RCMP request to CSIS to retain the Parmar Tapes. It asserted
that Claxton and Henschel had had a conversation about CSIS intercepts shortly
384
385
386
387
388
389
390
See Section 1.4 (Pre-bombing), Duncan Blast.
Exhibit P-101 CAB0902, p. 44.
Exhibit P-101 CAA0335, pp. 18-19.
Exhibit P-101 CAA1086, p. 5.
Exhibit P-101 CAF0814.
Exhibit P-101 CAA0335, p. 19.
Exhibit P-101 CAA1088, p. 2.
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after the bombing, and that Henschel’s notes indicated that tape retention
was, in fact, discussed. According to the RCMP, Claxton advised Henschel
that evidence from the CSIS installations would be isolated and retained for
continuity.391
CSIS addressed this issue in its initial briefing to Rae, referring to a “difference of
views” with respect to whether CSIS had been requested to retain the Parmar
Tapes. According to CSIS, Claxton remembered his exchange with Henschel
differently, and stated that he had received no direct request from the RCMP to
preserve any or all of the CSIS tapes. Claxton indicated, rather, that he had told
Henschel that CSIS would isolate and retain significant information contained
in its intercepts. He added that the general commitment made was that if
significant information surfaced, he would notify the RCMP and consult with
CSIS HQ regarding release.
Like the RCMP, CSIS admitted few mistakes in its own handling of the Air India
case, noting in its briefing that, in relation to the Parmar Tapes, “…all the tapes
were listened to”; they “…were determined not to contain, in the Service’s view,
information of evidentiary value”; and they were therefore “…duly destroyed,
according to CSIS policy and the law.” The Service provided an explanation for
interrupting physical surveillance of Parmar immediately prior to the bombing,
describing the other activities that the surveillance team had to engage in and
explained that, given the threat environment at the time, counter-intelligence
targets generally took precedence over counterterrorism targets. CSIS then
noted that it was “…aware of the belief held among some members of the
RCMP that surveillance was withdrawn from the OP [Observation Post] because
the Service was holding a family picnic day in BC Region.” Though it could not
locate specific documentation about the reasons for vacating the OP on June
22nd, CSIS stated that the RCMP belief was mistaken, and attempted to explain
how it could have arisen.392 This prompted a rather stark response in the RCMP
internal memorandum describing disagreements with the CSIS briefing:
CSIS states they are aware of the belief among some RCMP
members that surveillance was withdrawn on Parmar the day
the bombs were delivered to the airport because of a CSIS
family picnic. CSIS provides some examples which may have
lead [sic] to this mistaken impression. The real fact for this false
impression is that CSIS did not advise until years later why they
did not have surveillance on that date. The RCMP was asking
very early on why they had no surveillance on this date and
were getting no answers. Months later the RCMP begins to
get rumours that CSIS destroyed the tapes. Understandably
this begins to look like a cover up and RCMP investigators are
very suspicious. Had CSIS been up front in a timely manner on
these issues mistaken impressions would have not occurred.393
391 Exhibit P-101 CAA0335, p. 26; See also Section 4.3.1 (Post-bombing), Tape Erasure.
392 Exhibit P-101 CAA1086, pp. 4-5.
393 Exhibit P-101 CAF0814, p. 1.
�Chapter V: The Overall Government Response to the Air India Bombing
In the end, the RCMP decided not to address the issue of the family picnic
rumours in its briefing to Rae.
The RCMP’s submission to Rae discussed the case of Ms. E, a witness at the trial
of Malik and Bagri.394 The Force stated:
Another witness informed CSIS that Bagri asked to borrow her
car to go to the airport on the night prior to the Vancouver/
Toronto flight. This information was not relayed to the RCMP in
a timely manner and the rules/admissibility of evidence were
again affected.395
In its response to the RCMP briefing, CSIS countered that the RCMP submission
provided some information that was “simply incorrect” and that it failed to
mention that the Force had twice interviewed Ms. E, shortly after the bombings
in 1985, and that she had essentially dismissed the officers and asked not to be
contacted again by the RCMP. The Service noted that the 1985 RCMP interviews
had been conducted as a result of a CSIS surveillance report which had been
provided to the Force. CSIS added that its investigator later interviewed Ms. E
in 1987 as a result of her name appearing on a list of BK supporters, and that
when she revealed her information about Bagri’s request to borrow her car, the
Service advised the RCMP verbally in October 1987 of what she had said, and
it was the RCMP that decided not to pursue the issue, given that she would be
a reluctant witness.396 In fact, the documentary record produced in this Inquiry
shows that CSIS had conducted internal research when controversy first arose
between the agencies over this issue in 1990, and had been unable to locate any
documents or any personnel with a memory of the events that could confirm
what information was passed verbally in 1987. The Service’s assertion that the
information received from Ms. E was passed verbally was based solely on RCMP
internal correspondence demonstrating that at least some of Ms. E’s information
had been revealed to the RCMP in 1987.397
In November 2005, Goral prepared an internal RCMP memorandum responding
to CSIS’s comments on the Ms. E issue. After reviewing the history of CSIS’s
sharing of this information, Goral concluded that CSIS’s comments were partially
correct:
When examining the information provided by CSIS in 1990 it is
obvious that CSIS did not [earlier] provide all the information
in its proper context. The statement in our report should have
read: “Not all this information was relayed to the RCMP in a
timely manner.”398 [Emphasis in original]
394
395
396
397
398
See Section 1.3 (Post-bombing), Ms. E.
Exhibit P-101 CAA0335, p. 29.
Exhibit P-101 CAA1088, pp. 3-4.
See Section 1.3 (Post-bombing), Ms. E.
Exhibit P-101 CAA1045(i), p. 3.
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It is not clear whether the RCMP passed on this correction to Rae.
Inaccuracies in Briefings to Rae
Over the course of the present Inquiry, it became apparent that some of the
information contained in the briefings to Rae provided by government agencies
was not accurate. The inaccuracies include:
• A statement in an appendix to the RCMP submission to Rae399 that
the content of the June 1st Telex – which alerted authorities to
the threat of time/delay explosives being planted in registered
baggage – was passed to CSIS. In fact, the RCMP did not
share the June 1st Telex with CSIS, and several witnesses from
the intelligence agency testified about the impact of their
lack of knowledge of this information on their analysis and
assessment of the Sikh extremist threat prior to the bombing.400
• A statement in the RCMP submission to Rae that the security
measures that were in place for Air India prior to, and on the day
of, the bombing included an “…RCMP dog master checking
any reported suspect luggage or baggage and searching the
passenger section of the Air India aircraft before departure.”401
In fact, on June 22, 1985, there was no dogmaster available at
Pearson airport and the “on call” dogmaster arrived at Mirabel
airport after the departure of the flight. As a result, there was
no search of the passenger section of the Air India aircraft prior to
departure from either airport on the eve of the bombing.402
• A statement in a technical paper presented by Transport Canada
as part of its briefing to Rae indicating that “…an explosive-sniffer
dog was used at Mirabel International Airport for the screening
of this flight [Air India 182].”403 In fact, the Quebec Police Force (QPF)
dogmaster who replaced the RCMP dogmaster at Mirabel on June
22, 1985, testified that this statement was not accurate
as he was only called in to the airport after the flight had departed
and therefore did not screen the flight.404
• A statement in the RCMP submission to Rae that the security
measures for Air India were increased to level 4 between June
16, 1984 and June 22, 1985.405 In fact, Mirabel airport was
399
400
401
402
403
404
405
Exhibit P-101 CAA0234, p. 8.
See Section 1.2 (Pre-bombing), June 1st Telex.
Exhibit P-101 CAA0335, pp. 8-9.
See Section 4.6 (Pre-bombing), RCMP Implementation Deficiencies in the Threat-Response Regime.
Exhibit P-263, p. 46; Exhibit P-101 CAF0070, p. 2.
Testimony of Serge Carignan, vol. 26, May 9, 2007, pp. 2672-2673.
Exhibit P-101 CAA0335, p. 8.
�Chapter V: The Overall Government Response to the Air India Bombing
operating at level 4 security throughout 1985 while, up to June
1985, the Air India flight departing from Toronto Pearson airport
was being provided only with level 1 security, the minimum
possible RCMP level of security.406
• A statement in CSIS’s briefing to Rae that the Service had “…
informed the RCMP the day after the crash” that it had intercepted
Parmar’s telephone.407 The Government has been unable to provide
any documentation or testimony to support this claim, which
was contradicted by numerous RCMP witnesses at the Inquiry.
• A statement, in an appendix to the RCMP submission to Rae which
discussed major Sikh extremist events, that Z, one of the alleged
conspirators in the November 1984 bomb plot,408 took a polygraph
test in 1988 which verified the information he had provided
in his exculpatory statement and which eliminated him as a
suspect in the plot.409 In fact, the test taken by Z was inconclusive in
part and was directly contradicted by the statement of another
alleged co-conspirator, Person 1, who passed a polygraph test with
complete, as opposed to partial, success.410
In addition to these demonstrably incorrect statements, there were also
statements made to Rae by government agencies that could be misleading in
that they presented only a partial picture of the facts. In Transport Canada’s
briefing to Rae, it was stated that hijackings and hostage takings in the 1960s had
generated a focus on the screening of passengers and carry-on baggage and that
the Air India and Narita bombings marked a shift in paradigm as Canada and the
international community responded to a “…new threat (coordinated, multiple
attacks, that used explosive devices in checked baggage).”411 In fact, the threat
of sabotage was already well-understood in 1985. What had not happened was
any substantive change in the security focus to meet that threat.412
In relation to these and other mistakes that were identified over the course of
the hearings of the present Inquiry, the Government was apparently unable to
reach an internal consensus or “single voice” in which to respond. In the first
volume of the Attorney General of Canada’s Final Submissions, the inaccuracies
in the RCMP briefing to Rae are discussed. The Submissions state:
406 Exhibit P-101 CAA0169, CAF0010, p. 1. The only exceptions prior to June were for the inaugural flight
on January 19, 1985 and the April 6, 1985 flight, which were provided an elevated level of protection
by the RCMP: See Exhibit P-101 CAA0169.
407 Exhibit P-101 CAA1086, p. 7.
408 See Section 1.1 (Pre-bombing), November 1984 Plot; See Exhibit P-120(b).
409 Exhibit P-120(b), p. 2 (entry for doc CAA1099, p. 2).
410 See Section 2.3.1 (Post-bombing), November 1984 Plot.
411 Exhibit P-138, p. 9.
412 See Section 2.3 (Pre-bombing), Inadequate Preparation for Nature of Threat.
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The RCMP made diligent efforts to provide accurate
information to SIRC as it did in its Report to Bob Rae. A few
unintentional misstatements were made when relying on
file material. Such inadvertent mistakes are hardly surprising
given the volume of material to be sorted and analyzed. The
RCMP do regret, however, any inaccuracies in the information
they provided.413
In the second volume of the Final Submissions, the AGC refers to the “allegation”
that Transport Canada and the RCMP had misinformed Rae in relation to aviation
security. The tone is quite different:
Mr. Rae’s mandate was not to inquire into the facts and make
findings. Rather, it was to review material relating to the
tragedy … with a view to identifying outstanding questions
and options for addressing them. In his own words, his report
was not “a definitive account of every event related to the Air
India disaster but rather an assessment of the issues that need
to be examined more fully.” Throughout the summer and fall of
2005, Government officials collected historical documents and
provided them in a timely fashion to Mr. Rae. The information
they provided to him was complete and correct based on
their review of the material available to them at that time.
However, the process of briefing Mr. Rae was ongoing. Mr.
Rae discharged his mandate in a summary manner, releasing
his final report on November 23, 2005. Any inaccuracies in
information given to Mr. Rae were a result of this abbreviated
process, complicated as it was by the voluminous material and
its historical nature.414 [Emphasis added]
No evidence was presented before this Inquiry suggesting that the inaccuracies
and incomplete statements in briefings to Rae, significant though they may
have been, were in any way intentional on the part of the government agencies.
As pointed out by the AGC, there were short timelines for the Rae review, which
may not have afforded the opportunity for the agencies to conduct thorough
file reviews in preparation for their briefings. It deserves mention, however, that
the briefings do not contain any inaccuracies or errors that were unfavourable
to the positions of the agencies that authored them. It appears that somewhat
greater care was exercised to avoid these types of errors than was devoted to
ensuring that even facts unfavourable to an agency’s position were recounted
fully and accurately. It also deserves mention that many of the Rae materials
were provided to this Commission of Inquiry over a year after their submission
to Mr. Rae, with the same inaccuracies repeated – and with no comment or
correction by the Government.
413 Final Submissions of the Attorney General of Canada, Vol. I, para. 322.
414 Final Submissions of the Attorney General of Canada, Vol. II, paras. 264-265.
�Chapter V: The Overall Government Response to the Air India Bombing
5.7 The Present Commission of Inquiry
Unlike the situation that developed during the Rae review, the Government
again chose to “…speak with one voice” to this Inquiry, as it had done for the
SIRC Review. One team of legal counsel appeared on behalf of the Attorney
General of Canada and represented all potentially affected departments and
agencies, as well as the Government itself. The Government sought to minimize
interagency criticism and to present a unified position, rather than advocating
for, or at least explaining, the differing positions and viewpoints of the agencies
about the facts and policy issues under consideration.415 This resulted in Final
Submissions on behalf of the Attorney General of Canada which were at times
self-contradictory, and which ended up advocating maintenance of the status
quo. The Final Submissions defended the response of the government agencies
involved in the Air India narrative as entirely adequate under the circumstances,
and the protocols and practices currently in place were presented as having
resolved any of the issues that might have surfaced in the past.
No Apologies
Though not blaming each other as much, or as openly, as during the Rae review,
government agencies were still not disposed to admit any mistakes of their own
in relation to the Air India matter. Again, the Government maintained that it had
met all of its security obligations in relation to Air India prior to the bombing,
and that the security measures for which its agencies were responsible were
adequate.416
As part of its seemingly never-ending quest to demonstrate that there was no
“specific threat” to Air India,417 the Government launched an all-out attack on the
testimony of James Bartleman, who stated that he saw a CSE document indicating
that the June 22, 1985 Air India Flight 182 would be targeted for attack.418 The
Government submitted that Bartleman’s testimony was “inaccurate” and that it
was impossible that events occurred as he described.419 Government witness
after Government witness testified that they never saw a document like the one
described by Bartleman, that they would have raised general alarm if they had,
and that such a document could not have existed without their having seen
it.420
In fact, the concept of “specific threat,” which the Government so insistently
relied on, only obscured the discussion. The term was so narrowly, yet
inconsistently, defined by those who used it that every witness could claim that
there was no specific threat. However, many direct threats to Air India, much
415 See Volume One of this Report: Chapter II, The Inquiry Process.
416 See, generally, Final Submissions of the Attorney General of Canada, Vol. II.
417 See Final Submissions of the Attorney General of Canada, Vol. II, paras. 116-198 and Section 4.3 (Prebombing), The Role of the “Specific Threat” in the 1985 Threat-Response Regime.
418 See Section 1.7 (Pre-bombing), Testimony of James Bartleman.
419 Final Submissions of the Attorney General of Canada, Vol. I, paras. 184-205.
420 See Section 1.7 (Pre-bombing), Testimony of James Bartleman.
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like the one referred to in the document Bartleman says he saw, were received
by the Government prior to the bombing, with no general alarm having been
raised and no anti-bombing security measures having been implemented.421
By clinging to the concept of “specific threat,” which was never meant to apply
to circumstances such as those at issue in the current Inquiry, the Government
avoided confronting the real issue of the adequacy of the security measures
implemented in light of the threat information available, and simply continued
to deny any mistakes or deficiencies.
In maintaining that the Government had made no errors in the security
afforded to Air India on June 22, 1985, the Attorney General of Canada took
the position that it was not a mistake to send the RCMP dogmaster for Pearson
airport away on training without coverage of a backup dogmaster during a time
when Air India was operating at the second highest possible level of security
alert. The AGC Submissions pointed to the RCMP “Hand Search Team” – a team
that was responsible for overseeing a process of passenger-baggage matching
once the dogmaster had completed conducting a search of the luggage –
and described it as sufficient backup for the dogmaster and a bomb-sniffing
dog.422 The Government attempted to portray the Hand Search Team as being
actually responsible for opening and hand searching the luggage, a claim that
was contradicted by the evidence heard in this Inquiry. In fact, the evidence
showed that the misnamed Hand Search Team was not an adequate substitute
for the dogmaster. It would also not have been effective in the case of a suicide
bomber.423
Overall, the Government denied that it had received sufficient threat information
to be able to prevent the bombing, maintaining that “…even the most astute
analyst” examining the pre-bombing threat information “…would still not
have had enough information to prevent the tragedy.”424 While it is a matter
of speculation whether the bombing would have been prevented if the threat
information had been properly identified, reported, shared and analyzed,425 the
Government goes one step further in arguing categorically that the bombing
could not have been prevented. More importantly, this stance glosses over the
reality that relevant information was not identified or shared so that no one had
the opportunity to try to piece the mosaic together.426
The Government also did not admit any mistakes or deficiencies in the agencies’
post-bombing investigation of the Air India disaster.
The Attorney General of Canada claimed that, once CSIS and the RCMP discovered
that Mr. Z was speaking to both agencies, “…the response by both agencies
was a careful, measured one which attempted to preserve the viability of the
421
422
423
424
425
See Section 1.7 (Pre-bombing), Testimony of James Bartleman.
Final Submissions of the Attorney General of Canada, Vol. II, paras. 242, 252-254.
See Section 4.3 (Pre-bombing), The Role of the “Specific Threat” in the 1985 Threat-Response Regime.
Final Submissions of the Attorney General of Canada, Vol. I, para. 183.
See Section 1.12 (Pre-bombing), A “Crescendo” of Threats and Section 3.6 (Pre-bombing), Lack of
Government-Wide Coordination in Threat Assessment Process.
426 See Section 3.6 (Pre-bombing), Lack of Government-Wide Coordination in Threat Assessment Process.
�Chapter V: The Overall Government Response to the Air India Bombing
source for the purposes of both.”427 In fact, CSIS witnesses testified that they
were forced to terminate their association with the source, despite an initial,
seemingly ideal, agreement with the RCMP to develop the information jointly,
and that this was detrimental to CSIS operations.428 The Attorney General of
Canada also claimed that once the RCMP took the lead on the Mr. Z information,
“…they followed up and investigated thoroughly,” including with the use of
polygraphs, only to find that “…the lead dissolved into another dead end.”429 In
fact, the evidence heard in this Inquiry shows that the RCMP’s initial follow-up
investigation of this information consisted simply of comparing the appearance
of the suspects identified by Mr. Z with the Jeanne (“Jeanie”) Adams descriptions
and composite drawing, in circumstances where Adams had provided many
different descriptions, had indicated that she did not recall the suspect’s face
and had said that the composite drawing was wrong. The Mr. Z information
was received in 1986, but it was not until 1988 that some of the suspects were
actually interviewed, and not until 1997, over ten years after the information
was received, that polygraph examinations were conducted.430
Though the destruction of the notes and recordings for the CSIS interviews with
Ms. E was found by the British Columbia Supreme Court to constitute a violation
of the accused’s Charter rights, and though it was clearly contrary to CSIS’s own
policies at the time,431 the Attorney General of Canada also did not admit any
mistakes or deficiencies on this account.432 The Attorney General of Canada’s
Final Submissions admitted that it was unclear whether CSIS investigators even
knew about the Security Service note-taking policy inherited by CSIS, which was
not rewritten for specific CSIS use until March 31, 1992. The fact that the policy
was not being followed, however, simply led the Attorney General of Canada to
conclude that it may not have been applicable. Both the Security Service policy
and the subsequent rewritten CSIS policy – which provides for the preservation
of notes in cases where CSIS investigators receive crucial criminal information –
would have required the preservation of the notes of the interviews with Ms. E.
Nevertheless, the Attorney General of Canada simply asserts that, in destroying
his notes in circumstances in which he knew that he would likely end up in
court in connection with Ms. E’s information, the CSIS investigator “…followed
established practice.”433
The Attorney General of Canada did not even admit a mistake by CSIS in the
erasure of the Parmar Tapes, which continued after the bombing and after the
RCMP’s interest in Parmar as an important suspect was known to CSIS. The
Attorney General of Canada’s Final Submissions blandly state that “CSIS followed
policy as they understood it and erased the tapes.” The AGC’s Submissions
427
428
429
430
431
432
433
Final Submissions of the Attorney General of Canada, Vol. I, para. 257.
See Section 1.4 (Post-bombing), Mr. Z.
Final Submissions of the Attorney General of Canada, Vol. I, para. 259.
See Section 2.3.2 (Post-bombing), Mr. Z.
See Section 4.3.2 (Post-bombing), Destruction of Operational Notes.
See Final Submissions of the Attorney General of Canada, Vol. I, paras. 445, 498-503.
See Final Submissions of the Attorney General of Canada, Vol. I, para. 502.
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continue to defend the CSIS tape retention/erasure policy, as did many present
and former CSIS officials who testified in this Inquiry. The Final Submissions fall
back to the familiar refrain that, though intercept product collected by CSIS in
counterterrorism investigations may have relevance to a criminal prosecution,
“CSIS does not collect information for criminal prosecution purposes and
furthermore has never been directed to do so by a Minister or any of its varied
review bodies.”434
The AGC maintained this position about the tape erasure despite the testimony
of the former CSIS DG CT Jim Warren, who stated that the Parmar Tapes were
erased because of an “oversight” which resulted in no orders being given to
CSIS personnel to stop applying the default erasure policy after the bombing.
Warren, at least, candidly added that the erasure was done in error, and that “CSIS
has acknowledged and does acknowledge the error in destroying the tapes.”435
Another retired CSIS executive, Jack Hooper, who was the Assistant Director of
Operations and then the Deputy Director of Operations designate prior to his
retirement in May 2007, also concurred that everyone at CSIS wished they had
kept the Parmar Tapes. He added that there was merit to the suggestion that
erasure should have stopped with the bombing and that the tapes should then
have been retained.436 In an interview in the documentary Air India Flight 182
released in the spring of 2008, Hooper went further and indicated that someone
should have stopped CSIS personnel from erasing the Parmar Tapes, that erasure
was a mistake that should have never happened, and that CSIS had recognized
that it should have never happened.
A similar acknowledgment, however, did not come from Jim Judd, the Director
of CSIS during his testimony before this Inquiry, though he did note that, in
light of past experience, the Service had adopted a practice of retaining
counterterrorism intercepts for longer than the period provided for in the CSIS
policy.437 Similarly, no such acknowledgement of error came from former CSIS
Director Reid Morden, who testified that he had seen nothing that caused him to
alter his view that the tapes had been erased in accordance with policy.438 Nor,
certainly, was Hooper’s view the position articulated by the Attorney General
of Canada who represented Government and the agencies. Not only do the
AGC’s Final Submissions not admit mistakes or deficiencies in connection with
the erasure, but Government counsel raised objections during questioning at
the Inquiry hearings designed specifically to emphasize that, despite the BC
Crown’s admission of “unacceptable negligence” during the trial of Malik and
Bagri, CSIS itself had never made any admissions of negligence in relation to the
tape erasures.439
434
435
436
437
438
439
Final Submissions of the Attorney General of Canada, Vol. I, para. 117.
Testimony of James Warren, vol. 48, September 19, 2007, pp. 5817-5818, 5895.
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6273-6274.
Testimony of Jim Judd, vol. 90, December 6, 2007, pp. 11847, 11860, 11875.
Testimony of Reid Morden, vol. 88, December 4, 2007, pp. 11429-11431.
See Representations by Tracy McCann during Testimony of Reid Morden, vol. 88, December 4, 2007, pp.
11428-11429.
�Chapter V: The Overall Government Response to the Air India Bombing
The fact is that, throughout this Inquiry, no one on behalf of the Government
of Canada or its agencies ever made any apology to the families of the victims
of Air India Flight 182 for any mistakes or deficiencies in the government
agencies’ actions in relation to the bombing, including the pre-bombing threat
assessment and security measures and the post-bombing investigation. While
many witnesses formulated expressions of sympathy or condolences for the
families, no one apologized, either personally or on behalf of the government
agency for which they worked. The AGC’s Submissions, which present the unified
position of the Government and its agencies, also contain no apology, nor even
any admission that deficiencies existed and mistakes were made. Instead, the
Submissions caution against assigning blame with the benefit of hindsight440
and go on to provide justifications for all of the actions taken by Government
authorities before and after the bombing.
Upon reviewing the three-volume Submissions, one is left with the impression
that there were no deficiencies in the policies, practices and behaviour of
Government or its agencies, only “challenges” to be addressed. The evidence
heard in this Inquiry revealed clear deficiencies in the Government’s assessment
of the threat of Sikh extremism and in its security response in 1985, as well as
deficiencies in the interagency cooperation throughout the post-bombing
investigation of the Air India case. Whether or not they contributed to a failure
to prevent the bombing or to a failure to bring those responsible to justice, it is
regrettable that, even after more than 20 years have elapsed, the Government
was still not willing to admit these clear deficiencies nor to apologize for them
to the families.
Stonewalling
As outlined earlier in this report, the Commission experienced significant
difficulties in obtaining information and documents from the Government and
in making information public.441 In particular, the Government often sought
to debate the relevance of the Commission’s requests and to persuade the
Commission not to pursue certain information that the Government viewed as
irrelevant. In some cases, the Commission uncovered highly significant new
information precisely as a result of continuing to pursue requests that had
been met with resistance. The “Mr. A” story, notably, was found to illustrate
many of the issues at the heart of the Inquiry’s mandate. Nevertheless, when
information about Mr. A was initially requested, Government counsel advised
in correspondence, factual content of which has been classified as “Top Secret,”
that this was an avenue of inquiry that led nowhere and would only result in “…a
tremendous waste of time and resources at the expense of matters germane
to the Terms of Reference.” In the end, when the Commission persisted in its
request, the Government did provide, insofar as the Commission is aware, all of
the information requested.
440 Final Submissions of the Attorney General of Canada, Vol. I, paras. 18-19.
441 See Volume One of this Report: Chapter II, The Inquiry Process.
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Another incident, however, is of even greater concern. It relates to Mr. G, the
individual who had provided information to the RCMP about Bagri and Parmar’s
alleged statements that the BK had technology to cause real damage and had
“obliterated” something. Mr. G approached the RCMP in January 2007 and
stated that he was willing to give evidence at “…any Inquiry or Commission.”
What Mr. G said, at that point, was that he had been approached in the past by
police and prosecutors to give evidence at the Air India trial, that he had been
reluctant to give evidence at the time, but that he now wanted to testify before
this Inquiry.
In January 2007, Commission counsel had independently become interested
in Mr. G. Even though Commission counsel were not aware at the time of
the information Mr. G had provided in 1995 or of his most recent approach
to the RCMP, there were separate reasons to believe that he might have
knowledge about the bombing. Commission counsel expressed a clear interest
in information about Mr. G during interviews with RCMP witnesses and soon
expressed their intention to lead evidence about him in the Inquiry hearings.
Meanwhile, the RCMP Air India Task Force was advised in February 2007 that Mr.
G had contacted the RCMP. The Air India investigators immediately expressed
interest in obtaining his information. They were, however, concerned about
Mr. G’s motivation for coming forward at that time, and they noted that his
information and contacts should be treated carefully. The RCMP contacted Mr.
G to obtain further information and he advised that he was willing to meet with
Air India investigators.
In March 2007, investigators from the Air India Task Force had a brief
conversation with Mr. G. He reiterated that he wanted to give evidence at
the present Inquiry. He said that he had talked to police in the past and had
provided a statement. He explained that he now wanted to testify because his
views on terrorism had changed and because he had concerns for the safety
of his family. He indicated that his story had not changed since he had spoken
to police in the past, and that he would also be willing to give evidence in a
trial. He repeated, again, that he wanted to testify at the Inquiry.
Throughout this period, the RCMP did not advise the Commission that an
individual with potential knowledge about the bombing wanted to testify at
the Inquiry, let alone that this individual was Mr. G, about whom Commission
counsel had been making enquiries. Nor did the RCMP advise the Commission
subsequently. In fact, but for an accidental discovery in the course of a data
search for other purposes, the Commission would most likely never have
discovered that Mr. G had expressed a willingness to provide information to the
Inquiry.
Though it did not advise the Commission, the RCMP decided to take steps to
arrange a more comprehensive meeting with Mr. G as soon as possible. Mr
G agreed and cooperated with the arrangements. Despite ongoing concerns
about Mr. G’s motivations and credibility, the Task Force felt that he might
have information that he had not disclosed previously that could assist in the
investigation.
�Chapter V: The Overall Government Response to the Air India Bombing
While arrangements were being made for a meeting between the RCMP and
Mr. G under the appropriate conditions, Task Force investigators had brief
conversations with him in May and June 2007. He reiterated his willingness
to cooperate with the RCMP, but also indicated that he was considering
attempting to contact the Inquiry directly to see if he could testify anonymously.
The investigators told him that they would not prevent him from making this
contact, but asked that he delay it until the Force had had an opportunity to
make further arrangements for a proper meeting.
Ultimately, the Force did interview Mr. G under the desired conditions in
September 2007. At that time, he again talked about this Commission and
questioned why the RCMP were not “…allowing him to do anything.” He
explained that he had been contacting an RCMP officer to request assistance
in setting up a secure line for him to speak with the Commission and that the
officer had not been returning his calls (the Commission saw no trace of such
calls in any of the documents it reviewed). The investigators told him that “…
at no time we were impeding his contact to the Commission of Inquiry,” and
that “…if he wanted to speak to them he could do that.” They informed him,
however, that the Commission counsel “…were not investigators” and that they
would “…refer him to the police.” During the interview, Mr. G also requested to
see the statements he had previously given to the RCMP to refresh his memory,
but the investigators refused. Generally, the investigators felt that, though some
of the information provided by Mr. G might be correct, the discrepancies in his
various statements were “glaring.” The RCMP did not attempt to pursue further
interviews with Mr. G after this. RCMP documents indicate that, in April 2008, a
request was made for the file to be reviewed in order to ensure that the task of
assessing Mr. G’s offer of information was complete and could be concluded.
Despite his repeated requests, the RCMP did not come forward to advise the
Commission that Mr. G wanted to testify at the Inquiry, nor did it take any steps
to facilitate contact between Mr. G and the Commission. Instead, in March
2007, Government counsel acting on behalf of the RCMP advised Commission
counsel that Mr. G had recently expressed a desire to cooperate and to provide
information to police. Based on this version of events, the Government now
sought additional redactions to existing Commission documents, in order, as it
maintained, to protect this ongoing investigation. Nothing was said about the
fact that Mr. G was actually willing to testify at the Inquiry and was asking to
contact the Commission. A number of E Division investigators were involved in
discussions with Commission counsel that were intended to explain the renewed
RCMP investigative interest in Mr. G that was being used as the basis to seek
additional redactions. Among the investigators providing these explanations
were officers directly involved in the discussions with Mr. G about his desire to
testify at the Inquiry. They were silent as to this salient fact. Whatever it may
have disclosed to its own counsel, the RCMP was certainly aware of the whole
story, even as Commission counsel was being told only a part.
The RCMP now acknowledges that it failed to notify the Commission of Mr. G’s
interest in testifying at the Inquiry, that it asked Mr. G to delay contacting the
Commission, and that it sought additional redactions after Mr. G asked to speak
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to the Inquiry. The RCMP indicates, however, that this was not motivated by
any intention to impede the Commission’s work, or to impede Mr. G’s ability to
contact the Commission, but only resulted from the investigators’ focus on their
ongoing investigation and from their concern to ensure that this new initiative
was protected. Accepting those statements at face value, the fact remains,
however, that even after the RCMP had completed its interview with Mr. G and
had decided to stop pursuing any follow-up on this initiative in light of the
discrepancies in Mr. G’s statements, the Commission was still not notified that
he had expressed an interest in making contact.
In the fall of 2007, the Commission came upon information suggesting that Mr. G
had offered to testify at the Inquiry. In March 2008, the Government responded
to a Commission letter written months earlier that had requested further
information and had specifically asked whether Mr. G had expressed interest in
speaking with representatives of the Inquiry. In that response, the Government
finally advised the Commission that Mr. G “…was at one point prepared to speak
with representatives from the Commission.” Even at this point, Government
counsel took the position that Mr. G remained “…a person of interest with
respect to ongoing investigations which must not be jeopardized” and asked
that if Commission counsel wished to contact Mr. G, arrangements be made
through the Government and that the RCMP be involved. When Commission
counsel responded by asking that the arrangements be made as suggested by
Government, the RCMP provided a briefing to outline the sensitivity of the issue
and the risk of compromising protected information in exploring this aspect.
It was after this briefing, and without informing Commission counsel, that the
RCMP made a decision to take no further steps to pursue Mr. G’s information,
instead noting that the task of assessing his most recent offer of cooperation
could be considered completed after a review of the file.
The Commission subsequently secured from the RCMP the documentation
upon which this description of the events and the account of Mr. G’s information
set out earlier in this section are based. The Commission conducted further
enquiries, as it deemed feasible in the circumstances, in order to provide relevant
information germane to its mandate in this Report without jeopardizing the
safety of Mr. G or any ongoing investigations.
The conduct of the RCMP in its dealings with this Commission in relation to Mr.
G is deeply troubling.
Ongoing Interagency Debates
Despite its attempt to speak with one voice, the Government could not
eliminate the undertone of interagency criticism, particularly between CSIS
and the RCMP, which has permeated their discourse since the early days of
the Air India investigation. With the rare exception of a few retired employees
such as, notably, former RCMP E Division member S/Sgt. Robert Solvason and,
to an extent, former CSIS DG CT Jim Warren, Government witnesses did not
�Chapter V: The Overall Government Response to the Air India Bombing
admit mistakes or deficiencies on the part of the agency with which they were
associated. However, many were willing to point the finger at other agencies in
defending their own.
RCMP witnesses blamed CSIS for not disclosing the Parmar Tapes early in the
investigation,442 while CSIS witnesses blamed the RCMP for driving potential
sources away without anyone benefitting.443 RCMP witnesses blamed CSIS
for not advising the Force until 1996 that it had a large quantity of intercept
tapes recording the communications of Bagri, thereby delaying the RCMP’s own
wiretap application at the time,444 while CSIS witnesses felt that the RCMP, at
times, needed to be “re-sensitized” to the need to protect sources, in particular
after Ms. D’s identity was published in a newspaper because of an RCMP oversight
in sealing warrant applications.445 The former RCMP Liaison Officer in Toronto,
Ron Dicks, testified that access to CSIS materials was constrained and restricted,
and that there was not a free flow of information coming from CSIS,446 while the
former CSIS Liaison Officer in BC, John Stevenson, testified about feeling run off
his feet in the early years, particularly as he had to deal with “…self-professed
CSIS bashers” at the RCMP, adding that the information flow in the liaison
program was “…essentially a one-way street” with the RCMP not reciprocating
CSIS’s sharing.447 RCMP witnesses continued to question the sufficiency and
timeliness of the information provided by CSIS about the Duncan Blast,448 while
CSIS witnesses maintained that the information was passed immediately to the
RCMP for investigation.449
With the many irreconcilable positions taken by the different agencies about
the Air India narrative, the Government at times had difficulty in meeting its
stated goal of speaking with one voice and in presenting a clear and coherent
position before the Inquiry.450
The Government had difficulty harmonizing its submissions about whether
or not CSIS authorized the use of its information in an RCMP application for
authorization to intercept private communications (the “September 19
affidavit”), a matter that was the subject of conflicting evidence from RCMP and
CSIS witnesses and documents.451 At one point, in its Final Submissions, the
AGC stated that “…[w]hether due to a miscommunication or not,” RCMP officers
442 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11201-11202, 11239-11240.
443 Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9435-9436, 9447; Testimony of William
Laurie, vol. 61, October 15, 2007, pp. 7400-7401, 7403-7404.
444 Exhibit P-101 CAA0969, p. 23; Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11182-11183;
Testimony of Bart Blachford, vol. 63, October 17, 2007, pp. 7820-7822.
445 Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8331-8332.
446 Testimony of Ron Dicks, vol. 62, October 16, 2007, p. 7563.
447 Testimony of John Stevenson, vol. 62, October 16, 2007, pp. 7656, 7723; See also Testimony of James
Warren, vol. 48, September 19, 2007, p. 5915.
448 Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11243.
449 Testimony of James Warren, vol. 48, September 19, 2007, p. 5821.
450 See Volume One of this Report: Chapter II, The Inquiry Process.
451 See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
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understood that they did have permission from CSIS to use the material.452
Later in the Submissions, the AGC stated categorically that CSIS HQ had not
authorized the use of its information, but added that it was possible that CSIS
BC Region had indicated a willingness to obtain permission from CSIS HQ.453
Nowhere, however, did the AGC come out and say whether the Government
accepts that there was a miscommunication, or whether the understanding of
either CSIS or the RCMP was wrong.
The Government also did not take any position about whether or not the RCMP
asked CSIS to retain the Parmar Tapes. Though conceding that the RCMP did
not make a written request for retention, the AGC did not tackle the issue of
whether or not the Henschel/Claxton conversation should be viewed as a
retention request, simply stating in its Submissions that Henschel and Claxton
had a different understanding of the “agreement” they reached.454
Similarly, the Government did not propose any way of harmonizing the different
views expressed by CSIS and the RCMP about cooperation in connection with
the Duncan Blast, simply stating that “…[t]he RCMP provided the assistance
required to CSIS”455 without indicating whether what CSIS told the RCMP was
sufficient.
While the Government sometimes had difficulty presenting a clear, “unified”
position about matters subject to debate among its agencies, its decision to
speak with one voice did have an impact on Government counsel’s apparent
willingness and ability to test statements made by Government witnesses that
were critical of other government agencies. This is hardly surprising since the
AGC was acting both for the agency being criticized and for the agency and
individual doing the criticizing.456 As a result, as was the case with the SIRC
review, the Government decision to coordinate the response of its agencies
had an impact on how fully and frankly interagency grievances were aired or
explored.
Current Level of Interagency Cooperation
Despite the continuing disagreements between CSIS and the RCMP about
elements of the Air India narrative, the evidence that was presented at this Inquiry
by Government witnesses about the current level of cooperation between the
Service and the Force painted an overwhelmingly positive picture.
RCMP Commissioner Elliott testified that “…we have a much better situation
now with respect to the cooperation and flow of information between our
two organizations than we had in the past,” and indicated that it was unlikely
that there would be situations of conflicts between agencies that could not be
452
453
454
455
456
Final Submissions of the Attorney General of Canada, Vol. I, p. 133, Footnote 401.
Final Submissions of the Attorney General of Canada, Vol. I, para. 368.
Final Submissions of the Attorney General of Canada, Vol. I, para. 353.
Final Submissions of the Attorney General of Canada, Vol. I, para. 173.
See Volume One of this Report: Chapter II, The Inquiry Process.
�Chapter V: The Overall Government Response to the Air India Bombing
resolved. He felt that, if another catastrophe of the magnitude of the Air India
bombing were to occur now, the cooperation issues that arose in the past would
not arise again.457 Similarly, Deputy Commissioner Bass, the Commanding
Officer for E Division (British Columbia), indicated that at present CSIS and the
RCMP have “…a very close relationship” in BC.458
Assistant Commissioner McDonell, in charge of National Security Investigations
at RCMP HQ, talked about the “open relationship” which now exists with CSIS.
McDonell stated that he had no concerns about CSIS’s ability to recognize
information of interest to the RCMP since, in the current open relationship, CSIS
now discloses all information that could possibly be relevant.459 Asked about
the need for guarantees that the current climate of openness and discussion
between CSIS and the RCMP would continue, McDonell testified:
A/COMM. McDONELL: I cannot see the Government of
Canada standing for anything less than the current relationship
we have in CSIS. I can’t see the National Security Advisor, who
is responsible for the overall and has a view of exactly where
we’re going, letting that devolve and I certainly can’t accept
that either the Director of CSIS or our Commissioner would
let that happen. And I know myself and my counterpart will
not let that happen – we’ve gotten to a good state and it’s
recognized throughout both organizations and I believe in the
government that it’s a good state.
MR. SHORE: So you’re optimistic. I hope we can be.
A/COMM. McDONELL: I am.460
The evidence of RCMP members of the Integrated National Security Enforcement
Teams (INSETs) – multi-agency investigative teams created in 2002 and focused
on national security matters461 – was to a similar effect. Members in the various
divisions across the country testified that current cooperation between CSIS
and the RCMP is at a “high level.”462 Insp. Ches Parsons of A Division (Ottawa)
discussed the“deconfliction”process in place since 2005 at the Joint Management
Team (JMT) meetings, which involves a common review of CSIS interests and
RCMP investigations and a discussion of the approach to be taken in case of
overlap.463 He noted that he had not yet encountered a situation where there
457
458
459
460
461
Testimony of William Elliott, vol. 90, December 6, 2007, pp. 11807, 11825, 11831.
See, generally, Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11283-11284.
Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12636, 12638.
Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12663-12664.
Testimony of Jamie Jagoe, vol. 82, November 23, 2007, p. 10445. See, generally, Section 4.5 (Postbombing), Recent Cooperation and Information-Sharing Mechanisms.
462 Testimony of Jamie Jagoe, vol. 82, November 23, 2007, p. 10476; Testimony of Trevor Turner, vol. 82,
November 23, 2007, p. 10477.
463 Testimony of Ches Parsons, vol. 82, November 23, 2007, pp. 10457-10458; Testimony of Mike
McDonnell, vol. 95, December 13, 2007, p. 12636; Testimony of Luc Portelance, vol. 88, December
4, 2007, pp. 11473-11474, 11478-11481. See, generally, Section 4.5 (Post-bombing), Recent
Cooperation and Information-Sharing Mechanisms.
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was a disagreement between the agencies, and added that CSIS and the RCMP
had now evolved to a point where a conflict that the agencies would be unable
to resolve together would not happen.464 McDonell confirmed that, since the
implementation of the JMT in 2005, he had never seen a situation where CSIS
and the RCMP both had an interest in an investigation that got to the point of
conflict. Like his colleagues from the INSETs, he could not imagine a situation
that could not be resolved between the agencies and which would require a
“tie breaker” or arbiter. He indicated that it was realistic to think that the spirit
of cooperation between the agencies was now so embedded that it could not
unravel.465
Insp. Jamie Jagoe of O Division (Ontario) and Sgt. Trevor Turner of E Division
(British Columbia) testified that they believed CSIS would now “…go to all extents
possible” to share intercept information with the RCMP were there a situation
similar to that which had arisen in the early days of the Air India investigation.466
Supt. James Malizia of C Division (Quebec) and Jagoe both felt that the current
high level of cooperation was the result, not only of good personal relationships
between the individuals in charge, but of the mechanisms, systems, processes
and protocols instituted by the agencies.467
The views expressed by CSIS witnesses were quite similar. CSIS Director Jim Judd
indicated that there had been “a lot of changes” in the CSIS/RCMP relationship
over the last several years and that “…the relationship is working quite well now.”
Like Commissioner Elliott, he was confident that if another tragedy like Air India
were to occur today, “…it would be dealt with completely differently.”468
CSIS DDO Portelance described the current cooperation mechanisms as
providing for “…a fulsome dialogue” between the agencies, and commented
that those mechanisms were enshrined in increasingly rigorous ways since their
initial implementation in 2005. He described CSIS’s current relationship with the
RCMP as “very connected,” and noted that “…we know each other personally, at
senior levels, working levels….” He also testified that, in light of the quality of
the cooperation, he did not believe that conflicts could arise which could not
be resolved directly between the agencies. Like McDonell, Portelance stated
the view that, in the current system, there was no risk of CSIS not recognizing
information of interest to the RCMP, since CSIS’s “…default mechanism has been
to disclose,” such that the Service discloses its information “…quite aggressively
to the RCMP.” He testified to a belief that cooperation is here to stay: “I firmly
believe that the current protocol, the MOU provides a framework that will
outlive changes in personalities. I truly do believe that.”469
464 Testimony of Ches Parsons, vol. 82, November 23, 2007, pp. 10457-10458.
465 Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12637, 12639, 12656.
466 Testimony of Jamie Jagoe, vol. 82, November 23, 2007, p. 10476; Testimony of Trevor Turner, vol. 82,
November 23, 2007, p. 10477.
467 Testimony of Jamie Jagoe, vol. 82, November 23, 2007, pp. 10479-10480; Testimony of James Malizia,
vol. 82, November 23, 2007, pp. 10479-10480.
468 Testimony of Jim Judd, vol. 90, December 6, 2007, pp. 11855-11856, 11869-11870.
469 Testimony of Luc Portelance, vol. 88, December 4, 2007, pp. 11474, 11476, 11484-11485, 11517, 11520.
�Chapter V: The Overall Government Response to the Air India Bombing
The Directors General of three of the CSIS Regions also testified that the model
now in place for “…effective and efficient exchange of information” between
CSIS and the RCMP “…works extremely well.” R. Andrew Ellis of the CSIS Toronto
Region emphasized that “…the relationships are exceptionally sound,” and
noted that this was no longer only the result of good personal relations, but of
a developing convention between the agencies. He stated: “I don’t think, as you
say, it will ever unravel.”470
In its Final Submissions, the AGC noted that the relationship between CSIS and
the RCMP “…is better than it has ever been.”471
Nevertheless, it is worth remembering that, in preparing for the Rae review, the
RCMP had expressed the view that, as of late 2005, it was “evident” from recent
experience and reviews that there was a need to improve the RCMP/CSIS working
relationship. As of 2005, the agencies still seemed to misunderstand each other.
An RCMP note from that period observed that CSIS had little understanding
of police investigations and court proceedings, and that the RCMP also lacked
understanding of CSIS’s operating and investigative processes.472 A recent
joint operational file review had led both agencies to conclude that many of
the cooperation problems present in 1985, including misunderstanding of the
other agencies’ procedures and confusion about legal requirements, were still
present.473 In its October 2005 briefing to Rae, the RCMP indicated that there
were ongoing problems in the relationship with CSIS, mentioning a lack of
trust rooted in unresolved issues dating back to the early years of the Air India
investigation.474
Accounts from 2005 show that, as of that date, the RCMP still felt that CSIS had
not demonstrated the ability to make the determination as to what information
was relevant for the RCMP, “…from Air India twenty years ago to Project
[redacted] today.” The RCMP maintained that when CSIS did share information,
it was often too late in their investigations, “…after many opportunities for law
enforcement to gather evidence have been lost,” and that, in general, “…CSIS
disclosures appear to be producing more problems than benefits for RCMP
investigators.”475 During his testimony at this Inquiry, the CSIS DDO disagreed
vigorously that such perceptions were accurate, even in 2005, indicating that
CSIS in fact had been disclosing aggressively to the RCMP. Accurate or not,
though, those perceptions were still present at the RCMP, as reflected in the
Force’s briefing to Rae, and Portelance explained that this was part of the reason
the agencies decided “…to create a system whereby, there would be so much
transparency, so much openness, that that kind of thinking would hopefully
disappear.”476 The initiatives being referred to included proposed measures
to improve cooperation such as revising the MOU, standardizing secondment
agreements, developing joint training courses and creating a JMT.477
470
471
472
473
474
475
476
477
Testimony of Andrew Ellis, vol. 82, November 23, 2007, pp. 10539, 10575-10576.
Final Submissions of the Attorney General of Canada, Vol. I, para. 409.
Exhibit P-101 CAA1043(i), pp. 8-9.
Exhibit P-101 CAA0335, pp. 45-46.
Exhibit P-101 CAA0335, pp. 42-43.
Exhibit P-101 CAA1043(i), pp. 8, 25, 31.
Testimony of Luc Portelance, vol. 88, December 4, 2007, p. 11525.
See Exhibit P-101 CAA1043(i), pp. 4-5, CAA1086, pp. 11-12.
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When former RCMP Commissioner Giuliano Zaccardelli testified at this Inquiry,
he indicated that, despite the implementation of some of the initiatives
contemplated during the preparation for the Rae review, when he left the
Force in late 2006, the situation had not fundamentally changed in terms of
the challenges in CSIS/RCMP cooperation and the inability of the agencies to
bridge the gap. He noted that not only the legislation itself, but the narrow
interpretations it was given, had not enabled the agencies to carry out their
mandates, and that issues surrounding the information being passed to the
RCMP by CSIS were still present at the close of 2006.478
In Zaccardelli’s view, what was required was not only a change in legislation, but
also a change in policy and in the culture prevailing at the agencies. He noted
that, though there had already been tremendous improvements, there was
still a need for “…a fundamental cultural change of understanding each other.”
He indicated that “…the culture has to change where we recognize that the
objective is not to protect your own organization….” He felt that the protocols
for cooperation and information exchange now in place, including the exchange
of senior advisors and the JMT, could not in themselves solve the underlying
problem.479 Though the protocols and mechanisms put in place before and after
the Rae review could not be sufficient without a more fundamental change,
Zaccardelli was of the view that, with major structural changes, the necessary
cultural changes would follow:
…when we create the proper legislative and policy changes,
I believe that will drive the cultural changes because then
we can all safely look and see that we’re here for the interest
of Canada and not worry so much about – what is the effect
of me disclosing this information or what is the effect on my
organization when this method of operation gets blown out of
the water.
We spend more time worrying about that than worrying about
working together for the greater interest of Canada.480
In 2002, a secondment program had replaced the RCMP/CSIS Liaison Officers
(LO) Program. RCMP members were to be seconded to CSIS, and CSIS members
to the RCMP, but, in 2008, the secondments provided for by the program in
the four regions where INSETs were established were not active. There was
one RCMP member seconded to CSIS HQ and one CSIS member seconded to
RCMP HQ at the management level. Unlike the LO Program, the secondment
program was not aimed at transmitting information between the agencies, but
at achieving greater cultural and operational understanding.481
478
479
480
481
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11021-11023, 11044-11045.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11029-11031, 11040, 11057-11058.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11040.
See Section 4.5 (Post-bombing), Recent Cooperation and Information-Sharing Mechanisms.
�Chapter V: The Overall Government Response to the Air India Bombing
The evidence heard in this Inquiry reveals that, despite the creation of the INSETs
and of the secondment program in 2002, there were still serious problems in the
RCMP/CSIS relationship as of 2005, many of which were described as similar
to the problems that existed in the early years of the Air India investigation.
After 2005, the “deconfliction” process was established, involving the exchange
of information about CSIS interests and RCMP investigations at the operational
level and a review of national issues at the HQ level JMT.482 A new MOU was
signed in November 2006, formalizing some of the recently implemented
procedures.483 Nevertheless, as of late 2006, according to the then RCMP
Commissioner Zaccardelli and the reports he received from RCMP members,
the fundamental problems had still not been resolved.
Even in this Inquiry, the testimony of some of the high-level RCMP and CSIS
officials showed that conflicting views still remain about what needs to be done.
D/Comm. Bass noted that change was necessary in the counterterrorism field in
order for the justice system to be able to use CSIS information as evidence, and
that this change might require CSIS to handle the information it collects to an
evidentiary standard.484 CSIS DDO Portelance, on the other hand, felt that this
was a “simplistic interpretation” that failed to take into account the breadth of
CSIS activities unrelated to law enforcement, even in the counterterrorism area,
and that also failed to take into account CSIS’s role and purpose as an intelligence
agency and not as “…a branch plant of law enforcement.” Portelance did admit
that some issues have yet to be resolved through the current cooperation
mechanisms, in particular some “…residual older cases” where the agencies are
still “…trying to see if we can find common ground in terms of whether or not we
go with prosecution or source protection.” Though he felt that the issues would
eventually be resolved or, at least, that the mechanisms were in place for such a
resolution, he explained that “…within the wonderful world of collegiality and
the joint management forum – I can tell you that there are ongoing tensions
where we are still trying to resolve some cases.”485
No Need for Change?
Despite evidence of continuing tensions and problems, at least into 2006,
the enthusiasm for the current level of cooperation between CSIS and the
RCMP displayed by many of the present-day witnesses and echoed by the
Attorney General of Canada in its Submissions on behalf of the Government
was such that, at times, it led to suggestions that, in fact, no reform at all was
required, and that all former policy challenges have been met through current
cooperative practices and procedures, making change unnecessary and even
undesirable.486
482 Testimony of Mike McDonell, vol. 95, December 13, 2007, p. 12636; Testimony of Luc Portelance, vol.
88, December 4, 2007, pp. 11473-11474, 11478-11481. See Section 4.5 (Post-bombing), Recent
Cooperation and Information-Sharing Mechanisms.
483 Exhibit P-101 CAA1073; See Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12630-12631;
Testimony of Luc Portelance, vol. 88, December 4, 2007, p. 11480.
484 Testimony of Gary Bass, vol. 87, December 3, 2007, pp. 11275-11276.
485 Testimony of Luc Portelance, vol. 88, December 4, 2007, pp. 11492-11493, 11501-11503, 11539.
486 See Volume One of this Report: Chapter II, The Inquiry Process.
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Notably, however, the Government did not land on a clear or unified position
as to whether legislative changes are necessary to address any remaining
challenges in interagency cooperation. Perhaps more surprisingly, it also did
not present a clear or coherent position on the issue of reform to facilitate the
use of security intelligence as evidence.487
A number of witnesses testified about the necessity of legislative intervention,
but their views about the nature and extent of desirable reforms varied.
RCMP Commissioner Elliott, though he did not feel there was a need for
legislation “…to ensure that a spirit of collaboration continues” between CSIS
and the RCMP, did indicate that “…there may be scope for legislative changes”
with respect to other issues, such as the current obstacles to turning intelligence
into evidence and the impediments to the CSIS/RCMP relationship which result
from the current disclosure regime.488
Turner of E Division INSET testified that “…legislation is the best route” for longterm cooperation, even though relations between the agencies are good at the
moment.489
Zaccardelli was categorical that the present legal structure for RCMP and CSIS
interaction is not adequate and that the status quo cannot be left to prevail. To
him, it was clear that legislative change was necessary.490
Deputy Commissioner Bass was equally unequivocal:
MR. FREIMAN: The final question I’d like to put to you is,
assuming the best will be done about joint targeting, joint
management, joint operations, better communications;
with all that in your pocket and working, is the status quo
sustainable or even with all of that, is it necessary to do
something?
D/COMM. BASS: Yes, it is. I mean, that’s a good place to be;
that’s great that people are working together and we are. We
have a very good relationship right now. But we don’t have
the foundational support that allows us to share information
effectively. We need that legislative piece – to pull it all
together. So I don’t think it can be done without that.
…
D/COMM. BASS: Not only that – just to finish that – I think
that to rely on the individual relationships that people build
487
488
489
490
See Volume One of this Report: Chapter II, The Inquiry Process.
Testimony of William Elliott, vol. 90, December 6, 2007, pp. 11804-11806, 11835.
Testimony of Trevor Turner, vol. 82, November 23, 2007, pp. 10479-10480.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11021, 11029, 11044-11045.
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in certain positions as a means to be effective is dangerous,
in that those positions are going to continually change, and
individuals will change, and degrees of cooperation will
change. So there’s got to be something there that helps them
do that.491
Bass had also indicated, earlier in his testimony, while discussing the current
regime of disclosure to the defence in criminal trials, that “…there have to be
legislative fixes to disclosure.”492
Former CSIS DDO designate Jack Hooper also made it clear that he felt a change
in the legal regime is absolutely necessary:
…there is an impression that has a very large constituency that
CSIS and law enforcement don’t get along and if they would
just learn to live together and share their toys, then all of the
problems would go away.
And I could tell you, based on my experience that is never
going to happen, because I have seen instances of outstanding
cooperation between the Service and law enforcement where
at the end of the day, we always confront the legal issues
around transitioning intelligence into evidence.
That is not a relationship issue; that is a legal issue and I think
the legal architecture around the prosecution of national
security offences is largely inadequate.
…
I think there needs to be a great deal of thought brought
to bear on this issue because, at the end of the day the
solution must be a legal solution, a legislative solution, not a
relationship solution.493
Bill Turner, who acted as the CSIS Liaison Officer to the 1995 RCMP Air India
Task Force, testified that, in his view, the RCMP and CSIS had done everything
they could to improve the relationship between the two agencies. He stated
that what was needed now was a change in legislation to solve the issues
surrounding the disclosure of CSIS information in court.494
Current CSIS DDO Luc Portelance noted that a constant problem that remains,
despite the good level of cooperation between CSIS and the RCMP, is the fact
491
492
493
494
See, generally, Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11285.
See, generally, Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11280.
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6246-6248.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8359-8360.
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that the Service has not been provided with the assurances necessary to ensure
the protection of its sources and employees. Though he denied that such
concerns prevented CSIS from disclosing information to the RCMP, Portelance
did note that it is difficult under the current regime to achieve both the objective
of providing information to law enforcement for the purposes of having a
successful prosecution, and that of protecting CSIS’s sensitive assets to ensure
that its operations can continue. He stated that the cases currently before the
courts would be “the ultimate judge” as to whether the present system really
works, but that the current disclosure regime in criminal trials puts pressures
on CSIS that could probably not be sustained in the long term. He felt that
legislative solutions to provide better protection for CSIS information in the
criminal justice system would ultimately be necessary. He also thought that the
bifurcated process under section 38 of the Canada Evidence Act to determine
questions of national security privilege might not be the best model, as it is “…
complex, complicated and probably contributes to a loss of momentum in the
case.”495
However, Portelance was categorical in stating that there is no need to modify
the current CSIS discretion to disclose by making disclosure obligatory. He noted
that not only does CSIS already disclose aggressively to the RCMP, but that the
current cooperation protocols create a “two-way dialogue” and allow the RCMP
to make demands, “…through the exposure of our cases to the RCMP and vice
versa,” while the legislative discretion allows CSIS to protect its investigations in
cases where information does not need to be disclosed to police.496
Some witnesses, though fewer in number, opined that legislative change is not
necessary.
CSIS Director Judd did not, generally, see a need for legislative changes. He
expressed the view that the necessary legislation and policy tools are already in
place to allow CSIS and the RCMP to work together, but specified that the results
of several ongoing prosecutions would need to be considered to fully test the
workability of the regime for determining national security privilege (section 38
of the Canada Evidence Act). Though Judd was not opposed to possible reforms
to protect the identity of certain witnesses in the judicial process (including CSIS
employees or sources) and to limit the disclosure of some information, he did
not believe that any fundamental changes to the CSIS Act, the CSIS mandate or
CSIS policies were necessary.497
Ellis, the Director General of the CSIS Toronto Region, also indicated that it could
be “…a little premature” to look into legislative remedies at the moment, since
the agencies were waiting for the results of a number of cases currently before
the courts in order to be able to assess the situation.498
495 Testimony of Luc Portelance, vol. 88, December 4, 2007, pp. 11504-11508, 11510-11511, 11521-11522,
11526-11527, 11539-11540.
496 Testimony of Luc Portelance, vol. 88, December 4, 2007, pp. 11515-11517.
497 Testimony of Jim Judd, vol. 90, December 6, 2007, pp. 11856-11857, 11861-11862, 11871-11873, 11875,
11887.
498 Testimony of Andrew Ellis, vol. 82, November 23, 2007, pp. 10575-10576.
�Chapter V: The Overall Government Response to the Air India Bombing
A/Comm. McDonell of RCMP HQ was also not convinced of the need for
legislation. Though he agreed that measures providing for the anonymity of
some informants or sources in the trial context would be helpful, he indicated
that he was “not satisfied” that there was a legislative gap which could hinder
cooperation between the agencies. He also did not express concern about the
regime for the protection of national security information under section 38 of
the Canada Evidence Act, noting “…that’s the system we have; that’s the system
that we’ve tailored ourselves to and we’re working with.” He emphasized that
the cases currently before the courts would provide guidance and allow for more
informed decisions about the direction to adopt for the future. McDonell also
saw no need for legislative changes that would turn the current CSIS discretion
to pass information into an obligation, indicating that he was “…of the opinion
that ‘may’ is sufficient,” given the breadth of the work of CSIS.499
It should be noted that McDonell was one of the chief proponents of the
philosophy of “less is more” in terms of the information which the RCMP is to
receive from CSIS.500 He testified that, in his view, if the police can gather the
information themselves on the basis of limited initial information from CSIS,
then the issues of how the CSIS information will impact on the criminal process
will be avoided.501 This view is not unanimous at the RCMP. Supt. Larry Tremblay,
the RCMP officer seconded to CSIS HQ, noted that, at times, the RCMP has taken
the position that it is preferable to “…to have less than more information” from
CSIS, but testified that “…by no means is that an ideal concept.” To him, “less
is more” is simply a concept that was adopted by necessity because of issues
relating to disclosure and because of the need to protect CSIS’s national security
interests.502
The Final Submissions of the Attorney General of Canada are not consistent or
coherent in their treatment of the issue of the desirability of change or reform of
the current system as it relates to information flow between CSIS and the RCMP.
In one section of its Final Submissions, the AGC suggests that legislative change
is necessary. The Submissions note that “…[t]he Commission was encouraged
to consider legislative solutions that would enable and protect both mandates
and permit a fair trial.”503 The AGC goes on to assert that current disclosure law
in criminal matters constitutes “…an obstacle for sharing security intelligence
with the police,”504 and that the Canada Evidence Act does not provide sufficient
guarantees of protection for CSIS information.505 In this section, the AGC
concludes that “…[t]he agencies’ concerted efforts to cooperate and understand
one another however will not resolve the legal issues surrounding the movement
499 Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12639-12640, 12651-12652, 12662-12663,
12665.
500 See, generally, Section 4.5 (Post-bombing), Recent Cooperation and Information-Sharing Mechanisms.
501 Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12634-12635.
502 Testimony of Larry Tremblay, vol. 96, February 14, 2008, p. 12777.
503 Final Submissions of the Attorney General of Canada, Vol. I, para. 449.
504 Final Submissions of the Attorney General of Canada, Vol. I, para. 450.
505 Final Submissions of the Attorney General of Canada, Vol. I, para. 451.
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of intelligence to evidence,”506 and that “…goodwill on the part of the RCMP and
CSIS will not alter the legal difficulties that the agencies encounter in a major
terrorist investigation.”507
Nevertheless, in another section of its Submissions, the AGC argues the opposite
position. After an initial statement that it would “…refrain from offering
suggestions about what policy recommendations the Commission should
make,” the Attorney General of Canada provides comments on “intelligence
to evidence” issues in order to offer the “…governmental perspective and
experience.”508 That governmental perspective focuses largely on the dangers
of introducing legislative changes.
In this section, the Attorney General of Canada argues against changes to
section 38 of the Canada Evidence Act, indicating that the current law “…achieves
a nuanced approach that respects the interest of the state in maintaining the
secrecy of sensitive information and in protecting the rights of the accused
to a fair trial.”509 The Government notes that the involvement of the Attorney
General of Canada and the vesting of ultimate decision-making authority about
disclosure of alleged national security information in the Attorney General of
Canada, as is provided for in section 38, ensures that third party information
is protected; that Canada honours its commitments to respect caveats; that
national security privilege is applied consistently; and that additional materials
can be disclosed as circumstances change without the need to return to court.510
The AGC also commends the flexibility of the current procedure which allows
for issues to be determined on a case-by-case basis.511 The AGC emphasizes that
experience with section 38 since the passage of the Anti-terrorism Act has been
limited, leading to the suggestion that future cases would provide guidance “…
on whether the current regime needs to be modified,”512 and that it is “…too
early to draw conclusions” concerning the use of the section 38 procedure.513
The AGC also cautions that proposed changes to section 38 to address RCMP or
CSIS information in criminal trials would have an impact on other agencies.514
The AGC then reviews possible changes to the section 38 procedure and argues
against making any of the changes discussed. About the possibility of employing
special advocates in section 38 proceedings, the AGC quotes the Government
response to a similar House of Commons committee recommendation to the
effect that further study is needed and that not all proceedings would necessarily
engage the Charter.515 Dealing with the much-criticized bifurcated process for
section 38 issues, whereby the trial judge in anti-terrorism prosecutions must
await the results of a separate proceeding in Federal Court that determines
506
507
508
509
510
511
512
513
514
515
Final Submissions of the Attorney General of Canada, Vol. I, para. 452.
Final Submissions of the Attorney General of Canada, Vol. I, para. 409.
See, generally, Final Submissions of the Attorney General of Canada, Vol. III, paras. 3-113.
Final Submissions of the Attorney General of Canada, Vol. III, para. 48.
Final Submissions of the Attorney General of Canada, Vol. III, paras. 62-64, 98, 110-111.
Final Submissions of the Attorney General of Canada, Vol. III, para. 91.
Final Submissions of the Attorney General of Canada, Vol. III, para. 96.
Final Submissions of the Attorney General of Canada, Vol. III, para. 106.
Final Submissions of the Attorney General of Canada, Vol. III, para. 113.
Final Submissions of the Attorney General of Canada, Vol. III, paras. 52-53.
�Chapter V: The Overall Government Response to the Air India Bombing
whether information is to be shielded from disclosure on grounds of national
security, the Attorney General of Canada strongly argues that any change to
allow the trial judge to resolve those issues is neither necessary nor desirable
and that the bifurcated process is in fact beneficial. Among the arguments
invoked against the possible change, the AGC maintains that the section 38
procedure is not directly linked to the criminal trial, that the delays currently
encountered would remain, and that the Federal Court has both the expertise
and the facilities to deal with the issues, whereas the Superior Courts of Justice
that deal with serious criminal trials (and which the AGC insists on referring to,
perhaps pejoratively, as “provincial courts”) could lack experience and would
risk making inconsistent rulings. The AGC adds that “…the storage, handling,
transportation and viewing of sensitive information in provincial facilities could
be problematic.”516
Though the AGC does outline the challenges associated with disclosure
requirements in criminal trials, its Final Submissions suggest that legislative
reform may not solve the issues or eliminate the practical burdens associated
with the disclosure obligation, and that, in any event, codifying disclosure law
could have unintended negative consequences such as introducing uncertainty,
creating an impact on the provincial administration of justice, producing
financial implications and affecting the rights of self-represented accused
persons.517 Similarly, the AGC argues that common law privileges (such as the
state security privilege) should not be codified and “…should be permitted to
evolve on a case-by-case basis.”518
The AGC’s position on the need for legislative change (or lack thereof ) not
only reflects on the apparent difficulty in speaking with one voice on behalf of
agencies with different goals and mandates, but also appears at odds with the
position of the Government that called this Inquiry in the first place and asked
it to make recommendations about the difficult policy issues listed in the Terms
of Reference.519
Past Response versus Present Position
In the end, not only did government agencies not admit any mistakes in the
past handling of the Air India case, but they were also loathe to admit or discuss
any flaws in the current system that might require improvements.
The individuals who appeared before the Commission to discuss the current
level of cooperation between CSIS and the RCMP, and the recent protocols
and mechanisms implemented, appeared understandably and sincerely
enthusiastic about the prospects for success of the processes they had
contributed to and were now relying on. McDonell and Portelance both clearly
are sincere in their belief that the “deconfliction” (JMT) process they created, and
516
517
518
519
Final Submissions of the Attorney General of Canada, Vol. III, paras. 85-99, 105.
Final Submissions of the Attorney General of Canada, Vol. III, paras. 34-37, 78, 80-84.
Final Submissions of the Attorney General of Canada, Vol. III, paras. 100, 103.
See Volume One of this Report: Chapter II, The Inquiry Process.
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later formalized through the latest RCMP/CSIS MOU, has resolved most of the
cooperation problems experienced in the past. The individuals who are tasked
with implementing the new process at the INSETs and in the CSIS regions also
obviously have confidence in the system in which they participate and have
clearly made sincere efforts to create a cooperative climate. The optimism and
dedication of the individuals involved at both agencies is commendable, and
the fact that those involved believe in their endeavours has surely contributed
to the improvements in the relationship that the new protocols appear to have
brought about.
However, it should also be noted that the Commission was limited as to the
nature and extent of the evidence it could hear about the current situation as
demonstrated by current cases, given the national security implications and
the Commission’s commitment to ensure that the Inquiry evidence be heard in
public. Under the circumstances, it was not possible for Commission counsel
to test the evidence of the CSIS and RCMP members who testified about the
current relationship, since no specifics could be obtained. In this context and
in light of the evidence indicating that problems still remained as of the end
of 2006, several years after some aspects of the current regime including the
INSETs and the secondment program had been implemented, and a full year
after the “deconfliction” (JMT) process began, there is not a sufficient experience
basis upon which to found a conclusion that the cooperation issues observed
throughout the Air India narrative are now entirely a thing of the past. It would
be naïve to believe that something happened between the end of 2006 and the
end of 2007 – when the testimony about the current relationship was heard in
this Inquiry – which caused so dramatic a change in the status quo as to resolve
entirely all of the lingering cooperation issues. The most recent protocols
designed to improve cooperation were already in place by late 2005 and did
not have so radical an effect as of 2006.
The general message that the witnesses involved in making the CSIS/RCMP
relationship work sent was that problems in the relationship are now a thing
of the past and that cooperation is now close and harmonious. If that is indeed
the case, it is a welcome development. On the other hand, a review of the Air
India investigation and of the response of the Government and its agencies
to previous reviews, or attempted reviews, of the actual workings of the CSIS/
RCMP relationship reveals numerous premature declarations that the problems
in the relationship had been resolved and now lay strictly in the past: “that was
then; this is now.” Zaccardelli commented on this message:
MR. FREIMAN: So to the extent that we now hear the
proposition, “That was then, this is now; the problems were in
the past. We’ve looked at them. Now we’re on an even keel and
moving well into the future,” is that an accurate representation
of CSIS/RCMP relationships currently?
MR. ZACCARDELLI: No.
�Chapter V: The Overall Government Response to the Air India Bombing
That’s a dangerous categorization of the relationship, because
– it ignores the underlying problems.
…
I know I’ve repeated myself a thousand times here, but solving
the personnel problems does not solve the fundamental
problem, the legislation and policy issues that have to be
addressed.520
The prior consistent response of the Government and its agencies to external
reviews must be a factor in this Commission’s evaluation of the latest assurances
that all cooperation problems have been resolved, and leads the Commission
to view the current unified message of the government agencies in this Inquiry
with a healthy dose of skepticism. Despite previous declarations that problems
were all in the past, the issues continued to surface.
Rather than accede to the AGC’s suggestion that the status quo has adequately
resolved all issues and that no reforms need be contemplated, this Commission
has devoted most of Volume Three of this Report to an analysis of the legal
and policy issues that underlie the relationship between CSIS and the RCMP.
Where appropriate, the Commission has indicated the aspects of the current
situation that remain problematic or dysfunctional, and has proposed a number
of concrete and pragmatic recommendations for change in the law or in the
current practices and procedures.
5.8 Conclusion: Learning from Past Mistakes
Throughout the years following the bombing, a number of themes have
remained constant in the Government’s response to the Air India tragedy.
In addition to a defensiveness and resistance to review on the part of the
Government and its agencies, there have often been attempts to present a
unified position, or to “speak with one voice,” leading at times to a downplaying
of interagency conflicts, and to attempts to convey the message that any
problems, particularly with respect to CSIS/RCMP cooperation, were in the
past.
The past response to the issues arising from the Air India bombing in fact
suggests caution in accepting the “that was then, this is now” message that
the Government so often tried to convey, and instead raises serious questions
about the ability of the Government and its agencies to reflect on past mistakes
and to make necessary changes.
From the outset, the Government and its agencies invested a great deal of time
and many resources into justifying their actions and denying any mistakes or
deficiencies. The real problems illustrated in both the pre-bombing and the
520 Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11089.
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post-bombing periods could hardly be addressed when, as a consequence of
the legalistic focus taken on defending the Government’s position, they were
not even being recognized, let alone admitted.
Even when agencies made attempts to reflect on the past, the defensive positions
had often become so ingrained that deficiencies could not be recognized.
Hence, when a member of the RCMP HQ Air India Task Force prepared a “lessons
learned” document one year after the bombing, few RCMP deficiencies were
discussed or identified.521 The document contained some mention of the need
to increase RCMP analytical capabilities and of the need for greater centralization
in national security investigations, but continued to maintain that, prior to the
bombing, the RCMP had “no indications” that Air India could be a target and “…
no intelligence of a direct threat to Air India or Indian missions and officials.”522
One year after the bombing, the wealth of pre-bombing threat information
in the RCMP’s possession which clearly indicated threats to both Air India and
Indian officials – including the June 1st Telex about the threat of sabotage with
time-delayed devices in checked luggage – had not been researched as part of
the investigation, and the Force continued to believe that it had not received
significant information.523 The Force continued to blame CSIS for the lack of
warning when, in fact, it was the RCMP that failed to provide CSIS with one of
the most important pieces of information, namely the June 1st Telex.524 The
“lessons learned” document boldly asserted that CSIS had “…failed, for one
reason or another, to supply the RCMP with the necessary intelligence” prior to
the bombing.525
Even when the bombing should have made it clear to all that the threat was real,
RCMP and Transport Canada officials continued to view the threat warnings
provided to these agencies by Air India as a means to obtain additional security
for free,526 and classified the June 1st Telex as an example of such a “floater,” or
piece of information provided “…every time in hopes that security would be
increased.”527
The RCMP “lessons learned” document also blamed the lack of CSIS information
for the fact that the RCMP did not begin to pursue targets such as Parmar and
Reyat earlier in the post-bombing investigation.528 In fact, the pre-bombing
threat information – including the Duncan Blast information that had been
provided by CSIS – contained numerous references to Parmar and to the level
of threat he posed, as well as an indication of Reyat’s connection to Parmar.
521 Exhibit P-101 CAF0055; Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2706-2707.
522 Exhibit P-101 CAF0055, pp. 3, 7-8.
523 For a discussion of the information which was in one form or another in the RCMP’s possession prior
to the bombing, see Section 1.2 (Pre-bombing), June 1st Telex; Section 1.12 (Pre-bombing), A
“Crescendo” of Threats; and Section 3.4 (Pre-bombing), Deficiencies in RCMP Threat Assessment
Structure and Process. See also Section 2.0 (Post-bombing), Set-up and Structure of the Federal Task
Force, for a discussion of what was done with that information during the post-bombing investigation.
524 See Section 1.2 (Pre-bombing), June 1st Telex.
525 Exhibit P-101 CAF0055, p. 7.
526 Exhibit P-101 CAC0517, p. 2.
527 Testimony of Warren Sweeney, vol. 26, May 9, 2007, pp. 2736-2737, 2745.
528 Exhibit P-101 CAF0055, p. 7.
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In addition, the reports CSIS provided to the RCMP LO in the early days of the
investigation provided a clear indication of CSIS’s interest in Parmar and of the
suspicious nature of some of his conversations prior to the bombing. It is true
that issues arose with respect to the RCMP’s access to intercept logs and to use
of CSIS information for judicial authorizations and court proceedings, but the
actual information about the targets that CSIS viewed as being of interest was
available early on.529 It was also CSIS who reminded the RCMP about the Duncan
Blast incident days after the bombing, and suggested the searches of the area
that eventually yielded some of the evidence that the RCMP made reference
to in its subsequent wiretap authorization and search warrant applications.530
Nevertheless, a year after the bombing, it seems that the only lesson the RCMP
had learned was that CSIS was to blame for the failure to obtain necessary
information to prevent the bombing and for all problems encountered in the
early post-bombing investigation.
As has been observed, the Government and its agencies were often too busy
defending themselves against any possible blame or potential liability to be able
to perform a true self-examination and to recognize the mistakes or deficiencies
that needed to be addressed. Nevertheless, when they were asked to provide
answers and explanations, government agencies consistently claimed that all
problems had already been addressed. In fact, it seems that changes were
often made only when the agencies felt that they had no choice, and not as a
result of any decision to look back on what went wrong in the past and to make
improvements. Hence, in preparation for the Rae review, CSIS was willing to
make some changes in the process of “modernization” of the relationship, rather
than having an external body impose its own version of those changes. Many
of the initiatives put in place in 2005 as part of the modernization process were
meant to resolve issues that had been present for over 20 years and which were
simply left unaddressed until there was a perceived risk that change would be
imposed on the agencies.
This tendency to make changes, years after the necessity to do so should have
become apparent, can be observed in many areas. For example, the problem of
the lack of central control and coordination for national security investigations
at the RCMP had been recognized in the 1986 “lessons learned” document about
the Air India investigation.531 Yet, it was only in May 2007 that the RCMP took
concrete steps to establish a new governance framework which provided for
central control of national security investigations – and then only largely as a result
of the recommendations in the Arar Report.532 In testimony before the Inquiry,
RCMP Commissioner Elliott commented on the lessons learned from Air India,
noting that “…the Air India experiences have contributed to the recognition that
there are some special things about national security investigations that require
expertise; that require coordination; that require central management….”533 It
529
530
531
532
See Section 4.1 (Post-bombing), Information Sharing and Cooperation in the Air India Investigation.
See Section 1.4 (Pre-bombing), Duncan Blast.
Exhibit P-101 CAF0055, p. 8.
See Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12623-12624; Exhibit P-219;
Testimony of Rick Reynolds, vol. 52, September 25, 2007, pp. 6481-6482; Final Submissions of the
Attorney General of Canada, Vol. I, paras. 413-415.
533 Testimony of William Elliott, vol. 90, December 6, 2007, pp. 11830-11831.
643
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Volume Two: Part 2: Post-Bombing Investigation and Response
is not clear just when that recognition came into being, but it is worth noting
that the concrete steps to implement real changes to address these issues did
not come until over 20 years had passed from the date of the bombing, and not
before an independent Inquiry had recommended them.
Similarly, the impact of the RCMP promotion system on the ability to retain
personnel in national security investigations has long been a known and
problematic issue at the RCMP. It was recognized as an obstacle to retaining
personnel on the Air India investigation, and the issues caused by the lack of
continuity of personnel on the RCMP side were often the subject of comment
by CSIS members who had to deal with the RCMP.534 Nevertheless, in December
2007, McDonell testified that the issue continued to persist at the RCMP in terms
of creating a career stream in national security investigations. At the time, he
had just submitted a proposal to have Human Resources centralized in national
security matters. The proposal was rejected.535
Nor were lessons more easily learned at CSIS. It was long known that there was
often significant delay involved in obtaining authorizations to intercept private
communications. The Parmar warrant had taken over six months before all
the internal steps were completed and the application was sent to the Federal
Court, where it was granted. This delay had caused significant frustration for
the BC Region investigators, and may have resulted in the loss of important
information for the investigation.536 Former CSIS investigator Neil Eshleman
testified about the CSIS procedures and their impact on the investigations:
…the RCMP can obtain wiretap warrants very quickly; we’re
talking very quickly, within hours, on certain situations, and be
it kidnapping or whatever. I mean, that’s the circumstances I’m
sort of reflecting on at the moment.
CSIS, on the other hand, even on a very urgent basis, there is
the odd exception in the last 25 years that I’ve – I suppose I
could – I’m somewhat aware of perhaps. But CSIS, as a matter
of routine, has created a bureaucratic structure that safeguards
people in the organization from risk, but it certainly doesn’t
enhance the operational value of the organization. And, you
know, I’ve discussed this with others. We discussed it at the
time I was involved with CSIS, and there were many occasions
we just shook our heads in frustration as to why it would take
so long to obtain intercept warrants, and so much was lost in
those timeframes. And yet, the service couldn’t come to grips
with changing that application system. I don’t think they’ve
changed it much since I left, and that’s a long time ago.537
534
535
536
537
See Section 2.2 (Post-bombing), The RCMP Investigation: Red Tape and Yellow Tape.
Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12648-12649.
See Section 1.3 (Pre-bombing), Parmar Warrant.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, pp. 9396-9397.
�Chapter V: The Overall Government Response to the Air India Bombing
It was not until recently that this issue was actually addressed by CSIS. In
testimony before this Inquiry in December 2007, Judd announced that the CSIS
warrant process had been “…completely reengineered last year, in part, to deal
with the issue of timeliness.” As a result, Judd could finally say that “…we do not
operate any longer in the world of four to six months warrant preparations.”538
Similarly, one of the central issues that arose in the Air India investigation – the
destruction of operational notes relating to interviews during which information
relevant to the criminal investigation was obtained – was left unaddressed by
CSIS for years. The policy on the preservation of officer notes continued to be
inconsistently applied, and notes made during interviews with an eventual key
Air India witness in the late 1990s were no more preserved than the notes and
recordings made by the CSIS investigator who had interviewed another key
witness in 1987.539 The 1987 destruction led to a finding in the Mailk and Bagri
trial in 2004 that the accused’s Charter rights were violated.540 Even before this
finding, CSIS was long aware that the RCMP and the Crown had raised serious
concerns about its erasure of the Parmar intercept tapes and its possible impact
on the prosecution.541 Yet, no steps were taken to ensure that operational notes
that could be relevant to the Air India criminal investigation were preserved.
It was only after the Supreme Court of Canada ruled in June 2008 that the
routine destruction of interview notes relating to a Security Certificate issued
under the Immigration Act violated the Charter and that it was not required
under the CSIS Act, that CSIS finally took steps to revise its policies and to ensure
that operational notes would be preserved.542
The improvements made by the agencies in recent years, including the new
protocols for greater RCMP/CSIS cooperation, are of course commendable.
However, because of the time it took for the agencies to get there and, at times,
the motivation behind the reforms, the changes cannot be taken for granted.
Nor are they to be seen as a clear demonstration that government agencies
have overcome their previous difficulty in performing a true self-examination
and in modifying their practices accordingly. The history of the Government
response to the issues arising from the Air India bombing – and the response to
the present Inquiry – appear to suggest the contrary.
538
539
540
541
Testimony of Jim Judd, vol. 90, December 6, 2007, pp. 11862-11863.
See Section 4.3.2 (Post-bombing), Destruction of Operational Notes.
See Section 1.3 (Post-bombing), Ms. E.
See Section 4.3.1 (Post-bombing), Tape Erasure and Section 4.4.1 (Post-bombing), The Reyat Trial and
the BC Crown Prosecutor Perspective.
542 See Section 4.3.2 (Post-bombing), Destruction of Operational Notes.
645
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Volume Two: Part 2: Post-Bombing Investigation and Response
�
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PDF Text
Text
Air India Flight 182
A Canadian Tragedy
VOLUME THREE
The Relationship Between Intelligence
and Evidence and the Challenges of
Terrorism Prosecutions
�©Her Majesty the Queen in Right of Canada, represented by the
Minister of Public Works and Government Services, 2010
Cat. No: CP32-89/2-2010E
ISBN: 978-0-660-19926-9
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
K1A 0S5
Telephone: (613) 941-5995 or 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Publications@pwgsc.gc.ca
Internet: www.publications.gc.ca
�VOLUME THREE
THE RELATIONSHIP BETWEEN
INTELLIGENCE AND EVIDENCE
AND THE CHALLENGES OF TERRORISM PROSECUTIONS
TABLE OF CONTENTS
CHAPTER I: INTRODUCTION
11
1.0 Tension between Secrecy and Openness
1.1 Resolving the Tension
12
13
CHAPTER II: COORDINATING THE INTELLIGENCE/EVIDENCE
RELATIONSHIP
17
2.0 Introduction
2.1 The Need to Revise the Approach to Preventing Terrorism
2.2 The Critical Role of CSIS in Providing Intelligence to Government
about Security Threats
2.2.1 Inherent Tensions between CSIS and the RCMP
2.2.2 Joint Management Team Meetings
2.3 The Current Role of the National Security Advisor
2.3.1 Competing Views on the Adequacy of the Coordination
Powers of the National Security Advisor
2.3.2 The Legitimate Role of the Prime Minister and the Privy
Council Office in Coordinating National Security
Activities
2.3.3 Expanding the Role of the National Security Advisor
2.3.3.1 Establishing Strategic National Security Policies
and Priorities
2.3.3.2 Coordination of National Security Activities,
Including Distribution of Intelligence
2.3.3.3 The Need for a Privilege to Protect the NSA’s
Deliberations and Information Received by
the NSA
2.3.3.4 The Relationship between the NSA and CSIS
2.3.3.5 The Relationship between the NSA and Law
Enforcement Agencies
2.3.3.6 Resolving Disputes between the Agencies,
Including Disputes Arising from the
Intelligence/Evidence Relationship
17
19
21
22
23
26
28
32
34
35
37
38
40
40
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�Volume Three: The Relationship Between Intelligence and Evidence
2.3.3.7
Oversight of the Effectiveness of
National Security Activities
2.3.3.8 Staffing the National Security Advisor’s Office
2.3.3.9 Limits on the Role of the National Security
Advisor: No Direct Budgetary or Personnel
Control and Limited Operational
Involvement
2.3.3.10 International Best Practices on Central
Coordination of National Security Activities
2.3.3.11 Summary of the National Security Advisor’s
Enhanced Role
42
44
45
45
46
CHAPTER III: COORDINATING TERRORISM PROSECUTIONS
49
3.0 Introduction
3.1 Limits on Police Discretion in Terrorism Investigations
and Prosecutions
3.2 The Role of Prosecutorial Discretion in Terrorism Cases
3.3 The Role of the Federal Director of Public Prosecutions in
Terrorism Prosecutions
3.3.1 The Need for a Specialized Director of Terrorism
Prosecutions
3.3.2 The Role of Provincial and Territorial Attorneys
General in Terrorism Prosecutions
3.3.3 The Need for Provincial Authorities to Notify Federal
Authorities about Possible Terrorism
Prosecutions
49
50
54
57
58
62
63
CHAPTER IV: THE COLLECTION AND RETENTION OF
INTELLIGENCE: MODERNIZING THE CSIS ACT
65
4.0 Introduction
4.1 No Absolute Secrecy and No Wall between Intelligence and
Evidence
4.2 Section 12 of the CSIS Act, the Collection and Retention of
Intelligence and the Implications of Charkaoui v. Canada
4.2.1 The Destruction of Intelligence in the Air India
Investigation
4.2.2 Interpreting Section 12 of the CSIS Act
4.2.3 The Supreme Court of Canada’s Interpretation of
Section 12 of the CSIS Act in Charkaoui
4.2.4 The Need for New CSIS Policies on Retention of
Intelligence
4.2.5 Conditions for the Collection of Intelligence
4.3 Privacy Issues
65
66
69
69
72
73
75
77
79
�Volume Three: The Relationship Between Intelligence and Evidence
4.4 Section 19 of the CSIS Act and the Distribution of Intelligence
81
4.4.1 CSIS Discretion under Section 19(2)(a) Not to Share
Relevant Information with the Police
82
4.4.2 Rationales for CSIS Discretion Not to Give the Police
Relevant Information
83
4.4.3 Submissions on CSIS Discretion to Share Information
with the Police
85
4.4.4 The Commission’s Proposed Approach to Information
Sharing
86
4.4.5 The Role of the National Security Advisor in Sharing
CSIS Information
89
4.5 Culture Change within CSIS: Beyond “We Don’t Collect Evidence” 91
4.6 Culture Change in the RCMP: Beyond “The Less Information
We Receive from CSIS, the Better”
97
4.7 Using CSIS Information in a Criminal Trial: Section 21 of the
CSIS Act
99
4.7.1 The Important and Expanded Role of Criminal Code
Electronic Surveillance in Terrorism Investigations 101
4.7.2 Electronic Surveillance Outside Canada
103
4.7.3 Reconciling Secrecy and Disclosure in Allowing Warrants
to Be Challenged: The Current Editing Solution
104
4.7.4 The Use of Special Advocates in Proceedings to
Challenge CSIS Act and Criminal Code Warrants
105
CHAPTER V: THE DISCLOSURE AND PRODUCTION OF
INTELLIGENCE
109
5.0
5.1
5.2
5.3
5.4
109
109
114
115
116
117
117
119
122
124
5.5
5.6
5.7
5.8
Introduction
Disclosure of Information
Retention of Information
The “Relevance” Requirement
Applying Stinchcombe to Intelligence
5.4.1 The Role of Stinchcombe in the Air India Prosecutions
5.4.2 The Effect of Stinchcombe on CSIS/RCMP Cooperation
Potential Changes to the Approach to Disclosure
The Need for Guidelines on the Proper Extent of Disclosure
Production of Intelligence under R. v. O’Connor
5.7.1 Legislating Requests for Production of Intelligence
under O’Connor
Anticipating Disclosure
CHAPTER VI: THE ROLE OF PRIVILEGES IN PREVENTING
THEDISCLOSURE OF INTELLIGENCE
6.0 Introduction
6.1 The Role of Police Informer Privilege in Terrorism Investigations
and Prosecutions
125
126
127
127
128
�Volume Three: The Relationship Between Intelligence and Evidence
6.1.1
Loss of Informer Privilege When the Informer Is or
Becomes an Agent or Material Witness
6.2 Informer Privilege and the Transfer of Sources from CSIS to
the RCMP
6.3 Should CSIS Informers Be Protected by Informer Privilege
6.4 Are New National Security Privileges Necessary
6.4.1 Cabinet Confidences
6.4.2 A New National Security Privilege for Deliberations
of the National Security Advisor
CHAPTER VII: JUDICIAL PROCEDURES TO OBTAIN
NON-DISCLOSURE ORDERS IN INDIVIDUAL CASES
131
133
135
140
141
142
145
7.0 Introduction
145
7.1 Section 37 of the Canada Evidence Act
147
7.2 Section 38 of the Canada Evidence Act
149
7.2.1 The Importance of Section 38 Proceedings in
Terrorism Investigations and Prosecutions
151
7.2.2 Avoiding Section 38 Proceedings in the Air India
Prosecutions
152
7.2.3 Other Experiences with Section 38 of the Canada
Evidence Act
153
7.2.4 Procedures Equivalent to Section 38 in Other
Countries
156
7.2.5 Submissions to the Commission about the Two-Court
System under Section 38
158
7.3 Is the Two-Court Approach Sustainable
160
7.4 Which Court is Best Suited to Conduct Terrorism Trials and Decide
Issues of National Security Confidentiality
163
7.5 Appeals before the Completion of Terrorism Trials
165
7.6 Possible Use of Special Advocates in Section 38 Proceedings
167
7.7 The Problems Created by Overstating the Need for Secrecy
170
7.7.1 Towards a More Disciplined and Harm-based
Approach to Claims of Secrecy
172
7.8 Evolving National Security Confidentiality Jurisprudence
174
7.9 The Ultimate Responsibility of the Attorney General of Canada with
Respect to Disclosure of Intelligence
177
CHAPTER VIII: MANAGING THE CONSEQUENCES OF DISCLOSURE:
WITNESS AND SOURCE PROTECTION
179
8.0
8.1
8.2
8.3
Introduction
Terminology
Why Witness Protection
Witness Intimidation and its Impact on Terrorism
Investigations and Prosecutions
8.3.1 The Context of Terrorism
179
180
181
184
184
�Volume Three: The Relationship Between Intelligence and Evidence
8.3.2
Exploiting the Particular Vulnerabilities of Some
Communities – “Community-wide” Intimidation
184
8.3.3 How Distrust and Distance Limit the Ability of
Authorities to Provide Protection
188
8.3.4 Examples of Individual and Community-wide
Intimidation in the Air India Context
189
8.3.5 Intimidation of Members of the Sikh Community for
Speaking Out”
191
8.3.6 Reducing Intimidation and Promoting Trust
194
8.3.7 Witness Protection during the Air India Investigation 195
8.3.8 Conclusion
197
8.4 Protecting Identity to Avoid the Need for Witness Protection
198
8.4.1 The Role of Prosecutorial Discretion
199
8.4.2 Editing Affidavits Prepared in Support of Applications
Warrants
200
8.4.3 Relying on Police Informer Privilege
200
8.4.4 Disclosure: Non-relevance and Timing
203
8.4.5 Sections 37 and 38 of the Canada Evidence Act
203
8.4.6 “Partial Anonymity”
204
8.4.7 Conclusion
206
8.5 Anonymous Testimony
207
8.5.1 The British Experience with Anonymous Testimony
210
8.5.2 Anonymous Testimony and the Adversarial System
213
8.5.3 Anonymous Testimony and the Charter
214
8.5.3.1 No Right to Physical Confrontation of a Witness
but a Right to Have an Opportunity to Engage
in Cross-Examination
215
8.5.3.2 Anonymous Testimony and the Right
of Cross-Examination
215
8.5.3.3 Section 7 of the Charter and Anonymous
Witnesses
217
8.5.3.4 Section 1 of the Charter
217
8.5.4 Conclusion
220
8.6 Witness Protection Programs
221
8.6.1 Responsibility for Protecting Witnesses
222
8.6.2 The Federal Witness Protection Program
222
8.6.3 Hardships Related to Living in the WPP
224
8.6.4 Additional Challenges of Living in the WPP in
Terrorism Matters
227
8.6.4.1 Minority Communities
227
8.6.4.2 Lack of WPP Benefits beyond Protection
228
8.6.5 Alternative Measures to Protect Witnesses
229
8.6.6 Organizational Problems in the WPP
231
8.6.6.1 The Need to Consider the Interests of
All Parties in Terrorism Prosecutions
231
8.6.6.2 Lack of Firewall between Investigative Units
and the WPP
232
8.6.6.3 Inadequate Conflict Resolution Mechanisms
233
�Volume Three: The Relationship Between Intelligence and Evidence
8.6.6.4
The Need to Restructure the WPP in Terrorism
Matters
8.6.7 A New Body to Manage Witness Protection: A
National Security Witness Protection Coordinator
8.6.7.1 Judicial Review of the National Security Witness
Protection Coordinator’s Decisions
8.6.7.2 The Decision to Admit or Refuse Entry to
Witness Protection
8.6.7.3 Dispute Resolution
8.6.8 Other Issues Relating to Witness Protection in
Terrorism Cases
8.6.8.1 International Agreements
8.6.8.2 Independent Legal Advice for Protectees
8.6.8.3 Psychological Evaluations
8.6.8.4 Witnesses who are Minors
8.6.8.5 Collaborators who are Inmates
8.6.8.6 Investigative Hearings
8.7 Conclusion
234
235
241
241
242
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245
246
247
248
249
251
254
CHAPTER IX: MANAGING THE CONSEQUENCES OF DISCLOSURE:
THE AIR INDIA TRIAL AND THE MANAGEMENT OF OTHER COMPLEX
257
TERRORISM PROSECUTIONS
9.0 Introduction
9.1 The Challenges of Terrorism Prosecutions
9.2 The Air India Criminal Trial
9.2.1 Project Management
9.2.2 The Disclosure Process
9.2.3 Services for Family Members of Flight 182 Victims
9.2.4 Trial Costs
9.2.5 Federal-Provincial Cost-sharing
9.3 Making Terrorism Trials Workable
9.3.1 Project Management
9.3.2 Cost-sharing
9.3.3 The Trial Judge
9.3.4 Defence and Crown Counsel
9.3.4.1 Funding
9.3.4.2 Conduct of Counsel
9.3.5 Accountability of the Legal Profession for Trial Delays
9.3.5.1 Lawyers
9.3.5.2 Judges
9.3.6 Pre-trial Motions
9.3.7 Pre-trial Conferences
9.3.8 Reducing Delays and Re-litigation Caused by
Severance Orders and Mistrials
9.4 Disclosure
9.4.1 Electronic Disclosure
9.4.2 Staged Disclosure
257
262
265
269
270
273
276
278
279
281
281
281
283
283
287
289
289
290
297
301
303
307
308
310
�Volume Three: The Relationship Between Intelligence and Evidence
9.4.3
Disclosure Issues Relating to Section 38 of the
Canada Evidence Act
9.4.4 Late and Continuing Disclosure
9.5 Issues at Trial
9.5.1 Inability of the Trial Judge to Continue
9.5.2 The Jury
9.5.2.1 Avoiding Mistrials Caused by Discharge of Jurors
9.5.3 Three-judge Panels
9.5.4 Mandatory Jury Trials
9.5.5 Addressing the Needs of Victims
9.6 Conclusion
312
313
314
314
316
320
323
329
331
331
CHAPTER X: RECOMMENDATIONS
333
�Volume Three: The Relationship Between Intelligence and Evidence
�VOLUME THREE
THE RELATIONSHIP BETWEEN INTELLIGENCE
AND EVIDENCE AND THE CHALLENGES OF
TERRORISM PROSECUTIONS
CHAPTER I: INTRODUCTION
The success of counterterrorism efforts depends on the ability of the government
to recognize terrorist threats at an early stage and to respond rapidly with
appropriate measures. Secret intelligence can help the government to recognize
those threats. Typically, an intelligence agency, Canadian or foreign, and not the
police, will acquire such intelligence first.
Deciding when and how to respond to a terrorist threat is among the most
important decisions of any government. Making the right decision requires an
understanding of available responses and an assessment of the suitability of
each to combat the threat.
The appropriate response by government must begin with an understanding
that each terrorist threat is unique and that government actions must be
tailored to reflect this. There is no presumptively “best” response. To deal with
one terrorist threat, it may be appropriate to engage the police; to deal with
another, it may be best to rely on actions by immigration authorities or to pass
information to foreign agencies to help them deal with the threat from abroad.
Sophisticated, flexible decision making is needed.
Canadian efforts against terrorism involve many disparate entities, including
the Canadian Security Intelligence Service (CSIS), the Royal Canadian Mounted
Police (RCMP), the Department of Foreign Affairs and International Trade (DFAIT),
the Canada Border Services Agency (CBSA) and the Communications Security
Establishment (CSE). Each agency1 has its own mandate and rules governing
how it carries out that mandate. CSIS has a mandate to collect intelligence to
inform the government about threats to the security of Canada.2 The RCMP has
primary responsibility for preventing and investigating crimes that constitute a
threat to the security of Canada.3
This volume evaluates how effectively the government uses the resources that
are available to it to deal with the terrorist threat. It also addresses how best
1
2
3
The term “agency” here refers both to departments and to agencies.
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23.
Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10; Security Offences Act, R.S.C. 1985, c. S-7, s. 6.
�12
Volume Three: The Relationship Between Intelligence and Evidence
to manage the flow of information between government agencies in terrorism
matters – most often, the flow of information between CSIS and the RCMP.
1.0 Tension between Secrecy and Openness
Police investigations and criminal prosecutions remain a central feature of
Canada’s response to terrorism. However, involving law enforcement agencies
introduces potential difficulties. Chief among them are legal restrictions that
prevent the police and the justice system from using intelligence from agencies
such as CSIS while maintaining the secrecy of that intelligence. Any proposed use
of intelligence as evidence in a criminal investigation or trial – the “intelligenceas-evidence” phenomenon – encounters tension between the need for secrecy
within the intelligence community and the need for openness in the criminal
investigative and trial processes. This tension reveals the differences between
how the police and intelligence communities do their work.
Security intelligence agencies have a statutory mandate to inform the
government about security threats. They often rely on secrecy to protect
human sources, ongoing investigations and the confidentiality of intelligence
that foreign agencies have shared. The further disclosure of intelligence can
compromise a security agency’s effectiveness. This need for secrecy results in
a desire by intelligence agencies such as CSIS to minimize the disclosure of
intelligence to the RCMP for criminal investigations.
In contrast, police forces generally collect information about crimes in the
expectation that the information will be disclosed to the accused and relied
upon in public trials. Police forces therefore seek out witnesses who have no
concern about testifying or about supplying information that can be introduced
in public trials. It is of little use to the police to use secret information in criminal
investigations if that information cannot be used in court.
This tension between secrecy and openness is particularly pronounced in
counterterrorism matters because of the overlapping mandates of the RCMP
and CSIS. CSIS and the RCMP are each legitimately involved in investigating the
same activities. Terrorism is both a threat to Canada’s security and a crime. As a
threat to national security, terrorism falls squarely within the core mandate of
CSIS. As a crime, terrorism falls squarely within the RCMP mandate to investigate
and prosecute crime. The overlap increased with the enactment of the Antiterrorism Act4 in 2001. Terrorism offences now include the planning of, and
the provision of assistance for, terrorist acts, whether or not the acts occur. As
a result, the RCMP is now involved in investigating an increasing number of
terrorism matters that, before the Anti-terrorism Act, were largely addressed by
CSIS without police involvement.
4
S.C. 2001, c. 41.
�Chapter I: Introduction
1.1 Resolving the Tension
This volume proposes how to resolve the tensions that arise when CSIS and
the RCMP occupy the same territory. At present, there is no effective and
independent decision maker, charged with ensuring that responses to terrorism
issues serve the broad public interest and not merely the sometimes narrower
interests of individual agencies.
As one solution, the Commission recommends that the office of the National
Security Advisor (NSA) be given an expanded role, before any police involvement,
in managing terrorist threats. In part, this role would see the NSA deciding
whether it is possible to respond to a given threat without involving criminal
investigations and prosecutions that might lead to the public disclosure of secret
information. In other cases, if CSIS hesitates, or is unwilling, to pass information
to the RCMP, the NSA should have the power to require CSIS to provide
the information. In these and other situations, the NSA will act in the public
interest, transcending institutional self-interest. It is impossible to resolve these
enduring tensions completely. Nevertheless, the manner in which decisions are
made about the appropriate balance between secrecy and openness can be
improved.
Criminal prosecutions are not the only way to respond to terrorism, but they
have distinctive abilities to incapacitate, punish and denounce the guilty. At
the same time, these prosecutions face challenges. These challenges are the
product of the need to decide what intelligence can remain secret and what
must be used or disclosed in a criminal trial. Other concerns relate to managing
the quantity of disclosure and multiple pre-trial motions, the sustainability of
juries in long trials and the need to protect witnesses from intimidation.
The terms of reference require the Commission to make findings and
recommendations about “…establishing a reliable and workable relationship
between security intelligence and evidence that can be used in a criminal
trial.”5 The focus of this aspect of the Commission’s work has been on building
appropriate decision-making processes, from the initial collection of intelligence
through to its distribution within government and its possible use in legal
proceedings.
There is an absolute need for an efficient, fair process in a criminal proceeding
to adjudicate claims by government that intelligence should be kept secret6
and, if so, whether that intelligence is subject to disclosure to ensure that the
accused receives a fair trial. The Commission recommends in this volume that
the judge presiding over the criminal trial be permitted to adjudicate any claim
made by the government to prevent intelligence from being disclosed publicly.
This would replace the present system, which involves proceedings before two
5
6
Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Terms of
Reference, P.C. 2006-293, para. b(iii) [Terms of Reference].
This involves litigation under s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5.
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Volume Three: The Relationship Between Intelligence and Evidence
different judges in two separate court systems, with each judge in possession
of only part of the information necessary to make the decision. All this now
occurs without representation for the accused and without the accused being
informed of the content of the secret information. Under the system proposed
by the Commission, the trial judge would make decisions about privilege and
about its impact on the fairness of the proceedings, and would have access to
all information relevant to making those decisions.
To ensure fairness in the criminal process, accused persons should be
represented at the hearing that determines whether the information should be
kept secret. At present, only government lawyers are present at such hearings.
In this volume, the Commission recommends that special advocates be allowed
to represent the interests of the accused, and that a process be used similar to
that for immigration proceedings involving security certificates.
This volume also addresses other challenges of terrorism prosecutions, most
notably the difficulties posed for the state by the obligation to disclose to the
accused what may be huge volumes of material, and the trial delays stemming
from multiple pre-trial motions. The volume discusses how judges can manage
the pre-trial process more firmly to ensure that terrorism cases do not collapse
before a trial can be held on the merits. Better management of the pre-trial
process by judges will be increasingly important, since the amount of disclosure
in terrorism cases is likely to grow as domestic and foreign intelligence agencies
work more closely with the police, producing greater amounts of information
that will be subject to disclosure requirements.
Long trials are difficult for juries and raise the prospect of mistrials if too
many jurors have to be excused during the trial. This volume addresses
various suggestions for resolving the problems that arise with lengthy jury
trials, including empanelling additional jurors, reducing the number of jurors
required to reach a verdict, or using a panel of three judges, without a jury, to
hear terrorism cases.7
Reforms are needed in how criminal cases are prosecuted. It is wasteful and
inefficient to have separate agencies involved in discrete aspects of terrorism
prosecutions. At present, each agency is represented by counsel, and national
security privilege litigation is conducted by counsel other than the prosecutor.
Instead, one unit should be responsible for dealing with all aspects of a
terrorism prosecution, from managing the relationship between government
agencies to conducting national security privilege litigation. The role of this unit
should include providing legal support to law enforcement agencies as well
as ensuring that the secrecy of intelligence operations is maintained and that
rules governing the disclosure of information to the accused are followed. The
Commission calls for the appointment of a Director of Terrorism Prosecutions,
who would serve under the Attorney General of Canada and whose office would
be staffed by prosecutors with expertise in national security matters.
7
Terms of Reference, para. b(vi).
�Chapter I: Introduction
Converting intelligence into evidence involves the management of human
sources – specifically, dealing with how, and under what circumstances, they
may become witnesses in criminal prosecutions. A tension exists between the
need to provide confidentiality to sources and the fact that, if sources are used
in criminal prosecutions, their identities will become known through disclosure
to the defence and through giving evidence in public at trial. Difficulties in
transferring sources from CSIS to the RCMP were a constant problem in the
post-bombing Air India investigations, and adequately protecting witnesses
from intimidation was a serious concern during the Air India prosecution.
Witness protection programs were instituted to protect witnesses from harm
if their identities became known. At present, admission to such programs
is controlled by the RCMP. Decisions about extending witness protection
should not be made by an agency with an interest in ensuring that sources
agree to become witnesses. In this volume, the Commission recommends
that responsibility for decisions about allowing individuals to enter witness
protection programs should be transferred to a new agency.
This volume also addresses whether “police informer privilege” should be
extended to CSIS sources. The issue is not as straightforward as it might at first
seem. Extending this extremely robust privilege to CSIS sources would allow
CSIS unilaterally to offer a privilege that would prevent its sources from being
required, or even from being able to agree, to testify as witnesses. Just as it is
inappropriate to have the police make protection decisions that prejudge the
relative value of trial witnesses versus intelligence sources, it is inappropriate to
give CSIS the unilateral ability to disqualify persons from becoming witnesses
by extending the police informer privilege to them.
Still, CSIS sources should in some cases have their identities protected
against disclosure. The common law recognizes a privilege that protects the
confidentiality of information if it is in the public interest to foster the type of
relationship in which the confidential information was disclosed. This “Wigmore
privilege” has been interpreted to protect the identities of human sources,
especially when they rely on CSIS promises of anonymity. Unlike the “police
informer privilege,” however, reliance on the Wigmore privilege in a case may be
reviewed by the courts to ensure that reliance on the privilege serves the public
interest.
This volume shows how a just balance between secrecy and openness can
be achieved by using an impartial decision maker at critical stages, such as
when determining the appropriate response on learning of a terrorist threat
or when assessing the need for secrecy and for the protection of sources and
witnesses. The overriding theme is the need to establish clear responsibility and
accountability for decisions in national security matters. What must be avoided is
a diffusion of responsibilities, where each agency and each official acts properly
but where they fail collectively to achieve the ultimate goal: protecting the
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Volume Three: The Relationship Between Intelligence and Evidence
security of Canadians to the greatest extent possible. Promises by agencies to
cooperate with each other are only part of the answer. Better rules, supported
by legislation, are required. Even the best of intentions alone will not ensure an
appropriate transition from intelligence to evidence.
�VOLUME THREE
THE RELATIONSHIP BETWEEN
INTELLIGENCE AND EVIDENCE AND
THE CHALLENGES OF TERRORISM PROSECUTIONS
CHAPTER II: COORDINATING THE INTELLIGENCE/EVIDENCE
RELATIONSHIP
2.0 Introduction
Since 9/11 there has been an increased need to establish strategic policy and
priorities and to improve coordination between departments of government as
more of them take on national security responsibilities. There has been an even
greater need for decisive action to ensure coordination and proper sharing of
information within government about potential security threats and terrorism.
Yet as more government agencies become involved in national security matters,
there is an increased risk of bureaucratic fencing among them. Someone must be
in charge to ensure that the agencies are executing the government’s strategic
security plans. Someone must also be in charge to ensure that disputes among
agencies are resolved in the public interest. Someone must exercise meaningful
oversight and have the power and legitimacy to intervene if the agencies are not
cooperating or if the system is not effective. That person should be a guardian of
the public interest – an interest that transcends those of individual agencies.
This chapter examines means of coordinating the government’s response to
the threat of terrorism, with particular attention to problems presented by the
relationship between intelligence and evidence. Decisions on how and when to
respond to a particular threat to national security should be taken in the public
interest. In the Canadian context, the office of the National Security Advisor
(NSA) is best positioned to carry out that task. This chapter advances the case
for an enhanced role for the NSA.
The enhanced role for the NSA would give effect to the following policy
imperatives:
• Where CSIS has determined that it should pass information to the
RCMP, it should be free to do so without restraint and without the
involvement of the NSA. This maximizes the development of
expertise and enhances the improving relations between CSIS
and the RCMP in terrorism investigations. This relationship
should be encouraged to develop and mature;
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Volume Three: The Relationship Between Intelligence and Evidence
• It is in Canada’s national interest to protect some intelligence
from the risk of public exposure that may flow from engaging
the police. However, CSIS should not unilaterally decide
to withhold information from the RCMP. Such decisions
should be made by the NSA on behalf of the Prime Minister.
This supervisory role would ensure that the decision to withhold
information from the RCMP is made in the public interest;
• Some threats to national security can be managed effectively
by employing alternatives to engaging the RCMP. Where there are
good reasons not to engage the RCMP, those alternatives should be
considered by the NSA;
• It is not the role of the NSA to supervise agencies, but to resolve
disputes between those agencies.
During this Inquiry it became apparent that the obstacles to effective information
sharing between CSIS and the RCMP, and to the successful conversion of
intelligence into evidence, were symptomatic of a larger structural problem.
Many agencies deal with national security issues under their mandates. These
agencies are spread across various ministries and are not subject to an overriding
line of authority for those national security matters.
There is no single agency at present with responsibility for managing, executing
and controlling responses to terrorist threats. No one is in charge. Twenty-four
years after the terrorist attack on Flight 182, there remains a worrying lack of
integration and coordination among government agencies on national security
matters.
In the vast majority of cases involving terrorist threats, CSIS monopolizes most
aspects of the initial response. By gathering intelligence, CSIS assesses the
extent of the threat and also determines the extent to which other partners will
become involved in managing the threat. CSIS does this through its discretion
about whether to disclose information to the RCMP or to other government
agencies.1 This leaves CSIS with the de facto ability to determine the how and
the when of the government response to a threat. Dictating the government’s
response by controlling the flow of relevant information exceeds CSIS’s statutory
mandate. That mandate is to “report to and advise” the Government of Canada
about threats to the security of Canada. The Government of Canada, not CSIS, is
to decide the appropriate response.
CSIS should have sufficient tools to be able to learn of terrorist threats, even at
their earliest stages. This is a different function from that of law enforcement
1
This is the result of the information sharing mandate set out in s. 19 of the Canadian Security
Intelligence Service Act, R.S.C. 1985, c. C-23 [CSIS Act]. As discussed in Chapter IV, s.19(2)(a) gives CSIS
discretion whether to disclose intelligence to police and prosecutors. Section 19(2) also gives CSIS
discretion whether to disclose intelligence to ministers, such as the Minister of Foreign Affairs or the
Minister of National Defence.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
agencies and it should remain distinct.2 CSIS is, in effect, stationed on a
watchtower searching the horizon for early signs of danger. However, if CSIS
does not inform the Government about the security threats that it sees on the
horizon, no one in government except CSIS will know of them. CSIS will arrogate
to itself the power to decide the Government’s response to those threats. Yet it
is the Prime Minister who must have the power and the ultimate responsibility
to act for the Government of Canada in deciding how to respond to security
threats. In discharging this responsibility, the Prime Minister is assisted by the
NSA and by other non-partisan and expert public servants in the Privy Council
Office.
The role of the Prime Minister in matters of national security is fundamental. If
an act of terrorism occurs, the Prime Minister will have to answer to Parliament
and to the people of Canada. The ultimate responsibility of the Prime Minister
for national security is not a new and controversial theory of governance, nor a
new and controversial invention for intelligence coordination. It has long been
recognized and is a practical reality.3
2.1 The Need to Revise the Approach to Preventing Terrorism
There are some disadvantages to employing law enforcement as a tool to
prevent terrorism. Chief among them is the inflexibility of the criminal trial
process. Criminal investigations are time-consuming and expensive. So too
are criminal trials. They both can attract publicity that may not be in the public
interest. Moreover, there is a risk that the prosecutors will not be able to protect
the confidentiality of information they receive from CSIS. As well, an unsuccessful
prosecution can undermine confidence in a counterterrorism effort, even
though it may simply represent the inability of the prosecution to meet the high
standard of proof of guilt beyond a reasonable doubt. The decision to involve
law enforcement must take into account these risks and any alternatives to a
prosecution.
The RCMP is not always the only, or the best, agency to respond to a terrorist
threat. For example, when dealing with non-citizens, the security certificate
regime is, in some respects, preferable to the criminal law process because the
government is able to rely on secret intelligence information to support the
removal from Canada of persons who are a threat to national security.
2
3
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the
Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public Works and
Government Services Canada, 2006), pp. 312-316 [Report of the Events Relating to Maher Arar: Analysis
and Recommendations].
Report of the Royal Commission on Security (Abridged) (Ottawa: Supply and Services Canada, 1969)
[Report of the Royal Commission on Security]; Commission of Inquiry Concerning Certain Activities of
the Royal Canadian Mounted Police, Freedom and Security under the Law, Second Report - vol. 2
(Ottawa: Supply and Services Canada, 1981), p. 847 [Freedom and Security under the Law]; Commission
of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review Mechanism
for the RCMP’s National Security Activities (Ottawa: Public Works and Government Services Canada,
2006), p. 196 [A New Review Mechanism for the RCMP’s National Security Activities].
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Volume Three: The Relationship Between Intelligence and Evidence
Law enforcement, while not the only option, is a valuable and integral part of any
nation’s security machinery. Law enforcement offers unique means to denounce,
disrupt and punish terrorism. Nevertheless, the involvement of law enforcement
agencies must be the product of a considered and strategic decision, since it is
not possible to rely on secret information to secure a conviction in a criminal
trial.
A broad approach to the management of terrorist threats should be the norm.
In cases of terrorist financing, for example, removing the charitable status
of an organization may impair its ability to raise funds. It is also possible for
the authorities to seek orders freezing or confiscating the assets of a terrorist
organization. Preventive target-hardening measures may also be appropriate
in areas such as aviation security. Given the international nature of terrorism,
providing intelligence to allies may also reduce the threat within Canada.4
Terrorist threats engage the mandates of the RCMP, CSIS and, among others,
the CBSA, the Department of National Defence (DND), the Department of
Citizenship and Immigration, the Canada Revenue Agency (CRA), the Canadian
Air Transport Security Authority (CATSA) and the Department of Foreign Affairs
and International Trade (DFAIT). At present, the Minister of Public Safety is
responsible for the nation’s security, yet has authority only over CSIS, the RCMP
and the CBSA. While much of the national security work is carried on in those
agencies, they do not comprise all the agencies at the government’s disposal.
As Commissioner O’Connor noted, in reporting on the Commission of Inquiry
into the Actions of Canadian Officials in Relation to Maher Arar, there are at least
25 government entities involved in national security matters, with 16 different
departments and agencies being identified by the government as having “key”
national security responsibilities.5
A flexible approach is needed to determine the appropriate governmental
response. An NSA with enhanced responsibilities should perform a central
role in deciding the appropriate response to particular security threats. The
new governance structures proposed in this volume should allow for informed
decisions about the costs and benefits of commencing terrorism prosecutions.
They should also provide a forum for quick and decisive resolution of disputes
that may arise between agencies.
The
but
and
and
4
5
challenges of designing workable governance structures are significant
achievable. There must be respect for the principles of prosecutorial
police independence that are supported by the Canadian constitution
a corresponding commitment to the impartial application of the rule of
Although two recent commissions found deficiencies in information-sharing with other countries
and recommended enhanced safeguards, both affirmed that this practice is an important tool to
prevent terrorism. See Report of the Events Relating to Maher Arar: Analysis and Recommendations,
pp. 320-321, 331-332, 343-349; Internal Inquiry into the Actions of Canadian Officials in Relation to
Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin (Ottawa: Public Works and
Government Services Canada, 2008), pp. 68-71, 78, 81-93.
A New Review Mechanism for the RCMP’s National Security Activities, pp.127-128.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
law. There must be respect for the importance of maintaining secrets, but
governance structures must prevent agencies with relevant information from
withholding information from other agencies for fear that it will ultimately have
to be disclosed publicly. Finally, there must be adherence to the constitutional
protections for all individuals charged with criminal offences.
Any new governance structure must be nimble enough to allow quick decisions
about imminent threats and must avoid duplicating existing bureaucracies.
The structure must also avoid becoming a dysfunctional system in which each
agency arguably does its own job properly while the system as a whole fails
to achieve the ultimate objective of protecting the security of Canadians. To
ensure that the system works to prevent terrorism, there must be someone
at the centre of government to receive all relevant information and to make
decisions in the public interest about the appropriate government response to
particular security threats.
2.2 The Critical Role of CSIS in Providing Intelligence to
Government about Security Threats
The CSIS mandate includes advising the Government of Canada about threats
to Canada’s security. CSIS does not have the mandate to prevent terrorist acts.
It is not the responsibility of CSIS to carry out any law enforcement activities
to prevent terrorism. CSIS provides advice; the Government is responsible for
devising the appropriate response.
CSIS carries out operations in the sense that it conducts interviews, uses human
sources, performs searches authorized by warrant, and clandestinely intercepts
private communications.6 All these are means by which CSIS obtains information
to learn of threats to Canada’s security. However, this operational mandate ceases
after the information-gathering stage. Beyond that point, CSIS is not authorized
to perform any “police-like” functions. For example, the CSIS Act7 does not
empower CSIS employees to conduct arrests, engage in disruption interviews,
detain persons for interviews or employ agents (as opposed to sources, who
merely provide information but do not become actively involved on behalf of
CSIS in operations). Those techniques are reserved for other agencies, such as
law enforcement and the Canada Border Services Agency (CBSA).
There is a transition from collecting intelligence to collecting evidence, as an
operation shifts from an intelligence-gathering exercise to a law enforcement
investigation. An obvious role for the NSA will be to ease the transition from
intelligence to evidence.
The evidence at the Inquiry showed that understanding a threat to national
security can take years. It is not the case that all threats are readily apparent
6
7
These operations are authorized by a Federal Court judge under s. 21 of the CSIS Act. See Chapter IV for
further discussion of these search powers.
R.S.C. 1985, c. C-23.
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Volume Three: The Relationship Between Intelligence and Evidence
or that their danger is immediately understood. Accordingly, CSIS conducts
many long-term investigations that require patience and careful analysis of a
large amount of intelligence. CSIS has an incentive to maximize secrecy and to
continue its covert intelligence investigation to maximize its understanding of
the threat. At the same time, it may not always serve the public interest to keep
secret the intelligence that CSIS collects.
When should the intelligence collected by CSIS be passed on to the RCMP?
When a dispute arises, it should be up to the NSA to make this decision.
2.2.1 Inherent Tensions between CSIS and the RCMP
Conflict between CSIS and the RCMP stems from their core mandates. CSIS is
an intelligence agency that relies on secret sources and information received
in confidence from allies to inform the Government of Canada about threats
to the security of Canada. In contrast, the RCMP is a police force dedicated to
collecting evidence of crimes for public prosecutions.
At present, to manage the information flow between them, the two agencies
are left to devise non-statutory and non-binding mechanisms which do not
interfere with their very different functions. The success of these mechanisms
turns largely on the personalities of the employees in the two agencies. Although
relations continue to improve, there remains a lack of understanding on the part
of each agency of the other’s functions and national security mandates.
CSIS has at least three concerns that adversely affect relations with the RCMP:
• Experience has shown that when the CSIS shares information with
the RCMP, the RCMP has failed to respect the intelligence mandate
by endangering sources, disclosing allies’ confidences and making
investigations by CSIS much more difficult;
• CSIS is alarmed by the scope of Stinchcombe8 disclosure obligations,
which create a risk of public exposure of intelligence operations and
reduce the effectiveness of CSIS; and
• CSIS fears that closer cooperation will blur the lines between a
civilian intelligence function and a law enforcement function. Put
bluntly, CSIS fears that this would render it a substitute police force
or that police will increasingly intrude into civilian intelligence
matters.
For its part, the RCMP has chosen to manage the relationship with CSIS by
treating CSIS as a “tip service.” By applying a philosophy of “the less information
we obtain from CSIS, the better,” the RCMP hopes to lessen the chances of a
conflict with CSIS and increase the likelihood of a successful police investigation.
The RCMP has at least three concerns that adversely affect relations with CSIS:
8
R. v. Stinchcombe, [1991] 3 S.C.R. 326.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
• The RCMP doubts whether CSIS appreciates the overlap of their
mandates in counterterrorism matters. As a result, there is a
perception that CSIS has an unsophisticated understanding of
its impact on criminal investigations;
• The RCMP fears that CSIS has disregarded evidentiary standards
about the collection and retention of intelligence; and
• The RCMP is concerned that CSIS will seek to protect its own
investigations in preference to criminal investigations.
The RCMP’s “the less information we obtain from CSIS, the better” approach to
involvement with CSIS increases the potential for duplication and conflict. As
will be discussed below, the two agencies have employed a rather elaborate
process to avoid this. That process does not mean integration or cooperation.
Most often, it emphasizes a separation of activities that enables each agency to
stay out of the other’s way.
2.2.2 Joint Management Team Meetings
The RCMP and CSIS have regular meetings at both the regional and headquarters
levels where the agencies review their respective case inventories to ensure
that there are no conflicts arising during their respective investigations and to
address any conflicts that do arise. In essence, the RCMP discloses to CSIS all the
targets of RCMP investigations and may provide a brief synopsis of the status of
each investigation. CSIS attempts to review the material and indicates where
there is a conflict. If there is a conflict, the agencies negotiate how to manage
it.
RCMP Superintendent Jamie Jagoe9 testified that, in resolving conflicts, he does
not tell CSIS what to do, nor does CSIS direct the RCMP. Instead, a cooperative
approach is taken to ensure respect for each other’s mandate while each
continues with its investigation.10
For example, if the RCMP is conducting an investigation into a matter that is also
being monitored by CSIS, CSIS may chose to take a more passive role to permit
the RCMP to acquire the evidence to build its case. As well, this process allows
CSIS to remove human sources that are within a group targeted by the RCMP
to avoid public exposure of these sources if a police investigation leads to a
prosecution, thereby preserving the integrity of the CSIS investigation.
If a conflict between CSIS and the RCMP cannot be resolved at the regional level,
the matter is dealt with at the headquarters level. Almost all witnesses thought
it extremely unlikely that matters could not be worked out at the regional level.
As well, given the extent of ongoing dialogue between the two agencies, there
9
10
RCMP Superintendent, Assistant CROPS Officer for National Security for O Division (which is the
Province of Ontario).
Testimony of Jamie Jagoe, vol. 82, November 23, 2007, p. 10460.
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Volume Three: The Relationship Between Intelligence and Evidence
should not be any surprises when reviewing each other’s targets. Nevertheless,
witnesses acknowledged that, if an irreconcilable difference arose between CSIS
and the RCMP, the matter could end up before the Minister of Public Safety, who
has ministerial responsibility for both agencies.
The agencies appear to be making a concerted effort to understand the scope
of the other’s investigations to ensure that they do not compromise each other’s
efforts. This process is an important and necessary part of the relationship
between the RCMP and CSIS. However, these meetings, and this process for
avoiding conflicts, do not address the fundamental problem of how to manage
the transition from an intelligence investigation to a police investigation.
At the headquarters level, CSIS and the RCMP have regular Joint Management
Team (JMT) meetings. The purpose of the JMT is to identify areas of concern
to the two agencies and to determine how best to manage resources from
their headquarters’ perspectives. There is sensitivity to the fact that front
line officers have to resolve many of these issues. Nevertheless, the officials
at the headquarters level can provide guidance and a broader perspective
than is available in the regions. CSIS can also use the JMT to inform the RCMP
about new threats. However, CSIS will not always wait until a JMT meeting to
discuss an issue. As RCMP Assistant Commissioner Mike McDonell remarked,
“The regularized forum would be the Joint Management Team but in a lot of
instances, we speak to the matter as the matter arises; we don’t wait for the JMT.
So the whole trick is not to impede or impair the investigators and to facilitate
the work on the front line. So it’s been my experience that we pick up the phone
or go to one another’s offices and deal with it forthwith.”11
While there is some discussion between CSIS and the RCMP about alternatives
to using law enforcement, the reality is that the default course of action is to
commence a police investigation. Typically, the only issue is timing – when the
RCMP should commence its investigation. McDonell noted that “…[i]t’s much
easier for [CSIS] to harvest from us or from our actions than for us to harvest
from the Service’s action. So that if we’re looking at a specific event where there
must be an intervention, it’s much easier in the long run if the Royal Canadian
Mounted Police conduct the inquiries, conduct the search or do whatever is
required and the Service can have access to the fruit of our labour. But our
primary purpose is to collect evidence and the reverse is a little more difficult.
So it’s been my experience in this job that we’ve always defaulted to the RCMP
conducting the primary action.”12
McDonell’s comments exemplify the approach of “the less information we obtain
from CSIS, the better.” This suggests that the RCMP is generally not receiving all
the intelligence from CSIS that it could.13
11
12
13
Testimony of Mike McDonell, vol. 95, December 13, 2007, p. 12654.
Testimony of Mike McDonell, vol. 95, December 13, 2007, p. 12637.
Means to improve the protections of intelligence from disclosure, while still preserving the accused’s
right to a fair trial, are discussed in Chapters V-VII. These chapters examine disclosure standards,
privileges and the means to obtain judicial non-disclosure orders in specific cases.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
As well, McDonell’s evidence suggests that, instead of CSIS supplying the RCMP
with detailed intelligence about possible terrorist threats, the RCMP is providing
intelligence to CSIS. There are obvious benefits to the RCMP sharing information
with the CSIS with respect to their often overlapping counterterrorism
investigations.14
CSIS alone controls the quality, volume and timing of disclosure to the RCMP.
Section 19(2)(a)15 of the CSIS Act gives CSIS discretion to decide whether to share
relevant intelligence with the police.16
Once intelligence is provided to the police, there is a risk that criminal
investigations and prosecutions may be commenced, even though this may
not be the most effective way to manage the terrorist threat. The JMT is not
institutionally equipped to assess management strategies other than the use
of law enforcement. The JMT is narrow in its focus in that the choice is typically
between maintaining the CSIS investigation and turning the matter over to
the RCMP. The JMT is not the place for strategic decision- making about the
appropriate response to a particular security threat or even for strategic decisionmaking about whether a terrorism prosecution is in the public interest.
A further disadvantage of relying on the JMT as the locus for managing
terrorist threats is the risk of public exposure of CSIS information that has been
provided at JMT meetings. Although section 38 of the Canada Evidence Act17
may provide protection for information disclosed to the JMT, the presence of
the police imports the full menu of constitutional protections, including rights
to disclosure of information, that are afforded persons who are the subject of
criminal investigations. The risk of public disclosure of information from a police
investigation should be accepted only after careful consideration. As discussed
below, the NSA, with full input from all affected agencies, would be in the best
position to determine if disclosing secret intelligence is in the public interest.
14
15
16
17
Stanley Cohen has argued that “the generous sharing ‘up’ of information and data from law
enforcement to security intelligence is to be encouraged, provided, of course, that adequate
safeguards, oversight and monitoring are features of the system as a whole”: Stanley A. Cohen, Privacy,
Crime and Terror: Legal Rights and Security in a Time of Peril (Markham: LexisNexis, 2005), p. 406
[Cohen, Privacy, Crime and Terror].
Chapter IV discusses reforms to s. 19 to ensure that CSIS is required to share relevant intelligence
directly with the police or the National Security Advisor and that it no longer have the discretion that it
currently exercises to withhold relevant intelligence.
Stanley Cohen notes that s. 19 of the CSIS Act “provides an express grant of authority to the Canadian
Security Intelligence Service to disclose information that it has lawfully obtained to law enforcement”:
Cohen, Privacy, Crime and Terror, p. 407. He further notes that the discretion of CSIS to share
such information is influenced by a variety of factors including “the fact that the disclosure of subject
information may ultimately become public in an open proceeding, such as a criminal trial; the
downstream implications of revealing information that may ultimately tend to reveal covert, secret
or surreptitious operational practices and techniques; the need to protect sensitive sources; and the
requirement to adhere to agreements and undertakings with other nations in the interest of securing
the nation’s security and of promoting international cooperation and comity with Canada’s friends and
allies in the international community”: p. 408.
R.S.C. 1985, c. C-5.
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2.3 The Current Role of the National Security Advisor
In late 2003, a National Security Advisor to the Prime Minister was appointed “…
to improve coordination and integration of security efforts among government
departments.”18 This was a positive and necessary development, given the
difficulties in cooperation and coordination among various agencies during
both the pre- and post-bombing phases of the Air India investigation.
Due to the importance of coordinating national security activities, several
witnesses from within and outside government were asked to comment on the
role of the NSA when they appeared before the Commission.
The NSA is one of the most senior officials in the Privy Council Office (PCO). The
PCO serves as a secretariat to ensure the smooth functioning of Cabinet. It is
also the Prime Minister’s “…source of public service advice across the entire
spectrum of policy questions and operational issues facing the Government.”19
It is headed by the Clerk of the Privy Council who is the Prime Minister’s Deputy
Minister.20
The NSA has several roles:
• as Associate Secretary to the Cabinet, who acts “…on the Clerk’s
behalf on any of the policy and operational issues that come before
the Privy Council Office;”21
• as NSA, who “…ensures the effective coordination of Canada’s
security and intelligence community;”22
• as Deputy Minister for Operations and Policy for the
Communications Security Establishment (CSE); and
• as NSA, to oversee “…the provision of intelligence assessments to
the Prime Minister, other ministers and senior government
officials.”23
Former NSA William Elliott, who is currently the Commissioner of the RCMP, told
the Commission that one of his important duties was to play “a very central
18
19
20
21
22
23
Canada, Securing an Open Society: Canada’s National Security Policy (April 2004), p. 9, online:
Government of Canada Depository Services Program <http://dsp-psd.pwgsc.gc.ca/Collection/CP22-772004E.pdf> (accessed June 4, 2009) [Canada’s National Security Policy].
Privy Council Office, “The Role and Structure of the Privy Council Office 2008,” 1.0, online: Privy Council
Office <http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=
Role/role2008_e.htm#1> (accessed July 29, 2009).
Privy Council Office, “The Role and Structure of the Privy Council Office 2008,” 2.0, online: Privy Council
Office <http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=
Role/role2008_e.htm#2> (accessed July 29, 2009).
Privy Council Office, “The Role and Structure of the Privy Council Office 2008,” 3.0, online: Privy Council
Office <http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=
Role/role2008_e.htm#3> (accessed July 29, 2009) [“The Role and Structure of the Privy Council Office
2008,” 3.0].
“The Role and Structure of the Privy Council Office 2008,” 3.0.
“The Role and Structure of the Privy Council Office 2008,” 3.0.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
role” with respect to the work of the Cabinet committee responsible for national
security. Part of his role involved “…coordination efforts, including work done
by and in support of ministers on that committee.” He also testified that the
NSA plays an important role “…with respect to getting people from interested
departments and agencies together to deal with important matters relating to
national security including where there were fairly significant, at least at the
beginning, differences of views with respect to things….” He said that what he
had specifically in mind was work in relation to the application of section 38
of the Canada Evidence Act and the experience gained in dealing with issues
relating to the O’Connor Inquiry. There, he said, “…the National Security Advisor
certainly played a role with respect to the development of a government position
which resulted in a position of the government as decided and articulated by
ministers.”24
The NSA at the time of the Commission hearings, Margaret Bloodworth, described
her position as consisting of three roles: an advisory role, a coordination role
and an operational role with CSE. She acts as an advisor to the Prime Minister
and to a Cabinet committee on intelligence programs and national security
policies. The NSA also acts as the Associate Secretary of the Cabinet. Bloodworth
also spent time on public service renewal at large, particularly relating to the
intelligence community.
Bloodworth described her coordination role as “…co-ordinating with regard to
intelligence, to carry things like development of priorities and overall assessment.
And secondly, on national security more generally which would include response
and resilience and border issues….”25 She added that her coordination role with
respect to the RCMP and CSIS would be exercised without interfering with the
ultimate responsibility of the Minister of Public Safety for both agencies, which
she described as ”…pretty fundamental to our system.”26
Nevertheless, she noted, the NSA’s coordination role could include meeting with
the heads of RCMP and CSIS and saying, “…’[y]ou two should fix this’ or some
variation thereof or perhaps Justice could play a role if it was a legal issue and
so on. If in the end it was not resolvable, then it would be up to their minister
to take action and if they didn’t bring it to their minister I would feel some onus
to make sure their minister was aware of it. Now, I don’t think it would come to
that because there’s also a Deputy Minister of Public Safety who would know
something about that.”27
The NSA also chairs a committee of deputy ministers on national security that
meets roughly once a month or every six weeks and considers “a whole range”
of national security issues, including “lessons learned.”28
24
25
26
27
28
Testimony of William Elliott, vol. 90, December 6, 2007, p. 11827.
Testimony of Margaret Bloodworth, vol. 95, December 13, 2007, pp. 12671-12672.
Testimony of Margaret Bloodworth, vol. 95, December 13, 2007, p. 12676.
Testimony of Margaret Bloodworth, vol. 95, December 13, 2007, pp. 12676-12677.
Testimony of Margaret Bloodworth, vol. 95, December 13, 2007, pp. 12681-12682.
27
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Volume Three: The Relationship Between Intelligence and Evidence
Finally, the NSA is also the Deputy Minister for Operations and Policy for the
CSE. In that capacity, Bloodworth becomes involved in the operations of CSE,
especially as they relate to the Government of Canada’s intelligence priorities
and other security agencies.29 The CSE has a three-part mandate under the
National Defence Act:
• to acquire and use information from the global information
infrastructure for the purpose of providing foreign intelligence in
accordance with the Government of Canada’s intelligence priorities;
• to provide advice, guidance and services to help protect the
Government’s information infrastructures; and
• to provide technical and operational assistance to federal law
enforcement and security agencies in the performance of their
lawful duties.30
In short, the NSA has multiple policy, coordination and operational
responsibilities.
The NSA is assisted by a Deputy National Security Advisor and by two secretariats
within the PCO: the Security and Intelligence Secretariat and the International
Assessment Staff Secretariat. The Security and Intelligence Secretariat works
with federal departments to coordinate a range of security measures. These
include the security component of the Security and Prosperity Partnership of
North America and issues relating to the security of the Prime Minister, the
Cabinet, the Government and the National Capital Region. The International
Assessment Staff Secretariat provides information relating to terrorism through
the Integrated Threat Assessment Centre (ITAC) and directly from Canada’s allies.
The Executive Director of the International Assessment Staff Secretariat and the
Assistant Secretary to the Cabinet (Security and Intelligence) both report to
the NSA through the Foreign and Defence Policy Advisor to the Prime Minister.
Both the NSA and the Foreign and Defence Policy Advisor support the Cabinet
Committee for Foreign Affairs and National Security.31
2.3.1 Competing Views on the Adequacy of the Coordination Powers of
the National Security Advisor
Professor Martin Rudner, Distinguished Research Professor Emeritus at the
Norman Paterson School of International Affairs at Carleton University, saw
the present function of the NSA as “…to advise the Prime Minister on national
security; it is manifestly not to coordinate the security intelligence community.
There are no resources, instruments or intent.”32 He also rejected the idea that
29
30
31
32
Testimony of Margaret Bloodworth, vol. 95, December 13, 2007, pp. 12671-12672.
R.S.C. 1985, c. N-5, s. 273.64.
Privy Council Office, “The Role and Structure of the Privy Council Office 2008,” 8.0, online: Privy Council
Office <http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=
Role/role2008_e.htm#8> (accessed July 29, 2009).
Testimony of Martin Rudner, vol. 92, December 10, 2007, pp. 12254-12255.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
the Department of Public Safety could play a coordinating role, stating that “…
it’s a big bill for a young department.”33 In a paper prepared for the Commission,
Rudner proposed a significant enhancement of the role of the NSA to include
the resources to make supplementary budgetary appropriations and additional
personnel allocations and to use moral suasion.34 Rudner argued that a proactive
“whole of government,” intelligence-led approach required “…a significant
enhancement of this coordination function in order to ensure policy coherence,
inter-agency cooperation, and effective synergy among a wide array of security,
intelligence and law enforcement organizations, relevant governmental
departments (at all levels), and even private owner/operators of critical national
infrastructure.”35
Professor Bruce Hoffman, of the Edmund Walsh School of Foreign Service at
Georgetown University, testified that the essential powers of an intelligence
coordinator consisted of the ability to set standards across the intelligence
community, budgetary control and personnel control. A person in charge of
coordinating and overseeing the intelligence community “…required control
over the purse strings, that is budgetary control; the ability to hire and fire senior
managers and then the ability to set standards for both the information structure
and personnel across the entire intelligence community.”36 In his view:
“[T]he magnitude of the threat and the complexity of the
threats that’s posed to our countries in the 21st century
means that you have to have an individual that again can
reach across the stakeholders, set the priorities, because
these priorities are not the priorities of individual agencies;
we’re talking about national priorities, and then, having set
the priorities, to actually dictate the tasking. I think this is
enormously important. Not just to sometimes force reluctant
bureaucracies out of their comfort zone or out of their box,
but also to provide the strategic dimension to ensure that the
focus is on precisely those priorities that are most critical to
national security.”37
Rudner and Hoffman were not alone in arguing that there was a need for
enhanced coordination powers in national security matters. Norman Inkster, a
former Commissioner of the RCMP, agreed with the suggestion that there is a
need for an arbiter to decide disputes between CSIS and the RCMP about the
handling of sources.38
33
34
35
36
37
38
Testimony of Martin Rudner, vol. 92, December 10, 2007, pp. 12257-12258.
Martin Rudner, “Building Canada’s Counter-Terrorism Capacity: A Proactive All-Of-Government
Approach to Intelligence-Led Counter-Terrorism” in Vol. 1 of Research Studies: Threat Assessment
RCMP/CSIS Co-operation, pp. 137-139 [Rudner Paper on Building Counter-Terrorism Capacity].
Rudner Paper on Building Counter-Terrorism Capacity, p. 138.
Testimony of Bruce Hoffman, vol. 94, December 12, 2007, p. 12530.
Testimony of Bruce Hoffman, vol. 94, December 12, 2007, p. 12514.
Testimony of Norman Inkster, vol. 81, November 22, 2007, p. 10368.
29
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Volume Three: The Relationship Between Intelligence and Evidence
Giuliano Zaccardelli, also a former Commissioner of the RCMP, testified that a
change of governance was required to stop the practice of agencies operating in
silos, exchanging information only on an ad hoc basis. He called for a governance
body, staffed by officials from the highest levels of the key intelligence agencies,
that would be responsible for ensuring the safety and security of Canada. The
governance body would be able to make resources available and integrate
them in a way that would ensure that “…the whole is greater than the sum of
its parts.”39 Zaccardelli argued that the work of the governance body should be
facilitated by someone outside of government.40 He did not think that this role
should be filled by a minister, because of the risk of political interference, or by
a senior bureaucrat, because of the risk of being captured by “vested interests.”41
Rather, the person should have the credibility and stature to bring the various
agencies together “…and make them work for the good of Canada.”42
Reid Morden, a former Director of CSIS, testified that there was not enough “…
clout within the current structure to bring about the coordination and to give
direction to this rather multi-headed intelligence beast which we have created.”
He testified that the coordinator should not be in the Prime Minister’s Office,
but that the person “…should have direct access to the Prime Minister who has
always, at least in title, chaired any Cabinet committee which has dealt with
security or intelligence affairs.”43 He testified that there was a need for “…a new
look at the kind of machinery we have,” as governments responded “…to a world
which has become a much more dangerous and a much more ruthless place
than it was a number of years ago.”44
Not all witnesses agreed that the NSA needed greater coordination powers. The
Hon. Ronald (“Ron”) Atkey, the former chair of SIRC and a person with extensive
experience in national security matters, testified that Canada was “…not mature
enough yet to go for a security czar. We see attempts in the United States now
to move in that direction, but they are still having difficulties….”45
Former NSA Elliott testified that he was not sure that creating a new entity, “…
whether…called an ‘Intelligence Czar’ or some other thing, is really necessary
or desirable. If it was – if a principal objective was to resolve disputes, I don’t
think the individual would be very busy and…I’m not sure of the merits of
putting somebody in charge of operations across government departments
and agencies. I’m not sure that that would lead to very effective operations,
frankly.”46
39
40
41
42
43
44
45
46
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11030-11032.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11077.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11080-11081.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11078.
Testimony of Reid Morden, vol. 88, December 4, 2007, pp. 11455-11457.
Testimony of Reid Morden, vol. 88, December 4, 2007, p. 11456.
Testimony of Ronald Atkey, vol. 49, September 20, 2007, p. 6030.
Testimony of William Elliott, vol. 90, December 6, 2007, p. 11828.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
Jim Judd, the Director of CSIS at the time of his testimony and who has since
retired, also testified that there was no need for an enhanced coordination role
in Canada. He stated that, “…[i]n our circumstances here in Canada, I think it’s
probably fair to say that in respect of anything that we do in our organization,
internationally or domestically that is of note, in our view, the National Security
Advisor and the Minister and very often Prime Minister know about it as it
happens, so that I think we have perhaps a bit of a better history of ensuring that
those communications channels do exist. And it’s partly a functional fact that,
of course, you’re dealing with a much smaller universe in the Canadian context
than you are in the United States. I don’t know of any other Western jurisdiction
other than the United States which has sought to impose this kind of regime of a
super personality at the top of the system. And I don’t, in current circumstances,
certainly see the need for that to happen here, given the arrangements that
already exist.”47
Finally, Margaret Bloodworth, the NSA at the time of our hearings, argued that
Professor Hoffman’s proposals for increased coordination were not compatible
with a parliamentary system where ministers are ultimately accountable for the
performance and budgets of the agencies in their ministries. With respect to
budgetary issues she saw difficulties in “…splitting money from accountability”:
“And I think accountability matters, and I’m actually a believer in Ministers, to
the extent possible, being accountable at the end of it, and I think there’s a limit
to how much you can make the Prime Minister personally accountable.”48 She
added that “…having run three different departments now, it’s not been my
experience that money managed from the centre is managed more effectively
than [money] managed in departments.” 49
It could be argued that the Minister of Public Safety, rather than the NSA, should
play a coordinating role for national security activities. At present, the Minister
of Public Safety is responsible for the RCMP and CSIS. Both agencies at times
seem to be more powerful than their Minister. This is because Public Safety, as
a direct descendant of the former Ministry of the Solicitor General, may be seen
as insufficiently senior within government to take the lead on complex national
security matters.
There are limits to the jurisdiction of the Minister of Public Safety. While CSIS,
CBSA and the RCMP fall within the Minister’s jurisdiction, significant players
such as DFAIT, DND and CSE do not. As well, the decision about how to manage
a particular terror threat may very well engage our international strategic
interests. DFAIT can and ought to make an important contribution in such cases.
The Attorney General of Canada, who is outside the Department of Public Safety,
also has important responsibilities for the approval of terrorism prosecutions
and for the protection of secret information from disclosure.
47
48
49
Testimony of Jim Judd, vol. 90, December 6, 2007, pp. 11866-11867.
Testimony of Margaret Bloodworth, vol. 95, December 13, 2007, pp. 12684-12687.
Testimony of Margaret Bloodworth, vol. 95, December 13, 2007, p. 12689.
31
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Volume Three: The Relationship Between Intelligence and Evidence
It is the Commission’s view that national security is far too important to leave
in the hands of one minister or agency. The Ministry of Public Safety does not
command the national security apparatus. Only the Prime Minister’s delegate
can have the legitimacy to wield that power.
2.3.2 The Legitimate Role of the Prime Minister and the Privy Council
Office in Coordinating National Security Activities
The need for the Prime Minister and the Privy Council Office to play a key role in
national security matters has long been recognized. A 1969 Royal Commission on
Security observed that, while the Privy Council Office provided some support to
Cabinet committees on security and meetings of the relevant deputy ministers,
the effectiveness of this central coordination was “…more apparent than real.”50
The Royal Commission recommended that a Security Secretariat within the Privy
Council Office be given adequate authority, resources and staff “…to formulate
security policy and procedures in the context of general governmental policies,
and more importantly, with effective authority to supervise the implementation
of government security policies and regulations and to ensure their consistent
application.”51
Although the security environment is very different today from that of 1969, the
basic insight of that Commission still rings true: “…under present arrangements
the total view of the requirements of security may often be obscured by the
pressures exerted by individual departments.”52 Indeed, the danger of failing to
see the “big picture” and of losing central oversight and control is even greater
today, since many more agencies than before have security responsibilities in
the post-9/11 environment.
The Commission of Inquiry Concerning Certain Activities of the Royal Canadian
Mounted Police (McDonald Commission) recommended that the Prime Minister
chair a Cabinet committee on security and intelligence because “…[w]eaknesses
in the internal security system can have drastic consequences for the well-being
of the nation. The secret, intrusive nature of security work makes it dangerous to
permit any Minister to become overly dominant in this field. The consideration
of intelligence needs should be a balanced process free from domination by any
single government department.”53
In his 2006 report, Commissioner O’Connor recognized that, “…[a]s the head
of government in Canada, the Prime Minister has ultimate responsibility for
national security.”54 In discharging these responsibilities, the Prime Minister is
assisted by the Privy Council Office (PCO) which “…provides non-partisan advice
50
51
52
53
54
Report of the Royal Commission on Security, p. 17.
Report of the Royal Commission on Security, pp. 18, 105.
Report of the Royal Commission on Security, p. 17.
Freedom and Security under the Law, Second Report - vol. 2, p. 847.
A New Review Mechanism for the RCMP’s National Security Activities, p. 196.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
and support for the Prime Minister, departments within the Prime Minister’s
portfolio, the federal Cabinet and Cabinet committees.”55
The natural locus for coordinating federal agencies involved in preventing and
prosecuting terrorism is the Privy Council Office. This was recognized by the
federal government when the position of Prime Minister’s National Security
Advisor was established in 2003.
The clear trend in this area has been to centralize operations as much as
possible. For example, the RCMP has gone to great lengths to centralize
terrorism investigations. CSIS has been highly centralized since its inception.
Centralization of national security investigations is a virtual necessity, given that
most, if not all, national security investigations have national and international
aspects.
Centralization permits a broader approach to decision making and ultimately
promotes cooperation between agencies. Without a centralized, cross-ministry
rationalization of Canada’s national security infrastructure, government will not
address the long-term structural issues that have plagued the RCMP and CSIS.
A failure to address these issues would leave Canadians relying solely on the
goodwill of those who currently hold senior positions at those agencies.
Increased coordination is possible in the national security field because the
Prime Minister is the first among equals and, with limited exceptions,56 can take
responsibility for decisions in the national security area. Fears that officials in
the Privy Council Office will abuse their power, or not be held accountable for
its exercise, overlook the fact that the Prime Minister is responsible for their
conduct. The Prime Minister is also responsible and accountable to Parliament
for the Government’s overall performance in national security matters. The
Prime Minister’s special role in national security simply recognizes the reality
that the Prime Minister has the ultimate decision-making authority in almost all
national security matters.
Although she stressed the importance of ministerial accountability and
responsibility in her testimony, Bloodworth recognized the reality of the Prime
Minister’s pre-eminent role when she testified that, even with respect to matters
within the portfolio of the Minister of Public Safety, “…it’s possible the Prime
Minister might be brought in, then I provide advice there.”57 The roles of the
Prime Minister and the PCO do not generally affect day-to-day operations, but
rather involve setting national security policy and priorities, ensuring that the
ministries and agencies implement the policy, and resolving high level disputes
involving policy matters.
55
56
57
A New Review Mechanism for the RCMP’s National Security Activities, p. 196.
The role of police and prosecutorial independence and discretion is discussed in Chapter III.
Testimony of Margaret Bloodworth, vol. 95, December 13, 2007, pp. 12679-12680.
33
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Volume Three: The Relationship Between Intelligence and Evidence
The idea that, on national security matters, the ultimate authority in most matters
rests with the Prime Minister accords with Canada’s democratic traditions. It also
accords with the commonsensical expectations of Canadians.
It is important that the Prime Minister receive expert advice from senior
civil servants in the Privy Council Office. The suggestion that an enhanced
national security coordination role in the PCO would be too “political” should
be rejected. As Elliott testified, “Canada has a long, important, proud history
of independence of the public service.” Furthermore, “…when governments
change as they frequently do at least in the modern context, there is not a
wholesale or immediate change of senior officials, and just as I was the National
Security Advisor to Prime Minister Martin, I was the National Security Advisor to
Prime Minister Harper and my roles and relationships with the Prime Minister
and the Prime Minister’s Office really didn’t change substantially because one
government went out of office and another government came into office.”58
Although ministers should, by law and tradition, remain accountable for their
departments and for the agencies in those departments, it is the Prime Minister,
assisted by experts in the Privy Council Office, who can assess the security needs
of the Government and assess the public interest in determining the appropriate
response to a given threat.
In summary, the Prime Minister and the Privy Council Office have vital and
legitimate roles to play in national security matters. These roles include:
• establishing strategic national security policies and priorities;
• coordinating national security activities, including the distribution
of intelligence;
• resolving disputes between the agencies and ministries that have
national security responsibilities; and
• overseeing the effectiveness of national security activities.
The exercise of these important roles is in keeping with Canada’s tradition
of parliamentary democracy and with the role of the Privy Council Office in
providing impartial and non-partisan public service advice and expertise to the
Prime Minister.
2.3.3 Expanding the Role of the National Security Advisor
At present, the NSA’s mandate is ill-defined. This mandate should be enhanced
and clarified. The nature of Canada’s multi-faceted national security activities and
the challenging task of establishing priorities for these agencies, coordinating
them, resolving disputes among them and determining whether they are
working together effectively will require a substantial enhancement of the
NSA’s role.
58
Testimony of William Elliott, vol. 90, December 6, 2007, pp. 11828-11829.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
An enhanced mandate for the NSA is especially necessary to better balance the
pressure to keep intelligence secret with the conflicting pressure to allow it to
be used as evidence. In addition, the NSA needs greater powers to oversee the
effectiveness of the agencies and departments responsible for national security
activities.
An NSA with enhanced responsibilities should at a minimum continue to hold
the NSA’s current rank as the National Security Advisor and Associate Secretary
to the Cabinet, just below the Clerk of the Privy Council and Secretary to the
Cabinet.59
2.3.3.1 Establishing Strategic National Security Policies and Priorities
In 2004, Canada established its first official National Security Policy.60 An
official policy was necessary because of the changed threat environment and
because so many parts of the government now exercised national security
responsibilities – ranging from the collection of intelligence to the discharge
of responsibilities for emergency preparedness and management. The national
security policy devoted a whole chapter to “…building an integrated security
system” in recognition that “…the lack of integration in our current system is
a key gap….”61 It proposed an integrated security system that would include
threat assessment, protection and prevention, evaluation and oversight, and
consequence management.62 The policy recognized that “…[a]n effective
national security framework must, of necessity, be a continual work in progress.
We need to continuously evaluate the success of the system by testing its
effectiveness.”63
The National Security Policy stressed the need for more coordination and
strategic planning for a wide array of security initiatives, including transportation
safety, intelligence and international security. To implement this security policy,
or any other that the Government may develop, it will be necessary to have a
broad vision of government’s abilities and responsibilities.
A chapter in the 2004 National Security Policy was devoted to intelligence.
Security intelligence agencies are deliberately subject to fuller political direction
than police and prosecutors. In Canada’s system, the responsible minister is
accountable for these agencies but, as suggested earlier, the Prime Minister and
his advisors have a pre-eminent role in establishing priorities and policies in the
national security field. There is a need to ensure that the priorities of security
intelligence agencies reflect the best strategic judgments of the Government of
59
60
61
62
63
Privy Council Office Organization Chart (March 2009), online: Privy Council Office <http://www.pcobcp.gc.ca/docs/Org/2009-03-eng.pdf> (accessed June 4, 2009).
Canada, Securing an Open Society: Canada’s National Security Policy (April 2004), online: Government
of Canada Depository Services Program <http://dsp-psd.pwgsc.gc.ca/Collection/CP22-77-2004E.pdf>
(accessed June 4, 2009) [Canada’s National Security Policy].
Canada’s National Security Policy, p. 9.
Canada’s National Security Policy, pp. 10-13.
Canada’s National Security Policy, p. 12.
35
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Volume Three: The Relationship Between Intelligence and Evidence
Canada. As Professor Hoffman suggested, a critical responsibility of an NSA is to
establish community-wide intelligence priorities.64
Intelligence priorities should be centrally coordinated, informed by careful
analysis of intelligence to determine the most important threats, the biggest
gaps and the most strategic vulnerabilities.65 This does not mean that the Prime
Minister or the NSA should run CSIS or the CSE. These agencies will develop
their own strategic plans, consistent with the priorities set by the Government
of Canada. In appropriate cases, however, it is perfectly permissible for the
Government, acting through the Prime Minister and the NSA and in consultation
with the appropriate minister(s), to adjust the priorities of intelligence agencies
and to coordinate them with other Government priorities.
The setting of priorities in the national security field is a matter of daunting
complexity. There is a need for input from many departments and agencies, and
Canada’s National Security Policy can be influenced by a wide range of domestic
and international factors. Only the Prime Minister and the NSA can ensure that
each agency’s priorities fit into the larger picture. Only they have the incentive
and the ability to determine if the multiple departments and agencies with
national security responsibilities are working well together.
As discussed earlier, the NSA already has responsibilities as a Deputy Minister
for the Communications Security Establishment, Canada’s signals intelligence
agency, which obtains information from the global communications
infrastructure. Although this responsibility may be delegated to the Deputy
National Security Advisor because of the enhanced responsibilities that would
be given to the NSA under the Commission’s recommendations, it is important
that the NSA retain some connections with CSE. As the narrative of this report
has revealed, relevant information obtained by CSE was not distributed before
the Air India bombing. Increases in the threat of international terrorism make
it more likely that CSE will obtain information of relevance to the NSA and
other agencies. It is also important that the activities of CSE be guided by the
Government’s intelligence priorities.
The establishment of priorities is a critical function of the NSA. This function
cannot be carried out without adequate staff. As suggested by Rudner, the
establishment of national security priorities should ideally be informed by
intelligence analysis. The talent for such analysis is most likely to be found within
the intelligence agencies, but, as Rudner suggests, there is a need to ensure
better career paths for such analysts, which may include time in the PCO.
As national security activities expand into areas such as aviation security and
preventing terrorist financing, there is a greater need to establish strategic
policies and priorities. Although the responsible agencies and departments
should develop policies in the first instance, the NSA might have a role in
64
65
Testimony of Bruce Hoffman, vol. 94, December 12, 2007, pp. 12544-12545.
Rudner Paper on Building Counter-Terrorism Capacity, pp. 133-137.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
ensuring that the policies accord with overall governmental policies. The NSA
might also help resolve disputes about the nature of a particular policy or its
implementation.
The NSA might also play a role in developing policy to respond to deficiencies
in anti-terrorist-financing programs, which may be revealed by domestic or
international reviews or by conflicts between the multiple agencies that are
involved in preventing terrorist financing. One example is the need to establish
adequate performance indicators and assessment mechanisms for programs
aimed at terrorist financing. Although the NSA would call on the agencies to
implement the policies, the NSA would have a role in ensuring that adequate
policies were in place and were followed.
2.3.3.2 Coordination of National Security Activities, Including Distribution
of Intelligence
The NSA’s present role should be expanded to include responsibility for the
strategic coordination of the government’s response to terrorist threats. The
most important enhanced role might be to ensure coordination of the various
agencies responsible for national security, including addressing issues that
arise from the distribution of intelligence within government. The NSA might
play an important role in ensuring that sufficient information is shared among
agencies.
There is a need to ensure that intelligence gets into the hands of the proper
decision makers. Such distribution should help prevent the dysfunctional
relationships and poor flow of intelligence that tainted the pre- and postbombing Air India investigations. There is also a need to ensure that intelligence
agencies implement the priorities that have been set for them. At the same time,
care should be taken to avoid collecting intelligence for the sake of collecting
intelligence; the collection must have a legitimate purpose.
Unlike the Director of CSIS or the RCMP, the NSA should have no institutional
bias favouring a particular response. The NSA should not have a bias towards
maintaining the CSIS intelligence investigation or commencing a process
that may end in a prosecution. Instead, the NSA should have the necessary
independence to make decisions in the public interest regardless of their
popularity with a particular agency.
The enhanced role of the NSA will require the NSA to work closely with the
responsible ministers and deputy ministers to ensure compliance with the
Government’s national security strategy. For instance, in the unlikely event of a
senior official rejecting specific advice from the NSA, that senior official would
be required to provide a written explanation to the official’s responsible minister.
At that point, the matter would be dealt with at the ministerial level, with the
involvement of the Prime Minister if needed.
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In appropriate cases, ministers should intervene, as the former Solicitor General
did to resolve the dispute between the RCMP and CSIS about access to CSIS
material in the post-bombing Air India investigation. In such a case, the NSA can
ensure that the Prime Minister is aware of, and supports, the minister’s actions.
The NSA may have an even more important role where two agencies headed
by different ministers are not cooperating adequately. Examples could include
conflicts between foreign affairs and domestic security agencies or conflicts
involving the agencies responsible for anti-terrorist financing initiatives
and aviation security.66 The NSA would have the responsibility to manage
interagency relationships so that conflicts are dealt with efficiently and in the
public interest.
It is important that the NSA regularly brief the Prime Minister about threats to
national security so that the Prime Minister can advise Cabinet colleagues. These
briefings can assist the Prime Minister in dealing directly with the responsible
ministers to ensure cooperation among agencies.
Each agency with national security responsibilities should have to submit to
the NSA’s decisions and authority. The only exception would be if the minister
responsible for the agency was prepared to take the matter to the Prime
Minister for decision. It is unacceptable for individual agencies to operate in
silos, unconcerned about the impact of their decisions on other governmental
actors or on the broader public interest.67 Interagency competition must be
avoided and strongly discouraged.
In difficult or disputed cases, the NSA would be responsible for determining
how and when the government should respond. This might involve engaging
the RCMP or Citizenship and Immigration, CBSA or CRA officials, or pursuing
diplomatic initiatives. The NSA should determine, in his or her view, the most
effective response in the public interest. The fact that the NSA reports directly to
the Prime Minister will vest the position with sufficient power to command the
respect of the agencies involved.
2.3.3.3 The Need for a Privilege to Protect the NSA’s Deliberations and
Information Received by the NSA
The ability of the NSA to perform this enhanced role will depend on the NSA’s
ability to obtain information from agencies with national security responsibilities.
If CSIS provides information to the NSA, it will be necessary to ensure that
this does not place the information at risk of public exposure. The advice and
information provided to the NSA should be protected by a new national security
66
67
On the tensions between the role of Transport Canada and the Canadian Air Transport Security
Authority (CATSA), see the review of the Canadian Air Transport Security Authority Act by the
CATSA Advisory Panel: Flight Plan: Managing the Risks in Aviation Security - Report of the Advisory
Panel, paras. 2.4 and 4.3 and ch.6, online: Transport Canada <http://www.tc.gc.ca/tcss/catsa/
final_report-rapport_final/final_report_e.pdf> (accessed July 31, 2009).
There are some legitimate exceptions, given the constitutional status of police independence and
prosecutorial discretion, both of which are discussed in Chapter III.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
privilege, beyond the reach of the courts or access to information legislation.
Similarly, the NSA’s deliberations about managing terrorist threats should be
privileged. This legal protection will construct a “safe house” in which CSIS,
other agencies and the NSA can discuss a terrorist threat freely without concern
that public exposure may thwart efforts to control the threat. Such a privileged
“safe house” is necessary to ensure that the NSA can effectively coordinate
the Government’s response to security threats. The legal details of such a new
privilege are discussed in Chapter VI.
The deliberations of the NSA, and information prepared by the agencies for the
NSA, should be protected from disclosure by a new class-based national security
privilege patterned after the privilege that applies to Cabinet deliberations under
section 39 of the Canada Evidence Act. Making communications between CSIS
and the NSA privileged would eliminate the concerns of CSIS about disclosure.
The same privilege would also apply if the CSE or other agencies provided
information to the NSA. All information prepared for and considered by the NSA
would be covered by the new privilege.68
The NSA would have the authority to disclose information to the RCMP or to
other agencies, and the privilege would not apply to information once the NSA
disclosed it.69 This privilege would respond to the risk that the information could
not otherwise be protected from disclosure in legal proceedings by existing
privileges or by judicial non-disclosure orders under sections 37 and 38 of the
Canada Evidence Act.
Even without a new national security privilege, the risk is low that information
produced for and by the NSA would have to be disclosed publicly. If attempts
were made to obtain disclosure, the Attorney General of Canada could use
section 38 of the Canada Evidence Act to prevent the disclosure on the basis of
the harm that disclosure would cause to national security. For this reason, the
measures recommended in this chapter to enhance the role of the NSA should
not be delayed until the enactment of legislation on the new national security
privilege.
If CSIS wanted to withhold information from another agency, the NSA would
have the authority to require CSIS to provide the information to that agency.
The NSA would consider the interests of CSIS and might chose a way to manage
the threat that did not place the CSIS information or a related CSIS investigation
at risk.
This new arrangement for sharing information with the NSA should not preclude
CSIS from exercising its discretion to provide information to the RCMP.70 CSIS
68
69
70
The details of this new privilege, patterned after the provisions for the confidentiality of Cabinet
confidences in s. 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5 [Canada Evidence Act], are discussed
in Chapter VI.
Other privileges, such as national security privilege under s. 38 of the Canada Evidence Act could,
however, still be claimed. This is discussed in Chapter VI.
This information will also have to be passed to the NSA.
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Volume Three: The Relationship Between Intelligence and Evidence
would continue to share information when it decided that it was appropriate
to do so. There would be no need to go through the NSA when CSIS decides to
disclose information to another agency.
2.3.3.4 The Relationship between the NSA and CSIS
At present, sections 12 and 19 of the CSIS Act permit CSIS to share intelligence
with other agencies in a number of situations. For example, the Service may
share information with the RCMP, local law enforcement agencies, the Minister
of Foreign Affairs, the Minister of National Defence or any other Minister of the
Crown or person in the federal public administration.71 Reform of the role of the
NSA should not affect this. CSIS should continue to be able to pass on relevant
information to the police and other officials.
Typically, CSIS will have obtained as much intelligence about a threat as anyone
else in government. However, the NSA might sometimes want additional
information or wish to solicit additional points of view. To that end, the NSA
should be empowered to meet with representatives from any government
agency – be it the CRA, the Financial Transactions and Reports Analysis Centre
of Canada (FINTRAC)72 or any other agency – to discuss the threat and, where
necessary, to seek information. As well, the NSA could simply ask CSIS to obtain
the additional information that the NSA was seeking.
As discussed above, information provided to the NSA and discussions with the
NSA should be protected by a new national security privilege. This will remove
any incentive for agencies to withhold information from the NSA.
2.3.3.5 The Relationship between the NSA and Law Enforcement Agencies
The NSA is primarily concerned with responses to terrorist threats on the basis
of intelligence information and has no responsibility for conducting criminal
investigations. The NSA can provide information to the RCMP, which may lead it
to commence a criminal investigation. However, once the information is passed
to the RCMP, the NSA has no ongoing role in the investigation. It is a police
matter.73 The RCMP is then duty bound to conduct the investigation independent
of any outside influence. At the same time, as will be discussed below, the NSA
should be able to have contact with the RCMP about policy, dispute resolution
or about general matters relating to the effectiveness of operations, particularly
as they involve the RCMP working with other agencies. The NSA would have
no direct relationship with municipal and provincial forces. These police forces
already have various mechanisms to liaise with the RCMP.
71
72
73
CSIS Act, ss. 12, 19(2).
Limits placed on the disclosure of information from FINTRAC are discussed in Volume V. The NSA
should not generally need access to such information for his or her coordination or dispute resolution
duties. If necessary, the NSA could request CSIS or the RCMP to apply under the Proceeds of Crime
(Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 to obtain the necessary information.
Police independence is discussed in Chapter III.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
This approach emphasizes the RCMP’s independent and primary role as the
police force responsible for criminal investigations relating to terrorism.
In some cases, it may be appropriate for the NSA to provide information to the
Attorney General of Canada when that information is relevant to the exercise of
prosecutorial discretion.74
In practice, Integrated National Security Enforcement Teams (INSETs) serve as
information hubs for local police forces and CSIS. The basic principle is that local
police forces move information that may have national security implications from
local detachments to an INSET. The INSET, in turn, should send that information
to CSIS to help CSIS generate intelligence. When CSIS provides advice to the
NSA, CSIS will have benefited from any local police information in preparing that
advice. The importance of the information flow from INSETs to CSIS and to the
NSA will increase if domestic terrorist groups continue to develop as a serious
threat to national security. CSIS will have sufficient coverage to understand a
threat, but local police officers and others might provide useful additional
sources of information for CSIS.75
2.3.3.6 Resolving Disputes between the Agencies, Including Disputes Arising
from the Intelligence/Evidence Relationship
The NSA should also assist in resolving the disputes that will inevitably arise
when multiple agencies with different mandates work on the same terrorist
issues. Disputes will occur as a result of the competing demands, on one hand,
to keep intelligence secret and, on the other, to disclose it for criminal trials.
These conflicts cannot easily be resolved. All agencies involved could benefit
from the NSA’s participation. This is an area of critical importance, as revealed by
the Air India investigation, and an area where Canada has the potential to break
new ground in coordinating national security activities.
Conflicts may increase because many activities are newly described as terrorist
crimes under the Anti-terrorism Act,76 and because the nature of a terrorist threat
may require law enforcement powers to be used to stop suspects from engaging
in lethal terrorist activities.
Elliott testified that the NSA has played a role in bringing others together to
discuss important matters of national security. His own experience included
preparing the response to the O’Connor Commission.77 This experience suggests
that there is a legitimate role for central coordination with respect to some of
the issues arising from the relationship between intelligence and evidence, even
though the ultimate responsibility for dealing with issues of privilege under
section 38 lies with the Attorney General of Canada.
74
75
76
77
Prosecutorial discretion is discussed in Chapter III.
As well, local forces may provide information of a national security offence that may form the basis of
an investigation by the INSET.
S.C. 2001, c. 41.
Testimony of William Elliott, vol. 90, December 6, 2007, p. 11827.
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The dispute resolution role of the NSA could help to prevent the types of conflicts
that infected and slowed the Air India investigation. Bloodworth explained
how the NSA can resolve disputes through the exercise of moral suasion. She
described her ability to meet with the heads of CSIS and the RCMP to encourage
them to resolve disputes.
Hoffman emphasized the important dispute resolution role that a national
security coordinator could play. He testified that there is an “…advantage of
having someone with this kind of responsibility…[to] facilitate the successful
resolution of these types of internal conflicts or disputes…[to] adjudicate
between the different agencies, not ride roughshod over them but, nonetheless,
the direct opposite of having one agency to slam the door in the face of
another agency and [the national security coordinator] at least can provide
some mechanism to ensure the flow of appropriate intelligence and necessary
intelligence to whom and where and when it’s most needed.”78
2.3.3.7 Oversight of the Effectiveness of National Security Activities
As the account of the pre- and post-bombing Air India investigation illustrates,
the prevention and prosecution of terrorism implicates many agencies. These
include police, security intelligence, transportation and immigration agencies,
to mention a few. In a 2004 report, the Auditor General of Canada remarked
on the need for improved coordination on security issues that “cross agency
boundaries,” such as “…information systems, watch lists, and personnel
screening.”79 Later that year, the Auditor General commented, with respect to
terrorist financing, that there was a lack of “…effective procedures for resolving
interdepartmental disputes and ensuring accountability for results. We found, as
we had in our audit of the anti-terrorism measures of 2001, that the government
did not have a management framework to direct complementary actions in
separate agencies.”80
The work of the O’Connor Commission and the Iacobucci Internal Inquiry into
the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad AbouElmaati and Muayyed Nureddin also underline how various elements of the
Canadian government, including CSIS, the RCMP and the Department of Foreign
Affairs, may become involved in complex international terrorism investigations.
The O’Connor Commission listed 16 departments and agencies that the federal
government identified as having “key” national security responsibilities.81 That
Commission recommended a new, integrated, independent and self-initiated
78
79
80
81
Testimony of Bruce Hoffman, vol. 94, December 12, 2007, pp. 12519-12520.
Report of the Auditor General of Canada to the House of Commons, March 2004, Chapter 3: “National
Security in Canada - The 2001 Anti-Terrorism Initiative,” para. 3.161, online: Office of the Auditor General
of Canada <http://www.oag-bvg.gc.ca/internet/docs/20040303ce.pdf> (accessed June 4, 2009).
Report of the Auditor General of Canada to the House of Commons, November 2004, Chapter 2:
“Implementation of the National Initiative to Combat Money Laundering,” para. 2.27, online: Office
of the Auditor General of Canada <http://www.oag-bvg.gc.ca/internet/docs/20041102ce.pdf>
(accessed January 16, 2009).
A New Review Mechanism for the RCMP’s National Security Activities, p. 127.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
review of national security responsibilities, with a focus on the propriety of such
activities, including their legality, fairness and proportionality.
There is an equal need for oversight of the efficacy of the government’s many
national security activities. Commissioner O’Connor described the differences
between propriety-based review and efficacy-based oversight. Review is
conducted after the fact and “…at arm’s length from both the management of
the organization being reviewed and from the government.”82 It evaluates an
agency’s conduct against standards like lawfulness and/or propriety. In contrast,
“…oversight mechanisms are often directly involved in the decision making of
the organization they oversee”:
Involvement can be through setting standards against which
the organization’s activities are evaluated, pre-approving
operations, implementing and enforcing recommendations,
and/or imposing discipline. The organization’s activities are
sometimes assessed while they are going on. In their pure
forms, oversight mechanisms can be seen as direct links in the
chain of command or accountability: they both review and are
responsible for the activities of the overseen body.83
Efficacy-based oversight focuses on whether the agencies have the competence
and capacity to do their jobs and on whether their activities are sufficiently
coordinated to accomplish the ultimate job of preventing terrorism. Such
oversight is of critical importance.84
The NSA would be best positioned to conduct efficacy-based oversight. The NSA
would have, under the new structure, access to all the information that is required
to judge efficacy. Moreover, the NSA will have access to the Prime Minister, who
might require improvements in the efficacy of the national security system. The
deliberations of the NSA would be subject to the new national security privilege
discussed above. Although the secrecy protected by such a privilege might limit
the transparency that may be required for propriety-based review, secrecy will
often be required in efficacy-based oversight.
The ability of the NSA to oversee the effectiveness of national security activities
should not displace the responsibilities of ministers to ensure the efficient
operation of the individual agencies and departments. The NSA should not
hesitate to bring problems to the attention of the appropriate deputy minister
or agency head for remedial action. However, the NSA should not be expected
to supervise the details of the remedial action.
82
83
84
A New Review Mechanism for the RCMP’s National Security Activities, pp. 456-457.
A New Review Mechanism for the RCMP’s National Security Activities, p. 457.
Commissioner O’Connor did not dispute the importance of efficacy-based oversight, but believed
that it was not within his mandate to make recommendations about reviewing the RCMP’s national
security activities.
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2.3.3.8 Staffing the National Security Advisor’s Office
The NSA should have a background in intelligence and a good understanding
of the federal government and how law enforcement works. The NSA must
also appreciate that there is no preferred response to terrorist threats, that each
threat must be assessed individually and that the response must be tailored
accordingly. The best individual from within or outside of government should
be sought. An individual with these attributes will command the respect of the
national security community and be able, as a result, to exercise the functions of
the position independently and effectively.
The NSA should be appointed by the Prime Minister, preferably for a fixed term.
A fixed term is useful to avoid the NSA becoming beholden to various interests.
As well, a fixed term is necessary to avoid “burn out,” as this will be one of the
most demanding positions in government.
The NSA would receive information and advice from CSIS and from other
agencies about threats to national security and would be responsible for
determining how the government should respond. To do this, the NSA would
need a modest full-time staff to assist in processing the advice provided by CSIS
and in evaluating the merits of any proposed response.
The goal is to avoid a bureaucracy that duplicates that of other agencies. The
purpose is to develop analysts who can support the NSA in serving the public
interest – that is, serving without being blinkered by the vested interests of a
particular agency.
The NSA will need a modest number of staff members who can advise about
the efficacy of a specific government response to a threat. The NSA staff will
also assist in preparing briefings for the Prime Minister. It will be for the NSA to
determine the precise staffing requirements.
The NSA will need support in assessing the usefulness of passing the information
to law enforcement agencies. The NSA should have secondees from the RCMP
on staff.
The PCO structure supporting the NSA should be flexible enough to allow for
hiring from the academic and private sectors and from abroad, as needed,
and with appropriate security vetting. The NSA will also need adequate legal
expertise, especially to address disputes that may arise in the relationship
between intelligence and evidence. To this end, personnel from the office of the
proposed Director of Terrorism Prosecutions should, if needed, be seconded to
the staff of the NSA.85
85
See the discussion in Chapter III on the proposed Director of Terrorism Prosecutions.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
2.3.3.9 Limits on the Role of the National Security Advisor: No Direct
Budgetary or Personnel Control and Limited Operational Involvement
Hoffman’s proposals that a national security coordinator have direct budgetary
control over intelligence agencies and be able to hire and fire across the
intelligence community86 are not appropriate in the Canadian system, given
that the NSA reports directly to the Prime Minister. In the Canadian tradition
of parliamentary governance, an NSA with direct access to the Prime Minister
would not necessarily require formal budgetary powers or personnel powers
to exercise considerable authority. Although she advocated that budgeting
decisions remain at the ministerial level, Bloodworth noted that the NSA could
influence budgeting and high-level personnel decisions by way of access to the
Prime Minister.
There may be merit in Rudner’s proposal that the NSA have access to discretionary
funds that could be allocated to agencies on a strategic basis.87 The NSA would
act as a transfer agency and the agency receiving the funds would remain
accountable through ordinary channels about how it spent the funds.
The proposed NSA should not be involved in the day-to-day operations of the
police, prosecuting and intelligence agencies. The NSA may, however, need to
become involved in specific cases if they raise issues of policy, coordination, the
resolution of disputes between the agencies or the need to intervene as part of
effective oversight.
2.3.3.10 International Best Practices on Central Coordination of National
Security Activities
The enhanced role for the NSA contemplated above is consistent with evolving
international best practices.
In the United Kingdom, intelligence coordination is led by the Prime Minister’s
Security Adviser and Head of Intelligence, Security and Resilience, in the Cabinet
Office. He chairs the Joint Intelligence Committee (JIC), the central agency of the
government responsible for security and intelligence. The JIC has an analytical
capacity and a coordinating role. The JIC does not override the decisions of the
Director of the British Security Service (MI5), but has great influence.88
As in Canada, the central machinery is supported by the civil service in the form of
an Intelligence and Security Secretariat, which is designed “…to ensure that the
Prime Minister and other senior Ministers are well served on cross-Government
86
87
88
Testimony of Bruce Hoffman, vol. 94, December 12, 2007, pp. 12544-12545.
Rudner Paper on Building Counter-Terrorism Capacity, pp. 138-139.
Testimony of Martin Rudner, vol. 92, December 10, 2007, pp. 12256-12257. See also National
Intelligence Machinery, pp. 20-27, online: Cabinet Office (United Kingdom) <http://www.cabinetoffice.
gov.uk/media/136045/national_intelligence_booklet.pdf> (accessed July 28, 2009).
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intelligence policy and security issues.”89 As in Canada, these forms of crossgovernmental central coordination mirror similar intelligence coordination at
lower levels. In Canada, this integration occurs through the Integrated Threat
Assessment Centre and, in Britain, it occurs through the Joint Terrorism Analysis
Centre. Although both bodies are located in intelligence agencies, both also
involve the police.
In December 2008, after conducting a review of its national security activities,
Australia appointed an NSA within the Prime Minister’s Department with
responsibilities for coordination matters. These included the training of executives
in a whole-of-government approach and a more coordinated budgeting
process to establish priorities across portfolios. The Australian NSA will also be
responsible for an evaluation mechanism that will “…consider performance
against whole-of-government outcomes in light of the priorities set out in the
National Security Statement.”90 Australia’s new NSA will also participate in a
committee of secretaries or deputy ministers and will chair a national security
intelligence coordination committee.91 The Australian developments are notable
because of their focus on the relationship between evidence and intelligence
and the need for continuity of legal advice to both police forces and security
intelligence agencies at all stages of terrorism investigations and prosecutions.
The Australian developments are also notable for the role that an NSA located
in the Prime Minister’s Office can play in coordinating and evaluating national
security activities from a whole-of-government perspective, and in view of the
government’s strategic priorities.
In the United States, the 9/11 Commission recommended greater integration
of counterterrorism activities across the foreign/domestic divide as well as
greater information sharing. Some of that Commission’s proposals for more
central oversight of intelligence by a Director of National Intelligence (DNI) were
implemented in the Intelligence Reform and Terrorism Prevention Act of 2004.
It is clear that democracies are seeking to improve central coordination of
national security activities. To achieve this, they are drawn to the idea of having
a person at the centre with the authority to ensure coordination and resolve
disputes among agencies, to establish and monitor the implementation of
strategic security priorities, and to assess the efficacy of increasingly complex
multi-agency national security systems.
2.3.3.11 Summary of the National Security Advisor’s Enhanced Role
As former RCMP Commissioner Giuliano Zaccardelli testified, there is a need for
someone with the necessary credibility and stature and who is not beholden to
89
90
91
“Directorate of Security and Intelligence,” online: Cabinet Office (United Kingdom) <http://www.
cabinetoffice.gov.uk/secretariats/intelligence_and_security.aspx> (accessed July 28, 2009).
Hon. Kevin Rudd, “The First National Security Statement to the Australian Parliament” (December 4,
2008), online: The Australian <http://www.theaustralian.news.com.au/files/security.pdf> (accessed July
31, 2009) [Rudd National Security Statement to Australian Parliament].
Rudd National Security Statement to Australian Parliament.
�Chapter II: Coordinating the Intelligence/Evidence Relationship
vested interests to bring the heads of sometimes warring agencies together and
“…make them work for the good of Canada.”92 An NSA with an enhanced role
could perform that function and bring the public interest to bear on thorny issues
concerning: 1) strategic national security policies and priorities, 2) coordination
of national security activities, 3) dispute resolution between agencies with
national security responsibilities and 4) oversight of the effectiveness of the
government’s national security activities.
Recommendation 1:
The role of the National Security Advisor in the Privy Council Office should be
enhanced. The National Security Advisor’s new responsibilities should be as
follows:
• to participate in setting strategic national security policies and
priorities;
• to supervise and, where necessary, to coordinate national security
activities, including all aspects of the distribution of intelligence
to the RCMP and to other government agencies;
• to provide regular briefings to the Prime Minister and, as required,
to other ministers;
• to resolve, with finality, disputes among the agencies responsible
for national security;
• to provide oversight of the effectiveness of national security
activities; and
• to carry out the government’s national security policy in the public
interest.
In carrying our these new duties, the National Security Advisor should be
assisted by a Deputy and by a staff of secondees from agencies which have
national security responsibilities, such as CSIS, the RCMP, the CBSA, and DFAIT.
The National Security Advisor should continue to support relevant Cabinet
committees and serve as Deputy Minister for the CSE, but these duties could, if
necessary, be delegated to the Deputy National Security Advisor or to another
official within the office of the NSA.
Measures to enhance the role of the NSA should not be delayed until the
enactment of legislation on a new national security privilege.
92
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11077-11081.
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�VOLUME THREE
THE RELATIONSHIP BETWEEN
INTELLIGENCE AND EVIDENCE AND
THE CHALLENGES OF TERRORISM PROSECUTIONS
CHAPTER III: COORDINATING TERRORISM PROSECUTIONS
3.0 Introduction
Unlike most criminal investigations, terrorism investigations involve the use
of secret intelligence from domestic and foreign sources. The decision to
commence a terrorism prosecution arising from such investigations must be
sensitive to the need to protect secret intelligence. Terrorism prosecutions
also present formidable coordination issues because they can involve multiple
police forces and multiple prosecuting agencies. Because of these coordination
issues and the national and international implications of terrorism prosecutions,
locating and centralizing them at the federal level is desirable.
The Attorney General of Canada plays an important role under section 38 of the
Canada Evidence Act1 by seeking to prevent disclosure of sensitive information
to protect national security, national defence or international relations. These
powers are not available to provincial Attorneys General or to the new federal
Director of Public Prosecutions. As a result, any terrorism prosecution that raises
the issue of disclosing secret intelligence will involve the Attorney General of
Canada as a key participant.
Either a provincial Attorney General or the Attorney General of Canada must
consent to the commencement of a terrorism prosecution – another distinction
from many other criminal prosecutions.2 This qualifies the traditional doctrine
of police independence, which generally gives individual police officers the
discretion to commence a prosecution by laying charges. This limitation on
police independence stems from the danger that a terrorism prosecution could
result in the disclosure of secret intelligence and could also disrupt ongoing
security intelligence investigations.
Prosecutorial discretion is also affected by the unique characteristics of
terrorism prosecutions. Although prosecutors must independently exercise
their discretion with respect to the laying and continuation of charges, they
may also require information from others in government to help inform their
1
2
R.S.C. 1985, c. C-5.
Criminal Code, R.S.C. 1985, c. C-46, s. 83.24 [Criminal Code].
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exercise of discretion. It would be permissible for a minister or for the National
Security Advisor (NSA), with the enhanced powers recommended for the NSA
in this volume, to provide prosecutors with information about how a particular
terrorism prosecution may affect the operations of a foreign or domestic security
intelligence agency.
Terrorism prosecutions differ from other prosecutions because of the Attorney
General of Canada’s ability to take over prosecutions commenced by a
provincial Attorney General.3 This extraordinary federal power is related to the
national significance of terrorism prosecutions and concerns about the possible
disclosure of sensitive intelligence that Canada has produced or that it has
received from its allies. In addition, terrorism prosecutions of the magnitude of
the Air India trial would strain the resources of many provinces. For this reason,
the federal government was heavily involved in the Air India trial through costsharing arrangements with British Columbia.
The Attorney General of Canada’s critical role in terrorism prosecutions raises
the question of whether he or she should be made responsible for all such
prosecutions. A centralized approach of this nature would ensure a more
coordinated and integrated handling of terrorism prosecutions. This would to
some extent mirror the coordination role proposed for the NSA in Chapter II.
3.1 Limits on Police Discretion in Terrorism Investigations and
Prosecutions
It can be argued that officials such as the NSA should not be involved in
discussions of individual prosecutions, since this creates a risk of interference
with police independence. However, such arguments often fail to take into
account the parameters of police independence in the context of terrorism
offences.
Police independence from government is an important principle. In the
Campbell case, the Supreme Court of Canada recognized that “…[a] police officer
investigating a crime is not acting as a government functionary or as an agent
of anybody. He or she occupies a public office initially defined by the common
law and subsequently set out in various statutes.”4 The Court stressed that it
was dealing with an RCMP officer “…in the course of a criminal investigation,
and in that regard the police are independent of the control of the executive
government.” This principle “…underpins the rule of law.”5 The Court added that,
“…[w]hile for certain purposes the Commissioner of the RCMP reports to the
Solicitor General, the Commissioner is not to be considered a servant or agent of
the government while engaged in a criminal investigation. The Commissioner
3
4
5
Security Offences Act, R.S.C. 1985, c. S-7, s. 4 (ability of the Attorney General of Canada to prosecute
offences that also constitute threats to the security of Canada); Criminal Code, s. 83.25(1) (ability of the
Attorney General of Canada to prosecute terrorism offences).
R. v. Campbell, [1999] 1 S.C.R. 565 at para. 27.
[1999] 1 S.C.R. 565 at para. 29.
�Chapter III: Coordinating Terrorism Prosecutions
is not subject to political direction. Like every other police officer similarly
engaged, he is answerable to the law and, no doubt, to his conscience.”6
Justice Hughes, in his interim report on the 1997 APEC demonstrations in
Vancouver, commented:
In my view, there are compelling public policy reasons not
to extend the concept of police independence beyond that
set out in Campbell. The issue is one of balance. It is clearly
unacceptable for the federal government to have the authority
to direct the RCMP’s law enforcement activities, telling it who
to investigate, arrest and prosecute, whether for partisan or
other purposes. At the same time, it is equally unacceptable for
the RCMP to be completely independent and unaccountable,
to become a law unto themselves.7
Commissioner O’Connor recognized the danger of government direction of
police investigations:
If the Government could order the police to investigate, or
not to investigate, particular individuals, Canada would move
towards becoming a police state in which the Government
could use the police to hurt its enemies and protect its friends,
rather than a free and democratic society that respects the rule
of law.8
This understanding of police independence is consistent with that articulated
in 1981 by the McDonald Commission, which stressed that ministers have
no right to direct the RCMP in its use of powers of investigation, arrest
and prosecution.9 However, Commissioner O’Connor noted that police
independence cannot be absolute. Otherwise, it “…would run the risk of
creating another type of police state, one in which the police would not be
answerable to anyone.”10
6
7
8
9
10
[1999] 1 S.C.R. 565 at para. 33.
Commission for Public Complaints Against the RCMP, RCMP Act-Part VII Subsection 45.45(14),
Commission Interim Report Following a Public Hearing Into the Complaints regarding the
events that took place in connection with demonstrations during the Asia Pacific Economic
Cooperation Conference in Vancouver, BC in November 1997 at the UBC Campus and at the UBC
and Richmond detachments of the RCMP (Ottawa: RCMP Public Complaints Commission, 2001),
pp. 83-84.
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review
Mechanism for the RCMP’s National Security Activities (Ottawa: Public Works and Government Services
Canada, 2006), p. 458 [A New Review Mechanism for the RCMP’s National Security Activities].
Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom
and Security under the Law, Second Report - vol. 2 (Ottawa: Supply and Services Canada, 1981), p. 1013
[Freedom and Security under the Law].
A New Review Mechanism for the RCMP’s National Security Activities, p. 460.
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The principle of police independence has been qualified in the national security
context:
….the RCMP and other police forces must have the Attorney
General’s consent before laying charges for a terrorism offence
under the Criminal Code or the Security of Information Act, and
before using the extraordinary police powers of investigative
hearings or preventative arrests related to terrorism
investigations. As this approval requirement relates directly to
individual criminal investigations, it can be seen as a restraint
on the doctrine of police independence.11
Although statutory provisions authorizing preventive arrests and investigative
hearings have now been repealed, the requirement that the Attorney General
of Canada or a provincial Attorney General consent to the laying of charges for a
terrorism offence remains under section 83.24 of the Criminal Code.12
What is the rationale for limiting the independence of police officers to lay
charges in terrorism cases? One is that the requirement for the Attorney
General’s prior consent will help to ensure that serious terrorism charges are
laid only in appropriate cases. Certain other Criminal Code offences similarly
require the consent of the Attorney General before charges are laid.13 Another
rationale, unique to the national security context, is that requiring the Attorney
General’s consent can assist in managing the relationship between intelligence
and evidence. Normally, a police officer has full discretion to lay charges, which
could subsequently be stayed by the Attorney General or his or her authorized
delegate. The public act of laying charges in the national security context could,
however, compromise the secrecy of ongoing intelligence investigations.
The requirement for the Attorney General to consent to the laying of charges
gives the Attorney General the chance to prevent the laying of charges if, in his or
her view, the public interest lies in continuing an intelligence investigation or in
protecting intelligence, including the identities of providers of intelligence, such
as human sources, from the risk of being disclosed in a terrorism prosecution.
The ability of the Attorney General to prevent the laying of charges on such a
basis also contemplates that the Attorney General will have access to relevant
information about intelligence investigations and about the risks that could
flow from the disclosure of intelligence.
The O’Connor Commission noted how, within the RCMP, the increased central
oversight of national security investigations placed appropriate limits on
individual police officers.
11
12
13
A New Review Mechanism for the RCMP’s National Security Activities, p. 460.
R.S.C. 1985, c. C-46. The consent of the Attorney General of Canada must be obtained to lay charges
under the Security of Information Act: R.S.C. 1985, c. O-5, s. 24.
See, for example, ss. 318(3) and 319(6).
�Chapter III: Coordinating Terrorism Prosecutions
Central oversight within the RCMP does not raise the same constitutional
concerns about limiting police discretion. It reflects the fact that national
security policing may have broader implications than other forms of policing.
Unlike other criminal investigations, national security investigations could affect
security intelligence agencies and even Canada’s relations with other countries.
There are good reasons why individual police officers should not have the ability
unilaterally to commence a complex terrorism prosecution that could have an
impact on agencies both inside and outside Canada.
The mere fact that the additional powers proposed by the Commission for the
NSA would enable it to compel CSIS to provide intelligence information to the
RCMP would not compromise police independence. The expanded role of the
NSA would not involve directing the police about the conduct of their terrorism
investigations or about possible charges. It would simply permit the NSA to
require that information be given to the RCMP, where appropriate. The police
would remain free to do what they wished with information provided by the
NSA.
Other authorities on police-government relations have recognized that
the responsible minister can interact with the police without undermining
police independence. For example, Commissioner O’Connor noted that, “…
[w]hile direction of operational matters is more controversial, I agree with
the McDonald Commission that, if it raises an important question of public
policy…. [the Minister] may give guidance to the [RCMP] Commissioner and
express to the Commissioner the government’s view of the matter.”14 The
McDonald Commission, in turn, drew a distinction between the impropriety of
the responsible minister directing the RCMP about law enforcement powers of
investigation, arrest and prosecution, and the legitimate ability of the minister
to be “…informed of any operational matter, even one involving an individual
case, if it raises an important question of public policy. In such cases, he may
give guidance to the [RCMP] Commissioner and express to the Commissioner
the government’s view of the matter, but he should have no power to give
direction to the Commissioner.”15
The NSA should have the same powers as the responsible minister when it
comes to informing the RCMP about policy matters that may arise in particular
investigations. Indeed, the enhanced powers of the NSA proposed in this volume
would allow the NSA to inform the RCMP about policy matters from the unique
perspective of the NSA, situated at the centre of government.
Concerns about the NSA interfering with police independence are also lessened
because the police do not have their traditional powers to lay charges when
terrorism offences under the Criminal Code are involved. As discussed earlier,
the police require the consent of an Attorney General to lay a terrorism charge.16
14
15
16
A New Review Mechanism for the RCMP’s National Security Activities, p. 463.
Freedom and Security under the Law, Second Report - vol. 2, p. 1013.
Criminal Code, s. 83.24.
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Thus, the ultimate act of independence of the police, the ability of an individual
police officer to lay charges, has already been reduced.
A second problem addressed by the principle of police independence is the risk
of political interference through the placement of limitations on investigations
and on decisions to lay charges to protect friends of the government. Such
interference would undermine the rule of law, which requires that the law apply
to all individuals. This dimension of police independence, however, can create
some difficulties in national security matters because the NSA and others in
government may have intelligence, including intelligence obtained from other
governments, that may be relevant to an ongoing police investigation, but that
cannot be disclosed to the police because of the risk that it will have to be made
public.
The NSA could help to resolve disputes that may arise between CSIS and the
RCMP about terrorism investigations. It may even be appropriate for the NSA
to communicate to all relevant parties, including the RCMP, the Government’s
views about the merits of a prosecution instead of a measure that maintains the
secrecy of intelligence and ongoing investigations.
The idea that the police should be informed about the Government’s views on a
criminal matter is not without critics. Ontario’s Ipperwash Inquiry recommended
that the responsible minister should “…not have the authority to offer ‘guidance’
as opposed to ‘direction.’”17 The reforms proposed by this Commission do not
contemplate the NSA providing “guidance” or “direction” to the police, but
merely information.
Preventing the government from making its views known to the police in national
security cases would be unworkable. Police actions in the national security
field can have unanticipated effects on Canada’s relations with other states, on
national defence and on multilateral security intelligence investigations. Police
actions may also affect the information that must be disclosed in subsequent
prosecutions and the actions that the Attorney General of Canada may have to
take under section 38 of the Canada Evidence Act to protect information from
disclosure. The need to take these issues into account suggests that police and
prosecutors require relevant information from the Government of Canada.
3.2 The Role of Prosecutorial Discretion in Terrorism Cases
Managing the difficult relationship between intelligence and evidence is
not only made more complicated by concerns about police discretion and
independence, but also by concerns about the independence of the Attorney
General and prosecutors. It is a constitutional principle that the Attorney
General is independent from the Cabinet in which he or she sits when exercising
prosecutorial discretion about bringing or continuing a prosecution. The
17
Report of the Ipperwash Inquiry, vol. 2 - Policy Analysis (Toronto: Ministry of the Attorney General,
2007), p. 358.
�Chapter III: Coordinating Terrorism Prosecutions
Supreme Court of Canada explained that “…[t]he gravity of the power to bring,
manage and terminate prosecutions which lies at the heart of the Attorney
General’s role has given rise to an expectation that he or she will be in this
respect fully independent from the political pressures of the government.”18
However, independence has never meant that the Attorney General cannot
receive relevant information from the Prime Minister and other Cabinet
colleagues. Lord Shawcross, in a famous statement concerning the proper
approach to the Attorney General’s independence, drew an important distinction
between the Attorney General’s practical and proper need to seek information
from Cabinet colleagues that may be relevant to exercising prosecutorial
discretion, and the impropriety of taking instructions about the exercise of
prosecutorial discretion.19
The ability of the Attorney General to engage in consultations with others, and
to obtain relevant information from them, is of particular importance in the
national security field where a terrorism prosecution may implicate intelligence
and foreign policy considerations well beyond the Attorney General’s traditional
area of expertise. To paraphrase from the more colourful parts of the famous
statement by Lord Shawcross, the Attorney General would “in some cases be a
fool” if he or she did not to consult with Cabinet colleagues who have important
information that will be relevant to the discharge of prosecutorial duties in
national security matters.20 Indeed, in exceptional cases, the Attorney General
might need to receive information about the fate of hostages or about vital
18
19
20
Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372 at para. 29.
“The true doctrine,” according to Lord Shawcross, “is that it is the duty of the Attorney General, in
deciding whether or not to authorize the prosecution, to acquaint himself with all the relevant facts,
including, for instance, the effect which the prosecution, successful or unsuccessful as the case may
be, would have upon public morale and order, and with any other consideration affecting public
policy. In order so to inform himself, he may, although I do not think he is obliged to, consult with any
of his colleagues in government, and indeed, as Lord Simon once said, he would in some cases be
a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of
particular considerations which might affect his own decision, and does not consist, and must not
consist, in telling him what that decision ought to be”: John Ll. J. Edwards, The Attorney General,
Politics and the Public Interest (London: Sweet & Maxwell, 1984), pp. 318-319 [Edwards, The Attorney
General, Politics and the Public Interest]. A Canadian Attorney General, Ron Basford, adopted this
pronouncement in the context of explaining a decision whether to consent to a prosecution under the
Official Secrets Act when he stated: “In arriving at a decision on such a sensitive issue as this, the
Attorney General is entitled to seek information and advice from others but in no way is he directed by
his colleagues in the government or by Parliament itself.”: Edwards, The Attorney General, Politics and
the Public Interest, pp. 359-360.
Edwards, The Attorney General, Politics and the Public Interest, p. 319. Although he admits that the
line between receiving factual information and opinions from other ministers about what action
should be taken is difficult “…to sustain with the required degree of certainty that gives the
appearance of stating a fundamental principle,,” Edwards interprets Lord Shawcross’ famous
statements as making “constitutionally improper” “…the expression by the Prime Minister, another
minister or the government of their individual or collective view on the question whether or not the
Attorney General should prosecute.”: Edwards, The Attorney General, Politics and the Public Interest,
pp. 323-324.
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information-sharing arrangements with foreign countries in order to be fully
informed in exercising prosecutorial discretion.21
In most cases, the role of the NSA would be to inform the Attorney General
of Canada or the relevant provincial Attorney General of the unforeseen
consequences of proceeding with a terrorism prosecution. Information from
the NSA might be equally important where a provincial Attorney General is
considering whether to consent to a terrorism offence prosecution.
The exclusive authority of the Attorney General of Canada to seek non-disclosure
orders and issue non-disclosure certificates under section 38 of the Canada
Evidence Act as well as the national implications of terrorism prosecutions justify
early federal involvement in terrorism prosecutions. It makes little sense for
a provincial Attorney General to consent to a terrorism prosecution without
knowing the position the Attorney General of Canada will take on section 38
national security confidentiality matters – matters which can have a critically
important impact on a prosecution. In addition, the Attorney General of Canada
can invoke powers under section 2 of the Security Offences Act22 to assume control
of terrorism prosecutions. This includes the power to stop such prosecutions.
The ultimate decision and accountability for the laying of terrorism charges and
terrorism prosecutions, however, depends on the independent judgment of the
relevant provincial Attorney General or the Attorney General of Canada. Still,
the Attorney General will often require information and even guidance from the
Government of Canada.
Recommendation 2:
The role of the National Security Advisor should be exercised in a manner that
is sensitive to the principles of police and prosecutorial independence and
discretion, while recognizing the limits of these principles in the prosecution of
terrorism offences. The principle of police independence should continue to be
qualified by the requirement that an Attorney General consent to the laying of
charges for a terrorism offence.
The Attorney General of Canada should continue to be able to receive relevant
information from Cabinet colleagues, including the Prime Minister and the
National Security Advisor, about the possible national security and foreign
policy implications of the exercise of prosecutorial discretion.
21
22
Edwards describes as “clearly defensible” an instance in which the Attorney General in England met
with the Lord Chancellor, the Prime Minister and other ministers in forming an opinion as to how
charging and bringing to trial a hijacker would affect the lives of hostages: Edwards, The Attorney
General, Politics and the Public Interest, pp. 324-325. This passage was quoted with approval in a
recent case affirming the lawfulness of a decision not to prosecute bribery charges, in part because
of information that a prosecution would lead to less information sharing by the government of Saudi
Arabia and would put British lives at risk. R (on the application of Corner House Research and Others)
v. Director of the Serious Fraud Office, [2008] UKHL 60 at para. 39.
R.S.C. 1985, c. S-7.
�Chapter III: Coordinating Terrorism Prosecutions
3.3 The Role of the Federal Director of Public Prosecutions in
Terrorism Prosecutions
In 2006, Parliament enacted the Director of Public Prosecutions Act as part of
the Federal Accountability Act.23 The Director of Public Prosecutions Act provides
for the appointment of a Director of Public Prosecutions (DPP) by the Attorney
General of Canada.24 The DPP holds office for seven years and can be dismissed
with cause through a resolution of the House of Commons.25
The DPP is an entity separate from the Attorney General of Canada and is
empowered to initiate and conduct prosecutions on behalf of the Attorney
General. The Attorney General may issue directives in writing to the DPP under
section 10 of the Act. Sections 13 and 14 contemplate that the DPP will inform the
Attorney General of any prosecution that “…raises important issues of general
interest” and that the Attorney General may make a separate intervention in
such proceedings. In addition, the Attorney General of Canada has the authority,
under section 15 of the Act, to assume conduct of a prosecution, but only after
consulting the DPP and issuing a “...notice of intent to assume conduct of the
prosecution” and publishing the notice in the Canada Gazette.
Whatever the merits of the Director of Public Prosecutions Act for other criminal
prosecutions, it causes considerable coordination problems for terrorism
prosecutions.
Terrorism prosecutions are more complex than other criminal prosecutions – in
no small part because of the critical role of section 38 of the Canada Evidence Act.
Under section 38, the Attorney General of Canada has exclusive jurisdiction to
make decisions about the disclosure of information that, if disclosed, could cause
harm to national security, national defence or international relations. Managing
the relationship between intelligence and evidence is difficult enough without
in addition dividing the prosecution process into two parts by having the DPP
conduct the prosecution and the Attorney General of Canada make decisions
under section 38. Like the process in which the Federal Court decides nondisclosure issues under section 38 and the criminal trial court decides whether
a remedy is necessary to respond to non-disclosure, a prosecution process
divided into two parts causes needless complexity in terrorism prosecutions. It
makes it unclear who is in charge and it diffuses responsibility.
In particular, the division of prosecutorial responsibilities raises concerns that
the Attorney General of Canada may seek a non-disclosure order under section
38 without sufficiently understanding the possible effect of the order on the
viability of a prosecution. After all, the trial judge has an obligation to provide
remedies in response to any non-disclosure order, possibly including a stay of
23
24
25
S.C. 2006, c. 9, s. 121.
Director of Public Prosecutions Act, S.C. 2006, c. 9, s. 121, s. 4 [Director of Public Prosecutions Act].
Director of Public Prosecutions Act, s. 5(1).
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proceedings, to protect the accused’s right to a fair trial.26 This division in turn
causes problems for prosecutors. As the narrative contained in this report
about the Reyat prosecution reveals, a provincial prosecutor, James Jardine, had
difficulty anticipating the position that CSIS and the Attorney General of Canada
would take about disclosing CSIS intelligence, even though this disclosure issue
could be critical to the viability of the prosecution.
The typical justification for dividing functions is that it creates a form of checks
and balances. However, the case for such checks and balances is unclear in
the context of terrorism prosecutions. It cannot be argued that the Director of
Public Prosecutions will be more attentive than the Attorney General of Canada
to disclosure obligations; the Attorney General has a long-established role to
ensure that justice is done.27 It is important that the prosecutor who commences
a terrorism prosecution be fully informed from the start about the disclosure
implications of the prosecution. It should not be appropriate for a prosecutor
to dismiss the issue of protecting secrets by arguing that protection is someone
else’s job. The idea that a particular issue was “someone else’s job,” unfortunately,
ran through most of the Air India investigations and prosecutions.
While there may be other options, the preference of the Commission is to give
the Attorney General of Canada the power to conduct terrorism prosecutions,
in addition to exercising current powers under section 38 relating to the
disclosure of intelligence. The most practical and efficient response would
be for the Attorney General of Canada to publish a directive, setting out a
new policy that the Attorney General, not the DPP, would conduct all future
terrorism prosecutions. This could be done immediately without amending
either the Director of Public Prosecutions Act or the Department of Justice Act,28
although it may be desirable to amend those acts eventually to reflect this new
arrangement.
Parliament’s decision to give the Attorney General of Canada unique powers and
responsibilities under section 38 should be respected. The Attorney General of
Canada is in the best position to balance the competing demands for disclosure
and secrecy.
3.3.1 The Need for a Specialized Director of Terrorism Prosecutions
There is a need for expertise in terrorism prosecutions. Terrorism prosecutions
can involve multiple complex charges under the Anti-terrorism Act,29 as well
as complex issues under section 38 of the Canada Evidence Act about the
appropriate balance between secrecy and disclosure. The 2007-08 Annual
Report of the Public Prosecution Service of Canada indicates that only three
per cent of in-house counsel time within the Service was devoted to terrorism
26
27
28
29
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 38.14.
See R. v. Stinchcombe, [1991] 3 S.C.R. 326 at 333, referring to the statement of Rand J. in Boucher v. The
Queen, [1955] S.C.R. 16 at 23-24.
R.S.C. 1985, c. J-2.
S.C. 2001, c. 41.
�Chapter III: Coordinating Terrorism Prosecutions
prosecutions.30 It would be advisable to establish a position of Director of
Terrorism Prosecutions, serving under the Attorney General of Canada, to create
a pool of experienced counsel for terrorism prosecutions. This small team of
counsel could also provide legal advice about the conduct of national security
confidentiality proceedings under section 38 and give legal advice to agencies
that collect intelligence and evidence in terrorism investigations.
The Attorney General of Canada should be able to communicate with the office
of the Director of Terrorism Prosecutions without the need for public directives
like those contemplated under the Director of Public Prosecutions Act. Directives
are not advisable in terrorism prosecutions where issues, such as the decision
about whether to prosecute or the choice of charge, may depend on the ability
to protect intelligence from disclosure. Full, frank and confidential discussions
are needed about the appropriate balance between secrecy and disclosure in
terrorism cases.
The office of the Director of Terrorism Prosecutions should not be a large
bureaucracy. The Director would be appointed by the Attorney General of
Canada and, when appropriate, would work closely with the Attorney General
and with the Deputy Attorney General. The Director of Terrorism Prosecutions
should serve at the pleasure of the Attorney General of Canada. The office of
the Director of Terrorism Prosecutions should, where appropriate, be able to
draw on expertise from the provinces and the private sector, as well as from the
Public Prosecution Service of Canada.
The lawyers in the office of the Director of Terrorism Prosecutions could provide
advice both to CSIS and to the RCMP about terrorism investigations and they
would conduct all aspects of terrorism prosecutions, including handling matters
under section 38 of the Canada Evidence Act.
The Director of Terrorism Prosecutions would also meet with provincial
Attorneys General to coordinate prosecutorial actions in terrorism matters.
There is a danger that this coordination might not be given priority if terrorism
prosecutions continue to be conducted by the Public Prosecution Service
of Canada, where they would involve only a very small fraction of overall
prosecutorial time. The placement of the Director of Terrorism Prosecutions
within the Attorney General of Canada’s department should also facilitate the
necessary political cooperation and negotiations with the provinces about the
division of responsibilities, cost-sharing and related matters.
The Director of Terrorism Prosecutions could assume responsibility for federal
involvement in terrorism prosecutions, supplying related legal advice to
Integrated National Security Enforcement Teams (INSETs) and legal advice about
the counterterrorism work of the RCMP and CSIS. At present, the RCMP and CSIS
30
Public Prosecution Service of Canada, Public Prosecution Service of Canada Annual Report 2007-2008,
p. 8, online: Public Prosecution Service of Canada <http://www.ppsc-sppc.gc.ca/eng/pub/ar08-ra08/
ar08-ra08.pdf> (accessed July 28, 2009).
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receive inadequate legal advice on such matters from “in-house” counsel because
of the limited number of lawyers dedicated to these issues. A lack of continuity
and consistency in legal advice has contributed to misunderstandings about
complex disclosure obligations, which in turn has hindered the relationship
between the RCMP and CSIS.31 There is a need for continuity of legal advice in
terrorism investigations, from the initial collection of intelligence and evidence
through to the completion of prosecutions. The agencies involved should have
a single source of reliable legal advice.
The Director of Terrorism Prosecutions could provide legal advice from
investigation to prosecution to ensure that the perspectives of CSIS and others
about disclosure are fully understood by those involved. The overarching role
of the Director would preclude the danger that lawyers representing CSIS
and those representing the RCMP might simply pursue their client agency’s
interests about secrecy or disclosure, regardless of the broader public interest.
The Director would seek to understand both CSIS and RCMP perspectives on
disclosure, but would make a decision in the public interest.
The Director of Terrorism Prosecutions would also, of necessity, be involved in
the pre-charge screening of terrorism cases because of the requirement that
the Attorney General consent to prosecutions of terrorism offences. There
may be concerns about prosecutorial involvement at both the investigative
and charging stages. However, terrorism prosecutions can raise issues of such
legal complexity that there is a need for continuity of expert legal advice from
investigation through to prosecution.
One limit should be placed on the Director of Terrorism Prosecution’s ability to
provide legal services in terrorism matters. As the narrative of this report notes,
counsel representing the Government of Canada in civil litigation arising from
the Air India bombing was present at several critical meetings concerning the
Air India prosecution. Although there was evidence that civil litigation counsel
was instructed to place the interests of the prosecution before those of the
civil lawsuit, considerations of civil liability do not easily mix with the need to
exercise prosecutorial discretion in the public interest. Hence, to avoid a conflict
of interest, or the appearance of a conflict, the Director should preferably not
represent the Government of Canada in a civil lawsuit.
The Director of Terrorism Prosecutions, like all representatives of the Attorney
General of Canada, should exercise prosecutorial functions in an objective,
independent and even-handed manner consistent with the traditions of the
office of the Attorney General.32
Establishing dedicated expertise in terrorism prosecutions accords with best
practices in other countries. For example, the British Crown Prosecution Service
has a dedicated Counter Terrorism Division, centralized in London, to conduct
31
32
Security Intelligence Review Committee, CSIS Cooperation with the RCMP - Part I (SIRC Study 1998-04),
October 16, 1998, p. 18 [SIRC Study 1998-04].
R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297.
�Chapter III: Coordinating Terrorism Prosecutions
terrorism prosecutions.33 This Service handles both terrorism prosecutions and
public interest immunity applications that attempt to shield intelligence from
disclosure. In the United States, a National Security Division has been created
in the Department of Justice to consolidate national security operations.34
This Division assists intelligence agencies in many matters, including warrant
applications, and helps during prosecutions with respect to the disclosure of
intelligence. The Division also deals with international cooperation in terrorism
prosecutions and with policy matters involving counterterrorism.
Recommendation 3:
Terrorism prosecutions at the federal level should be supervised and conducted
by a Director of Terrorism Prosecutions appointed by the Attorney General of
Canada.
Recommendation 4:
The office of the Director should be located within the department of the
Attorney General of Canada and not within the Public Prosecution Service of
Canada. The placement of the proposed Director of Terrorism Prosecutions
in the Attorney General’s department is necessary to ensure that terrorism
prosecutions are conducted in an integrated manner, given the critical role
of the Attorney General of Canada under the national security confidentiality
provisions of section 38 of the Canada Evidence Act.
Recommendation 5:
The Director of Terrorism Prosecutions should also provide relevant legal
advice to Integrated National Security Enforcement Teams and to the RCMP
and CSIS with respect to their counterterrorism work to ensure continuity and
consistency of legal advice and representation in terrorism investigations and
prosecutions.
Recommendation 6:
The Director of Terrorism Prosecutions should preferably not provide legal
representation to the Government of Canada in any civil litigation that might
arise from an ongoing terrorism investigation or prosecution, in order to avoid
any possible conflict of interest.
33
34
The Crown Prosecution Service (United Kingdom), “Prosecuting terrorists - Counter Terrorism Division,”
online: The Crown Prosecution Service (United Kingdom) <http://www.cps.gov.uk/your_cps/ctd.html>
(accessed July 31, 2009).
United States Department of Justice, National Security Division, “Mission and Functions,” online:
United States Department of Justice <http://www.usdoj.gov/nsd/mission_functions.htm> (accessed
July 28, 2009).
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3.3.2 The Role of Provincial and Territorial Attorneys General in Terrorism
Prosecutions
A logical solution to the difficulties of coordinating terrorism prosecutions would
be to recommend that the Attorney General of Canada exercise his or her fiat
under section 2 of the Security Offences Act to conduct all terrorism prosecutions
on the basis that crimes of terrorism constitute threats to the security of Canada.
This would keep the difficult coordination issues in the relationship between
terrorism prosecutions and national security confidentiality proceedings under
section 38 of the Canada Evidence Act within the federal government. It would
also recognize that terrorism has the potential to affect the political, social and
economic life of the entire nation.
However, Canada has never been a country governed solely by logic. The Antiterrorism Act gave both federal and provincial Attorneys General the authority
to prosecute terrorism offences. As the Air India prosecution revealed, there
is considerable prosecutorial experience and talent at the provincial level. In
addition, there has been cooperation between federal and provincial Attorneys
General during a number of contemporary terrorism prosecutions. No evidence
has been presented that the provincial role in terrorism prosecutions has
presented a problem in any prosecution. For this reason, there is no justification
at this time for ending the provincial role in terrorism prosecutions.
Still, evidence has been presented about the challenges, including costs, that a
complex terrorism prosecution may present for many provinces. Many provinces
might be willing to agree in advance to a significant, or even exclusive, federal
role in terrorism prosecutions. No provincial Attorney General made submissions
to the Commission about the provincial role in terrorism prosecutions. This
absence of interest may suggest that most provinces would be prepared to cede
their prosecutorial powers to a new federal Director of Terrorism Prosecutions.
In any event, the Attorney General of Canada can exercise his or her fiat under
section 2 of the Security Offences Act to pre-empt or to take over a provincial
terrorism prosecution.
This Director of Terrorism Prosecutions should come to understandings with
provincial Attorneys General about a coordinated approach to terrorism
prosecutions, including possible advance agreements that the Attorney General
of Canada will conduct terrorism prosecutions in a given province. There should
also be advance discussions of other aspects of the federal role, including federal
cost-sharing.
Recommendation 7:
A lead federal role in terrorism prosecutions should be maintained because
of their national importance and the key role that the Attorney General of
Canada will play in most terrorism prosecutions under section 38 of the Canada
Evidence Act. The Attorney General of Canada should be prepared to exercise
the right under the Security Offences Act to pre-empt or take over provincial
�Chapter III: Coordinating Terrorism Prosecutions
terrorism prosecutions if the difficulties of coordinating provincial and federal
prosecutorial decision-making appear to be sufficiently great or if a federal
prosecution is in the public interest.
3.3.3 The Need for Provincial Authorities to Notify Federal Authorities
about Possible Terrorism Prosecutions
Provincial Attorneys General should notify the Director of Terrorism Prosecutions
of any terrorism prosecution that they are considering. This is necessary to
ensure advance notice to the Attorney General of Canada of any proceedings
involving sensitive or potentially injurious information. In fact, section 38.02 of
the Canada Evidence Act currently requires provincial Attorneys General to give
notice of such proceedings to the Attorney General of Canada.
Notifying the Director of Terrorism Prosecutions in advance of any potential
prosecution involving a terrorist group or a terrorist activity would also provide
an opportunity for the Director to consider how the provincial prosecution
accords with the overall strategy at the federal level about a particular threat to
the security of Canada. The Director, in consultation with the NSA, would be able
to advise whether a prosecution might be premature – for instance, if a provincial
prosecution might disrupt an ongoing security intelligence investigation being
conducted with foreign agencies.
The Director of Terrorism Prosecutions would also be in a good position to advise
about the merits of prosecuting an offence under the terrorism provisions of
the Criminal Code, or under other Code provisions not specifically related to
terrorism. For example, a prosecution of a non-terrorist criminal offence might
make it easier to protect sensitive intelligence from disclosure. The Director
of Terrorist Prosecutions could also seek advice from the NSA about viable
alternatives to prosecutions. As discussed in Chapter II, these alternatives could
include immigration proceedings, the freezing or forfeiture of terrorist assets,
the revocation of charitable status or simply the continued surveillance of a
terrorist suspect to build a better case.
A requirement that the provinces consult with the federal authorities might
have made a difference in the 1986 prosecution of Reyat and Parmar about
the use of explosives in Duncan. This prosecution was commenced while the
investigation of the Air India bombing was still at a preliminary stage. The
failure to consult may have been the reason that no evidence was called against
Parmar, the suspected ringleader of the bombing, and only a $2000 fine was
levied against Reyat, who was subsequently convicted of manslaughter, first in
relation to the Narita bombing and later in relation to the Flight 182 bombing.
The Duncan Blast prosecution was, in the Commission’s view, premature and
not in the public interest.
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Recommendation 8:
Provincial Attorneys General should notify the Attorney General of Canada
through the proposed federal Director of Terrorism Prosecutions of any potential
prosecution that may involve a terrorist group or a terrorist activity, whether
or not the offence is prosecuted as a terrorism offence. The National Security
Advisor should also be notified.
�VOLUME THREE
THE RELATIONSHIP BETWEEN
INTELLIGENCE AND EVIDENCE AND
THE CHALLENGES OF TERRORISM PROSECUTIONS
CHAPTER IV: THE COLLECTION AND RETENTION OF INTELLIGENCE:
MODERNIZING THE CSIS ACT
4.0 Introduction
The RCMP had the responsibility to investigate and prevent terrorist acts,
including conspiracies, counselling and attempts to commit murder, even
before the Anti-terrorism Act1 created new crimes relating to the financing and
facilitation of terrorist activities and participation in terrorist groups.2
CSIS was created in 1984 with a mandate to provide the Government of Canada
with advice about threats to the security of Canada, including the threat posed by
terrorism. The creation of CSIS was also a response to revelations of wrongdoing
by the RCMP Security Service and the consequent recommendations of the
Commission of Inquiry Concerning Certain Activities of the Royal Canadian
Mounted Police (McDonald Commission). CSIS was designed to be a civilian
security agency, without law enforcement powers, which would be subject to
greater political direction and review and oversight than the police.3 CSIS was
authorized to collect information and intelligence about activities that might,
on reasonable grounds, be suspected of constituting threats to the security of
Canada, to the extent that it was strictly necessary, and to report to and advise
the Government about such threats.4 CSIS could also obtain judicial warrants
to conduct searches and electronic surveillance when the Director of CSIS
believed, on reasonable grounds, that a warrant was required to investigate a
threat to the security of Canada.5
1
2
3
4
5
S.C. 2001, c. 41.
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report
of the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public Works and
Government Services Canada, 2006), p. 313 [Report of the Events Relating to Maher Arar: Analysis and
Recommendations].
Wesley Wark, “The Intelligence-Law Enforcement Nexus: A study of co-operation between the
Canadian Security Intelligence Service and the Royal Canadian Mounted Police, 1984-2006, in the
Context of the Air India terrorist attack” in Vol. 1 of Research Studies: Threat Assessment RCMP/CSIS
Co-operation, pp. 150-151 [Wark Paper on Intelligence-Law Enforcement Nexus].
CSIS Act, R.S.C. 1985, c. C-23, s. 12 [CSIS Act].
CSIS Act, s. 21.
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The Security Offences Act6 was enacted in 1984 as companion legislation to
the CSIS Act.7 It recognized the continued role of law enforcement in national
security matters. It gave the RCMP and the Attorney General of Canada the lead
role in investigating and prosecuting crimes that also constituted threats to the
security of Canada as defined in the CSIS Act. The CSIS Act contemplated that CSIS
would share information with the police.8 Together, the two acts recognized that
CSIS would sometimes need to work with law enforcement agencies because
CSIS did not have powers to arrest and detain people who might be about to
commit, or who had committed, crimes.
The Attorney General of Canada submitted to this Commission that postMcDonald Commission reforms gave the RCMP and CSIS “…separate but
complementary mandates concerning threats to national security.”9
Although the CSIS Act, combined with the Security Offences Act, contemplated
the interchange of information between CSIS and the RCMP about threats to the
security of Canada that were also crimes, the CSIS Act was not formulated with
the particular challenges of terrorism prosecutions in mind. The Cold War was
still seen as the dominant threat to Canadian security.10 The terrorist acts that
did occur during that period – such as the bombing of Litton Systems by Direct
Action and a series of attacks, including murders and hostage taking, directed
against Turkish interests in Canada – did not have a major impact on Canadians
or on policy-making.11
The CSIS Act was not substantively amended even after the events of 9/11. This
raises the question of whether the Act, now a quarter century old, should be
modernized. Does it need to reflect the new emphasis on terrorism, fundamental
changes to Canada’s laws and developments in Charter jurisprudence, as well
as the enactment of new terrorist crimes? These are the dominant questions
examined in this chapter.
4.1 No Absolute Secrecy and No Wall between Intelligence and
Evidence
The CSIS Act never contemplated absolute secrecy or a wall protecting secret
intelligence from being used as evidence by police and prosecutors. Section
19(2) provides that CSIS “may disclose information” to police officers or to
federal or provincial Attorneys General for use in investigations or prosecutions.
Section 18 contemplates that, while CSIS intelligence and the identity of CSIS
6
7
8
9
10
11
R.S.C. 1985, c. S-7.
R.S.C. 1985, c. C-23.
CSIS Act, s. 19.
Final Submissions of the Attorney General of Canada, Vol. I, February 29, 2008, para. 38 [Final
Submissions of the Attorney General of Canada].
Peter M. Archambault, “Context Is Everything: The Air India Bombing, 9/11 and the Limits of Analogy” in
Vol. 1 of Research Studies: Threat Assessment RCMP/CSIS Co-operation, p. 85.
David A. Charters, “The (Un)Peaceable Kingdom? Terrorism and Canada before 9/11 (October 2008) 9(4)
IRPP Policy Matters.
�Chapter IV: The Collection and Retention of Intelligence
confidential sources and covert agents should normally be kept secret, this
information could be provided to others for various reasons, including for its
use in criminal investigations and prosecutions. Such sharing of intelligence
would then make CSIS information susceptible to public disclosure.
Unfortunately, the implications of these provisions providing for interchange
between CSIS and the police were not adequately appreciated when they were
enacted. For example, an influential 1983 report by a Special Senate Committee
chaired by Senator Michael Pitfield stressed the differences between law
enforcement and intelligence. It defined law enforcement as “essentially reactive,”
ignoring the proactive role of the police in preventing crime and investigating
conspiracies and attempts:
Law enforcement is essentially reactive. While there is an
element of information-gathering and prevention in law
enforcement, on the whole it takes place after the commission
of a distinct criminal offence. The protection of security relies
less on reaction to events; it seeks advance warning of security
threats, and is not necessarily concerned with breaches of the
law. Considerable publicity accompanies and is an essential
part of the enforcement of the law. Security intelligence
work requires secrecy. Law enforcement is ‘result-oriented’,
emphasizing apprehension and adjudication, and the players
in the system - police, prosecutors, defence counsel, and the
judiciary - operate with a high degree of autonomy. Security
intelligence is, in contrast, ‘information-oriented’. Participants
have a much less clearly defined role, and direction and
control within a hierarchical structure are vital. Finally, law
enforcement is a virtually ‘closed’ system with finite limits commission, detection, apprehension, adjudication. Security
intelligence operations are much more open-ended. The
emphasis is on investigation, analysis, and the formulation of
intelligence.12
12
Report of the Special Committee of the Senate on the Canadian Security Intelligence Service, Delicate
Balance: A Security Intelligence Service in a Democratic Society (Ottawa: Supply and Services Canada,
1983), p. 6.
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These oft-cited comments13 defined the role of intelligence with an emphasis on
secrecy and without discussion about when legitimate needs for secrecy might
have to yield to the imperatives of disclosure in order to prevent and prosecute
crimes affecting Canada’s security.
The Supreme Court of Canada recently cited the Special Senate Committee’s
analysis, but appropriately warned that “…[t]he division of work between CSIS
and the RCMP in the investigation of terrorist activities is tending to become
less clear than the authors of [reports, including the Senate report] seem to
have originally envisioned.”14
Even in 1984, the need for CSIS to convey some information to the RCMP should
have been apparent. For example, CSIS officers are not peace officers with law
enforcement powers. If CSIS discovered evidence about a crime, that information
would have to be conveyed to the police, who could then make arrests and lay
charges. The immediate and continuing problem was the discretion vested in
CSIS that allowed it to withhold information from the police. This would allow
CSIS to continue a secret intelligence investigation in the hope of obtaining
further information or catching more important targets. The refusal to pass
on the information, however, meant that the “small fry” might not come to the
attention of law enforcement and might therefore never be prosecuted.
In the immediate aftermath of revelations of wrongdoing by the RCMP Security
Service during the 1970s, including unnecessary surveillance of political parties
and dissenters, and after the subsequent creation of a civilian intelligence agency
without law enforcement powers, greater emphasis was placed on defining
differences between the RCMP and CSIS15 than on the need for cooperation and
sharing of information between the agencies. Nevertheless, the CSIS Act and the
Security Offences Act contemplated and required cooperation between CSIS and
13
14
15
At the 2003 John Tait Memorial Lecture, Ward Elcock, then Director of CSIS, stated: “Law enforcement
is generally reactive; it essentially takes place after the commission of a distinct criminal offence. Police
officers are results-oriented, in the sense that they seek prosecution of wrong doers. They work on a
‘closed’ system of limits defined by the Criminal Code, other statutes and the courts. Within that
framework, they often tend to operate in a highly decentralized mode. Police construct a chain of
evidence that is gathered and used to support criminal convictions in trials where witnesses are legally
obliged to testify. Trials are public events that receive considerable publicity. Security intelligence work
is, by contrast, preventive and information-oriented. At its best, it occurs before violent events occur, in
order to equip police and other authorities to deal with them. Information is gathered from people
who are not compelled by law to divulge it. Intelligence officers have a much less clearly defined role,
which works best in a highly centralized management structure. They are interested in the linkages and
associations of people who may never commit a criminal act -- people who consort with others
who may be a direct threat to the interests of the state.”: “Appearance by Ward Elcock, Director,
Canadian Intelligence Security Service, at the Canadian Association for Security and Intelligence
Studies Conference,” October 16-18, 2003, Vancouver, BC - “The John Tait Memorial Lecture,” online:
Canadian Security Intelligence Service <http://www.csis-scrs.gc.ca/nwsrm/spchs/spch17102003-eng.
asp> (accessed July 29, 2009).
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 at para. 26.
Wark Paper on Intelligence-Law Enforcement Nexus, p. 150; Jean-Paul Brodeur, “The Royal Canadian
Mounted Police and the Canadian Security Intelligence Service: A Comparison Between Occupational
and Organizational Cultures” in Vol. 1 of Research Studies: Threat Assessment RCMP/CSIS Co-operation,
pp. 193-196 [Brodeur Paper on Comparison Between RCMP and CSIS].
�Chapter IV: The Collection and Retention of Intelligence
the RCMP with respect to crimes, such as the bombing of Air India Flight 182,
that also constituted threats to the security of Canada.16
4.2 Section 12 of the CSIS Act, the Collection and Retention of
Intelligence and the Implications of Charkaoui v. Canada
Section 12 is the cornerstone of the CSIS Act. This section governs the work
of CSIS in collecting intelligence about threats to the security of Canada and
in retaining and analyzing that intelligence. It also imposes duties on CSIS to
provide the Government of Canada with reports and advice about security
threats. Section 12 states:
The Service shall collect, by investigation or otherwise, to
the extent that it is strictly necessary, and analyse and retain
information and intelligence respecting activities that may on
reasonable grounds be suspected of constituting threats to the
security of Canada and, in relation thereto, shall report to and
advise the Government of Canada.
Issues relating to the collection and retention of intelligence were central to the
Air India investigations and will be central to future terrorism investigations by
CSIS. For this reason, the Commission examined these issues in detail.
4.2.1 The Destruction of Intelligence in the Air India Investigation
CSIS officials have justified the erasure of the Parmar Tapes as being a
requirement of the collection and retention provisions of section 12 of the CSIS
Act. In turn, the erasure of most of the tapes resulted in a concession by the
Crown and in a finding by the trial judge in the Malik and Bagri trial that CSIS
had violated section 7 of the Charter and engaged in unacceptable negligence
in not retaining the material.17 The Hon. Bob Rae described the tape erasures as
16
17
Kent Roach, “The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation Between
Intelligence and Evidence” in Vol. 4 of Research Studies: The Unique Challenges of Terrorism
Prosecutions, pp. 26-27 [Roach Paper on Terrorism Prosecutions].
R. v. Malik, Bagri and Reyat, 2002 BCSC 864 at paras. 7, 12. See also R. v. Malik and Bagri, 2004 BCSC 554,
119 C.R.R. (2d) 39 at paras. 19, 22.
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“problematic,” and as justifying a further and full examination of the relationship
between intelligence and evidence.18
Reid Morden, a former head of CSIS, has been amongst the most ardent
defenders of the propriety of the erasure of the tapes. In an interview carried
by the CBC in 1987, he argued that “…the tapes of course are destroyed, not as
a…bureaucratic procedure, where there’s a matter of policy because we have
to be very careful in terms of section 12 of our Act, that we collect information
which is strictly necessary to an ongoing investigation.”19 When asked about this
statement while he was testifying before the Commission, Morden said:
Now, out of [the McDonald Commission] comes the CSIS Act
and within the CSIS Act, I think the very important provision
of Article 12, which enjoins the service to collect, only to the
degree strictly necessary, the information. And from that I
think grows the policy that says you collected – you’re not
collecting evidence, you’re collecting information which can
be turned into intelligence. If it doesn’t appear to meet the
test of Article 12 then this should be destroyed as opposed to
being retained, as it had been previously.20
The content of the destroyed Parmar intercepts has long been the source of
much controversy. In reviewing the matter, the Commission has concluded that,
given the interpretation of the CSIS Act by Reid Morden, CSIS might be excused
for tape erasures that occurred before the terrorist attacks on Flight 182 and at
Narita, but that CSIS was wrong to continue to erase tapes after those events.
18
19
20
Bob Rae observed: “Justice Josephson noted that the destruction of these tapes was ‘unacceptable
negligence.’ SIRC concluded in 1992 that the destruction of the tape erasure had no material impact
on the RCMP investigation. This is a not a view shared by the RCMP, made clear in the memos
of February 9th and 16th, 1996, written by Gary Bass, Assistant Commissioner of the RCMP and lead
investigator into the Air India disaster since 1996. The erasure of the tapes is particularly problematic
in light of the landmark decision of the Supreme Court of Canada in R. v. Stinchcombe, which held that
the Crown has a responsibility to disclose all relevant evidence to the defence even if it has no plans to
rely on such evidence at trial. Justice Josephson held that all remaining information in the possession
of CSIS is subject to disclosure by the Crown in accordance with the standards set out in Stinchcombe.
Accordingly, CSIS information should not have been withheld from the accused. The defence
argument in the trial of Malik and Bagri was that erased tapes might have produced information
that could exonerate their clients. For that reason alone, the tapes should never have been destroyed.
The issue of the relationship between CSIS and the RCMP that was before Justice Josephson highlights
the concerns about the connections between intelligence, the destruction of evidence, required
disclosure and admissible evidence. It is clear that the relationship between these institutions and the
interplay between intelligence and evidence requires further review”: Lessons to be Learned: The
report of the Honourable Bob Rae, Independent Advisor to the Minister of Public Safety and
Emergency Preparedness, on outstanding questions with respect to the bombing of Air India Flight
182 (Ottawa: Air India Review Secretariat, 2005), pp. 16-17 [Lessons to be Learned]. [Footnotes in
original have been omitted.]
Inquiry Transcript, vol. 46, September 17, 2007, p. 5516, transcribing “The vanishing trail,” Narr. Brian
Stewart, The Journal, CBC (December 14, 1987), 11:45-12:47, online: CBC Digital Archives <http://
archives.cbc.ca/society/crime_justice/clips/5691/> (accesed July 29, 2009). See Testimony of Reid
Morden, vol. 88, December 4, 2007, pp. 11429-11430, commenting on his statements in the CBC
interview.
Testimony of Reid Morden, vol. 88, December 4, 2007, p. 11430.
�Chapter IV: The Collection and Retention of Intelligence
It is self-evident that the understanding of a given threat to national security
evolves over time. It is rarely the case that one can fully appreciate a potential
threat upon an initial assessment of information. It follows that retaining
intelligence is necessary to allow for re-evaluation and analysis. As RCMP Deputy
Commissioner Gary Bass noted:
The erasure of the tapes is important for reasons beyond
what occurred in the Air India case. I believe that the policy
governing CSIS tape handling (which is essentially unchanged
as I understand it) is seriously flawed and has potential to
cause problems in future [counterterrorism investigations].
Anyone with experience in wiretap investigations understands
that initial transcripts and translations can be notoriously
unreliable. For one thing many intercepts, audio room or car
bugs, in particular, require a huge use of time and resources
to produce accurate transcripts. Secondly, the value of
some intercepts early in an investigation cannot be properly
interpreted or assessed until other “key” intercepts are made
at some point later on. A policy requiring the destruction of
tapes within 30 days is fraught with problems and should be
adjusted to reflect the reality of conducting effective criminal
prosecutions in today’s reality of disclosure. The ruling in the
Air India case in this respect will surely be held out to be “fair
warning” in this respect in future similar fact situations.21
The O’Connor Commission stressed the importance of accuracy and precision
in intelligence.22 The Supreme Court of Canada has recognized that retention of
raw intelligence can help ensure the accuracy and precision of intelligence.23 Yet
CSIS routinely destroyed information that it had lawfully acquired because of a
prevailing view that it was to retain only what was strictly necessary.
The particulars of the retention policy varied over the years and the policy
contained internal conflicts at times. However, it is clear that CSIS employed a
policy of systematic destruction of intercepted communications where it could
not identify or appreciate the relevance of the information.
The destruction policy applied not only to wiretaps, but also to original notes
and working papers. Again, this had serious adverse consequences for the
prosecution in the Malik and Bagri trial.24 In his judgment, Justice Josephson
noted the testimony of a CSIS agent at the trial that at meetings with a key
witness he “…took careful notes, writing down what she said verbatim or his best
efforts at summarizing what she said. From these notes he created a number of
21
22
23
24
Exhibit CAA1007: Gary Bass, Royal Canadian Mounted Police Briefing Note to the Commissioner, p. 3.
See also Testimony of Gary Bass, vol. 87, December 3, 2008, pp. 11274-11276.
Report of the Events Relating to Maher Arar: Analysis and Recommendations, p. 114.
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 at paras. 39-42.
R. v. Mailk and Bagri, 2005 BCSC 350.
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internal reports which were filed as exhibits at trial. His handwritten notes from
those meetings were destroyed as a matter of policy, with the exception of five
pages of notes from their meeting on October 29, 1997.”25 Justice Josephson
noted further that the CSIS agent stressed “…that he had not prepared his
reports with the expectation they would be used in court” and that, while he
attempted to summarize and report the interviews as accurately as possible, he
was selective in what he included and he used his own language and not that
of the critical witness.26
A second CSIS agent interviewed another key witness, Ms. E, but did not take
contemporaneous notes. He “…did not attempt to track Ms. E’s language in
his reports since they were being prepared for intelligence, not evidentiary,
purposes.”27 Justice Josephson found that the destruction of taped conversations
with Ms. E constituted “unacceptable negligence” that violated section 7 of
the Charter.28 He also found that the promise that Ms. E’s statements would
remain confidential, and hence could not be subject to challenge, increased the
potential of a credibility issue.29 The incomplete nature of the reports also raised
questions about their reliability.30
4.2.2 Interpreting Section 12 of the CSIS Act
As of the time of the Commission hearings, CSIS interpreted section 12 of
the CSIS Act as requiring only that information that was “strictly necessary”
be retained. The official position of CSIS was well-stated by Andrew Ellis, CSIS
Director General of the Toronto Region, when he testified that “…[w]e must be
guided by the CSIS Act, and the CSIS Act says we will retain information that is
strictly necessary. And we use that as the guidepost constantly to determine
what is retained and what is not retained.”31
There is reason to question the correctness of this interpretation. The phrase “to
the extent that it is strictly necessary” qualifies the term “collect” in section 12.
The phrase does not qualify the terms “analyse” or “retain.”32 Once information
is properly collected, CSIS has separate obligations to analyze and retain
information, and there is no requirement that this be done only to the extent
that it is strictly necessary. Indeed, it makes little sense to require analysis and
retention only to the extent that is “strictly necessary.”
Clearly, the retention of information can involve privacy interests. One concern
that led to the formation of CSIS was the finding that the RCMP Security Service
held files on many Canadians, including those involved in legitimate political and
25
26
27
28
29
30
31
32
2005 BCSC 350 at para. 386.
2005 BCSC 350 at para. 386.
2005 BCSC 350 at para. 999.
R. v. Malik and Bagri, 2004 BCSC 554, 119 C.R.R. (2d) 39.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 1128, 1232.
2005 BCSC 350 at para. 1132.
Testimony of Andrew Ellis, vol. 82, November 23, 2007, p. 10537.
Roach Paper on Terrorism Prosecutions, p. 116.
�Chapter IV: The Collection and Retention of Intelligence
labour activity and democratic dissent. Nevertheless, “…the primary invasion of
privacy is the collection of the information in the first place.”33 This collection
should occur only to the extent that it is strictly necessary to investigate “…
activities that may on reasonable grounds be suspected of constituting threats
to the security of Canada.” The Supreme Court of Canada recently paraphrased
section 12 as follows: “…CSIS must acquire information to the extent that it is
strictly necessary in order to carry out its mandate, and must then analyse and
retain relevant information and intelligence.”34
In any event, CSIS altered its policy in the wake of 9/11. Jim Judd, head of CSIS
when he testified, stated that CSIS retains more information today, especially
material that is shared with the RCMP. Judd stated that “…with respect to
terrorist investigations, certainly over the last number of years, post-9/11, the
practice has been for a long retention.”35 Longer retention periods are justified,
especially in terrorism investigations, but they also indicate that section 12 of
the CSIS Act should never have served as a barrier to the retention of properly
collected intelligence such as the Parmar wiretaps and notes of interviews with
key witnesses.
4.2.3 The Supreme Court of Canada’s Interpretation of Section 12 of the
CSIS Act in Charkaoui
The interpretation of section 12 employed by CSIS over the years can no longer
be sustained in light of the Supreme Court of Canada’s 2008 ruling in Charkaoui v.
Canada,36 a case decided after the Commission’s hearings ended. The Court was
critical of a CSIS policy that had interpreted section 12 to require the retention
of operational notes only when “…information contained in the notes may be
crucial to the investigation of an unlawful act of a serious nature and employees
may require their notes to refresh their memories prior to recounting the facts of
an event.”37 The Court concluded that this policy was inconsistent with the plain
language of section 12. The Court found further that the policy was inconsistent
with the obligations under section 7 of the Charter to retain material for possible
disclosure to a person held under a security certificate issued under Canada’s
immigration laws.
The Court concluded that “…as a result of s. 12 of the CSIS Act, and for practical
reasons, CSIS officers must retain their operational notes when conducting
investigations that are not of a general nature. Whenever CSIS conducts an
investigation that targets a particular individual or group, it may have to pass
33
34
35
36
37
Roach adds that “…care should be taken to ensure that only information that satisfies the standard
of being ‘strictly necessary’ is retained. There were legitimate concerns, especially at the time that CSIS
was created, that it not retain information that had not been collected under the rigourous standard of
strict necessity”: Roach Paper on Terrorism Prosecutions, p. 116.
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 at para. 38.
Testimony of Luc Portelance, vol. 88, December 4, 2007, pp. 11496-11497; Testimony of Jim Judd, vol.
90, December 6, 2007, p. 11875.
Charkaout v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326.
The CSIS policy was identified as OPS-217, with this particular wording found at para. 3.5, as quoted in
Charkaout v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 at para. 35.
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the information on to external authorities or to a court.”38 The Court reasoned
that the reference to “intelligence” in section 12 “…should not be limited to
the summaries prepared by officers” because original notes “…will be a better
source of information, and of evidence….”39 The Court added that “…[t]here is no
question that original notes and recordings are the best evidence.”40 The Court
rejected the idea that section 12 justifies the destruction of properly obtained
intelligence:
Nothing in this provision requires CSIS to destroy the
information it collects. Rather, in our view, s. 12 of the CSIS Act
demands that it retain its operational notes. To paraphrase s.
12, CSIS must acquire information to the extent that it is strictly
necessary in order to carry out its mandate, and must then
analyse and retain relevant information and intelligence.41
This unanimous decision of the Supreme Court discredits the policy that resulted
in the destruction of the Parmar Tapes.
In future, once intelligence is properly collected under section 12, it should be
retained. In particular, the original notes and recordings should be retained
— presumably until the information has become of no value — since they
constitute the best source of information and the best source of evidence.
The retention of the original intelligence does not necessarily mean that the
intelligence will be used in subsequent legal proceedings or disclosed to the
target of the investigation. It will still be necessary to determine that a criminal
prosecution is in the public interest. Even once a prosecution is commenced,
the disclosure of intelligence is by no means automatic. The Attorney General
of Canada can apply for a non-disclosure order on the basis that the harms that
disclosure would cause to national security, national defence or international
relations would be greater than the harms of non-disclosure.42
The Supreme Court’s decision in Charkaoui has affirmed that the proper
interpretation of section 12 of the CSIS Act requires the retention of properly
collected intelligence, in part because it may also constitute the “best evidence.”43
The Court’s decision, concluding that interview notes about a particular person
should be retained under section 12, is also consistent with Justice Josephson’s
decision that CSIS had a duty in the Air India investigation to retain such
notes.44
38
39
40
41
42
43
44
2008 SCC 38, [2008] 2 S.C.R. 326 at para. 43.
2008 SCC 38, [2008] 2 S.C.R. 326 at para. 39 [Emphasis added].
2008 SCC 38, [2008] 2 S.C.R. 326 at para. 49 [Emphasis added].
2008 SCC 38, [2008] 2 S.C.R. 326 at para. 38.
Canada Evidence Act, R.S.C. 1985, c. C-5, s.38 [Canada Evidence Act]. This is discussed further in Chapter
VII.
2008 SCC 38, [2008] 2 S.C.R. 326 at paras. 39, 49.
R. v. Malik and Bagri, 2004 BCSC 554, 119 C.R.R. (2d) 39.
�Chapter IV: The Collection and Retention of Intelligence
It would be a mistake to limit the interpretation of section 12 in Charkaoui to the
immigration context. The Supreme Court noted that the RCMP receives much
information in national security investigations from CSIS45 and that CSIS, under
section 19 of the CSIS Act, “…may disclose information to police services, to the
Attorney General of Canada, to the Attorney General of a province, to the Minister
of Foreign Affairs and to the Minister of National Defence.”46 The Court also
discussed the importance of retaining original raw intelligence about disputes
that may arise over the denial of security clearances.47 The Court articulated a
general principle that was not limited to immigration security certificates:
In our view, as a result of s. 12 of the CSIS Act, and for practical
reasons, CSIS officers must retain their operational notes
when conducting investigations that are not of a general
nature. Whenever CSIS conducts an investigation that targets
a particular individual or group, it may have to pass the
information on to external authorities or to a court.48
The Supreme Court’s decision in Charkaoui does not directly address the
retention of information derived from wiretaps authorized under section 21
of the CSIS Act. Nevertheless, if interview notes of potential witnesses should
be retained in part because they could provide the best evidence, it is only
common sense that wiretaps of suspects who might potentially be accused of
terrorism should also be retained.
4.2.4 The Need for New CSIS Policies on Retention of Intelligence
The Supreme Court ruling in Charkaoui also benefits CSIS. A lengthy
retention period can allow CSIS to better understand and analyze intercepted
communications to determine the extent of a terrorist threat, without the
pressure to destroy the intelligence prematurely.
For practical and privacy reasons, a policy should be established to prevent
information obtained by CSIS from being retained indefinitely. Nevertheless,
there is a need for a lengthy retention period. Many national security
investigations, like the Air India investigation, continue for much longer than
ordinary criminal investigations. Information collected at one point may take
on new significance years later and be needed for intelligence or evidentiary
purposes. For example, an individual at the periphery of one investigation
may become more central in a subsequent investigation. The circumstances of
individuals targeted in one investigation may change and they might become
potential informers years later. Canada’s foreign partners may take an interest in
a target only when that target moves away from Canada. Such possibilities all
favour a lengthy retention period.
45
46
47
48
2008 SCC 38, [2008] 2 S.C.R. 326 at para. 27.
2008 SCC 38, [2008] 2 S.C.R. 326 at para. 47.
2008 SCC 38, [2008] 2 S.C.R. 326 at para. 39.
2008 SCC 38, [2008] 2 S.C.R. 326 at para. 43.
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If information has been properly collected – that is, if the collection is strictly
necessary for an investigation of activities that may on reasonable grounds be
suspected of constituting threats to Canada’s security – the information should
be retained. Evidence was presented to the Commission that CSIS now retains
intelligence for longer periods in some counterterrorism investigations. These
lengthier retention periods should become the norm.
In general, CSIS information about specific targets could be discarded if the
Director of CSIS certifies that the information no longer relates to activities
that may on reasonable grounds be suspected of constituting threats to the
security of Canada. This standard has the virtue of being derived from section
12 of the CSIS Act as clarified by the Supreme Court in Charkaoui. It may also
be appropriate to retain some information to allow archival research. However,
adequate measures must be taken to protect the privacy of individuals.
As for the precise retention period, that is best left to CSIS to consider in
consultation with other stakeholders. However, a period of 25 years does not
strike the Commission as unreasonable or problematic.
The idea that a civilian security agency would retain information that may be of
assistance to the police is not radical or dangerous. British legislation has been
amended to recognize that both its domestic and foreign security intelligence
agencies should be prepared to disclose information for the purpose of
preventing, detecting and prosecuting serious crime.49
CSIS policies also need to reflect the Supreme Court’s position in Charkaoui
that intelligence collected in relation to particular individuals and groups be
retained. It may also be time to revisit Article 21 of the 2006 Memorandum of
Understanding (MOU) between the RCMP and CSIS. The MOU states that “…
both parties recognize that the CSIS does not normally collect information or
intelligence for evidentiary purposes.”50
Another possibility would be to amend section 12. However, the section has
been clarified by a unanimous decision of the Supreme Court. Amending the
section might re-introduce uncertainty about the extent of the obligation of
CSIS to retain intelligence. In addition, the current section 12 reflects a delicate
balance between security and privacy interests by allowing CSIS to collect
information and intelligence only “…to the extent that it is strictly necessary” and
only with respect to “…activities that may on reasonable grounds be suspected
of constituting threats to the security of Canada.”
49
50
Security Services Act 1989 (UK), 1989, c. 5, s. 2(2)(a); Intelligence Services Act 1994 (UK), 1994, c. 13, s.
2(2)(a).
Public Production 1374: 2006 RCMP/CSIS MOU, Art. 21(a).
�Chapter IV: The Collection and Retention of Intelligence
4.2.5 Conditions for the Collection of Intelligence
If intelligence is to be retained longer in accordance with the reasoning in
Charkaoui, it becomes important to revisit when intelligence should be collected
in the first place. Section 12 of the CSIS Act was drafted following revelations
that the RCMP Security Service had engaged in unnecessary investigations of a
variety of dissenters, including those involved in various political parties such as
the Parti Québécois and the New Democratic Party.51 In response, the McDonald
Commission stressed that the activities of the civilian intelligence agency it
proposed should be limited by a carefully defined mandate. In addition, the
collection of intelligence should be governed by the principle that “…the
investigative means used must be proportionate to the gravity of the threat
posed and the probability of its occurrence.”52
The McDonald Commission’s principles of a carefully defined mandate and
proportionality in investigations and in the collection of intelligence are
reflected in section 12. The section provides, in part, that CSIS “…shall collect,
by investigation or otherwise, to the extent that it is strictly necessary…
intelligence respecting activities that may on reasonable grounds be suspected
of constituting threats to the security of Canada.”
The Supreme Court in Charkaoui stressed that “…CSIS must acquire information
to the extent that it is strictly necessary in order to carry out its mandate.”53 This
means that intelligence should not be collected unless it relates to activities that
may on reasonable grounds be suspected of constituting threats to Canada’s
security. The reasonable suspicion standard requires that there be an objective
and articulable basis for the investigation that relates to threats to the security of
Canada as defined in the CSIS Act. Even when a reasonable suspicion is present,
CSIS should observe principles of proportionality and collect intelligence only
to the extent that it is “strictly necessary.”
What is “strictly necessary” will inevitably depend on the investigation, including
the severity and imminence of the threat and countervailing concerns such as
privacy and the freedom to engage in lawful democratic dissent.
Some information that is collected through electronic or human sources might
not be related to activities that may on reasonable grounds be suspected of
constituting threats to Canada’s security, or its collection might not be strictly
necessary for an investigation of such threats. For example, an electronic or
human source may reveal information relating to private misdeeds or lawful
activities. Such activities may pose no security threat. In other cases, activities
may be peripherally relevant to an investigation of threats to the security of
Canada, but should not be the focus of an investigation because of the adverse
impact on privacy.
51
52
53
Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom
and Security under the Law, Second Report - vol. 1 (Ottawa: Supply and Services Canada, 1981),
pp. 341-358 [Freedom and Security under the Law].
Freedom and Security under the Law, Second Report - vol. 1, p. 513.
2003 SCC 38, [2008] 2 S.C.R. 326 at para. 39.
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If such information has been inadvertently collected, it should not be retained.54
The retention obligation in section 12 of the CSIS Act should apply only to
information that has been collected in accordance with section 12. In making
this judgment, however, CSIS should be careful not to destroy information
that could later assist either the investigation or individuals targeted by the
investigation. For example, information about a private misdeed should be
retained if it could potentially support a target’s alibi.
In the 2008 Charkaoui decision, the Supreme Court of Canada articulated a
principle that distinguished targeted from general investigations. The rationale
for this distinction seems to be the common sense observation that a targeted
investigation, focused on a specific individual or group, is likely to have
more serious consequences for individuals than a general investigation into
phenomena, such as extremism or foreign countries, which may affect Canada’s
national security. This rationale is reflected in the Court’s statement that “…
[w]henever CSIS conducts an investigation that targets a particular individual
or group, it may have to pass the information on to external authorities or to
a court.”55 If the information is passed on to external authorities, such as the
police, foreign agencies or the courts, the likelihood of serious consequences
for an individual increases. For example, intelligence about a specific individual
could be used to deny that person a security clearance. It could also trigger a
criminal investigation or detention in a foreign country.
Once an investigation targets a particular individual or group, intelligence
collected during that investigation should be retained even if the intelligence
is about individuals who are not the targets of the investigation. Although
the analogy is not perfect because he was examining a criminal investigation,
Commissioner O’Connor found that it was reasonable for the RCMP to investigate
Maher Arar because he was associated with the target of the Project A-O Canada
investigation.56 If the RCMP acted reasonably in collecting information about Arar,
then it is even more likely that CSIS, in exercising its broader security intelligence
mandate, would also be justified in collecting information about a person who
associated with the target of its investigation in suspicious circumstances. The
distinction between targets and associated persons, especially in a terrorism
investigation, is not always obvious.
54
55
56
The Inspector General of CSIS in 1996 described the approach as follows: “CSIS is expected to employ
an objective standard, namely demonstrable grounds for suspicion and to ensure that it documents its
grounds.” He added that the documentation must indicate that “…techniques of investigation that
penetrate areas of privacy [were] used only when justified by the severity and imminence of the threat
to national security”: Craig Forcese, National Security Law: Canadian Practice in International
Perspective (Toronto: Irwin Law, 2008), p. 83.
2008 SCC 38, [2008] 2 S.C.R. 326 at para. 43.
Report of the Events Relating to Maher Arar: Analysis and Recommendations, p. 18. Project A-O Canada
was created in the aftermath of the 9/11 attacks to carry out an investigation into the activities
of Abdullah Almalki. It was also charged with investigating any leads about the threat of a second
wave of attacks. The project’s investigation subsequently expanded to include new information that
it received about other individuals and activities: Report of the Events Relating to Maher Arar: Analysis
and Recommendations, p. 16.
�Chapter IV: The Collection and Retention of Intelligence
The collection and retention of intelligence should, to the extent possible, be
done with attention to the relevance, accuracy and reliability of the intelligence
collected, as well as to its effects on human rights and privacy. Intelligence
collected in accordance with the mandate of CSIS and in compliance with
section 12 of the CSIS Act should be retained for two reasons: it ensures the fair
treatment of individuals in the form of precise, accurate and verified intelligence
and it has potential value in legitimate national security investigations. The
retention of intelligence in the form in which it was collected will help to ensure
that the analysis produced by investigators is accurate and precise.
As well, the retention of original data is considered good practice in many fields,
and CSIS should follow suit. Scientists and social scientists keep their raw data
even though their ultimate work product is analysis and interpretation of the
data. CSIS should retain raw data to allow investigators and those who may
review the work of investigators, such as supervisors, SIRC and, sometimes,
judges, to test the accuracy, fairness and reliability of the final intelligence
product.
4.3 Privacy Issues
The destruction of tapes and original notes in the Air India investigation and the
Supreme Court’s recent ruling in Charkaoui both serve to underline the need
to retain raw intelligence. However, this should not be taken as a justification
to return to the pre-CSIS days where the RCMP Security Service kept files on
individuals involved in legitimate political or religious activities and engaged in
intrusive investigations of those individuals.
Increased and lengthier retention of intelligence by CSIS raises privacy concerns.
Stanley Cohen, for example, has argued that intelligence dossiers can contain
“…a range of information, including much that is unsifted or unfiltered, as
well as innuendo, hearsay and speculation,” and that the amassing of detailed
information leads to “…dossier building and the creation of generalized suspect
lists.”57 These are legitimate concerns.
The CSIS Act already imposes restraints to prevent this. Section 12 requires
CSIS to collect intelligence about “activities that may on reasonable grounds
be suspected of constituting threats to the security of Canada.” “Threats to the
security of Canada” are carefully defined in section 2 of the Act. As well, section
12 requires meeting the investigative threshold of “reasonable suspicion” before
collection is permitted. The concept of reasonable suspicion is recognized in
other areas of law and it is similar to that used by the police when commencing
investigations.58 In addition, CSIS must respect principles of proportionality;
intelligence should be collected only to the extent that it is “strictly necessary.”
With these constraints on collection in place, the retention of the intelligence
collected should not be problematic.
57
58
Stanley A. Cohen, Privacy, Crime and Terror: Legal Rights and Security in a Time of Peril (Markham:
LexisNexis, 2005), p. 404 [Cohen, Privacy, Crime and Terror].
Final Submissions of the Attorney General of Canada, Vol. I, para. 494.
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In some cases, retaining the original intelligence will protect those who later
become the targets of enforcement and other actions, by revealing inaccuracies
in the CSIS analysis or improprieties in the collection of the intelligence. In
other cases, retaining the original intelligence will help protect the security of
Canadians, by providing leads and revealing connections that were not apparent
when the intelligence was collected and first analyzed. In all cases, retention
of the original intelligence will help ensure that the important analytical work
done by CSIS is accurate and precise because the work can be tested against
the raw data.
CSIS search powers, including the power to engage in electronic surveillance,
must meet a higher standard than that set out in section 12 governing the
collection, analysis and retention of information. To obtain the authority to
search, CSIS investigators must believe, not merely suspect, on reasonable
grounds, that a warrant is required to investigate a threat to the security of
Canada. In addition, section 21 requires that other investigative procedures
have failed, would be unlikely to succeed or that the matter is urgent.
There is also a second layer of privacy protection. CSIS is subject to extensive
review of its activities, including its policies and practices about retaining and
sharing intelligence. The Inspector General of CSIS must inform the Minister of
Public Safety if CSIS engages in operational activities that are not authorized
under the CSIS Act or that contravene ministerial directives. Ministerial directives,
for example, restrict investigations in sensitive sectors and investigations which
involve unreasonable or unnecessary use by CSIS of its powers.59 In addition, the
Inspector General’s Certificates are referred to the Security Intelligence Review
Committee (SIRC), which reviews the performance of CSIS and hears complaints
against it.60 In both its reviews and in its hearings of complaints from people
denied security clearances, SIRC should be concerned with the accuracy and
reliability of the intelligence that CSIS shares with other agencies and that leads
CSIS to act. SIRC’s reviews should provide some protection against the misuse of
intelligence files that contain untested data.
The Privacy Act61 provides additional protections. Any sharing of intelligence
would have to be justified under one of the limited exceptions, which include
consistent use, law enforcement and the public interest.62 The Office of the
Privacy Commissioner may also audit and review even the “exempt banks” of
data held by CSIS.
59
60
61
62
CSIS Act, s. 33.
CSIS Act, ss. 34-55.
R.S.C. 1985, c. P-21.
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review
Mechanism for the RCMP’s National Security Activities (Ottawa: Public Works and Government Services
Canada, 2006), pp. 286, 433-436 [A New Review Mechanism for the RCMP’s National Security Activities];
Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad AbouElmaati and Muayyed Nureddin (Ottawa: Public Works and Government Services Canada, 2008), pp. 82,
92, 393-395, 434-435 [Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah
Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin].
�Chapter IV: The Collection and Retention of Intelligence
Finally, concerns about privacy are mitigated by the limited uses CSIS can make
of the intelligence that it retains. Intelligence held by CSIS is generally kept
secret. If the intelligence is distributed to other agencies, it should, as Justice
O’Connor has recommended, be screened for relevance, reliability, accuracy
and privacy concerns, and appropriate restrictions or caveats on its subsequent
distribution should be attached.63
Recommendation 9:
In compliance with the 2008 Supreme Court of Canada decision in Charkaoui,
CSIS should retain intelligence that has been properly gathered during an
investigation of threats to national security under section 12 of the CSIS Act.
CSIS should destroy such intelligence after 25 years or a period determined by
Parliament, but only if the Director of CSIS certifies that it is no longer relevant.
4.4 Section 19 of the CSIS Act and the Distribution of Intelligence
Section 19(2)(a) of the CSIS Act constituted an important recognition that the
intelligence CSIS collected should in some cases be shared with police and
prosecutors. This sharing would occur if the intelligence would be relevant to the
investigation and prosecution of crimes such as terrorism that also constituted a
threat to the security of Canada. Section 19(2)(a) recognizes that the mandate of
CSIS to investigate threats to the security of Canada overlaps with the mandate
of police and prosecutors to investigate and prosecute serious crimes such as
terrorism and espionage.
Consistent with the emphasis on secrecy in the activities of a security intelligence
agency, section 19(1) provides a general rule that “…information obtained in
the performance of the duties and functions of the Service under this Act shall
not be disclosed….” This general rule is, however, qualified by section 19(2)(a):
The Service may disclose information referred to in subsection
(1) for the purposes of the performance of its duties and
functions under this Act or the administration or enforcement
of this Act or as required by any other law and may also
disclose such information,
a.
63
where the information may be used in the investigation or prosecution
of an alleged contravention of any law of Canada or a province, to a
peace officer having jurisdiction to investigate the alleged
contravention and to the Attorney General of Canada and the
Attorney General of the province in which proceedings
in respect of the alleged contravention may be taken.
[Emphasis added]
Report of the Events Relating to Maher Arar: Analysis and Recommendations, p. 343.
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Sections 19(2)(b)(c) and (d) contemplate disclosure of CSIS information to
various ministers, including the Minister of Foreign Affairs and the Minister of
National Defence.
The problem with these provisions is that they give CSIS the sole discretion to
pass information to any other agency. In the exercise of its discretion, CSIS can
decide not to disclose information about a crime.
4.4.1 CSIS Discretion under Section 19(2)(a) Not to Share Relevant
Information with the Police
There is evidence that the discretion in section 19(2)(a) was used, especially in
the early stages of the post-bombing investigation, to thwart full cooperation
by CSIS with the RCMP. When testifying before the Commission, Jacques Jodoin,
Director General of Communications Intelligence and Warrants, confirmed that
he had written a memorandum stating that, “…in accordance with the legal
advice we have received on s. 19(2)(a), we cannot give RCMP direct access to
transcripts [of the Parmar wiretaps]; we can only provide them investigational
leads….”64 Merv Grierson, who had been both head of Counter-Intelligence and
Deputy Director of Counter Terrorism in the BC Region, testified that there was a
“continual stand-off ” between CSIS and the RCMP about section 19(2)(a) during
the investigation.65
James (“Jim”) Warren, a retired CSIS officer, even testified that he objected to a
liaison program between the RCMP and CSIS on the basis that it would remove
the Director’s discretion not to turn information over to the police.66 Although
the liaison program was sensibly introduced over such objections, the fact that
such objections were even made demonstrates the fear at CSIS of being pulled
into the world of law enforcement, disclosure and the courts.67
Jack Hooper, a former Deputy Director of CSIS, testified that he believed that
he would be “…failing to meet the expectations of the legislators and removing
from the Director the discretionary power that was accorded to him”68 if he
provided the RCMP with raw information during an investigation. On the other
hand, former RCMP Commissioner
Giuliano Zaccardelli testified about the problems that a lack of disclosure
caused:
64
65
66
67
68
Testimony of Jacques Jodoin, vol. 49, September 20, 2007, p. 6056.
Testimony of Merv Grierson, vol. 75, November 14, 2007, pp. 9474-9475.
Testimony of James Warren, vol. 48, September 19, 2007, p. 5909.
For an argument that the lack of CSIS cooperation in the immediate post-bombing period was related
more to internal rivalries than to any essential differences at that time between CSIS as a security
intelligence agency and the RCMP as a police force, see Brodeur Paper on Comparison
of RCMP and CSIS, pp. 191, 202-203.
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6221.
�Chapter IV: The Collection and Retention of Intelligence
When you look at the actual legislation [CSIS Act] and the
interpretation that’s been given to that legislation, that’s
where we have the problem. The legislation and the way it is
interpreted has not been – has not enabled the agencies to
effectively and efficiently carry out their mandates when the
exchange of information is inhibited by what, at times, is very
narrow interpretations of the various sections which allow for
the flow of information or the retention of certain information
as happens sometimes, in particularly with CSIS….
That word [“may”] has caused – is really at the centre of the
problem because if you interpret “may” in a narrow way
then you have the problems that were created – that have
historically been at the centre of the issue.69
4.4.2 Rationales for CSIS Discretion Not to Give the Police Relevant
Information
It is important to understand why CSIS might want discretion to withhold
information that would be of use to police and prosecutors. The following
concerns, among others, could justify its support for the discretion not to share
relevant information with the police:
• concerns about revealing covert agents and sources of CSIS;
• concerns about maintaining the secrecy of the information that
CSIS shares, particularly in subsequent prosecutions; and
• concerns about disrupting ongoing security intelligence
investigations.
CSIS has a statutory obligation not to disclose intelligence that could reveal
confidential sources of information or the identity of CSIS employees engaged
in covert operational activities. However, section 18(2) provides that a person
may disclose such information “…in the circumstances described in any of
paragraphs 19(2)(a) to (d).” Thus, the protection for confidential sources and
covert agents set out in section 18 is not a legal impediment to disclosing
information for law enforcement and prosecution purposes. Still, CSIS could
have concerns that disclosing information would increase the risk that the
identity of secret human sources or covert agents could be disclosed. There is
some evidence that CSIS gives its human sources “…absolute promises that their
identity will be protected” and that such practices are believed to be necessary
in the recruitment of sources and in the discharge by CSIS of its duty to collect
intelligence about security threats.70
69
70
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11022-11024.
Harkat (Re), 2009 FC 204 at para. 31.
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CSIS possibly might also want to withhold relevant secret information from law
enforcement officials because of a concern that such officials may not have the
requisite security clearances, training or facilities to ensure the security of the
information. Some secret information, if inadvertently disclosed, could place the
life of a human source at risk or jeopardize an ongoing investigation. These are
legitimate concerns, but they have largely been addressed through measures
to ensure adequate security procedures for INSETs and other national security
investigators. Police officers also often have experience with secret human
sources – those protected by police informer privilege.
Another possible reason for CSIS to want to withhold information from the
police is the concern that a police arrest could disrupt an ongoing and highly
important intelligence investigation. Luc Portelance, Deputy Director of
Operations at CSIS, testified that the discretion not to disclose information
“…provides us all of the latitude that we need” to protect “…some ongoing
investigations whereby there’s absolutely no need to inform the RCMP. It could
be in the counter-intelligence domain, it could be in the counter-proliferation
domain…. So you would never want to take away from us, I think, the discretion
that we have.”71 Assistant Commissioner Mike McDonell of the RCMP agreed
with Portelance that, given the breadth of the CSIS mandate, the discretion not
to disclose information for law enforcement purposes should be retained.
McDonell stressed the “…current environment of openness and of discussion”72
that informs the exercise of discretion by CSIS not to disclose relevant information
to the police. Meetings between the RCMP and CSIS to prevent conflicts during
their respective investigations or to address those conflicts were discussed
in Chapter II. This positive environment could deteriorate as people retire or
move on, and as the sense of urgency in post 9/11 reforms that stressed greater
cooperation and integration dissipates. As Hooper testified, “…at the end of the
day the solution must be a legal solution, a legislative solution, not a relationship
solution.”73
The risk that disclosure of CSIS information to the police could compromise
ongoing security intelligence investigations is reduced by the requirement of the
consent of the federal or provincial Attorney General to commence proceedings
for terrorism offences.74 As well, proceedings with respect to the Security of
Information Act cannot be commenced without the consent of the Attorney
General of Canada.75 In both cases, the principle of police independence, which
has been interpreted to preserve the freedom of police officers to exercise their
discretion to lay charges and make arrests, has been qualified in the national
security context.
71
72
73
74
75
Testimony of Luc Portelance, vol. 88, December 4, 2007, pp. 11516-11517.
Testimony of Mike McDonnell, vol. 95, December 13, 2007, p. 12663.
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6247-6248.
Criminal Code, R.S.C. 1985, c. C-46, s. 83.24 [Criminal Code] ; A New Review Mechanism for the RCMP’s
National Security Activities, p. 460. See also Chapter III.
Security of Information Act, R.S.C. 1985, c. O-5, s. 24.
�Chapter IV: The Collection and Retention of Intelligence
The most compelling reason for the discretion vested in CSIS not to disclose
information to police or prosecutors is the concern that once information is in
the hands of the police or prosecutors, it might eventually be disclosed in court.
The Security Intelligence Review Committee, in a series of reports in 1998 and
1999, described concerns within CSIS “…that all CSIS intelligence disclosures,
regardless of whether they would be entered for evidentiary purposes by
the Crown, are subject to disclosure. Any passage of information, whether an
oral disclosure or in a formal advisory letter, could expose CSIS investigations.
This means that even information that is provided during joint discussions on
investigations or that is provided as an investigative lead is at risk.”76 The SIRC
reports emphasized how the broad obligations articulated in Stinchcombe77 to
disclose all relevant information had adversely affected information sharing
between the RCMP and CSIS.
When CSIS gives information to the RCMP, this entails a risk that the information
will be disclosed later in legal proceedings. It does not in every case mean that
the information will be disclosed. The police investigation may not produce
sufficient evidence to lay criminal charges. Even if there is sufficient evidence,
the Attorney General might not consent to the laying of terrorism charges.78 Even
if charges are laid, the intelligence may not meet the relevance standard that
would require its disclosure to the accused. Even if the intelligence is relevant and
should be disclosed, the Attorney General of Canada can seek a non-disclosure
order under section 38 of the Canada Evidence Act79 on the grounds that the
harms of disclosure to national security outweigh the need for disclosure. Even
if a court concludes that intelligence must be disclosed, the Attorney General of
Canada can issue a certificate under section 38.13 that prevents disclosure on
the basis that it was received from or in relation to a foreign entity or relates to
national defence or national security. Finally, the Attorney General of Canada
can stay a terrorism prosecution to avoid disclosure.
The list of means of protecting intelligence from disclosure described above
means that CSIS should not equate sharing information with the police to
the inevitable disclosure of the information to the accused or the public in a
prosecution. There is a risk of disclosure, but CSIS perceives the risk to be greater
than it is in fact. This distorted perception makes CSIS unnecessarily reticent to
share information with the RCMP.
4.4.3 Submissions on CSIS Discretion to Share Information with the Police
The Air India Victims’ Families Association submitted that the discretion of CSIS
to disclose information should be abolished. In short, they request that the
“may” in section 19(2) of the CSIS Act be changed to “shall.”80 CSIS would then be
76
77
78
79
80
SIRC Study 1998-04, p. 9.
R. v. Stinchcombe, [1991] 3 S.C.R. 326.
Criminal Code, s. 83.24.
R.S.C. 1985, c. C-5.
Where is Justice? AIVFA Final Written Submission, Commission of Inquiry into the Investigation of the
Bombing of Air India Flight 182, February 29, 2008, p. 97 [AIVFA Final Written Submission].
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required to disclose information to police and prosecutors that it currently has
discretion to disclose or withhold.
The Attorney General of Canada did not recommend eliminating this discretion.
The Attorney General described the CSIS discretion as a key part of the legislative
scheme and warned that if the RCMP had full access to CSIS information, “…
innocent people could be drawn into a criminal investigation solely on the basis
of a link to a CSIS target.”81
Several witnesses testified about section 19. Former RCMP Commissioner
Zaccardelli emphasized the importance of “effective and efficient movement” of
information given the current threat environment:
…I realize that the Air India disaster was one of the greatest
tragedies that has ever taken place in the world; the most
important, or the most serious crime that ever took place
in Canada. That was one event but what we face today is a
repeated series of threats, therefore, the need to have that
information flow becomes even more crucial and it must
flow in a timely manner and it cannot be given a restrictive
interpretation because the risks are so high. The higher the
risk the more attempt must be made to give a more liberal
interpretation to the release of information.82
Zaccardelli’s comments underline that the risk that intelligence shared by CSIS
with the RCMP will subsequently be disclosed is not the only or necessarily the
most important risk. Another is that a refusal to share information will prevent
law enforcement from making arrests or from taking other actions that could
prevent an act of terrorism such as the bombing of Air India Flight 182.
4.4.4 The Commission’s Proposed Approach to Information Sharing
The preferable way to reconcile the competing interests in sharing information
with the police and in maintaining the secrecy of information is to require CSIS
to provide information that could be relevant and of use in criminal terrorism
investigations either to the relevant police and prosecutors or to the NSA.
The status quo is not acceptable because it allows CSIS to decide unilaterally
for the Government of Canada when relevant information should or should not
be shared with other agencies. The status quo entails the risk that police and
prosecutors may not receive important information that could assist them in
terrorism investigations and prosecutions. Moreover, it precludes anyone in
the Government of Canada outside CSIS from learning about the information.
Although CSIS is ultimately accountable to the Minister of Public Safety and is
81
82
Final Submissions of the Attorney General of Canada, Vol. I, para. 335.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, pp. 11024, 11030.
�Chapter IV: The Collection and Retention of Intelligence
subject to review by the Inspector General and by SIRC, it is unlikely that any of
these can effectively supervise how CSIS exercises its discretion under section
19(2)(a) not to disclose relevant information.
CSIS should not have a residual discretion to withhold highly sensitive
intelligence. Although the current relationship between the RCMP and CSIS is
apparently good and is resulting in improved sharing of information by CSIS,
this relationship could deteriorate, and CSIS might use its discretion to limit the
sharing of information that should be shared in the public interest.
The remote possibility of disclosure to an accused at some unknown future time
should not justify preventing CSIS from sharing relevant information with police
to allow the police to take actions that may help prevent an act of terrorism. To
allow concerns about possible eventual disclosure effectively to prevent CSIS
from sharing information with the police is to allow the tail to wag the dog. The
first priority should be to ensure the sharing of information that is necessary to
protect the safety of Canadians.
At the same time, there would be problems if, as recommended by the Air India
Victims’ Families Association, the “may” in section 19(2) were simply amended
to “shall.” That would require CSIS to share relevant information with the police
in all cases. As discussed, CSIS may have legitimate reasons to oppose sharing
information about sensitive investigations and secret sources and methods.
Relevant information shared with the police might be subject to broad
constitutional obligations to disclose the information to the accused. Although
steps could be taken to prevent such disclosure of sensitive intelligence, there
would be no certainty that they would be successful. Even the risk of disclosure
could jeopardize CSIS investigations and its relations with sources and allied
agencies. It is also possible that CSIS could adopt restrictive interpretations of
what information could be relevant and of use in criminal investigations if it was
simply required to share all such information with the police.
Section 19(2)(a) of the CSIS Act should be amended to require that CSIS “shall”
disclose information that “…may be used in the investigation or prosecution” of
an offence. However, CSIS should still have some discretion – whether to provide
such information to police and prosecutors and accept the risk of subsequent
disclosure, or to provide the information to the NSA. The NSA would then
decide, in the public interest, if and when the information should be provided
to the police or to another agency. The NSA would have the power at any time
to require CSIS to give the information to police, prosecutors or to any other
agency.
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CSIS should have this obligation to report only for information about “…threats
to the security of Canada” as defined in section 2 of the Act.83 This would limit
the mandatory reporting requirement to CSIS terrorism investigations, where
the balance between the competing demands for secrecy and disclosure is the
most delicate.
These changes would give statutory recognition to the enhanced role of the
NSA proposed in Chapter II.
This two-track approach, in which CSIS would either provide relevant
information directly to the police or to the NSA, would allow CSIS to continue its
current practice of increasing the flow of information about its counterterrorism
investigations to the RCMP. Many new terrorism offences were created in 2001
and, as Charkaoui articulated, increased obligations have been imposed on
CSIS to retain intelligence relating to particular individuals. For these reasons,
CSIS will likely continue to provide increasing amounts of information about
its terrorism investigations to the RCMP. This is a positive trend, but both the
O’Connor84 and Iacobucci85 reports stressed the care that must be taken with
shared information. The RCMP must relate information received from CSIS to
the RCMP’s criminal law mandate and must take steps to ensure the accuracy,
reliability and relevance of the information that the RCMP receives.
The Commission understands the concerns of CSIS about the possibility
of the information it shares with the RCMP being disclosed to the defence.
The Commission also acknowledges concerns that some CSIS intelligence
investigations are so sensitive that there are dangers in simply providing
information about them to the police and prosecutors who, under the Charter,
are subject to broad disclosure obligations.86 Even a slight risk that sensitive
intelligence could be disclosed publicly could adversely affect CSIS and,
potentially, the safety of Canadians. For these reasons, CSIS should have the
option of providing information that may be relevant to terrorism investigations
and prosecutions to the NSA instead of to the relevant policing and prosecutorial
authorities.
The Commission cannot predict how much information CSIS will share with
the RCMP or with the NSA under this proposed regime. The Commission heard
evidence that CSIS already is passing more counterterrorism information to the
RCMP than it did previously. Although he did not support an amendment that
83
84
85
86
This mandate relates to international and domestic terrorism defined as “…threat or use of acts of
serious violence against persons or property for the purpose of achieving a political, religious
or ideological objective within Canada or a foreign state.” It would be best to define CSIS’s new
mandatory reporting obligations in terms of its own mandate rather than with respect to what for CSIS
will be the less familiar concepts of either terrorist activities or terrorist offences as defined in the
Criminal Code.
Report of the Events Relating to Maher Arar: Analysis and Recommendations, p. 103.
Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad AbouElmaati and Muayyed Nureddin, p. 69.
R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. McNeil, 2009 SCC 3. See Chapter V for more discussion of the
scope of these disclosure obligations.
�Chapter IV: The Collection and Retention of Intelligence
would eliminate the CSIS discretion not to disclose relevant intelligence, Luc
Portelance of CSIS testified that present-day integration of CSIS and the RCMP
was such that the current discretion to share information under section 19
applied almost as if it was obligatory.87 Henry Jensen, a former RCMP Deputy
Commissioner of Operations, also testified that an MOU between the RCMP and
CSIS had effectively already changed the “may disclose” in section 19(2) to “shall
disclose.”88
CSIS is likely to become more willing to provide information directly to the RCMP
as CSIS becomes more comfortable with the safeguards in the legal system to
prevent the further disclosure of intelligence. Introducing a Director of Terrorism
Prosecutions, as proposed earlier, will probably increase the level of comfort
within CSIS, because there will be expert advice available from the Director
about the many remedies that are available to prevent the further disclosure of
intelligence that CSIS provides to the police.
4.4.5 The Role of the National Security Advisor in Sharing CSIS
Information
On receiving information from CSIS, the NSA would decide what to do with
the information. CSIS would be permitted to express fully to the NSA its views
about possible risks in disclosing the intelligence to the RCMP or in using the
intelligence in some other way, such as border control or immigration. CSIS
would not, however, have a veto on sharing the information with the RCMP,
unlike the current situation, where CSIS has discretion under section 19(2)(a) of
the CSIS Act whether or not to share the information. Under the new proposal,
the NSA would have the ultimate authority to decide whether CSIS information
should be shared with the RCMP. The NSA would be expected to act in the
public interest in each case and would not be beholden to any interest of CSIS
in withholding information from other agencies. Equally, the NSA would not be
bound to serve any interest of the RCMP in having the information provided to
it to facilitate an investigation or subsequent prosecution.
In some cases, the NSA might conclude that national security investigations
should continue without providing CSIS information to police and prosecutors.
In such cases it would be prudent for the NSA to be briefed regularly about
the national security investigation. At some point, the NSA might decide that
it would be appropriate to pass information to police, prosecutors or other
agencies in Canada or abroad. The NSA could be selective, deciding that some
CSIS information should be given to border officials or to those responsible for
aviation security, but not to the RCMP, at that time.
If the NSA determined that the CSIS information should be made available to
police and prosecutors, the NSA would provide the information to them. The
principles of police and prosecutorial independence and discretion would,
87
88
Testimony of Luc Portelance, vol. 88, December 4, 2007, p. 11515.
Testimony of Henry Jensen, vol. 18, March 7, 2007, pp. 1650-1651.
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however, prevent the NSA from compelling the police to commence an
investigation or prosecutors to lay charges.
CSIS should be prepared to explain to the NSA any decision it makes to pass
terrorism-related information to the NSA instead of to the police. Although it
is impossible to predict what percentage of information will be passed from
CSIS to the RCMP or to the NSA (and that percentage may change over time),
it can be expected that the NSA will receive information in the most difficult
and sensitive cases. This would place a special obligation on the NSA to stay
informed about those cases and to seek appropriate advice about them.
Information that CSIS provides to the NSA should be subject to a new statutory
national security privilege. It would be patterned after the existing privilege
under section 39 of the Canada Evidence Act that shields information submitted
to assist with Cabinet deliberations.89 The new privilege would apply to
documents prepared for review by the NSA and to the NSA’s deliberations. The
details of the privilege are discussed in Chapter VI.
The new privilege might at first encourage CSIS to disclose more intelligence to
the NSA than to the RCMP. Nevertheless, the NSA could provide that intelligence
to the RCMP at any time. Once CSIS information was passed on to the RCMP, the
new national security privilege would no longer apply.
Recommendation 10:
The CSIS Act should be amended to reflect the enhanced role proposed for the
National Security Advisor and to provide for greater sharing of information with
other agencies.
Section 19(2)(a) of the CSIS Act should be amended to require CSIS to report
information that may be used in an investigation or prosecution of an offence
either to the relevant policing or prosecutorial authorities or to the National
Security Advisor.
If the National Security Advisor receives security threat information from CSIS,
he or she should have the authority, at any time, to provide the information to
the relevant policing or prosecutorial authorities or to other relevant officials
with a view to minimizing the terrorist threat. The National Security Advisor
should make decisions about whether intelligence should be disclosed only
after considering the competing demands for disclosure and secrecy. In every
case, the decision should be made in the public interest, which may differ from
the immediate interests of the agencies involved.
Intelligence prepared to assist the National Security Advisor in his or her
deliberations, and the deliberations themselves, should be protected by a new
89
Canada Evidence Act, s. 39.
�Chapter IV: The Collection and Retention of Intelligence
national security privilege. The privilege would be a class privilege similar to
that protecting information submitted to assist with Cabinet deliberations.
4.5 Culture Change within CSIS: Beyond “We Don’t Collect
Evidence”
Earlier sections discussed the need for two significant reforms: longer retention
by CSIS of the intelligence it collects, and an amendment to section 19(2)(a)
of the CSIS Act to remove the current CSIS discretion to withhold relevant
information from other agencies. However, these reforms alone are not sufficient
to ensure continuing improvement in the relationship between CSIS and the
RCMP. CSIS must take into account evidentiary and disclosure standards in its
counterterrorism investigations. CSIS must move beyond the mantra that it
does not collect evidence.
Warren testified that, during the time of the Air India investigation, disclosure
was seen as the equivalent of “…handing the keys to the church to the devil.”90
The attitude from that era must not be allowed to persist if CSIS is to work
effectively in a threat environment that may require arrests and prosecutions in
terrorism cases. The frustrations of police and prosecutors, because of resistance
from CSIS to meeting evidential and disclosure standards in its investigations,
were well and forcefully expressed by James Jardine, the lead prosecutor in the
Reyat case. His words, written in 1991, deserve being repeated:
There is little value in gathering intelligence for intelligence
purposes….It is my view that CSIS should consider the
development of the service to include the capacity to pass
information, intelligence, and evidence to the appropriate
police agency in a form which will allow the police agency to
use the ‘information’ in evidence gathering for the prosecution.
To do that the Service must come to grips with the thorny
issues created by the disclosure requirements for full answer
and defence in criminal prosecutions.91
Jardine went on to suggest that this required CSIS to accept that its personnel
would at times testify in criminal proceedings and would have to preserve
evidence for court purposes.92 It took 17 years, but the 2008 Supreme Court
decision in Charkaoui93 vindicated the concerns expressed by Jardine.
Supreme Court decisions, however, do not change attitudes or standard
operating policies overnight. CSIS needs to ensure that it truly accepts the
90
91
92
93
Testimony of James Warren, vol. 48, September 19, 2007, p. 5839.
Public Production 10005936: James Jardine, Q.C., “The Use of Security Intelligence in Canadian Criminal
Proceedings,” Speaking Notes for an October 3, 1991 Seminar at Ottawa, p. 36 [Jardine Notes on Use of
Security Intelligence in Canadian Criminal Proceedings].
Jardine Notes on Use of Security Intelligence in Canadian Criminal Proceedings.
2008 SCC 38, [2008] 2 S.C.R. 326.
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evidential and disclosure implications of its counterterrorism investigations. This
does not mean that CSIS should become a police force, or what is pejoratively
called a “cheap cop shop.” CSIS must continue to collect intelligence to inform
the Government of Canada about threats to national security. That remains the
mandate of CSIS. However, CSIS should no longer resist or ignore the reality that
its counterterrorism investigations will often overlap with criminal investigations
and that some intelligence may have to be used as evidence.
Most of the emphasis in the early years of CSIS was placed on differentiating the
activities of the new agency from those of the RCMP. Various SIRC reports that
reviewed the work of CSIS affirmed the idea that CSIS did not collect evidence.
SIRC also suggested that the RCMP’s frustration flowed from a misunderstanding
of the statutory mandate of CSIS. For example, SIRC’s public report on the Air
India investigation commented that:
… [a]s the investigation progressed, RCMP officials felt it
necessary to examine CSIS files on certain Sikh extremist
targets in more detail. CSIS, whose mandate it is to collect
intelligence and not evidence, was at first reluctant to expose
its files, and by extension its methods and sources, for any
evidentiary use by the RCMP. Lengthy negotiations took
place between the two agencies, but eventually the RCMP
investigators were allowed access to the files subject to some
mutually agreed conditions on the subsequent use of the
information.
Overall, we found no evidence that access to available CSIS
information relevant to the RCMP investigation of the disaster
was unreasonably denied to the Force.94
SIRC returned in 1998 to the theme that CSIS did not collect evidence, when
SIRC commented that:
…some RCMP investigators see some CSIS information as
evidence that is vital to a successful prosecution, but which
can be denied to them by caveats placed on the information
by CSIS or that, even if used, will be subject to the Service
invoking sections 37 and 38 of the Canada Evidence Act, an
action that could seriously impede the RCMP’s case. The
Service view is that it does not collect evidence. This possible
misunderstanding on the part of some RCMP investigators
may result in certain CSIS information/intelligence being
94
Security Intelligence Review Committee Annual Report 1991-92, p. 10, online: Security Intelligence
Review Committee <http://www.sirc-csars.gc.ca/pdfs/ar_1991-1992-eng.pdf> (accessed July 29, 2009).
�Chapter IV: The Collection and Retention of Intelligence
treated as though it were evidence but which might not stand
up to Court scrutiny because it had not been collected to
evidentiary standards. 95
SIRC noted that some RCMP officers complained that CSIS was overly protective
of its human sources, but it concluded that withholding information to protect
third party information, human sources and methods of operation“…is consistent
with Service policy,” and was clearly stated in the terms of a Memorandum of
Understanding.96 The message sent to CSIS was that the frustrations of police
and prosecutors were caused simply by misunderstanding the CSIS mandate.
The widely-held view that CSIS did not collect evidence also meant that legal
requirements for disclosure were viewed with suspicion and alarm within CSIS.
Professor Wesley Wark commented on the 1991 Stinchcombe decision, which
required the disclosure to the accused of relevant information possessed by the
Crown. According to Wark, Stinchcombe had “…the effect of further cementing
CSIS’s self-image as an intelligence service that collected information for national
security purposes, not evidence. It potentially deepened the RCMP’s difficulties
in sustaining the flow of intelligence, deemed worthwhile as investigative leads,
from CSIS.”97
Police and prosecutors were frustrated by CSIS attitudes. The frustration within
the RCMP made that agency more reluctant to work with CSIS. It spawned what
has been described earlier in this volume as a philosophy of the RCMP that
can be summarized as “the less information we receive from CSIS, the better.”
SIRC noted that RCMP O Division had reduced its requests for disclosure letters
from CSIS by 90 per cent, in large part “…because the Stinchcombe decision had
effectively turned CSIS information into what was described as a ‘poison pill’
when a related prosecution was initiated.”98 The reluctance of the RCMP to obtain
CSIS intelligence was accompanied by an increasingly strained relationship
between the two agencies.
MI5, the British equivalent of CSIS, recognizes the need at times for intelligence
to be disclosed and then to be used as evidence. The MI5 website provides
the following statement: “The increased involvement of the Service in criminal
proceedings means that, when planning and carrying out intelligence
investigations that may lead to a prosecution, we keep in mind the requirements
of both the law of evidence and the duty of disclosure.”99 At the same time, the
legal system has assisted MI5 by allowing agents to testify anonymously and
behind screens, although they are subject to cross-examination. Similarly, MI5
has explained how trial judges can make non-disclosure orders in cases where
95
96
97
98
99
SIRC Study 1998-04, p. 9.
SIRC Study 1998-04, p. 6.
Wark Paper on Intelligence-Law Enforcement Nexus, p. 165.
SIRC Study 1998-04, p. 7.
Security Service MI5 (United Kingdom), “Evidence and Disclosure,” online: Security Service MI5 (United
Kingdom) <http://www.mi5.gov.uk/output/evidence-and-disclosure.html> (accessed July 29, 2009)
[MI5, “Evidence and Disclosure”].
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“…disclosure would cause real damage to the public interest by, for example,
compromising the identity of an agent or a sensitive investigative technique….
[I]t is the courts, not the Service or the Government, that ultimately decide what
must be disclosed in a particular case. If a claim is accepted, the judge will continue
to keep the decision under review throughout the proceedings.”100 The British
example is instructive. It demonstrates how security intelligence agencies and
the legal system can work together to better manage the relationship between
intelligence that can be kept secret and evidence that must be disclosed to
ensure a fair prosecution.101
The balance between intelligence and evidence was altered by the Anti-terrorism
Act. The Act created many new criminal offences that may be committed by acts
of support, facilitation and participation in a terrorist group – activities that may
occur long before any overt terrorist act. The Hon. Bob Rae raised the following
valid concerns in his report:
If an agency believes that its mission does not include law
enforcement, it should hardly be surprising that its agents do
not believe they are in the business of collecting evidence for
use in a trial. But this misses the point that in an age where
terrorism and its ancillary activities are clearly crimes, the
surveillance of potentially violent behaviour may ultimately be
connected to law enforcement.102
RCMP Deputy Commissioner Gary Bass testified about RCMP concerns that
CSIS is still not sufficiently attuned to the needs of law enforcement. He stated
that “…there is something inherently wrong with the process now where…
it’s accepted that CSIS is not in the business of gathering evidence, yet they’re
expected to make an assessment on evidence to decide whether or not they
retain tapes.…[I]t just doesn’t make sense to me.”103
Appropriate CSIS officials should receive adequate training and legal advice
about the law regarding disclosure of intelligence and the relevance of
intelligence to terrorism prosecutions. This is necessary to complement the
policy changes proposed in this chapter about section 12 of the CSIS Act and
the removal of the current discretion vested in CSIS not to share information for
law enforcement or prosecution purposes under section 19(2)(a).
The proposed Director of Terrorism Prosecutions could play a key role in
educating CSIS about the law surrounding disclosure. The Director could also
provide continuity of legal advice about disclosure matters, something that
100 MI5, “Evidence and Disclosure.”
101 Wiretap evidence, however, is not generally admissible in British prosecutions. The issue of the use of
CSIS wiretap warrants as evidence and the appropriate balance between CSIS and Criminal Code
wiretap warrants is discussed later in this chapter.
102 Lessons to be Learned, p. 23.
103 Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11284.
�Chapter IV: The Collection and Retention of Intelligence
has not always been available and that may have led to exaggerated fears that
intelligence shared with the RCMP would have to be disclosed to the accused.
It is important for CSIS to appreciate that the law has a robust regime to protect
intelligence from disclosure.
CSIS standard operating procedures must change to accommodate disclosure
requirements. In its submissions to the Commission, the Canadian Bar Association
cited several cases where CSIS continued to destroy notes taken from key
sources and notes taken at other meetings. The Association pointed out that,
“…[f ]or a police force to direct [that] such policies be followed would clearly be
a gross and deliberate violation of an accused’s right to full answer and defence.
It appears CSIS accepts this as routine and justified by the interests of national
security.”104 The Supreme Court’s subsequent decision in Charkaoui105 confirmed
that CSIS had destroyed interview notes that should have been retained and
concluded that CSIS retention policies were inadequate.
There are signs that the leadership at CSIS is aware of the trends towards greater
disclosure of intelligence collected in counterterrorism investigations. In a
speech given in April 2008, Jim Judd, the Director of CSIS at the time, referred
to the “judicialization” of intelligence, where intelligence was increasingly
becoming involved in the legal process. He commented:
One of the consequences of recent trends in anti-terrorism
actions has been a growing number of criminal prosecutions
that have often had at their genesis, information collected by
intelligence and not law enforcement agencies.
This in turn has increasingly drawn intelligence agencies
in some jurisdictions into some interesting and important
debates on a range of legal issues such as disclosure,
evidentiary standards, and the testimony of intelligence
personnel in criminal prosecutions.
While not startling or novel issues for the legal or police
communities, these do have significant potential implications
and consequences for the conduct of intelligence operations.
In some instances, they have also stimulated some interesting
debates over the boundary lines between law enforcement
agencies and intelligence services.106
104 Canadian Bar Association, Submission to the Commission of Inquiry into the Investigation of the
Bombing of Air India Flight 182, April 2007, p. 18.
105 2008 SCC 38, [2008] 2 S.C.R. 326.
106 “Remarks by Jim Judd, Director of CSIS, at the Global Futures Forum Conference in Vancouver” (April 15,
2008), online: <http://www.csis-scrs.gc.ca/nwsrm/spchs/spch15042008-eng.asp> (accessed July 29,
2009) [Judd Remarks at Global Futures Forum Conference].
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Judd also observed that a variety of factors, including legal proceedings, were
driving a debate about “…what is legitimately secret and what is not,” and that
these changes “…raise the issue as to whether or not existing legislative regimes
are still current.”107
Yet CSIS appeared resistant to change earlier. In a 2006 speech, Judd commented
that, “… [u]nlike the police, we do not collect evidence per se (or collect
information to evidentiary standards) to prosecute and secure convictions in
court proceedings.”108 In his testimony before the Commission, Judd stated that
“…the notion that there is a significant overlap between the two mandates of
the organizations in respect of terrorism is greatly overestimated or overblown.”
He stated in support of his position that there were only three cases since 9/11
where a CSIS investigation coincided with a police investigation that resulted in
charges.109 Although he characterized this as minimal overlap, it is significant in
light of the few cases in which terrorism charges have been laid in Canada since
9/11. In many cases where terrorism prosecutions have been launched, CSIS has
conducted a previous or a contemporaneous investigation.
Judd’s comments that CSIS does not collect intelligence to evidentiary
standards, combined with the Supreme Court’s decision in Charkaoui110 about
the inadequacy of CSIS retention policies, demonstrate that CSIS still has not
fully accepted that intelligence collected in counterterrorism investigations will
at times have to be disclosed and used as evidence in terrorism prosecutions.
Securing acceptance by CSIS is especially important, given that counterterrorism
investigations now consume most of the resources of CSIS.
CSIS witnesses who testified before the Commission appeared to assume
that preventing disclosure and preserving the anonymity of sources was the
only means to protect such vulnerable persons. Hooper testified that “…the
identification of our sources in the public domain is anathema to the Service to
the extent that it really, at the end of the day, attenuates our ability to effectively
do our jobs.”111 The concern about the ability of CSIS to do the job of supplying
intelligence also explained why, according to Hooper, “…we are rather religious
in terms of protecting the identity of assets, whether they be technical or human
or any other form.”112
The desire of CSIS to protect vulnerable human sources is understandable.
Nevertheless, the collection of intelligence is not a goal in and of itself. The
collection of intelligence should assist in preventing terrorism. This will
107 Judd Remarks at Global Futures Forum Conference.
108 “Transparency and Intelligence, Notes for Remarks at Royal Canadian Military Institute (RCMI) Toronto,
Ontario, Jim Judd, Director, Canadian Security Intelligence Service” (September 28, 2006), online:
Canadian Security Intelligence Service <http://www.csis-scrs.gc.ca//nwsrm/spchs/spch28092006-eng.
asp> (accessed July 29, 2009).
109 Testimony of Jim Judd, vol. 90, December 6, 2007, p. 11851.
110 2008 SCC 38, [2008] 2 S.C.R. 326.
111 Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6217.
112 Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6217.
�Chapter IV: The Collection and Retention of Intelligence
sometimes require intelligence provided by secret sources to be disclosed
to police and possibly lead to the source’s identity being revealed during a
prosecution.
The legal system is far from powerless to protect human sources. As will be
discussed in subsequent chapters, identifying information about some police
informers can be protected by the police informer privilege. In addition,
prosecutors can seek a variety of non-disclosure orders from the courts.
Although they need to be improved and can impose hardships, witness
protection programs are also available. As Professor Jean-Paul Brodeur observed
in a paper written for the Commission, there is no reason for CSIS to be unfamiliar
with witness protection programs. CSIS should recognize that its ultimate
objective is to protect Canadians and that collecting secret intelligence and
using secret human sources are simply means to that end. With respect to the
Air India bombing, Brodeur observed that “…giving priority to the protection
of one’s informants over solving this monstrous crime is tantamount to losing
sight of the point that infiltration is a means towards the end of protecting the
nation and its people. Infiltration and the protection of informants is not an end
for its own sake.” 113
Both the CSIS Act and the culture of CSIS must change to respond to the
challenges presented by the investigation of terrorism as both a threat to
the security of Canada and as a crime. It is no longer appropriate for CSIS to
continue to rely on the historical notion that it does not collect evidence or
that there is very little overlap between its counterterrorism work and that
done by the police. The time has come for a more contemporary approach to
the counterterrorism effort.
4.6 Culture Change in the RCMP: Beyond “The Less Information We
Receive from CSIS, the Better”
The RCMP must also change. A number of representatives of the RCMP testified
about a philosophy of “the less information we receive from CSIS, the better.”
The precise expression that was sometimes used in testimony before the
Commission was “less is more,” but this expression should best be left where it
originated – as a description of simplicity of architectural and furniture design
– not in the police vocabulary as a description of attitudes about receiving
intelligence from CSIS.
113 Brodeur Paper on Comparison of RCMP and CSIS, p. 209. Brodeur explains that “[T]he police usually
make short-term use of their informants, perform sting operations with their assistance, and have no
qualms about calling informants to testify in court, since governments have witness protection
programs. Security intelligence agencies such as CSIS infrequently mount sting operations, since they
have no law enforcement mandate; they try to use sources for as long as possible and go to great
lengths to protect their identity”: pp. 207-208. He then relates CSIS practices of long-term running of
informants to an attempt at long-term curtailment of a group which can give rise to “a means over
ends” approach.
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RCMP Commissioner Elliott testified that “…sometimes it’s better for us not to
know things, and I think that’s part of the dilemma. How much do we need
to know in order to take action, as opposed to more detailed information that
might then give rise to a situation where that balancing would have to be made
with respect to whether information, on the one hand, should be disclosed or
it should not be disclosed, and that might be determined on whether or not
a prosecution could succeed or proceed.”114 RCMP Assistant Commissioner
McDonnell testified about how he could supplement “hints” from CSIS with his
own investigations in order to avoid the dilemmas presented by disclosure of
CSIS information.115
The philosophy of “the less information we receive from CSIS, the better” is
far from ideal. Former RCMP Commissioner Zaccardelli placed his finger on
the problem when he observed that “…[w]e’ve been concentrating [more] on
guarding the information for our own silos rather than working on how we can
guard it and still share it at the same time.”116
This philosophy also assumes that CSIS information will not be subject to
disclosure demands if it is not passed to the RCMP. This assumption is incorrect.
The Malik and Bagri prosecution provides an example of a court concluding that
the close integration between CSIS and the RCMP in the investigation made CSIS
subject to Stinchcombe disclosure obligations. Even if this ruling is ultimately not
sustained by a higher court, CSIS will still be subject to demands by the accused
to produce important information. This will be the case even if CSIS is classified
as a third party that is not bound by Stinchcombe disclosure obligations.117
The accused may not in all cases be successful in obtaining disclosure of
material held by CSIS. Where the accused is successful, the Attorney General of
Canada can still claim privileges and seek non-disclosure orders to protect that
material. Nevertheless, the real possibility of the accused obtaining disclosure
of intelligence from CSIS suggests that the RCMP approach of avoiding the
acquisition of intelligence from CSIS is not an effective or reliable means of
protecting that intelligence from disclosure. It also deprives the RCMP of
valuable information. Hence, the philosophy of “the less information we receive
from CSIS, the better” must be abandoned.
Like CSIS, the RCMP needs to become more comfortable with the variety of
instruments that can be used to protect intelligence from disclosure. The RCMP
needs to become more sensitive to CSIS concerns about secrecy and about
the responsibility of CSIS to collect intelligence about threats to the security
of Canada. The RCMP and CSIS should both be able to obtain consistent legal
advice about disclosure matters.
114
115
116
117
Testimony of William Elliott, vol. 90, December 6, 2007, p. 11814.
Testimony of Mike McDonell, vol. 95, December 13, 2007, pp. 12635.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11037.
See the discussion of R. v. O’Connor, [1995] 4 S.C.R 411 and R. v. McNeil, 2009 SCC 3 in Chapter V.
�Chapter IV: The Collection and Retention of Intelligence
The RCMP should continue to take the lead in counterterrorism investigations
where there is evidence of criminality. As discussed earlier, the Anti-terrorism
Act has moved ahead the point where criminality begins by creating offences
relating to the financing and facilitation of terrorism and various forms of
participation in terrorist groups, crimes which occur before the actual terrorist
act.
CSIS should not destroy intelligence and, where possible, it should collect it to
evidentiary standards. However, the police should remain the lead agency in
collecting evidence for use in court. The police have the necessary experience
and internal procedures to ensure that evidence is collected in a form that will
make it admissible in court. An additional benefit of giving the lead role to the
police is the ability of the police to disrupt terrorist plots, if necessary, through
arrests and other enforcement actions.
Recommendation 11:
To the extent that it is practicable to do so, CSIS should conform to the
requirements of the laws relating to evidence and disclosure when conducting
its counterterrorism investigations in order to facilitate the use of intelligence in
the criminal justice process.
4.7 Using CSIS Information in a Criminal Trial: Section 21 of the CSIS
Act
Electronic surveillance and human sources are the two most important means
of investigating terrorist plots. Section 21 of the CSIS Act sets out a warrant
regime that allows a designated judge of the Federal Court to grant a warrant
to intercept communications, documents and other relevant information. To
obtain a warrant, there must be reasonable grounds to believe that the search
is required to allow CSIS to investigate a threat to the security of Canada or to
perform its duties under section 16 of the Act.118 In addition, the judge must be
convinced that other investigative procedures are not practical.
The Attorney General of Canada submitted that section 21 of the CSIS Act
contains the same “reasonable grounds” standards that are generally used in
Criminal Code warrant applications. This statement is correct as far as it goes, but
it does not go far enough.
The basis for a Criminal Code warrant application is that the affiant has
reasonable grounds to believe that an offence has been, or will be, committed.
An affiant applying for a section 21 warrant under the CSIS Act must only have
a belief, on reasonable grounds, that a warrant is required to enable CSIS to
investigate a threat to the security of Canada. The affiant does not need to
118 Section 16 authorizes CSIS in certain circumstances to collect information about foreign states and
certain foreign individuals and corporations.
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specify a reasonable belief that an offence has been, or will be, committed.
The section 21 warrant could relate to someone reasonably suspected of being
involved in a terrorist or other threat to the security of Canada, even if no offence
is specified. For this reason, it is likely that a CSIS warrant will be less difficult to
obtain than a Criminal Code warrant in the early stages of a terrorist conspiracy
or plot.
There has been limited experience in criminal trials with the use of information
obtained through section 21 warrants. In his testimony, the Hon. Bob Rae
described this as the “intelligence-evidence conundrum”: “…[H]ow do we get
that information and evidence before a Judge without threatening or affecting
the whole intelligence gathering operation that we have, which is, by its very
nature, secretive…and sometimes relies on physical sources, like a wiretap,
sometimes relies on information from a live source, from a human being, you
know, the so-called ‘humint’ – human intelligence, and how do we make that
transition” from intelligence to evidence?119
In the 1987 case of Atwal,120 the Federal Court of Appeal, in a 2:1 judgment, held
that the section 21 scheme was consistent with the right set out in section 8 of
the Charter to be secure against unreasonable search or seizure. The majority
noted that the Supreme Court of Canada, in Hunter v. Southam,121 left open the
possibility that the grounds for issuing a warrant in matters of national security
could justify departures from the criminal law requirement of reasonable and
probable grounds relating to an assertion that a crime has been or is about to
be committed. Accordingly, the fact that the reasonable grounds requirement
in section 21 of the CSIS Act related to an assertion that there was a threat
to national security was, for the majority, sufficient to satisfy constitutional
standards.
Although decided more than 20 years ago, Atwal remains the leading case. It
provides authority for the proposition that, in appropriate cases, the government
could introduce evidence from searches authorized under section 21 of the CSIS
Act.
In its submissions to the Commission, the Criminal Lawyers’ Association argued
against the increased use of intelligence as evidence in criminal cases because
of concerns about the reliability of intelligence and the lack of judicial review.122
However, concerns about reliability do not apply to recorded conversations
and seized tangible evidence. As for judicial review, the defence can argue that
the admission of the product of a section 21 search would violate the Charter.
While not a traditional form of judicial review, this is a form of adjudication of
the merits of the warrant.
119
120
121
122
Testimony of Bob Rae, vol. 6, October 4, 2006, pp. 554-555.
R. v. Atwal (1987), 36 C.C.C. (3d) 161 (F.C.A.).
Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
Submissions of the Criminal Lawyers’ Association, February 2008, pp. 13-33.
�Chapter IV: The Collection and Retention of Intelligence
At present, an attempt to use material gathered under section 21 of the CSIS Act
as evidence in a criminal trial comes at a price of having to make disclosure to
the accused. That is, the state is required to disclose the affidavit used to obtain
the warrant. The affidavit would generally contain much information about CSIS
sources, methods and ongoing investigations.
However, disclosure would not be inevitable. The government could remove
from the affidavit information that might reveal the identity of a confidential
human source or covert agent. In addition, the Attorney General could apply for
a non-disclosure order under the Canada Evidence Act on the grounds that the
harms of disclosure to national security or another specified public interest are
greater than the harms of non-disclosure to the accused.123
Disclosure to an accused of the sworn material used to obtain the CSIS wiretap
warrant would, however, be required at present in a criminal trial. Any material
deleted from the affidavit to protect secrets could not be relied upon to support
the constitutionality of the warrant and search. An affidavit used to obtain a
warrant could be so heavily edited, in order to protect secret intelligence, sources
and methods, that it would no longer contain sufficient information to prove
the legality or constitutionality of the warrant. That said, under present rules
of evidence there is no impediment in a criminal trial to using the information
obtained under a CSIS Act warrant.
As already indicated, electronic surveillance and human sources are vital tools
to investigate terrorist plots such as the one to bomb Air India Flight 182. In
some cases, wiretaps authorized under section 21 may reveal evidence about
criminal conspiracies or about the new crimes that apply to the financing or
facilitation of terrorist activities, participation in a terrorist group or instructing
a person to carry out an activity for a terrorist group.
CSIS should retain the product of wiretaps because they provide the most
accurate source of intelligence and, possibly, the best evidence. The interpretive
notes of an analyst who has listened to the tapes are not good enough. There is
another reason for retaining the product of the wiretap. The wiretap may need
to be re-evaluated in light of changed circumstances, even where the wiretap is
used solely for intelligence purposes.
4.7.1 The Important and Expanded Role of Criminal Code Electronic
Surveillance in Terrorism Investigations
The Anti-terrorism Act created many new crimes relating to terrorist financing,
facilitation and participation in a terrorist group. These crimes can be committed
long before an overt act of terrorism and, therefore, make possible the much
earlier use of warrants under Part VI of the Criminal Code as well as the more
usual warrants under section 21 of the CSIS Act.
123 R. v. Atwal (1987), 36 C.C.C. (3d) 161 at 189-192 (F.C.A.).
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The grounds for granting a Criminal Code warrant are different than those for
granting a CSIS Act warrant. A Criminal Code warrant is authorized on the basis
of reasonable grounds to conclude that a crime has been, is being or will be
committed and that the intercept will provide evidence of that offence. A CSIS
Act warrant is granted on the basis that there are reasonable grounds to believe
that a warrant is required to enable CSIS to investigate a suspected threat to the
security of Canada.
As a result of the 2001 Anti-terrorism Act amendments, warrants under Part VI
of the Criminal Code, when the proper conditions are fulfilled, may have some
advantages when compared to warrants under section 21 of the CSIS Act. Unlike
the situation when seeking a warrant under section 21 of the CSIS Act,124 there
is no requirement with a Criminal Code warrant relating to a terrorism offence
to establish that other investigative procedures such as surveillance, informers,
undercover agents and regular search warrants would not be successful or
practical.125
Both the duration of Criminal Code warrants and the permissible delays in
notifying targets were significantly extended by the Anti-terrorism Act, making
Criminal Code warrants a more useful tool for investigating possible terrorist
offences. Like the CSIS Act warrants, Criminal Code warrants in support of a
terrorism investigation can be valid for up to a year.126 However, persons subject
to a wiretap authorized under the Criminal Code must eventually be notified that
their privacy has been invaded, although the Criminal Code permits delaying
notification for up to three years in terrorism cases.127 There is no notification
requirement for those subject to a wiretap authorized under section 21 of the
CSIS Act. Because notice to a target could affect the viability of an intelligence
investigation which might very often continue for longer than three years, the
notification requirement may often argue in favour of applying for a warrant
under the CSIS Act instead of under the Criminal Code.
The access to Part VI warrants for investigations of the early stages of planned
terrorism offences provide by the Anti-terrorism Act means that managementof-the-threat discussions between CSIS and the RCMP should take place earlier
than has previously been the case. If such discussions lead to greater use of
electronic surveillance under the Criminal Code, there will be a requirement for
earlier and closer cooperation and coordination between the two agencies.
The important role of the joint RCMP/CSIS management team (JMT) was
discussed in Chapter II. One function of the JMT should be a formal discussion of
targeting decisions made by both CSIS and the RCMP in their counterterrorism
investigations. During these discussions, there should be careful consideration
of the comparative merits of seeking a Criminal Code or CSIS Act warrant.
124
125
126
127
CSIS Act, s. 21(2)(b).
Criminal Code, s. 186(1.1). Note that “terrorism offence” is defined in s. 2.
Criminal Code, s. 186.1.
Criminal Code, ss. 196(1), (5).
�Chapter IV: The Collection and Retention of Intelligence
4.7.2 Electronic Surveillance Outside Canada
Because much terrorism has international elements, targets of Canadian
counterterrorism investigations may frequently travel abroad. A decision of the
Federal Court released after the Commission’s public hearings concluded held
that warrants cannot be granted under section 21 of the CSIS Act to authorize
searches or electronic surveillance outside Canada. The case involved 10
individuals who were the targets of section 21 warrants and who, during the
currency of the warrants, then left Canada.128 In such circumstances, Canada must
rely on a foreign agency to conduct surveillance. Although this arrangement
sometimes works well, foreign agencies often will not have the same priorities
or use the same methods as CSIS.
There are other options for the conduct of surveillance on suspects who leave
Canada, such as a possible ministerial authorization under the National Defence
Act129 authorizing the Communications Security Establishment (CSE) to collect
foreign intelligence through the global communications infrastructure.
Reliance upon CSE is not a satisfactory substitute to empowering CSIS. First, CSE
is not permitted to conduct surveillance of Canadians. Second, it is doubtful that
the regime would pass constitutional standards, since the electronic surveillance
is conducted under a ministerial authorization not a warrant issued by a judge.
Third, the National Defence Act requires that that private communications be
retained only if they are essential to international affairs, defence or security.
130
This restriction will lead to the destruction of more raw intelligence than
would be the case under the standard that applies to CSIS, as defined by the
Supreme Court of Canada in Charkaoui.131 For these reasons, reliance on CSE is
not an adequate substitute for amending section 21 of the CSIS Act to permit
surveillance abroad.
The Air India Victims Families Association expressed concern about a gap in
coverage that may be created by the inability to conduct electronic surveillance
of targets when they leave Canada.132 This is undoubtedly true, but determining
the appropriate solutions raises complex issues of international law,
international cooperation and technical capacity that were not fully examined
by the Commission as they were beyond its mandate. It is the Commission’s
view that the Government of Canada needs to address this issue in the near
future. It seems preferable to integrate such surveillance activities into the CSIS
mandate rather than to create a separate institution with a mandate to conduct
investigations outside Canada.
128
129
130
131
132
Canadian Security Intelligence Service Act (Re), 2008 FC 301, 4 F.C.R. 230 at para. 54.
R.S.C. 1985, c. N-5, s. 273.65.
National Defence Act, R.S.C. 1985, c. N-5, s. 273.65(2)(d).
2008 SCC 38, [2008] 2 S.C.R. 326.
AIVFA Final Written Submission, p. 92.
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4.7.3 Reconciling Secrecy and Disclosure in Allowing Warrants to Be
Challenged: The Current Editing Solution
Disclosure of the underlying affidavit is required when the prosecution
introduces evidence from an electronic surveillance warrant issued under
the Criminal Code. The Code allows for the editing of the affidavit before it is
disclosed, to protect a broad range of public interests that could be harmed
by disclosure. These interests include the identity of a confidential informant,
information about ongoing investigations, information that might endanger
persons engaged in intelligence-gathering techniques and information that
might harm the interests of innocent persons.133
The Code permits the disclosure of judicial summaries of the affidavit instead
of the whole affidavit. However, the judge is required to order more extensive
disclosure of the contents of the affidavit, upon the request of the accused, if
the judge believes that a judicial summary would not be sufficient to allow the
accused to make full answer and defence.134 The accused may also be entitled,
in certain instances, to cross-examine the person who swore or affirmed the
truthfulness of the information in the affidavit.
The process of editing affidavits before disclosure can be time-consuming.
Moreover, it produces an artificial basis on which to determine the legality
and constitutionality of the warrant because material that is deleted from the
affidavit and not disclosed to the accused cannot be used by the Crown to prove
the validity of the warrant. The rationale for this is sound. Material that is not
disclosed to the accused generally cannot be subject to adversarial challenge.
The editing process can protect important secrets, but it often comes at the
high price of making it difficult for the Government to justify the granting of
the warrant in the first place. The process of attempting to defend the granting
of a warrant without reference to material that is edited out to protect secrets
has led to the collapse of at least one terrorism prosecution in Canada. In R.
v. Parmar,135 a prosecution against Talwinder Singh Parmar and others failed
because the Crown decided not to disclose information in an affidavit that would
have revealed the identity of a confidential informer. The informer in that case
refused to allow the informer’s name to be disclosed and also refused to enter
a witness protection program. The Crown was unable to justify the granting of
the Criminal Code wiretap warrant without referring to material that would have
identified the informant. As a result, the court found the warrant to be illegal. At
the time, the Criminal Code required the exclusion of illegally obtained wiretaps,
and the prosecution ended as a result.
133 Criminal Code, s. 187(4).
134 Criminal Code, s. 187(7).
135 (1986) 34 C.C.C.(3d) 260 (Ont. H.C.J.); (1987) 37 C.C.C. (3d) 300 (Ont. H.C.J.); (1987) 31 C.R.R. 256 (Ont.
H.C.J.). This case is discussed in Roach Paper on Terrorism Prosecutions.
�Chapter IV: The Collection and Retention of Intelligence
If a similar case arose today, the wiretap evidence might be admissible at trial.
Even if the edited affidavit no longer justified granting the warrant, the Crown
might argue that the fruits of the unconstitutional and illegal warrant should be
admitted because to do so would not bring the administration of justice into
disrepute – the test under section 24(2) of the Charter for excluding the wiretap
evidence.
The present approach to reconciling the need for disclosure and secrecy involves
an editing process pioneered in the Parmar case. Although it is fair to the accused,
this editing process weakens the Crown’s case for the issuance of the warrant.
As recommended for the CSIS Act, the current Criminal Code procedure should
be modernized to incorporate better ways to reconcile the competing interests
of disclosure and secrecy, while still allowing effective adversarial challenge of
the warrant.
4.7.4 The Use of Special Advocates in Proceedings to Challenge CSIS Act
and Criminal Code Warrants
A different approach to disclosure can allow full adversarial challenge to
the legality and the constitutionality of the warrant while ensuring that the
accused and the public do not gain access to highly sensitive information. This
approach involves giving a security-cleared special advocate complete access
to the unedited affidavit used to obtain the warrant and to all other relevant
information. The special advocate could represent the interests of the accused
in challenging the warrant and in seeking the exclusion of evidence obtained
under the warrant, without disclosing sensitive information to the accused and
the public.
Special advocates are security-cleared lawyers who receive access to secret
material that is not seen by the affected person, and who represent the interests
of that person. Special advocates cannot disclose or discuss the material with
the accused or with anyone else. The Immigration and Refugee Protection Act136
provides a precedent. It was amended to create a statutory regime for special
advocates in response to the 2007 Supreme Court decision in Charkaoui v.
Canada137 that the complete lack of adversarial challenge to secret evidence
used in security certificate cases was an unjustified violation of section 7 of
the Charter. That statutory regime currently applies only to immigration law
proceedings, but the Federal Court has appointed security-cleared amici curiae
to assist it in a similar manner in proceedings under section 38 of the Canada
Evidence Act.138 Two parliamentary committees that conducted reviews of the
Anti-terrorism Act both recommended that security-cleared counsel be provided
136 S.C. 2001, c. 27. The amendment was introduced by S.C. 2008, c.3. A challenge under ss. 2 and 7 of the
Charter to restrictions placed on the ability of special advocates to communicate after having seen
secret information was dismissed as premature: Almrei (Re), 2008 FC 1216, 331 F.T.R. 301.
137 Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
138 Khadr v. Canada (Attorney General), 2008 FC 46, 54 C.R. (6th) 76; Canada (Attorney General) v. Khawaja,
2008 FC 560; Khadr v. Canada (Attorney General), 2008 FC 807.
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in legal proceedings to allow adversarial challenge to secret material that the
affected person was not allowed to see.139
Special advocates could play an important role in testing the validity of
warrants issued under section 21 of the CSIS Act or under Part VI of the Criminal
Code. They could be used in terrorism cases involving confidential information
that, if disclosed to the accused, could impede ongoing investigations, reveal
confidential methods of investigation or the identity of confidential informants
or violate promises to third parties not to disclose the identity of confidential
informants.
Some groups cautioned against expanding the use of special advocates. Both the
Canadian Bar Association and the Federation of Law Societies supported using
special advocates in proceedings under section 38 of the Canada Evidence Act,
but warned against their use in other proceedings and also against other special
rules in criminal proceedings. The Criminal Lawyers’ Association argued that
existing disclosure rules adequately protected the interests of the accused.
The defence may be concerned about introducing a special advocate into
criminal trials on the merits because the special advocate participates in only
a limited way in the trial. However, in R. v. Pires; R. v. Lising, the Supreme Court
recognized that proceedings to challenge the legality and constitutionality of a
warrant and to seek the exclusion of evidence obtained as a result of a search
differ from a criminal trial on the merits of the allegation. Charron J. explained:
At trial, the guilt or innocence of the accused is at stake.
The Crown bears the burden of proving its case beyond a
reasonable doubt. In that context, the right to cross-examine
witnesses called by the Crown “without significant and
unwarranted constraint” becomes an important component
of the right to make full answer and defence… If, through
cross-examination, the defence can raise a reasonable doubt
in respect of any of the essential elements of the offence, the
accused is entitled to an acquittal…. However, the…review
hearing [to challenge the warrant] is not intended to test
the merits of any of the Crown’s allegations in respect of the
offence. The truth of the allegations asserted in the affidavit
as they relate to the essential elements of the offence remain
to be proved by the Crown on the trial proper. Rather, the
139 House of Commons Canada, Final Report of the Standing Committee on Public Safety and National
Security, Subcommittee on the Review of the Anti-terrorism Act, Rights, Limits, Security: A
Comprehensive Review of the Anti-terrorism Act and Related Issues, March 2007, p. 81, online:
Parliament of Canada <http://www2.parl.gc.ca/content/hoc/Committee/391/SECU/Reports/
RP2798914/sterrp07/sterrp07-e.pdf> (accessed July 30, 2009); The Senate of Canada, Fundamental
Justice In Extraordinary Times: Main Report of the Special Senate Committee on the Anti-terrorism Act,
February 2007, p. 42, online: Parliament of Canada <http://www.parl.gc.ca/39/1/parlbus/commbus/
senate/Com-e/anti-e/rep-e/rep02feb07-e.pdf> (accessed July 30, 2009).
�Chapter IV: The Collection and Retention of Intelligence
review is simply an evidentiary hearing to determine the
admissibility of relevant evidence about the offence obtained
pursuant to a presumptively valid court order….the statutory
preconditions for wiretap authorizations will vary depending
on the language of the provision that governs their issuance.
The reviewing judge…only inquires into whether there was
any basis upon which the authorizing judge could be satisfied
that the relevant statutory preconditions existed… Even if it
is established that information contained within the affidavit
is inaccurate, or that a material fact was not disclosed, this will
not necessarily detract from the existence of the statutory
pre-conditions….In the end analysis, the admissibility of
the wiretap evidence will not be impacted under s. 8 if there
remains a sufficient basis for issuance of the authorization.140
The special advocate would have access to all the material used to support the
application for a warrant, including material that could never be disclosed to
the accused. The special advocate would also have access to material disclosed
to the accused in accordance with Stinchcombe. The accused and the accused’s
lawyers would provide relevant information about the case to the special
advocate. The special advocate could cross-examine a person on the affidavit
under the same tests that now allow the accused in certain circumstances to
engage in such cross-examination when the truthfulness of the underlying
affidavit has been put into question. As well, abuses by state actors that may
never come to light due to redactions imposed by Government counsel can
be explored by special advocates, possibly affecting the admissibility of the
information under section 24(2) of the Charter.
Introducing special advocates would affect how trial courts handle confidential
information. At present, documents relating to Criminal Code electronic
surveillance warrants are kept by the trial court at a place to which the public has
no access.141 In investigations of terrorism offences, especially those involving
warrants issued under section 21 of the CSIS Act, the full affidavit would
contain sensitive information relating to national security, national defence or
international relations.
Introducing special advocates to challenge wiretaps in terrorism cases could be
an important reform. It could make it much easier to use secret intelligence in
criminal prosecutions, while retaining the important safeguard, through special
advocates, of full adversarial challenge to the warrant. Investigators would
no longer have to worry that their legitimate efforts to protect informants,
ongoing investigations and information that has been provided with caveats
on disclosure, would jeopardize the validity of the warrant. Secret intelligence
would no longer be a “poison pill” that would need to be edited out and that
could result in the warrant being found to be illegal or unconstitutional.
140 R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at paras. 29-30.
141 Criminal Code, s. 187(1).
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Recommendation 12:
In terrorism prosecutions, special advocates, given powers similar to those
permitted under the Immigration and Refugee Protection Act, should be allowed
to represent the accused in challenging warrants issued under section 21 of the
CSIS Act or under Part VI of the Criminal Code. The special advocates should have
access to all relevant information, including unedited affidavits used to justify the
warrants, but should be prohibited from disclosing this information to anyone
without a court order. Both the judges reviewing the validity of warrants and
the special advocates should be provided with facilities to protect information
that, if disclosed, might harm national security.
�VOLUME THREE
THE RELATIONSHIP BETWEEN INTELLIGENCE
AND EVIDENCE AND THE CHALLENGES OF
TERRORISM PROSECUTIONS
CHAPTER V: THE DISCLOSURE AND PRODUCTION OF INTELLIGENCE
5.0 Introduction
Most of the difficulties in managing the relationship between intelligence and
evidence involve the need to reconcile broad disclosure requirements with the
need for secrecy.
This chapter describes how intelligence can be subject to disclosure and
production obligations in terrorism prosecutions. It also examines the possibility
of placing limits on disclosure and production obligations, and whether such
limits will help to produce a more reliable relationship between intelligence and
evidence.
5.1 Disclosure of Information
The accused’s right to disclosure is an important constitutional value. As the
Supreme Court of Canada explained in Stinchcombe:
[T]here is the overriding concern that failure to disclose
impedes the ability of the accused to make full answer and
defence. This common law right has acquired new vigour by
virtue of its inclusion in s.7 of the Canadian Charter of Rights
and Freedoms as one of the principles of fundamental justice….
The right to make full answer and defence is one of the pillars
of criminal justice on which we heavily depend to ensure that
the innocent are not convicted.1
The concern for fairness and the intention to prevent miscarriages of justice
that animated Stinchcombe apply with equal force in terrorism cases. A
wrongful terrorism offence conviction stemming from a failure by the Crown
to make full disclosure would constitute an injustice. Convicting the innocent
would allow the guilty to go free. As well, miscarriages could undermine
1
R. v. Stinchcombe, [1991] 3 S.C.R. 326 at 336.
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public confidence in the justice system, as the Director of Public Prosecutions
for England and Wales states:
Compromising the integrity of the trial process would blight
the criminal justice system for decades. It would severely
undermine public confidence. We should recall the impact the
Birmingham Six case had on public confidence in the 1970s
and 1980s. Nothing is more offensive to the Constitution of a
country than men and women sitting for years in prison cells
for offences they did not commit. What better way could there
be to create disillusionment and alienation? We don’t want
to alienate the very sections of the community whose close
cooperation and consent is required to bring successful cases.2
Disclosure rights in Canadian law are broad. Former RCMP Commissioner
Zaccardelli testified that Canada has “the most liberal disclosure laws in the
world.”3 Under Stinchcombe, the Crown is required to disclose all relevant
information and non-privileged information in its possession to comply with
section 7 of the Charter, whether the information is inculpatory or exculpatory,
and whether or not it is going to be presented as evidence.
In Stinchcombe, the Supreme Court saw disclosure as being necessary to respect
the rights of the accused to a fair trial and to make full answer and defence. This
is consistent with the direction of Justice Rand of the same Court in Boucher v.
The Queen,4 where the role of the Crown was described as being to lay before
a jury what the Crown considers to be credible evidence relevant to what is
alleged to be a crime, and not to obtain a conviction.
Although dicta in some cases suggest that material should be disclosed under
Stinchcombe if it is not clearly irrelevant, the constitutional principle is that the
information must be disclosed only if it is relevant to the case. In Stinchcombe,
Justice Sopinka wrote that it was not necessary to disclose what was “clearly
irrelevant.”5 However, he referred to “…the general principle that information
ought not to be withheld if there is a reasonable possibility that the withholding of
information will impair the right of the accused to make full answer and defence,
unless the non-disclosure is justified by the law of privilege.”6
More recent articulations of disclosure obligations stress the need to disclose
all relevant information. For example, in the 2003 decision in R. v. Taillefer; R v.
Duguay, the Supreme Court described disclosure obligations as follows:
2
3
4
5
6
Ken MacDonald, Q.C., “Security and Rights” (Criminal Bar Association Speech delivered on January 23,
2007), online: Matrix <http://www.matrixlaw.co.uk/showDocument.aspx?documentId=14861>
(accessed June 5, 2009).
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11036.
[1955] S.C.R. 16 at 23-24.
[1991] 3 S.C.R. 326 at 339.
[1991] 3 S.C.R. 326 at 340.
�Chapter V: The Disclosure and Production of Intelligence
The Crown must disclose all relevant information to the
accused, whether inculpatory or exculpatory, subject to
the exercise of the Crown’s discretion to refuse to disclose
information that is privileged or plainly irrelevant. Relevance
must be assessed in relation both to the charge itself and to
the reasonably possible defences. The relevant information
must be disclosed whether or not the Crown intends to
introduce it in evidence, before election or plea (p. 343).
Moreover, all statements obtained from persons who have
provided relevant information to the authorities should be
produced notwithstanding that they are not proposed as
Crown witnesses (p. 345). This Court has also defined the
concept of “relevance” broadly, in R. v. Egger, [1993] 2 S.C.R. 451,
at p. 467:
One measure of the relevance of information in the Crown’s
hands is its usefulness to the defence: if it is of some use, it is
relevant and should be disclosed — Stinchcombe, supra, at
p. 345. This requires a determination by the reviewing judge
that production of the information can reasonably be used
by the accused either in meeting the case for the Crown,
advancing a defence or otherwise in making a decision which
may affect the conduct of the defence such as, for example,
whether to call evidence.
As the courts have defined it, the concept of relevance
favours the disclosure of evidence. Little information will be
exempt from the duty that is imposed on the prosecution to
disclose evidence. As this Court said in Dixon…“the threshold
requirement for disclosure is set quite low.... The Crown’s
duty to disclose is therefore triggered whenever there is a
reasonable possibility of the information being useful to the
accused in making full answer and defence”…. “While the
Crown must err on the side of inclusion, it need not produce
what is clearly irrelevant” (Stinchcombe, supra, at p. 339).7
In 2009, in R. v. McNeil, the Court again described the breadth of Stinchcombe
disclosure obligations:
The Crown’s obligation to disclose all relevant information in
its possession relating to the investigation against an accused
is well established. The duty is triggered upon request and
does not require an application to the court. Stinchcombe
made clear that relevant information in the first party
production context includes not only information related
7
2003 SCC 70, [2003] 3 S.C.R. 307 at paras. 59-60.
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to those matters the Crown intends to adduce in evidence
against the accused, but also any information in respect of
which there is a reasonable possibility that it may assist the
accused in the exercise of the right to make full answer and
defence (pp. 343-44). The Crown’s obligation survives the trial
and, in the appellate context, the scope of relevant information
therefore includes any information in respect of which there
is a reasonable possibility that it may assist the appellant in
prosecuting an appeal.
While the Stinchcombe automatic disclosure obligation is not
absolute, it admits of few exceptions. Unless the information
is clearly irrelevant, privileged, or its disclosure is otherwise
governed by law, the Crown must disclose to the accused all
material in its possession. The Crown retains discretion as to
the manner and timing of disclosure where the circumstances
are such that disclosure in the usual course may result in harm
to anyone or prejudice to the public interest. The Crown’s
exercise of discretion in fulfilling its obligation to disclose is
reviewable by a court.8
A corollary of the Crown’s disclosure obligations under Stinchcombe is “…the
obligation of the police (or other investigating state authority) to disclose to
the Crown all material pertaining to its investigation of the accused.”9 It is not
clear whether or when CSIS will be considered to be an “investigating state
authority” subject to disclosure duties under Stinchcombe. As discussed below,
the trial judge in Malik and Bagri held that, on the particular facts of the Air India
investigation, CSIS was subject to the Stinchcombe disclosure requirements.
Although the Supreme Court has rejected the notion that “…all state authorities
constitute a single indivisible Crown entity for the purposes of disclosure,”10 it has
also indicated that an “investigating state authority” other than the police may
be subject to disclosure obligations under Stinchcombe. The Court called for
the Crown to make reasonable inquiries to facilitate disclosure and to “…bridge
much of the gap between first party disclosure and third party production”
when the prosecutor knows that another Crown agency has been involved with
the investigation.11 For instance, the prosecutor will usually be aware of CSIS
involvement in a terrorism investigation.
8
9
10
11
2009 SCC 3 at paras. 17-18.
R. v. McNeil, 2009 SCC 3 at para. 14.
R. v. McNeil, 2009 SCC 3 at para. 13.
R. v. McNeil, 2009 SCC 3 at para. 51. See also para. 49, quoting with approval R. v. Arsenault (1994), 153
N.B.R. (2d) 81 at para. 15 (C.A.): “When disclosure is demanded or requested, Crown counsel have a duty
to make reasonable inquiries of other Crown agencies or departments that could reasonably be
considered to be in possession of evidence. Counsel cannot be excused for any failure to make
reasonable inquiries when to the knowledge of the prosecutor or the police there has been another
Crown agency involved in the investigation. Relevancy cannot be left to be determined by the
uninitiated. If Crown counsel is denied access to another agency’s file, then this should be disclosed
to the defence so that the defence may pursue whatever course is deemed to be in the best
interests of the accused. This also applies to cases where the accused or defendant, as the case may be,
is unrepresented…”
�Chapter V: The Disclosure and Production of Intelligence
The right to disclosure under Stinchcombe is not absolute. The Supreme Court
was cognizant of the danger that disclosure of information might “…put at risk
the security and safety of persons who have provided the prosecution with
information.”12 It held that the Crown would not have to disclose information
that was covered by police informer privilege or by any other privilege. Thus,
the Crown would not have to disclose the identities of informers who were
promised anonymity by the police in exchange for information. The Crown
would also have a reviewable discretion to withhold the identities of persons “…
to protect them from harassment or injury, or to enforce the privilege relating
to informers,” and would have a reviewable discretion to delay disclosure “…
in order to complete an investigation.”13 In addition, as discussed in depth in
Chapter VII, the Crown could seek specific non-disclosure orders under sections
37 and 38 of the Canada Evidence Act.14 The Court described the exceptions to
the obligation to disclose as follows:
[T]his obligation to disclose is not absolute. It is subject to the
discretion of counsel for the Crown. This discretion extends
both to the withholding of information and to the timing of
disclosure. For example, counsel for the Crown has a duty
to respect the rules of privilege. In the case of informers the
Crown has a duty to protect their identity. In some cases
serious prejudice or even harm may result to a person who
has supplied evidence or information to the investigation.
While it is a harsh reality of justice that ultimately any person
with relevant evidence must appear to testify, the discretion
extends to the timing and manner of disclosure in such
circumstances. A discretion must also be exercised with
respect to the relevance of information. While the Crown
must err on the side of inclusion, it need not produce what
is clearly irrelevant…. The initial obligation to separate “the
wheat from the chaff ” must therefore rest with Crown counsel.
There may also be situations in which early disclosure may
impede completion of an investigation. Delayed disclosure
on this account is not to be encouraged and should be rare.
Completion of the investigation before proceeding with the
prosecution of a charge or charges is very much within the
control of the Crown. Nevertheless, it is not always possible
to predict events which may require an investigation to be
re-opened and the Crown must have some discretion to delay
disclosure in these circumstances.15
12
13
14
15
[1991] 3 S.C.R. 326 at 335.
[1991] 3 S.C.R. 326 at 336.
R.S.C. 1985, c. C-5.
R. v. Stinchcombe, [1991] 3 S.C.R. 326 at 339-340.
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5.2 Retention of Information
The right to disclosure has been interpreted by the Supreme Court to include
a duty under section 7 of the Charter to retain relevant information that is
subject to disclosure obligations.16 In Malik and Bagri, Justice Josephson found
a breach of section 7, as there was an unacceptable degree of negligence in the
destruction by CSIS of the Parmar wiretaps and the notes of the interviews with
Ms. E.
As the Hon. Bob Rae stated in his report:
The erasure of the tapes is particularly problematic in light of
the landmark decision of the Supreme Court of Canada in R. v.
Stinchcombe, which held that the Crown has a responsibility
to disclose all relevant evidence to the defence even if it has
no plans to rely on such evidence at trial. Justice Josephson
held that all remaining information in the possession of
CSIS is subject to disclosure by the Crown in accordance
with the standards set out in Stinchcombe. Accordingly,
CSIS information should not have been withheld from the
accused.17
The Supreme Court reasoned, in its 1997 decision in R. v. La, that “… [t]he right
of disclosure would be a hollow one if the Crown were not required to preserve
evidence that is known to be relevant.”18 As discussed in Chapter IV, the Court
recently reminded CSIS of the importance of retaining the intelligence that it
collects about specific individuals and groups, in part because the intelligence
may later be subject to disclosure obligations.19 However, the duty to retain
information that might subsequently have to be disclosed is not absolute. It
would be unrealistic and impractical to expect every piece of material to be
retained “…on the off-chance that it will be relevant in the future.”20
The duty to retain relevant material for disclosure can benefit both the accused
and the state. It is still not possible to determine whether the material that was
destroyed in the Air India investigation would have assisted the accused or
the prosecution, or whether it would have been of little value to either. This
disturbing uncertainty underscores the importance of CSIS retaining intelligence
that could become relevant in a terrorism prosecution, a topic already discussed
at length in Chapter IV.
16
17
18
19
20
R. v. La, [1997] 2 S.C.R. 680.
Lessons to be Learned: The report of the Honourable Bob Rae, Independent Advisor to the Minister of
Public Safety and Emergency Preparedness, on outstanding questions with respect to the bombing of
Air India Flight 182 (Ottawa: Air India Review Secretariat, 2005), p. 16.
[1997] 2 S.C.R. 680 at para. 20.
Charkaoui v. Canada, 2008 SCC 38, [2008] 2 S.C.R. 326.
R. v. La, [1997] 2 S.C.R. 680 at para. 21.
�Chapter V: The Disclosure and Production of Intelligence
5.3 The “Relevance” Requirement
In its 1993 decision in R. v. Egger, the Court re-iterated that “… [o]ne measure of the
relevance of information in the Crown’s hands is its usefulness to the defence: if it is
of some use, it is relevant and should be disclosed…. This requires a determination
by the reviewing judge that production of the information can reasonably be used
by the accused either in meeting the case for the Crown, advancing a defence or
otherwise in making a decision which may affect the conduct of the defence such
as, for example, whether to call evidence.”21
In 1995, the Court held in R. v. Chaplin22 that the Crown did not need to disclose
wiretaps that did not relate to the particular charges faced by the accused:
Fishing expeditions and conjecture must be separated from
legitimate requests for disclosure. Routine disclosure of the
existence of wiretaps in relation to a particular accused who
has been charged, but who is the subject of wiretaps for
ongoing criminal investigations in relation to other suspected
offences, would impede the ability of the state to investigate
a broad array of sophisticated crimes which are otherwise
difficult to detect, such as drug-trafficking, extortion, fraud and
insider trading: R. v. Duarte, [1990] 1 S.C.R. 30, at p. 44. Wiretaps
are generally only effective if their existence is unknown to the
persons under investigation.23
Chaplin could be germane to discussions about disclosing intelligence. The case
contemplated that some investigative materials that do not relate to the charges
faced by the accused may not be subject to disclosure. It also affirmed that the
Crown does not have to disclose material that is beyond its control. In addition,
once the Crown affirms that it has satisfied its disclosure obligations, the defence
must “…establish a basis which could enable the presiding judge to conclude
that there is in existence further material which is potentially relevant.”24
In a recent report on large and complex criminal case procedures, the Hon.
Patrick Lesage and Professor (now Justice) Michael Code relied on Chaplin for
the proposition that the defence can obtain disclosure of material that lies
outside the core disclosure obligations, but the defence must first justify such
21
22
23
24
[1993] 2 S.C.R. 451 at 467.
[1995] 1 S.C.R. 727. For further discussion of this case and its relevance to the disclosure of intelligence,
see Kent Roach, “The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation
Between Intelligence and Evidence” in Vol. 4 of Research Studies: The Unique Challenges of Terrorism
Prosecutions, pp. 129-131 [Roach Paper on Terrorism Prosecutions].
[1995] 1 S.C.R. 727 at para. 32.
[1995] 1 S.C.R. 727 at para. 30.
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disclosure.25 Material that the defence demonstrates is not clearly irrelevant, or
that is of potential relevance, can be made available to the defence for inspection
at a secure location, if need be. This can avoid the need for the Crown to copy
and produce, literally, truckloads of documents.
The Supreme Court has also repeatedly stated that not every violation of the
accused’s right to disclosure will impair the right to make full answer and
defence or make a fair trial impossible.26 A trial may be fair even if the accused
does not receive all relevant material. The courts have also accepted that
reasonable explanations about why relevant material has been destroyed and
is not available for disclosure may lead to a finding that there was no violation
of the right to disclosure.27
5.4 Applying Stinchcombe to Intelligence
Some concerns were expressed during the Commission hearings that the
Stinchcombe disclosure requirements would be unworkably broad if applied to
intelligence.28 The extent of the disclosure obligations imposed by Stinchcombe
should not be exaggerated. The basic rule that the state does not have to
disclose irrelevant or privileged material can shield much intelligence from
disclosure and prevent fishing expeditions by defence counsel. In several recent
cases, courts have found that Stinchcombe disclosure obligations do not apply
to material such as analytical intelligence, documents that were internal to the
working of security intelligence agencies or that involved communications
with foreign agencies, and intelligence relating to suspects and investigations
that were unrelated to the accused. This was because these materials were not
relevant to the charges faced by the accused and were of no possible use to the
accused.29
The important role of prosecutors in managing the disclosure process is discussed
in Chapter IX. That chapter also discusses the equally important role of the trial
judge in supervising the disclosure process and in preventing frivolous motions
for disclosure.
25
26
27
28
29
Patrick Lesage and Michael Code, Report of the Review of Large and Complex Criminal Case
Procedures (November 2008), pp. 45-55, online: Ontario Ministry of the Attorney General
<http://www. attorneygeneral.jus.gov.on.ca/english/about/pubs/lesage_code/lesage_code_report_
en.pdf> (accessed December 5, 2008) [Lesage and Code Report on Large and Complex Criminal Case
Procedures].
R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307.
R. v. Stinchcombe, [1995] 1 S.C.R. 754; R. v. La, [1997] 2 S.C.R. 680.
See generally the testimony given by members of the panel discussing the interaction between
Stinchcombe and s. 38 of the Canada Evidence Act, vol. 86, November 30, 2007, pp. 11105-11124.
Nicholas Ribic and Her Majesty the Queen and Canadian Security Intelligence Service, 2002 FCT
290 at paras. 7-10; Canada (Attorney General) v. Ribic, 2003 FCA 246, 185 C.C.C. (3d) 129 at paras.
40-41; Canada (Attorney General) v. Khawaja, 2007 FC 490, 219 C.C.C. (3d) 305 at para. 116, reversed in
part on other grounds 2007 FCA 342; Canada (Attorney General) v. Khawaja, 2008 FC 560 at para.
14; Khadr v. Canada (Attorney General), 2008 FC 807, 331 F.T.R. 1 at para. 68.
�Chapter V: The Disclosure and Production of Intelligence
5.4.1 The Role of Stinchcombe in the Air India Prosecutions
Stinchcombe disclosure obligations presented serious challenges in the Malik
and Bagri prosecution, both in relation to the logistics of disclosure and, more
particularly, in relation to the retention and disclosure of CSIS intelligence.
CSIS was held to be subject to Stinchcombe disclosure requirements on the
particular facts of the Air India investigation. In 2002, Justice Josephson observed
that, “Mr. Code for Mr. Bagri persuasively submits that both law and logic lead to
a conclusion that, in the circumstances of this case, C.S.I.S. is part of the Crown”
30
and, as a result, was subject to Stinchcombe disclosure obligations. The Crown
conceded that Stinchcombe applied to CSIS as a result of a 1987 agreement that
the RCMP would have “…unfettered access to all relevant information in the files
of C.S.I.S.” about the investigation.31 This led Justice Josephson to conclude that
“…all remaining information in the possession of C.S.I.S. is subject to disclosure
by the Crown in accordance with the standards set out in R. v. Stinchcombe.”32
However, the acquittal of the accused made his conclusion academic.
In 2004, the Crown again conceded that Stinchcombe applied to CSIS as a result of
the 1987 agreement between CSIS and the RCMP. Justice Josephson concluded
that, even without the agreement, evidence obtained by CSIS that was relevant
to the Air India investigation should have been passed on to the RCMP:
Despite clear lines of demarcation between the roles of
C.S.I.S. and the R.C.M.P., the information obtained from the
Witness immediately struck [the CSIS agent] as being of
extreme importance and relevance to the Air India criminal
investigation. When, in the course of his information gathering
role, he uncovered evidence relevant to that investigation, he
was obliged by statute and policy to preserve and pass on that
evidence to the R.C.M.P.33
The duty of CSIS to retain such intelligence was affirmed by the Supreme Court
of Canada in its 2008 decision in Charkaoui.34 Under an amended section 19 of
the CSIS Act,35 as recommended in Chapter IV, CSIS would be obliged to share
relevant information with either the RCMP or the National Security Advisor
(NSA). In this way, the amount of CSIS information that would be subject to
disclosure would increase.
5.4.2 The Effect of Stinchcombe on CSIS/RCMP Cooperation
The Commission heard much testimony about Stinchcombe. RCMP Deputy
Commissioner Gary Bass described Stinchcombe as having resulted in “…the
30
31
32
33
34
35
R. v. Malik, Bagri and Reyat, 2002 BCSC 864 at para. 9.
2002 BCSC 864 at para. 10.
2002 BCSC 864 at para. 14.
R. v. Malik and Bagri, 2004 BCSC 554, 119 C.R.R. (2d) 39 at para. 20.
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326.
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23.
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single most draining set of processes to policing…in the history of policing.”36
The interpretation of Stinchcombe by Jack Hooper, a former Deputy Director of
CSIS, differed from Bass’s “fairly absolute interpretation.” Hooper testified that the
idea of full disclosure was a “worst-case scenario” that discounted the possibility
that intelligence would either be found not to be relevant to the specific criminal
charges or that it would be protected by national security privilege.37
Jim Judd, the Director of CSIS, testified that “…it would be useful to have some
mechanism whereby the information in our holdings that was not relevant
to the criminal prosecution…[was] protected and excluded because we have
sources who report on multiple issues, multiple situations.”38
The requirement of relevance under Stinchcombe can protect some intelligence
from disclosure. Analyses about general security threats, intelligence or
information about third parties who play no role in a prosecution, information
about third parties who are not related to the accused,39 and internal
administrative matters within a police force or a security intelligence agency
will generally not be relevant or helpful to the accused. As a result, they will not
have to be disclosed to comply with Stinchcombe.
Nevertheless, some view Stinchcombe as a major impediment to cooperation
between CSIS and the RCMP. In a 1998 report, the Security Intelligence Review
Committee warned that, because of Stinchcombe, “…all CSIS intelligence
disclosures, regardless of whether they would be entered for evidentiary
purposes by the Crown, are subject to disclosure to the Courts. Any passing
of information, whether an oral disclosure or in a formal advisory letter, could
expose CSIS investigations. This means that even information that is provided
during joint discussions on investigations or that is provided as an investigative
lead is at risk.”40 It concluded that the disclosure problem represented by
Stinchcombe seemed to be “insoluble” and that it “…carried the potential to
disrupt CSIS-RCMP relationships and could potentially damage the operation of
both agencies.”41 In their papers for the Commission, Professors Wark and Brodeur
both commented that Stinchcombe has been interpreted as an impediment
to RCMP/CSIS cooperation, particularly because of CSIS concerns about the
disclosure of secret human sources and the possible use of intelligence as
evidence.42
36
37
38
39
40
41
42
Testimony of Gary Bass, vol. 87, December 3, 2007, p. 11279.
Testimony of Jack Hooper, vol. 50, September 21, 2007, pp. 6216-6217.
Testimony of Jim Judd, vol. 90, December 6, 2007, p. 11887.
Khadr v. Canada (Attorney General), 2008 FC 807, 331 F.T.R. 1 at para. 68.
Security Intelligence Review Committee, CSIS Co-Operation with the RCMP - Part I (SIRC Study 199804), October 16, 1998, p. 9 [SIRC Study 1998-04].
SIRC Study 1998-04, p. 18.
Wesley Wark, “The Intelligence-Law Enforcement Nexus: A study of co-operation between the
Canadian Security Intelligence Service and the Royal Canadian Mounted Police, 1984-2006, in the
Context of the Air India terrorist attack” in Vol. 1 of Research Studies: Threat Assessment RCMP/CSIS Cooperation, pp. 164-165; Jean-Paul Brodeur, “The Royal Canadian Mounted Police and the Canadian
Security Intelligence Service: A Comparison Between Occupational and Organizational Cultures” in Vol.
1 of Research Studies: Threat Assessment RCMP/CSIS Co-operation, p. 204.
�Chapter V: The Disclosure and Production of Intelligence
The extent to which, and when, CSIS is subject to Stinchcombe disclosure
obligations continues to evolve. Courts of appeal are divided about when
agencies other than the police are subject to Stinchcombe disclosure
obligations. The New Brunswick Court of Appeal held that the Crown should
include material held by another Crown agency involved in the investigation,43
while the Alberta Court of Appeal held that provincial Crowns should not be
required to disclose material held by federal agencies beyond their control.44
The Supreme Court of Canada’s 2009 decision in McNeil 45 did not resolve
the issue for CSIS. The Court clearly dismissed as unworkable the idea that
all state agencies are subject to Stinchcombe. The Court noted, however, that
investigating authorities other than the police may be subject to Stinchcombe
disclosure requirements and that, in any event, the Crown has an obligation to
inquire about whether other investigating agencies have material that is likely
relevant to the proceedings. Increased integration of the RCMP and CSIS may
point to more frequent court findings that CSIS is subject to Stinchcombe.
5.5 Potential Changes to the Approach to Disclosure
Some intervenors, including the Canadian Bar Association and the Criminal
Lawyers’ Association, argued that the Air India case did not reveal a demonstrable
need for change in the approach to disclosure and that it therefore could not
provide a sound basis for making general recommendations in this area.46
In his Final Submissions, the Attorney General of Canada acknowledged
the challenges presented by the requirement to disclose large amounts of
material, but cautioned against a recommendation that legislation be enacted
to clarify Stinchcombe. He warned about unforeseen consequences and about
the complexity of legislating federally on a matter that affected provincial
jurisdiction.47
No party or intervenor before the Commission proposed adopting legislation to
attempt to abolish or limit Stinchcombe disclosure obligations. Some intervenors,
including the Canadian Association of Chiefs of Police and the Air India Victims
Families Association, called for clarification of, and guidelines about, the extent
and particular obligations of Stinchcombe.48 The Air India Victims Families
Association asked that the guidelines be in the form of legislation. The Canadian
43
44
45
46
47
48
R. v. Arsenault (1994), 93 C.C.C. (3d) 111 (N.B.C.A.).
R. v. Gingras (1992), 71 C.C.C. (3d) 53 (Alta. C.A.).
2009 SCC 3.
Canadian Bar Association, Submission to the Commission of Inquiry into the Investigation of the
Bombing of Air India Flight 182, April 2007; Submissions of the Criminal Lawyers’ Association, February
2008.
Final Submissions of the Attorney General of Canada, February 29, 2008, Vol. III, paras. 80-84 [Final
Submissions of the Attorney General of Canada].
Canadian Association of Chiefs of Police Written Submissions, pp. 8-9; Where is Justice? AIVFA Final
Written Submission, Commission of Inquiry into the Investigation of the Bombing of Air India Flight
182, February 29, 2008, p. 131.
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Association of Chiefs of Police called for a clarification of the roles and obligations
of the Crown and police in relation to disclosure and for a move towards electronic
disclosure.49
The reluctance of the parties and intervenors to ask for limitations on
Stinchcombe is no doubt related to the status of Stinchcombe as a statement of
the disclosure required by section 7 of the Charter. As the Attorney General of
Canada submitted:
It is a fundamental element of the fair and proper operation of
the Canadian criminal justice system that an accused person
has the right to the disclosure of all relevant information in
the possession or control of the Crown, with the exception
of privileged information….The right to proper disclosure
is recognized in particular under principles of fundamental
justice as necessary to the accused person’s ability to defend
himself or herself against the charges that have been laid.50
A variety of legislative measures to limit the scope of Stinchcombe could be
enacted to protect intelligence from disclosure. However, the Commission does
not recommend any of these measures for the reasons that follow.
One possible measure could be to deem CSIS to be a third party that is not
subject to Stinchcombe disclosure obligations. Legislation could establish a
procedure for requests for production from CSIS. The legislation would include
a list of dangers flowing from disclosing secret intelligence that judges should
consider before ordering that CSIS material be produced. Such provisions, by
preventing judges from determining on the facts of the case whether CSIS
material is subject to Stinchcombe or not, would inevitably be challenged under
the Charter as violating the right of the accused to disclosure and the right to
make full answer and defence. An accused could cite in his or her support the
determination by Justice Josephson in the Malik and Bagri case that CSIS was
subject to Stinchcombe. In addition, the Supreme Court of Canada held in 2008,
in both the Charkaoui51 and Khadr52 cases, that section 7 of the Charter may
require retention and disclosure of CSIS intelligence even for cases that are not
prosecuted in Canada’s criminal justice system. In short, deeming CSIS to be a
third party (rather than part of the Crown) might not prevent CSIS from being
obliged by section 7 to disclose at least some material.
Legislation could also limit Stinchcombe by reducing the Crown’s disclosure
obligations. Legislation could specify that only exculpatory information or
information that would undermine the Crown’s case be disclosed. However,
the Supreme Court has already clearly rejected such a position in Stinchcombe
49
50
51
52
Canadian Association of Chiefs of Police Written Submissions, p. 9.
Final Submissions of the Attorney General of Canada, Vol. III, paras. 31-32.
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326.
Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125.
�Chapter V: The Disclosure and Production of Intelligence
and in subsequent judgments dealing with disclosure. Although the Court has
not ruled out the possibility that a limit on a section 7 right could be justified as
reasonable under section 1 of the Charter, it has repeatedly emphasized that the
standards for any such limit would be extremely high.53 Still, the Court has not
completely discounted limitations.54
Protecting intelligence from disclosure is a sufficiently important goal to justify
some limits on section 7 rights.55 To justify the limits, the Crown should be obliged
to demonstrate that there are no less drastic means to protect the intelligence.
The Crown’s ability to obtain judicial non-disclosure orders under sections 37
and 38 of the Canada Evidence Act could be cited as less drastic means. Even if
a court concluded that other, less drastic, alternatives were not available, the
court would still have to assess the overall balance between the need to protect
intelligence from disclosure and the harm to the accused’s rights that nondisclosure would cause.
Even under a statutory regime that purported to exempt CSIS from Stinchcombe
disclosure requirements or to limit disclosure requirements to exculpatory
material, the courts would still require CSIS to disclose information to the
accused that was necessary for the accused to make full answer and defence
and to have a fair trial.
Furthermore, even if legislation limiting Stinchcombe could be upheld under the
Charter, limiting disclosure in advance through legislation would be awkward.
It would be difficult for Parliament to predict, without knowing the facts of a
particular case, what must and must not be disclosed. General guidelines would
be of little use. The legislation might not prevent disclosure of material that is
actually not needed to assist the accused but that could, by being disclosed, be
very damaging to national security or to CSIS operations. A more practical and
efficient means to address the constitutional obligations to disclose intelligence
would be to improve the process that can be used to obtain non-disclosure
orders on the facts of the particular case. Chapter VII discusses how to improve
that process.
RCMP Commissioner William Elliott testified that he was unsure about how
practical it would be to create a different procedural regime for terrorism cases,
and about how such a regime would work without limiting the ability of the
accused to make full answer and defence.56 Even when protecting vital interests,
such as solicitor and client confidences or the identities of informers, the courts
have recognized that there must be disclosure when the accused’s innocence
53
54
55
56
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Charkaoui v. Canada (Citizenship and Immigration), 2007
SCC 9, [2007] 1 S.C.R. 350; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3.
The Court has recognized that Stinchcombe obligations can in some cases, without violating the
Charter, be limited by statutes in relation to private records in the Crown’s possession: R. v. McNeil,
2009 SCC 3 at para. 21, citing R. v. Mills, [1999] 3 S.C.R. 668 at para. 59.
Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 at paras. 66-68.
Testimony of William Elliott, vol. 90, December 6, 2007, pp. 11809-11810.
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is at stake.57 In short, even aggressive legislative limits on Stinchcombe would
not provide a reliable guarantee that CSIS material would never be disclosed to
the accused. For many reasons, a legislative “quick fix” is not realistic and is not
recommended.
5.6 The Need for Guidelines on the Proper Extent of Disclosure
Prosecutors must not overestimate the extent of Stinchcombe disclosure
obligations in terrorism prosecutions. The practice that sometimes occurs – of
producing all information except that which is clearly irrelevant − is of limited
value to the accused and should not be the standard practice, although obiter
dicta from the Supreme Court of Canada suggest otherwise.58 There is a danger
that the reasoning in dicta about disclosing material that is not clearly irrelevant
has become the operational standard used by prosecutors for disclosure.
A standard of disclosing all material that is not clearly irrelevant could, if applied
mechanically, result in disclosure of much material that is of no possible use to
the accused. The correct principle, in the Commission’s view, is that the Crown
need disclose only relevant information to the accused. Information other than
this, which is not clearly irrelevant, should be made available to the defence for
inspection in a secure environment.59
Anne-Marie Boisvert of the University of Montreal expressed the view that:
I think that Crown prosecutors are sometimes not forceful
enough in their objections to some disclosures and the
judiciary has sometimes also not been forceful enough, or
could have imposed a number of conditions on the disclosure.
Sometimes, I feel that we don’t think enough about the
consequences, but everyone has powers that they -- and while
we are always trying to propose legislative solutions after the
fact, I think that we could be more careful. The defendant is
entitled to a fair trial, to a full and complete defence. He is
not necessarily entitled to publish whatever he wants on the
Internet.60 [Translation]
Similarly, Bruce MacFarlane, a former Deputy Attorney General of Manitoba,
agreed that Stinchcombe was never intended to require absolute, or allencompassing, disclosure and observed that prosecutors “…are clearly erring
on the side of disclosure.” The result was an “absolutely daunting” amount of
57
58
59
60
R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3
S.C.R. 252.
R. v. Chaplin, 1995 CanLII 126, [1995] 1 S.C.R. 727.
The procedure for inspection is discussed in Chapter IX.
Testimony of Anne-Marie Boisvert, vol. 69, October 30, 2007, p. 8773.
�Chapter V: The Disclosure and Production of Intelligence
disclosure.61 This is arguably because it is easier to disclose everything than to
select the materials that are relevant.
In the absence of judicial guidance, prosecutors should not be criticized for erring
in the direction of more extensive disclosure to ensure fairness to the accused
or for interpreting their disclosure obligations broadly. However, prosecutors
should use their professional judgment in determining which material must be
disclosed. The standard for disclosure should be the relevance standard as it has
been articulated consistently by the Supreme Court of Canada in several cases.
The Crown also has discretion about when to disclose material. Departures from
the usual rule of early pre-trial disclosure may be justified if there are concerns
about the safety of informers and witnesses or if there is a need to protect
ongoing investigations from being exposed. Delays in disclosure could also be
justified when attempts are being made to secure consent to disclosure from
third parties, such as foreign intelligence agencies.62
The Federal Prosecution Service Deskbook usefully identifies categories of
material that should and should not be disclosed. However, the Deskbook should
be updated, especially about material that may be the subject of a national
security confidentiality claim under section 38 of the Canada Evidence Act. The
section on national security confidentiality in the current Deskbook has not
been revised since 2000.63 Since 2000, courts have found that time-consuming
and disruptive section 38 claims have been made with respect to information
that is not relevant to the case and that would not assist the accused.64
What must be disclosed can most appropriately and most efficiently be decided
by the trial judge. Hence, the early appointment of a trial judge is important in
terrorism prosecutions. A staged approach to disclosure, such as that used in
the Malik and Bagri prosecution, is also useful, even if it results in some material
of only minimal relevance being made available for inspection by the accused.
Staged disclosure and the importance of electronic disclosure are discussed in
greater depth in Chapter IX.
Recommendation 13:
Federal prosecutorial guidelines should be amended to make it clear to those
who prosecute terrorism cases that only material that is relevant to the case and
of possible assistance to the accused should be disclosed. Material of limited
61
62
63
64
Testimony of Bruce MacFarlane, vol. 78, November 19, 2007, pp. 9931-9932.
See Chapter IX for further discussion of the need for staged disclosure in terrorism prosecutions.
As suggested by the Table of Contents for the Federal Prosecution Service Deskbook, online:
Department of Justice Canada <http://canada.justice.gc.ca/eng/dept-min/pub/fps-sfp/fpd/toc.html>
(accessed July 30, 2009).
Nicholas Ribic and Her Majesty the Queen and Canadian Security Intelligence Service, 2002 FCT 290
at paras. 7-10; Canada (Attorney General) v. Ribic, 2003 FCA 246, 185 C.C.C. (3d) 129 at paras. 40-41;
Canada (Attorney General) v. Khawaja, 2007 FC 490, 291 C.C.C. (3d) 305 at para. 116, reversed on other
grounds 2007 FCA 342; Canada (Attorney General) v. Khawaja, 2008 FC 560 at para. 14; Khadr v. Canada
(Attorney General), 2008 FC 807, 331 F.T.R. 1 at para. 68.
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relevance – in the sense that it is not clearly irrelevant – should, in appropriate
cases, be made available for inspection by the defence at a secure location.
5.7 Production of Intelligence under R. v. O’Connor
Apart from the obligation to disclose pursuant to Stinchcombe, CSIS may be the
subject of an application to obtain information from a third party. The Supreme
Court of Canada’s 1995 decision in R. v. O’Connor recognizes that the accused
can obtain information from third parties, including public and private agencies,
where the information relates to an issue at trial, the reliability of evidence or the
credibility of witnesses.65 Still, the authority to obtain access to material from
third parties is not absolute. The accused must show that the material held by
the third party meets a higher standard of relevance than if that same material
were held by the Crown.
The standard with respect to third party information is whether the information
is “likely relevant,” as opposed to the Stinchcombe standard of “relevant.”66
This “likely relevant” threshold is “a significant burden” on the accused, and is
designed to stop fishing expectations, but “it should not be interpreted as an
onerous burden,” given the practical difficulty faced by the accused in trying to
establish the relevance of material that he or she has not seen.67 If the standard
is met, a judicial weighing follows of the harms and benefits of producing the
document to the accused.
In McNeil, the Supreme Court indicated that, if third party records have “true
relevance” to the trial, they should generally be disclosed to the accused as
they would be disclosed under Stinchcombe, although perhaps subject to
some editing and restrictions on the use of the material to protect competing
interests, such as residual privacy interests.68 Claims of privilege, such as
informer privilege69 or national security privilege,70 can be made and can “…bar
the accused’s application for production of the targeted documents, regardless
of their relevance. Issues of privilege are therefore best resolved at the outset of
the O’Connor process.”71
Even though O’Connor establishes a higher threshold of relevance and limited
balancing of the competing interests for and against disclosure of third party
records, it could still result in information collected by CSIS in counterterrorism
investigations being subject to production. CSIS surveillance material may be
highly relevant to many issues in terrorism trials, such as the whereabouts of the
accused or associates of the accused, or the credibility of a key witness who had
previously provided information to CSIS.
65
66
67
68
69
70
71
[1995] 4 S.C.R. 411 at para. 22.
R. v. Mills, [1999] 3 S.C.R. 668 at paras. 45-47; R. v. McNeil, 2009 SCC 3 at para. 33.
R. v. McNeil, 2009 SCC 3 at para. 29.
R. v. McNeil, 2009 SCC 3 at paras. 42-47.
See Chapter VI for discussion of this and other privileges.
See Chapter VII for a discussion of national security privilege under s. 38 of the Canada Evidence Act.
R. v. McNeil, 2009 SCC 3 at para. 27(4).
�Chapter V: The Disclosure and Production of Intelligence
5.7.1 Legislating Requests for Production of Intelligence under O’Connor
There is some precedent for legislation that clarifies the O’Connor common law
procedures for obtaining production of material from third parties as part of
the criminal trial. In R. v. Mills,72 the Supreme Court of Canada upheld legislation
enacted in response to O’Connor. The legislation provided a procedure and a list
of relevant factors for judges to consider before they ordered private information
held by third parties or by the Crown about complainants in sexual cases to be
produced to the trial judge or disclosed to the accused. The Court’s decision
was based on the notion that Parliament was reconciling the competing Charter
rights of the complainant and the accused. Professor Roach, in his study for the
Commission, suggested that courts should not apply the same approach if they
conclude that the national security context “…pits an individual accused against
the admittedly weighty interests of the state.”73
A restrictive legislative regime governing requests for production from CSIS
would not give CSIS any certainty that its intelligence would never be subject to
a production or disclosure order. Any legislation would have to allow sufficient
judicial discretion to ensure that the accused’s right to make full answer and
defence was not violated.74
There is little reason to conclude that the absence of legislation dealing with third
party disclosure will lead judges to become insensitive to the harms that might
be caused by producing and disclosing intelligence. Furthermore, legislation that
attempted to deem CSIS to be a third party and that restricted the production
and disclosure of intelligence could produce much unnecessary litigation.
Such legislation would be challenged on the basis that the CSIS material was
subject to Stinchcombe, as it was held to be in the Malik and Bagri prosecution.
Related litigation issues could include whether CSIS was an “investigating state
authority” subject to Stinchcombe or whether Crown counsel properly exercised
their responsibilities as officers of the court to effectively “…bridge much of the
gap between first party disclosure and third party production.”75 Litigation about
the status of CSIS or the terms or constitutionality of restrictive legislation would
lengthen terrorism prosecutions without necessarily resolving the ultimate issue
of whether, and in what form, the accused should have access to CSIS material.
Roach warned that “…[e]ven if legislation restricting disclosure or production…
was upheld under the Charter, there could be much litigation about the precise
meaning of the legislation and its relation to Charter standards….The apparent
certainty produced by new legislation in protecting intelligence from disclosure
may be more illusory than real.” 76
72
73
74
75
76
[1999] 3 S.C.R. 668.
Roach Paper on Terrorism Prosecutions, p. 152.
R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307.
R. v. McNeil, 2009 SCC 3 at paras. 14, 51.
Roach Paper on Terrorism Prosecutions, p. 171.
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5.8 Anticipating Disclosure
If CSIS information is not already included in the Stinchcombe material disclosed
to an accused in a terrorism prosecution, the accused will almost inevitably seek
production of information that CSIS may hold. This will require time-consuming
litigation that may involve judges examining CSIS information in detail. In some
cases, it may be appropriate for the Crown voluntarily to include relevant CSIS
information as part of the Stinchcombe disclosure process, whether or not a
court would hold CSIS to be subject to Stinchcombe in the particular case. This
approach would also ensure that the Crown discharges its duties, articulated in
the recent McNeil case, to make inquiries about relevant material that should
be disclosed in cases where it knows that a CSIS investigation has taken place.77
It may be more feasible for the Crown to include CSIS information that is not
excluded by privilege as part of its Stinchcombe disclosure obligations if, as in
the Air India trial, the CSIS information is made available for inspection by the
defence at a secure location.
In some cases it may be appropriate for the Attorney General of Canada to
move directly to obtain a non-disclosure order under section 38 of the Canada
Evidence Act for information held by CSIS. A preliminary assertion of privilege
could preclude the need to decide whether Stinchcombe or O’Connor procedures
apply. Litigation under section 38 would determine whether, and in what form,
CSIS material would be disclosed to the accused. Section 38 contemplates
measures such as partial redaction or the use of summaries in order to reconcile
the competing interests in disclosure and secrecy.
Litigating the disclosure of intelligence under section 38 will address the
core issue: whether, and in what form, CSIS intelligence must be disclosed
to the accused. It could avoid litigating the somewhat academic issues of
whether CSIS is part of the Crown subject to Stinchcombe or only a third party
in the prosecution, or whether the Crown has fulfilled its obligations to make
reasonable inquiries about whether CSIS has material that should be disclosed
to the accused.
Recommendation 14:
There is no need for further legislation governing the production for a criminal
prosecution of intelligence held by CSIS. The procedures available under section
38 of the Canada Evidence Act provide an appropriate and workable framework
for the trial court to determine whether production of such intelligence is
warranted.
77
2009 SCC 3 at para. 49.
�VOLUME THREE
THE RELATIONSHIP BETWEEN INTELLIGENCE
AND EVIDENCE AND THE CHALLENGES OF
TERRORISM PROSECUTIONS
CHAPTER VI: THE ROLE OF PRIVILEGES IN PREVENTING THE DISCLOSURE
OF INTELLIGENCE
6.0 Introduction
Evidentiary privileges are complex rules developed by the courts to keep
information which is valued by society confidential. The best known privilege
is the one ensuring the confidentiality of information that passes between
lawyers and their clients during the provision of legal advice. The disclosure
requirements in Stinchcombe do not apply to material covered by evidentiary
privileges. This important limit is not always fully understood.
Another important privilege is the “police informer privilege.” This privilege
protects all identifying information about an informer who has supplied the
police with information in exchange for a promise of secrecy and anonymity.
The privilege is designed both to protect informers who provide information
under a promise of anonymity and to encourage others to come forward with
information.
Police informer privilege is a “class,” or “absolute,” privilege because it protects
information without any need to balance the competing interests in disclosure
and non-disclosure. The police informer privilege binds police, prosecutors and
judges, and cannot be waived unilaterally by the Crown. The privilege can be
waived only with the informer’s consent. It effectively gives an informer a veto
about being called as a witness. An exception to police informer privilege is
allowed when such information is the only means to establish the innocence
of an accused.1 Another class privilege at the federal level is that applying to all
Cabinet confidences.2
Class privileges can be contrasted with “qualified” privileges, which involve
balancing the interests in disclosure and non-disclosure, while taking into
account the facts of the particular case.3 Class privileges offer maximum advance
certainty that the information covered by the privileges will not be disclosed.
1
2
3
Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252.
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39 [Canada Evidence Act].
Qualified privileges under the Canada Evidence Act, such as specified public interest immunity privilege
(s. 37) and national security privilege (s. 38), are examined in Chapter VII.
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The police informer privilege creates a tension between competing demands
for secrecy and for disclosure. The stakes are high. On the one hand, a promise
of anonymity to an informer may be necessary to obtain information that is vital
for preventing terrorism. On the other hand, such a promise may make terrorism
prosecutions more difficult, if not impossible, by giving the informer a virtual
veto over whether he or she will testify in support of the prosecution case.
The police informer privilege does not extend to individuals who act as state
agents or who become material witnesses to a crime – a frequent occurrence
in terrorism investigations, where the best informers often play an active role or
become witnesses to crimes.
It is not clear whether CSIS informers are protected by police informer privilege
at all, or even whether they can be protected by the privilege if responsibility for
their “handling” is transferred to the RCMP.
The proper management of informers, which includes making informed
decisions about when the public interest warrants promises to informers that
may produce a finding of police informer privilege, is essential for the success of
terrorism investigations and prosecutions.
The first part of this chapter focuses on the important, but uncertain, role
played by police informer privilege in terrorism investigations. Later, the
chapter examines the case for recognizing a new class privilege to protect the
deliberations of the National Security Advisor (NSA). This privilege would be
designed to offer maximum certainty that information shared with the NSA, as
well as the deliberations within the NSA’s office, would be protected against
compelled disclosure. The goal would be to give the NSA a“zone of confidentiality”
that would allow the NSA to discharge the additional responsibilities that
are recommended in Chapter II without fear of publicity. The privilege would
facilitate the sharing of information, central coordination, dispute resolution
and central oversight that are necessary to ensure the effectiveness of Canada’s
national security activities.
6.1 The Role of Police Informer Privilege in Terrorism Investigations
and Prosecutions
Despite the importance of the police informer privilege, its precise parameters
are not clear. The jurisprudence does not provide definitive answers to basic
questions such as the point at which the privilege is established and whether it
applies to CSIS informers.
It is important to know whether CSIS informers can benefit from informer
privilege, either because of their relationship with CSIS or because of promises
made by the RCMP if handling of the informer is transferred to the RCMP. The
answer to this question will determine the extent to which both agencies can
protect the informers they handle. Potential informers may refuse to provide
�Chapter VI: The Role of Privileges in Preventing the Disclosure of Intelligence
information, including information that may be vital for preventing a deadly
terrorist act, unless they are promised anonymity and they are confident that
they will not be compelled to testify.
The prosecution of Talwinder Singh Parmar and others for an alleged conspiracy
to commit terrorist acts in India collapsed in 1987 when an informer did not
agree to have identifying information disclosed or to enter a witness protection
program.4 Informers may be inclined to rely on informer privilege and may
refuse to testify if they view witness protection programs as inadequate.
In another case, a conviction for a conspiracy to blow up an Air India aircraft
in 1986 was overturned, and a stay was eventually entered, because of the
unwillingness of the police to reveal the identity of an informer known as “Billy
Joe.” The courts held that this individual was not protected by informer privilege
because the individual had acted as an active agent of the state and was a
material witness to the alleged terrorist conspiracy.5
Informers who get too close to terrorist plots may lose the benefits of informer
privilege by acting as a police agent or by becoming a material witness to terrorist
crimes.6 Losing the protection of the privilege can have dramatic consequences
for the informer. The informer’s identity may be disclosed in court and the
informer might be compelled to be a witness. In some cases, the safety of the
informer and that of the informer’s family may be threatened, or other forms of
intimidation may occur. Adequate witness protection programs are therefore
essential. These programs are examined in Chapter VIII.
The authority of police officers to make enforceable promises of anonymity to
informers has long been recognized as an important tool for law enforcement.
The Supreme Court of Canada recently remarked on this in Named Person v.
Vancouver Sun:
Police work, and the criminal justice system as a whole, depend
to some degree on the work of confidential informers. The law
has therefore long recognized that those who choose to act as
confidential informers must be protected from the possibility
of retribution. The law’s protection has been provided in
the form of the informer privilege rule, which protects from
revelation in public or in court of the identity of those who
4
5
6
R. v. Parmar (1987), 31 C.R.R. 256 (Ont. H.C.J.), discussed in Kent Roach, “The Unique Challenges of
Terrorism Prosecutions: Towards a Workable Relation Between Intelligence and Evidence” in Vol. 4 of
Research Studies: The Unique Challenges of Terrorism Prosecutions, pp. 103-111 [Roach Paper on
Terrorism Prosecutions].
R. v. Khela (1998), 126 C.C.C. (3d) 341 (Que. C.A.), discussed in Roach Paper on Terrorism Prosecutions,
pp. 157-165.
For arguments that the most useful informers are “active” and that they may be subject to claims of
entrapment and attacks on their credibility, see Jean-Paul Brodeur, “The Royal Canadian Mounted
Police and the Canadian Security Intelligence Service: A Comparison Between Occupational and
Organizational Cultures” in Vol. 1 of Research Studies: Threat Assessment RCMP/CSIS Co-operation,
pp. 207-208.
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give information related to criminal matters in confidence. This
protection in turn encourages cooperation with the criminal
justice system for future potential informers.7
The Court stressed the breadth of the privilege, noting that “… [a]ny information
which might tend to identify an informer is protected by the privilege. The
protection is not limited simply to the informer’s name, but extends to any
information that might lead to identification.” The privilege imposes a duty
on the police, the Crown, lawyers and judges “…to keep an informer’s identity
confidential.”8
The Supreme Court states that “… [p]art of the rationale for a mandatory informer
privilege rule is that it encourages would-be informers to come forward and
report on crimes, safe in the knowledge that their identity will be protected.”9
Unlike a case-by-case confidentiality privilege or public interest immunity, or
national security confidentiality privileges determined under sections 37 and
38 of the Canada Evidence Act10, the police informer privilege is absolute, once it
is found to exist, subject only to the innocence-at-stake exception:
Informer privilege is of great importance. Once established,
the privilege cannot be diminished by or ‘balanced off against’
other concerns relating to the administration of justice. The
police and the court have no discretion to diminish it and are
bound to uphold it.11
In contrast, in making a claim to a privilege by using section 38 of the Canada
Evidence Act, the Attorney General of Canada must demonstrate that the
disclosure of the information would harm national security, national defence
or international relations. Moreover, the judge must determine whether the
harm in that case of disclosing secret information outweighs the harm of not
disclosing it.
Police informer privilege has been recognized in several situations involving
national security. The Supreme Court held that the privilege extends even to
police intelligence work involving confidential health records, and when the
investigation is not tied to any particular prosecution. In Solicitor General of
Canada v. Royal Commission (Health Records), Martland J. stated for the Court that
the foundation of the police informer privilege “…is even stronger in relation to
the function of the police in protecting national security”:
7
8
9
10
11
2007 SCC 43, [2007] 3 S.C.R. 252 at para. 16.
2007 SCC 43, [2007] 3 S.C.R. 252 at para. 26.
Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252 at para. 39.
R.S.C. 1985, c. C-5.
R. v. Leipert, [1997] 1 S.C.R. 281 at para. 28.
�Chapter VI: The Role of Privileges in Preventing the Disclosure of Intelligence
The rule of law which protects against the disclosure of
informants in the police investigation of crime has even greater
justification in relation to the protection of national security
against violence and terrorism.12
These comments were made in 1981. The subsequent bombing of Air India
Flight 182 and the 9/11 attacks further underscored the importance of the state
interest in obtaining information about terrorist suspects and in preventing
terrorist acts. The ability of the police to rely on informer privilege to obtain such
information is of supreme importance, even if the privilege may make it much
more difficult to conduct certain terrorism prosecutions.
In 1983, the Supreme Court stated in Bisaillon v. Keable13 that informer
privilege and “Crown privilege” – which today might be called national security
confidentiality privilege under section 38 of the Canada Evidence Act – are both
rooted in the fact that secrecy is sometimes in the public interest.
6.1.1 Loss of Informer Privilege When the Informer Is or Becomes an
Agent or Material Witness
The police informer privilege does not apply when the police informer is or
becomes an agent acting for the state or a material witness to the alleged
crime. This is simply because the accused’s right in these situations to make full
answer and defence becomes more important than protecting the informer’s
identity. This qualification of the police informer privilege is especially relevant
in terrorism investigations because informers who become privy to a secret
terrorist plot may often be material witnesses to the plot, act as state agents in
trying to foil the plot, or both.
The limits of the police informer privilege were revealed in a terrorism
prosecution that stemmed from an alleged conspiracy to blow up an Air India
aircraft in 1986. The Quebec Court of Appeal held that the identity of the
informer “Billy Joe” was not protected by police informer privilege because
the informer had become a material witness. The informer’s testimony was
relevant to whether a crime had been committed and to whether the accused
had an entrapment defence.14 This prosecution was eventually stayed by the
courts because of persistent non-disclosure by the Crown of the informer’s
identity and of other information, including notes from police interviews
with the informer.15 This case demonstrates how restrictions on the police
informer privilege designed to protect the accused’s right to a fair trial can
make terrorism prosecutions and the protection of informers difficult. When
an informer’s identity must be revealed because the informer has become a
material witness or state agent, the prosecution has only two options: provide
12
13
14
15
Solicitor General of Canada, et al. v. Royal Commission (Health Records), [1981] 2 S.C.R. 494 at 537.
[1983] 2 S.C.R. 60.
R. v. Khela (1991), 68 C.C.C. (3d) 81 (Que. C.A.).
R. v. Khela (1998), 126 C.C.C. (3d) 341 (Que. C.A.).
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partial anonymity and adequate witness protection for the informer, or abandon
the prosecution. The adequacy of witness protection programs, as well as
“partial anonymity” devices that allow those like “Billy Joe” to be identified only
by false names or to testify in court by means of video links or behind screens,16
are examined in Chapter VIII.
Promises of anonymity that are not kept erode the trust between informers
and the authorities and may lead informers to switch stories or have “memory
lapses” when asked to testify. Generally, it is best for security intelligence and
police agencies to be honest with informers about the possible disclosure of
their identities and the possible need for them to testify if they become material
witnesses or agents.
The authorities should also be given the means to address informers’ safety
concerns. When necessary, both police and security intelligence agencies
should have access to flexible witness protection programs.
In many cases, disruption of a terrorist plot should take priority over a
subsequent prosecution for the resulting terrorist act, and it may be necessary
to promise anonymity to achieve this. Such promises should not, however, be
made routinely. It must be remembered that a promise, if honoured, may make
a subsequent prosecution difficult, if not impossible. In general, individual
officers or agents should not have the sole discretion to decide whether to
promise anonymity. Procedures should be established to allow consideration of
all the available evidence. There must be sound decision making and respect for
the chain of command within organizations.
The reliability of the informer should be one factor to consider in offering
anonymity, because an unreliable informer might change his or her story,
yet remain protected by informer privilege. Legal advice should be obtained,
whenever possible, both about the legal effects of promises made to informers
and about the impact on subsequent prosecutions of granting informer privilege.
Legal advice will also be necessary to determine whether an informer may have
already lost, or is likely to lose, the benefit of informer privilege because he or
she has become an agent or a material witness.
In some cases, protecting an informer through a witness protection program
might be offered as an alternative to a grant of police informer privilege.
Recommendation 15:
The RCMP and CSIS should each establish procedures to govern promises of
anonymity made to informers. Such procedures should be designed to serve
the public interest and should not be focused solely on the mandate of the
particular agency.
16
Criminal Code, R.S.C. 1985, c. C-46, s. 486.2(4)-(5).
�Chapter VI: The Role of Privileges in Preventing the Disclosure of Intelligence
6.2 Informer Privilege and the Transfer of Sources from CSIS to the
RCMP
In a pre-trial ruling during the Air India trial, Justice Josephson held that CSIS
was subject to Stinchcombe disclosure requirements. He added:
…[T]he submission that the Witness should be characterized
as a confidential informant subject to informer privilege is
contrary to all of the evidence in relation to her treatment by
C.S.I.S. While it is not necessary to determine whether in law
C.S.I.S. can cloak a source with the protections of informer
privilege, it is clear that its subsequent actions in passing the
Witness’s information and identity to the R.C.M.P. suggest that
it never regarded or treated her as such.17
Although this comment was not strictly necessary for the judgment, the
comment would mean that any chance that a source could be protected by
informer privilege would be lost whenever CSIS passed information about a
source to the police under section 19(2)(a) of the CSIS Act18. Because CSIS has a
statutory duty to ensure the secrecy of its sources, it might therefore be reluctant
to share information about its sources with the RCMP.
Chapter IV recommended that CSIS should no longer have a discretion under
section 19(2)(a) to withhold information that is relevant to police investigations
or prosecutions. For this recommendation to work, it would be necessary to
allow CSIS to pass information about a source to the RCMP or to the NSA without
the source losing the possibility of obtaining informer privilege. This does not
mean that informer privilege should be promised in every case or that CSIS
officials should be permitted by law to make promises that will result in informer
privilege. Nevertheless, there must be a mechanism that allows information
about informers to be shared between CSIS and the RCMP, or between CSIS and
the NSA, without losing the possibility of claiming informer privilege.
Information sharing between CSIS and the RCMP should be a two-way flow. In
some cases, the RCMP might wish to tell CSIS about one of its informers without
losing the possibility of informer privilege.
Some courts have indicated that information can be shared among the police
and with Crown counsel without losing informer privilege. In one case, a judge
held that police informer privilege was preserved even though the identity of
the informer had been revealed to three members of the RCMP, one member of
the OPP, two judges, a court registrar, a lawyer in private practice working for the
federal Department of Justice and a federal prosecutor. The judge commented:
17
18
R. v. Malik and Bagri, 2004 BCSC 554, 119 C.R.R. (2d) 39 at para. 18.
R.S.C. 1985, c. C-23.
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Since police officers, judges and Crown attorneys routinely
share information subject to the privilege, it is clear that such
information can be shared in a limited way without breach of
the guarantee and without the consent of the informer. In fact,
the circle of people entitled to share the information expands
over time, and is dependant on the facts. The expansion of
this circle occurs without breach of the guarantee, without
the consent of the informer and, most importantly, without
violating the policy upon which the privilege is founded. The
Crown attorney in this application, for example, may have to
modify the presentation of his case in order to respect the
privilege.19
The claim of police informer privilege was upheld on appeal. As a result, the
RCMP Public Complaints Commission (since renamed the Commission for Public
Complaints Against the RCMP) did not gain access to the informer’s identity.
However, Justice Létourneau expressed concern about the number of people
with access to the informer’s identity:
Safety and secrecy are major preoccupations surrounding
police informer privilege. I confess that I am deeply troubled
by the number of persons who had access to the privileged
information in this case, thereby increasing the risk of
disclosure and of defeating the purpose of the privilege. If
potential informers were made aware of the way information
was shared in this instance, I am not sure that many of them
would be keen on coming forward in the future. Furthermore,
the fact that information may have been improperly shared in
this case cannot serve as support for the appellant’s position.
To add the Chairperson of the Commission and some of her
staff to an already long list would be to add persons who are
interested in accessing the privileged information in order
“to ensure the highest possible standard of justice”. However,
as laudable as this goal may be, it cannot justify granting
access to persons who are not persons who need to know
such information for law enforcement purposes as required
in the context of police informer privilege: see Bisaillon. I
am persuaded that, if consulted, informers would, for safety
reasons, strongly oppose the opening of an additional circuit
of distribution of their names, especially where the justification
for this distribution is the furtherance of a purpose other than
that of law enforcement in the strict sense.20
19
20
Canada (Royal Canadian Mounted Police Public Complaints Commission) v. Canada (Attorney General),
2004 FC 830, 255 F.T.R. 270, Arguments at para. 20.
Canada (Royal Canadian Mounted Police) v. Canada (Attorney General), 2005 FCA 213, 256 D.L.R. (4th) 577
at para. 46.
�Chapter VI: The Role of Privileges in Preventing the Disclosure of Intelligence
Justice Létourneau held that “…in the context of the police informer privilege,
the notion of ‘Crown’ should be narrowly defined and refers to those persons
who are directly involved in the enforcement of the law,”21 and, as such, did not
include the RCMP Public Complaints Commission.
This decision raises the issue of whether, for the purpose of claiming informer
privilege, the “Crown” would include CSIS. Although it could be argued that
CSIS is not “…directly involved in the enforcement of the law,” such a conclusion
would be unrealistic and impractical in the context of terrorism investigations.
CSIS, unlike the Commission for Public Complaints, plays a vital role in terrorism
investigations and has statutory obligations to protect the identity of its
sources. Section 19(2)(a) of the CSIS Act should be amended to make it clear that
information about an individual which is exchanged by CSIS with a police force
or with the NSA does not prejudice a claim of informer privilege.
Recommendation 16:
Section 19 of the CSIS Act should be amended to provide that information about
an individual which is exchanged by CSIS with a police force or with the NSA
does not prejudice claiming informer privilege.
6.3 Should CSIS Informers Be Protected by Informer Privilege
The courts have not yet given clear guidance about whether promises of
anonymity by CSIS to its informers create police informer privilege. In the pretrial ruling discussed earlier, Justice Josephson did not decide whether CSIS
could cloak its human sources with informer privilege.22 He simply held that
the actions of CSIS in disclosing an informer’s identity and information to the
RCMP were inconsistent with any subsequent claim of informer privilege. For
the reasons set out above, the idea that the transfer of information between
CSIS and the police would not permit subsequent claims of informer privilege is
unworkable and should be rejected.
Canadian courts have generally been reluctant to extend informer privilege
beyond the law enforcement context. In Reference re Legislative Privilege,23 the
Ontario Court of Appeal refused to extend informer privilege to whistleblowers
who contacted members of the legislature. In the United Kingdom, however,
there has been a willingness to extend the privilege to those who assist public
authorities to uncover wrongdoing such as abuse of children24 and gaming
21
22
23
24
2005 FCA 213, 256 D.L.R. (4th) 577 at para. 43.
R. v. Malik and Bagri, 2004 BCSC 554, 119 C.R.R. (2d) 39.
(1978) 39 C.C.C. (2d) 226 (Ont. C.A.).
D. v. National Society for the Prevention of Cruelty to Children, [1978] A.C. 171 (C.A.).
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frauds.25 Colin Gibbs, a Crown prosecutor from the United Kingdom, testified
that the informer privilege applies to sources for UK intelligence services.26
In a recent case involving an unsuccessful attempt by special advocates to
cross-examine human sources in a security certificate case, Federal Court Justice
Noël concluded that the police informer privilege did not apply to CSIS human
sources. He reasoned:
The covert human intelligence source(s) at issue in this
motion for production are recruited by a civilian intelligence
agency; they are not “police” informers providing information
to police in the course of their duties.... Covert human
intelligence sources are individuals who have been promised
confidentiality in return for their assistance in gathering
information relating to the national security concerns of
Canada. Thus the common law privilege protecting police
informers and the innocence at stake exception to that
privilege are not applicable per se to the covert human
intelligence sources recruited by the Service.27
Although he concluded that the privilege did not apply to CSIS sources, Justice
Noël nevertheless found that the sources were protected on the basis of a case-bycase confidentiality privilege because of the great importance of confidentiality
and the injury to national security that could be caused by revealing the identity
of CSIS sources.28 He stressed that “…[c]onfidentiality guarantees are essential
to the Service’s ability to fulfill its legislative mandate to protect the national
security of Canada while protecting the source from retribution.”29 The CSIS
informer privilege that he recognized was, however, not as protective as police
informer privilege, which is limited only by the innocence-at-stake exception
and by the fact that it does not apply in non-criminal proceedings. The new
CSIS informer privilege would be subject to a “need-to-know” exception that
would apply if there was no other way to “…establish that the proceeding will
otherwise result in a flagrant denial of procedural justice which would bring the
25
26
27
28
29
Rogers v. Home Secretary; Gaming Board for Great Britain v. Rogers, [1973] A.C. 388 (H.L. (E.)). In a
1977 deportation case, Lord Denning held “…[t]he public interest in the security of the realm is
so great that the sources of the information must not be disclosed, nor should the nature of the
information itself be disclosed, if there is any risk that it would lead to the sources being discovered.
The reason is because, in this very secretive field, our enemies might try to eliminate the source of
information. So the sources must not be disclosed. Not even to the House of Commons. Nor to
any tribunal or court of inquiry or body of advisers, statutory or non-statutory, save to the extent
that the Home Secretary thinks safe”: R. v. Secretary of State for the Home Department, ex parte
Hosenball [1977] 3 All ER 452 at 460 (C.A.). Geoffrey Lane similarly stated that “…once a potential
informant thinks that his identity is going to be disclosed if he provides information, he will cease
to be an informant. The life of a known informant may be made, to say the least, very unpleasant
by those who, for reasons of their own, wish to remain in obscurity”: at 462.
Testimony of Colin Gibbs, vol. 84, November 28, 2007, pp. 10812-10813.
Harkat (Re), 2009 FC 204 at para. 18.
2009 FC 204 at paras. 27-29.
2009 FC 204 at para. 31.
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administration of justice into disrepute.”30 This exception could arise “…where,
in the judge’s opinion, there is no other way to test the reliability of critical
information provided by a covert human intelligence source except by way of
cross-examination.”31
Whether Canadian courts might one day recognize a police informer privilege
for CSIS informers is impossible to know. There are strong arguments both for
and against finding the existence of the privilege in such circumstances. The
following are arguments against extending the privilege to CSIS informers:
• Parliament made a decision not to give CSIS law enforcement
powers. The informer privilege, at least in Canada, has traditionally
been reserved for police informers;
• CSIS deals with informers under its mandate to investigate threats
to the security of Canada. It will often be premature at the time of
such investigations to make promises that effectively give informers
a veto over whether they can be called as witnesses or whether
any identifying information about them is disclosed in a
subsequent terrorism prosecution;
• The identities of CSIS sources can already be protected through
applications for public interest immunity and national
security confidentiality under sections 37 and 38 of the Canada
Evidence Act or through the recognition of a case-bycase privilege. CSIS dealings with its sources would fall under
the first three Wigmore criteria: (1) the communications
originated in a confidence that they will not be disclosed;
(2) the confidentiality is essential to the maintenance of the
relation between the parties; and (3) the relation is one that should
be fostered.32 The critical question in most cases would be whether
the injury to the relation by disclosure of the communication
would be greater than the benefit gained for the correct disposal of
litigation;
30
31
32
2009 FC 204 at at para. 61.
2009 FC 204 at para. 46.
R. v. Gruenke, [1991] 3 S.C.R. 263.
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• Extending informer privilege to CSIS informers is not necessary
because section 18 of the CSIS Act makes it an offence punishable
by up to five years imprisonment to disclose information about a
confidential source of information or assistance to CSIS. However,
this protection, unlike informer privilege, does not bind courts
when they make disclosure orders;33 and
• Extending police informer privilege to CSIS sources might lead to
judges weakening the protections of informer privilege by
gradually allowing the privilege to be defeated by exceptions in
addition to the existing innocence-at-stake exception.
On the other hand, there are several arguments in favour of extending the
privilege to CSIS informers:
• Although CSIS does not have law enforcement powers, there is
often a close nexus between CSIS investigations of threats to
security and terrorist crimes, treason, espionage and violations
of the Security of Information Act;34
• It may be contrary to the public interest to allow a police officer to
make enforceable promises of anonymity to obtain information
about what may only be minor crimes, while a CSIS agent could not
make similar promises even where the promises might be needed
for the agent to obtain information about an imminent terrorist act;
• Better coordination of CSIS and RCMP counterterrorism
investigations may reduce the risk that CSIS promises would
prematurely trigger a police informer privilege;
• As a class privilege subject only to the innocence-at-stake
exception, informer privilege provides greater protection for the
identity of informers than the protections now available to CSIS
sources under section 18 of the CSIS Act and sections 37 and
38 of the Canada Evidence Act, or under a confidentiality privilege
recognized under common law; and
• Current CSIS practice seems to be to give human sources “…
absolute promises that their identity will be protected,”35 and such
promises encourage sources to provide information relating to
security threats.
33
34
35
Section 18(2) of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 provides that
a person may disclose information about a person who is or was a confidential source of information
or assistance to CSIS “…for the purposes of the performance of duties and functions under this
Act or any other Act of Parliament or the administration or enforcement of this Act or as required
by any other law or in the circumstances described in any of paragraphs 19(2)(a) to (d).” Section 19(2)
(a) in turn allows disclosure of information “…where the information may be used in the investigation
or prosecution of an alleged contravention of any law of Canada or a province, to a peace officer
having jurisdiction to investigate the alleged contravention and to the Attorney General of Canada and
the Attorney General of the province in which proceedings in respect of the alleged contravention may
be taken”.
R.S.C. 1985, c. O-5.
Harkat (Re), 2009 FC 204 at para. 31.
�Chapter VI: The Role of Privileges in Preventing the Disclosure of Intelligence
CSIS generally sees promises of anonymity to its sources as essential to obtain
their cooperation. As Justice Noël recently stated, such promises“…not only foster
long-term, effective relationships with the sources themselves, but increase,
exponentially, the chances for success of future intelligence investigations.
Confidentiality guarantees…also [encourage] others to come forward with
essential information that would not otherwise be available to the Service.”36
Given the preventive nature of CSIS counterterrorism investigations and their
use during the early stages of suspicious activities, CSIS may have difficulty
determining whether its investigations will later uncover criminal behaviour
that would warrant police investigation and criminal prosecution. CSIS promises
of anonymity to human sources might often be premature and could, if the
promises were enforceable, jeopardize subsequent terrorism prosecutions. Yet,
given its mandate, CSIS will have a strong incentive to make promises to sources
that will assist it to collect intelligence, and much less incentive to help make
sources available to testify in a terrorism prosecution. Indeed, the available
public evidence suggests that CSIS gives “covert human intelligence sources”
absolute promises that their identities will be protected.37
The Commission does not recommend that police informer privilege be
extended by statute to CSIS informers. However, if police informer privilege is
extended by statute or by the common law to CSIS informers, there must be even
greater integration of CSIS and RCMP counterterrorism investigations, and the
proposed Director of Terrorism Prosecutions38 must advise both agencies about
the impact of promises of anonymity on subsequent terrorism prosecutions.
In some cases, it will be necessary to make enforceable promises of anonymity
to a source to obtain information that may prevent an act of terrorism, but such
promises should not become routine. Rather, they should be made only in the
public interest and on the basis of the most complete information available.
In the absence of a clear judicial decision that CSIS informers can be protected
by police informer privilege, closer cooperation between CSIS and the RCMP
and a change to the CSIS Act may achieve the same effect. The CSIS Act should be
amended to allow CSIS to transfer the handling of a human source to the RCMP
or other police force while preserving the ability of the police to make promises
that will trigger police informer privilege.
Recommendation 17:
CSIS should not be permitted to grant police informer privilege. CSIS informers
should be protected by the common law “Wigmore privilege,” which requires
the court to balance the public interest in disclosure against the public interest
in confidentiality. If the handling of a CSIS source is transferred to the RCMP, the
source should be eligible to benefit from police informer privilege.
36
37
38
Harkat (Re), 2009 FC 204 at para. 31.
Harkat (Re), 2009 FC 204 at para. 31.
The role of the proposed Director of Terrorism Prosecutions is discussed in Chapter III.
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6.4 Are New National Security Privileges Necessary
The modern trend has been away from class (absolute) privileges that promote
secrecy over disclosure. For example, the Supreme Court of Canada has refused to
recognize a new class privilege that would apply to religious communications39
or that would apply to private therapeutic records.40 In the latter case, Justice
L’Heureux-Dubé explained this reluctance:
Generally, class privilege presents many impediments to the
proper administration of justice and, for that reason, has not
been favoured in Canada and elsewhere in criminal trials. A
class privilege is a complete bar to the information contained
in such records, whether or not relevant, and the onus to
override it is a heavy one indeed. The particular concerns
raised by the recognition of a class privilege in favour of private
records in criminal law relate to: (1) the truth-finding process
of our adversarial trial procedure; (2) the possible relevance
of some private records; (3) the accused’s right to make full
answer and defence; (4) the categories of actors included in a
class privilege; and (5) the experience of other countries.41
The Court did not create a new class privilege to protect therapeutic records
from disclosure. The Court recognized that class privileges provide the greatest
certainty against disclosure, but that they also can inhibit the truth-seeking
function of the criminal trial and impair the accused’s right to make full answer
and defence.
In 1982, the Supreme Court upheld a class privilege that prevented the disclosure
of information whenever a minister of the Crown certified that the disclosure of
a document “…would be injurious to international relations, national defence
or security, or to federal-provincial relations”42 or would disclose a Cabinet
confidence. The Court based its ruling on “parliamentary supremacy.”43 The
case was decided without referring to the Charter and despite the fact that the
British common law had evolved away from absolute privileges, even in the
national security context.44 Parliament soon repealed the Canadian absolute
privilege, in part because of concerns that it would be found to be inconsistent
with the Charter. In subsequent years, even established class privileges, such as
the informer privilege45 and solicitor and client privilege,46 have been subject to
39
40
41
42
43
44
45
46
R. v. Gruenke, [1991] 3 S.C.R. 263.
A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536.
[1995] 4 S.C.R. 536 at para. 65.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 41(2).
Commission des droits de la personne v. Attorney General of Canada, [1982] 1 S.C.R. 215 at 228.
The absolute approach taken in Duncan v. Cammell, Laird & Co., Ld., [1942] A.C. 624 (H.L. (E.)) should be
compared with the more flexible approach contemplated in Conway v. Rimmer, [1968] A.C. 910
(H.L. (E.)).
R. v. Leipert, [1997] 1 S.C.R. 281.
R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445.
�Chapter VI: The Role of Privileges in Preventing the Disclosure of Intelligence
innocence-at-stake exceptions. Such exceptions ensure that the privileges are
consistent with the Charter and, in particular, with the accused’s right to make
full answer and defence.
6.4.1 Cabinet Confidences
One exception to the trend away from absolute privileges is that attaching to
Cabinet deliberations. In Babcock v. Canada, the Supreme Court of Canada upheld
the constitutionality of section 39 of the Canada Evidence Act, which provides that
the disclosure of Cabinet confidences must be refused “…without examination
or hearing of the information by the court, person or body,” upon certification by
the Clerk of the Privy Council or by a minister. The Court articulated the rationale
for this broad class privilege in the following terms:
Those charged with the heavy responsibility of making
government decisions must be free to discuss all aspects of the
problems that come before them and to express all manner of
views, without fear that what they read, say or act on will later
be subject to public scrutiny....47
The Court stated that section 39 of the Canada Evidence Act contained “absolute
language” that “…goes beyond the common law approach of balancing
the public interest in protecting confidentiality and disclosure on judicial
review. Once information has been validly certified, the common law no longer
applies to that information.”48
Despite the absolute language in section 39, the Court held that the certification
of a document as a Cabinet confidence would have to be done for the “…bona
fide purpose of protecting Cabinet confidences in the broader public interest.”49
A certification would be invalid if done for purposes not authorized by the
legislation or if it related to information that had previously been disclosed.50
When interpreted in this manner, section 39 does not infringe constitutional
principles relating to the separation of powers and the independence of the
judiciary.51 It provides a broad, but not unlimited, protection for Cabinet
confidences.
47
48
49
50
51
Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3 at para. 18.
2002 SCC 57, [2002] 3 S.C.R. 3 at para. 23.
2002 SCC 57, [2002] 3 S.C.R. 3 at para. 25.
2002 SCC 57, [2002] 3 S.C.R. 3 at paras. 25-26.
The Court explained that “…s. 39 has not substantially altered the role of the judiciary from their
function under the common law regime. The provision does not entirely exclude judicial review
of the determination by the Clerk that the information is a Cabinet confidence. A court may review
the certificate to determine whether it is a confidence within the meaning provided in s. 39(2) or
analogous categories, or to determine if the certificate was issued in bad faith. Section 39 does not, in
and of itself, impede a court’s power to remedy abuses of process”: 2002 SCC 57, [2002] 3 S.C.R. 3
at para. 60.
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6.4.2 A New National Security Privilege for Deliberations of the National
Security Advisor
Statutory recognition should be given to a new national security privilege.
Following the model of Cabinet confidentiality under section 39 of the Canada
Evidence Act, this new national security privilege would extend only to material
prepared to assist the deliberations of the NSA and to material that recorded the
NSA’s deliberations.
The new privilege would not protect material already held by CSIS, the RCMP
or other agencies if that material was not specifically prepared for the NSA. It
would also not protect material prepared by these agencies after a decision by
the NSA or after the NSA disclosed the information onwards.
The privilege would also apply to work done by the NSA to evaluate and oversee
the effectiveness of Canada’s national security activities and systems. This would
help to ensure that gaps in Canada’s security were not publicized while remedial
steps were being taken to close them.
The justification for this new privilege might in some respects be even stronger
than that for privileges related to Cabinet confidences. The privilege relating
to the NSA would be justified by the need to promote candour in discussions
and because all the material covered by the privilege would relate to national
security. Under the proposed amendments to section 19 of the CSIS Act
discussed in Chapter IV, CSIS would submit to the NSA only the intelligence that
CSIS believed should not be disclosed to the police – for example, intelligence
relating to particularly sensitive ongoing national security investigations.
The NSA would also produce and receive material that was relevant to the
oversight of national security activities and that might reveal gaps and
weaknesses in security systems. The new privilege would give the NSA the
freedom to receive the broadest range of candid views and consider the greatest
range of options. Because the privilege would not apply to original materials held
by the various agencies, including CSIS and the RCMP, or to material disclosed
by the NSA, intelligence that would be disclosed to the police would not be
shielded by the privilege. This would protect an accused’s right to disclosure
and to make full answer and defence. However, sections 37 or 38 of the Canada
Evidence Act could still be used to try to prevent intelligence that has been given
to the police from being disclosed.
The new national security privilege should apply once the Clerk of the Privy
Council certifies that the information relates to confidences that were shared
with the NSA or to deliberations of the NSA. As under the 2002 Supreme Court
of Canada decision in Babcock,52 judicial review would be possible, but only
on narrow grounds. Judicial review would be permitted if the information had
52
Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3.
�Chapter VI: The Role of Privileges in Preventing the Disclosure of Intelligence
previously been disclosed, or to address allegations that the certification was
not made for a bona fide reason authorized by the Canada Evidence Act.
The new privilege should not apply if it was determined that the accused’s
innocence was at stake and if there was no other manner to obtain the
information.53 It is unlikely, however, that this situation would arise, because the
privilege would not apply to information that the NSA disclosed to police or
prosecutors. The normal rules of disclosure dictated by Stinchcombe for material
held by the Crown, and by O’Connor for material held by CSIS, would apply.54
Any attempt to secure access to the deliberations of the NSA would require
the Attorney General of Canada to invoke the national security confidentiality
provisions of section 38 of the Canada Evidence Act. For this reason, only courts
that have jurisdiction under section 38 should have the ability to determine
whether the conditions of this new privilege are satisfied.55 This limitation
should not thwart the important work of SIRC because it would still have full
access to information held by CSIS.
Even if no new privilege is legislated, material prepared for the NSA and the
deliberations of the NSA would likely be protected from disclosure under the
national security confidentiality provisions in section 38 of the Canada Evidence
Act. Most of the information prepared for and produced by the NSA has a
strategic and policy character. For this reason, it is unlikely that a court would
conclude that the information has a significant benefit for the correct disposal
of litigation. As a result, it would be very unlikely that the court would order
the material disclosed. Even so, a new class privilege is necessary to provide
maximum certainty to CSIS, and to other agencies providing information to the
NSA, that the information will not be subject to disclosure.
Recommendation 18:
The Canada Evidence Act should be amended to create a new national security
privilege, patterned on the provision for Cabinet confidences under section 39
of the Act. This new class privilege should apply to documents prepared for the
National Security Advisor and to the deliberations of the office of the National
Security Advisor.
53
54
55
Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252.
See Chapter V for discussion of these disclosure requirements.
Although the Supreme Court has not decided this issue, it has suggested that all bodies with
jurisdiction to compel the production of information would also be able to determine whether a
s. 39 claim is valid: Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3 at paras. 42-43.
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�VOLUME THREE
THE RELATIONSHIP BETWEEN INTELLIGENCE
AND EVIDENCE AND THE CHALLENGES OF
TERRORISM PROSECUTIONS
CHAPTER VII: JUDICIAL PROCEDURES TO OBTAIN NON-DISCLOSURE
ORDERS IN INDIVIDUAL CASES
7.0 Introduction
The legislative limits on disclosure and the privileges discussed in the previous
two chapters are general limits on disclosure, rather than limits based on the
facts of a particular case. Although general limits provide the greatest advance
certainty that information will be protected from disclosure, they also run the
risk of shielding too much or too little information.
New legislative limits on disclosure, or the dramatic expansion of privileges, will
attract litigation. This will include Charter challenges claiming that the measures
deprive the accused of the right to make full answer and defence, as well as
litigation to help define the scope of the new provisions. The litigation will be
carried out through pre-trial motions that will prolong terrorism prosecutions.
Yet, even then, the core issue – whether a particular item of intelligence must
be disclosed to ensure a fair trial – may not be resolved. The apparent certainty
that general legislative limits on disclosure and new privileges could provide
for security intelligence agencies and informers would be eroded by such
litigation.
A fairer and more efficient alternative would be to improve the mechanisms for
judges to review secret intelligence and to decide on the facts of the particular
case whether the intelligence needs to be disclosed to ensure a fair trial. Such
reviews are a standard and important part of terrorism prosecutions throughout
the world. They recognize that police forces and intelligence agencies must work
more closely to prevent terrorism, but that the disclosure of secret intelligence to
the accused in a subsequent prosecution may threaten ongoing investigations,
secret sources and promises of confidentiality made to allies.
However, deciding on the facts of a particular case whether to allow disclosure
will produce less certainty for CSIS about whether or not its intelligence will
be disclosed. As suggested in Chapter II, CSIS should be permitted to disclose
sensitive intelligence to the National Security Advisor (NSA) and then to try to
convince the NSA that the risk of that intelligence being disclosed through a
prosecution is not acceptable.
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Intelligence that is shared with the police might not always need to be disclosed
to the accused in a terrorism prosecution. Under Stinchcombe, the Crown is
required to disclose all relevant information and non-privileged information in
its possession to comply with section 7 of the Charter, whether the information
is inculpatory or exculpatory, and whether or not it is going to be presented
as evidence. In some cases, the intelligence may contain material that will be
valuable and perhaps even vital to the accused’s defence.
Two main vehicles allow judges to make non-disclosure orders on the facts of
the particular case. Section 37 of the Canada Evidence Act1 allows officials to
obtain a judicial non-disclosure order on the basis that the disclosure would
harm a specified public interest. The protection of confidential informants and
ongoing investigations might qualify here. Section 38 allows the Attorney
General of Canada to obtain a judicial non-disclosure order on the basis that
disclosure of the material would harm national security, national defence or
international relations. In both cases, the judge must consider the competing
interests in disclosure and non-disclosure. In both cases, judges can place
conditions on disclosure, including partial redaction (editing) and the use
of summaries and admissions of facts, in order to reconcile the competing
interests in disclosure and secrecy.
In 2001, the Anti-terrorism Act2 amended sections 37 and 38 of the Canada
Evidence Act. These amendments attempted to encourage the pre-trial resolution
of disputes about disclosure of sensitive information. The amendments also
allowed judges to be more creative in reconciling the competing interests in
disclosure and non-disclosure. Finally, the amendments gave the Attorney
General of Canada a new power to issue a certificate that would block court
orders to disclose material from a foreign entity or material relating to national
defence or national security.3
Even with these amendments to the Canada Evidence Act, concerns remain
about the workability of the procedures used to determine which material
must be disclosed in a terrorism prosecution, and the form of the disclosure.
For example, section 38 issues must be decided in the Federal Court even when
they arise in a criminal trial before a superior court. Early in 2009, a judge in the
ongoing “Toronto 18” terrorism prosecution held that the exclusive jurisdiction
of the Federal Court to make decisions under section 38 about the disclosure of
national security information threatens the viability of the trial process and the
rights of the accused.4
1
2
3
4
R.S.C. 1985, c. C-5.
S.C. 2001, c. 41.
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 38.13 [Canada Evidence Act].
Colin Freeze, “Ontario judge declares secrecy law unconstitutional,” The Globe and Mail (January 16,
2009).
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
Proceedings under sections 37 and 38 occur separately from underlying criminal
proceedings even if the section 37 and 38 proceedings involve questions about
the information that must be disclosed to the accused. Both the accused and
the Crown can appeal decisions made under sections 37 and 38 before, or even
during, a terrorism trial. Such appeals have fragmented and prolonged terrorism
prosecutions.
Sections 37 and 38 of the Canada Evidence Act are both likely to play critical roles
in most terrorism prosecutions. They will be used to reconcile the competing
demands for secrecy and disclosure and, as a result, the competing interests
of security intelligence and law enforcement agencies. These procedures must
be as efficient and fair as possible and should incorporate the best practices
employed by other democracies that have had more extensive experience than
Canada with terrorism prosecutions. The public needs to have confidence that
Canada has sufficient competence to undertake the difficult task of prosecuting
terrorism cases fairly and efficiently. As a recent report of the International
Commission of Jurists stated, acts of terrorism “…are all very serious criminal
offences under any legal system. If the criminal justice system is inadequate to
the new challenges posed, it must be made adequate.”5
7.1 Section 37 of the Canada Evidence Act
Section 37 of the Canada Evidence Act allows ministers or officials to ask the
courts to prevent disclosure on the basis of a “specified public interest.” Section
37 leaves the range of specified public interests open-ended. The interests have
included the following: the protection of informers; ongoing investigations,
including the location of watching posts and listening devices; the location of
witnesses in witness protection programs; and investigative techniques.6 Section
37 may be of particular importance in preventing the disclosure of information
that might identify CSIS informers who are not otherwise protected by police
informer privilege.
Hearings under section 37 can involve the Crown making submissions in the
absence of the accused, the public, or both.7 The Crown can also present material
to the judge, even if it might not otherwise be admissible under Canadian law,
as long as the material is reliable and appropriate.8 Hearings under section 37
can consume considerable time, since they may often require submissions by
the parties and judicial inspection of each disputed document.
5
6
7
8
Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and
Human Rights, p. 123, online: International Commission of Jurists, Eminent Jurists Panel <http://ejp.icj.
org/IMG/EJP-Report.pdf> (accesed July 30, 2009) [Assessing Damage, Urging Action].
Robert W. Hubbard, Susan Magotiaux and Suzanne M. Duncan, The Law of Privilege in Canada
(Aurora: Canada Law Book, 2006), ch. 3.
R. v. Meuckon (1990), 57 C.C.C. (3d) 193 (B.C.C.A.); R. v. Pilotte (2002), 163 C.C.C. (3d) 225 (Ont. C.A.); R. v.
Pearson (2002), 170 C.C.C. (3d) 549 (Que. C.A.).
Canada Evidence Act, s. 37(6.l).
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Section 37 applications can be decided by the Federal Court or by a provincial
superior court.9 If, as with most terrorism prosecutions, the trial is held in a
provincial superior court, the trial judge hears the section 37 application.10
Section 37(5) allows the superior court judge11 to balance the competing public
interests in disclosure and non-disclosure and to make various orders relating
to disclosure. The orders can include placing conditions on disclosure, such as
requiring the use of a part or a summary of the information or a written admission
of facts relating to the information. This is done to limit the harm to the public
interest that might flow from more extensive disclosure. The judge might order
material to be admitted in a modified form, such as with passages deleted, even
if material altered in this way would not be admissible under ordinary rules of
evidence.12
Under section 37.3, the trial judge can make any order that he or she considers
appropriate to protect the right of the accused to a fair trial, including a stay,
or termination, of all or part of the proceedings. Although a superior court trial
judge is allowed to make all the relevant decisions under section 37, the Canada
Evidence Act does not clearly state that the judge may reconsider and revise a
non-disclosure order as the trial evolves.
The ability of the trial judge to reconsider and re-evaluate non-disclosure orders
is critical to the efficiency and fairness of terrorism trials. A non-disclosure order
that appeared appropriate at the beginning of a trial may later cause unfairness
to the accused. For example, evidence introduced as the trial progresses
may make it clear that information that was initially not disclosed would now
greatly assist the accused. Other democracies place considerable emphasis on
permitting a trial judge to re-consider an initial non-disclosure order as the trial
evolves. Where appropriate, judges in Canada should also revise decisions about
disclosure, using their inherent powers over the trial process.
The Crown or the accused in a criminal case can appeal a decision made under
section 37 of the Canada Evidence Act to the provincial court of appeal,13 with
the possibility of a further appeal to the Supreme Court of Canada.14 The
Government may decide to appeal if it loses an application for non-disclosure,
and the accused may do so if not satisfied by the disclosure ordered by the
judge.
9
10
11
12
13
14
Canada Evidence Act, s. 37(3).
Canada Evidence Act, s. 37(2).
Provincial court trial judges do not have jurisdiction to make determinations under s. 37, but may make
evidentiary rulings: R. v. Richards (1997), 115 C.C.C. (3d) 377 (Ont. C.A.); R. v. Pilotte (2002), 163 C.C.C.
(3d) 225 (Ont. C.A.); Canada (Attorney General) v. Sander (1994), 90 C.C.C. (3d) 41 (B.C.C.A.). The division
of proceedings between the provincial and superior courts in criminal proceedings may cause
problems, but these are not likely to arise in terrorism prosecutions, which will generally be conducted
in superior courts.
Canada Evidence Act, s. 37(8).
Canada Evidence Act, s. 37.1.
Canada Evidence Act, s. 37.2.
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
Because section 37 proceedings are considered to be separate from trial
proceedings, the appeal rights relating to section 37 are separate from other
appeals relating to the trial. The normal practice in criminal trials is to allow
appeals only at the conclusion of a trial. Courts have recognized that appeal rights
relating to section 37, which may be exercised before the trial is completed, can
disrupt and fragment the trial.15 If the Crown appeals a determination relating
to section 37, it is possible that delay will be charged against the Crown when
determining whether the accused’s Charter right to a trial within a reasonable
time has been violated.16
Besides appealing a determination under section 37, the Crown has other
options. The Crown can stay or abandon the proceedings. As well, if an order
to disclose under section 37 relates to national security or national defence, or
relates to information obtained in confidence or in relation to a foreign entity,
the Attorney General of Canada may personally issue a non-disclosure certificate
under section 38.13 of the Canada Evidence Act. This power is discussed in
greater detail below.
7.2 Section 38 of the Canada Evidence Act
A non-disclosure order can also be obtained under section 38 of the Canada
Evidence Act. That section requires participants in proceedings to notify the
Attorney General of Canada if they are required, or expect, to cause the
disclosure of information that the participant believes is “sensitive information”
or “potentially injurious information.”17 Once notice is given, the information
cannot be disclosed unless the Attorney General of Canada or the Federal Court
authorizes disclosure.18
A Federal Court judge, not the trial judge, must hear the matter ex parte and
give the Attorney General of Canada the opportunity to make submissions.19
The judge may consider material that would not ordinarily be admissible under
the laws of evidence, provided that the material is reliable and appropriate.20
The process to decide national security confidentiality matters under section
38 has three stages. The first stage determines whether the material is relevant
information that must be disclosed under Stinchcombe.21 If the information is
not relevant, it need not be disclosed.
15
16
17
18
19
20
21
R. v. McCullough, 2000 SKCA 147, 151 C.C.C. (3d) 281.
R. v. Sander (1995), 98 C.C.C. (3d) 564 (B.C.C.A.).
Canada Evidence Act, s. 38.01.
Canada Evidence Act, s. 38.02.
Canada Evidence Act, s. 38.11.
Canada Evidence Act, s. 38.06(3.1).
“The first task of a judge hearing an application is to determine whether the information sought to
be disclosed is relevant or not in the usual and common sense of the Stinchcombe rule, that is to
say in the case at bar information, whether inculpatory or exculpatory, that may reasonably be useful
to the defence”: Canada (Attorney General) v. Ribic, 2003 FCA 246, 185 C.C.C. (3d) 129 at para. 17.
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If the information is relevant, a second stage involves determining whether the
disclosure of relevant information would harm international relations, national
defence or national security. In making this determination, the judge gives
“considerable weight” to the submissions of the Attorney General of Canada
“…because of his access to special information and expertise.”22 The judge
may authorize disclosure of the information, unless he or she determines that
disclosure would injure international relations, national defence or national
security.23
If a determination is made that the disclosure of the relevant information would
cause one of these harms, a third stage is involved, with the judge balancing the
competing public interests in disclosure and non-disclosure.24 The judge has a
range of options. These include the authority to place conditions on disclosure,
such as requiring the use of part, or a summary, of information, or a written
admission of facts relating to the information, in order to limit the injury caused
by the disclosure. Orders can be made to allow the admission of redacted
(edited) documents, even though they would not normally be admissible under
the laws of evidence.25
The parties may appeal a decision made under section 38 to the Federal Court of
Appeal.26 The Court is required to conduct a review if an affected party was not
allowed to make representations at the section 38 hearing.27 The Supreme Court
of Canada may grant leave to appeal further.28 These appeal and review rights
treat section 38 proceedings as distinct from the trial proper, and fragment and
delay criminal prosecutions.
The Attorney General of Canada may also personally issue a certificate under
section 38.13 prohibiting disclosure of information that was obtained from a
foreign entity or that relates to national security or national defence, even
though the material is subject to a court order of disclosure. This is the ultimate
protection against the disclosure of intelligence.
Section 38.131 gives a right to appeal the Attorney General’s certificate, but the
right is limited to determining whether the information that is the subject of the
certificate in fact relates to national security or national defence or was received
from, or relates to, a foreign agency.
The trial judge in any subsequent criminal trial must respect Federal Court nondisclosure orders and any non-disclosure certificate issued by the Attorney
22
23
24
25
26
27
28
Canada (Attorney General) v. Ribic, 2003 FCA 246, 185 C.C.C. (3d) 129 at paras. 18-19.
Canada Evidence Act, s. 38.06(1).
Canada (Attorney General) v. Ribic, 2003 FCA 246, 185 C.C.C. (3d) 129 at para. 21.
Canada Evidence Act, s. 38.06(4).
Canada Evidence Act, s. 38.09.
Canada Evidence Act, s. 38.08.
Canada Evidence Act, s. 38.1.
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
General of Canada. However, the trial judge has the discretion under section
38.14 to make any order that he or she considers appropriate to protect the
right of the accused to a fair trial. This could include a stay of proceedings or an
order dismissing specified counts of the indictment or information.
7.2.1 The Importance of Section 38 Proceedings in Terrorism
Investigations and Prosecutions
Although formally characterized as separate from the criminal trial, section
38 proceedings are intimately connected to terrorism prosecutions. A 2006
Memorandum of Understanding (MOU) between the RCMP and CSIS implicitly
recognizes the importance of section 38 in protecting intelligence from
disclosure. It states:
The CSIS and the RCMP recognize that information and intelligence provided by
the CSIS to the RCMP may have potential value as evidence in the investigation
or prosecution of a criminal offence. In these cases, the parties will be guided by
the following principles:
a. both parties recognize that the CSIS does not normally collect
information or intelligence for evidentiary purposes;
b. both parties recognize that once information or intelligence
has been disclosed by the CSIS to the RCMP, it may be deemed,
for purposes of the prosecution process, to be in the control
and possession of the RCMP and the Crown and thereby subject
to the laws of disclosure whether or not the information is actually
used by the Crown as evidence in court proceedings;
c. Sections of the Canada Evidence Act will be invoked as required to
protect national security information and intelligence.29
The MOU incorrectly suggests that CSIS information and intelligence can
be made subject to disclosure under Stinchcombe only when it is in the
possession of the Crown. CSIS intelligence can, as in the Air India trial, be
subject to disclosure under Stinchcombe. An accused can also seek production
and disclosure of information from CSIS even if it is classified as a third party
that is not subject to Stinchcombe disclosure requirements. Section 38 would
be the main vehicle used to protect CSIS information, both where the accused
relies on O’Connor to seek production and disclosure from CSIS as a third party
and where the accused seeks disclosure under Stinchcombe.
Section 38 proceedings will be important in most terrorism prosecutions for
protecting CSIS information from disclosure. Most terrorism prosecutions will
feature attempts to obtain disclosure of CSIS material. Terrorism prosecutions
for acts that have an international component may also see attempts to obtain
29
Public Production 1374: 2006 RCMP/CSIS MOU, Art. 21.
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disclosure of material that CSIS and other Canadian agencies have obtained
from foreign partners. The recently completed Khawaja prosecution featured
multiple section 38 applications, as well as appeals to the Federal Court of
Appeal and a leave application to the Supreme Court of Canada.30
Section 38 issues can arise at any point in a terrorism trial, with accompanying
delays, especially if the accused attempts to call evidence that will involve secret
intelligence, perhaps in the hope that the intelligence could exonerate the
accused or cast doubt on the reliability or legality of the state’s evidence. Section
38 proceedings and appeals in the middle of one criminal trial by jury led to
a mistrial.31 Concern has been expressed that mistrials could result if Federal
Court proceedings become necessary in the ongoing “Toronto 18” terrorism
prosecutions.32
7.2.2 Avoiding Section 38 Proceedings in the Air India Prosecutions
Although section 38 proceedings are likely to be a feature of contemporary
terrorism prosecutions, they are not inevitable. The parties to the Air India
prosecutions, for example, managed to avoid section 38 proceedings.
Reyat was convicted of manslaughter in 1991, and an appeal was dismissed in
1993.33 Although some evidence of CSIS surveillance of Reyat and Parmar at the
time of the Duncan Blast was introduced as evidence, it was not critical to the
Crown’s case because physical evidence was available linking Reyat to the bomb
used in the Narita blast. Other incriminating evidence also existed, including
admissions obtained from Reyat by the police. The Parmar Tapes that remained
were disclosed to the accused without the Attorney General of Canada objecting
under what is now section 38.
In the Malik and Bagri proceedings that concluded in 2005, the lawyers for the
accused were given access to CSIS material, after giving an undertaking that they
not disclose the evidence to others, including their clients, without permission.
In a joint report on the trial, the lead prosecutor, Robert Wright, and defence
counsel, Michael Code, wrote that defence counsel were able to inspect CSIS
material “…while the documents remained in the possession of CSIS, and in
almost every instance defence counsel were able to conclude that the material
was not relevant to the proceedings.”34
30
31
32
33
34
For an account of the extensive s. 38 litigation in this case, see Kent Roach, “The Unique Challenges
of Terrorism Prosecutions: Towards a Workable Relation Between Intelligence and Evidence” in Vol. 4 of
Research Studies: The Unique Challenges of Terrorism Prosecutions, pp. 234-245 [Roach Paper on
Terrorism Prosecutions].
See the history leading up to the mistrial as discussed in R. v. Ribic, 2004 CanLII 7091 (ON S.C.) at paras.
3-9.
Colin Freeze, “Ontario judge declares secrecy law unconstitutional,” The Globe and Mail (January 16,
2009).
R. v. Reyat, 1991 CanLII 1371 (BC S.C.), affirmed (1993), 80 C.C.C. (3d) 210 (B.C.C.A.).
Exhibit P-332: Robert Wright and Michael Code, “Air India Trial: Lessons Learned,” Part III.
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
In his testimony before the Commission, Geoffrey Gaul, Director of the Criminal
Justice Branch of the British Columbia Ministry of the Attorney General, stated
that the Crown in the Malik and Bagri prosecution was prepared to litigate section
38 issues if necessary, but that it “…would have been a two-front approach”35
that would have been “clearly daunting.”36
Bill Turner, a senior CSIS employee, now retired, described the defence counsel
undertakings not to disclose information as “a band-aid approach” that emerged
from a conflict. The conflict arose because the defence wanted to explore the
possibility that the Government of India was involved in the bombing, and the
Government of Canada was unwilling to reveal information about “…what the
Government of India is doing here in Canada….We will call it ‘national security’
and we wouldn’t budge.” Turner explained that, “…rather than go through a
stay of proceedings and rather than go to Federal Court and hold the process
up further,” the “band-aid” solution “…was for the defence and the Crown and
CSIS to sit down with all of this vetted material and CSIS would lift the vetting
so the defence could look at it all and decide if they needed anything for the
defence…. It was a band-aid approach, because we had both drawn a line in the
sand. There was clearly a section 7 [Charter issue] of rights, disclosure rights and
there was clearly a national security interest.”37
Code testified about what he viewed as the desire by all parties to avoid “…this
horrendous Federal Court procedure of going to Ottawa,” involving “a documentby-document litigation model”38 and educating a Federal Court judge about a
case on which the trial judge had already spent a year.39
7.2.3 Other Experiences with Section 38 of the Canada Evidence Act
Although proceedings under section 38 were avoided in the Air India trials,
they have been used in other prosecutions. The use of section 38 in the middle
of the R. v. Ribic trial derailed the prosecution and resulted in a new trial. That
prosecution related to the taking of a Canadian soldier hostage in Bosnia. After
the Crown had presented its case to the jury over eight days in October, 2002,
the accused proposed to call witnesses to give testimony that involved secret
information. Although the jury agreed to a postponement while the issue was
litigated in the Federal Court under section 38, the trial judge declared a mistrial
on January 20, 2003, when it became apparent that an appeal to the Federal
Court of Appeal would take place.40
35
36
37
38
39
40
Testimony of Geoffrey Gaul, vol. 88, December 4, 2007, p. 11378.
Testimony of Geoffrey Gaul, vol. 88, December 4, 2007, p. 11391.
Testimony of Bill Turner, vol. 66, October 25, 2007, pp. 8323-8324.
Testimony of Michael Code, vol. 88, December 4, 2007, p. 11385.
Testimony of Michael Code, vol. 88, December 4, 2007, p. 11387.
See the history leading up to the mistrial as discussed in R. v. Ribic, 2004 CanLII 7091 (ON S.C.) at paras.
3-9.
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The new trial in Ribic ended in a conviction. A key factor in holding that the
accused’s right to a trial in a reasonable time was not violated was that the
accused himself had initiated the section 38 procedure by calling defence
witnesses to provide evidence that could involve secret information.41 In many
cases, the Attorney General of Canada will pursue a section 38 order, and in such
cases the prosecution might be held responsible for any resulting trial delays.
In 2001, amendments to section 38 of the Canada Evidence Act, enacted as part
of the Anti-terrorism Act, attempted to respond to the delay problem revealed
in Ribic by requiring all justice system participants, including the accused, to
provide early notice to the Attorney General of Canada of an intention to cause
the disclosure of sensitive information. The notification requirement, contained
in section 38.01, is designed to allow the Attorney General of Canada to take
steps to resolve national security confidentiality matters before trial and to
reduce the risk that “…proceedings will come to a halt while the matter [is]
transferred to the Federal Court for a determination.” However, the Government
can still invoke the Canada Evidence Act provisions during a hearing.42
Even if an accused does not give proper early notice under section 38.01, it would
be difficult to prevent the accused from calling evidence that may involve secret
material or from seeking to cross-examine Crown witnesses in areas that may
provoke secrecy claims. The accused’s right to make full answer and defence
could be at stake. For example, the accused might argue that the need to call
or to cross-examine on the evidence became apparent only after the Crown set
out its case in court. A terrorism trial could be disrupted, and perhaps aborted, if
national security confidentiality issues are raised in the middle of the trial, then
litigated in the Federal Court, with the possibility of appeal to the Federal Court
of Appeal and further appeal to the Supreme Court of Canada. If the accused
was being tried by jury, a mistrial would be quite likely, as in Ribic.
Even extensive litigation and appeals of section 38 issues before trial at the
insistence of the Attorney General of Canada could delay the trial, raising the
possibility that the trial judge will declare a permanent stay of proceedings
because of unreasonable delay. As discussed in Chapter IX, terrorism prosecutions
already sorely tax the stamina of judges and jurors, even without the addition of
section 38 litigation in the Federal Court, possibly followed by appeals.
The Ribic case demonstrates how an accused might use the two-court approach
– dealing with the trial in one court and with section 38 issues in the Federal
Court – to sabotage a terrorism trial by trying to call evidence that leads to
section 38 litigation in Federal Court. Once an accused seeks information and
the Attorney General of Canada refuses to disclose it, litigation in the Federal
Court is inevitable, with appeals likely to the Federal Court of Appeal and the
Supreme Court of Canada. This litigation will delay and disrupt the main trial and
41
42
R. v. Ribic, 2008 ONCA 790 at paras. 138, 147.
Department of Justice Canada, “The Anti-terrorism Act, Amendments to the Canada Evidence Act (CEA)”,
online: Department of Justice Canada <http://canada.justice.gc.ca/eng/antiter/sheet-fiche/cea-lpc/
cea2-lpc2.html#b> (accessed May 26, 2009).
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
might result in its collapse. Particularly in a jury trial, it is probable that a mistrial
will be declared if there is a serious delay. The Attorney General of Canada has to
face the dilemma of agreeing to the disclosure of secret information that should
not be disclosed in order to prevent the trial from “going off the rails.”
Other proceedings in the Ribic prosecution highlighted the complexities, delay
and duplication of effort caused by the present two-court approach. Ribic
involved multiple pre-trial applications before specially-designated Federal
Court judges to deal with section 38 issues.43 Under section 38, the Federal Court
can make rulings only about one privilege – national security confidentiality. All
other decisions about privileges that may shield information from disclosure,
including informer privilege, must be made by the trial judge. Even on national
security confidentiality issues, the Federal Court’s decision does not end the
matter; if the Federal Court makes a non-disclosure order, the trial judge must
determine whether to provide a remedy to protect the accused’s right to a fair
trial.
In Ribic, the Federal Court used an innovative approach to reconcile the
competing demands for disclosure and secrecy by providing that the two
witnesses whose testimony the accused wanted would be asked questions by a
security-cleared lawyer. To protect against the inadvertent disclosure of secret
information, an edited transcript of the testimony would be disclosed for use at
trial.44 However, the transcript was effectively re-litigated before the trial judge,
who had to decide whether the edited transcript could be admitted at trial. The
trial judge allowed the edited transcript to be used as evidence, in large part
because the transcript related to contextual evidence called by the accused and
was not central to the allegations about the accused’s conduct.45 This approach
will not easily be duplicated in other cases involving secret information and at
its best would simply constitute another “band-aid.”
In Ribic, a disclosure issue that had been litigated and appealed in the Federal
Court46 was effectively re-litigated before the trial judge. A subsequent appeal
by the accused to the Ontario Court of Appeal, on the basis that the trial judge
should have stayed proceedings because of limited disclosure and trial delay,
was only recently dismissed.47
The section 38 procedure requires two different courts to decide similar and
closely related issues. Any non-disclosure or partial non-disclosure order made
by the Federal Court under section 38 will effectively have to be re-litigated
before the trial judge. This re-litigation is required because section 38.14 of
the Canada Evidence Act requires the trial judge to accept the Federal Court
43
44
45
46
47
See, for example, Nicholas Ribic and Her Majesty the Queen and Canadian Security Intelligence Service,
2002 FCT 290 and Canada (Attorney General) v. Ribic, 2002 FCT 839, 221 F.T.R. 310.
Ribic v. Canada (Attorney General), 2003 FCT 10, 250 F.T.R. 161.
R. v. Ribic, [2005] O.J. No. 2628 (Sup. Ct.).
The Supreme Court refused leave to appeal.
R. v. Ribic, 2008 ONCA 790. The Ontario Court of Appeal noted that four Federal Court judges had
already found that the disclosure process was fair to the accused: see para. 92.
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order, but also requires the trial judge to determine if any order is appropriate
to protect the accused’s right to a fair trial in light of the non-disclosure order.
Section 38.14 protects an accused’s right to a fair trial. However, it places trial
judges in the difficult position of deciding, on incomplete information, whether
the right to a fair trial has been compromised by a Federal Court non-disclosure
order.
An Ontario Superior Court judge who presided at a 1986 terrorism prosecution
involving the predecessor to section 38 made it clear that the two-court
procedure placed him in a very difficult position. He indicated that “…the trial
judge may well be on the horn of a real dilemma if, in his judgment, inspection
is needed.”48 He elaborated:
Blame must be laid squarely at the feet of Parliament which
unwittingly may well have created an impasse in certain
cases by resorting to two courts instead of one and assigning
tasks to each of them that collide or run at cross-purposes
to one another…. There appears to be nothing left to do
at trial except to consider the impact of the Federal Court
determination on the exigencies of a fair trial…. Parliament
could not have intended to give the Federal Court jurisdiction
nor, in my opinion, could such jurisdiction be exercised by
the Federal Court in such a way as to operate in derogation
of the duty imposed on trial judges, as courts of competent
jurisdiction, to enforce the rights of the accused in the course
of the trial, rights that are now constitutionally entrenched.49
The prosecution was allowed to proceed even though no court had examined
the CSIS surveillance material about the accused. Such an approach would likely
not be acceptable today, given the increased emphasis on the accused’s rights
to disclosure and to make full answer and defence.
7.2.4 Procedures Equivalent to Section 38 in Other Countries
Canada lags behind other counties, including Australia, the United Kingdom and
the United States, in establishing an efficient and fair process to enable judges
to determine whether intelligence must be disclosed to ensure a fair trial.
A paper prepared for the Commission by Professor Robert Chesney outlined
some of the creative approaches that American trial judges have used to
avoid the “disclose or dismiss” dilemma. These approaches included allowing
foreign security agents to testify under pseudonyms, presenting depositions by
video links and disclosing intelligence material to defence counsel who have
undertaken not to share the material with clients.
48
49
R. v. Kevork, Balian and Gharakhanian (1986), 27 C.C.C. (3d) 523 at 536 (Ont. H.C.J.).
(1986), 27 C.C.C. (3d) 523 at 538, 540 (Ont. H.C.J.).
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
In Australia, the United Kingdom and the United States, the trial judge is allowed
to examine secret information to determine whether its disclosure is necessary
for a fair trial. In his study for the Commission, Professor Roach concluded that
all three countries “…allow the trial judge to decide questions of non-disclosure.
This allows issues of non-disclosure to be integrated with comprehensive pre-trial
management of a range of disclosure and other issues. Even more importantly,
it allows a trial judge who has seen the secret material to revisit an initial nondisclosure order in light of the evolving issues at the criminal trial….”50
Australian legislation enacted in 2004 makes the trial judge responsible for
reconciling the competing interests in secrecy and disclosure and for managing
issues of national security confidentiality, including requiring defence lawyers
to obtain security clearances as a condition of access to secret information. This
legislation was enacted after a thorough review of options by the Australian
Law Reform Commission.51
The European Court of Human Rights held that the ability of the trial judge to
see the information and “…to monitor the need for disclosure throughout the
trial, assessing the importance of the undisclosed evidence at a stage when
new issues were emerging,”52 was critical to the fairness of the United Kingdom’s
system of public interest immunity, which has come into play in many UK
terrorism prosecutions. The ability of the trial judge to monitor throughout
the trial whether disclosure is necessary helps to ensure fair treatment of the
accused. This procedure also promotes an efficient trial process by allowing
trial judges to make provisional non-disclosure orders, secure in the knowledge
that these orders can be revisited as the trial evolves if fairness for the accused
requires it. In contrast, the Federal Court often decides disclosure issues under
section 38 before the trial has started and before all the issues that will emerge
at the trial are known. As well, the trial judge cannot later revise a non-disclosure
order under section 38. The trial judge must abide by the order.
The Canadian two-court system has been the subject of international criticism,
including in a recent report by the Eminent Jurists Panel on Terrorism, Counterterrorism and Human Rights:
In Canada, the trial judges, who must ultimately decide
whether to proceed or order a stay of proceedings, are
arguably placed in a difficult position of having to assess the
potential prejudice of non-disclosure upon the rights of the
accused, without seeing the withheld material.53
50
51
52
53
Roach Paper on Terrorism Prosecutions, p. 286.
National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth.); Australian Law Reform
Commission, Keeping Secrets: The Protection of Classified and Security Sensitive Information, online:
Australasian Legal Information Institute <http://www.austlii.edu.au/au/other/alrc/publications/
reports/98> (accessed May 28, 2009).
Rowe and Davis v. United Kingdom, (2000) 30 E.H.R.R. 1 at para. 65. See also R. v. H; R. v. C, [2004] UKHL 3
at para. 36, emphasizing that a trial judge’s decision not to disclose information because of public
interest immunity concerns “…should not be treated as a final, once-and-for-all, answer but as a
provisional answer which the court must keep under review.”
Assessing Damage, Urging Action, p. 153.
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The report also observed that the United Nations Human Rights Committee
expressed concerns that the section 38 procedure might violate the right to a
fair trial, a right protected by Article 14 of the International Covenant on Civil and
Political Rights.54
7.2.5 Submissions to the Commission about the Two-Court System under
Section 38
The Attorney General of Canada supported the current two-court approach,
primarily because the Federal Court “…is comfortable with national security
issues, already has the expertise and already has the required secure facilities.”55
The Attorney General warned that taking these matters away from the Federal
Court “…could lead to inconsistent applications.”56 The Attorney General also
suggested that it was too soon to determine if the two-court process was a
failure and stated that the section 38 process was not linked directly to the
trial process.57 The Attorney General also submitted that the person holding
that office would continue to weigh the competing interests for and against
disclosure after the Federal Court had ruled on disclosure.58
Other witnesses, parties and intervenors before the Commission were almost
unanimous in concluding that the current two-court system was inadequate
and could cause problems.59 George Dolhai, of the Public Prosecution Service
of Canada, noted that this approach was not used in the United States,
Britain or Australia.60 Jack Hooper, an experienced former CSIS official, stated
that the present system was not “…a particularly useful bifurcation…. I think
it has an alienating effect on provincial Crown and provincial judges who sit
in the weighty position of having to rule on evidence put before the court.”61
Luc Portelance of CSIS testified that the “…bifurcated system is complex,
complicated and probably contributes to a loss of momentum in the case.”62
Former RCMP Commissioner Giuliano Zaccardelli stated that legislative change
was required “…because using two courts, two judges, simply is not effective
and efficient and it has to change. I see no reason why we cannot have one
judge who, wherever the case is being heard, for that judge – to say that a judge
could look at everything other than this, it’s almost insulting to the judge as far
as I’m concerned.”63
54
55
56
57
58
59
60
61
62
63
Assessing Damage, Urging Action, p. 153.
Final Submissions of the Attorney General of Canada, Vol. III, February 29, 2008, para. 92 [Final
Submissions of the Attorney General of Canada].
Final Submissions of the Attorney General of Canada, Vol. III, para. 93.
Final Submissions of the Attorney General of Canada, Vol. III, para. 90.
Final Submissions of the Attorney General of Canada, Vol. III, para. 110.
Testimony of John Norris, vol. 86, November 30, 2007, pp. 11127-11129; Testimony of Gérard Normand,
vol. 86, November 30, 2007, p. 11129; Testimony of Kent Roach, vol. 86, November 30, 2007, pp. 1113111132.
Testimony of George Dolhai, vol. 86, November 30, 2007, p. 11136.
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6247.
Testimony of Luc Portelance, vol. 88, December 4, 2007, p. 11507.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11071.
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
The Criminal Lawyers’ Association also addressed the section 38 process:
The section 38 process is unworkable. The need to
go to a different court in a different location, before
or during the trial slows down the proceedings. The
Federal Court is at a disadvantage in not having the full
context of the evidence and providing that context is
time-consuming for the parties. The trial judge is in the
best position to make the necessary determinations
under section 38.
Appellate review by the Federal Court of Appeal
also creates the same issues - multiplication of
interlocutory proceedings and determinations made
without full context.
The lack of criminal law experience of Federal Court
judges is also an issue.
Senior superior court judges who preside over
terrorism cases should have the power to deal with
section 38 claims (either by amending section 38 or
by designating the judges as ex officio members of the
Federal Court and allowing the proceedings to take
place in locations other than Ottawa.)64
The Air India Victims’ Families Association also supported moving away from
the two-court approach. To preserve the important role of trial by jury, the
Association suggested that the court hearing section 38 disclosure issues should
be the provincial superior court.65
After the Commission hearings ended, the Hon. Patrick LeSage and Michael Code
produced a report on long and complex criminal cases. They recommended that
federal, provincial and territorial ministers of justice should consider modifying
the section 38 procedure “…in order to eliminate the delays caused in major
terrorism prosecutions by the bifurcation of the case and by interlocutory
appeals.”66 Drawing on their many years of experience with the criminal justice
system, LeSage and Code explained that almost every terrorism prosecution
will involve attempts to obtain disclosure and to call evidence from CSIS:
64
65
66
From Yolanda’s summary but can’t find in submissions
AIVFA Final Written Submission, pp.131, 168.
Patrick Lesage and Michael Code, Report of the Review of Large and Complex Criminal Case Procedures
(November 2008), p. 93, online: Ontario Ministry of the Attorney General <http://www.attorneygeneral.
jus.gov.on.ca/english/about/pubs/lesage_code/lesage_code_report_en.pdf> (accessed December 5,
2008) [Lesage and Code Report on Large and Complex Criminal Case Procedures].
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As a result of this intersection between CSIS and RCMP
investigations in the context of terrorism offences, national
security privilege claims pursuant to s. 38 of the Evidence Act
are now a common feature of these cases. These privilege
claims raise very difficult case management problems. …
Bifurcation of criminal trials and interlocutory appeals
in criminal proceedings have both been regarded as an
anathema for a very long time because they fragment and
delay the criminal trial process.67
LeSage and Code contemplated that experienced superior court trial judges
could decide section 38 issues as part of the trial process and that their decisions
would be subject to ordinary appeal procedures, but only after the completion
of the trial.
7.3 Is the Two-Court Approach Sustainable
The present two-court system used in deciding section 38 applications is
out of step with systems in other democracies. The two-court structure has
demonstrated unequivocally that it is a failure.
It is not likely that the two-court system can be saved. One unworkable
suggestion was to facilitate communication between the Federal Court judge
and the trial judge by amending section 38.05. However, the trial judge would
not be permitted to examine the sensitive information in the first place.
Section 38.14 recognizes that the trial judge has a duty to protect the accused’s
right to a fair trial. The trial judge also has remedial powers under section 24(1)
of the Charter.68 However, under the current system, the trial judge does not
have the information that is required to craft the appropriate remedy under
section 38.14 or under section 24(1) of the Charter.
The trial judge can apply a range of remedies in response to a non-disclosure
order, including a stay of proceedings. However, the trial judge has no authority
to impose what will often be the most appropriate remedy – revision of the
Federal Court’s non-disclosure order in light of changed circumstances.
The problems of the current two-court system are real and serious. A trial judge
might permanently halt a terrorism prosecution under section 38.14 as a result
of a non-disclosure order made by the Federal Court. As Geoffrey O’Brian,
Director General of Operations at CSIS, testified, “…the issue is not necessarily,
can you protect that information? The issue, it seems to me, is: having protected
that information, is it fatal to the prosecution? And that’s the issue I think that
perhaps is the tough one.”69
67
68
69
Lesage and Code Report on Large and Complex Criminal Case Procedures, pp. 91-92.
R. v. Ribic, 2008 ONCA 790 at para. 113.
Testimony of Geoffrey O’Brian, vol. 17, March 6, 2007, p. 1582.
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
Another harm of the current two-court system is that a trial judge who has not
seen the secret intelligence that is the subject of a Federal Court order might
wrongly conclude that the accused does not need that secret intelligence to
make full answer and defence. The result would be an unfair trial.
If a trial judge were allowed to examine the secret information that was the
subject of an earlier non-disclosure order, the judge might determine that the
information would not be helpful to the accused and that, as a result, the nondisclosure order did not make the trial less fair. If the judge determined that
the undisclosed intelligence might be of some use to the accused, the judge
could revise an initial non-disclosure order to allow parts of the intelligence to
be disclosed to the accused or to require the prosecution to make admissions to
compensate for the non-disclosure.
The Attorney General of Canada has submitted that the rationale for the
two-court system is the expertise that has been developed by specially
designated judges of the Federal Court in deciding matters of national security
confidentiality. The need for special expertise to make decisions about national
security confidentiality has, in the view of the Commission, been exaggerated.
The first step in the section 38 process as applied to criminal prosecutions is
to determine whether the material in dispute is “relevant” in accordance with
Stinchcombe. This is a matter traditionally decided by trial judges in criminal
cases.
If the trial judge determines that the information is relevant, a second step
is necessary to determine if disclosing the information would cause harm to
international relations, national security or national defence. This is a matter
currently within the jurisdiction of specially designated Federal Court judges.
The practice at this stage is to accept the Attorney General’s claim of injury
so long as it is reasonable.70 If trial judges were allowed to address this issue,
they, like Federal Court judges, could be assisted by the ex parte submissions
of the Attorney General of Canada about the risks flowing from disclosing the
information in question.
Finally, the critical step under section 38 is to reconcile the competing demands
for disclosure and non-disclosure. The Federal Court of Appeal has expressed a
preference that this process be governed by the innocence-at-stake exception,71
a test well within the competence of trial judges, who face it frequently.
In addition, section 38.06 encourages judges to devise creative solutions, using
partial redactions and admissions of fact. Trial judges would be in the best
position to devise such tailored remedies on the basis of all the facts in the
case before them. As discussed earlier, if Federal Court judges devise the same
types of tailored remedies, they will effectively have to be re-litigated before
the trial judge, who retains ultimate control over how evidence is presented
70
71
Canada (Attorney General) v. Ribic, 2003 FCA 246, 185 C.C.C (3d) 129 at paras. 18-19.
Canada (Attorney General) v. Ribic, 2003 FCA 246, 185 C.C.C (3d) 129 at para. 27.
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at trial. Allowing trial judges to make disclosure decisions would avoid this relitigation.
It is incorrect to suggest, as the Attorney General of Canada did in his Final
Submissions to the Commission, that section 38 proceedings are not linked
directly to the trial process. Section 38 procedures are used to resist production
and disclosure of intelligence to the accused. In principle, section 38 involves an
assertion of a privilege that limits the amount of material that the accused and
the trial court can have at their disposal at trial. In that sense, section 38 privilege
claims are similar to other privilege claims advanced in a trial proceeding.
Moreover, under section 38.14, the trial judge plays a critical role in deciding
whether a remedy for the accused is necessary to compensate for a Federal
Court order for non-disclosure or modified disclosure. The trial judge is left with
the ultimate responsibility of dealing with the consequences of any decision
by the Federal Court about disclosure. At the cost of repetition, the section 38
process affects both the efficiency and the fairness of terrorism prosecutions
and is therefore clearly and directly linked to the trial process.
The Attorney General of Canada argued that allowing trial judges to make
section 38 determinations could lead to inconsistent applications of the law.
This does not seem to be a problem in other countries that allow trial judges
to decide disclosure issues similar to those addressed by section 38. Canadian
trial judges, by virtue of their oaths of office, would follow authority in the
existing jurisprudence, as it has been developed by the Federal Court and by
the Federal Court of Appeal. The Criminal Code72 provides a good example of
how federal legislation is applied across the country by superior and provincial
courts with little inconsistency among jurisdictions. In any event, the Supreme
Court of Canada can resolve any inconsistencies that may arise among courts in
interpreting section 38.
The Supreme Court has yet to interpret section 38. This is in part because
section 38 issues have often arisen in appeals that are launched before or, as
in Ribic, during criminal trials. In all these cases, the Court has refused leave to
appeal. Granting leave to appeal would have caused even more delay in an
already strained trial process. The Court may be better placed to offer guidance
about the interpretation of section 38 if this is raised, as with other issues about
disclosure and privilege, on appeal after a trial is completed.
In summary, there are serious and irremediable disadvantages to the current
two-court system for resolving issues of national security confidentiality. The
Federal Court does not have full information about the trial, while the criminal
trial judge does not have full information about the secret information that is
subject to a non-disclosure order. Section 38 litigation, as it is currently, delays
and disrupts terrorism prosecutions, while leaving the trial judge to decide
what, if any, remedy is necessary to compensate the accused for the lack of
disclosure. The trial judge may have to rely on blunt remedies, including a stay
72
R.S.C. 1985, c. C-46.
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
of proceedings that will permanently end the prosecution. The trial judge is not
able to revise the non-disclosure order, even though this power is considered
to be critical in other countries that deal with the same issues of reconciling
competing interests in disclosure and secrecy.
Canada’s allies trust trial judges to make decisions about the disclosure of
secret information, including information provided by allies. In addition, trial
judges regularly deal with informer privilege issues where an inadvertent leak
of information could result in an informer’s death.
7.4 Which Court is Best Suited to Conduct Terrorism Trials and
Decide Issues of National Security Confidentiality
The Commission has concluded that a one-court approach to deciding section
38 issues is necessary. The next step is to decide which court – the regular criminal
courts or the Federal Court – is best suited to conduct terrorism trials and to
make section 38 determinations. The Commission recommends that it should
be the regular criminal courts. The Federal Court would retain jurisdiction, as
would the superior courts, to hear section 38 applications, but the Federal Court
would cease its involvement as soon as the trial begins.
There has been some interest in the United States in creating a national security
court to try terrorism cases. However, the US, the United Kingdom and Australia
have all had significant successes with the regular criminal courts conducting
terrorism prosecutions that involve secret information. The Canadian Bar
Association, in its submissions, strongly argued against a special court system
for terrorism offences.73 Both before and after 9/11, attempts in other countries
to have an adjudicative body dedicated only to terrorism trials have not been
particularly successful.74
In his testimony, Jack Hooper expressed a preference for the Federal Court to
conduct terrorism trials because of the Court’s expertise in national security
matters.75 However, Bruce MacFarlane noted in his paper for the Commission
that there is great value in having terrorism trials tried in the regular criminal
courts.76
The Federal Court is a statutory court with many statutory responsibilities of
importance to Canada. When the Federal Court evolved from the Exchequer
Court in 1976, it was never intended that the new Court would have criminal
jurisdiction. Although terrorism trials involve secret information, including
secret information obtained from other countries, they remain criminal trials,
73
74
75
76
Canadian Bar Association, Submission to the Commission of Inquiry into the Investigation of the
Bombing of Air India Flight 182, April 2007, p. 36 [Canadian Bar Association Submission].
See the history of such attempts discussed in Bruce MacFarlane, “Structural Aspects of Terrorist MegaTrials: A Comparative Analysis” in Vol. 3 of Research Studies: Terrorism Prosecutions [MacFarlane Paper
on Terrorist Mega-Trials].
Testimony of Jack Hooper, vol. 50, September 21, 2007, p. 6248.
MacFarlane Paper on Terrorist Mega-Trials.
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raising a host of procedural, evidential and substantive issues which are best
addressed by experienced criminal law judges.
Assigning terrorism trials to the Federal Court might also produce constitutional
difficulties. Roach noted in his paper for the Commission that assigning
terrorism trials to the Federal Court might be challenged as violating the
inherent and constitutionally guaranteed jurisdiction of the provincial superior
courts over what, as in the Air India prosecutions, may essentially be murder
trials.77 He suggested that “…it is better to build national security expertise into
the existing criminal trial courts than to attempt to give a court with national
security expertise but no criminal trial experience the difficult task of hearing
terrorism trials.”78
The preferred solution would be to adopt the practice used in the United States,
the United Kingdom and Australia, which would allow superior court trial judges
to reconcile the competing demands of disclosure and secrecy. Like some other
witnesses, George Dolhai cautioned, but not persuasively, that it was too soon
to change section 38. Still, he agreed that not only the Americans, but also the
British and, most recently, the Australians “…have all seen fit to assign these
complex secrecy issues – to assign them to trial judges as just another issue that
has to be continuously managed before and during trial.”79
One concern was that trial courts would not have the facilities to store and
protect secret information,80 a concern that hardly warrants comment, since
superior courts across the country are already able to offer such protection. As
John Norris, an experienced defence counsel, testified, the trial courts already
handle highly sensitive material that could identify informers and that involve
organized crime.81
Claims by the Attorney General of Canada and by RCMP Commissioner William
Elliott82 that provincial superior court trial judges lack sufficient expertise in
dealing with secret information have no merit. To repeat, much of the section
38 decision-making process turns on matters such as relevance, the right to
make full answer and defence and “innocence-at–stake.” Experienced criminal
trial judges have the expertise to deal with all these issues. As is now done for
Federal Court judges, criminal trial judges, under a reformed section 38 hearing
process, would receive confidential submissions by the Attorney General
of Canada about the harms that disclosing secret information may cause to
national security, national defence or international relations.
77
78
79
80
81
82
Roach Paper on Terrorism Prosecutions, pp. 311-312.
Roach Paper on Terrorism Prosecutions, p. 313.
Testimony of George Dolhai, vol. 86, November 30, 2007, p. 11136. See also Testimony of Andrew Ellis,
vol. 82, November 23, 2007, pp. 10576-10577.
Testimony of Gérard Normand, vol. 86, November 30, 2007, pp. 11134-11135.
Testimony of John Norris, vol. 86, November 30, 2007, p. 11136.
Testimony of William Elliott, vol. 90, December 6, 2007, p. 11811.
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
As is the normal practice, the chief justice of each provincial superior court
would select the judges to hear cases involving section 38 applications.
Appointing experienced trial judges to hear section 38 matters early in the trial
process would promote efficient case management. As Chapter IX suggests,
efficient case management is essential if complex terrorism cases are to
proceed efficiently and fairly to a verdict. Someone must be in charge of the
complex criminal trial process. This includes taking responsibility for decisions
that reconcile the competing demands of secrecy and disclosure, along with
those involving multiple pre-trial motions and voluminous disclosure of other
materials. As in other countries, the best person to take the lead and to ensure
that terrorism prosecutions can be brought to verdict efficiently and fairly is the
trial judge.
Recommendation 19:
The present two-court approach to resolving claims of national security
confidentiality under section 38 of the Canada Evidence Act should be
abandoned for criminal cases. Section 38 should be amended to allow the
trial court where terrorism charges are tried to make decisions about national
security confidentiality. Section 38 should be amended to include the criminal
trial court in the definition of “judge” for the purposes of dealing with a section
38 application that is made during a criminal prosecution.
7.5 Appeals before the Completion of Terrorism Trials
The criminal law normally does not allow the accused or the Crown to appeal
pre-trial and mid-trial rulings until after the completion of a trial. As an example,
the accused cannot appeal a trial judge’s decision that a confession was
voluntary or constitutionally obtained until the completion of the trial. The
same limitations apply to the Crown. The rationale for this traditional policy
against interlocutory appeals, or appeals before the completion of trials, is the
compelling public interest in completing trials in an efficient manner.83 There is
arguably no public interest in allowing appeals mid-way in the trial. With jury
trials, interlocutory appeals might require a completely new trial and a new jury.
Even this would not end the possibility of further appeals under section 38. In
addition, the issues argued under section 38 on an appeal taken before the end
of the trial may have been resolved by the time the trial ends. An appeal on
those issues may turn out to have been unnecessary.
Sections 37.1 and 38.09 of the Canada Evidence Act allow appeals, both by the
accused and by the Attorney General of Canada, from a decision made by a trial
judge under section 37 or by a Federal Court judge under section 38. Sections
83
“The effective and efficient operation of our criminal justice system is not served by interlocutory
challenges to rulings made during the process or by applications for rulings concerning issues which it
is anticipated will arise at some point in the process. A similar policy is evident in those cases which
hold that interlocutory appeals are not available in criminal matters.”: R. v. Duvivier, (1991) 64 C.C.C. (3d)
20 at 24 (Ont. C.A.).
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37.1 and 38.09 allow appeals about the disclosure matters dealt with in these
sections to proceed before a criminal trial starts. They also authorize the appeal
of such issues if they arise during a trial.
In the two criminal prosecutions since 2001 that have involved section 38, the
Federal Court of Appeal heard appeals before the criminal trial was completed.84
The potential for multiple section 38 applications in a terrorism prosecution
means the potential for multiple appeals in turn. These appeals unquestionably
delay the criminal trial, and still further delay will occur if the losing party seeks
leave to appeal to the Supreme Court of Canada and, if successful, has a hearing
before the Court.
The Attorney General of Canada has defended the value of interlocutory appeals
under section 38.09, arguing that they “…maintain the public interest in a trial
proceeding to verdict in a timely manner and, at the same time, may preclude
recourse to the use of a prohibition certificate by the Attorney General of Canada
under section 38.13 of the [Canada Evidence Act].”85 The concern seems to be that
a decision ordering disclosure, if it could not be appealed immediately, might
force the Crown to abandon the prosecution if it did not want to disclose the
information. These arguments, however, ignore the authority of the Attorney
General of Canada to act under section 38.13 where he concludes that disclosure
is contrary to the public interest.
The submission of the Criminal Lawyers’ Association stated that interlocutory
appeals “…inevitably [generate]…excessive delays in the criminal proceedings,
sometimes to the extent where the Charter right to a speedy trial is engaged.”
Code stated in his testimony before the Commission that, “The interlocutory
appeals are anathema…. [T]hey’ve never been allowed in the criminal process
and the fact that section 38 currently provides for interlocutory appeals, in my
opinion, is flatly wrong.”86 A subsequent report by the Hon. Patrick Lesage and
Code recommended that these interlocutory appeals be eliminated.87
The traditional practice of not hearing appeals before the completion of criminal
trials is of long standing and remains sound. Requiring appeals of section 38
matters to await the completion of the trial would allow the appeal court to
make its decision on the basis of the complete record.
If appeals are not permitted until after the completion of the trial, the full record
will then be available to the court to determine whether the accused’s rights
were adversely affected by non-disclosure orders made under sections 37 and
38 or by a prohibition certificate issued by the Attorney General of Canada after
an order to disclose.
84
85
86
87
See Canada (Attorney General) v. Ribic, 2003 FCA 246, 185 C.C.C. (3d) 129; Canada (Attorney General) v.
Khawaja, 2007 FCA 342, 228 C.C.C. (3d) 1; Canada (Attorney General) v. Khawaja, 2007 FCA. 388,
289 D.L.R. (4th) 260.
Final Submissions of the Attorney General of Canada, Vol. III, para. 59.
Testimony of Michael Code, vol. 88, December 4, 2007, p. 11388.
Lesage and Code Report on Large and Complex Criminal Case Procedures, p. 93.
�Chapter VII: Judicial Procedures to Obtain Non-Disclosure Orders in Individual Cases
The Federal Court of Appeal might order disclosure of information that the
Federal Court originally ordered not be disclosed. The Attorney General of
Canada can acquiesce, or can instead prevent the disclosure of the information.
To prevent disclosure, the Attorney General can issue a non-disclosure certificate
under section 38.13. He can also stay a prosecution or assert his fiat under the
Security Offences Act88 and then stay the prosecution.
Section 38.09 authorizes the Federal Court of Appeal to hear appeals of section
38 matters that arise in criminal trials. The Federal Court of Appeal should no
longer hear such appeals. Instead, the Canada Evidence Act should be amended
to authorize only provincial courts of appeal to hear the appeals, and the
appeals should be heard only at the conclusion of the trial. Section 37.1 already
authorizes provincial courts of appeal to hear appeals where an application for
public interest immunity has been made in a criminal trial. Allowing appeals of
section 38 matters to be heard by the same courts would avoid fragmenting the
appeal process. Provincial courts of appeal would then be able to hear appeals
about all the legal issues arising from a terrorism trial, including those relating
to section 38. This proposal to expand the jurisdiction of provincial courts of
appeal would complement the expanded jurisdiction of trial judges, proposed
earlier, to decide section 38 issues in terrorism trials.
Recommendation 20:
In terrorism prosecutions, there should be no interim appeals or reviews of
section 37 or 38 disclosure matters. Appeals of rulings under sections 37 or 38
should not be permitted until after a verdict has been reached. Appeals should
be heard by provincial courts of appeal in accordance with the appeal provisions
contained in the Criminal Code. If not already in place, arrangements should be
made to ensure adequate protection of secret information that provincial courts
of appeal may receive. Sections 37.1, 38.08 and 38.09 of the Canada Evidence
Act should be amended or repealed accordingly.
7.6 Possible Use of Special Advocates in Section 38 Proceedings
Special advocates are lawyers who have received high-level security clearances
and can therefore have access to secret material. They can represent the interests
of individuals in proceedings where the individuals and their lawyers would be
denied access to the secret material. Chapter IV discusses the role of special
advocates in proceedings that challenge the legality and constitutionality of
warrants.
At present, there is a statutory regime for special advocates for proceedings
under the Immigration and Refugee Protection Act.89 This has led to the creation
88
89
R.S.C. 1985, c. S-7.
S.C. 2001, c. 27. The regime for special advocates was introduced by An Act to amend the Immigration
and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to
another Act, S.C. 2008, c. 3.
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of a cadre of security-cleared lawyers with experience in matters involving
national security confidentiality.
Special advocates should have a similar role in proceedings under section 38 of
the Canada Evidence Act. Section 38.11(2) provides that the Attorney General
of Canada may make ex parte representations to a judge. The ex parte nature of
the hearing allows the Attorney General to describe the secret information that
may become the subject of a non-disclosure order and to provide confidential
details about the harms that disclosure might cause.
Although permitted in some situations, typically during an application for a
search warrant, legal proceedings with only one side present before the judge
are not the norm. They depart from basic standards of adjudicative fairness. They
place judges, accustomed to adversarial argument, in a very difficult position.
The interests of the accused and of the judge who decides the matter will be
better served if there is an opportunity, through special advocates, for adversarial
argument about critical matters – such as whether secret information would be
helpful to the accused and whether the claims by the Attorney General about
the possible harms of disclosure are valid.
In addition, special advocates could assist in finding ways to reconcile competing
interests in disclosure and secrecy – for instance, through partial disclosure of
the material.
The Federal Court has appointed security-cleared amici curiae to assist it in recent
proceedings under section 38 of the Canada Evidence Act.90 The availability to
the Court of amici curiae has been cited as one reason why section 38 has been
found to be consistent with the Charter, despite allowing the Attorney General
to make submissions to the judge without the accused present.91
The Attorney General of Canada, in its Final Submissions, recognized the
“inherent discretion” of the Federal Court to appoint an amicus curiae as a legal
expert to assist the court on national security matters. The Attorney General,
however, distinguished the amicus curiae from the special advocate who would
protect the interests of the accused.92 The Attorney General, unhelpfully and
without persuasive submissions, noted the Government’s position that further
study was required before special advocates could be used in section 38
proceedings.93
There has already been extensive study and extensive support for using
special advocates in section 38 proceedings. The House of Commons and
90
91
92
93
Khadr v. Canada (Attorney General), 2008 FC 46, 54 C.R. (6th) 76; Canada (Attorney General) v. Khawaja,
2008 FC 560; Khadr v. Canada (Attorney General), 2008 FC 807.
Canada (Attorney General) v. Khawaja, 2007 FC 463, 280 D.L.R. (4th) 32 at para. 59, affirmed without
reference to special advocates, Canada (Attorney General) v. Khawaja, 2007 FCA 388, 289 D.L.R.
(4th) 260.
Final Submissions of the Attorney General of Canada, Vol. III, para. 51.
Final Submissions of the Attorney General of Canada, Vol. III, para. 53.
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Senate committees that reviewed the operation of the Anti-terrorism Act
both recommended that provision be made for special advocates to provide
adversarial challenges to Government claims under section 38 about the
need for secrecy.94 The Federation of Law Societies of Canada, the Canadian
Bar Association and the Criminal Lawyers’ Association all supported the use of
special advocates in section 38 proceedings.95 The Federation of Law Societies
stressed that the accused’s Charter rights to disclosure and to make full answer
and defence were at stake in section 38 proceedings, and that Canada’s justice
system was based on an adversarial system.96 It cited the statement by Justice
Hugessen of the Federal Court at a recent Montreal conference: “[W]e do not
like this process of having to sit alone hearing only one party, and looking at the
materials produced by only one party….”97
Section 38 proceedings are important matters that implicate the accused’s
rights to disclosure and to make full answer and defence. The judge who
is given the difficult task of reconciling competing interests in secrecy and
disclosure should be assisted by the fully-informed adversarial arguments that
special advocates can offer. Full adversarial argument is particularly necessary
because of the tendency of the Attorney General of Canada to overstate the
need for secrecy. The accused themselves, through their own counsel, should
be permitted to make submissions in section 38 proceedings, although they will
be at a considerable disadvantage because they will not have seen the secret
material or heard the Attorney General’s ex parte arguments about the dangers
of disclosing the secret material.
The special advocates appointed to deal with Immigration and Refugee Protection
Act matters could just as well be used for section 38 proceedings. They already
have security clearances and could be available without delay.
Recommendation 21:
Security-cleared special advocates should be permitted to protect the accused’s
interests during section 38 applications, in the same manner as they are used
under the Immigration and Refugee Protection Act. Either the accused or the
presiding judge should be permitted to request the appointment of a special
advocate.
94
95
96
97
House of Commons Canada, Final Report of the Standing Committee on Public Safety and National
Security, Subcommittee on the Review of the Anti-terrorism Act, Rights, Limits, Security: A Comprehensive
Review of the Anti-terrorism Act and Related Issues, March 2007, p. 81, online: Parliament of Canada
<http://www2.parl.gc.ca/content/hoc/Committee/391/SECU/Reports/RP2798914/sterrp07/sterrp07-e.
pdf> (accessed July 30, 2009); The Senate of Canada, Fundamental Justice In Extraordinary Times:
Main Report of the Special Senate Committee on the Anti-terrorism Act, February 2007, p. 42,
online: Parliament of Canada <http://www.parl.gc.ca/39/1/parlbus/commbus/senate/
Com-e/anti-e/rep-e/rep02feb07-e.pdf> (accessed July 30, 2009).
Submissions of the Federation of Law Societies of Canada, January 31, 2008, p. 2 [Submissions of the
Federation of Law Societies of Canada]; Canadian Bar Association Submission, p. 38; Submissions of the
Criminal Lawyers’ Association, February 2008, pp. 40-41.
Submissions of the Federation of Law Societies of Canada, pp. 7-8.
Submissions of the Federation of Law Societies of Canada, p. 8.
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7.7 The Problems Created by Overstating the Need for Secrecy
The excessive claims about the need for secrecy made by the Attorney General
of Canada, during both this inquiry and during the inquiry into the activities
of Canadian officials in relation to Maher Arar, were discussed in Volume One.
In several recent cases, judges concluded that the Attorney General of Canada
failed to demonstrate that the disclosure of information for which a section 38
non-disclosure order was being sought would harm international relations,
national security or national defence.98 Such findings should not be ignored,
given the deference shown by the courts to claims made by the Attorney
General about the need for secrecy and their willingness to overturn the claims
only if they are unreasonable.99
Canada is a net importer of intelligence and must protect both its secrets
and those of its allies. However, this does not excuse overstating the need for
secrecy. An obsessive and risk-averse “culture of secrecy” is a product of Cold War
assumptions about the overriding importance of secrecy. It is not appropriate
in an age in which terrorism is the primary threat to national security and when
information must be shared more extensively than during the Cold War era in
order to prevent and prosecute terrorism.
Canada’s allies are also being forced to rethink their approaches to secrecy
because of the threat of terrorism. The need for disclosure of “secret” information
has increased. The need in some situations for intelligence to be used as evidence
in terrorism prosecutions has changed the approach of intelligence agencies to
collecting information and sharing it with police agencies.
Exaggerating the need for secrecy is not simply something that makes it more
difficult for commissions of inquiry such as this one to conduct their work:
such exaggeration can threaten public safety. It prevents the sharing among,
and within, governments of information that is necessary to prevent terrorism.
Unnecessary emphasis on the need for secrecy encourages a narrow, “silo”based, approach to national security, leading to the results that have been
witnessed in terrorist attacks.
Overstating the need for secrecy can also impair the viability of terrorism
prosecutions by leading to otherwise unnecessary section 38 applications for
non-disclosure orders. Roach stated that overly broad secrecy claims “…can
delay and fragment terrorism trials through the use of the s. 38 procedure. They
can create the impression that the accused is being denied access to much vital
information and this could even result in a trial judge concluding under s. 38.14
that a remedy was required to protect the accused’s right to a fair trial.”100
98
Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar), 2007 FC 766, 316 F.T.R. 279; Canada (Attorney General) v. Khawaja, 2007 FC 490,
219 C.C.C. (3d) 305.
99 Canada (Attorney General) v. Ribic, 2003 FCA 246, 185 C.C.C. (3d) 129 at paras. 18-19.
100 Roach Paper on Terrorism Prosecutions, p. 195.
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It is particularly disappointing that a pattern of overstating the need for secrecy
has emerged in Canada after 9/11, when Canada’s allies have placed increased
emphasis on sharing information about terrorism. Constantly seeking to protect
secrecy suggests that the Attorney General may not fully appreciate the current
need to share security intelligence and to conduct terrorism prosecutions that
involve that intelligence. Even if Canada’s status as a net importer of intelligence
may require it to be very diligent in protecting the information it receives from
foreign agencies, this is not an excuse for overstating the need for secrecy.
Overstating the need for secrecy may allow some officials to avoid criticism,
embarrassment and difficult decisions, but it carries a heavy cost. In his 2006
report, Commissioner O’Connor warned that excessive claims for secrecy would
endanger the fairness of some proceedings and that they would damage the
Government’s credibility when it claimed secrecy in the future:
[O]verclaiming exacerbates the transparency and procedural
fairness problems that inevitably accompany any proceeding
that can not be fully open because of NSC [national security
confidentiality] concerns. It also promotes public suspicion
and cynicism about legitimate claims by the Government
of national security confidentiality…. I am raising the
issue of the Government’s overly broad NSC claims in the
hope that the experience in this inquiry may provide some
guidance for other proceedings. In legal and administrative
proceedings where the Government makes NSC claims
over some information, the single most important factor in
trying to ensure public accountability and fairness is for the
Government to limit, from the outset, the breadth of those
claims to what is truly necessary. Litigating questionable
NSC claims is in nobody’s interest. Although government
agencies may be tempted to make NSC claims to shield
certain information from public scrutiny and avoid potential
embarrassment, that temptation should always be resisted.101
Unfortunately, Commissioner O’Connor’s warnings about the dangers of
overstating the need for secrecy have not been heeded. This is confirmed by the
experience of this Commission, with the Attorney General of Canada overstating
the need for secrecy. As well, several Federal Court decisions have found that
the Attorney General brought section 38 claims about irrelevant information
and where the Attorney General could not establish that disclosure of the
101 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report
of the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public Works and
Government Services Canada, 2006), pp. 302, 304 [Report of the Events Relating to Maher Arar:
Analysis and Recommendations].
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information would harm national security, national defence or international
relations.102
The practice of overstating the need for secrecy is relevant to the policy mandate
of this Commission because the practice can prevent the sharing of information
that is necessary for effective cooperation between departments and agencies
in terrorism investigations and because it brings added, and unnecessary,
complexity to terrorism prosecutions. Changes in practice and in legislation are
required.
7.7.1 Towards a More Disciplined and Harm-based Approach to Claims of
Secrecy
One cause of the practice of overstating the need for secrecy is the use of broad
terms in section 38 of the Canada Evidence Act to identify the scope of the secret
information involved and the harms that disclosure can cause. The duty to notify
the Attorney General of Canada about the possibility of disclosure applies to
two broad categories of information:
• “potentially injurious information,” defined as “…information
of atype that, if it were disclosed to the public, could injure
international relations or national defence or national security;” and
• “sensitive information,” defined as “…information relating to
international relations or national defence or national security
that is in the possession of the Government of Canada, whether
originating from inside Canada or outside Canada, and is of a type
that the Government of Canada is taking measures to safeguard.”
The definition of “potentially injurious information” is sufficiently circumscribed.
However, the definition of “sensitive information” is too broad. The definition of
sensitive information can apply to information that Canada is taking measures
to safeguard – for example, information relating to national security – whether
or not it is reasonable to safeguard that information. The definition can apply to
information that, even if disclosed, could not cause harm.
Section 38 is designed to prevent harm to international relations, national
defence or national security that can be caused by the disclosure of information.
These are extremely broad and vague terms. Courts have attempted to define
these terms. Justice Noël of the Federal Court has examined issues relating
to definitions at length, noting that “national security” means “…at minimum
the preservation of the Canadian way of life, including the safeguarding of
the security of persons, institutions and freedoms in Canada.”103 He described
102 Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar), 2007 FC 766, 316 F.T.R. 279; Canada (Attorney General) v. Khawaja, 2007 FC 490,
219 C.C.C. (3d) 305.
103 Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar), 2007 FC 766, 316 F.T.R. 279 at para. 68.
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“national defence” as including “…all measures taken by a nation to protect itself
against its enemies” and “a nation’s military establishment,” while “information
injurious to international relations” was referred to as “…information that if
disclosed would be injurious to Canada’s relationship with foreign nations.”104
These attempts to define the vague statutory terms have tended to make the
terms even broader and more vague. In short, there are limits to what can be
achieved through definitions of inherently broad and vague terms.
It would be helpful for Parliament to put some flesh on the bare bones of section
38 and provide some concrete examples of particular harms to international
relations, national defence and national security. Jim Judd, Director of CSIS at
the time of his testimony, stated that section 38 was used mainly to protect
secret methods of investigation, information received from foreign authorities
that was subject to caveats, and risks to sources and CSIS employees.105
In its Final Submissions, the Attorney General of Canada suggested that
“…[i]n practical terms, intelligence information relating to international
relations, national defence or national security information may include
information that reveals or tends to reveal: the identity of a confidential
source of information; targets of an investigation; technical sources of
information; methods of operation/investigative techniques; the identity
of covert employees; telecommunications and cipher systems (cryptology);
confidential relationship with a foreign government/agency.”106 This list
is long, but it is more helpful than vague references to national security,
national defence and international relations.
There is much to be said for a practical approach that focuses on concrete
harms caused by the disclosure of secret information rather than on the vague
generalities of harm to national security, national defence or international
relations. Even if the list of concrete manifestations of harms was not exhaustive,
it would help to guide and to limit the Attorney General of Canada’s claims of
national security confidentiality. It would also help to define the scope of the
range of security classifications within government generally. Finally, it would
assist judges to make decisions under section 38 of the Canada Evidence Act.
As is the case with the CSIS Act107, there is a need to reconsider when to claim
secrecy, in order to accommodate today’s threat environment where terrorism,
not foreign espionage, is the main threat. As the description of the Air India
investigation in this report makes clear, obsession with the need for secrecy
prevented the exchange of information between agencies in circumstances
highly relevant to the destruction of Flight 182.
104
105
106
107
2007 FC 766, 316 F.T.R. 279 at paras. 61-62.
Testimony of Jim Judd, vol. 90, December 6, 2007, pp. 11861-11862.
Final Submissions of the Attorney General of Canada, Vol. III, para. 44.
R.S.C. 1985, c. C-23.
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7.8 Evolving National Security Confidentiality Jurisprudence
The jurisprudence about national security confidentiality is starting to
acknowledge the need for increased exchanges of information to prevent and
prosecute terrorism. The “third party rule” prohibits an agency that receives
confidential information from a third party from disclosing the information
without the third party’s consent. This rule evolved to recognize the importance
of requesting the third party to amend restrictions that it placed on disclosure.
Canada must respect the caveats that its allies place on disclosing secret
information that they share with Canada. In his report, Commissioner O’Connor
stressed that caveats are important and should be respected. Commissioner
Iacobucci’s recent report also reached this conclusion. However, Canada is
not without a remedy. It can ask that caveats be lifted to facilitate a terrorism
prosecution in Canada. Commissioner O’Connor wrote:
Caveats should not be seen as a barrier to information sharing,
especially information sharing beyond that contemplated
on their face. They can easily provide a clear procedure for
seeking amendments or the relaxation of restrictions on the
use and further dissemination of information in appropriate
cases. This procedure need not be time-consuming or
complicated. With the benefit of modern communications and
centralized oversight of information sharing within the RCMP,
requests from recipients should be able to be addressed in an
expeditious and efficient manner.108
Canada has adequate tools, including non-disclosure orders under section 38.06
of the Canada Evidence Act, non-disclosure certificates issued by the Attorney
General of Canada under section 38.13 and stays of prosecution, to ensure that
the caveats are respected.
Justice Mosley of the Federal Court recognized the importance of the third party
rule in promoting “…the exchange of sensitive information between Canada
and foreign states or agencies.” He stated that, under the rule, Canada should
not release information or even acknowledge its source without the consent
of the original provider. He noted that, nevertheless, the third party rule was
“…not all encompassing….[I]t is not open to the Attorney General to merely
claim that information cannot be disclosed pursuant to the third party rule, if
a request for disclosure in some form has not in fact been made to the original
foreign source.”109 These statements recognize the importance of asking allies to
consider lifting caveats to allow the further disclosure of secret information. Such
requests are particularly important because the circumstances that originally
led the third party to restrict disclosure – such as a concern that disclosure
108 Report of the Events Relating to Maher Arar: Analysis and Recommendations, p. 339.
109 Canada (Attorney General) v. Khawaja, 2007 FC 490, 219 C.C.C. (3d) 305 at paras. 145-146.
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might compromise an ongoing intelligence operation of the third party – may
disappear by the time a Canadian terrorism prosecution begins.
Justice Mosley also recognized that the third party rule should not apply “…
where a Canadian agency is aware of information prior to having received it from
one or more foreign agencies” or where the information is in the public domain
and can be disclosed “…so long as it is the public source that is referenced.”110
The requirement that the originator of secret information be asked to modify
a caveat, and that the third party rule should not apply to information that
Canada has obtained independently or that is already in the public domain, are
important changes to the third party rule.
Unfortunately, there are signs that the practices of agencies and of the Attorney
General of Canada have not fully accepted this evolution of the third party
rule in their approach to secrecy. This was illustrated when an affidavit was
introduced in a recent case stating that, “…if the RCMP were to seek consent to
disclose the information in this case, the RCMP’s commitment to the third-party
rule may be questioned as disclosure would be sought for a purpose other than
law enforcement, and therefore outside the general accepted parameters for
seeking consent.”111
Requests to amend caveats in fact affirm Canada’s commitment to the third party
rule by acknowledging that disclosure is not allowed without the originating
party’s consent. A third party that provided the information to Canada could
refuse to amend the caveat, and Canada would honour that request. In short, it
does not hurt to ask, and it is necessary to do so.
Another part of the national security confidentiality jurisprudence is evolving to
reflect the changed threat environment. There is increasing judicial skepticism
about arguments that innocuous pieces of information should not be disclosed
because of the “mosaic effect.” The mosaic effect describes a belief that, by
assembling into a “mosaic” bits of information that are innocuous by themselves,
a hostile party might acquire more comprehensive knowledge that can be used
to harm national security. In a recent case, the Attorney General of Canada
relied on an affidavit by a CSIS officer that claimed that, “…in the hands of an
informed reader, seemingly unrelated pieces of information, which may not
in and of themselves be particularly sensitive, can be used to develop a more
comprehensive picture when compared with information already known by
the recipient or available from another source.”112 However, the lack of evidence
that this has occurred left this Commission skeptical about the validity of the
“mosaic effect” concept.
110 2007 FC 490, 219 C.C.C. (3d) 305 at para. 147.
111 As described in Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar), 2007 FC 766, 319 F.T.R. 279 at para. 72.
112 As quoted in Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar), 2007 FC 766, 319 F.T.R. 279 at para. 83.
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Other countries seem more reluctant than Canada has been to date to restrict
disclosure on the basis of the “mosaic effect” argument. Canadian courts are
now becoming more reluctant to accept the mosaic effect as the sole reason
for refusing the disclosure of information. Justice Mosley concluded that, “…
by itself, the mosaic effect will usually not provide sufficient reason to prevent
the disclosure of what would otherwise appear to be an innocuous piece of
information. Something further must be asserted as to why that particular piece
of information should not be disclosed.”113 If the Attorney General of Canada
wants to restrict disclosure on the grounds that disclosure would harm national
security, he is entitled to do so.
The current Federal Prosecution Service Deskbook chapter on national security
confidentiality has apparently not been revised since 2000.114 The Director of
Public Prosecutions should revise this material to reflect the developments
in the case law that were described earlier. In particular, the revisions should
reflect the call for Canada to request third parties to lift caveats restricting the
disclosure of information, rather than allowing Canada simply to rely on the
original caveat. The revisions should also note that the mosaic effect should not
be the sole basis for a national security confidentiality claim. More generally,
the Attorney General of Canada should exercise independent judgment when
making secrecy claims and not be swayed by the various agencies.
The Attorney General of Canada should avoid overly broad claims of harm to
national security. As Commissioner O’Connor stressed, making overly broad
secrecy claims serves nobody’s interests.115 Over-classification of information –
giving a security classification that is higher than warranted – and overstating
the need for secrecy actually increase the threat to national security by making
it more difficult to share vital information.
The Air India investigation demonstrated how excessive secrecy impeded the
state in preventing terrorism. Claims of secrecy also make terrorism prosecutions
more difficult. Increased discipline is necessary in making secrecy claims.
The Director of Terrorism Prosecutions – a position proposed in Chapter III –
should play a central role in handling claims of national security confidentiality.
Lawyers from the Director’s office would be in a position to see the problem
in the context of the complex relationship between intelligence and evidence
and the difficult trade-offs between secrecy and disclosure. They could offer
continuity of legal advice.
The Director of Terrorism Prosecutions should be in a position to understand
the perspective of CSIS, with its frequent concerns about the disclosure of
113 Canada (Attorney General) v. Khawaja, 2007 FC 490, 219 C.C.C. (3d) 305 at para. 136. See also Canada
(Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation
to Maher Arar), 2007 FC 766, 319 F.T.R. 279 at para. 84.
114 As suggested by the Table of Contents, online: Department of Justice Canada <http://www.justice.
gc.ca/eng/dept-min/pub/fps-sfp/fpd/toc.html> (accessed July 30, 2009).
115 Report of the Events Relating to Maher Arar: Analysis and Recommendations, p. 304.
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intelligence, as well as the perspective of the RCMP and other police forces
that need admissible evidence to support prosecutions. The Director should be
able to understand how overly broad claims of secrecy can hinder a terrorism
prosecution. This appreciation of the larger picture may be lacking under the
present system, where one group of lawyers represents the Attorney General of
Canada in making section 38 claims, and another group – federal or provincial
– conducts prosecutions.
Whichever official makes national security confidentiality claims on behalf of
the Attorney General of Canada should exercise independent judgment in
order to limit the potential for overly broad claims by respective agencies. Such
claims must be made in a manner that respects the Attorney General’s tradition
of pursuing the public interest.116
7.9 The Ultimate Responsibility of the Attorney General of Canada
with Respect to Disclosure of Intelligence
Several witnesses testified about the uncertainty created by the combination
of broad disclosure rules and the lack of jurisprudence under section 38 of the
Canada Evidence Act. Former RCMP Commissioner Giuliano Zaccardelli testified
that this uncertainty affected the RCMP’s dealings with its partners, and that
that he “totally” agreed that “CSIS has every right to be concerned about what
happens when they release some information and it goes into the disclosure
pipeline because none of us can control it; that’s a legitimate concern.” He
added that the lack of a guarantee also affected relations with international
partners, “…which we need more and more every day because the threats we
face transcend all of us…whether they be in the national security area or in
the organized crime area.”117 An earlier RCMP Commissioner, Norman Inkster,
similarly testified that, in his experience, the RCMP could not give “iron-clad”
guarantees of non-disclosure, and that some foreign agencies decided that
section 38 was simply not a sufficient guarantee that information they supplied
would be protected from disclosure.118
There is a vehicle to protect against disclosure. The Attorney General of Canada
has the authority under section 38.13 of the Canada Evidence Act to issue a
certificate personally prohibiting the disclosure of information, even in the
event that a judge has made an order for disclosure. This provision was added in
2001 by the Anti-terrorism Act, and is subject to limited judicial review.119
The personal certificate of the Attorney General is the ultimate protection
against the disclosure of intelligence. The certificate places responsibility for
116
117
118
119
Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372.
Testimony of Giuliano Zaccardelli, vol. 86, November 30, 2007, p. 11037.
Testimony of Norman Inkster, vol. 81, November 22, 2007, pp. 10329-10330.
A single judge of the Federal Court of Appeal hears applications for an order varying or cancelling
the certificate. The judge cancels the certificate if he or she determines that none of the information
was obtained in confidence from or in relation to a foreign entity or to national defence or national
security: Canada Evidence Act, ss. 38.131(1), (4), (9).
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protecting secrets on the shoulders of an accountable official who can strike his
or her own balance between the demands of secrecy and disclosure.
Although the Attorney General’s authority to issue a certificate has generated
controversy, the certificate has value as a safeguard that allows the Attorney
General to prevent the disclosure of intelligence against the wishes of a foreign
government. Neither CSIS nor the RCMP can provide that kind of guarantee.
When deciding whether to issue a non-disclosure certificate, the Attorney
General can consult the National Security Advisor and other officials. However,
the Attorney General must decide independently whether the public interest
requires a non-disclosure certificate.
No Attorney General of Canada has yet issued a non-disclosure certificate
under section 38.13. It is understandable that the Attorney General will use this
extraordinary power cautiously. The Attorney General should consider using
this certificate when it is necessary to honour promises made to allies that
intelligence will not be disclosed.
Recommendation 22:
The Attorney General of Canada, through the proposed Director of Terrorism
Prosecutions, should exercise restraint and independent judgment when
making claims under section 38 of the Canada Evidence Act and avoid using
overly broad claims of secrecy.
Recommendation 23:
The Federal Prosecution Service Deskbook and other policy documents that
provide guidance about making secrecy claims should be updated to encourage
the making of requests to foreign agencies to lift caveats that they may have
placed on the further disclosure of information. These documents should
also be updated to reflect the evolution of national security confidentiality
jurisprudence. In particular, the Deskbook should direct prosecutors to be
prepared to identify the anticipated harms that disclosure would cause,
including harms to ongoing investigations, breaches of caveats, jeopardy to
sources and the disclosure of secret methods of investigations. The Deskbook
should discourage reliance solely on the “mosaic effect” as the basis for making
a claim of national security confidentiality.
�VOLUME THREE
THE RELATIONSHIP BETWEEN INTELLIGENCE
AND EVIDENCE AND THE CHALLENGES OF
TERRORISM PROSECUTIONS
CHAPTER VIII: MANAGING THE CONSEQUENCES OF DISCLOSURE:
WITNESS AND SOURCE PROTECTION
8.0 Introduction
The terms of reference for the Commission of Inquiry into the Investigation of the
Bombing of Air India Flight 182 require the Commissioner to make findings and
recommendations with respect to “…whether existing practices or legislation
provide adequate protection for witnesses against intimidation in the course of
the investigation or prosecution of terrorism cases.”1
The analysis that addresses this part of the Commission’s mandate is included
in this volume because of the critical importance that witness protection plays
in terrorism prosecutions.2 In addition, protecting witnesses from intimidation
is an important means to improve the relationship between secret intelligence
and public evidence. The adequacy of witness protection is often influential in
deciding whether secret human sources should testify and provide evidence
in public trials. Witness protection may also be necessary where identifying
information about an informer is disclosed, even when that informer does not
testify.
The terms of reference do not call for the Commissioner to reach conclusions
specifically about the intimidation of witnesses involved in the investigation of
the bombing of Air India Flight 182, and this report does not do that. However,
the Commission received evidence on this point, and this evidence provided
the background for the assessment of the challenges of witness protection in
terrorism prosecutions.
The requirements for witness protection may create the impression that the
witness is the beneficiary. In fact, it is the members of the public who benefit. This
1
2
Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Terms of
Reference, P.C. 2006-293, para. b(v).
Professor Yvon Dandurand prepared a paper on this topic for the Commission: “Protecting Witnesses
and Collaborators of Justice in Terrorism Cases” in Vol. 3 of Research Studies: Terrorism Prosecutions
[Dandurand Paper on Protecting Witnesses]. Professor Bruce Hoffman also touched on intimidation
of witnesses and witness protection in his testimony and in a paper he prepared for the Commission:
“Study of International Terrorism” in Vol. 1 of Research Studies: Threat Assessment RCMP/CSIS Cooperation [Hoffman Paper on International Terrorism].
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is particularly true with terrorism, where murder and mayhem are indiscriminate.
It is principally to protect innocent Canadians that witness protection must be
as efficient and secure as possible. If Canada can improve witness protection
measures, those with information vital to public safety will be more likely to
disclose it and, when necessary, testify.
8.1 Terminology
Several terms are used in the legal and social sciences literature to describe
individuals who help authorities with investigations and prosecutions. These
terms are used imprecisely, confusing the discussion about the status and
rights of the individuals, the type of assistance they are providing and the
extent of their need for protection from retaliation. Broad statutory definitions
can add further confusion. For example, a witness is defined for the purpose
of the Witness Protection Program Act as both a person who has agreed to give
evidence and a person who has already given information, as well as any close
relative who may require protection.3
The commonly described “informer” could be one of several different
participants in the justice system:
• A person who hears about a terrorist plot and passes the
information to police (a police informer) or intelligence authorities,
but does not testify at a subsequent trial. This individual can also be
called a “source;”
• A criminal or other individual directed by the proper authorities to
infiltrate an organization (police agent) and perhaps try to influence
events (possibly becoming an agent provocateur4);
• A material witness5 – a witness who can testify to material facts,6 as
well as someone considered a “crucial” witness;7 and
• An individual who eventually testifies at trial as a witness.
In this chapter, the term “informer” is used interchangeably with “source.” An
informer refers to an individual who provides information to authorities, but
who does not qualify as a police agent, agent provocateur, material witness or
witness at trial.
3
4
5
6
7
Section 2 of the Witness Protection Program Act, S.C. 1996, c. 15 [Witness Protection Program Act]
defines a “witness” as: (a) a person who has given or has agreed to give information or evidence,
or participates or has agreed to participate in a matter, relating to an inquiry or the investigation
or prosecution of an offence and who may require protection because of risk to the security of the
person arising in relation to the inquiry, investigation or prosecution, or (b) a person who, because of
their relationship to or association with a person referred to in paragraph (a), may also require
protection for the reasons referred to in that paragraph.
R. v. Scott, [1990] 3 S.C.R. 979 at 996.
R. v. Scott, [1990] 3 S.C.R. 979 at 996.
Lemay v. The King, [1952] S.C.R. 232 at 242.
As was “Billy Joe” in R. v. Khela, [1995] 4 S.C.R. 201.
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There is a need for precision when referring to individuals who provide
information, since different rules apply depending on the nature of the
individual’s involvement. The identity of a police informer cannot be disclosed
to an accused in a criminal trial because of the “police informer privilege”
exception in criminal law. The only time this privilege does not apply is when
the innocence of the accused is at stake.8 However, if the person is actually
operating under the direction of the police, the person is then a police agent, not
an informer, and the person’s identity would, subject to some exceptions, have
to be disclosed. Similarly, the identity of an agent provocateur and a material
witness generally need to be disclosed. As discussed in Chapter VI, it is not clear
that a CSIS source enjoys the benefit of police informer privilege.
This chapter focuses on witnesses who are expected to testify and whose
identity will normally be disclosed. In some cases, however, sources who do not
testify may also need protection because of the risk that they can be identified
by their adversaries. In addition, protection may be necessary as a precautionary
measure because it may not be clear whether the identity of the source will
eventually be protected by police informer privilege.
8.2 Why Witness Protection
A failure to provide adequate protection for witnesses threatens their safety
and, sometimes, their lives. It discourages others from helping intelligence or
police agencies. In the end, poorly designed witness protection measures can
rob the justice system of crucial assistance.
Witness protection, both for witnesses who testify and for sources who provide
information, is examined here. The focus on both witnesses and sources is
necessary to ensure that sources can sometimes be developed into witnesses
able to provide evidence in terrorism prosecutions. The examination of both
witnesses and sources is also necessary to ensure that valuable sources are not
lost because of ineffective attempts to have them testify. It may be possible for
a source developed by CSIS to become a witness in a terrorism prosecution, and
such transitions can be seen as part of the intelligence/evidence relationship
discussed throughout this volume.
Witness protection that encourages people with information to come forward
involves physical protection against retribution and other measures designed to
protect and comfort them while under witness protection. This enhances their
trust in intelligence and police agencies and creates an environment where
important information is likely to flow more freely to the authorities. Witness
protection also involves developing a “culture of security” within the institutions
that reflects an awareness of the real risks to those who assist the authorities in
guarding against terrorism.9
8
9
See Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252 at paras. 27-30 and Section 8.4.3.
Testimony of Anne-Marie Boisvert, vol. 69, October 30, 2007, pp. 8771-8773.
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Early witness protection programs in Canada were designed to deal with
informers and witnesses in organized crime cases.10 Too little thought has gone
into witness and source protection in terrorism investigations and prosecutions
– an environment that can have very different witness protection needs and
challenges. As the investigation into the Air India tragedy showed, the RCMP
viewed witnesses and sources in terrorism matters in the same way that it had
viewed them in ordinary criminal investigations. This lack of appreciation of the
difference between witnesses and sources in ordinary criminal cases and those
in terrorism cases also resulted in insensitive approaches by the RCMP to those
involved in the Air India tragedy. This placed them at risk and created a distrust
of law enforcement.
Many potential witnesses in terrorism prosecutions may already have been
confidential sources for CSIS. Since the eligibility of CSIS sources to claim
informer privilege is not clear, it is also not clear whether a CSIS handler can
make a promise of anonymity. Care must be taken to avoid making unrealistic
promises of permanent anonymity to sources. Sources must be sensitively and
adequately prepared for the possibility that they may have to testify in some
cases. In addition, there is a need for both CSIS and the RCMP to understand and
accommodate the difficulties of converting intelligence sources into witnesses.
Also missing from witness protection to date is a consideration of the measures
which lie between providing complete anonymity and fully disclosing identity.
These include protections available under sections 37 and 38 of the Canada
Evidence Act11 and partial anonymity at trial through the use of pseudonyms,
screens or remote testimony. The possibility of allowing anonymous testimony
at a criminal trial is also explored.
The Commission has concluded that police, intelligence agencies, prosecutors
and judges should explore the full range of these measures. If the measures
are not appropriate (for example, if prosecutors determine that testimony in
open court is essential), the government should provide appropriate protection
measures, including formal witness protection programs attuned to the
sometimes unique needs of witnesses in terrorism cases.
This chapter examines the characteristics of terrorism that may impede the
recruitment of witnesses and sources. It discusses both specific and “communitywide” intimidation, and how genuine fear in some communities, combined
with the cultural insensitivity of the authorities approaching members of
those communities, makes it difficult to persuade individuals to share valuable
information about terrorist activities. There is an examination of means other
than formal witness protection programs to protect individuals who assist
the authorities. The emphasis is on developing a range of graduated and
appropriate strategies to protect witnesses. The notion that “one size fits all”
10
11
See Gregory Lacko, “The Protection of Witnesses” (Ottawa: Department of Justice, 2004), p. 3, online:
Department of Justice Canada: <http://www.justice.gc.ca/eng/pi/icg-gci/pw-pt/pw-pt.pdf> (accessed
June 2, 2009) [Lacko Paper on Protection of Witnesses].
R.S.C. 1985, c. C-5.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
when protecting witnesses and sources is unrealistic, particularly in the unique
context of international terrorism investigations.
The existing federal Witness Protection Program (WPP), developed largely to
protect witnesses in criminal prosecutions, cannot easily be transplanted to
the terrorism environment. The management of the Program, as well as several
other aspects of it, must change significantly – as must the attitudes of police
and intelligence agencies dealing with witnesses and sources. This chapter
recommends a new national security witness protection program separated
from RCMP control. It would be headed by a respected independent individual
to be known as the National Security Witness Protection Coordinator. The
Coordinator would determine qualifications, requirements and approval of
candidates for acceptance into the Program. The Coordinator would be able
to seek advice, when appropriate, from various agencies including CSIS, the
RCMP, the office of the proposed Director of Terrorism Prosecutions and other
prosecutorial officials, Corrections Canada, immigration officials and others. The
Coordinator should consult, but he or she would make the final decisions.
The Coordinator would be responsible for making arrangements for protection
while the person is in the program and for resolving disputes that may arise
between the protectee and the program. In some cases, the Coordinator should
be prepared to justify unpopular arrangements that were made for valid reasons
of witness and source protection. The Coordinator would act in the public
interest and be independent of the police and prosecutors. He or she would
have the power to devise creative and flexible solutions to the varied problems
of witness and source protection in terrorism investigations. The Coordinator
could also act as a resource for the agencies and the National Security Advisor
on witness and source protection issues.
Removing from the RCMP the authority to decide who qualifies for witness
protection avoids the perception of conflict of interest. The inference that arises
when the RCMP has that authority is obvious: “Co-operate with the RCMP, say
what is required and we at the RCMP will decide if you qualify for protection.”
Such a conflict of interest can damage perceptions about the credibility of a
witness who is in witness protection. The National Security Witness Protection
Coordinator would be able to avoid the conflict of interest between witness
protection and policing/prosecutorial interests. However, the Coordinator would
receive input from the RCMP and the RCMP would continue, when appropriate,
to provide actual protection to the witness.
The conflict between policing/prosecutorial interests and the protection of
witnesses would be similar in other criminal cases. However, the terms of
reference restrict the Commission’s recommendations to the problems of
witness protection in terrorism cases. In addition, witness and source protection
in terrorism investigations can give rise to a need for ethnic, cultural, religious
and linguistic sensitivity that may not be necessary in ordinary criminal cases.
There may also be more of an international dimension to witness and source
protection in some terrorism investigations.
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8.3 Witness Intimidation and its Impact on Terrorism Investigations
and Prosecutions
8.3.1 The Context of Terrorism
In his testimony, Professor Yvon Dandurand of the University of the Fraser
Valley described how international terrorist groups have increasingly turned for
support to overseas communities:
[I]f you look at studies in the last 20 years on the evolution of
terrorist movements, one of the characteristics that experts
normally isolate is the fact that more and more international
terrorist groups have found effective ways of obtaining
support from diasporas and from ethnic groups, in different
countries, that either are sympathizers or are not sympathizers
but fall under the influence of these radical groups.12
[translation]
For this reason, Dandurand argued, the assistance of members of these
communities is essential for preventing and prosecuting terrorist activity:
[I]t is absolutely essential that we be able to count on the
cooperation of the communities within which terrorist groups
have a tendency to hide. We must therefore work very closely
with those communities.13 [translation]
Unfortunately, some of the communities with the greatest potential to assist
the authorities in terrorism investigations and prosecutions also often face the
greatest barriers to providing that assistance. Among those barriers is the fear of
intimidation against community members who cooperate or speak out against
extremists. Other significant barriers to providing assistance include a distrust
of the authorities and the distance and alienation of these communities from
broader Canadian society. These barriers are discussed below.
8.3.2 Exploiting the Particular Vulnerabilities of Some Communities –
“Community-wide” Intimidation
To assert their power, terrorists threaten, intimidate or attack those who
cooperate against them. This has a three-pronged effect: exacting revenge on
individuals, reducing the chances of a successful prosecution and discouraging
others from helping the authorities.
Members of some minority communities who assist the authorities in terrorism
investigations can face significant risks if their assistance becomes known to
12
13
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, p. 8576.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, p. 8566.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
extremists. These communities can be so close-knit that cooperation with
investigators is readily noticed. Individuals who are exposed fear violence,
ostracism by the community, or both.
They are also vulnerable to a less common type of intimidation – “communitywide” intimidation. This involves “…acts that are intended to create a general
sense of fear and an attitude of non-cooperation with police and prosecutors
within a particular community.”14 Intimidation can be experienced by individuals
who have not been directly or personally threatened, but who are aware that
any member of their community who is seen as assisting the authorities is likely
to face reprisals. Community-wide intimidation can also help to silence those
who simply oppose extremist agendas and rhetoric.
Dandurand stated in his report for the Commission that community-wide
intimidation is especially frustrating for the police and prosecutors because,
even if no actionable threat is made, witnesses and victims are still effectively
discouraged from testifying.15 As he explained:
Terrorist groups and criminal groups make very organized
efforts to convey … to communities, the message that, if
someone from the community decides to work with the
authorities, there will be highly unpleasant consequences
for that person. They do this systematically; they constantly
reinforce the message. And so the people who live in these
communities know it even though it is not always necessary to
make explicit threats. [translation]
Dandurand elaborated on his analysis in his testimony:
... [R]umours are spread in the community, veiled threats are
made, metaphors and so forth are used to spread the message
that people who work with the authorities do so at their own
risk and peril, and this message is usually buttressed by striking
examples that will ignite community members’ imaginations.
So an example is made of one or two people who, for
instance, came out publicly against a movement or against
certain individuals involved in a conspiracy or a radical group,
and they are made examples of by violence or ostracism.16
[translation]
14
15
16
Dandurand Paper on Protecting Witnesses, p. 30, citing K. Dedel, Witness Protection Problem-Oriented
Guides for Police Series, No. 42 (Washington, D.C.: United States Department of Justice, Office of
Community Oriented Policing Services, 2006), p. 4.
Dandurand Paper on Protecting Witnesses, p. 31; Testimony of Yvon Dandurand, vol. 68, October 29,
2007, pp. 8565-8566.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, pp. 8568-8570.
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For ostracism to be a meaningful threat, individuals must also view their
community as distinct from the wider society, and they must see the wider
society as antagonistic to their community. Being ostracized would mean being
left to fend alone.
Dandurand told the Commission that criminal organizations and some terrorist
groups are sophisticated enough to present themselves to some communities
as protectors. He called this tactic “…a very effective method of keeping a
community under control.”17 Intimidation and indoctrination work together.
“[V]ulnerable, disenfranchised, or segregated communities,” he argued in his
research paper, were susceptible to “low-level community-wide intimidation”
by either organized criminals or radical groups:18
It is apparently often the case that ethnic communities living
in ethnic enclaves are less inclined to integrate with their host
societies and thus become more susceptible to insurgent
indoctrination and vulnerable to intimidation by terrorists and
other criminals. Anything that contributes to the isolation or
ghettoization of these groups increases the likelihood that
they could be intimidated, victimized, recruited or exploited by
criminal or terrorist organizations.19
Dandurand also emphasized that creating a sense of vulnerability among
members of these communities is important for criminal and terrorist groups:
Criminal groups often go to great lengths to maintain their
victims in a constant state of vulnerability and powerlessness.
This is often the case, for example, with illegal immigrants
illegally smuggled into the country and potentially subject
to deportation. Their vulnerability to deportation can be
purposefully manipulated and exploited by terrorist groups.
…
... Anything that contributes to the further alienation and
isolation of these individuals can indirectly facilitate their
exploitation by terrorist groups. Furthermore, these illegal
residents/immigrants normally have strong and immediate ties
to other members of the same immigrant community. What
happens to them and how they are treated can also contribute
to feelings of alienation, exclusion and vulnerability within the
community as a whole. Criminal and terrorist groups are of
17
18
19
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, p. 8590.
Dandurand Paper on Protecting Witnesses, p. 31.
Dandurand Paper on Protecting Witnesses, p. 42.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
course known to blackmail illegal residents and their relatives
(even if they are themselves legal residents) by threatening to
denounce them to the authorities. 20
Dandurand suggested that threats against family members overseas can be
credible and effective means of intimidation.21
A March 2006 Human Rights Watch report22 offered examples of intimidation of
members of overseas communities. The report detailed the alleged intimidation
of Tamil communities in Canada, the UK and other countries by the Liberation
Tigers of Tamil Eelam (LTTE, or Tamil Tigers). The report claimed that the LTTE,
besides pressuring individuals to donate to charitable organizations linked to
the LTTE, used several intimidation tactics to silence dissent:
Tamils in the West have been subject to death threats,
beatings, property damage, smear campaigns, fabricated
criminal charges, and even murder as a consequence of
dissent. Although incidents of actual violence have been
relatively rare, they reverberate strongly within the community
and effectively discourage others from expressing views that
counter the LTTE.23
This phenomenon of community-wide intimidation is widespread, and perhaps
growing, outside the context of terrorism. William Blair, Chief of the Toronto
Police Service, attributed many unsolved crimes to this type of intimidation.
Witnesses were unwilling to come forward in criminal investigations, he
testified, because they expected criminal gangs to be informed quickly of their
cooperation with police:
And what they complain to us is … that the accused and all
of his friends and everyone in their neighbourhood will know
that they were the one that came forward with information
and from that point on, they’re in danger; from that point on,
their children can’t go to the same schools as their neighbours;
that their reputation in the community is destroyed…. In
some cases, their statements are being handed around the
neighbourhood because we’d given them to a defence lawyer
who has given them to the accused who has handed them out,
just to show to his other gang members or his neighbours and
20
21
22
23
Dandurand Paper on Protecting Witnesses, pp. 41-42.
Dandurand Paper on Protecting Witnesses, pp. 41-42. See also Testimony of Isabelle Martinez-Hayer,
vol. 76, November 15, 2007, pp. 9534-9535.
Jo Becker, Funding the ‘Final War: LTTE Intimidation and Extortion in the Tamil Diaspora” Human
Rights Watch (March 2006), online: Human Rights Watch <http://hrw.org/reports/2006/ltte0306/
ltte0306webwcover.pdf> (accessed June 2, 2009) [Becker Paper on LTTE]. See also the discussion of
LTTE coercion and fundraising in Hoffman Paper on International Terrorism, pp. 43-44.
Becker Paper on LTTE, p. 14.
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friends that this is the person who has been a witness against
him.… They don’t trust us and they don’t cooperate with
us. And they tell their neighbours and their friends and their
children not to trust us either.24
8.3.3 How Distrust and Distance Limit the Ability of Authorities to
Provide Protection
The distance and distrust between police and intelligence agencies and
communities can increase reluctance to cooperate with authorities and heighten
the sense of vulnerability flowing from intimidation tactics. Several factors may
contribute to this distance and distrust:
As Dandurand stated in his research paper:
Counter-terrorism strategies do not typically address the
need to offer active protection to these vulnerable groups. A
legalistic/instrumentalist approach to this question tends to
prevail. As a result, the services of State protection programs
are extended to victims of intimidation and exploitation in
their capacity as witnesses and informants, but only to the
limited extent that their participation is required by the justice
system itself. Otherwise, intimidated individuals tend to be left
to their own devices.25
Dandurand argued that investigative hearings26 previously permitted by the
Criminal Code27 “…clearly add to the already existing feelings of vulnerability
and insecurity of members of vulnerable groups. They also convey a conflicting
message by suggesting to those with information about potential terrorists that
volunteering it to the authorities could result in their finding themselves subject
to an investigative hearing, a preventive arrest or a charge under a broad array
of new terrorism offences.”28
• Distrust may also arise when police or intelligence agencies are
not faithful to their promises – particularly promises to keep
the identity of sources secret. Other times, authorities may
not be open about legal obligations to disclose the identity of
24
25
26
27
28
Testimony of Wiliam Blair, vol. 78, November 19, 2007, pp. 9996-9998.
Dandurand Paper on Protecting Witnesses, p. 44. See also Testimony of Ujjal Dosanjh, vol. 80,
November 21, 2007, p. 10168.
Investigative hearings, a procedure introduced by the Anti-terrorism Act, S.C. 2001, c. 41, allowed
a court to issue an order for the gathering of information from a named individual. The power to order
investigative hearings ended in 2007 because of a “sunset” clause in the legislation. A bill to revive
these hearings, Bill S-3, died on the Order Paper when Parliament was dissolved for the October 2008
election: Bill S-3, (An Act to amend the Criminal Code (investigative hearing and recognizance with
conditions), 2nd Sess., 39th Parl., 2007-2008.)
R.S.C. 1985, c. C-46.
Dandurand Paper on Protecting Witnesses, pp. 43-44.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
the source. Distrust may arise even if the police truly want to
keep someone’s identity secret, but are forced to reveal it
by disclosure rules. As Blair testified, “[I]t doesn’t do that I
tell them that I was required by law to do it. They don’t understand
that. They don’t trust us and they don’t cooperate with us.”29
• Community members may distrust these agencies because of
experiences with similar organizations in their countries of
origin. They may associate the authorities with corruption,
predatory behaviour and incompetence. In some communities,
Dandurand testified, the idea that police officers are there to help
and protect would be radical.30
• Even if there is no distrust of authority among community
members, there may be an absence of trust in intelligence
and police agencies simply because those agencies are
not well-established in the communities, often do not understand
their dynamics and appear unwilling to help. For example,
Dandurand told the Commission that “…a number
of threats, means of intimidation, are delivered secretly,
in code or veiled words, by metaphors and so forth. Thus,
someone with only a superficial knowledge of the culture would
often find it very hard to decode threats, decode conversations.”31
[translation] Former police officer Mark Lalonde described
another circumstance where “ethnic radio” could broadcast a threat
that was well understood by the targetted audience but would not
be interpreted as such by the public at large. The message would
not violate any laws, so no police intervention would occur.
However, the targeted groups would interpret this as the police
being “unwilling or unable to respond.”32
8.3.4 Examples of Individual and Community-wide Intimidation in the Air
India Context
Both the judgment of Justice Josephson in R. v. Malik and Bagri33 and evidence
before the Commission were replete with descriptions of attempted and
successful intimidation.
In 2004, Justice Josephson ordered a permanent publication ban relating to
the identity of one witness, Ms. E, at the Air India trial. He spoke of the serious
threat to the lives of Ms. E and her family:
29
30
31
32
33
Testimony of William Blair, vol. 78, November 19, 2007, p. 9997.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, pp. 8585-8586.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, p. 8572.
Testimony of Mark Lalonde, vol. 68, October 29, 2007, pp. 8630-8631.
2005 BCSC 350.
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There is evidence of threats and violence being directed
towards those who have taken contrary positions to those of
certain extremist elements. There is also evidence of what
the Witness not unreasonably interpreted to be a serious
threat to the lives of herself and her family should she reveal
certain information. Only upon receiving an assurance that
her identity would remain confidential did she disclose this
information to the authorities, maintaining throughout that
she would never testify out of fear for the safety of herself and
her family.
In this context, the Witness’s ongoing security concerns rise
beyond the merely speculative. The risk also does not abate
simply because she has completed her testimony, as retaliation
is a strong element of the risk.34
Ms. E was a former friend of Ajaib Singh Bagri who provided statements to CSIS
and the RCMP in the years following the Air India tragedy. A former CSIS agent
testified at trial that Ms. E had told him of a threat by Bagri. Bagri had allegedly
said that they shared secrets and that she knew what he would do if she told
anyone. According to the CSIS agent, Ms. E indicated that she was certain
that Bagri meant that he would kill her.35 The CSIS agent testified before the
Commission to the same effect.36
Several threats were also made against a Ms. D and her family. From the
beginning of her dealings with the authorities, Ms. D indicated that she had
been the victim of threats and intimidation and that she feared for her safety.37
Early in November 1997, the RCMP installed a video surveillance camera at Ms.
D’s residence.38 Ms. D continued to receive threats after she began speaking
with the RCMP.
On February 14, 1998, Ms. D was warned by a relative of Balwant Bhandher to be
careful because three men, Ripudaman Singh Malik, Bhandher and Aniljit Singh
Uppal, had met and would “…try to shut her up permanently.”39 Shortly after,
she was approached at a Sky Train station and told by a young East Indian male
that Malik would “finish” her and reporter Kim Bolan.40 In March 1998, eggs were
thrown at her house in the middle of the night and she received a number of
unsettling phone calls.41 In June 1998, Ms. D was at a shopping centre with her
child when a former acquaintance from the Khalsa School where she had worked
34
35
36
37
38
39
40
41
R. v. Malik and Bagri, 2004 BCSC 520 at paras. 6-7.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 960, 980.
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7411-7412.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 380, 396.
2005 BCSC 350 at paras. 377, 414.
2005 BCSC 350 at para. 352.
Exhibit P-101, CAF0485, p. 1.
Exhibit P-101, CAF0485, p. 3.
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approached her and warned her that she was creating a lot of problems.42 The
individual was aware of personal information about Ms. D’s child and warned
her that she and her family would be severely harmed if she did not “watch it.”43
In July 1998, Kim Bolan contacted the RCMP and advised that she had received
information about a “hit list” and had been told that a person from the US would
come with AK-47s “…to take care of the hit list.”44 Ms. D’s name, as well as those
of Tara Singh Hayer and Ms. Bolan herself, were reportedly included on the list.45
At the time, Bolan, who had heard a gun shot on her street on July 16, reported
to the RCMP her belief that the person from the US and the AK-47s were “…
already in town to carry out the hit list contract.”46 As a result of the “hit list”
information, an additional video surveillance camera was installed at Ms. D’s
residence by the RCMP.47
Justice Josephson’s 2005 judgment in R. v. Malik and Bagri noted that Ms. D “…
continues to have constant concerns about her safety and security.”48
The Commission learned of other examples of feared intimidation or actual
intimidation and retaliation:
Mr. A: A former CSIS officer told the Commission about his
relationship with a Mr. A. Mr. A had been providing information
to CSIS in confidence but was very reluctant to deal with
the RCMP because he feared for his personal safety if he had
to lose his anonymity and testify.49 The former CSIS officer
testified that Mr. A’s fear was a “…very legitimate concern ... for
sure.”50
Tara Singh Hayer: Hayer was the publisher of the IndoCanadian Times and an outspoken critic of extremism. He also
provided information to CSIS and then to the RCMP about the
Air India bombing. An attempt on his life left him paralyzed
in 1988. The BC Crown later alleged that the attempt related
to his knowledge about Air India. He was murdered in 1998.
Those responsible for his murder were never caught.51
8.3.5 Intimidation of Members of the Sikh Community for “Speaking Out”
Beyond intimidation of specific individuals involved in the investigation of the
Air India case, community-wide intimidation was at play against those who
42
43
44
45
46
47
48
49
50
51
R. v. Malik and Bagri, 2005 BCSC 350 at para. 352.
2005 BCSC 350 at para. 352.
Exhibit P-101, CAF0485, p. 3.
Exhibit P-101, CAF0485, p. 3.
Exhibit P-101, CAF0485, p. 3.
Exhibit P-101, CAF0485, p. 5.
R. v. Malik and Bagri, 2005 BCSC 350 at paras. 352-353.
Exhibit P-291: “Mr. A Agreed Statement,” pp. 25-26.
Testimony of Neil Eshleman, vol. 75, November 14, 2007, p. 9449.
See Volume Two, Part 2, Post-Bombing, Section 1.2, Tara Singh Hayer.
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might want to speak out against extremism. In his 2005 report, the Hon. Bob
Rae described how family members of Air India Flight 182 victims perceived a
“culture of fear” within communities that prevented people from telling the truth
about what had happened.52 That culture of fear was reinforced by specific acts
of violence and extended beyond intimidation of witnesses to the suppression
of community opposition to extremist agendas.53
Tara Singh Hayer’s son, David (“Dave”) Hayer, a Member of the BC Legislative
Assembly, told the Commission how his father’s opposition to Sikh violence
in the aftermath of the Air India bombing resulted in an attempt to bomb his
father’s office, numerous threats, and an attempt on his life in 1988.54
Dave Hayer also testified about the fearful atmosphere in the Sikh community
in 1986-87:
I think everybody was afraid and if you said anything that
did not support the cause of the people who were trying
to support terrorism and violence, a state of -- independent
State of India, you will be called names and you will -- on the
radio stations you will be called outside. They will go to Sikh
temples. They had basically taken over the Sikh temples, these
groups. They [a small group of people who were trying to
promote an independent State of Khalistan by violent means]
would be threatening to you there. There were beatings in the
community.55
Tara Singh Hayer’s daughter-in-law, Isabelle Hayer (also Martinez-Hayer), told
the Commission about the “extensive” terror that was felt in the Indo-Canadian
community at that time.56
The Hon. Ujjal Dosanjh testified about the treatment of Indo-Canadians
who publicly opposed Sikh extremism or who resisted demands to embrace
extremism after the 1984 Golden Temple incident in Amritsar. He said that,
beginning in 1984, Sikhs in Canada were “…left to fend for ourselves” when
Canadian institutions were unable to deal with “…a wave of hatred, violence,
threats, hit lists, silencing of broadcasters, journalists, activists.”57 He said that
moderates who sought to regain control of Sikh temples in the 1990s were
brutally beaten.58
52
53
54
55
56
57
58
Lessons to be Learned: The report of the Honourable Bob Rae, Independent Advisor to the Minister of Public
Safety and Emergency Preparedness, on outstanding questions with respect to the bombing of Air
India Flight 182 (Ottawa: Air India Review Secretariat, 2005), p. 3 [Lessons to be Learned].
Lessons to be Learned, p. 3.
Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9528-9529.
Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9533-9534.
Testimony of Isabelle Martinez-Hayer, November 15, 2007, vol. 76, pp. 9534-9535.
Testimony of Ujjal Dosanjh, vol. 80, November 21, 2007, p. 10168.
Testimony of Ujjal Dosanjh, vol. 80, November 21, 2007, p. 10175.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
Dosanjh’s account of the intimidation that he, his family and others faced
highlights the risks encountered by individuals who did not yield to
intimidation:
So there used to be hit lists and you would get anonymous
letters delivered through your mail slot or by mail by some
regiment or other organization that they were going to
eliminate you and “reform you”, and I was no exception. So I
received some of those things as well.
...
There were threats to kidnap my children, and this was 198485, and my eldest son was 11 years old. I have three sons. And
there were threats on the phone, message recorder threats
to kill my children, kill my wife, abduct my children, firebomb
my home, kill me and these came of course, as I said, directly
sometimes on the phone, on the voice mail, through third
parties, in fact.
One time I remember a threat was directly given to a distant
relative of mine that I would be killed that particular night.
And that threat was then delivered, passed on to my brotherin-law who, en masse with his entire family, ended up at
my home at 11 o’clock at night while I am sleeping on the
mattress on the floor, on the ground floor worried about being
firebombed with my children sleeping on the top floor. We
slept on the ground floor, on the mattresses or even on the
carpet floor for almost several years because we were worried
somebody might firebomb our house and ... and we would all
be going up in smoke if we were sleeping on the top floor.
. . . One watched one’s back all the time.59
Undoubtedly, intimidation to prevent individuals from speaking out against
extremist agendas would foster a general atmosphere of fear that would
also make community members reluctant to help authorities in terrorism
investigations and prosecutions. Vancouver Police Department Detective Don
McLean, who worked in the Sikh community as part of the Indo-Canadian
Liaison Team before and immediately after the Air India bombing, indicated in
testimony that the level of intimidation in the Vancouver Sikh community was
comparable to that found in communities suffering intimidation from organized
criminal groups and that there was a generalized fear of reprisals against those
who cooperated with police.60
59
60
Testimony of Ujjal Dosanjh, vol. 80, November 21, 2007, pp. 10169-10172.
Testimony of Don McLean, vol. 35, May 29, 2007, pp. 4131-4132.
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Dave Hayer referred to a perception among Indo-Canadians that organizations
such as Babbar Khalsa are politically influential, and can operate with impunity.
He testified that the Air India acquittals reinforced this impression, allowing
intimidation in the Sikh community to increase.61
8.3.6 Reducing Intimidation and Promoting Trust
The authorities must understand the intimidation and threats that witnesses
face and take the most appropriate measures to protect them. Dandurand
suggested several ways to increase trust in the authorities and to avoid or limit
the damage done by attempts to intimidate communities:
• hiring, training and promoting officers from a variety of cultural
backgrounds, including “target” communities, to help build bridges
with those communities and increase the level of confidence in the
authorities;62
• providing training to all officers about the culture, language and
customs of various communities;63
• receiving complaints about intimidation and providing a means for
further contact should the intimidation become more serious;64
• thoroughly investigating complaints of intimidation, which may
involve injecting the necessary resources;65
• following up with victims of intimidation and informing them, as
well as the entire community, of the measures taken;66
• prosecuting incidents of intimidation to the full extent of the law to
show criminals, as well the community, that such incidents are
taken seriously;67 and
• improving and developing the coordination of witness
protection with foreign police forces.68 Witness protection must
be flexible enough to respond to the particular and often very
difficult circumstances faced by witnesses in terrorism prosecutions.
61
62
63
64
65
66
67
68
Testimony of Dave Hayer, vol. 76, November 15, 2007, pp. 9539-9540, 9582.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, pp. 8570-8571. The idea of promoting officers
implies hiring officers who are more than simple token police officers from a particular community.
These officers would over time move up the chain of command.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, pp. 8571-8572.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, pp. 8577-8581. The Air India Victims’
Families Association (AIVFA) also spoke of the need to give greater priority to investigating
complaints of intimidation: “The authorities must respond vigorously to threats and
not wait until actual acts of violence occur”: Where is Justice? AIVFA Final Written Submission,
Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, February
29, 2008, p. 174 [AIVFA Final Written Submission]. No other parties or intervenors commented on
Professor Dandurand’s findings and recommendations on this topic.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, p. 8579. See also Dandurand Paper on
Protecting Witnesses, p. 76.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, p. 8580.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, p. 8579. See also Dandurand Paper on
Protecting Witnesses, pp. 36, 77.
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, pp. 8570-8591; vol. 69, October 30, 2007, pp.
8695-8698.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
Honesty is essential. Authorities should not promise anonymity when it cannot
be guaranteed – for example, when legal obligations, such as the right of an
accused to disclosure of the identity of police agents, may well prevent promises
from being honoured.
8.3.7 Witness Protection during the Air India Investigation
The preceding material described the intimidation of those who spoke against
extremism or who were seen to be helping the authorities. In some cases, physical
protection of these individuals was necessary. Yet the Commission’s review
of CSIS and RCMP dealings with witnesses and sources, and with each other,
produced several examples of inadequate measures to protect witnesses.
Unlike CSIS, which viewed sources as “crown jewels,” the RCMP often perceived
them as informants or criminals who should be approached with skepticism and
who should be expected to “put up or shut up.” To the RCMP, the main value of
sources was the evidence they could provide in a court of law as witnesses. The
Force was relatively unconcerned with any value they could bring as confidential
sources of intelligence.69
In several cases, the RCMP did an inadequate job in dealing with sources that
CSIS had developed. The RCMP’s aggressive all-or-nothing approach to Mr. A, for
example, was indicative of its approach to sources as criminals and not as assets.
It also showed the RCMP’s insensitivity to the demands of potential witnesses
for protection and other benefits.
The RCMP also failed to appreciate the need for successful partnership with
the Sikh community for its investigations. In several cases, the RCMP showed
a troubling lack of cultural sensitivity when approaching sources. Beyond the
RCMP, the Government in general exhibited a wilful blindness to the intimidation
and fear within the Canadian Sikh community.
The way in which the RCMP approached, treated and protected potential sources
might have caused individual sources to refuse to provide further information.
It may also have caused a greater wariness in the community about providing
information to CSIS. CSIS investigator William Dean (“Willie”) Laurie testified
about this point:
MR. LAURIE: … sometimes we were familiar with people
who had been interviewed by the RCMP, ostensibly for the
same purpose, and they were so intimidated that they could
-- even if they wanted to help, they were convinced that they
shouldn’t help because they didn’t want to be involved with
people who treated them that way.
MR. KAPOOR: Which way?
69
See Volume Two, Part 2, Post-Bombing, Chapter I, Human Sources: Approach to Sources and Witness
Protection.
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MR. LAURIE: As though they had to participate, you know,
that they were being forced into it, that they were being
pushed under duress perhaps to assist because you must
know something and we are the police after all, and you know,
we can make trouble for you perhaps, or something like that.
You know, we know somebody in your family who has had
trouble with the law, blah, blah, blah, that sort of thing. It’s not
something that ever worked for people on my desk.70
The RCMP’s failure to appreciate the ongoing threat posed by Sikh terrorism
led the RCMP to approach at least one source in a manner which may have
placed the source in danger. More generally, the RCMP had no strategies for
dealing with fearful witnesses. In at least one instance, the RCMP repeatedly
contacted a source to attempt to secure her cooperation without trying to meet
her concerns.
Witness protection, in fact, was envisioned by the RCMP as a benefit to be
provided to an individual in exchange for information and services. There was a
perception that, until someone had “signed on” to help, it was premature for the
RCMP to think about protection measures.
The following examples demonstrate a lack of sensitivity to witness protection
issues during the Air India investigation and trial:
• The RCMP approached Mr. A, fully knowing that he did not
wish to speak to the police. This approach caused Mr. A to
express concern for his safety. RCMP members used an unmarked
vehicle to visit Mr. A, but approached him publicly and
unannounced, spoke to him on the doorstep of his residence
in plain view of neighbours, and later required him to travel with
them, all of which could have attracted unwanted attention from
neighbours and others at his residence;71
• The RCMP’s inadequate protection of Tara Singh Hayer may in
large part be attributed to its inability to understand the
larger context of the threats against him. By viewing such
threats as localized and isolated incidents, the RCMP did
not recognize the greater threat posed to Hayer by Sikh
extremism. When RCMP members finally installed video
cameras in Hayer’s home, they failed to explain the proper
functioning of the system to the family, installed the system
in a less than optimal manner and did not monitor it adequately.
After Hayer’s murder, the RCMP discovered that the system
70
71
Testimony of William Laurie, vol. 61, October 15, 2007, pp. 7403-7404.
See Volume Two, Part 2, Post-Bombing, Section 1.1, Mr. A.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
had failed to record any video of the shooting and did not disclose
this failure to the family;72
• RCMP members failed to appreciate the threat that Bagri and
his associates could pose to Ms. E’s safety. Ms. E had a genuine
fear for her safety and that of her family. Still, the RCMP
continued to approach her in a public way, at times questioning
her within earshot of others. RCMP members similarly made
no serious attempt to assess the danger she faced by cooperating
with police. In fact, the RCMP discounted Ms. E’s fears in 1990.
When the RCMP did ask her about her safety concerns, she
was told to particularize and define her concerns herself and
received no counselling or guidance to help her express her
fears or understand the precautions that could be taken. Ms. E was
also often approached in a confrontational and insensitive
manner – for example, when RCMP officers repeatedly accused
her of having had an affair with Bagri in spite of her denials and
then told her common-law husband, who she was with at the time
of the events, that she had been “seeing Bagri;”73
• CSIS “handed” Ms. D to the RCMP Air India Task Force after she
provided information about Malik. The RCMP commercial crime
section also dealt with Ms. D, since her information related
in part to allegations of fraud. Ms. D’s name was released
when a warrant application was inadvertently left unsealed by
the commercial crime section. Ms. D had to enter the RCMP Witness
Protection Program much earlier than planned, which disrupted her
life significantly.74
Conflicts between CSIS and the RCMP at times resulted in the loss of valuable
sources and information. There was no collegial method of deciding when it
was appropriate to “share” sources between the agencies. The eagerness of the
RCMP to convert various sources into witnesses during the Air India investigation
is understandable, given the magnitude of the crime. However, the RCMP was
not as sensitive as it should have been when approaching those sources and
not as effective as it should have been in providing for their safety.
8.3.8 Conclusion
Both community-wide intimidation and specific instances of intimidation played
a role in the Air India investigations. The evidence before the Commission
suggests that, even a quarter century after the Air India investigation began,
intimidation is still very much an issue.
72
73
74
See Volume Two, Part 2, Post-Bombing, Section 1.2, Tara Singh Hayer.
See Volume Two, Part 2, Post-Bombing, Section 1.3, Ms. E.
See Volume Two, Part 2, Post-Bombing, Section 1.5, Ms. D.
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Effective protection for threatened individuals and a firm response to incidents
of intimidation bolster the credibility of the justice system. A pattern of threats
without a police response simply strengthens the hand of extremists or terrorist
groups. Even an isolated instance of ineffective protection or a single threatened
or intimidated witness can seriously damage the credibility of the authorities
and dissuade other members of the community from coming forward.
In terrorism investigations at least, the RCMP should not see witness protection
as a benefit that must be earned by testimony. Reasonable steps should be taken
to respond to a source’s safety concerns even before the source is considered for
formal admission to a witness protection program. The RCMP should become
more familiar with problems of intimidation in the particular communities that
may be involved in terrorism investigations. They should also recognize that
not all witnesses in terrorism investigations will be criminals and that human
sources can be a valuable source of intelligence about terrorism even if they do
not testify in court.75
All authorities, including CSIS, must be honest in their dealings with sources.
They must be careful to avoid making promises to sources which cannot be
kept – for example, that the identity of a source will be kept confidential and
that the source will never be required to testify. They must be candid about
the burdens and the limits of witness protection programs. Deception breeds
distrust among potential sources; distrust too often engenders their silence.
8.4 Protecting Identity to Avoid the Need for Witness Protection
The previous section explained some of the real dangers facing individuals
whose assistance to intelligence and police agencies becomes known. In
terrorism investigations and prosecutions, the surest way to protect individuals
against direct intimidation is to ensure that their identity remains secret. If no
prosecution occurs, keeping the identity of a source secret is relatively easy
for skilled intelligence agents. However, there is a legitimate public interest in
prosecuting many terrorism offences. Proceeding with a prosecution makes it
much more difficult to protect the identity of those who help the authorities.
Fortunately, the government and prosecutors do have an array of legal measures
that can offer partial or total anonymity to sources and witnesses, reducing the
chances that they will need to enter witness protection programs.
As discussed in Chapter IV, CSIS officials who testified before the Commission
appeared to assume that preventing disclosure of identity was the main way to
protect confidential sources.76 CSIS officials should become fully aware of the
legal system’s many protections against disclosure, including informer privilege.
Finally, CSIS should have access to programs to protect vulnerable witnesses
and sources. These programs should facilitate continuity in the handling of
sources to avoid the problems that arose in the Air India investigation when
CSIS sources were transferrred to new and unfamiliar RCMP handlers.
75
76
See Volume Two, Part 2, Post-Bombing, Chapter I, Human Sources: Approach to Sources and Witness
Protection.
See Section 4.5.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
This section summarizes a variety of measures which can offer some protection
to witnesses and sources when prosecutions proceed. As discussed in detail
later, even the best-designed witness protection programs can pose significant
hardships for those accepted into them. The preferred course of action is to
look first for measures that avoid the need to enter witness protection. If these
measures do not permit investigators to use information supplied by secret
sources and allow prosecutors to satisfy their disclosure obligations, witness
protection programs will be necessary.
8.4.1 The Role of Prosecutorial Discretion
One important safeguard in protecting sources and the safety of witnesses is
the discretion of prosecutors to decide whether to commence or continue a
prosecution. The Supreme Court of Canada has recognized that the Crown can
properly use its power to stay or stop a prosecution as a means of protecting the
identity of informers.77
Many terrorism offences in the Criminal Code attract lengthy maximum
sentences. For example, instructing someone to carry out an activity for the
benefit of a terrorist group,78 instructing someone to carry out a terrorist act79
and committing an indictable offence for the benefit of a terrorist group80 all
carry maximum sentences of life imprisonment.
Prosecutors may be tempted to proceed with as many terrorism charges as
possible to increase the odds of conviction on some of them, but fewer, wellplaced, charges could achieve the same result. The need to protect sources
should be a factor that informs the exercise of prosecutorial discretion. This might
reduce the number of individuals who would have their identities exposed to
comply with disclosure obligations or to testify. In some cases, a non-terrorist
criminal charge or perhaps a terrorist financing charge, as opposed to one based
on an alleged terrorist plot, might protect sources who were privy to the details
of the plot. As discussed in Chapter V, there are no disclosure obligations if the
information is not relevant to the charges faced by the accused.81
However, prosecutorial discretion may be of limited utility in protecting sources
because the courts may interpret disclosure obligations as applying to the
entire investigation. Even a charge based on financing terrorism as opposed
to charges that involve alleged terrorist plots will generally require disclosure
in relation to issues such as the accused’s intentions to facilitate or carry out a
terrorist activity or to benefit a terrorist group.82 The relevance of such issues
could require wide-ranging disclosure. Such disclosure could place the identity
of sources at risk.
77
78
79
80
81
82
R. v. Scott, [1990] 3 S.C.R. 979.
Criminal Code, R.S,C. 1985, c. C-46, s. 83.21 [Criminal Code].
Criminal Code, s. 83.22.
Criminal Code, s. 83.2.
See R. v. Chaplin, [1995] 1 S.C.R. 727.
Criminal Code, ss. 83.03, 83.04.
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8.4.2 Editing Affidavits Prepared in Support of Applications for Warrants
As discussed in Chapter IV, the process for using electronic surveillance warrants
obtained under section 21 of the CSIS Act or Part VI of the Criminal Code involves
disclosing the affidavit used to obtain the warrant in the first place. Before
disclosing the affidavit, the government can remove information that might
reveal the identity of a confidential source. However, any identifying material
deleted from the affidavit cannot be used to support the constitutionality of
the warrant and the search. In some cases, withholding identifying information
about a source could destroy the validity of the warrant. R. v. Parmar83 is a case
in point. There, an informant refused to allow his or her name to be disclosed.
As a result, the prosecution did not disclose an affidavit that would reveal the
informant’s identity. The legality of the warrant could not be sustained without
this information. Wiretap information obtained under an invalid warrant was,
at that time, subject to automatic and absolute exclusion. The prosecution
collapsed because of a failure to make full disclosure, which in turn stemmed
from the informant’s refusal to allow his or her name to be disclosed and to
enter a witness protection program.
Chapter IV proposes a new regime that would allow security-cleared special
advocates to represent the interests of the accused in challenging warrants
under section 21 of the CSIS Act or Part VI of the Criminal Code. Special advocates
would have complete access to the affidavit used to obtain the warrant, including
information that identified any confidential source, and would represent the
interests of the accused without disclosing the identity of the source to the
accused. If adopted, this proposal could provide significant protections for
informers while not sacrificing the ability to subject the warrant to adversarial
challenge and to assert the accused’s right to be secure against unreasonable
search or seizure.
8.4.3 Relying on Police Informer Privilege
At common law, police informers (other than police agents and material
witnesses) have a right to keep their identities from being revealed to the
defence in a criminal prosecution. In Named Person v. Vancouver Sun, the
Supreme Court of Canada described this “informer privilege” rule, noting that it
“…protects from revelation in public or in court the identity of those who give
information related to criminal matters in confidence.”84 The Court stressed that
the duty to keep an informer’s identity confidential applies to the police, the
Crown, attorneys and judges, and that any information which might tend to
identify an informer is protected by the privilege. The protection is not limited
simply to the informer’s name, but extends to any information that might lead
to identification.85
83
84
85
(1987) 34 C.C.C. (3d) 260 (Ont. H.C.J.).
2007 SCC 43, [2007] 3 S.C.R. 252 at para. 16.
2007 SCC 43, [2007] 3 S.C.R. 252 at para. 26.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
In an earlier Supreme Court decision, R. v. Leipert, then Justice McLachlin spoke
of informer privilege as being of such importance that it cannot be balanced
against other interests: “Once established, neither the police nor the court
possesses discretion to abridge it.”86
The police informer privilege rule is an exception to the broad right set out in R.
v. Stinchcombe87 for an accused to receive full disclosure. The privilege is absolute
and allows an exception only where innocence is at stake. The innocence-atstake exception arises if there is no way other than through disclosure for the
accused to demonstrate innocence.88 For example, the identity and evidence
of an informer would have to be disclosed to the accused in cases where the
informer had become a material witness or an agent provocateur.89 Alternatively,
the Crown could withdraw the charges against an accused to protect the identity
of an informer.
At present, it is not clear whether police informer privilege applies to confidential
CSIS sources. However, section 18 of the CSIS Act prohibits disclosure of
confidential CSIS sources, albeit subject to many exceptions set out in section
18(2), including court-ordered disclosure. Chapter VI discusses the need for
CSIS to be able to pass information to the RCMP without sacrificing the ability of
informers or the state to claim informer privilege at a later date.
Chapter VI discusses how informers must be carefully managed. Both CSIS and
the police should ensure that they have the most complete information possible
before they promise anonymity to an informer in exchange for information.
This care is required for a number of reasons. In some cases, the promise of
anonymity may not be legally enforceable. For example, an officer might
“suggest” that an informer ask specific questions to elicit certain information
from the target of an investigation. Even years later at trial, a judge might decide
that the individual was not an informer but became a police agent as a result of
the police suggestion. The informer privilege would no longer apply.
In addition, promises of anonymity may seriously compromise the ability to
commence a subsequent terrorism prosecution. As discussed earlier, the 1987
Hamilton prosecution of Talwinder Singh Parmar and others collapsed when
an informer refused to consent to the disclosure of identifying information.
In another case, charges for a 1986 conspiracy relating to a plot to blow up
86
87
88
89
R. v. Leipert, [1997] 1 S.C.R. 281 at para. 14. See also the discussion of informer privilege in Kent Roach,
“The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation Between Intelligence
and Evidence” in Vol. 4 of Research Studies: The Unique Challenges of Terrorism Prosecutions, pp. 66-67,
73-75 [Roach Paper on Terrorism Prosecutions].
[1991] 3 S.C.R. 326.
See Chapter VI. The Witness Protection Program Act contains a similar innocence-at-stake exception
to the general obligation to protect information about the changed identity or location of an
individual in a witness protection program. Section 11(3)(d) permits the RCMP Commissioner
to disclose information about the location or a change of identity of a current or former “protectee” if
the disclosure is essential to establish the innocence of a person in criminal proceedings.
R. v. Scott, [1990] 3 S.C.R. 979, discussed in Roach Paper on Terrorism Prosecutions, p. 167. At pages 157165, Roach discusses the various judgments in R. v. Khela relating to a police informer, “Billy Joe,” who
had been promised anonymity.
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another Air India aircraft were eventually stayed. The stay occurred, in large
part, because a key informer had apparently been promised that his identity
would never be revealed. The courts, however, found that the informer was not
protected by informer privilege because he had acted as a police agent. The
police remained reluctant to disclose information relating to the informer, and
the case was eventually permanently stayed by the courts as a result.90
In some cases, the benefits of keeping a source’s identity secret to obtain
information which may prevent an act of terrorism can clearly outweigh the
value of the source as a witness in a subsequent prosecution. Prevention may
often be more important than prosecution. Difficult decisions by security
intelligence and police officers to offer anonymity in exchange for information
which may be urgently needed should not be second-guessed.
Both police and the Crown have developed policies to help ensure that informers
do not lose their privileged status through state action.91 These policies need
to be extended and adapted for CSIS. Moreover, there needs to be greater
coordination among the agencies involved in terrorism cases concerning the
treatment of sources. The proposed Director of Terrorism Prosecutions discussed
in Chapter III would be able to provide consistent and expert legal advice about
the legal status of informers as they transferred from CSIS to the RCMP and,
in some cases, back again. Each agency needs to better appreciate the needs
and perspective of the other. Disputes about the ultimate use of human sources
could, when necessary, be resolved through the intervention of the National
Security Advisor, as described in Chapter II.
The law surrounding police informer privilege is complex and evolving. There
may be considerable uncertainty in a particular terrorism investigation about
whether a source is protected by privilege. In particular, questions may arise
about when and whether valid promises of anonymity may have been made to
the source, and whether a source who is otherwise protected by the privilege
has lost that privilege by becoming an active agent, material witness or agent
provocateur. The prudent path with such factual and legal uncertainty is to
take reasonable steps to protect informers who are vulnerable to retaliation if
identified publicly. At the same time the state, on behalf of the informer, should
assert the police informer privilege to withhold identifying information.
90
91
R. v. Khela (1991), 68 C.C.C. (3d) 81 (Que. C.A.); R. v. Khela, [1995] 4 S.C.R. 201; R. v. Khela (1998), 126 C.C.C.
(3d) 341 (Que. C.A.).
For example, the RCMP offers a one-week course entitled “Human Source Management” to train
officers in the handling of agents and informers. One objective of the course is “…to ensure that an
informer remains an informer and does not drift over into an agent capacity”: Testimony of Raf Souccar,
vol. 70, October 31, 2007, p. 8890. The Federal Prosecution Service Deskbook calls upon Crown counsel
to obtain a full understanding of the nature of the relationship between the police and the informer/
agent early on to determine the person’s status and foresee any potential risks: Department of Justice
Canada, The Federal Prosecution Service Deskbook, c. 36, online: Department of Justice Canada
<http://www.justice.gc.ca/eng/dept-min/pub/fps-sfp/fpd/ch36.html> (accessed June 2, 2009).
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8.4.4 Disclosure: Non-relevance and Timing
Stinchcombe imposes a broad constitutional duty on the state to retain and
disclose relevant information to the accused. Prosecutors may properly refuse
to disclose information, including information about identity, if the information
is not relevant. Prosecutors may also refuse to disclose evidence that is subject
to a valid privilege such as the police informer privilege.
Prosecutors also have a reviewable discretion about when they disclose evidence
and could use this discretion to delay disclosing the identity of an informer or
witness for his or her protection. Late disclosure can undermine the efficiency of
a trial because it may lead to adjournments allowing the defence to review the
disclosed material. Late disclosure might also reduce the chances of resolving
a case before trial. For these reasons, prosecutors should not lightly decide to
delay the disclosure of relevant information. Nevertheless, the need to protect
the safety of informers and witnesses is one of the few reasons that will justify
delayed disclosure. The delay in disclosure should, however, be limited to the
time necessary to ensure effective protection for the individual whose safety
may be jeopardized by the disclosure.
8.4.5 Sections 37 and 38 of the Canada Evidence Act
Section 37 of the Canada Evidence Act permits ministers to object to the
disclosure of information by certifying that the information should not be
disclosed on the grounds of a specified public interest. As discussed more fully
in Chapter VII, the protection of informers is considered one of those public
interests. The trial judge is permitted to balance the competing interests in
disclosure and non-disclosure, and can make an order placing conditions
on disclosure.92 Thus, the judge might prohibit disclosing the identity of an
informer. At the same time, the judge can make an order to protect the right
of the accused to a fair trial. This could include a stay of proceedings.93
Section 38 of the Canada Evidence Act allows the Attorney General of Canada to
seek non-disclosure orders on the basis that the disclosure of information would
harm national security, national defence or international relations. Similar to
section 37, the judge is allowed to balance competing interests in disclosure
and non-disclosure and place conditions on disclosure. As a result, the judge
might prohibit disclosing the identity of an informer. Section 38 might be of
particular importance to prevent harm to national security that would flow from
a successful argument that the transfer of human sources from CSIS to the RCMP
resulted in a loss of informer privilege.
Chapter VII recommends how to improve the efficiency and fairness of the
process used to obtain judicial non-disclosure orders under section 38. In
appropriate cases, sections 37 and 38 could be used to prevent the disclosure
of identifying information about an informer. The public interest or Crown
privileges asserted under these sections provide less protection than the
privilege for police informers.
92
93
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 37(5) [Canada Evidence Act].
Canada Evidence Act, s. 37.3.
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8.4.6 “Partial Anonymity”
The measures discussed above all relate to the pre-trial stages of a prosecution
and involve attempts to prevent the disclosure of identifying information about
informers to the accused. Several measures are also available to offer some
protection to witnesses at the actual trial, either by limiting access to information
about their identities (for example, through publication bans) or by permitting
measures to make them feel less intimidated when they testify.
Many of these partial anonymity measures will only protect the witness against
intimidation by those other than the accused because, in most cases, the
accused will already know the identity of the witness. It may be possible in
some cases to allow a witness, particularly an undercover officer, to testify using
a pseudonym. In this way, the accused does not learn the actual identity of the
witness even though the Crown has disclosed all relevant information about the
witness to the accused. The issue of anonymous testimony, where the accused
does not know the identity of the witness, is examined in the next section.
Partial anonymity measures constitute exceptions to the “open court principle”
recently articulated by Justice Lebel in Named Person v. Vancouver Sun:
In general terms, the open court principle implies that justice
must be done in public. Accordingly, legal proceedings are
generally open to the public. The hearing rooms where the
parties present their arguments to the court must be open to
the public, which must have access to pleadings, evidence and
court decisions.94
...
The open court principle is not absolute, however. A court
generally has the power, in appropriate circumstances, to
limit the openness of its proceedings by ordering publication
bans, sealing documents, or holding hearings in camera. It can
also authorize an individual to make submissions or appear
in court under a pseudonym should this be necessary in the
circumstances. In some cases, courts may be required by
statute to order such measures. In others, they are merely
authorized to do so, whether under legislation granting
them this power or — where superior courts are concerned
— pursuant to their inherent power to control their own
processes.95
Many of these exceptions to the open court principle are found in the Criminal
Code:
94
95
2007 SCC 43, [2007] 3 S.C.R. 253 at para. 81.
2007 SCC 43, [2007] 3 S.C.R. 253 at para. 91.
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• Excluding the public from the courtroom: Section 486(1) allows
a judge to exclude members of the public from the courtroom
for all or part of the proceedings in the interest of the proper
administration of justice. This includes ensuring that justice system
participants (which would include witnesses) are protected.96
• Testifying outside the courtroom, etc.: If an accused is charged
with a terrorism offence set out in the Criminal Code, the judge
may order that some or all witnesses testify outside the
courtroom if the order is necessary to protect the safety of the
witnesses. The judge may order that a witness testify behind
a screen or similar means of preventing the witness from seeing the
accused if the judge concludes that the order is necessary to obtain
a full and candid account from the witness.97
A witness can, however, testify outside the courtroom only if
the accused, the judge and the jury can watch the testimony
by closed-circuit television or otherwise and the accused is
permitted to communicate with counsel while watching the
testimony.98 The accused can still see the witness, but the
witness has the comfort of not having to see the accused while
testifying.
A 2006 Australian federal criminal case, R. v. Lodhi,99 suggests how partial
anonymity measures might be further expanded in Canada. In pre-trial
proceedings, the judge ordered that a screen be used so that the accused could
not identify Australian Security Intelligence Organisation (ASIO) officers when
they testified. This was to prevent “…the real possibility of the compromise
of intelligence operations in Sydney.”100 The parties consented to the ASIO
officers testifying via closed-circuit television at the trial, instead of using
screens. Monitors were available to all court participants, including the accused.
However, the accused’s monitor was intentionally not operational, though the
jury apparently did not know this.101
• Publication bans: Section 486.5(1) of the Criminal Code allows
a judge to make an order directing that any information that
could identify a witness not be published, broadcast or
96
R.S.C. 1985, c. C-46, s. 486(2)(b). Section 2 of the Criminal Code defines “justice system participant” to
include “an informant, a prospective witness, a witness under subpoena and a witness who has
testified.”
97 Criminal Code, s. 486.2(4). In upholding a previous version of this section under the Charter, the
Supreme Court noted that the accused could still see the complainant and the screen would not
adversely affect the accused’s right to cross-examine the witness: R. v. Levogiannis, [1993] 4 S.C.R. 475.
98 Criminal Code, s. 486.2(7).
99 [2006] NSWSC 596.
100 [2006] NSWSC 596 at para. 59.
101 See the more extensive discussion of the Lodhi case in Roach Paper on Terrorism Prosecutions, pp. 282286.
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transmitted if the judge is satisfied that the order is
necessary for the proper administration of justice. In deciding
whether to make an order, the judge must consider several factors
that relate to the well-being of the witness:
• whether there is a real and substantial risk that the witness would
suffer significant harm if his or her identity were disclosed;
• whether the witness needs the order for their security or to protect
him or her from intimidation or retaliation; and
• whether effective alternatives are available to protect the identity of
the witness.102
• Pseudonyms: As Justice Lebel noted in Named Person v. Vancouver
Sun, a court can authorize an individual to make submissions
or appear in court under a pseudonym if necessary in the
circumstances.103 Testifying under a pseudonym is another
vehicle for shielding the identity of a witness from the
general public. It might also prevent the accused from
learning the true identity of the witness – for example, if the
accused only knew the witness under that person’s assumed name.
However, a pseudonym would offer little protection to a witness if
the witness could be identified by the accused even while
testifying under a pseudonym. Still, pseudonyms may be especially
important and valuable in protecting the identity of CSIS officers
and undercover officers who may be required to testify in terrorism
prosecutions.
These various measures seek to provide “partial anonymity” and offer some, but
not total, identity protection to witnesses at trial. The accused can still determine
the identity of the witness if the witness testifies by closed-circuit television or
behind a screen, as well as when there is a publication ban or order removing
the public from the courtroom. Even testifying using a pseudonym does not
guarantee anonymity, since the accused can see the witness.
8.4.7 Conclusion
This section has considered various ways to protect the identity of individuals
necessary for the proper prosecution of a trial and at the same time avoid the
need to have them enter a witness protection program. As well, this section
has discussed the important role of police informer privilege and judicial
non-disclosure orders under sections 37 and 38 of the Canada Evidence Act
in preventing the disclosure of identifying information about an informer.
However, the privilege and these measures may impair terrorism prosecutions,
in part because the informer will not be available to testify in such cases.
102 Criminal Code, s. 486.5(7).
103 2007 SCC 43, [2007] 3 S.C.R. 252 at para. 91.
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Several other options offer a middle ground between protecting informers
through anonymity and completely disclosing their identity. These options
include delayed disclosure to allow sufficient time to put protection measures
in place, the exercise of prosecutorial discretion about laying charges and
the commencement and continuation of prosecutions, as well as the use of a
variety of “partial anonymity” devices that limit the disclosure of the identity of
a witness to the public.
The real dangers faced by some witnesses and their families makes it imperative
that judges and prosecutors carry out their functions within a “culture of security.”
They must understand the risks to witnesses and sources and the variety of
measures that can protect them, while still providing a fair trial to an accused.
Dean Anne-Marie Boisvert of the Faculty of Law, l’Université de Montréal, spoke
about this culture of security before the Commission:
I think that we will have to develop an awareness and a culture
of security, while preserving, of course, the fundamental rights
of our Justice system.… Crown prosecutors have, on occasion,
been too timid in their objections to disclosure applications;
the judiciary has also, on occasion, been timid or could have
ordered disclosure subject to certain conditions. 104 [translation]
As a general rule, whenever an individual’s identity may need to be revealed to
further a prosecution, the preferred option should be to reveal only as much
identifying information as is necessary to ensure the viability of the prosecution
and fairness to the accused. If a partial anonymity measure satisfies the needs
of the prosecution and ensures fairness for the accused, the prosecution should
not resort to a procedure that may fully expose the witness and possibly force
him or her into a highly restrictive witness protection program.
Although they can be important, partial anonymity measures only go so far. They
still contemplate that the accused and perhaps others will learn the identity of
the witness. The next section examines the option of anonymous testimony in
which even the accused does not know the identity of the witness.
8.5 Anonymous Testimony
As discussed earlier, the Criminal Code provides several measures that offer
“partial anonymity” by allowing a witness to testify at a remote location, or while
protected by a publication ban, closed court or physical screen. These measures
may reduce the threat and discomfort that witnesses feel when they testify.
Nevertheless, none of these measures would prevent a determined person from
learning the identity of a witness.105
104 Testimony of Anne-Marie Boisvert, vol. 69, October 30, 2007, pp. 8771-8773.
105 Jean-Paul Brodeur, “The Royal Canadian Mounted Police and the Canadian Security Intelligence
Service: A Comparison of Occupational and Organizational Cultures” in Vol. 1 of Research Studies:
Threat Assessment RCMP/CSIS Co-operation, p. 204.
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The limits of partial anonymity measures raise the question of whether witnesses
facing serious threats in terrorism prosecutions should be permitted to testify
in complete anonymity. Since their identities would remain secret, they would
not need to consider enduring the hardship of a witness protection program.
Although Canada does not at present allow anonymous testimony, some other
democracies do.
There is no statutory authority in Canada for anonymous testimony. Section 650
of the Criminal Code requires the accused to be present at trial when evidence
is given. This provision has been interpreted broadly by the Supreme Court of
Canada to include all proceedings where the accused’s interests are at stake.106
In the landmark disclosure case of R. v. Stinchcombe,107 Justice Sopinka
recognized that while informer privilege could protect the identity of some
informers, “…it is a harsh reality of justice that ultimately any person with
relevant evidence must appear to testify,” adding that witnesses “…will have
to have their identity disclosed sooner or later.” Anonymous testimony runs
contrary to judicial trends that favour extensive disclosure to the accused,108
including disclosure of information about potential witnesses. This information
can be useful to the accused in challenging the credibility of statements made
by a witness.
Professor Dandurand observed that many European countries allow anonymity
for those who provide evidence in criminal proceedings, but only in exceptional
circumstances and in compliance with European human rights law.109 Belgium,
France, Germany, The Netherlands, Moldova, Finland110 and now, most recently,
the United Kingdom have all enacted rules allowing anonymous testimony
under tightly controlled circumstances. In each case, the rules conform to the
three guiding principles set by the European Court of Human Rights:
• There must be compelling reasons to justify anonymity;
• The resulting limitations on the effective exercise of the rights of
the defence must have been adequately compensated for; and
• The conviction must not be exclusively or substantially based on
anonymous testimony.111
Dandurand described in general the restrictions on anonymous testimony in
jurisdictions where it is permitted:
106 R. v. Vezina, [1986] 1 S.C.R. 2; R. v. Barrow [1987] 2 S.C.R. 694.
107 [1991] 3 S.C.R. 326 at 339, 335.
108 See, for example, Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326
and R. v. Stinchcombe, [1991] 3 S.C.R. 326.
109 Dandurand Paper on Protecting Witnesses, p. 54.
110 Dandurand Paper on Protecting Witnesses, p. 55, citing N. Piancete, “Analytical Report” in Council of
Europe, Terrorism: Protection of Witnesses and Collaborators of Justice (Strasbourg: Council of Europe,
2006), p. 19.
111 Dandurand Paper on Protecting Witnesses, p. 55.
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• It is generally limited to cases where there is reason to believe that
the witness would be seriously endangered;
• The decision to grant the status of anonymous witness rests with
the juge d’instruction, who must interview the witness, who will be
under oath;
• The principal elements to be established during the interview are
the risk to the witness, and the identity, credibility, and reliability of
the witness;
• The accused, accused’s counsel, and the public prosecutor can be
excluded from the interview, although the public prosecutor may
follow the interview through an audio-link with a voice transformer
or other secure means;
• The defence may be allowed to follow the interview and ask
questions via audio link, but may also be limited to submitting a list
of questions to the judge beforehand;
• If, after weighing the interests of the defence against those of
the witness, the judge is satisfied that anonymity should be
allowed, the Crown will be allowed to use statements of that
witness as evidence in court. However, a conviction may not be
based on these statements alone; and
• It is also often possible to grant partial anonymity to witnesses at
risk.112
Even where anonymous testimony is allowed in Europe, it has caused
controversy and is rarely used.113 Dandurand explained some of the reasons for
the controversy:
There are significant issues surrounding the legitimacy and
legality of the use of such measures and, in the words of one
vocal critic of this approach: “Arguments in favour of witness
anonymity are based on the contention that prejudice to
the accused can be minimized and that which remains can
be justified through a purported “balancing” of competing
interests in the administration of justice. The problem with
this approach, despite its superficial appeal, is that it is unfairly
balanced against the accused from the very outset.”114
112 Dandurand Paper on Protecting Witnesses, pp. 53-55.
113 For example, The International Criminal Defence Attorneys’ Association, in its submission to the
United Nations Preparatory Conference on the International Criminal Court Rules of Procedure
and Evidence, opposed anonymous testimony, arguing that complete witness anonymity is
only appropriate in instances where the individual is an informant who aided in the
discovery of admissible evidence, but is not testifying against the accused in the proceeding:
International Criminal Defence Attorneys Association, Protection of Witnesses, Position
Paper presented during the United Nations Preparatory Conference on ICC Rules of Procedure and
Evidence, 26 July - 13 August 1999, July 15, 1999, p. 3. See also Dandurand Paper on Protecting
Witnesses pp. 54-55.
114 Dandurand Paper on Protecting Witnesses, p. 55.
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Dandurand also noted the limited value of anonymous testimony:
Even when permitted by law, the procedure for granting
partial or full anonymity to a witness tends to be rarely used
because of how, in practice, it can limit the admissibility of
various elements of their testimony.115
Allowing anonymous testimony would also necessarily mean not revealing
identity during disclosure.
8.5.1 The British Experience with Anonymous Testimony
In R. v. Davis,116 the House of Lords overturned a murder conviction after
three witnesses who identified the accused as the gunman testified under
pseudonyms because they feared for their lives. The accused alleged that his exgirlfriend was behind a plot to falsely accuse him of the murder, but he was not
allowed to ask the witnesses any questions that would reveal their identity. The
anonymous testimony was decisive in the accused’s conviction, and Lord Brown
concluded that “…effective cross-examination in the present case depended
upon investigating the potential motives for the three witnesses giving what
the defence maintained was a lying and presumably conspiratorial account.”117
The House of Lords stressed that the ability of the accused to confront and
cross-examine known witnesses had long been fundamental to the common
law. It noted that some departures had been made long ago in the national
security context including, for example, the treason trial of Sir Walter Raleigh,
but that these departures were much criticized.118 The use of anonymous
witnesses had been proposed but rejected even in Northern Ireland during the
height of concerns about the intimidation of witnesses and other justice system
participants.119
The House of Lords relied on authority under the European Convention on
Human Rights120 that holds that no conviction should be based solely or to a
decisive extent on anonymous testimony.121 The focus of this jurisprudence is
not on the admissibility of evidence under national law, but on “…whether the
proceedings as a whole, including the way in which evidence was taken, were
115
116
117
118
119
Dandurand Paper on Protecting Witnesses, p. 54.
[2008] UKHL 36.
[2008] UKHL 36 at para. 96.
[2008] UKHL 36 at para. 5.
[2008] UKHL 36 at para. 6. Some anonymous testimony was used in a trial in Belfast for murder of two
members of the British army, but no objection was made by the defence and the evidence did
not implicate the accused in the killings and the credibility of the anonymous witnesses (press
photographers) was not at issue: [2008] UKHL 36 at paras. 12, 53 and 73, discussing R. v. Murphy [1990]
NI 306.
120 Section 6(3)(d) of the European Convention on Human Rights provides that everyone charged with an
offence has “…the right to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as witnesses
against him.”
121 [2008] UKHL 36 at para. 25.
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fair.”122 It is also significant that the European case law to date is grounded in
an “inquisitorial” context where the judge not only knows the identity of the
witness, but also has a mandate to investigate the case.123
A little more than a month after the decision in R. v. Davis, the United Kingdom
enacted the Criminal Evidence (Witness Anonymity) Act 2008.124 The Act abolished
“…the common law rules relating to the power of a court to make an order for
securing that the identity of a witness in criminal proceedings is withheld from
the defendant.”125 The Act potentially applies in all criminal cases. Its provisions
will expire at the end of 2009 unless extended for a 12-month period by the
Secretary of State.126
The Act allows both the prosecutor and the accused to apply to a court for
an anonymity order as well as a range of other measures, such as the use of
pseudonyms and screens to prevent the disclosure of identifying information.127
Although both the accused and the prosecutor can apply for such measures,
there are specific measures for ex parte hearings in the absence of a defendant
if the court concludes that they are appropriate.128 The Act is silent on the
appointment of special human rights advocates.
Under the Act, a court must be satisfied that three conditions, described as
conditions A to C, are met before it can make an anonymity order. The conditions
are as follows:
Condition A is that the measures to be specified in the order are
necessary
(a) in order to protect the safety of the witness or another
person or to prevent any serious damage to property, or
(b) in order to prevent real harm to the public interest (whether
affecting the carrying on of any activities in the public interest
or the safety of a person involved in carrying on such activities,
or otherwise).
Condition B is that, having regard to all the circumstances, the
taking of those measures would be consistent with the defendant
receiving a fair trial.
122
123
124
125
Doorson v. Netherlands (1996) 22 EHRR 330 at para. 67.
Doorson v. Netherlands (1996) 22 EHRR 330 at para. 73.
(U.K.), 2008, c. 15.
Criminal Evidence (Witness Anonymity) Act 2008 (U.K.), 2008, c. 15, s. 1(2) [U.K. Criminal Evidence (Witness
Anonymity) Act 2008].
126 U.K. Criminal Evidence (Witness Anonymity) Act 2008, s. 14.
127 U.K. Criminal Evidence (Witness Anonymity) Act 2008, ss. 2-3.
128 U.K. Criminal Evidence (Witness Anonymity) Act 2008, s. 3(7).
211
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Condition C is that it is necessary to make the order in the interests
of justice by reason of the fact that it appears to the court that
(a) it is important that the witness should testify, and
(b) the witness would not testify if the order were not made.129
Condition A would be satisfied where there are concerns about the safety of
the witness. The Crown Prosecution Service, in its guidelines for prosecutors,
has interpreted safety concerns to relate both to specific threats to a witness
as well as “…a general climate of fear in the environment in which the witness
lives.” In either case, it is essential that the Crown Prosecutor be satisfied that the
police have evidence to support the concerns of the witness.130 Condition A also
covers a broad range of public interests. It can allow for police officers and other
officials to give anonymous testimony.
Condition C relates to concerns that important witnesses might not testify if not
protected by an anonymity order.
In many cases, the most difficult determination under the new legislation will
be Condition B, which requires that the anonymity order be consistent with the
defendant receiving a fair trial. The court can consider all relevant circumstances,
but section 5(2) of the Act specifies that consideration should be given to the
following factors:
(a) the general right of a defendant in criminal proceedings to
know the identity of a witness in the proceedings;
(b) the extent to which the credibility of the witness concerned
would be a relevant factor when the weight of his or her
evidence comes to be assessed;
(c) whether evidence given by the witness might be the sole or
decisive evidence implicating the defendant;
(d) whether the witness’s evidence could be properly tested
(whether on grounds of credibility or otherwise) without his or
her identity being disclosed;
(e) whether there is any reason to believe that the witness
129 U.K. Criminal Evidence (Witness Anonymity) Act 2008, s. 4.
130 Crown Prosecution Service (United Kingdom), “The Director’s Guidance on Witness Anonymity”, online:
Crown Prosecution Service (United Kingdom) <http://www.cps.gov.uk/publications/directors_
guidance/witness_anonymity.html#04> (accessed June 2, 2009).
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(i) has a tendency to be dishonest, or
(ii) has any motive to be dishonest in the circumstances
of the case,
having regard (in particular) to any previous convictions of the
witness and to any relationship between the witness and the
defendant or any associates of the defendant;
(f ) whether it would be reasonably practicable to protect
the witness’s identity by any means other than by making a
witness anonymity order specifying the measures that are
under consideration by the court.
These provisions recognize that accused persons have a traditional right to know
the identity of witnesses who testify against them. They also recognize that an
anonymity order may make it difficult for an accused to test the credibility of the
witness, including credibility in matters such as the relationship of the witness
with the accused.
In response to the European Convention on Human Rights, the legislation
instructs judges to consider whether the anonymous evidence will be “the sole
or decisive evidence” against the accused. As noted above, under the European
Convention, no conviction should be based solely or to a decisive extent on
anonymous testimony.
The British legislation also addresses the need for proportionality by requiring
the judge to consider whether “it would be reasonably practicable to protect the
witness’s identity” by less drastic means. This refers to partial anonymity devices
discussed above, such as the use of remote testimony, screens or publication
restrictions.
8.5.2 Anonymous Testimony and the Adversarial System
The British experience, as well as related experience in New Zealand,131
demonstrates that anonymous testimony can be used in common law
countries. Nevertheless, anonymous testimony has been used mostly in civil
law jurisdictions where the judge (who knows the identity of the witness) can
play an active investigative role.
In Charkaoui v. Canada (Citizenship and Immigration), Chief Justice McLachlin
highlighted a fundamental distinction between inquisitorial and adversarial
systems:
131 New Zealand Evidence Act 2006, ss. 110-120. These provisions allow for anonymity orders both for
preliminary hearings and trials and also contemplate the appointment of independent counsel to
assist the judge.
213
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In inquisitorial systems, as in Continental Europe, the judge
takes charge of the gathering of evidence in an independent
and impartial way. By contrast, an adversarial system, which is
the norm in Canada, relies on the parties — who are entitled
to disclosure of the case to meet, and to full participation
in open proceedings — to produce the relevant evidence.
The designated judge under the [Immigration and Refugee
Protection Act] does not possess the full and independent
powers to gather evidence that exist in the inquisitorial
process. At the same time, the named person is not given the
disclosure and the right to participate in the proceedings that
characterize the adversarial process. The result is a concern
that the designated judge, despite his or her best efforts to
get all the relevant evidence, may be obliged — perhaps
unknowingly — to make the required decision based on only
part of the relevant evidence.132
The Chief Justice noted that the role assigned to judges under the Immigration
and Refugee Protection Act133 was “pseudo-inquisitorial.” She stated that “…[t]he
judge is not afforded the power to independently investigate all relevant facts
that true inquisitorial judges enjoy. At the same time, since the named person is
not given a full picture of the case to meet, the judge cannot rely on the parties
to present missing evidence. The result is that, at the end of the day, one cannot
be sure that the judge has been exposed to the whole factual picture.”134 These
comments underline some of the difficulties and dangers of using anonymous
testimony in a common law adversarial system.
There was no consensus among parties and intervenors before the Commission
about allowing anonymous testimony. There was some support for such
testimony, but also a recognition of the legal problems that it might cause.135
8.5.3 Anonymous Testimony and the Charter
Any provision allowing for anonymous testimony would be challenged as
infringing the accused’s rights under sections 7 and 11(d) of the Charter. The
first question would be whether the right to know the identity of a witness in
132
133
134
135
2007 SCC 9, [2007] 1 S.C.R. 350 at para. 50.
S.C. 2001, c. 27.
2007 SCC 9, [2007] 1 S.C.R. 350 at para. 51.
B’nai Brith supported importing anonymous testimony for “innocent bystander witnesses” into
Canadian law: Final Submissions of the Intervenor, B’nai Brith Canada, paras. 86-87. The AIVFA
acknowledged that the use of anonymous witnesses involves a number of complex procedural and
substantive issues, and called for further investigation and consideration of the issue: AIVFA Final
Written Submission, p. 173. The Criminal Lawyers’ Association argued that “…witness anonymity will
always detract from the accused’s ability to full test the credibility of that witness” but also suggested
that anonymous testimony would be better than reliance on hearsay or an inability to call a
witness for the defence: Submissions of the Criminal Lawyers’ Association, February 2008, pp. 45-46.
The Attorney General of Canada did not comment on allowing anonymous testimony, but suggested
that the Commission consider cautiously Dandurand’s recommendations, stating that “…further
analysis is necessary to determine whether they are applicable to or compatible with the Canadian
legal framework”: Final Submissions of the Attorney General of Canada, Vol. III, February 29, 2008, para.
198 [Final Submissions of the Attorney General of Canada].
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order to challenge that person’s evidence is a principle of fundamental justice
under section 7 and/or a requirement of a fair trial under section 11(d).
If the accused’s rights were violated by anonymous testimony, the second
question would be whether and in what circumstances the violation could be
justified under section 1 of the Charter.
8.5.3.1 No Right to Physical Confrontation of a Witness but a Right to Have
an Opportunity to Engage in Cross-Examination
In the 1989 case of R. v. Potvin,136 the Supreme Court of Canada upheld a provision
that allowed evidence given by a witness at a preliminary inquiry to be used at
trial when the witness was not available. The accused argued that his “…ability
to cross-examine all adverse witnesses at trial before the trier of fact is a principle
of fundamental justice and a requirement of a fair trial. Basic to this argument
is an acceptance of the proposition that the trier of fact will be unable to assess
the credibility of a witness in the absence of his or her physical presence at the
time the evidence is presented to the trier of fact.”137 The Court held that such a
proposition did not qualify as a principle of fundamental justice under section 7
of the Charter because, “…[o]ur justice system has…traditionally held evidence
given under oath at a previous proceeding to be admissible at a criminal trial if
the witness was unavailable at the trial for a reason such as death, provided the
accused had an opportunity to cross-examine the witness when the evidence
was originally given.”138 These authorities “…indicate that the right to confront
unavailable witnesses at trial is neither an established nor a basic principle of
fundamental justice.”139
Although the Court decided that the right to confront witnesses was not a
principle of fundamental justice, it did hold that the accused’s opportunity to
have cross-examined the witness at an earlier point at the preliminary inquiry
was a constitutional requirement.140 In the case of anonymous testimony, the
question would be whether the inability to learn the identity of the witness
would so damage the accused’s cross-examination on issues of credibility that
the accused could not be said to have had an opportunity to cross-examine the
witness, as section 7 of the Charter requires.
8.5.3.2 Anonymous Testimony and the Right of Cross-Examination
The hearsay rule generally prohibits the introduction of a statement when the
declarant is not available to be cross-examined by the accused. Exceptions to
the hearsay rule can produce situations where an accused may not be able to
cross-examine the person who makes a statement against him that has been
given in evidence. Exceptions must be justified on the basis of necessity and
reliability.141 Justice Binnie observed that “…while in this country an accused
136
137
138
139
140
141
[1989] 1 S.C.R. 525.
[1989] 1 S.C.R. 525 at 540.
[1989] 1 S.C.R. 525 at 540.
[1989] 1 S.C.R. 525 at 542-543.
[1989] 1 S.C.R. 525 at 544.
R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144.
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does not have an absolute right to confront his or her accuser in the course
of a criminal trial, the right to full answer and defence generally produces this
result.”142 Reliability is a particular concern with exceptions to the hearsay rule,
since the accused may not be able to cross-examine the person who made the
hearsay statement.
Anonymous testimony makes it difficult for the accused to cross-examine
a witness effectively without knowing the identity of the witness. The South
African Constitutional Court rejected anonymous testimony on the basis that
it “has far more drastic consequences” than the use of publication bans and in
camera hearings or screens. It noted that depriving the accused of the identity
of the witness would mean the following:
No investigation could be conducted by the accused’s legal
representatives into the witness’s background to ascertain
whether he has a general reputation for untruthfulness,
whether he has made previous inconsistent statements nor
to investigate other matters which might be relevant to his
credibility in general.
It would make it more difficult to make enquiries to establish
that the witness was not at places on the occasions mentioned
by him.
It would further heighten the witness’s sense of impregnability
and increase the temptation to falsify or exaggerate….143
The United States Supreme Court reached a similar conclusion:
The witness’ name and address opens countless avenues of
in-court examination and out-of-court investigation. To forbid
this most rudimentary inquiry at the threshold is effectively to
emasculate the right of cross-examination itself.144
Thus, the main problem with anonymous testimony lies in its impairment of
the accused’s ability to engage in full and informed cross-examination. Crossexamination has long been regarded as the best means of achieving the truth.
Some wrongful convictions in Canada have been directly related to the inability
of the accused to conduct a full and informed cross-examination of a lying
witness.145
142
143
144
145
R. v. Parrott, 2001 SCC 3, [2001] 1 S.C.R. 178 at para. 51.
S v. Leepile 1986 (4) S.A. 187 at 189.
Smith v. Illinois 390 U.S. 129 at 130 (1967).
The Royal Commission on the Donald Marshall, Jr., Prosecution concluded that “We believe a full and
complete cross-examination of John Pratico at this stage by [Marshall’s lawyer] almost certainly would
have resulted in his recanting the evidence given during his examination-in-chief that he had
seen Marshall stab Seale. In those circumstances, no jury would have convicted Donald Marshall,
Jr.”: Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1 - Findings and Recommendations
(Halifax: Royal Commission on the Donald Marshall, Jr., Prosecution, 1989), p. 79.
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8.5.3.3 Section 7 of the Charter and Anonymous Witnesses
Anonymous testimony might be held to violate fair trial rights under section 7 of
the Charter, including the accused’s right to know the case to meet, the accused’s
right to make full answer and defence and the accused’s right to conduct a full
cross-examination. The right to confront a known witness at some point in the
trial process might also be held to be a principle of fundamental justice in its
own right. This would not necessarily be inconsistent with the ruling in Potvin
that the actual confrontation between the accused and an unavailable witness
at trial is not a principle of fundamental justice, as long as the accused has had
a previous opportunity to cross-examine the witness.
The accused’s right to confront and cross-examine a known witness during the
trial process is a long-established legal principle. It has only a few, manageable
exceptions in relation to absconding accused and unavailable witnesses. As
well, there are certain exceptions relating to the hearsay rule. Furthermore, the
principle against anonymous testimony relates to matters that are within the
inherent domain of the judiciary as a guardian of a judicial system that aims not
to convict the innocent.
8.5.3.4 Section 1 of the Charter
If it is accepted that anonymous testimony would violate the principles of
fundamental justice, the next question is whether that testimony could in some
circumstances nevertheless be justified under section 1 of the Charter. No
section 7 violation has yet been found by the Supreme Court of Canada to be
justified under section 1. Nevertheless, section 1 does apply to section 7 rights,
and the courts will consider attempts to justify violations of section 7.146
Anonymous testimony in terrorism cases would relate to the objectives of
witness protection and making evidence available about a serious crime. Both
objectives would be sufficiently important to justify limiting even section 7
rights.
The next question would be whether the use of anonymous testimony would
be rationally connected to such objectives. There would be a strong argument
for a rational connection to the goal of witness protection because anonymity
is the best way to protect witnesses and informers from retaliation. This is
recognized in the jurisprudence on informer privilege. As discussed elsewhere
in this chapter, no witness protection program provides a complete guarantee
of protection. In addition, witness relocation and the need for a new identity
divorced from the previous life of the witness impose great hardships. On
this basis, using anonymous testimony would likely be found to be rationally
connected to witness protection.
146 “The Charter does not guarantee rights absolutely. The state is permitted to limit rights – including
the s. 7 guarantee of life, liberty and security – if it can establish that the limits are demonstrably
justifiable in a free and democratic society. This said, violations of s. 7 are not easily saved by s. 1”:
Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
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Anonymous testimony might also be held to be rationally connected to the
objective of making evidence about terrorism crimes available to a court. The
Air India investigation is replete with examples of potential witnesses being
reluctant to testify for fear that their identities might be disclosed. The only
reservation in this respect is the possibility that witnesses would testify even
if offered partial anonymity measures such as publication bans on identifying
information, the use of screens, remote testimony and entry into a witness
protection program.
Whether witnesses could testify without complete anonymity and be protected
would be the central consideration in determining whether anonymous
testimony constitutes a minimal impairment of the section 7 right. Under this
part of the section 1 test, courts would likely require that less drastic alternatives
to anonymous testimony either have been tried or would be bound to fail. The UK
Criminal Evidence (Witness Anonymity) Act 2008 addresses this issue by requiring
a court to consider “…whether it would be reasonably practicable to protect
the witness’s identity by any means other than by making a witness anonymity
order specifying the measures that are under consideration by the court.”147 A
similar requirement would have to be included in any Canadian legislation that
hoped to pass the minimal impairment test. Anonymous testimony would not
be accepted if less drastic partial anonymity measures were available to protect
the witness.
Another less drastic alternative, in light of the 2007 Charkaoui148 decision, would
be to allow adversarial challenge to anonymous testimony by a special advocate
who would know the identity of the witness. This would respond to some of
the difficulties that an accused would face in cross-examining an anonymous
witness. However, problems could emerge if the special advocate believed it
necessary to communicate with the accused after learning the identity of the
witness. The special advocate would not be permitted to reveal identifying
information to the accused, but this might mean that the accused could not
inform the special advocate of the best grounds to challenge the credibility
of the witness. These difficulties would be especially acute where there was a
previous but undisclosed relationship between the accused and the anonymous
witness.
Courts might also consider witness protection programs to be a less drastic
alternative to anonymous testimony. A conclusion that these programs have
not been properly funded or administered might suggest that there are still
viable alternatives and reforms available short of using anonymous testimony.
However, courts would still likely recognize that entry into a witness protection
program imposes hardships.
Even if a court accepted that there was no reasonable alternative to anonymous
testimony, it would still have to measure the adverse effects on the accused of
admitting the testimony against the benefits of allowing its use. Here, courts
147 U.K. Criminal Evidence (Witness Anonymity) Act 2008, s. 5(2)(f ).
148 Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
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would probably pay attention to the balance struck by the European Court of
Human Rights that anonymous testimony should not be used as the sole or
decisive evidence in the case. The Court’s approach is based on a weighing of
the risk of a miscarriage of justice because of the absence of effective crossexamination, and the unfairness to the accused, against the benefits of testimony
from a witness who cannot otherwise provide evidence.149
Although it is not possible to predict whether legislation authorizing anonymous
testimony would be upheld by the courts, it is clear that courts would not lightly
accept such a radical departure from Canadian traditions of a fair trial. They
would have to be convinced that there were no less drastic means for protecting
witnesses, including various partial anonymity measures such as screens and
publication bans, witness protection programs, or permitting special advocates
to challenge the anonymous witness. Relevant information possessed by the
Crown about the anonymous witness would also have to be disclosed to the
accused to assist in the cross-examination, albeit without the information
identifying the witness.
Even if no less drastic alternatives were available to make it possible for
witnesses to testify, the courts would have to be convinced that, overall, the
balance between the harm to the accused and the benefits to society favoured
the acceptance of anonymous testimony. At a minimum, Canadian courts would
likely follow the European Court ofHuman Rights in not allowing anonymous
testimony to be used as the sole or decisive evidence in a prosecution. Canadian
courts might well opt for a higher standard that prohibits all anonymous
testimony, given the Supreme Court of Canada’s treatment of section 7 of the
Charter and its unwillingness to date to uphold limitations on section 7 rights
under section 1.
Even if the courts accepted that anonymous testimony could be justified in
some cases, it would be difficult to predict which cases these would be. In every
case, less drastic alternatives such as partial anonymity orders would have
to be shown to be inadequate. Even if they were inadequate, the benefits of
anonymous testimony to the government’s objectives of witness protection and
prosecuting terrorism cases would have to outweigh the harms of anonymous
testimony to the accused.
149 These factors are represented in section 5(2) of the U.K. Criminal Evidence (Witness Anonymity) Act,
2008, where the judge is instructed to consider:
(a) the general right of a defendant in criminal proceedings to know the identity of a witness in
the proceedings;
(b) the extent to which the credibility of the witness concerned would be a relevant factor when
the weight of his or her evidence comes to be assessed;
(c) whether evidence given by the witness might be the sole or decisive evidence implicating the
defendant;
(d) whether the witness’s evidence could be properly tested (whether on grounds of credibility or
otherwise) without his or her identity being disclosed;
(e) whether there is any reason to believe that the witness—
(i) has a tendency to be dishonest, or
(ii) has any motive to be dishonest in the circumstances of the case,
having regard (in particular) to any previous convictions of the witness and to any
relationship between the witness and the defendant or any associates of
the defendant.
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The conditions that would need to be met to justify anonymous testimony would
make it very difficult to predict whether anonymous testimony could be used in
a particular case. This would make it virtually impossible for CSIS and the police
to promise that a person could testify anonymously. Indeed, promises made by
the police would have to be carefully framed because a promise of anonymity
that was not subsequently accepted by the court under section 1 of the Charter
might in some cases be interpreted as a promise that would give the potential
witness police informer privilege. In such a case, the witness could not be forced
to testify without his or her consent. On the other hand, if courts found that the
police had not promised anonymity, the witness could be compelled to testify.
Litigating the necessity of anonymous testimony would also lengthen terrorism
prosecutions. A decision by a trial judge that anonymous testimony was justified
would be open to challenge on appeal. The cumulative effects of non-disclosure
are considered on appeal in determining whether an accused’s right to make
full answer and defence has been violated.150 The accused could argue that even
if the acceptance of anonymous testimony in itself did not make the trial unfair,
the anonymous testimony, combined with non-disclosure of other information,
could violate the accused’s right to make full answer and defence and produce
an unfair trial.
8.5.4 Conclusion
Anonymous testimony raises complex issues. Anonymous testimony would be
challenged as violating the accused’s right to make full answer and defence,
including cross-examination, under the Charter. The Crown could attempt to
justify any violation as a reasonable limit under section 1, but it would have to
demonstrate that other measures short of anonymous testimony, such as the
use of partial anonymity measures – for example, publication bans, screens or
giving testimony from a remote location – would not be adequate. Even then,
courts would have to assess the adverse effects of anonymous testimony on
the accused’s rights, especially in challenging the credibility of the anonymous
witness, against the state’s interests in securing the anonymous testimony. Of
course, Parliament could enact legislation authorizing anonymous testimony
notwithstanding the legal rights in the Charter. Such legislation would have to
be renewed every five years.
Anonymous testimony would not only raise serious Charter issues, but also
practical issues. Even if Canadian courts followed the European example and
allowed anonymous testimony, pre-trial litigation would be necessary to decide
whether anonymous testimony was justified. Security intelligence agencies
and the police would not know in advance whether anonymous testimony
would be allowed. Moreover, the European jurisprudence, as well as the recent
British legislation on anonymous testimony, demonstrates a reluctance to allow
anonymous testimony to play a decisive role in a criminal prosecution. This
reluctance is related to the difficulties that the accused would have in challenging
150 R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307.
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the credibility of an anonymous witness and the dangers of miscarriages of
justice. Finally, the nature of clandestine terrorist plots may mean that, regardless
of court-ordered anonymity, the accused and their supporters may still be able
to determine the identity of an anonymous witness.
Before anonymous testimony can be justified, less drastic measures should be
exhausted. Several existing measures protect the identity of informers and
witnesses in terrorism cases. Measures discussed elsewhere in this volume,
such as the police informer privilege and orders under sections 37 and 38 of
the Canada Evidence Act, can prevent the disclosure of identifying information
about informers who do not testify. Other measures discussed in this chapter
can provide partial anonymity and protections against full public disclosure
when vulnerable people do testify. The use of pseudonyms may be particularly
important in allowing CSIS agents to testify, provided that the Crown makes
full disclosure of relevant information about the agent. The robust use of these
existing measures can be combined with enhanced and more flexible methods
of witness protection.
In light of all the legal and practical difficulties of anonymous testimony, present
conditions do not justify a recommendation that the government amend the
Criminal Code to allow anonymous testimony. However, these conditions
may change. The idea that anonymous testimony could be justified in some
terrorism prosecutions should not be dismissed out-of-hand. There is ample
evidence that witness intimidation frustrated the Air India investigation and
prosecution. The government should monitor the use of anonymous testimony
under the new British legislation and continue to study the legal and practical
implications of witness protection measures including, at the extreme end, the
possibility of using anonymous testimony. The government should be prepared
to reconsider the present prohibition on anonymous testimony if circumstances
warrant.
8.6 Witness Protection Programs
Although there are a variety of measures available to protect the identities of
witnesses and sources, there remains a real possibility that some informers
and most witnesses will have their identities exposed during testimony.
Canada’s apparent determination to prosecute terrorism offences also makes
it unlikely that the risk of exposing a witness or source would always persuade
prosecutors to drop charges.151 In addition, identity can sometimes be disclosed
inadvertently,152 and the full legal extent of protections from disclosure by means
of the police informer privilege and applications for judicial non-disclosure
orders under sections 37 and 38 of the Canada Evidence Act may not always
be clear. As a result, measures are needed to protect those whose identity is
151 See Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8912: “The more serious it [the offence] is,
the less discretion would be available.”
152 For example, in the Air India investigation, Ms. D’s name was released when a warrant application was
inadvertently left unsealed by the RCMP commercial crime section. This resulted in her entering
the Witness Protection Program much earlier than she had anticipated.
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disclosed. This leads to witness protection, a program adopted to manage the
consequences of disclosure of the identity of the witness and the resulting risk
to the witness and his or her family.
8.6.1 Responsibility for Protecting Witnesses
The protection of witnesses is the responsibility of the police force or agency
that intends to rely on that witness. RCMP Assistant Commissioner Raf Souccar
testified that, because of the RCMP’s leadership role in Integrated National
Security Enforcement Teams (INSETs), the RCMP is almost always responsible for
protecting witnesses in terrorism investigations. In cases where a source already
has a “handler” from another police agency, the source could be transferred to
the RCMP and an RCMP handler assigned to the source. As an alternative, the
handler from the police agency that first handled the source could be seconded
to the RCMP during the investigation.153
The practice of seconding a CSIS handler to the RCMP is noteworthy because
it may help to avoid the unfortunate treatment received by CSIS sources
when transferred to the RCMP during the Air India investigation. For example,
Mr. A was transferred from CSIS to the RCMP in March 1987 in an insensitive
manner which reduced his possible value as a source of information about Sikh
extremism and perhaps as a witness in the Air India prosecution. The handling
of Mr. A destroyed the rapport with him achieved by CSIS. Ms. E, who had a
good rapport with her CSIS handler, became completely alienated from the
authorities after her dealings with the RCMP.
CSIS may have established good relations with sources in the course of previous
terrorism investigations. CSIS officers may also have better foreign language
skills than their RCMP counterparts and also, perhaps, a greater sensitivity to
diverse cultures. Any redesigned system for witness and source protection
should permit as much continuity as is feasible in the handling of sources. This
is so even if it means that CSIS agents would continue to work with a source who
had been transferred to the RCMP and who may eventually testify in a terrorism
prosecution. CSIS agents who continue to work with sources must be familiar
with, and receptive to, the obligations of disclosure as well as the workings of
witness protection programs.
8.6.2 The Federal Witness Protection Program
Because of the central role of the RCMP in witness protection in terrorism
investigations, the Commission heard mainly about the protection measures of
the RCMP, particularly the federal Witness Protection Program (WPP).
The Witness Protection Program Act (WPPA) came into force in 1996, officially
establishing the WPP. However, formal witness protection measures in Canada
began more than a decade earlier. In 1984, the RCMP established its first major
153 Testimony of Raf Souccar, vol. 70, October 31, 2007, pp. 8896-8897.
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program, the “Source-Witness Protection Program,” because of heightened
concern about witnesses in national and international drug smuggling cases.
The program had no specific legislative authority. According to author Gregory
Lacko, the program was successful in that no protected witnesses (“protectees”)
were killed while enrolled. However, misunderstandings arose over protection
agreements. Some protectees complained, sometimes going as far as sacrificing
their anonymity to draw attention to their complaints. Complaints also came
before what was then called the RCMP Public Complaints Commission.154 This
led to the enactment of the WPPA in 1996, creating a more formal witness
protection regime, the Witness Protection Program (WPP).
Like many of its foreign counterparts155 and the earlier Source-Witness Protection
Program, the WPP was initially established for witness protection needs relating
to organized crime.156 The focus of the WPP continues to be on witnesses who
are hardened criminals or who lead a criminal lifestyle.157
Under the WPPA, “protection” may include relocation, accommodation and
change of identity, as well as counselling and financial support.158 The purpose
of the Act is not simply to facilitate protection for persons assisting the RCMP.
The Act also envisages protecting those assisting any law enforcement agency
or international criminal court or tribunal where an agreement is in place to
provide such protection.159 The Act also contemplates protection for those who
act as sources but not as witnesses, though it is generally seen and described as
a protection program for witnesses and their close relatives.
The Commissioner of the RCMP or his or her delegate160 determines whether
a witness should be admitted to the WPP and the type of protection to be
provided.161 In practice, the WPP is managed by RCMP Witness Protection
Coordinators located across Canada.162
The WPPA allows the Commissioner to enter into agreements with other law
enforcement agencies to permit a witness to be accepted into the WPP.163 He
may also enter into arrangements with provincial Attorneys General for the
same purpose. On the international front (important in the terrorism context),
154 Lacko Paper on Protection of Witnesses, p. 3.
155 For example, the American federal witness protection program, also known as the Witness Security
Program or WitSec, was established under the Organized Crime Control Act of 1970, Pub. L. No. 91-452,
84 Stat. 922, a statute aimed at combatting organized crime.
156 Lacko Paper on Protection of Witnesses, p. 3. The Source-Witness Protection Program became known
as the WPP following the enactment of the WPPA in 1996.
157 Testimony of Geoffrey Frisby, vol. 70, October 31, 2007, p. 8826. See also Testimony of Mark Lalonde,
vol. 68, October 29, 2007, pp. 8615-8616.
158 Witness Protection Program Act, s. 2.
159 Witness Protection Program Act, s. 3. Section 14 sets out the powers of the RCMP Commissioner and the
Minister of Public Safety to enter such agreements.
160 Witness Protection Program Act, s. 15.
161 Witness Protection Program Act, s. 5.
162 See Testimony of Raf Souccar, vol. 70, October 31, 2007, pp. 8893-8895 for an explanation of the
process through which the application of a witness, in this case an RCMP agent, is reviewed by a
coordinator and ultimately recommended for admission into the WPP.
163 Witness Protection Program Act, s. 14.
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the Minister of Public Safety, not the Commissioner, may enter into a reciprocal
arrangement with the government of a foreign jurisdiction to enable a witness
there to be admitted to Canada’s WPP. Similarly, the Minister may make
arrangements with international criminal courts or tribunals to admit witnesses
from those courts or tribunals to the Program.
As of 2007, there were about 1,000 protectees in the WPP, including 700
managed by the RCMP and 300 from other police forces. About 30 per cent
of these protectees were not witnesses, but individuals who had relationships
with witnesses.164
Other jurisdictions in Canada have created their own witness protection
programs – for example, Quebec, Ontario and the City of Montreal. British
Columbia established an Integrated Witness Protection Unit in 2003.165 These
programs are independent of one another and, except for the BC program, do
not necessarily involve the RCMP.166 Still, the RCMP can and does on occasion
work closely with these programs and it allows officers from these programs to
participate in RCMP witness protection training courses.167
8.6.3 Hardships Related to Living in the WPP
Souccar testified that entering the WPP is voluntary.168 This is technically correct.
However, the seriousness of threats against those who assist with terrorism
investigations and prosecutions may offer little choice but to enter the WPP.
Witnesses before the Commission emphasized the rigours and hazards of life in
the WPP. Geoffrey Frisby, a former WPP coordinator, described the program as
“very, very difficult” for anyone:
I don’t care who you are; whether you’re a hardened criminal
with a lengthy criminal record or whether you’re an individual
who just happened to witness be in the wrong spot at the
wrong time. To be able to adjust to the program and to what
the program entails, especially when we are looking at having
to take a person’s identity away from them and give them a
new identity. The problems that go with that are increased
tremendously with the more protective measures that you
provide to an individual.169
164 House of Commons Canada, Report of the Standing Committee on Public Safety and National Security,
Review of the Witness Protection Program, March 2008, p. 16, online: Public Works and Government
Services Canada <http://dsp-psd.pwgsc.gc.ca/collection_2008/parl/XC76-392-1-1-01E.pdf> (accessed
June 2, 2009) [House of Commons Report on the Witness Protection Program].
165 House of Commons Report on the Witness Protection Program, p. 4; Dandurand Paper on Protecting
Witnesses, pp. 64-65. Dandurand’s description of the integrated BC witness protection unit is an
interesting model for consideration, as it appears to integrate municipal police forces and the RCMP
under one set of policies.
166 However, the assistance of the WPP is necessary to obtain the federal documents required for a change
of identity. See Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8895.
167 Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8960.
168 Testimony of Raf Souccar, vol. 71, November 1, 2007, pp. 8974-8975.
169 Testimony of Geoffrey Frisby, vol. 69, October 30, 2007, p. 8794.
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RCMP Staff Sergeant Régis Bonneau described undergoing a change of identity
and entering the WPP as “…the most stressful things, I imagine, that [protected
witnesses and their families] can possibly have to go through in [their lives],”170
while RCMP Superintendent Michel Aubin characterized the WPP as “a lifealtering experience.”171
The human cost of participation in the WPP was also made clear in R. Malik and
Bagri, when Justice Josephson described the impact of witness protection on
Ms. D:
She emotionally described how being in the
witness protection program had cost her her
job, family and contact with friends.172
With the help of the RCMP, Commission counsel conducted a survey of WPP
protectees to learn more about life under witness protection.173 The results of
the survey and the testimony of witnesses highlighted many hardships that
protectees face.
First, protectees are almost inevitably relocated and may have to undergo a
change of identity. They often find being uprooted from their home, routine,
job and circle of friends particularly difficult. Many protectees report difficulty
with the idea of having to “live a lie” for the rest of their lives, and describe how
this can inhibit their ability to form lasting relationships in their new location.
Second, protectees generally experience difficulty because of their separation
from family members who either were not invited into the WPP or who refuse
to enter. Custody arrangements may also prevent a protectee’s children from
entering the WPP.174 The WPP can and does organize communication and
visits with children of protectees.175 However, visits are less frequent than most
protectees would like and do not come close to approximating the contact with
children that parents normally enjoy.176
Third, protectees often have difficulty finding employment and becoming selfsufficient in their new location. This often flows from problems in transferring
diplomas, work histories and references, as well as their need to receive training
in a new field and the heavy demands of their ongoing assistance to the
authorities.177
170
171
172
173
174
175
176
177
Testimony of Régis Bonneau, vol. 77, November 16, 2007, p. 9781 [translation].
Testimony of Michel Aubin, vol. 70, October 31, 2007, p. 8913.
R. Malik and Bagri, 2005 BCSC 350 at para. 353.
See the description of the survey in the statement of Commission counsel Louis Sévéno, vol. 77,
November 16, 2007, pp. 9746-9760. See also the accompanying PowerPoint presentation (Exhibit
P-298, Tab 1) and report, Summary, Analysis and Amalgamation of Responses by Protectees of the Federal
Witness Protection Program to a Survey Questionnaire Created by Commission counsel (Exhibit P-298,
Tab 2) [Witness Protection Survey].
Witness Protection Survey, pp. 16-17, question 43. See also Testimony of Geoffrey Frisby, vol. 70,
October 31, 2007, p. 8821.
Witness Protection Survey, pp. 10-11, question 26. See also Testimony of Régis Bonneau, vol. 77,
November 16, 2007, p. 9775.
Testimony of Régis Bonneau, vol. 77, November 16, 2007, p. 9775.
Witness Protection Survey, pp. 16-16, questions 39, 42.
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Fourth, certain protectees are unable to maintain their earlier lifestyles.178 WPP
administrators will generally liquidate a protectee’s assets before proceeding
with a change of the protectee’s identity. This liquidation can cause a serious loss
of capital for the protectee.179 The WPP strives to follow the “like-to-like” principle
and will often provide living allowances to protectees in need. However, the
Program is not generally able to match the salary of those witnesses who were
well off before.180
Finally, most protectees find WPP rules and conditions very difficult to follow,
especially restrictions on travelling back to the “danger zone” or contacting
friends and relatives in a non-secure manner.181
In short, it is almost impossible to overestimate the difficulty and emotional
burden of being separated from one’s community, and of then having to deny
one’s entire past and step away from one’s roots. Many protectees have left
the WPP because of these strict conditions.182 These conditions, along with
the obligation to relocate, are also cited by witnesses who refuse to enter the
WPP.183
The WPP is also unforgiving, at least on paper. Despite the extraordinary
challenges posed by having to remove oneself from one’s past, and the
understandable desire to maintain some contact with one’s former life, the
WPPA states that a “deliberate and material contravention of the obligations of
the protectee under the protection agreement” can lead to protection being
terminated.184
The WPP strives to improve the living conditions of protectees and reduce the
hardships of life in the WPP. Ways in which the Program can be improved are
discussed below. However, several profound hardships that flow from entering
and living in the WPP simply cannot be avoided. It is difficult to imagine how the
conditions of the WPP could be relaxed, for example, to facilitate a protectee’s
contact with his or her old community without seriously compromising safety.
Even if the Program improves, living under its restrictions will always be a
serious challenge for protectees, those who enter the Program with them and
those close to the protectee who remain outside the Program. For this reason,
the WPP must be viewed as a vital option for protecting witnesses, but almost
inevitably one with human costs.
178
179
180
181
Witness Protection Survey, p. 14, question 40.
Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8907.
Testimony of Régis Bonneau, vol. 77, November 16, 2007, p. 9784.
Testimony of Régis Bonneau, vol. 77, November 16, 2007, p. 9787. See also Witness Protection Survey,
pp. 18-19, question 52.
182 Testimony of Raf Souccar, vol. 70, October 31, 2007, pp. 8928-8929.
183 Lacko Paper on Protection of Witnesses, p. 15. See also, for example, Exhibit P-273, Tab 10: Witness
Protection Program Act, Annual Report 2005-2006.
184 Witness Protection Program Act, s. 9(1)(b).
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
8.6.4 Additional Challenges of Living in the WPP in Terrorism Matters
8.6.4.1 Minority Communities
The presence in some ethnic, cultural and/or religious communities of some
individuals involved in activities that threaten the security of Canada makes
gathering intelligence from within these communities vital. It is essential that the
law-abiding majorities in communities be able to provide valuable information
to the justice system and that they be protected from intimidation and violence
should their assistance become known.
On occasion, the identity of community members who assist security
intelligence agencies and the police in terrorism investigations can be kept
secret. However, some community members who assist the authorities and
testify in terrorism prosecutions may need to enter the WPP. For example, one
witness who testified at the Air India trial entered the WPP.185 It was therefore
important for the Commission to assess whether the WPP can meet the needs
of individuals from minority communities. Both current and former WPP
officials testified about the specific challenges that can arise.
Challenges regarding language skills: Some members of minority
communities, especially those who have recently arrived in Canada, may not
feel comfortable speaking either of the country’s official languages. This makes
it more difficult to deal with WPP officials, to understand rights and obligations
flowing from a protection agreement, to undergo psychological assessments
(a component of the WPP) and to benefit from the services offered through the
WPP, such as career counselling and educational programs.
In addition, protectees who were able to live and function normally in their
original minority community using their mother tongue may find it impossible
to function in a different community where that language is uncommon. This
limits the options for relocating protectees.
Souccar told the Commission that to meet the challenge presented by language
barriers, the WPP and the RCMP do their best to attract as much diversity
as feasible within the WPP to reflect the communities which they serve.186
Nevertheless, the success of this initiative, established for the entire range of
services offered by the RCMP, remains unproven. The initiative constitutes at
best a work-in-progress. Souccar also said that the WPP routinely provides
protectees with translation services, especially to ensure that they understand
the implications of protection agreements.187 However, these measures do
not resolve the difficulties of moving to a community where the protectee’s
language is not commonly used.
185 See R. v. Malik and Bagri, 2005 BCSC 350 at paras. 352-353.
186 Testimony of Raf Souccar, vol. 71, November 1, 2007, p. 8971.
187 Testimony of Raf Souccar, vol. 71, November 1, 2007, pp. 8971-8972.
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Relocation sites: If the protectee is a member of a visible minority, there may
be fewer relocation choices. A protectee would be more easily identified in a
small community that lacks others from that minority group. The wearing of
traditional or religious garb, as well as distinctive features such as a long beard or
tattoos, could increase the risk of being identified.188 This problem may diminish
as Canada, and especially its urban centres, continues to increase in diversity.
Even if a protectee moves to another province, a significant risk of being identified
remains. Souccar attributed this to the closeness of some communities across
the country:
It is certainly a challenge depending on the communities,
the ethnic communities and their closeness, if you will. The
relationship between the same ethnic community in one
province perhaps to another. It is a challenge. We work with
the individuals who may need protection or relocations to
find out what, if any, concern he or she may have in term of
relocation and being identified.189
However, Bonneau told the Commission that Canada has many large cities in
which to relocate members of visible minorities and that this issue was therefore
not of particular concern to him.190
Limitations on religious freedoms: To reduce the risk to protectees, the WPP
generally requires that they not engage in activities that would place them in
contact with people who could discover their real identity. This may involve
restricting a protectee’s place and manner of worship.191 Because of this, there
is a risk that the WPP will be perceived as being insensitive to the cultural and
religious customs of minority communities.192 As well, the pressure to stay away
from religious activities could dissuade many who might otherwise help with
terrorism investigations and prosecutions. The WPP should be sensitive to these
concerns and seek whenever possible to accommodate the religious practices
of protectees.
8.6.4.2 Lack of WPP Benefits beyond Protection
Not surprisingly, the evidence before the Commission shows that the major
focus of the WPP continues to be on witnesses who are hardened criminals
or who lead a criminal lifestyle.193 These individuals will not see entering the
WPP as problem-free, but may recognize it as providing a chance to improve
188
189
190
191
192
193
Testimony of Geoffrey Frisby, vol. 70, October 31, 2007, pp. 8832-8833.
Testimony of Raf Souccar, vol. 70, October 31, 2007, pp. 8937-8938.
Testimony of Régis Bonneau, vol. 77, November 16, 2007, p. 9785.
Testimony of Geoffrey Frisby, vol. 70, October 31, 2007, pp. 8832-8833.
Testimony of Régis Bonneau, vol. 77, November 16, 2007, pp. 9785-9786.
Testimony of Geoffrey Frisby, vol. 70, October 31, 2007, p. 8826. See also Testimony of Mark Lalonde,
vol. 68, October 29, 2007, pp. 8615-8616.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
their lives and get a fresh start. WPP benefits include drug rehabilitation, career
training and counselling.194 For witnesses who are poor, the WPP ensures a
better standard of living.
For those without a criminal past, such as many witnesses and sources in
terrorism matters, the benefits mentioned above are less significant (apart from
the vital core benefit of protection). Witnesses and sources with no criminal
antecedents have fewer reasons than criminals for enduring the hardships of
witness protection programs. As a corollary, potential witnesses and sources
in terrorism matters have a greater incentive than criminals to withhold useful
information from investigators to avoid the need to enter witness protection.
The WPP does not differentiate between the protective measures offered to lawabiding individuals and those offered to career criminals. Souccar testified that,
because of its enabling legislation and policies, the WPP’s “hands are tied” in the
protection that it can offer to “innocent” witnesses, even though WPP officers
feel more sympathy for them.195
Souccar told the Commission about alternative measures that the police might
be able to provide for those who do not enter the WPP, but said that these will
often give insufficient protection against a terrorist organization.
All of this points to a need for extra attention within the WPP to make the
conditions of the WPP less difficult for witnesses in terrorism cases. In fact, the
RCMP has taken steps to soften the harshness of life in the WPP. Measures have
included provisions for more frequent visits with family members and the use of
systems to ensure safe communications between protectees and those outside
the WPP.196
8.6.5 Alternative Measures to Protect Witnesses
Because the WPP entails a serious, sometimes intolerable, disruption of the lives
of those who require protection, authorities should treat the WPP as the last
resort for those at risk, to be used only when less confining protection measures
are inadequate or inappropriate.
In fact, the WPPA instructs the RCMP Commissioner to consider “…alternate
methods of protecting the witness without admitting the witness to the
Program.”197 These alternate methods are not explicitly catalogued in any RCMP
policy. However, witnesses told the Commission that a number of measures
may be available,198 according to the level of threat to the witness199 and the
194 Testimony of Geoffrey Frisby, vol. 70, October 31, 2007, p. 8843.
195 Testimony of Raf Souccar, vol. 70, October 31, 2008, pp. 8910-8911.
196 Testimony of Michel Aubin, vol. 70, October 31, 2007, p. 8913. See also Testimony of Raf Souccar, vol.
71, November 1, 2007, pp. 8988-8989.
197 Witness Protection Program Act, s. 7(g).
198 Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8902. See also Testimony of Mark Lalonde, vol.
68, October 29, 2007, pp. 8611-8612.
199 This requires an evaluation of the threat to the witness, a threat assessment, which, in
the terrorism context, is likely to be conducted at the INSET level, with the cooperation
of all partners.
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comfort of the witness with the measures. These measures can be used, for
example, where the risk to the witness does not warrant admission to the WPP
or where the WPP is not an option, either because the witness refuses to enter
or is considered unfit for it.200
Security at the home of a witness might be enhanced by an alarm system,
surveillance cameras, bars on windows, and by giving the witness and family
members emergency emitters (“panic buttons”).201 Witnesses may receive cell
phones to facilitate contact with the police, and patrol cars may make frequent
rounds in the neighbourhood of the witness.202 The degree and nature of police
presence can vary according to the immediate risk, with an extreme case
warranting around-the-clock protection by an emergency response team.203
The threat is sometimes limited to a geographical area. Relocation to another
neighbourhood may be sufficient to avoid threats from a local gang.204 In other
cases, the need for protection may dissipate with time – after a trial ends, for
example. Temporary relocation may resolve the problem here too. However,
such measures may not be sufficient in terrorism cases where an extremist
organization has a powerful ideological drive, international reach and few
scruples about silencing those who work against its interests.
On occasion, a witness who refuses to enter the WPP or is not suitable for
the Program is offered a lump sum to pay for private protection services.205
In exchange, the witness signs an agreement to release the WPP from any
protection obligations or further liability. This type of payment arrangement is
under some circumstances also offered to witnesses who leave the WPP, but not
if payment has already been made for a permanent relocation site.206
The lump sum offered to a witness usually equals the WPP’s estimate of the cost
of protecting the witness (and family) for one year.207 Souccar testified that, “…
[w]e’re not going to pay him an amount that is insignificant as compared to
what he needs to do to protect himself.”208 An RCMP document showed that
between January 1, 2004, and September 13, 2007, 34 witness protection cases
were resolved through release and indemnity agreements, with an average
payment of $30,000.209
200 Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8902.
201 Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8911.
202 Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8911. See also Testimony of Mark Lalonde, vol.
68, October 29, 2007, p. 8613.
203 Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8911.
204 Testimony of Mark Lalonde, vol. 68, October 29, 2007, pp. 8612-8613. See also Testimony of Geoffrey
Frisby, vol. 69, October 30, 2007, pp. 8791-8792 and Testimony of Yvon Dandurand, vol. 68, October 29,
2007, pp. 8684-8685.
205 Testimony of Raf Souccar, vol. 70, October 31, 2007, pp. 8931-8932.
206 Testimony of Michel Aubin, vol. 70, October 31, 2007, p. 8929.
207 Testimony of Régis Bonneau, vol. 77, November 16, 2007, pp. 9801-9802.
208 Testimony of Raf Souccar, vol. 70, October 31, 2007, pp. 8931-8932.
209 Exhibit P-273, Tab 12: R&I Payments by RCMP Regional/Divisional SWP Units, January 1, 2004September 13, 2007.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
Witnesses who receive lump-sum payments generally either relocate or
implement security measures through private security firms. Using private
security firms allows a witness to tailor protection as the witness sees fit. Some
witnesses who would balk at the strict conditions of the WPP may be willing
to accept private security protection because they have more control over the
constraints imposed by the protection.
With private security arrangements, continued protection is not linked to the
cooperation of the witness with the police and Crown. However, the cost of
private protection can be high, especially where the witness needs around-theclock protection. A $30,000 lump sum will not go far in such cases. In contrast,
witnesses entering the WPP are free of worry about the cost of protection since
the RCMP absorbs all costs.
Alternative measures may provide adequate protection in some cases. However,
former WPP coordinator Geoffrey Frisby told the Commission that nothing short
of admission into the WPP will guarantee the safety of an exposed witness in
some situations, and the RCMP will not in such cases offer alternative measures.
To do less than what is necessary to make the witness safe, he testified, would
be negligent.210
Indeed, the single-mindedness of some extremist groups and their willingness
to resort to violence to further their objectives means that witnesses and sources
whose identities are revealed may often require the extensive protection offered
by the WPP. Alternative measures simply may not work.
8.6.6 Organizational Problems in the WPP
8.6.6.1 The Need to Consider the Interests of All Parties in Terrorism
Prosecutions
Terrorism investigations and prosecutions can involve many more agencies and
departments than other criminal investigations and prosecutions. In gathering
intelligence, CSIS will generally play a large role in terrorist investigations and
can more easily develop sources in the terrorism milieu than can police agencies.
Other agencies may include the RCMP, the National Security Advisor,211 the
proposed Director of Terrorism Prosecutions,212 federal and provincial Crown
prosecutors, Public Safety Canada, Immigration Canada, the Correctional Service
of Canada and the Department of Foreign Affairs and International Trade.
Whenever a terrorism prosecution is contemplated, the institutions likely to be
affected should be able to express their views about the needs and methods
of protecting witnesses and sources. The imposition of expanded disclosure
obligations on CSIS as a result of the 2008 Charkaoui213 decision may mean that
210
211
212
213
Testimony of Geoffrey Frisby, vol. 70, October 31, 2007, p. 8851.
See Chapter II for a discussion of proposals for enhancing the role of the National Security Advisor.
See Chapter III for discussion of this proposed position.
2008 SCC 38, [2008] 2 S.C.R. 326.
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CSIS sources, even if not required to testify, risk being exposed because of a
decision by the Crown to prosecute for a terrorism offence. Given the importance
that CSIS attaches to keeping the identity of its sources secret, CSIS needs a
voice in decisions that might reveal the identity of those sources.
Police and prosecutors may want CSIS intelligence used as evidence by having
CSIS sources testify at trial, as happened in the Air India trial. CSIS has a strong
interest in ensuring that promises it made to sources, particularly about their
anonymity and treatment, are not broken when those sources are transferred
to the RCMP. In addition, the value to CSIS of maintaining the anonymity of
some sources may exceed the value of those sources for any one particular
investigation and prosecution. CSIS may not want to risk ruining ongoing
or future intelligence operations about serious threats for the sake of one
prosecution. The person holding the enhanced position of National Security
Advisor, discussed in Chapter II, will in some cases be able to make decisions
about whether preserving the anonymity of CSIS human sources is in the public
interest.
If CSIS sources do eventually become witnesses, CSIS will have an interest in
ensuring that they receive appropriate witness protection. A failure to provide
adequate protection could dissuade others from becoming sources for CSIS and
make existing sources reluctant to cooperate further. The CSIS handler may be
an important resource in ensuring as smooth a transition as possible from secret
human source to witness. There is a need for a person to be in charge and to
oversee the transfer of human sources from CSIS to the RCMP as part of the
relationship between intelligence and evidence. As discussed later, this person
should work closely with both CSIS and the RCMP, but also be independent from
the two agencies.
There is also a need to involve prosecutors in matters of witness protection.
Prosecutors ultimately make decisions about whether and how to proceed with
a prosecution and whether to continue a prosecution in light of a disclosure
requirement that may place the life of a witness or source in jeopardy.
Prosecutors are responsible for making claims of informer privilege and claims
under sections 37 and 38 of the Canada Evidence Act. They are also required to
justify to the court the use of partial anonymity measures to protect vulnerable
witnesses. As discussed in Chapter III, many of these prosecutorial functions
in terrorism cases should be performed by the proposed Director of Terrorism
Prosecutions.
8.6.6.2 Lack of Firewall between Investigative Units and the WPP
At present, the Commissioner of the RCMP is responsible for the WPP. Because the
ultimate decision-making power in the WPP currently resides within the RCMP,
which also has an interest in seeing investigations and prosecutions proceed,
the lack of an effective “firewall” can create the impression that the interests
of the protectee might be sacrificed to serve the ends of an investigation. A
perception that the Program is not fair will deter potential witnesses from
coming forward.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
The RCMP claims to have established a firewall between its investigative and
WPP units to ensure the independence of the investigative function from the
witness protection function. However, the evidence before the Commission
shows that the firewall has not achieved an adequate separation.214 As a result,
investigative units may inappropriately interfere with the protective measures
offered to protectees, to their detriment.
The House of Commons Standing Committee on Public Safety and National
Security recommended that the RCMP not make decisions about witness
admission and protection agreements, but that it should be responsible for threat
assessments, determining the necessary level of security and implementing
protective measures.215
8.6.6.3 Inadequate Conflict Resolution Mechanisms
The very nature of witness protection implies a significant power imbalance
between the protectees and those protecting them. This imbalance permeates
the current conflict resolution and complaints process.216 Protectees require
RCMP assistance to remain safe, so they are naturally reluctant to raise complaints
about the way the RCMP runs the WPP. Dandurand testified that one of the main
challenges of conflict resolution in the WPP is that protectees find themselves
in conflict with the organization that affords them the protection they need.217
Since all current methods of dispute resolution are initiated by the protectees,
Dandurand maintained, protectees will be reticent about asserting their rights.
Asserting rights through a complaint amounts to “biting the hand that feeds
them.”218 [translation]
The conflict resolution process for protectees begins at the level of the WPP
handler or coordinator, where most disagreements can be resolved.219 However,
if a protectee is not satisfied by a decision taken at this level, the complaint
214 Geoffrey Frisby testified that, in his experience, the policy of a strict firewall between protective
and investigative units is “not real at all”: Testimony of Geoffrey Frisby, vol. 70, October 31, 2007,
p. 8827. Frisby spoke of instances of contact between investigators and their protected witnesses
in which the investigators attempted to sway a WPP unit’s decision regarding a given witness and
his/her treatment: Testimony of Geoffrey Frisby, vol. 70, October 31, 2007, pp. 8825-8826. Régis
Bonneau also described communications between investigators and witness protection to resolve
conflicts as “an avenue that’s used regularly” [translation]: Testimony of Régis Bonneau, vol. 77,
November 16, 2007, p. 9792. Furthermore, the funding for the protection measures extended to a
given protectee comes from the investigative budget. This further decreases the independence of
the WPP from the rest of the RCMP: see, for example, Testimony of Régis Bonneau, vol. 77, November
16, 2007, pp. 9800-9801. Finally, the Commission heard that what little independence may exist
at the level of the coordinators is nearly erased at the upper levels of the RCMP, since the officers
who are ultimately responsible for the WPP, the Commissioner and the Assistant Commissioner,
Federal and International Operations, also oversee the operations of investigative units: Testimony
of Anne-Marie Boisvert, vol. 69, October 30, 2007, p. 8756.
215 House of Commons Report on the Witness Protection Program, p. 26.
216 Testimony of Paul Kennedy, vol. 70, October 31, 2007, p. 8875.
217 Testimony of Yvon Dandurand, vol. 69, October 30, 2007, p. 8703.
218 Testimony of Yvon Dandurand, vol. 69, October 30, 2007, p. 8704.
219 Testimony of Régis Bonneau, vol. 77, November 16, 2007, pp. 9790-9791. According to Bonneau,
roughly 50 per cent of all complaints are resolved at this level.
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may be addressed to more senior officers of the WPP/RCMP, and make its way
eventually to the Commissioner or his or her delegate.220 Bonneau estimated
that roughly 75 per cent of all protectee complaints can be resolved within the
RCMP.221
For those issues that cannot be resolved within the RCMP to a protectee’s
satisfaction, the protectee may complain to the Commission for Public
Complaints Against the RCMP (CPC). However, this option is often of little use
to the protectee, since the CPC does not generally receive full access to the
documents it might require to render a decision. Furthermore, its decisions are
not binding on the RCMP Commissioner, who may substitute findings of fact or
simply ignore the decision. For these reasons, the CPC does not appear to be
the ideal venue for complaints from protectees in terrorism matters.
The only option today for a protectee to obtain a decision that binds the RCMP
is to take time-consuming legal action. This usually involves either filing a civil
action in provincial courts or presenting a certiorari or mandamus motion in the
Federal Court. Adding to this problem is the lack of readily available legal advice
on the merits of complaints against the RCMP.
Any new witness protection program should aim to render unnecessary any
reliance on either the CPC or litigation. A new program should be more witnesscentred and take the interests of witnesses into account in protection matters.
It should also include dispute resolution mechanisms that respect the absolute
need for confidentiality in witness protection matters.
There should be continuity with respect to dispute resolution so that a single
grievance, that might not seem serious if viewed in isolation, can be seen in the
broader context of the protectee’s entry and history in the Witness Protection
Program. As has been suggested, an independent person could play an
ombudsperson’s role in resolving disputes about protection.222 In addition,
private and binding arbitration by a retired judge or other respected individual,
preferably legally trained, could also play a role. A binding arbitration clause
could be included in protection agreements that would prevent protectees
from litigating their disputes in the courts, at least at first instance, in exchange
for an efficient, credible and confidential system of dispute resolution. Such an
approach is especially necessary in the terrorism context, where sensitive national
security matters might complicate the resolution of protectee concerns.
8.6.6.4 The Need to Restructure the WPP in Terrorism Matters
The current WPP model is ill-suited for terrorism matters for the three main
reasons described earlier:
220 Testimony of Régis Bonneau, vol. 77, November 16, 2007, pp. 9790-9791. Currently, the Commissioner’s
delegate, according to s. 15 of the Witness Protection Program Act, is the RCMP’s Assistant
Commissioner, Federal and International Operations.
221 Testimony of Régis Bonneau, vol. 77, November 16, 2007, p. 9791. According to Bonneau, roughly 50
per cent of all complaints are resolved at the level of the handler and coordinator, while another 25 per
cent are resolved by officers in the upper echelons of the RCMP.
222 Testimony of Mark Lalonde, vol. 68, October 29, 2007, pp. 8651-8652.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
• The WPP is not equipped to provide continuity in the handling of
CSIS sources who may become witnesses;
• The approach of the WPP is too rigid to respond to the varying
needs of witnesses in terrorism cases and is based on an implicit
assumption that most protectees have a criminal background; and
• The management functions of the WPP lack independence from the
investigative teams within the RCMP.
These reasons provide a strong case for the adoption of a terrorism-specific
approach when dealing with the witnesses and sources who may help in
terrorism investigations and prosecutions. They also point to a need to facilitate
the interagency cooperation that is essential for effectively dealing with
terrorism.
8.6.7 A New Body to Manage Witness Protection: A National Security
Witness Protection Coordinator
Recent reviews of witness protection issues have favoured establishing a separate
body to administer and manage the WPP. For example, the House of Commons
Standing Committee on Public Safety and National Security recommended this
approach its March 2008 report:
[E]ntrust the administration of the Witness Protection Program
to an independent Office within the Department of Justice. A
multidisciplinary team from the Office, which could consist
of police officers, Crown attorneys and psychologists and/or
criminologists with appropriate security clearance, should be
responsible for making decisions about witness admission and
for monitoring of protection agreements. Police forces should
be responsible for threat assessments, determining the level of
security and implementing the protective measures.223
The Standing Committee reasoned that a multidisciplinary team would be in a
much better position to “…strike a balance between the public interest (vis-à-vis
the risk posed by a witness’s participation in the Program) and the interests of
the prosecution (from the police standpoint).”224 The Committee referred to the
testimony before it of Nick Fyfe, Director of the Scottish Institute for Policing
and Research and Professor of Human Geography. Fife testified that “…having
that kind of group taking those decisions, one that is slightly removed from the
police, may offer a more independent and perhaps more dispassionate view of
whom it is appropriate to protect and who would be included and who should
be excluded from these programs.”225
223 House of Commons Report on the Witness Protection Program, p. 26.
224 House of Commons Report on the Witness Protection Program, pp. 25-26.
225 House of Commons Report on the Witness Protection Program, p. 26.
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Dandurand, former police officer Mark Lalonde and Boisvert also stated their
support for reform similar to that proposed by the Standing Committee.226
Dandurand testified that an independent organization would enhance the image
and credibility of the WPP. Individuals who were considering cooperating in an
investigation or prosecution would immediately know that they were dealing
with an organization that had a mandate to protect them, rather than simply
to conduct investigations. “[I]n terms of perceptions,” he testified, “it is crucial.”227
[translation]
Separate administration of witness protection matters may also enhance the
credibility of witnesses. The fact that a witness receives money for assistance or
a living allowance for protection may undermine the credibility of the witness at
trial. The defence may argue that the testimony of the witness is being “bought”
by the police or the Crown. However, there will be less merit in such claims if
a separate body decides the awards and living allowances. Such a separate
body, headed by a person who inspires public confidence, may also be able to
explain the need for protection measures including, when necessary, lump sum
payments. The person heading this body should not hesitate to speak out about
the difficult situations experienced by some witnesses, as well as of the vital
public service that witnesses provide.
Some parties before the Commission rejected the notion of a separate body
to administer witness protection. For example, Souccar argued that only the
police have the experience and expertise to handle and protect human sources,
and also to admit them to and terminate them from the WPP.228 He was satisfied
that, although some improvements were warranted, the WPP was working well
and that “it’s not broken.” In its Final Submission, the Air India Victims Families
Association (AIVFA) recognized the need for independence of the investigative
and protective units, but argued that an independent agency would lack
expertise and that it did not make sense to create one.229
The core logic in proposals for a new agency is to insulate decisions about
protection of witnesses from decisions about investigations and prosecutions.
Decisions about witness protection have direct implications which go beyond
policing, affecting in particular the rights and interests of the witnesses and,
more broadly, the administration of justice. Boisvert argued that it would be
inappropriate to leave decisions about using the services of a witness and
offering witness protection in the hands of the police exclusively:
When you want to establish procedures and use the services
of a collaborator for whom the human cost will be significant,
a decision must be made as to how justice can best be
226 Testimony of Yvon Dandurand, vol. 69, October 30, 2007, pp. 8707-8708; see also Testimony of Mark
Lalonde, vol. 68, October 29, 2007, pp. 8652-8653 and Testimony of Anne-Marie Boisvert, vol. 69,
October 30, 2007, pp. 8745, 8765.
227 Testimony of Yvon Dandurand, vol. 69, October 30, 2007, p. 8735.
228 Testimony of Raf Souccar, vol. 71, November 1, 2007, pp. 8968-8969.
229 AIVFA Final Written Submission, pp. 171-172.
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served. An analysis must be conducted … a cost-benefit
analysis naturally, but also an analysis of the human cost and
the decision’s impact on the administration of justice. In my
opinion, this decision should not be left to just the police.
The police are certainly major players. They have significant
expertise, but it seems to me that it isn’t for the police to
determine, on their own, whether to use a witness who will
then have to be protected, and whether, ultimately, the case
will be prosecuted.230 [translation]
Many jurisdictions, including Belgium,231 Italy232 and Quebec, use a multidisciplinary
approach to witness protection, an approach also supported by the recent House
of Commons Standing Committee on Public Safety and National Security.233
In Quebec, witness protection decisions were recently removed from the Sûreté
du Québec, although it continues to provide physical protection. Decisions about
other aspects of protection are now made by a committee with representatives
from four agencies: the Department of Justice (Québec), the police force that
recruited the witness, the Ministère de la sécurité publique and the Direction
générale des services correctionnels.234 No prosecution may use the testimony
of a “collaborator” witness until a protection agreement is negotiated with the
committee.
In terrorism matters, the bodies likely to have the interest and expertise to be
involved in decisions regarding witness protection include the RCMP, CSIS,
the National Security Advisor (Privy Council Office), the federal Department of
Justice as represented by the proposed Director of Terrorism Prosecutors, Public
Safety Canada, Immigration Canada, the Correctional Service of Canada and,
especially when international agreements are involved, the Department of
Foreign Affairs and International Trade.
There is a danger that putting representatives of each of these agencies on a
committee that has decision-making power might result in bureaucracy and
delay. This would be dangerous, given that decisions in terrorism matters
230 Testimony of Anne-Marie Boisvert, vol. 69, October 30, 2007, p. 8765.
231 In Belgium, the Witness Protection Commission, an independent agency comprising representatives
from the Attorney General, the King’s Counsel, the General Directorate for Operational Support,
the Ministry of Justice and the Ministry of the Interior, decides any matters relating to the extension,
modification or removal of protective measures for witnesses, as well as financial awards/aid.
See Anne-Marie Boisvert, “La protection des collaborateurs de la justice: éléments de mise à jour de
la politique québécoise” (June 2005), p. 20, online: Sécurité publique Québec <http://www.msp.
gouv.qc.ca/police/publicat/boisvert/rapport_boisvert_2005.pdf> (accessed June 2, 2009)
[Boisvert Report on the Protection of Justice Collaborators].
232 In Italy, the Central Witness Protection Commission makes the decisions to admit or refuse witnesses,
based on recommendations from government prosecutors. Another agency, the Central Witness
Protection Service, is responsible for the practical aspects of the program. This last agency is part of the
Criminal Police Central Directorate, which answers to the Department of Public Security: Boisvert
Report on the Protection of Justice Collaborators, p. 20.
233 House of Commons Report on the Witness Protection Program, pp. 25-26.
234 See Boisvert Report on the Protection of Justice Collaborators, p. 14.
237
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may have to be made quickly. For example, an intelligence investigation may
discover evidence of criminality and quickly have to be converted into a criminal
investigation. Arrangements for the protection of CSIS sources may have to be
made quickly in such cases. Even where the Crown will assert police informer
and other privileges, the National Security Witness Protection Coordinator
will need to have contingency plans that can be implemented quickly should
identifying information about a human source be disclosed.
To ensure quick and decisive action, the Commission calls for the creation of
a position of “National Security Witness Protection Coordinator” to deal with
witness protection issues in terrorism matters. Wherever possible, this person
should consult closely with the various agencies listed above. In almost all
cases, the Coordinator will have to work very closely with CSIS, the RCMP and
prosecutors. At the same time, the Coordinator should be independent of all
these agencies and have ultimate power to make decisions in witness protection
matters.
The National Security Witness Protection Coordinator would generally become
involved after a decision has been made to commence a terrorism prosecution
that would require witness and source protection. The National Security
Advisor235 may have already carefully examined the case and may have even
consulted the National Security Witness Protection Coordinator to obtain
independent advice about witness protection options. In appropriate cases,
the National Security Advisor may have made a decision, such as that made in
the post-bombing investigation in the Air India case, that CSIS sources should
be made available to the RCMP.
The National Security Witness Protection Coordinator’s mandate would
include:
• assessing the risks to potential protectees resulting from disclosure
and prosecutions, as well as making decisions about accepting
an individual into the Witness Protection Program and the level of
protection required;
• working with relevant federal, provincial, private sector and
international partners in providing the form of protection that best
satisfies the particular needs and circumstances of protectees;
• ensuring consistency in the handling of sources and resolving
disputes between agencies that may arise when negotiating
or implementing protection agreements (this function would
be performed in consultation with the National Security Advisor);
• providing confidential support, including psychological and legal
advice, for protectees as they decide whether to sign protection
agreements;
• negotiating protection agreements, including the award of
payments;
235 As explained in Chapter II.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
• providing strategic direction and policy advice on protection
matters, including the adequacy of programs involving
international cooperation or minors;
• providing for independent and confidential arbitration of disputes
that may arise between the protectee and the program;
• making decisions about ending a person’s participation in the
program;
• acting as a resource for CSIS, the RCMP, the National Security
Advisor and other relevant agencies about the appropriate
treatment of sources in terrorism investigations and management
of their expectations;
• acting as an advocate for witnesses and sources on policy matters
that may affect them and defending the need for witness
protection agreements in individual cases.
The National Security Witness Protection Coordinator would not be responsible
for providing physical protection. That function would remain with the RCMP or
other public or private bodies that provide protection services and that agree to
submit to confidential arbitration of disputes by the Coordinator.
The Coordinator would not recruit sources or make decisions about the
coordination of intelligence or the appropriateness of criminal prosecutions.
Such matters would fall to the National Security Advisor and to the appropriate
prosecuting authorities. The Coordinator could, however, provide advice to
the National Security Advisor and to prosecutors about options for witness
protection.
The position of the National Security Witness Protection Coordinator would
be recognized in amendments to the Witness Protection Program Act. These
amendments would also mean that the RCMP Commissioner would no longer
administer the Witness Protection Program in national security matters.
The National Security Witness Protection Coordinator should be a respected,
independent individual, such as a retired judge, who would be chosen for his
or her knowledge and experience in criminal law, national security issues and
witness protection. He or she could consult widely, but ultimately would have
the power to make final and binding decisions about witness protection in
terrorism cases.
The Coordinator should provide an impartial public interest perspective in
disputes between intelligence and police agencies. Perhaps as important,
the Coordinator could serve as a voice for the witnesses and sources whose
lives may be so profoundly affected by matters of witness protection. Finally,
the Coordinator could press the government for appropriate resources and
cooperation in witness protection matters. The Coordinator would have ready
access to the National Security Advisor. In cases where the National Security
Advisor had made decisions involving the transfer of sensitive sources from CSIS
to the RCMP, the Coordinator would work closely with CSIS and the RCMP to
239
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ensure that the transition would be as smooth as possible. This is the minimum
required if intelligence provided by secret CSIS sources is to be converted into
testimony in a terrorism prosecution.
The Coordinator’s independence would allow him or her to defend the terms of
witness protection agreements. Because the police would have no control over
administration of witness protection, there would be no appearance that the
police were “buying” testimony through an offer of witness protection.
The Coordinator should stress flexibility and the need for quick and decisive
action in matters of witness protection. The Coordinator should not take a “onesize-fits-all” approach to protection. He or she should look at each case and try
to devise workable and sustainable protection agreements that minimize the
considerable hardships relating to life under witness protection.
Life under the WPP will never be easy, and the National Security Witness
Protection Coordinator should consider alternative protection measures,
including international transfers, lump sum payments and arrangements
with the private sector. Such measures may in some cases be just as effective
in providing safety and peace of mind for witnesses as their entry into a lifechanging witness protection program. The Coordinator should consider the
least restrictive protective options that provide sufficient protection. He or she
should be a creative, hands-on presence in matters of witness protection.
The RCMP and CSIS will, of course, remain free to develop their own sources
and agents. However, the National Security Witness Protection Coordinator,
perhaps in consultation with the proposed Director of Terrorism Prosecutions,
could provide guidance to the agencies that would discourage handlers from
acting improperly, such as by using deceit, showing insensitivity about problems
that witnesses and sources encounter, and making inappropriate or unrealistic
promises of anonymity. The Coordinator could also conduct “lessons learned”
analyses of past cases to enable the agencies to make better source handling
decisions in the future.
Although some aspects of witness protection agreements for those who
testify may be subject to disclosure under the broad disclosure rights set out
in Stinchcombe236 or as records held by third parties under O’Connor,237 other
aspects may be covered by informer privileges or by specified public interest
or national security privileges under sections 37 and 38 of the Canada Evidence
Act. In addition, section 11 of the Witness Protection Program Act prohibits the
direct or indirect disclosure of the location or change of identity of a person
who is in or has been in the WPP, subject to limited exceptions including when
the innocence of the accused is at stake.
236 [1991] 3 S.C.R. 326. See Chapter V for a discussion of the breadth of such disclosure obligations. For an
application of Stinchcombe with respect to witness protection matters, see R. v. McKay, 2002 ABQB
335.
237 [1995] 4 S.C.R. 411. See Chapter V for a discussion of these procedures for obtaining records from a
third party not subject to Stinchcombe. For an application of O’Connor with respect to witness
protection matters, see R. v. James; R. v. Smith, 2006 NSCA 57, 209 C.C.C. (3d) 135.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
For purposes of the informer privilege, the National Security Witness Protection
Coordinator should be considered a part of law enforcement, and it should
be clear that the passing of information to the Coordinator would not in itself
defeat claims of informer privilege.238
The assignment of powers to the National Security Witness Protection Coordinator
to make witness protection decisions avoids the danger of creating one more
layer of bureaucracy that might be required should an interdisciplinary and
multi-agency committee have the power to make decisions. The Coordinator
could and should consult with multiple agencies.
There should be firm time limits for decisions about witness protection. The
requirements for witness protection must be widely known and generous. The
most efficient organizations to spread the knowledge would be agencies such
as the RCMP and CSIS.
8.6.7.1 Judicial Review of the National Security Witness Protection
Coordinator’s Decisions
In the absence of a privative clause, the National Security Witness Protection
Coordinator’s work could be subject to judicial review pursuant to the Federal
Courts Act.239 In the Commission’s view, the decision by the Coordinator to
admit or refuse a person entry into a witness protection program should not be
subject to judicial review. Still, there may be a role for judicial review of disputes
between protectees and those who administer the program, but only after
they have exhausted an internal and confidential mediation and arbitration
processes.
8.6.7.2 The Decision to Admit or Refuse Entry to Witness Protection
Admission to witness protection must advance the particular investigation and
also be in the public interest. To assess the public interest, a broad set of factors
must be considered.
The factors will vary from case to case. An RCMP witness seeking protection
may have been a source for CSIS in the past, which may limit the viability of that
person as a witness. There may also be international implications to providing
protection where a witness is being targeted by a foreign service or is wanted
by a foreign law enforcement agency, or where the witness may ultimately be
moved out of Canada to afford protection. It may also be necessary to assess the
proposed evidence of the witness, both to determine its value to the prosecution
and to assess whether it could reveal sensitive information. These factors involve
considering sensitive issues that render judicial review inappropriate.
238 See also Chapter IV, where it is suggested that the passing of information from CSIS to law enforcement
officials under s.19 of the CSIS Act should not in itself defeat any subsequent claims of informer
privilege.
239 R.S.C. 1985, c. F-7.
241
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It ought to be the purview of the Coordinator to decide on protection by taking
into account the exigencies of the particular investigation and the impact of
such a decision across a variety of interests. This decision must be free from
judicial review and interference. The judiciary is not part of the investigative
machinery of the state, save to protect individuals from state excess.240 Absent
a potential constitutional infringement, the judiciary should not sit in review of
decisions about how to conduct an investigation.
No person has a right to be admitted to a witness protection program. The
decision to admit does not engage any constitutional issues. It rests solely
within the discretion of the state.
Some applicants will be disappointed if they are refused admission. That
should not give rise to a legal right to challenge the refusal. The reasons for
refusing admission will often involve strategic issues of national security that
cannot be disclosed to the person – nor should they be disclosed. This is not
akin to seeking a government benefit where there is some entitlement to that
benefit. This program is an investigative device to support national security
investigations, not an entitlement. Viewed in that light, it is obvious that judicial
review is inappropriate.
For this reason, there should be a privative clause prohibiting both judicial review
of and appeals from the decision of the National Security Witness Protection
Coordinator to admit or refuse to admit an individual into the witness protection
program.
8.6.7.3 Dispute Resolution
When being admitted to the WPP, the protectee must come to an agreement
about the terms of protection. These terms will identify the respective legal
obligations, entitlements and duties of the protectee and the program including,
in most cases, the RCMP.
During the period of protection, disputes may arise between the RCMP and
the protectee. There must be a dispute resolution mechanism to deal with the
myriad of issues that may arise. It would make sense for the National Security
Witness Protection Coordinator or a person delegated by the Coordinator,
rather than the courts, to address these disputes. The Coordinator might wish
to delegate binding decisions to a third party to enable the Coordinator to serve
as an ombudsperson or a mediator.
It is important that there be continuity with respect to dispute resolution. The
same person should resolve all disputes between a given protectee and the
RCMP. Continuity ensures that disputes are viewed not only in light of the current
situation, but also in light of the history of the file. This ensures the long-term
240 This is the constitutional justification for prior judicial authorization for invasions of privacy. Certainly,
the judiciary determines if the state will be permitted the investigative tool that invades privacy (for
example, a search warrant). However, that is a necessary byproduct of protecting the individual’s right
to privacy.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
viability of protection in a given case. For this reason, all protectees should have
to accept that all disputes be dealt with in the first instance by the Coordinator
or the Coordinator’s delegate.
The Coordinator should have the authority to determine the process by which
disputes are resolved. The process should be flexible, not formal and “courtlike.” Given the interests at stake, a private arbitration of the dispute is the most
appropriate way to ensure that the various interests are represented and issues
resolved. Privacy will often be necessary to ensure the safety of the protectee
and protect the state’s interest in safeguarding sensitive information.
There must be sufficient substantive protections for the protectee. At a
minimum, the protectee should be represented by counsel, if desired, and
be provided an opportunity to be heard. This would include the right to put
supporting information before the Coordinator or the person designated by the
Coordinator to address disputes. If the protectee could not afford counsel, the
federal government should cover the cost in accordance with Treasury Board
guidelines.
Given that the adjudication of rights and obligations is involved, it is appropriate
for the dispute resolution decisions of the Coordinator or his or her delegate to
be reviewable by the Federal Court pursuant to section 18 of the Federal Courts
Act. Although the Court would determine the nature of the review, considerable
deference ought to be afforded to the arbitration process developed by the
Coordinator. In dealing with protection matters, the Coordinator would have
expertise akin to that of many specialized tribunals that operate within federal
jurisdiction. It is important that the Coordinator be afforded the flexibility to
devise the process and that rules of evidence not frustrate the process. With
these principles in mind, the aims of the witness protection program and the
reasonable concerns of the protectee can be harmonized. However, judicial
review is appropriate as an ultimate safeguard to ensure that substantive
protections are afforded to the parties.
Recommendation 24:
A new position, the National Security Witness Protection Coordinator, should be
created. The Coordinator would decide witness protection issues in terrorism
investigations and prosecutions and administer witness protection in national
security matters. The creation of such a position would require amendments to
the Witness Protection Program Act.
The National Security Witness Protection Coordinator should be independent
of the police and prosecution. He or she should be a person who inspires public
confidence and who has experience with criminal justice, national security and
witness protection matters.
Where appropriate and feasible, the Coordinator should consult any of the the
following on matters affecting witness and source protection: the RCMP, CSIS,
the National Security Advisor, the proposed Director of Terrorism Prosecutors,
243
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Public Safety Canada, Immigration Canada, the Department of Foreign Affairs
and International Trade and the Correctional Service of Canada. The Coordinator
would generally work closely with CSIS and the RCMP to ensure a satisfactory
transfer of sources between the two agencies.
The National Security Witness Protection Coordinator’s mandate would
include:
• assessing the risks to potential protectees resulting from disclosure
and prosecutions, as well as making decisions about accepting
an individual into the witness protection program and the level of
protection required;
• working with relevant federal, provincial, private sector and
international partners in providing the form of protection that best
satisfies the particular needs and circumstances of protectees;
• ensuring consistency in the handling of sources and resolving
disputes between agencies that may arise when negotiating
or implementing protection agreements (this function would
be performed in consultation with the National Security Advisor);
• providing confidential support, including psychological and legal
advice, for protectees as they decide whether to sign protection
agreements;
• negotiating protection agreements, including the award of
payments;
• providing strategic direction and policy advice on protection
matters, including the adequacy of programs involving
international cooperation or minors;
• providing for independent and confidential arbitration of disputes
that may arise between the protectee and the witness protection
program;
• making decisions about ending a person’s participation in the
program;
• acting as a resource for CSIS, the RCMP, the National Security
Advisor and other agencies about the appropriate treatment
of sources in terrorism investigations and management of their
expectations;
• acting as an advocate for witnesses and sources on policy matters
that may affect them and defending the need for witness
protection agreements in individual cases.
The National Security Witness Protection Coordinator would not be responsible
for providing the actual physical protection. That function would remain with
the RCMP or other public or private bodies that provide protection services and
that agree to submit to confidential arbitration of disputes by the Coordinator.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
8.6.8 Other Issues Relating to Witness Protection in Terrorism Cases
8.6.8.1 International Agreements
Relocating some witnesses within Canada may not protect them sufficiently. The
WPPA allows the Minister of Public Safety to enter into a reciprocal arrangement
with the government of a foreign jurisdiction which would enable a witness
to be relocated to that jurisdiction.241 Two such agreements were signed as of
April 2007, and a further two with international tribunals in June of that year.242
However, Souccar testified that Canada’s size allowed it to “…relocate and ensure
the safety of an individual…in Canada fairly well.” A more typical situation would
be for other countries to seek to transfer their protectees to Canada.243 As of
June 2007, 27 foreign protectees had been admitted to Canada’s WPP.
Once a Canadian witness is enrolled in a foreign witness protection program, the
Canadian WPP cannot address the safety concerns of that witness as capably as
if the witness were in Canada. Accordingly, WPP officials must have confidence
in the foreign program before relocating a witness.244 Dandurand testified that
it is not easy to evaluate the trustworthiness of foreign police forces, programs
and public servants, but that RCMP liaison officers abroad should be able to
help.245
It is likely that international relocation will be considered only in very exceptional
circumstances. The witness may be needed during trial preparation and
testimony, which can last many years, so international relocation during that
period would not be practical. For a Canadian protectee, adapting to a life in
a foreign country may be even more difficult than adapting to a life elsewhere
in Canada. In addition, there are administrative challenges to transferring a
protectee. Nonetheless, international relocation remains a possibility and has
been used in several cases.
If the Minister of Public Safety makes arrangements with additional foreign
jurisdictions, Canadian protectees will benefit from a wider range of choices for
relocation. This is likely to be particularly beneficial for protectees from certain
ethnic, cultural or religious communities because the added choice may help
them to find an environment in which they are comfortable. For this reason,
the Commission encourages the Minister of Public Safety to explore further
international arrangements under section 14 of the WPPA.
241 Witness Protection Program Act, s. 14(2).
242 Exhibit P-274, Tab 5: Letter, June 27, 2007, signed on behalf of Beverley A. Busson, RCMP to Gary
Breitkreuz, President, House of Commons Standing Committee on Public Safety and National Security,
p. 1. Section 14(3) of the Witness Protection Program Act allows the Minister of Public Safety to enter
into an arrangement with an international criminal court or tribunal.
243 Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8938; Testimony of Raf Souccar, vol. 71,
November 1, 2007, pp. 8977-8978.
244 Testimony of Raf Souccar, vol. 71, November 1, 2007, pp. 8977-8978.
245 Testimony of Yvon Dandurand, vol. 69, October 30, 2007, pp. 8697-8698.
245
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8.6.8.2 Independent Legal Advice for Protectees
As noted earlier, witnesses negotiating entry into the WPP do so from a position
of weakness, since they are highly dependent on the protection that the WPP
can offer.246 They are often frightened by the threats they face and may not
fully understand how entering the program will affect their lives. They may feel
pressure to accept a protection agreement as it is presented to them, and they
may also lack the understanding to ask important questions about their rights
and obligations and the obligations of others.
Souccar testified that the protective measures provided by the WPP cannot
be “negotiated down” to less than those required to ensure the safety of the
protectee. However, several other important aspects of the protection agreement
can be negotiated.247 Examples include the living conditions of the protectee,248
the relocation site,249 visitation rights and the frequency of family visits250 and
the number of family members who may be admitted to the WPP.251
Several witnesses before the Commission called for protectees to have access to
independent legal advice.252 In its March 2008 report on the WPP, the House of
Commons Standing Committee on Public Safety and National Security reached
a similar conclusion.253
Some officials told the Commission that independent legal advice was being
made available to prospective protectees, but this claim conflicted with the
findings of the survey254 of protectees conducted by Commission counsel
(with the assistance of the RCMP) and with the recent report of the Standing
Committee. That report stated that, at present, potential protectees negotiating
with the RCMP for protection are not offered the services of a lawyer.255 As
well, Commission counsel examined several versions of the Sample Protection
Agreement.256 Only one version mentioned the availability of independent
legal advice for the protectee. None of the agreements contained a clause for
the protectee to indicate that he or she had either obtained or declined such
advice.
The WPP should ensure that individuals are informed in writing, where practical,
about the availability and importance of independent legal advice, and explain
246
247
248
249
250
251
252
253
254
255
256
Testimony of Yvon Dandurand, vol. 69, October 30, 2007, p. 8701.
Testimony of Raf Souccar, vol. 70, October 31, 2007, pp. 8924-8925.
Testimony of Régis Bonneau, vol. 77, November 16, 2007, p. 9810.
Testimony of Raf Souccar, vol. 71, November 1, 2007, p. 8950.
Testimony of Régis Bonneau, vol. 77, November 16, 2007, p. 9775.
Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8908.
Testimony of Anne-Marie Boisvert, vol. 69, October 30, 2007, p. 8761; see also Testimony of Yvon
Dandurand, vol. 69, October 30, 2007, pp. 8700-8701.
House of Commons Report on the Witness Protection Program, p. 28.
The general findings of this survey are discussed above. Some 62 per cent of respondents stated that
they had not been offered independent legal advice during the negotiation of their protection
agreement.
House of Commons Report on the Witness Protection Program, p. 27.
See Exhibits P-273, Tab 1 and P-274, Tabs 3, 7, 8.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
that the WPP will pay the reasonable costs of the advice.257 In addition, protection
agreements should be revised to include a clause for the prospective protectee
to sign confirming that he or she has been advised of the availability of free
independent legal advice and that the advice was either obtained or declined.
It may be necessary as well to require that counsel be security-cleared, since
counsel might need access to information covered by national security privilege
in order to advise the protectee knowledgeably.
Independent legal advice could equally be warranted for other agreements
involving witnesses at risk, such as a release and indemnity agreement. It would
also be useful in dealing with a notice of termination from the WPP, particularly
where termination might jeopardize the protectee’s safety.
8.6.8.3 Psychological Evaluations
Several RCMP officials258 testified about the psychological challenges of life in the
WPP. As well, Dandurand told the Commission that the limited research on this
topic revealed that protectees often “…find … themselves quite depressed and
despondent and having a very difficult time adapting.” Dandurand concluded
that this caused many protectees to withdraw from the WPP.259
Psychological assessments can help to evaluate a protectee’s capacity to adapt
to the rigours of the WPP. They can detect signs of depression, the risk of suicide
and substance abuse problems. The WPP provides psychological help to
protectees after they join the WPP if they request or accept assistance. However,
psychological assessments before entry to the WPP are not conducted as
frequently as required. Section 7 of the WPPA obliges the RCMP Commissioner
to consider a range of factors to determine whether prospective protectees are
admitted the WPP. One factor is “…the likelihood of the witness being able to
adjust to the Program, having regard to the witness’s maturity, judgment and
other personal characteristics and the family relationships of the witness.”260 The
evidence shows that WPP coordinators perform this evaluation themselves,261
rather than relying on psychologists or psychiatrists. Furthermore, the WPP
does not have psychologists on staff.
257 The House of Commons Standing Committee on Public Safety and National Security called for similar
measures in recommending that “…the Witness Protection Program Act be amended so that potential
candidates are automatically offered the aid of legal counsel with an appropriate security clearance
during the negotiation of the candidate’s admission to the Witness Protection Program and the signing
of the protection contract. The fees of such counsel should be paid by the independent Office
responsible for witness protection at the Department of Justice”: House of Commons Report on
the Witness Protection Program, p. 28.
258 See, for example, Testimony of Geoffrey Frisby, vol. 69, October 30, 2007, p. 8794. See also Testimony of
Régis Bonneau, vol. 77, November 16, 2007, pp. 9764-9765.
259 Testimony of Yvon Dandurand, vol. 68, October 29, 2007, pp. 8681-8682.
260 Witness Protection Program Act, s. 7(e).
261 Testimony of Raf Souccar, vol. 70, October 31, 2007, p. 8915. Former WPP Coordinator Geoffrey
Frisby testified that he would generally conduct these assessments himself, but that he had access to a
psychologist when required: Testimony of Geoffrey Frisby, vol. 69, October 30, 2007, p. 8800.
247
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The House of Commons Standing Committee on Public Safety and National
Security recommended in its March 2008 report that the WPPA be amended
to require an automatic psychological assessment of candidates over the age
of 18, including family members, before any candidate is admitted to the WPP,
particularly when a change of identity is being considered.262
This recommendation makes sense.
In terrorism investigations and
prosecutions, psychological evaluations could help the National Security
Witness Protection Coordinator make decisions about admitting individuals
into the witness protection program. Evaluations could also help to ensure that
protective measures are tailored to individual needs. However, evaluations
can also constitute relevant material that may have to be disclosed to the
accused if it relates to the testimony of the witness and is not in an exempt
category.
8.6.8.4 Witnesses who are Minors
To date, all minors who have entered the WPP have done so as family members
of an adult protectee. The adult protectee signs the protection agreement for
children who are admitted. However, the current WPP admission process and
RCMP policies make no provision for minors who enter the WPP as individual
protectees. While this situation has yet to arise, there may come a time when a
key witness in a terrorism case will be a minor who needs protection.
Dandurand told the Commission that the issue of minors as individual protectees
has been given very little thought both in Canada and abroad. He suggested that
this is in large part because the major drug and organized crime cases that have
been at the root of most developments in witness protection do not usually
involve witnesses who are minors. However, he said, terrorism investigations
and prosecutions are more likely to involve minors.263 For example, four of
the original alleged co-conspirators in the ongoing “Toronto 18” terrorism
prosecution264 were minors, as is the one person who had been convicted at the
time of writing. Informers with information about accused who are minors may
well come from that same age group. In addition, an alleged conspirator who
is a minor might choose to testify against associates. In such cases, the minors
might need witness protection.
If a minor decided to help authorities to investigate members of the minor’s
family, possibly even the parents, the parents could not be expected to act in
the best interests of the minor in witness protection matters. It would then be
necessary to have in place a process that would enable some authority other
than the parents to make decisions on behalf of the minor.
If a minor becomes a witness in a terrorism case, other issues arise:
262 House of Commons Report on the Witness Protection Program, p. 27.
263 Testimony of Yvon Dandurand, vol. 69, October 30, 2007, pp. 8701-8702.
264 R. v. N.Y., unreported decision, September 25, 2008 (Ontario Sup. Ct.) Court File YC-07-1587.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
• whether a minor can decide alone to cooperate with the authorities
and enter the WPP, or whether a minor’s guardian(s), or even youth
services agencies, could prevent the minor from entering the WPP
(or whether they could force the minor to enter the WPP); and
• how to deal with possible variations among provincial
youth protection statutes that might in turn impose differing
requirements on handling witnesses who are minors.
Several witnesses before the Commission called for an examination of methods of
dealing with witnesses who are minors.265 As recommended above, the National
Security Witness Protection Coordinator would be responsible for strategic
direction and policy advice to guide CSIS, police forces, Crown prosecutors and
the WPP when handling witnesses who are minors. The Coordinator should
be able to consult with relevant officials, including provincial child welfare
authorities, on these matters.
8.6.8.5 Collaborators who are Inmates
Some protectees acquired their knowledge of targeted organizations while
participating in the illegal activities of those organizations. They are criminals
themselves and are described here as “collaborators.” Because of their criminal
activities, these collaborators may be facing or serving jail sentences. If sentenced
to imprisonment of two years or more, imprisoned collaborators (“collaborator
inmates”) serve their sentence under the supervision of the Correctional Service
of Canada (CSC).
The Commission heard evidence that collaborator inmates who testify against
their organizations are generally despised by other inmates. There is a very real
risk that they will be seriously harmed or killed in prison.266 Pierre Sangollo,
CSC Director of Intelligence and National Project Manager, Public Safety,
suggested that collaborators can face an even greater risk if they testify against
an international terrorist organization because inmates sympathetic to the
organization’s cause, but whose sympathies are unknown to the collaborator,
might target the collaborator.267
The evidence before the Commission shows that the odds of a collaborator
remaining anonymous during incarceration are extremely remote.268 This,
coupled with the apparently greater risk of retaliation in terrorism cases, creates
a very dangerous situation for collaborator inmates connected with such cases.
Protecting collaborator inmates by using administrative segregation to isolate
them from the general population is the general practice today.269
265 See, for example, Testimony of Yvon Dandurand, vol. 69, October 30, 2007, p. 8701. See also Testimony
of Anne-Marie Boisvert, vol. 69, October 30, 2007, pp. 8776-8777.
266 Testimony of Pierre Sangollo, vol. 77, November 16, 2007, p. 9835. See also Testimony of Michael
Bettman, vol. 77, November 16, 2007, pp. 9842-9843.
267 Testimony of Pierre Sangollo, vol. 77, November 16, 2007, p. 9824.
268 Testimony of Pierre Sangollo, vol. 77, November 16, 2007, p. 9834.
269 Testimony of Pierre Sangollo, vol. 77, November 16, 2007, p. 9869; Testimony of Michael Bettman, vol.
77, November 17, 2007, pp. 9829, 9838.
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CSC’s objective is to find the least restrictive environment for collaborator
inmates. Inmates in less restrictive environments have better access to programs,
employment and education and can “move forward” in their correctional plans.270
However, once anonymity is no longer possible, segregation is the only way to
ensure protection for collaborator inmates.271 Because of the high likelihood
of being exposed, collaborators are likely to go directly from a segregation
unit in the reception centre to one in a penitentiary. The evidence before the
Commission clearly shows that, because of their frequent need for segregation,
collaborators as a whole endure poorer conditions than those in the general
inmate population.272
In some cases, collaborators testify before they are tried for the offences
they may have committed. In such cases, collaborators are detained in local
provincial facilities before testifying273 and become the CSC’s responsibility only
when convicted. However, Sangollo noted that collaborators increasingly plead
guilty and are sentenced before they testify. In this way, they may fall under the
CSC’s jurisdiction (if sentenced to two years or more) and receive protection
from the CSC much earlier than would otherwise be the case. As a result,
besides protecting those who have already testified, the CSC frequently needs
to protect those who have yet to testify. Sangollo told the Commission that this
places considerable strain on CSC resources and programs.274 Furthermore, since
the Crown will want access to its witness during the pre-trial and trial phases,
moving the collaborator inmate to another region or province is impossible.
Terrorism trials may be lengthy,275 and a collaborator inmate may have to wait
years to testify. During that time, the CSC will be unable to move the inmate to
a “less restrictive environment,” leaving the inmate in segregation.
The unfortunate result is that an important terrorism witness is likely to be
held in segregation at the very time that the police and Crown need the full
cooperation of the witness. This seems to be a recipe for serious problems.
Collaborators who are isolated and unable to participate in prison programs
might simply refuse to cooperate further. In most cases, the collaborator inmate
will already have pleaded guilty and been sentenced, so there is nothing more
for the inmate to lose and much to gain by ceasing to cooperate. Souccar
reinforced this point when he told the Commission that an individual has little
incentive to assist law enforcement if he or she is disadvantaged by providing
that assistance.276 Boisvert told the Commission that a perception that the worst
270 Testimony of Michael Bettman, vol. 77, November 16, 2007, p. 9844.
271 Testimony of Pierre Sangollo, vol. 77, November 16, 2007, pp. 9836-9837. This view is shared by Michael
Bettman: Testimony of Michael Bettman, vol. 77, November 16, 2007, p. 9838.
272 For example, Dandurand told the Commission that collaborators often need to serve their whole
sentence in isolation and in very difficult circumstances, particularly in psychological terms:
Testimony of Yvon Dandurand, vol. 68, October 29, 2007, p. 8689. Boisvert told the Commission that
the net result was for collaborator inmates to be systematically treated more harshly than those
they help to convict: Testimony of Anne-Marie Boisvert, vol. 69, October 30, 2007, p. 8767.
273 Testimony of Pierre Sangollo, vol. 77, November 16, 2007, pp. 9819-9820.
274 Testimony of Pierre Sangollo, vol. 77, November 16, 2007, pp. 9820-9821.
275 For more on this topic, see Chapter IX.
276 Testimony of Raf Souccar, vol. 71, November 1, 2007, pp. 8953-8954. This point was conceded by the
Attorney General of Canada: Final Submissions of the Attorney General of Canada, Vol. III, para. 195:
“With respect to witnesses in detention, it is submitted that the harsh detention conditions they may
face are a disincentive to cooperation.”
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
treatment awaits those who cooperate will doom the system to failure in the
long term.277
Because of the importance of collaborator inmates in terrorism investigations
and prosecutions, great care is required to avoid discouraging them from
helping the authorities. Witnesses before the Commission proposed a variety of
ways to prevent alienating collaborator inmates by improving their detention
conditions. These included the following:
• transferring collaborator inmates to other Canadian penitentiaries
or facilities in other countries;
• building a penitentiary or adequate facility for the exclusive use of
collaborator inmates;
• creating a special wing within a larger penitentiary for collaborator
inmates;
• creating a special unit in the middle of a military base; and
• transporting collaborator inmates away from the penitentiary for
rehabilitation programs.278
Collaborators clearly deserve treatment that, to the extent possible given their
security needs, is comparable to that given other inmates. They also need the
same chances to obtain release under parole. At the same time, it is important
to avoid giving collaborators preferential treatment, since this could be seen as
“buying” their testimony and might affect their credibility as witnesses.
Given the range of possible solutions, the complexity of the collaborator inmate
issue and the number of agencies that have an interest in the issue, some have
called for an interdepartmental committee to consider protection options.279
Certainly, federal agencies such as the CSC, the Attorney General of Canada,
Immigration Canada, the RCMP and CSIS would wish to take part. The National
Security Witness Protection Coordinator could help to air and resolve the
concerns of these bodies and of collaborator inmates.
8.6.8.6 Investigative Hearings
The Criminal Code was amended in 2001 to allow investigative hearings in
connection with “an investigation of a terrorism offence.”280 The investigative
hearing provision lapsed in 2007 as the result of a five-year “sunset clause”281 in
277 Testimony of Anne-Marie Boisvert, vol. 69, October 30, 2007, p. 8769.
278 Testimony of Pierre Sangollo, vol. 77, November 16, 2007, p. 9864. See also Testimony of Michael
Bettman, vol. 77, November 16, 2007, pp. 9844-9845, 9878.
279 Testimony of Pierre Sangollo, vol. 77, November 16, 2007, pp. 9864-9865. The Attorney General of
Canada favoured creating an interdepartmental committee, arguing that the committee could
consider various options, including the international relocation of detained collaborators: Final
Submissions of the Attorney General of Canada, Vol. III, para. 195. No other parties or intervenors made
submissions about protecting collaborator inmates.
280 Criminal Code, s. 83.28(2).
281 Criminal Code, s. 83.32.
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the Anti-terrorism Act.282 Bill S-3, introduced on March 7, 2008, proposed to reintroduce these investigative hearings in the Criminal Code.283 The Bill died on
the Order Paper with the calling of the October 2008 federal election, but was
revived in the House of Commons as Bill C-19 on March 12, 2009.284
Under the Criminal Code provision, a peace officer, with the consent of the
Attorney General of Canada or a provincial Attorney General, could apply to a
judge for an order for the gathering of information from a named individual. If
the judge decided to hold a hearing, the judge would have the power to compel
a person to testify. Section 83.29 of the Criminal Code provided for means to
compel the attendance and cooperation of the person.
The only attempt to use investigative hearings occurred during the Air India
trial, where the Supreme Court of Canada upheld their constitutionality.285 The
Court also stated that because investigative hearings are judicial hearings, there
is a presumption that they will be held in open court.286
Witnesses who are compelled to appear before investigative hearings are likely
to face the same threats, intimidation and retaliation as witnesses who testify
in criminal trials or otherwise assist the authorities. It seems unlikely that a
terrorist organization would view the compelled testimony of a witness at an
investigative hearing any more charitably than it would view their testimony at
trial. In his research paper, Dandurand was skeptical of claims that compelled
witnesses would be insulated from threats and retaliation simply because they
were compelled to cooperate. 287 He reinforced this point in his testimony.288
RCMP Superintendent Michel Aubin testified that the police could seek
admission to the WPP for individuals who have been compelled to testify at
investigative hearings.289 In addition, he said, the RCMP might conduct a threat
assessment at that point.290 Souccar confirmed that the RCMP would be as
proactive in identifying threats to compelled witnesses as it would be with
other witnesses. He testified that RCMP investigators generally “…have a good
sense of the individuals being investigated” and that “…should it be that the
individual subject to the investigative hearing could potentially be at risk,” the
investigators would “…get ahead of the ball, ahead of the curve and either
notify the individual [or] put measures in place.” Souccar did not exclude the
possibility that the RCMP might perform a formal threat assessment for the
witness, should the situation warrant one.291
282 S.C. 2001, c. 41.
283 An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), 2nd
Sess., 39th Parl., 2007-2008.
284 An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), 2nd
Sess., 40th Parl., 2009.
285 Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248.
286 Re Vancouver Sun 2004 SCC 43, [2004] 2 S.C.R. 332.
287 Dandurand Paper on Protecting Witnesses, p. 43.
288 Testimony of Yvon Dandurand, vol. 69, October 30, 2007, p. 8698.
289 Testimony of Michel Aubin, vol. 70, October 31, 2007, p. 8939.
290 Testimony of Michel Aubin, vol. 70, October 31, 2007, p. 8940.
291 Testimony of Raf Souccar, vol. 70, October 31, 2007, pp. 8940-8941.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
Witnesses forced to appear before investigative hearings would appear to
satisfy the broad definition of “witness” in section 2 of the WPPA, and therefore
could presumably enter the WPP if a police force recommends entry. Under
the proposals discussed earlier, the National Security Witness Protection
Coordinator would advise about witness protection matters in investigative
hearings. This could include considering any damage that compelling testimony
might cause to the fragile trust between some communities and police and
intelligence agencies. The Coordinator should also consider which protection
measures could be used in a given investigative hearing when the witness
may be inadvertently or deliberately identified to the public or the affected
parties. This would avoid the present conflict of interest encountered by the
RCMP. The RCMP, as the investigating force, may have an interest in conducting
an investigative hearing to obtain information and evidence. It will also be in
charge of determining whether the witness who is being compelled to testify in
what may be a public hearing also needs witness protection.
The now-defunct investigative hearing provisions did not explicitly provide
for the Crown or police to assess threats to compelled witnesses, nor does Bill
C-19 impose such an obligation. As well, RCMP policy does not require a threat
assessment for witnesses forced to appear before investigative hearings.
Investigative hearings are contentious, in part because they place an onerous
obligation on the ordinary citizen. Dandurand stressed that the police must
take immediate steps to ensure the protection of any witnesses asked or
compelled to testify.292 The authorities should fully explore less public and less
coercive means to secure information from a person with information relevant
to a terrorism investigation. An investigative hearing not only forces a reluctant
human source to cooperate, but it also runs a real risk of disclosing that source’s
identity.
If investigative hearings are revived and if they are deemed to be necessary in
a particular investigation, the RCMP is the police force most likely to apply for
such hearings, and an Attorney General must support the requests. Both have
at least an ethical obligation to ensure that appropriate protection measures
are in place or available to those who are forced to provide information at an
investigative hearing. They should also carefully consider the possibility that a
person compelled to testify at an investigative hearing may later turn out to
be a person who could be charged with a terrorism offence. Once the person
has been compelled to testify at an investigative hearing, the state cannot use
the compelled material or any material derived from that material against the
person in subsequent proceedings.293
Under the Commission’s proposals, the National Security Witness Protection
Coordinator should be responsible for deciding whether witness protection
was necessary for the subject of an investigative hearing.
292 Testimony of Yvon Dandurand, vol. 69, October 30, 2007, pp. 8698-8699.
293 Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248 at paras. 71-72.
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8.7 Conclusion
This chapter has described how, through threats and violence, including murder,
extremists deter individuals from assisting police and intelligence agencies in
terrorism investigations and prosecutions. Intimidation also discourages others
from coming forward to help. The examples of intimidation relating to the
investigation of the Air India tragedy showed clearly that too many individuals
who assisted the state as witnesses and sources, or even merely spoke out
against extremism, suffered unnecessary hardship. That is a deterrent, not an
incentive, for others to volunteer, and a clear indication that witness protection
needs were not being met. The Air India case also showed how communitywide intimidation can breed a dangerous silence among those best positioned
to help investigate and prosecute terrorists.
The chapter has examined ways to reduce the potential danger to individuals
who assist the authorities. Keeping the identity of such individuals completely
secret can be achieved through a variety of mechanisms, including the police
informer privilege or a non-disclosure order made under sections 37 or 38 of the
Canada Evidence Act. Nevertheless, anonymity of sources, let alone witnesses,
is not always possible if criminal prosecutions for terrorism offences proceed.
In such cases, other measures – both legal and operational – can reduce the
risk to witnesses and sources and help foster their willingness, and that of their
communities, to help authorities. A range of partial anonymity alternatives
between full disclosure and total anonymity may also reduce the risks that
witnesses may face. These include the use of closed courts, publication bans,
screens, videotaped testimony and testifying under a pseudonym.
Judges, like other justice system participants, need to understand the difficulties
faced by some witnesses and sources. Judges should not hesitate to devise
creative and reasonable solutions which can reconcile the demand for public
disclosure on the one hand and the secrecy that may be necessary to protect
witnesses and encourage potential witnesses, on the other.
The Witness Protection Program represents the most forceful response to
threats against witnesses and sources. However, despite its excellent record
in safeguarding the lives of protectees, the current Program is not fully
attuned to the needs of sources and witnesses in terrorism investigations and
prosecutions.
It is essential to have a flexible witness protection program that allows the precise
level and method of protection to be tailored to the particular circumstances
and needs of the protectee. This chapter discussed several ways to improve
the current Program and to mitigate the difficulties that flow from entering the
Program. These include the acquisition of a better understanding of the nature
and needs of protectees in terrorism matters and the introduction of a process
for making decisions about witness protection which is independent of the
interests of police and prosecutors and which more closely reflects the interests
of witnesses themselves.
�Chapter VIII: Managing the Consequences of Disclosure: Witness and Source Protection
A key element of witness protection reform is the proposed National Security
Witness Protection Coordinator. The creation of this position would remove the
administration of witness protection from the RCMP and prosecutors.
Even if a witness protection program becomes more closely attuned to the
needs of witnesses and sources, entering the program can painfully disrupt
the lives of protectees and of those around them. The best-designed and most
humane witness protection programs cannot avoid imposing this hardship.
For this reason, the human dimension of witness protection must always figure
prominently in decisions about how and when to use witnesses and sources in
terrorism investigations and prosecutions.
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�VOLUME THREE
THE RELATIONSHIP BETWEEN INTELLIGENCE
AND EVIDENCE AND THE CHALLENGES OF
TERRORISM PROSECUTIONS
CHAPTER IX: MANAGING THE CONSEQUENCES OF DISCLOSURE:
THE AIR INDIA TRIAL AND THE MANAGEMENT OF OTHER COMPLEX
TERRORISM PROSECUTIONS
9.0 Introduction
The Commission’s terms of reference require the Commissioner to make findings
and recommendations about “…whether the unique challenges presented by
the prosecution of terrorism cases, as revealed by the prosecutions in the Air
India matter, are adequately addressed by existing practices or legislation.” They
also specifically ask what “changes in practice or legislation” are required to
address the challenges of terrorism prosecutions, “…including whether there is
merit in having terrorism cases heard by a panel of three judges.”1
The “prosecutions in the Air India matter” refer to the prosecutions of Ripudaman
Singh Malik (“Malik”), Ajaib Singh Bagri (“Bagri”) and Inderjit Singh Reyat
(“Reyat”) in the British Columbia Supreme Court.2 These prosecutions resulted
in the longest and most expensive trial in Canadian history, referred to here as
the “Air India trial.”
This chapter examines the challenges facing terrorism trials as illustrated by
the experience of the Air India trial. It first recounts the trial in some detail.
This is done not to second-guess the verdict but rather to make clear the many
challenges of terrorism prosecutions. It is important that Canadians understand
the extraordinary measures that were taken to conduct this trial and to have it
reach a verdict. Such measures will not be duplicated easily in the future.
Terrorism prosecutions require reform to make them manageable. This chapter
discusses how to respond to the challenges of voluminous disclosure, multiple
pre-trial motions and trial by jury in terrorism prosecutions. It also examines
whether there is merit in having terrorism trials heard by a panel of three
judges.
1
2
Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Terms of
Reference, P.C. 2006-293, para. b(vi).
As referred to in the indictment filed on June 5, 2001, which charged Malik, Bagri and Reyat jointly.
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In recent years, several reports have called for better management of complex
criminal trials – the so-called “mega-trials” or “mega-cases.”These typically involve
multiple accused charged with multiple offences. They are also characterized by
extensive disclosure obligations and multiple pre-trial motions.3 Most terrorism
trials will exhibit the characteristics of a mega-trial, as did the Air India trial.
There is no need to repeat much of the valuable research already done on the
challenges of the mega-trial. For example, the Barreau du Québec produced a
report in 2004,4 as did the Steering Committee on Justice Efficiencies and Access
to the Criminal Justice System.5 The Ontario Chief Justice’s Advisory Committee
on Criminal Trials in the Superior Court of Justice produced a report in 2006.6
In the autumn of 2008, the Federal/Provincial/Territorial Working Group on
Criminal Procedure issued proposals for reform of mega-trials after it heard
from a roundtable of experts.7 Most recently, the Hon. Patrick LeSage, Q.C., and
Professor (now Justice) Michael Code issued a report to the Attorney General of
Ontario on large and complex criminal case procedures.8
All these reports are valuable, but they do not focus on the specific challenges
facing terrorism trials. 9 Solutions designed for mega-trials in general may not be
suitable for terrorism prosecutions, in part because terrorism prosecutions will
almost inevitably involve deciding whether secret intelligence must be disclosed
to the accused. In addition, terrorism prosecutions may be more resistant to
3
4
5
6
7
8
9
There appears to be no accepted definition of what constitutes a “mega-trial” or “mega-case.” However,
the Steering Committee on Justice Efficiencies and Access to the Criminal Justice System provided a
workable definition, calling it “...a trial with such complex evidence or a number of accused such that
one or both of these characteristics result in exceptionally long proceedings”: Department of Justice
Canada, Final Report on Mega trials of the Steering Committee on Justice Efficiencies and Access to the
Criminal Justice System to the F/P/T Deputy Ministers Responsible for Justice (2004), p. 2, online:
Department of Justice Canada <http://www.justice.gc.ca/eng/esc-cde/mega.pdf> (accessed December
4, 2008) [Steering Committee Report on Mega trials].
Exhibit P-370: Ad Hoc Committee of the Criminal Law Committee on Mega-trials, Final Report (February
2004) [Barreau Report on Mega-trials].
Steering Committee Report on Mega trials.
Superior Court of Justice (Ontario), New Approaches to Criminal Trials: The Report of the Chief Justice’s
Advisory Committee on Criminal Trials in the Superior Court of Justice (May 12, 2006), online: Ontario
Courts <http://www.ontariocourts.on.ca/sjc/en/reports/ctr/index.htm> (accessed December 1, 2008)
[Ontario Superior Court Report on Criminal Trials].
Federal/Provincial/Territorial Working Group on Criminal Procedure, Proposals for Reform: Mega-Trials
(2008) [F/P/T Working Group Proposals on Mega-Trials]. See also, for example, Michael Code, “Law
Reform Initiatives Relating to the Mega Trial Phenomenon” (2008) 53 Crim. L.Q. 421 [Code Article on
Mega Trial Phenomenon].
Patrick Lesage and Michael Code, Report of the Review of Large and Complex Criminal Case Procedures
(November 2008), online: Ontario Ministry of the Attorney General <http://www.attorneygeneral.jus.
gov.on.ca/english/about/pubs/lesage_code/lesage_code_report_en.pdf> (accessed December 5,
2008) [Lesage and Code Report on Large and Complex Criminal Case Procedures].
But see Lesage and Code Report on Large and Complex Criminal Case Procedures for some discussion
of the unique challenges of terrorism prosecutions and their recommendation at p. 93 that Ministers of
Justice consider modifications to the procedure under s. 38 of the Canada Evidence Act “in order
to eliminate the delays caused in major terrorism prosecutions by the bifurcation of the case and by
interlocutory appeals”. Similar recommendations are made by the Commission in Chapter VII.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
plea discussions and guilty pleas than would mega-trials involving organized
crime. Finally, because terrorism prosecutions involve national security matters,
the federal interest in such trials is greater than in other mega-trials.
To assist the Commission with issues relating to terrorism prosecutions,
Professor Bruce MacFarlane prepared a paper on structural aspects of
terrorism trials. This paper included an examination of the possible merit
in having terrorism trials heard by a three-judge panel.10 Professor Robert
Chesney prepared a paper on the extensive post- 9/11 American experience
with terrorism prosecutions.11 Professor Kent Roach prepared a paper on
the unique challenges of terrorism prosecutions, focusing on developing a
workable relation between intelligence and evidence.12 Commission counsel
prepared a background document on the management of terrorist megatrials.13 In addition, several witnesses, including lawyers from the Air India trial,
testified about the challenges of terrorism prosecutions. The Commission was
also able to review a “lessons learned” account of the Air India trial prepared
by Robert Wright, Q.C., the lead prosecutor in the case, and Michael Code, one
of the defence counsel.14
A failure to reform the trial process to address the many challenges of
terrorism prosecutions will make it more difficult to prevent terrorism and
punish terrorists in Canada through prosecutions. Canada has less experience
than many of its allies with terrorism prosecutions. In the 1980s, a number of
terrorism prosecutions, including one against Talwinder Singh Parmar and
another involving an alleged conspiracy to blow up an Air India aircraft in 1986,
collapsed because of problems arising from the disclosure of information that
would identify informers. Another terrorism prosecution was abandoned after
the disclosure of an affidavit used to obtain a CSIS wiretap warrant. A mistrial
was declared in one prosecution after Federal Court litigation about whether
the accused could call secret information in his defence.15 There have been a few
post-9/11 terrorism prosecutions, including two that led to convictions in 2008:
that of a young offender in relation to an alleged 2006 Toronto plot and that of
Mohammad Momin Khawaja16 (which led to a guilty verdict) in relation to an
international terrorist plot. Nevertheless, Canada has had much less experience
with terrorism prosecutions than the United Kingdom or the United States.17
10
11
12
13
14
15
16
17
Bruce MacFarlane, “Structural Aspects of Terrorist Mega-Trials: A Comparative Analysis” in Vol. 3 of
Research Studies: Terrorism Prosecutions, pp. 246-261 [MacFarlane Paper on Terrorist Mega-Trials].
Robert M. Chesney, “Terrorism and Criminal Prosecutions in the United States” in Vol. 3 of Research
Studies: Terrorism Prosecutions [Chesney Paper on Terrorism and Criminal Prosecutions].
Kent Roach, “The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation Between
Intelligence and Evidence” in Vol. 4 of Research Studies: The Unique Challenges of Terrorism
Prosecutions [Roach Paper on Terrorism Prosecutions].
Exhibit P-300: Background Dossier For Term of Reference (b)(vi): “The Management of Terrorist Megatrials” [Background Dossier For Term of Reference (b)(vi)].
Exhibit P-332: Robert Wright and Michael Code, “Air India Trial: Lessons Learned” [Wright and Code
Report on Air India Trial].
For extensive case studies of these and other terrorism prosecutions and prosecutions involving
national security, see Roach Paper on Terrorism Prosecutions.
R. v. Khawaja, [2008] O.J. No. 4244 (Sup. Ct.).
Roach Paper on Terrorism Prosecutions, p. 48.
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Canada will continue to lag behind its allies in its ability to conduct fair and
efficient terrorism prosecutions unless some fundamental reforms are made.
In his 2005 report, the Hon. Bob Rae described the Air India trial as “…long
and complex, the most expensive and difficult in the history of the country.”18
The length and complexity of the trial, plus national security concerns about
disclosure of some evidence, created a series of obstacles that do not typically
arise in criminal cases. These obstacles, had they not been addressed effectively,
could have prevented the reaching of a verdict or caused the case to, as
MacFarlane describes it, “collapse under [its] own weight.”19
MacFarlane summarized the challenges associated with terrorism trials when
he testified before the Commission:
[T]he real problem, in my view, relates to length primarily,
complexity secondarily, and the risk of not being able to reach
verdict in a lengthy terrorist trial. And it appears that most
of the terrorist trials that have arisen in Canada are expected
to be lengthy and have been lengthy. So it’s not an idle
concern.20
Later, he spoke of the urgent need for reform:
There are so many impediments to completing a mega-trial
in Canada -- so many points at which the presiding judge may
decide to enter a judicial stay or the Crown might have to
enter a Crown stay. There are so many roadblocks particularly
in relation to the jury on a mega-trial that I am greatly fearful
that Canada is not able to run lengthy terrorist cases. I greatly
fear that we are not -- we don’t have the tools to run these
trials. That will not bode well if our trials consistently fail, case
after case after case. And [I] greatly fear that some of the cases,
that we are either looking at right now or will be looking at in
the not-too-distant future, will fail, and Canada will be seen
as a place where the criminal justice system simply can’t cope
with significant terrorist acts that result in a mega-trial. For
that reason, it seems to me that maintaining the status quo is
simply not an option. We need a rethinking of our approach
to these mega-trials because I do feel that most of the terrorist
trials that will arise and have arisen in Canada will be megatrials. So we’re right into it right now.21
18
19
20
21
Lessons to be Learned: The report of the Honourable Bob Rae, Independent Advisor to the Minister of Public
Safety and Emergency Preparedness, on outstanding questions with respect to the bombing of Air India
Flight 182 (Ottawa: Air India Review Secretariat, 2005), p. 24 [Lessons to be Learned].
MacFarlane Paper on Terrorist Mega-Trials, p. 159.
Testimony of Bruce MacFarlane, vol. 79, November 20, 2007, p. 10068.
Testimony of Bruce MacFarlane, vol. 79, November 20, 2007, p. 10074.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
In his report for the Commission, MacFarlane identified three overarching
challenges for future terrorism trials:
[F]irst, they need to be manageable in terms of length and complexity.
Second, the process and result need to be seen as fair and legitimate,
both domestically and in the eyes of the international community.
Finally, any new criminal trial process cannot increase the risk of
convicting persons who are innocent of the crimes charged.22
He also posed questions at the core of the search to meet these goals:
Should the institutional underpinning or “structural” elements of
the trial process in Canada be changed to meet the tremendous
challenges posed by terrorist trials? Can we provide trials for
accused terrorists that comport with Canadian standards of
justice, notwithstanding the complex challenges inherent when
national security is at risk?23
In his report for the Commission, Roach stressed the need for just and efficient
processes that respect the principles of fairness to the accused and openness
of proceedings, but that also respect important interests in the protection of
legitimate secrets developed by Canada’s intelligence agencies and its foreign
counterparts.24 Chapter VII discussed Canada’s present system, which requires
issues of national security confidentiality to be litigated in the Federal Court,
with the matter then returning to the trial court. This can fragment and delay
terrorism prosecutions and deprive the trial judge of the power to manage the
disclosure of secret information and other pre-trial matters.
An important theme in this chapter is the need for the trial judge to be in charge
of all aspects of the terrorism prosecution in order to ensure the efficiency
and the fairness of the process. The chapter examines several issues relating
to terrorism trials: voluminous disclosure, multiple pre-trial motions, control
by judges of court proceedings and counsel, securing adequate defence
representation, ensuring the viability of juries, federal-provincial cost-sharing
to support lengthy trials, and providing for the needs of victims and witnesses.
Those issues that can be resolved at the federal level are addressed.
Although some issues relating to terrorism prosecutions fall under provincial
jurisdiction, the federal government has an important role in prosecutions
that affect national security. As discussed in Chapter III, the Attorney General
of Canada can prosecute cases involving terrorism offences and other conduct
that affects national security.
22
23
24
MacFarlane Paper on Terrorist Mega-Trials, p. 235.
MacFarlane Paper on Terrorist Mega-Trials, p. 159.
Roach Paper on Terrorism Prosecutions, pp. 91-93.
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9.1 The Challenges of Terrorism Prosecutions
Terrorism prosecutions are difficult – in part because they often involve multiple
accused, multiple charges and voluminous disclosure. Criminal trials such as
those involving organized crime may also exhibit these features, but they will
not involve the same issues as terrorism trials concerning the disclosure of
intelligence.
The challenges of terrorism prosecutions can be addressed by reforms such as
using severance more often to produce smaller, more manageable prosecutions,
avoiding overloaded indictments and using electronic disclosure. However,
terrorism trials may be more complex and longer than other trials, as MacFarlane
testified, because of the need to establish matters surrounding the terrorist
act, such as “…planning, deliberation, the execution, [and] how many people
were involved; it’s the proof that’s required to present the picture concerning
the developments up to and including the terrorist act.”25 In addition, terrorism
prosecutions may require the Crown to establish the existence of a terrorist
group in addition to other elements of an offence.
Proving terrorism offences often involves the difficulty of proving “anticipatory”
elements of offences – for example, conspiracy, providing or collecting property
intending that it be used to carry out a terrorism offence26 or contributing
to any activity of a terrorist group for the purpose of enhancing its ability to
facilitate or carry out a terrorist activity.27 Roach observed that: “The expansion
of the criminal law means that what would have been, before 2001, advance
intelligence that warns about threats to the security of Canada may, in some
cases, now also be evidence of one of the [terrorism] crimes….”28
The terrorism offence provisions of the Criminal Code involve significant
maximum penalties, many of which are to be served consecutively.29 The prospect
of significant penalties may make guilty pleas less likely, and prosecutors may
not consider it to be in the public interest to engage in plea bargains which
significantly reduce penalties. As a consequence, the accused may not have an
incentive to engage in plea discussions, and the number of trials will increase
as a result.
In addition, because of the difficulties surrounding the disclosure of secret
information to the accused, disclosure issues may not be fully resolved early in
the trial process. This also limits the potential for resolving plea negotiations,
since the accused might want disclosure issues addressed first. Some accused
may have strong ideological beliefs that make them resist the idea of pleading
guilty. Prosecutors and defence lawyers may also, for different reasons, be less
inclined to begin plea discussions in terrorism cases, placing further strain on
the trial process.
25
26
27
28
29
Testimony of Bruce MacFarlane, vol. 78, November 19, 2007, pp. 9892-9896.
Criminal Code, R.S.C. 1985, c. C-46, s. 83.02 [Criminal Code].
Criminal Code, s. 83.18.
Roach Paper on Terrorism Prosecutions, p. 48.
Criminal Code, s. 83.26.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
Most significantly, terrorism trials are likely to have a national security dimension
that will involve applications – at present made to the Federal Court under
section 38 of the Canada Evidence Act30 − for non-disclosure of information
that, if disclosed, will harm national security, national defence or international
relations. This raises the prospect of numerous pre-trial motions that would
not occur in other criminal trials. Few ordinary criminal trials, even major trials
involving organized crime, would involve the potential disclosure of “sensitive
information” that would bring section 38 into play.
In his report to the Commission, Professor Roach conducted extensive case
studies of terrorism prosecutions in Canada. He concluded that these case
studies “…raise doubts about whether Canadian practices and laws are up to
the demands of terrorism prosecutions, particularly as they relate to the relation
between intelligence and evidence and the protection of informants.”31
As discussed throughout this volume, the interplay between intelligence and
evidence is one of the central and unique features of both terrorism investigations
and prosecutions. Earlier chapters have analyzed in considerable detail the
relationship between intelligence and evidence and the role of section 38. This
chapter therefore does not address section 38 extensively, but does recognize
that section 38 applications are likely to be an important matter to be addressed
in the management of many terrorism prosecutions. The recently completed
Khawaja prosecution provides a good example. There, pre-trial motions
involving applications for non-disclosure under section 38 were extensively
litigated over 18 months in 2007 and 2008.32 The trial itself took only 27 days.33
The defence also attempted unsuccessfully to persuade the Supreme Court of
Canada to hear an appeal before the trial had even started.34 Such interlocutory
appeals – appeals made before a trial has been completed -- are not permitted
in regular criminal prosecutions.
Terrorism trials often have an international dimension, since the planning and
execution of terrorist acts may involve players in several countries. This can
complicate the trial process in several ways. First, the Crown may need to rely
on evidence gathered in, or flowing through, foreign countries; to obtain this
evidence requires international cooperation. In some cases, CSIS may already
have foreign intelligence that could be useful as evidence or that might be
subject to disclosure obligations, but it will need to seek permission from a
foreign government to use it for a criminal prosecution. In some cases, foreign
intelligence authorities that provided information to Canadian authorities may
30
31
32
33
34
R.S.C. 1985, c. C-5.
Roach Paper on Terrorism Prosecutions, pp. 288-289.
Canada (Attorney General) v. Khawaja, 2007 FC 463, 280 D.L.R. (4th) 32, aff ’d 2007 FCA 388, 289 D.L.R.
(4th) 260, application for leave to appeal dismissed (2008), 166 C.R.R. (2d) 375 (S.C.C.); Canada (Attorney
General) v. Khawaja, 2007 FC 490, 219 C.C.C. (3d) 305, allowed in part 2007 FCA 342, 228 C.C.C. (3d) 1;
Canada (Attorney General) v. Khawaja, 2008 FC 560.
R. v. Khawaja, [2008] O.J. No. 4244 at para. 2 (Sup. Ct.).
See R. v. Khawaja (2006), 214 C.C.C. (3d) 399 (Ont. Sup.Ct. J.), application for leave to appeal dismissed
2007 CanLII 11625 (S.C.C.).
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not want the information exposed in a prosecution because doing so might
compromise ongoing intelligence activities in their country.
The international dimension also raises the possibility of extradition of an
accused to Canada to stand trial. Furthermore, where international players must
cooperate before a charge can be laid, the pace will ordinarily be determined by
the slowest or most reluctant player. This problem may be particularly acute
where governments disagree on whether the criminal justice system has a
role to play in a particular situation, or whether it should be left to be dealt
with exclusively by the intelligence community. Even if they do not involve
an international dimension, terrorism trials will often involve several domestic
agencies, increasing the possibility that the pace will be determined by the
slowest player.
Prosecutors may have difficulties complying with their disclosure obligations,
given the volume of material that has to be disclosed. Disclosure may be
rendered even more difficult because some relevant material may relate to
vulnerable informers, ongoing investigations or material that was provided
from a foreign or domestic agency on the understanding that it would not be
disclosed. Unfortunately, it is also possible that unethical defence counsel might
try to sabotage the trial through prolonged and frivolous motions, including
attempts to call or to gain access to secret information that is not relevant to
the case.
The offences created by the Anti-terrorism Act35 are very complex and are only
starting to be tested. The relative newness of these offences will likely mean that
prosecutors will use extra caution in deciding which offences to charge. There
may be a tendency, out of an abundance of caution, to lay more charges than
might be the case with other, more established, criminal offences. This in turn
may lead to longer trials that will test the endurance of judges, jurors, witnesses,
victims and lawyers. MacFarlane, for example, warns that the length of some
terrorism trials may exhaust juries.36
The accused does have a right to a fair trial without unreasonable delay, but
this does not mean that the accused has a right to a perfect trial. That said, it
will be very important that the justice system treats those accused of terrorism
offences fairly to guard against miscarriages of justice.
The cost of terrorism prosecutions may also give rise to disputes between federal
and provincial governments. Some provinces may not have the capacity to
conduct a prosecution such as the Air India trial. Federal funding may be needed
to help with matters such as the construction of secure facilities, payments to
defence counsel above normal legal aid rates and the provision of services for
victims and the press.
35
36
S.C. 2001, c. 41.
MacFarlane Paper on Terrorist Mega-Trials, pp. 251-257.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
Terrorism trials involving completed acts of terrorism such as the bombing of
Air India Flight 182 may involve many more direct victims than ordinary criminal
offences. This will require a much more sophisticated and systematic approach
to address the needs of witnesses and victims.
Terrorism is often associated with explosives, and the sheer scale of the forensic
investigation (and the resulting evidence) after an explosion is ordinarily much
greater than for other violent crimes.
Terrorism trials are also unique because of their public profile. Few criminal
trials attract such widespread public interest. In essence, terrorism trials put the
justice system on trial in a very public way. MacFarlane argues that accused
persons may face the risk of not being able to have a fair trial because of the
publicity and pressures that accompany horrific acts of terrorism.37 However,
it is unthinkable that the publicity, cost, complexity or length of a terrorism
trial would lead to abandoning a prosecution. As Justice Rutherford said, “The
importance of Canada being able to do these things and to make them work
without throwing in the towel and saying that we have no capacity to administer
criminal justice in cases where national security issues are at stake, cannot be
overstated.”38 In short, the fair but efficient conduct of terrorism prosecutions is
vital to the national interest.
9.2 The Air India Criminal Trial
On October 27, 2000, Malik and Bagri were each charged with eight counts
under the Criminal Code. These included the following:
• first degree murder of the 329 Air India Flight 182 passengers and
crew;
• first degree murder of the two Japanese baggage handlers who
died in the Narita explosion;
• conspiracy to murder the passengers and crew on Air India Flights
182 and 301 and to place bombs likely to endanger safety on board
aircraft in service;
• attempted murder of the passengers and crew of Air India Flight
301; and
• causing bombs to be placed on board the various aircraft.39
Bagri was also charged with the attempted murder of Tara Singh Hayer, but
this indictment was held in abeyance pending the conclusion of the Air India
proceedings. The evidence respecting this charge was held not to be admissible
in the Air India trial.40 Malik and Bagri were both detained pending trial and their
37
38
39
40
MacFarlane Paper on Terrorist Mega-Trials, p. 293.
R. v. Ribic, 2004 CanLII 7091 (ON C.A.) at para. 49.
See Exhibit D-1: “Background and Summary of the Facts” for more information about the charges.
See HMTQ v. Malik, Bagri and Reyat, 2002 BCSC 823.
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applications for judicial interim release were denied.41 In July 2002 Bagri made
a further application for judicial interim release, citing new delays and changes
in the strength of the Crown’s case in light of new disclosure and recent pre-trial
rulings. His application was denied.42 Malik and Bagri’s first court appearance
was October 30, 2000, followed by five days of bail hearings between December
21, 2000, and January 2, 2001.
The Crown preferred direct indictments against Malik and Bagri on March 6,
2001. The trial was scheduled to begin on February 4, 2002, before Justice Ian
Josephson, sitting with a jury. According to the schedule discussed during the
bail hearing,43 the review by the defence of the disclosure was to last until the
autumn of 2001 and preparation for pre-trial motions would last until the winter
of 2002. It was also thought that trial preparation would take five months and
that the trial itself would begin in the autumn of 2002. The trial was expected to
end by late 2002 or early 2003, but it was understood that possible admissions
by the defence and courtroom availability could affect the trial length. In fact,
the trial began only in the spring of 2003 and the presentation of evidence
concluded in December 2004, nearly two years later than expected. The accused
remained in custody throughout.
After the prosecutors obtained consent from the United Kingdom,44 Reyat was
added as a defendant in a new indictment that was filed on June 5, 2001. That
indictment charged Malik, Bagri and Reyat jointly for all counts except the
murder of the two Narita baggage handlers; Reyat had already been convicted
of their manslaughter in 1991.45 On December 14, 2001, Justice Josephson
ruled that Reyat’s trial was to proceed jointly with that of the other accused and
adjourned the trial to November 1, 2002, despite objections by Malik and Bagri
to the joint trial.46 On April 29, 2002, four of Reyat’s counsel withdrew and new
41
42
43
44
45
46
Malik and Bagri v. HMTQ, 2001 BCSC 2; R. v. Bagri, 2001 BCCA 273, 45 C.R. (5th) 143 (B.C.C.A.).
Bagri v. R., 2002 BCSC 1025.
Malik and Bagri v. HMTQ, 2001 BCSC 2 at para. 16.
The United Kingdom authorized Reyat’s extradition on August 10, 1988, to allow him to be tried for his
role in the Narita bombing, although he was not actually extradited until December 13, 1989. A
condition of the extradition was that the United Kingdom’s consent would be required for any further
accusations against Reyat. On January 26, 2001, Canada asked the United Kingdom for consent to
try him for the Air India bombing: R. v. Malik, Bagri and Reyat, 2002 BCSC 1679 at para. 4. This consent
was obtained on June 4, 2001 and Reyat was added as a defendant in a new indictment.
R. v. Reyat, 1991 CanLII 1371 (BC S.C.). This case lasted roughly 18 months (from December 1989 to May
1991). Reyat was charged only with the manslaughter of the two Narita baggage handlers. He was
found guilty of both counts and was sentenced to 10 years in prison (the sentencing decision was not
reported). Justice Paris concluded, “For all the above reasons I am satisfied beyond a reasonable doubt
that the accused either fabricated or, at the very least, aided others in the fabrication of the bomb which
exploded in Narita killing the two baggage handlers. The Crown does not argue that it has proved his exact
purpose beyond a reasonable doubt but I am satisfied beyond a reasonable doubt that he knew the bomb
was to be used for some illicit purpose. It could not be otherwise. According to the Criminal Code the
elements of manslaughter are directly or indirectly causing the death of a human being by means of an
unlawful act.” Reyat’s 1991 trial was significantly simpler than the Air India trial, since Reyat’s trial
involved no conspiracy counts and relied on forensic evidence linking Reyat directly with the parts
used to create the bomb that killed the two victims. The trial also relied on an admission by Reyat that
he constructed the bomb. Reyat’s appeal was dismissed by the British Columbia Court of Appeal: R. v.
Reyat (1993), 80 C.C.C.(3d) 210 (B.C.C.A.).
HMTQ v. Malik, Bagri and Reyat, 2001 BCSC 1758.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
counsel were retained, resulting in a further adjournment of the trial until March
31, 2003.47
Because the Crown elected to proceed by direct indictment, no preliminary
inquiry occurred.48 After initial rulings in January 2002 about the scheduling of
motions and the scope of the publication ban,49 the pre-trial motions proceeded
between February and December 2002.50 Thirteen published pre-trial rulings
resulted from four Crown motions,51 four by Bagri,52 four by Reyat53 and one
motion by all three accused.54 In addition, media representatives applied for
leave to publish information about one of the pre-trial voir dires55 after their
general motion to limit the publication ban was denied.56 Pre-trial motions
addressed a wide range of issues, including disclosure, destruction of evidence,
admissibility and use of hearsay evidence, editing of evidence, the voluntary
nature of statements made by the accused, and alleged Charter violations
regarding search and seizure and statements obtained from the accused.
Almost all the pre-trial applications were heard by Justice Josephson. Other
judges heard other applications – for instance, relating to funding of defence
counsel57 and the sentencing of Reyat.58 No pre-trial motions, however, involved
litigation in the Federal Court under section 38 of the Canada Evidence Act.
On February 10, 2003, Reyat pleaded guilty to the manslaughter of the Air India
Flight 182 victims and the Crown withdrew the other charges against him. He
was sentenced to five years in addition to the ten years he had received in 1991
for the manslaughter of the two Narita baggage handlers.59 On February 24,
2003, Malik and Bagri re-elected, with the Crown’s consent, to be tried by judge
alone.60
The trial began on April 28, 2003, and continued until December 3, 2004, with
adjournments during the summer breaks in both 2003 and 2004. The trial lasted
a total of 217 trial days.
47
48
49
50
51
52
53
54
55
56
57
58
59
60
See In the Matter of an Application Under s. 83.28 of the Criminal Code and Satnam Kaur Reyat, 2003 BCSC
1152 at para. 19.
Background Dossier For Term of Reference (b)(vi), p. 96.
See R. v. Malik, Bagri and Reyat, 2002 BCSC 78; R. v. Malik, Bagri and Reyat, 2002 BCSC 80.
Background Dossier For Term of Reference (b)(vi), p. 105.
HMTQ v. Malik, Bagri & Reyat, 2002 BCSC 362; HMTQ v. Malik, Bagri and Reyat, 2002 BCSC 823; R. v. Malik,
Bagri & Reyat, 2002 BCSC 1291; R. v. Malik, Bagri and Reyat, 2003 BCSC 29.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484; HMTQ v. Malik, Bagri and Reyat, 2002 BCSC 837; R. v. Malik,
Bagri and Reyat, 2002 BCSC 864; R. v. Malik, Bagri and Reyat, 2003 BCSC 231.
R. v. Malik, Bagri and Reyat, 2002 BCSC 477; R. v. Malik, Bagri and Reyat, 2002 BCSC 1679; R. v. Malik, Bagri
and Reyat, 2002 BCSC 1731; R. v. Malik, Bagri and Reyat, 2003 BCSC 30.
R. v. Malik, Bagri and Reyat, 2002 BCSC 1427.
R. v. Malik, Bagri and Reyat, 2002 BCSC 861.
R. v. Malik, Bagri and Reyat, 2002 BCSC 80.
HMTQ v. Malik, 2003 BCSC 1439, 111 C.R.R. (2d) 40 at para. 3.
R. v. Reyat, 2003 BCSC 254.
R. v. Reyat, 2003 BCSC 1152.
See the procedural history in Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2
S.C.R. 248 at para. 14.
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The trial took place in Courtroom 20, a very secure, state-of-the-art electronic
courtroom specially renovated for the trial.61 Twenty lawyers were involved in
the trial for the Crown, six for Malik and eleven for Bagri. In addition, two lawyers
acted as counsel for the court. Reyat hired a team of nine lawyers to work on his
defence before finally entering his plea.62
Twelve rulings were published on issues of law during the trial. Four rulings
resulted from applications by the Crown to vacate a previous editing order,63
have witnesses declared hostile64 or have hearsay evidence declared admissible.65
Three rulings related to applications by Bagri to limit the evidence admissible
for the Crown’s case66 and to obtain declarations that Bagri’s Charter rights had
been violated because of destroyed evidence67 and late disclosure.68 Another
ruling resulted from an application by Malik to have hearsay evidence declared
admissible,69 and two rulings resulted from applications by both accused on
issues of disclosure70 and the admissibility of other hearsay evidence.71 Other
rulings followed an application by the media for access to search warrants and
related information72 and a witness’s application, opposed by the media, for a
permanent publication ban about the witness’s identity.73
On March 16, 2005, the accused were both acquitted in a judgment that was
1,345 paragraphs long.74 Justice Josephson concluded that the involvement of
the accused in the offences had not been proved beyond a reasonable doubt
and that as a result it was not necessary to address the Charter breaches that
had occurred because of lost or destroyed evidence75 and late disclosure.76
The proceedings involving Malik and Bagri lasted nearly four-and-a-half years.
Fifteen months elapsed between the arrest of the first two accused and the
beginning of the pre-trial motions, which were then argued over a period of
almost a year. The trial itself began nearly two-and-a-half years after the arrest of
Malik and Bagri. The filing of a new indictment adding Reyat caused additional
delay, not only because of the presence of another accused who could make pretrial applications, but also because his counsel required time to become familiar
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
As reported in the British Columbia Ministry of Attorney General, Court Services Branch, Report of the
2002/2003 Fiscal Year (June 25, 2003), p. 7, online: Legislative Assembly of British Columbia <http://
www.llbc.leg.bc.ca/public/PubDocs/bcdocs/348810/csb_annual_report_2002_2003.pdf> (accessed
July 7, 2009).
HMTQ v. Malik, Bagri and Reyat, 2001 BCSC 1758 at para. 4.
HMTQ v. Malik and Bagri, 2003 BCSC 887.
R. v. Malik and Bagri, 2003 BCSC 1428, 194 C.C.C. (3d) 572; R. v. Malik and Bagri, 2004 BCSC 149.
R. v. Malik and Bagri, 2004 BCSC 299, 26 B.C.L.R. (4th) 320.
R. v. Malik and Bagri, 2003 BCSC 1387.
R. v. Malik and Bagri, 2004 BCSC 554, 119 C.R.R. (2d) 39.
R. v. Malik and Bagri, 2004 BCSC 1309, 124 C.R.R. (2d) 270.
R. v. Malik and Bagri, 2004 BCSC 812.
HMTQ v. Malik and Bagri, 2003 BCSC 1709.
R. v. Malik and Bagri, 2004 BCSC 819.
HMTQ v. Malik and Bagri, 2003 BCSC 993.
R. v. Malik and Bagri, 2004 BCSC 520.
R. v. Malik and Bagri, 2005 BCSC 350.
R. v. Malik, Bagri and Reyat, 2002 BCSC 864; R. v. Malik and Bagri, 2004 BCSC 554, 119 C.R.R. (2d) 39.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484; R. v. Malik and Bagri, 2004 BCSC 1309, 124 C.R.R. (2d) 270.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
with the case. Justice Josephson refused to order a severance for Reyat,77 and no
additional preparation time was given to Reyat’s counsel.78
9.2.1 Project Management
Well before charges were laid in the Air India trial, the BC Ministry of Attorney
General recognized the need for a project management approach to the case to
ensure that legal and administrative functions were fully integrated. A project
management team was created and a project manager appointed.
The project management team was to deal with all the administrative and interministerial matters to ensure that the prosecutors were not distracted from
the legal aspects of the case. The team was also the main point of liaison in
the BC Ministry of Attorney General for federal and foreign agencies, and for
negotiating and applying the policies, protocols and guidelines that defined
the tasks of each agency and settled issues of personnel, budgets, facilities and
technology.79
Early on, the project management team, including members of the prosecution
team, contacted the team working on the trial of those accused of bombing
the Pan Am flight that crashed at Lockerbie, Scotland in 1988. It was felt that
the Air India project management team could benefit from the wealth of
knowledge and experience gained by those managing the Lockerbie trial. It
was the project manager’s responsibility to oversee the Air India team’s relations
with the Lockerbie team.80 The project management and prosecution teams
had numerous meetings with their Lockerbie counterparts.81 Wright and Code
wrote that these visits proved “invaluable” for the Air India prosecution.82
From the very early stages of the case, the project management team received
support from the BC Government. According to Robert Wright, the senior Crown
prosecutor, and Michael Code, acting for the defence, this ensured that “…the
project management approach and support for the team were coordinated
across the justice organization and fully understood and supported by decisionmakers (Court Services for the courtroom, Management Services for finance
and personnel, Justice Services for defence funding issues, Corrections).”83 The
project manager also recommended creating a steering committee and working
group structure that “crossed normal branch barriers.”84
77
78
79
80
81
82
83
84
HMTQ v. Malik, Bagri and Reyat, 2001 BCSC 1758.
HMTQ v. Malik, Bagri and Reyat, 2001 BCSC 1758.
Wright and Code Report on Air India Trial, Part I, pp. 2, 4. Foreign agencies included the FBI (U.S.) and
the Irish Gardia.
Wright and Code Report on Air India Trial, Part I, p. 23.
Wright and Code Report on Air India Trial, Part I, pp. 1-2. The visits to Scotland and The Netherlands
also enabled the Crown to meet with members of court services, sheriff and police agencies
involved in the Lockerbie trial and to tour the Lockerbie courtroom complex in Kamp
van Zeist in the Netherlands, with its state-of-the-art technology, live-note reporting,
security arrangements, victims’ safe haven and complex translation system.
Wright and Code Report on Air India Trial, Part I, p. 2.
Wright and Code Report on Air India Trial, Part I, p. 2.
Wright and Code Report on Air India Trial, Part I, p. 3. One example of this was the cross-agency
committee that was created for building Courtroom 20 specifically for the Air India trial.
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One of the main responsibilities of the project manager was to be lead negotiator
with the federal government for the funding agreements in the case.85 At all
times, the project manager had to maintain strong links with the head of the
prosecution service and the justice ministry to ensure ongoing ministerial
support for the trial.86
Wright and Code reported that “…the project manager role [evolved] into
a general manager role once the main planning stage was finished and the
plan implemented.”87 However, the project manager remained responsible for
coordinating the efforts of the services and agencies that participated either
indirectly or directly in the Air India trial.88
9.2.2 The Disclosure Process
Wright and Code described the volume of documents involved in the Air India
trial as “vast.” The initial trial material provided by the RCMP to the Crown in
1999 was 500,000 pages long. The narrative was contained in 90 volumes.
Additional materials followed, including 40,000 lbs. of reel-to-reel tapes from
CSIS.89 Geoffrey Gaul was the media spokesperson during the Air India trial and
in 2003 became Director of the Criminal Justice Branch in the BC Ministry of
the Attorney General. He testified before the Commission that at one point the
Crown had tens of thousands of additional documents arriving.90
Gaul testified that the Air India prosecution team saw the importance of
preparing, before charges were laid, the materials that would have to be
disclosed to the defence:
[O]ur task at the front-end, we recognized that there was no
point in engaging in a charge assessment, a pre-charge, until
the file was formatted in a way that should we reach the point
of approving a charge, we would then be in a position to
provide prompt disclosure….
Lay a charge and then go “Holy cow, we have to organize this
to fairly disclose it to the defence”, that can take months if not
years. You can imagine the delay problems, Mr. Commissioner.
We have an accused who’s now been charged. The format
of disclosure is unfriendly and the Crown is scrambling to
unscramble the egg and put it in a format that we can disclose
it.
85
86
87
88
89
90
Wright and Code Report on Air India Trial, Part I, p. 3.
Wright and Code Report on Air India Trial, Part I, p. 4.
Wright and Code Report on Air India Trial, Part I, p. 3.
Wright and Code Report on Air India Trial, Part I, p. 4.
Wright and Code Report on Air India Trial, Part II, p. 11.
Testimony of Geoffrey Gaul, vol. 88, December 4, 2007, p. 11357.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
So what we did in this case, we did a lot of front-end, an
enormous amount of front-end work, of getting the file ready
so that when we did our charge assessment, we approved a
charge, we were able to disclose it.91
In a 2001 decision relating to Malik and Bagri, BC Associate Chief Justice Dohm
described the enormity of the expected defence tasks in reviewing disclosure.
These included the following:
• complete review of 93 binders of recently disclosed materials;
• review of a “second tier” of Crown disclosure, which was to include
170,000 documents containing 600,000 to 1,000,000 pages and a
33-volume index;
• review of all CSIS and RCMP wire materials, which appeared to
contain hundreds of hours of conversations. ACJ Dohm reported
the understanding of the defence that there were Criminal Code
wiretaps which ran for seven to eight months, and years of CSIS
wiretaps; and
• review of any further materials which were to be disclosed by the
Crown, including those provided to the defence by way of
disclosure applications.92
Justice Josephson found that CSIS was obliged to comply with Stinchcombe93
disclosure requirements.94 This gave rise to the possibility of litigation about
disclosure of information pertaining to national security.
There were “tiers” of disclosure in the Air India trial. The first involved providing
both hard copy and electronic copies of the material. The second involved
electronic disclosure only. The third involved making a large volume of files
available to the defence for manual inspection.
Gaul testified that the Air India prosecution team decided to use electronic
disclosure. The trial brief or the “Crown brief” – the summary of the materials
that the prosecution would use as the core of its case – was disclosed both
electronically and in about 90 volumes of hard copy.95 Gaul described a second
tier of electronic disclosure as covering the “…rest of the evidence that might
well have been relevant to the defence but was not going to form a portion of
the prosecution.”96
91
92
93
94
95
96
Testimony of Geoffrey Gaul, vol. 88, December 4, 2007, pp. 11366-11367.
Malik and Bagri v. HMTQ, 2001 BCSC 2 at para. 16.
R. v. Stinchcombe, [1991] 3 S.C.R. 326.
R. v. Malik, Bagri and Reyat, 2002 BCSC 864 at paras. 9-10, 14.
Testimony of Geoffrey Gaul, vol. 88, December 4, 2007, pp. 11366-11367.
Testimony of Geoffrey Gaul, vol. 88, December 4, 2007, p. 11368.
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Wright and Code noted that no private law offices in Vancouver at the time the
charges were laid were equipped with the computer equipment or expertise to
handle disclosure on the scale of the Air India case, especially in electronic form.97
To remedy this, the Crown negotiated with each defence team to provide the
appropriate computer equipment and applications to handle the disclosure.98
Another issue was the equipment to be sent to the accused, since they were in
preventive detention awaiting trial. For this, the Project Manager worked with
Corrections sheriffs to ensure the security of data throughout the trial.99
The Crown proceeded with electronic disclosure, maintaining close contact
with the defence teams about information technology issues that might arise.100
A database for every disclosure transaction was also created to avoid confusion
about which information had or had not been disclosed.101
Code testified about a third tier of disclosure involving “peripheral material” in
the filing rooms – “…rooms and rooms and rooms of documents that nobody
had even looked at but that you couldn’t say that they were clearly irrelevant;
they still met the Stinchcombe standard.” Because it was inefficient for the Crown
to scan and disclose these documents electronically, the Crown and defence
established a procedure to give counsel access to the documents in a file room
on an undertaking of confidentiality. It was the responsibility of defence counsel
to review these documents. If they found documents of interest, they would ask
for photocopies and take the photocopies back to their offices.102
Undertakings: The Crown and defence agreed on three defence undertakings
relating to disclosure. The first undertaking applied where the subject material
was voluminous and likely largely irrelevant to the proceedings. In that instance,
a copy of the material was physically provided to defence counsel for review
at their offices. The undertaking included obligations to keep documents
secure and also prohibited defence counsel from disclosing the information
further, including to the accused, without Crown consent or a court order. The
undertaking required the eventual return of the material to the Crown.103
The second undertaking related to material that was to remain in the possession
of the Crown, but that would be made available to defence counsel for inspection.
This form of undertaking was used for smaller amounts of privileged material
that remained at all times in the Crown’s possession.104
The third undertaking allowed defence counsel to go to the Crown office
or CSIS to examine the documents that CSIS had not disclosed or that it
97
98
99
100
101
102
103
104
Wright and Code Report on Air India Trial, Part I, p. 13.
Wright and Code Report on Air India Trial, Part I, p. 13.
Wright and Code Report on Air India Trial, Part I, p. 16.
Wright and Code Report on Air India Trial, Part I, pp. 15-16.
Wright and Code Report on Air India Trial, Part I, p. 14.
Testimony of Michael Code, vol. 88, December 4, 2007, pp. 11372-11373.
Wright and Code Report on Air India Trial, Part III.
Wright and Code Report on Air India Trial, Part III.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
had disclosed before in an edited (“redacted”) form. Although the material
pertained to matters of national security, these matters were largely irrelevant
to the proceedings. Defence counsel were able to view the full documents
electronically while the documents remained in the possession of CSIS. Defence
counsel were permitted to prepare a list of relevant information to which the
defence might seek access, but no other notes could be made of the information.
The undertaking prohibited defence counsel who signed it from disclosing the
information to any person, including clients, without a court order or Crown
consent. Counsel could, however, disclose the information to other defence
counsel who had signed the undertaking.105
The third undertaking stated that the undertaking did not compromise any
privilege claim by the Crown, CSIS or the Attorney General of Canada. In almost
every case, defence counsel concluded that the material was not relevant to the
proceedings.106 If the defence approached the Crown about a document that
was relevant and useful to the defence, Code testified, the Crown would always
relieve the defence of the undertaking not to disclose the information.107
This third undertaking avoided the need for litigation under section 38 of
the Canada Evidence Act. As Code testified, “…we negotiated the solutions to
disclosure that you would ultimately normally have to litigate.”108 No applications
were made under section 38 as a result, so the defence and prosecution teams
were never required to undergo the logistically difficult and lengthy process of
bringing section 38 issues before the Federal Court.
9.2.3 Services for Family Members of Flight 182 Victims
Shortly after Reyat’s guilty plea, the National Parole Board gave the victims’ family
members an opportunity to register as victims and to submit victim impact
statements.109 This process allowed registered victims to receive updates about
Reyat’s sentence and any parole eligibility dates.110 Reyat served his sentence
and was released on bail in July 2008 while awaiting trial on perjury charges
relating to his testimony in the Air India trial.111
Several steps were taken to ensure that victims’ families could attend the trial
and witness the judicial process first-hand. In British Columbia, the Crime
Victim Assistance Act112 and regulations113 provide for services and funding
105
106
107
108
109
110
111
112
113
Wright and Code Report on Air India Trial, Part III.
Wright and Code Report on Air India Trial, Part III.
Testimony of Michael Code, vol. 88, December 4, 2007, pp. 11375-11376.
Testimony of Michael Code, vol. 88, December 4, 2007, p. 11384.
Maryam Majedi, Air India Victim Services Legacy (April 2005), para. 28 [Air India Victim Services Legacy].
Ms. Majedi was Manager of the Air India Prosecution Team’s Victim Services, Criminal Justice Branch, BC
Ministry of Attorney General.
Air India Victim Services Legacy, para. 28.
“Convicted Air India bombmaker Inderjit Singh Reyat free on bail” (July 10, 2008), online: CBC News
<http://www.cbc.ca/canada/british-columbia/story/2008/07/10/bc-reyat-bail-posted.html> (accessed
December 2, 2008).
S.B.C. 2001, c. 38.
B.C. Reg. 161/2002.
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for immediate family members of victims of certain criminal offences and
give significant discretion to the Director of Crime Victim Assistance114 to pay
the travel and other expenses of immediate family members to attend legal
proceedings.115 Total assistance is limited to $3,000 per family member.116
On October 27, 2000, when charges were laid against Malik and Bagri, BC’s
Crown Victim Witness Services informed the known family members of the Air
India victims of the charges and inquired whether they wanted further contact
about the proceedings.117 Shortly after that, a special program (the Program)
was established to provide comprehensive assistance to immediate family
members both before and during the trial. The BC Ministry of Attorney General
created the Air India Crown Victims and Witnesses Service (AICVWS), which
became responsible for managing the Program.118
One of the first tasks of the AICVWS was to find the family members who had not
yet been located. Out the 487 family members listed in the AICVWS database,
the Service established contact with 376.119 The remainder could not be located,
had died or requested that they not be contacted further.120
Once accredited, up to two family members from each victim’s family unit
received travel, accommodation, meal allowances and travel insurance to attend
the trial for one week.121 “Family member” was defined as the spouse, parent,
child, sibling, grandparent, aunt or uncle of a deceased victim.122 The AICVWS
also accommodated special circumstances at the accreditation stage, allowing
more than two family members to travel where one or more of the accredited
family members was frail (elderly or sick) and required a companion for support.
The AICVWS also made exceptions where the deceased’s family had separated
into two non-communicating parts.123
Family members of victims came from as far away as India, Saudi Arabia, Sri
Lanka and Australia. This imposed additional management duties and costs.124
Another problem lay in managing the flow of information to victims’ family
members, since the AICVWS thought, from the outset, that keeping them
114 Section 18 of the Crime Victim Assistance Act allows the minister to designate a public service employee
as Director.
115 B.C. Reg. 161/2002, s. 23(3)(a).
116 B.C. Reg. 161/2002, s. 23(5).
117 See Air India Victim Services Legacy, para. 3.
118 The same organization is referred to as “Air India Victim/Witness Services (AIVWS)” in Air India Victim
Services Legacy.
119 Air India Victim Services Legacy, para. 8.
120 Air India Victim Services Legacy, para. 8.
121 Air India Victim/Witness Services Department, Ministry of Attorney General (BC), Victim Services
Handbook, pp. 43, 46 [Air India Victim Services Handbook].
122 Air India Victim Services Handbook, p. 41.
123 Wright and Code Report on Air India Trial, Part I, p. 17.
124 Wright and Code Report on Air India Trial, Part I, p. 18.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
informed was an important objective.125 This was accomplished through means
that included a secure website, newsletters, a handbook for victims, funding for
travel to attend the trial, visits to the warehouse housing forensic evidence (the
partially-reconstructed aircraft), meeting space in Crown offices, victim services
staff and counsellors, regular briefings of visiting victims’ family members by
the head prosecutor, production of a remembrance book, telephone and email
contact with their homes, and regional group meetings with Crown, police and
victims.126
The Program assigned five AICVWS caseworkers and one lawyer to assist the
victims’ family members during the Air India trial and for some time after.127
Caseworkers paid special attention to family members during portions of the
Crown’s evidence that were expected to be more emotionally charged, such as
the testimony of the Irish rescue workers who attempted to recover the victims’
bodies.128
AICVWS caseworkers began preparing for the verdict as early as May 2004. The
weekend before the verdict was pronounced, the AICVWS, the Air India project
manager, the head prosecutor and the head of the RCMP Air India Task Force
met with local and visiting family members to discuss the possible verdict and
to answer questions.
A total of 77 family members, friends and witnesses attended the verdict
proceedings on March 17, 2005. After the verdict was rendered, the lead
prosecutor, the Crown’s media liaison and the head of the RCMP Air India
Task Force gave a debriefing session. AICVWS caseworkers were on hand with
numerous counselling strategies to deal with the emotional outpouring that
might follow. These caseworkers helped many family members through this
difficult time. Their help was especially important since some family members
had not received any counselling in 1985 immediately after the tragedy.
Section 722 of the Criminal Code permits family members of deceased victims to
submit victim impact statements on sentencing. However, since both Malik and
Bagri were acquitted and there was no sentencing, the section 722 provision
did not apply.
Although Reyat had been convicted in 2003 of manslaughter, family members
were not asked to submit victim impact statements at that time. Nevertheless, in
his decision on sentence, Justice Brenner quoted with approval the comments
of the lead prosecutor who, when speaking about the impact of the tragedy
on the family members, said: “The immensity of this catastrophe is almost
indescribable.”129
125 Wright and Code Report on Air India Trial, Part I, p. 18.
126 Wright and Code Report on Air India Trial, Part I, p. 18.
127 See the names and biographies of caseworkers and legal counsel in Air India Victim Services
Handbook, pp. 66-70.
128 This testimony is reflected in R. v. Malik and Bagri, 2005 BCSC 350 at paras. 40-48.
129 R. v. Reyat, 2003 BCSC 254 at para. 12.
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9.2.4 Trial Costs
Victim Services: The total cost for the AICVWS and the Program came to $1.8
million. Although the Program was entirely managed by the AICVWS, which was
part of the BC Ministry of Attorney General, the federal government assumed
the entire cost.130
Prosecution Costs: The BC Ministry of Attorney General reported on the
expenditures made by BC to mount the trial, excluding police costs. Prosecution
costs associated with the trial started with preparations by a small prosecution
team in 1996 and ended in March 2005 with the acquittal.131 The expenditures
were broken down into the following categories and amounts:
Pre-trial132
Prosecution except for Witnesses and Victim Services
Expert and non-expert witnesses133
Victim Services
Prosecution total134
$ 5,610,144
$13,249,967
$ 1,759,333
$ 1,766,623
$22,386,067
Defence Costs: Shortly after the charges were laid, Bagri was declared eligible
for legal aid funding because of the complexity of the case and the significant
preparation time that had been given to the Crown. This happened even though
Bagri’s income and net worth would normally have made him ineligible. Reyat
was also found to be eligible for legal aid when his name was added to the
indictment, mainly because he was then in custody and had no way to fund his
defence.
Malik, however, did not meet the legal aid criteria in BC and was deemed ineligible.
At his bail hearing, he estimated his net worth at $11.6 million. Nonetheless,
in February 2002, he reached an interim funding agreement with the Attorney
General of BC. This ensured that funding could be applied immediately to his
defence costs while he liquidated his assets. As of September 19, 2003, the
Attorney General of BC had paid more than $3.6 million to Malik’s 11-member
defence team under the interim funding agreement. At that time, Malik argued
that his defence would require about an additional $2.7 million, plus several
hundred thousand dollars in computer costs, to complete the trial.135 Malik also
claimed that he had personally paid $650,000 in legal fees to that date.136
130 Ministry of Attorney General (BC), Factsheet: Statement of Expenditures for the Air India Trial,
2005AG0036-001081 (November 23, 2005), p. 1, online: Government of British Columbia <http://
www2.news.gov.bc.ca/news_releases_2005-2009/2005AG0036-001081-Attachment1.pdf> (accessed
November 28, 2008) [Air India Statement of Expenditures].
131 Air India Statement of Expenditures, p. 1, fn. 1.
132 This figure does not include expenditures relating to the trial and conviction of Reyat in 1991: Air India
Statement of Expenditures, pp. 1-2.
133 The Crown called a total of 90 witnesses (including experts and laypersons).
134 Air India Statement of Expenditures, p. 1.
135 A history of this agreement, as well as the amounts advanced to Malik, can be found in HMTQ v. Malik,
2003 BCSC 1439, 111 C.R.R. (2d) 40 at paras. 2, 4-15.
136 HMTQ v. Malik, 2003 BCSC 1439, 111 C.R.R. (2d) 40 at para. 17.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
Malik applied for funding by way of what is known as a “Rowbotham application”
after disagreements arose with the Attorney General of BC about his solvency
and unsecured debts.137 A hearing was held in the summer of 2003 and a
decision was rendered on September 19, 2003.138 There, the Attorney General
of BC conceded that Malik could not receive a fair trial without the assistance
of counsel.139 Still, the judge found that Malik was not entitled to funding for
his defence since he was not indigent and had not made the necessary efforts
to obtain funds to cover his defence. The judge found that Malik could pay the
balance of his defence costs and take any measures necessary to reduce those
costs, but made no finding as to the past funding provided by the state.140
Despite this decision, the Attorney General of BC advanced further funds to
Malik for the duration of the Air India trial, based on terms of the interim funding
agreement, which was amended periodically to take into account the changing
nature of Malik’s case.
The province took security against property owned by each co-accused and
would seek reimbursement under the terms of the agreement.
BC’s Freedom of Information and Protection of Privacy Act141 protects personal
information about individual agreements. However, the BC Ministry of Attorney
General provided some insight into the extent of funding for the three co-accused,
estimating their combined funding to total over $21 million. This represented all
the defence costs advanced, either through loan or grant, since the laying of the
charges in 2000.142 Another $358,000 was added for administrative costs related
to the defence,143 for a final total of $21.4 million.144
Media reports in November 2005 quoted BC Attorney General Wallace Oppal as
saying that Bagri still owed the government $9.7 million and that Malik owed
$6.4 million.145
137 HMTQ v. Malik, 2003 BCSC 1439, 111 C.R.R. (2d) 40. R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 established
that anyone charged with a serious criminal offence and who has been denied a referral to a legal
aid lawyer can apply to a judge to appoint a lawyer for them.
138 HMTQ v. Malik, 2003 BCSC 1439, 111 C.R.R (2d) 40.
139 HMTQ v. Malik, 2003 BCSC 1439, 111 C.R.R. (2d) 40 at para. 1.
140 HMTQ v. Malik, 2003 BCSC 1439, 111 C.R.R. (2d) 40.
141 R.S.B.C. 1996, c. 165.
142 Air India Statement of Expenditures, p. 1.
143 These administrative costs included printing and photocopying as well as the computer equipment
necessary to view and search the electronically-disclosed evidence.
144 Air India Statement of Expenditures, p. 1.
145 As quoted in reports published by the Vancouver Sun, The Province, Times Colonist and The Globe and
Mail on November 24, 2005.
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Summary of Costs
The BC Ministry of Attorney General estimated the total expenditures for the Air
India Trial, before the federal contribution, at just under $58 million.
Courts - Trial Support and Security Operating Expenditures
$7,753,052
Prosecution Expenditures
Pre-trial
Prosecution except for Witnesses and Victim Services
Expert and non-expert witnesses
Victim Services
$5,610,144
$13,249,967
$1,759,333
$1,766,623
Prosecution total
$22,386,067
Justice Services Expenditures
Defence Funding
(Less PST charges included)
Defence Funding before PST
Administrative
Justice Services total
$22,026,914
($945,105)
$21,081,809
$357,717
$21,439,526
Corrections - Operating/Custody Expenditures
Management Services - Administrative Support
Expenditures
Total Expenditures before Amortization Expense
Amortization Expense
Capital costs
Less: net book value
Air India Share
Total Expenditures before Federal Contributions
$1,958,581
$230,718
$53,767,944
$7,825,453
$3,815,903
$4,009,550
$57,777,494146
9.2.5 Federal-Provincial Cost-sharing
The federal government and the BC Ministry of Attorney General negotiated a
cost-sharing agreement for the Air India trial. Shortly after the charges were laid
and before entering the agreement, the federal government granted $1 million
to the Ministry. In 2001, under the concluded agreement, the federal government
agreed to pay roughly half the total costs of the Air India trial, including all costs
related to the AICVWS.147 Excluded from the agreement were the capital costs
146 Not included in this figure are any wind-up costs in 2005/06: Air India Statement of Expenditures,
pp.1-2
147 Air India Statement of Expenditures, p. 1.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
incurred by BC, mainly for building the high-security Courtroom 20 where the
trial took place.148
The BC Ministry of Attorney General estimated that the federal government
contributed a total of $27.5 million, leaving a total expenditure by the Ministry
of $30.3 million.149
9.3 Making Terrorism Trials Workable
Several events could have prevented the Air India trial from reaching a verdict.
The trial might have proceeded with a jury. Once a trial by 12 jurors starts, the
discharge of more than two jurors due to illness or personal hardship results
in a mistrial. Even if ten jurors could have lasted for the duration of the trial,
more frequent breaks would have been required than in a judge-alone trial to
accommodate matters such as the illness of jurors. The trial judge could have
become incapacitated; in the case of a judge-alone trial, the entire trial would
have had to start anew. Counsel might have ignored their professional duties as
officers of the court and employed tactics such as frivolous applications, including
those requiring litigation in the Federal Court and interlocutory appeals, calling
unnecessary witnesses, engaging in excessive cross-examination, refusing to
agree to non-contentious facts and attempting to appeal adverse findings before
the trial was completed. Such tactics could have delayed the trial beyond repair.
If lead counsel had been inexperienced, they might have lacked the judgment
to avoid avenues of prosecution or defence that would have further delayed or
complicated the trial.
If less well-organized, the Crown might not have been able to cope with the
enormity of the disclosure obligations. This would have led to a stay. If relations
among defence and prosecution teams had deteriorated,150 cooperation would
have also diminished, perhaps preventing agreement on the ad hoc procedure
for dealing with issues that otherwise would have brought litigation under
section 38 of the Canada Evidence Act into play, which would have greatly
prolonged the trial.
In his paper for the Commission, Bruce MacFarlane offered a more generic
analysis of the “realities” of terrorism trials, and identified further impediments
that could prevent such trials from reaching verdicts:
Terrorist trials have several important realities. They are usually
lengthy and very complex. Crown disclosure obligations
often raise difficult national security issues. Those accused
of terrorism, at least in Canada, have the right to choose
148 Air India Statement of Expenditures, p. 2.
149 Air India Statement of Expenditures, p. 1.
150 Wright and Code spoke of the “good administrative relationship” between Crown and defence in the
Air India trial and how this led to a successful disclosure process and other successfully managed
aspects of the trial: Wright and Code Report on Air India Trial, Part I, p. 10.
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trial before a trial and jury, or a judge sitting alone. The acts
charged are usually horrific in nature, enraging the public and
placing extraordinary pressure on the police and prosecutors
to convict those responsible. And politicians sometimes wade
into the case, making fair trial requirements even more difficult
to meet.
These realities can place a terrorist trial at risk. For a variety of
reasons, an unmanageably long trial may never reach verdict:
a mistrial may be required where more than two jurors have
to be discharged; the trial may abort where the trial judge
cannot continue with the case; Crown mismanagement or the
simple reality of its disclosure obligations may force a judicial
stay; defence demands for disclosure of security-sensitive
information may, if successful, force the Crown to terminate
the case to protect the information; and, if the case reaches
“mega” proportions, the simple passage of time can lead to the
evidentiary collapse of the Crown’s case, prompting a Crown
stay with no determination on the merits of the evidence.
Accused persons, as well, face the risk of not being able to
have a fair trial where the acts alleged are so horrific that
their simple allegation has had a direct impact on the fabric
of society – potentially tainting the pool from which jurors
are chosen, and altering normal decision-making by police,
prosecutors, scientists and, some would argue, the judiciary.151
The Air India trial did reach a verdict. Good management and, in some cases,
good fortune allowed the trial to avoid many impediments that might otherwise
have seriously delayed, or even scuttled, it. Lessons must be learned from this
experience. Nevertheless, the management measures and procedures employed
at the Air India trial should not automatically be seen as a template for future
terrorism cases. Each case will have its own unique features.
The following section discusses several measures to reduce the risk of terrorism
trials failing to reach a verdict. These measures include sound administrative
management of the trial, appointing the trial judge early in the process,
developing an appropriate disclosure process, organizing the early hearing
of motions, ensuring appropriate funding of both defence and prosecution
counsel, encouraging judges to take firmer control of the trial and counsel to act
more responsibly as officers of the court, and increasing the number of jurors
to prevent mistrials in long jury trials. In addition, though not directly germane
to the trial reaching a verdict, the dictates of decency require that the terrorism
trial process fully address the needs of victims and their families.
The importance of amending section 38 of the Canada Evidence Act to allow the
trial judge to make and revise non-disclosure orders on the basis of national
151 MacFarlane Paper on Terrorist Mega-Trials, p. 293.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
security confidentiality was discussed fully in Chapter VII. The section 38
issue will be discussed only briefly here, and only as it relates to the pre-trial
management responsibilities of the trial judge.
9.3.1 Project Management
Wright and Code suggested that “…a megacase should be seen not only as
a prosecution but as a major administrative project,” and called for a project
management approach to mega-cases, “…including a project manager,
project team, project management planning, budgeting, risk assessment,
implementation, monitoring and evaluation.”152
The project management approach adopted in the Air India trial was an
essential part of the trial process. In future trials, project managers may be
equally important, addressing the multitude of administrative complexities that
can delay or even defeat a terrorism prosecution, and allowing counsel to focus
on the legal issues.
9.3.2 Cost-sharing
The Air India trial provided a model for federal-provincial cost-sharing
arrangements in future major terrorism trials. Adequate funding is necessary
for all aspects of a terrorism trial: for project management and the disclosure
process, for the hiring of sufficient numbers of competent and experienced
prosecutors and defence counsel, and for the provision of services to victims
and their families.
The federal government has a clear interest, and a central role, in terrorism
prosecutions. One essential federal role in long and complex prosecutions is
to provide financial support. British Columbia faced a bill of over $30 million
for the Air India trial, even after the federal government had contributed $27.5
million. Smaller provinces may not have the financial capacity to underwrite
such lengthy and complex trials; generous federal cost-sharing will be necessary.
As will be seen, federal cost-sharing could also encourage experienced defence
counsel to become involved in lengthy terrorism prosecutions. Cost-sharing
could also fund proper project management so that counsel can focus on legal
issues instead of administrative and logistical details.
9.3.3 The Trial Judge
While many procedural changes can be made to enhance the prospect of
terrorism trials reaching a verdict, the pivotal point of the entire process is the
trial judge. A competent, experienced judge is essential. That means a judge
with criminal law experience, an appreciation of the independence of the
judiciary, good health and a readiness to take on what may turn out to be a very
lengthy case.
152 Wright and Code Report on Air India Trial, Part I, p. 2.
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Wright and Code identified certain qualities that the judge should possess:
You need a trial judge who is bright, experienced and fair
and who is patient and able to listen for a long time.…
Because mega-trials generally cannot be repeated, there is a
high premium on choosing a trial judge who will not make
reversible errors. This means choosing from the brightest, most
experienced and fairest judges. At the same time, the extreme
length of these cases means that you must choose a judge
who will remain patient and not try to take over the case, as it
will inevitably drag on.153
In a recent article Code argued that the judiciary is afraid to control counsel.
He called for a clear legislative statement to declare the existing common law
powers of the judiciary:
It needs to be clarified that the courts have the power to
enforce these particular duties, and thus to require that
counsel “act responsibly”, in order to ensure a fair and efficient
trial. The judiciary fear intervening in this area due to concerns
about perceived partiality, and the law societies almost never
use their discipline processes to enforce these basic tenets
of professionalism, all of which are set out in the Rules of
Professional Conduct. As a result, counsel’s ethical duties as
officers of the court are rarely enforced. A clear legislative
statement on the point would resolve any uncertainty about
judicial powers to enjoin and sanction counsel in this sphere
and would encourage enforcement of the basic requirements
of professionalism. Such a statement would only need to be
declaratory of the existing common law as this kind of modest
approach has often been helpful in educating the bench
and bar and encouraging cultural change within the justice
system.154
At trial, the trial judge must not be timid in controlling the conduct of counsel
and should not hesitate to rein in counsel who, for example, bring dilatory
motions, present massive and unnecessary amounts of irrelevant evidence or
conduct excessive cross-examinations. However, the authority to control the
excesses of the adversarial process is not a licence for the judge to descend into
the forum. The latter is not permitted, whereas the former is a necessary part of
the judge’s obligations to ensure a fair trial.
The trial judge should be appointed early to allow the judge to become involved
from the start in managing the trial. In the terrorism context, a trial judge who
153 Wright and Code Report on Air India Trial, Part II, p. 1.
154 Code Article on Mega Trial Phenomenon at 467.
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is appointed early can take control of the pre-trial process and establish rules
to avoid the process being derailed. Early nomination of the trial judge also
gives the judge greater “ownership” of the case. It allows the judge to establish
procedures, and, in particular, allows the judge to make it clear to counsel the
level of professionalism that is expected of them.
Appointing trial judges early also allows them to deal with disclosure, since
disclosure issues are most often dealt with in the early stages of the trial
process. At the same time, early appointment of trial judges ensures that they
will not face the burden of handling files from other cases as they are trying
to get the terrorism trial process underway. Although it may cause scheduling
difficulties in some jurisdictions, early appointment is necessary. At present,
only trial judges have the legal power to make binding rulings on matters such
as the admissibility of evidence and Charter motions.155 Early appointment of a
trial judge would also be facilitated if, as recommended in Chapter VII, a chief
justice selects a trial judge who can decide national security confidentiality
matters under section 38 of the Canada Evidence Act as well as other disclosure
issues and pre-trial motions. Such a comprehensive approach to pre-trial
management would follow international best practices as seen in Australia, the
United Kingdom and the United States.156
9.3.4 Defence and Crown Counsel
9.3.4.1 Funding
At its peak, the Air India trial involved 46 Crown and defence lawyers, with the
three defence teams totalling 26 lawyers.
Wright and Code argued that the prosecution in such cases should be headed
by a “…senior crown counsel with leadership credentials, experienced in both
complex, difficult trials and administrative matters,”since both skill sets are bound
to be critical in weathering the many challenges that can arise throughout the
pre-trial and trial phases of any mega-trial.157 Wright and Code suggested that
the lead prosecutor must have a “…resilient, pragmatic and flexible personality”
to “…negotiate the innumerable procedural and substantive issues with the
defence, so that the trial proceeds in a reasonably efficient manner.”158 They
added:
In particular, disclosure, admissions, procedural and
evidentiary motions and scheduling will be the subject of
continuous discussions over a number of years, as the case
proceeds. The Crown inevitably must take the lead in these
155 R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Hynes, 2001 SCR 82, [2001] 3 S.C.R.
623.
156 Roach Paper on Terrorism Prosecutions, pp. 248-287.
157 Wright and Code Report on Air India Trial, Part I, p. 5.
158 Wright and Code Report on Air India Trial, Part II, p. 2.
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discussions, as the Crown has the burden of moving the case
forward. For these discussions to succeed the lead prosecutor
must be a skilled and pragmatic negotiator who does not insist
on winning every small point and who is not deterred by any
of defence counsel’s failings. . . . If every little point has to be
fought, the “mega-trial” will never end.159
For similar reasons, Wright and Code recommended that the accused’s
defence should be conducted by experienced and senior counsel who
have good judgment and who understand “…the delicate balance between
counsel’s duty to their client and their duty to the court.” This includes “…a
strong element of public interest . . . which obliges counsel to pursue justice
in an efficient and expeditious manner.”160 Such senior defence counsel would
know “…which issues are worth pursuing, which issues should be discarded
and which issues can be satisfactorily resolved through negotiations with
the Crown.”161
Canada’s largest and most complex trials should be handled by the most
capable and experienced lawyers, but the ability of some governments and
virtually all accused to pay for these lawyers remains a significant problem.
The Air India trial showed the extensive prosecution and defence costs that
may be involved in future terrorism trials. As described earlier in this chapter,
prosecution costs totalled over $22 million162 and the estimated defence costs
for Reyat, Malik and Bagri totalled over $21 million.163
Wright and Code emphasize the importance of providing adequate funding for
the defence:
From the defence perspective, experienced and senior counsel
will simply not take on such a case without appropriate
resources as it requires counsel to essentially give up the
rest of their practice. Furthermore, every step taken by a
well-resourced Crown and police team has to be matched
or responded to by the defence. Significant resources
are required before the trial even starts simply to read
the voluminous disclosure, to retain private investigators,
to interview witnesses and to confer with experts. If the
resourcing levels for the Crown and the defence do not reflect
some general proportionality, the trial will not be fair and
senior and experienced counsel will not participate. On the
other hand, if the resourcing is too generous it will exacerbate
159
160
161
162
163
Wright and Code Report on Air India Trial, Part II, p. 2.
Wright and Code Report on Air India Trial, Part II, p. 3.
Wright and Code Report on Air India Trial, Part II, p. 3.
As reported in Air India Statement of Expenditures, p. 1.
To this figure must be added more than $350,000 in administrative costs related to the defence: Air
India Statement of Expenditures, p. 1.
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the worst features of the “mega-trial”....[D]efence counsel
who are guaranteed generous levels of “cash for life” from
the public purse will not be eager to return to the challenges
of their ordinary practice where retainers are almost always
limited. In conclusion, a delicate balance is required between
too [few] resources for the Crown and defence and too [many]
resources.164
They stress the need to avoid the extremes of a “blank cheque” approach to
funding the defence or an approach that will make it impossible for experienced
counsel with significant overhead expenses and other clients to take on a major
case. Providing adequate resources to retain experienced counsel will pay
important dividends. It should result in responsible admissions of fact, more
focused pre-trial and trial proceedings and less needless conflict between Crown
and defence. Otherwise, excessive pre-trial motions and trials and unwarranted
conflicts between counsel can greatly prolong a trial and, in extreme cases,
prevent it from reaching a verdict.
Legal aid is generally seen as falling within provincial jurisdiction over the
administration of justice.165 However, the federal government has since 1972
treated legal aid as falling within its “overall reform strategy” aimed at addressing
poverty, crime and disorder.166 Since that time, the federal government has agreed
to share the cost of criminal legal aid with the provinces. The administration of
the legal aid programs remains a provincial responsibility.167
A review of provincial eligibility guidelines shows that most accused with fulltime employment when arrested are not likely eligible for assistance under
their local legal aid schemes.168 The likely length and complexity of terrorism
proceedings will mean that nearly all accused would be unable to afford their
legal fees on their own. Even if they were eligible for legal aid, the amount of
legal aid funding available would almost certainly fall far short of that needed
to retain experienced counsel.
Proper funding is vital for the efficient management of the trial. The cost of
experienced counsel may seem high, even extraordinary, to an outside observer,
164 Wright and Code Report on Air India Trial, Part II, p. 3.
165 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, s. 91(24).
166 Karen Hindle and Philip Rosen, “Legal Aid in Canada” (Parliamentary Information and Research Service,
Library of Parliament, August 6, 2004), p. 4, online: Government of Canada <http://dsp-psd.pwgsc.
gc.ca/Collection-R/LoPBdP/PRB-e/PRB0438-e.pdf> (accessed December 3, 2008) [Legal Aid in Canada].
167 The Federal-Provincial Agreement on Legal Aid in Criminal Matters, signed in December 1972,
established a cost-sharing arrangement between the federal government and the provinces: Legal Aid
in Canada, p. 4.
168 However, some legal aid laws allow the government to take into account special circumstances and
grant legal aid in cases where it would normally be denied. See, for example, Quebec’s Legal Aid Act,
R.S.Q. c. A-14. Section 4.3 provides that, where exceptional circumstances warrant and in order to avoid
the occurrence of irreparable harm, the administrative committee may rule that a person who is
ineligible for legal aid is in fact eligible on payment of a contribution (as interpreted in Attorney General
of Quebec v. R.C. (also cited as Quebec (Attorney General) v. R.C.)), [2003] R.J.Q. 2027 (C.A.) at para. 13.
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but the increase in the efficiency of the trial process is more than likely to offset the
increased cost. The undertakings reached in the Air India trial between defence
and prosecution about disclosure, particularly disclosure that might otherwise
have required national security confidentiality litigation under section 38 of the
Canada Evidence Act, for example, were the mark of experienced counsel. Those
undertakings prevented debilitating delays and possibly even the collapse of
the case, both of which would have imposed significant further costs.
In R. v. Rowbotham,169 the Ontario Court of Appeal held that the denial of statefunded counsel to an indigent, unrepresented accused facing serious and
complex criminal charges violated the rights to a fair trial and to make full
answer and defence under sections 7 and 11(d) of the Charter. The appropriate
remedy in these circumstances was a conditional stay of proceedings pending
the appointment of state-funded counsel by the appropriate Attorney General
or legal aid program. The prosecution could not proceed unless the Government
agreed to pay for the accused’s lawyer.170
For cases that present additional special circumstances, an accused may file a
“Fisher application” for a court order that the Government fund the case at levels
exceeding ordinary legal aid rates. Named after the leading case, R v. Fisher,171
a Fisher application is in essence a special type of Rowbotham application. A
Fisher application typically involves a request for funding to pay for higher fees,
extra preparation time, additional defence lawyers and other forms of enhanced
services.172 In several provinces, Fisher applications have succeeded where the
trial is exceptionally long and complex. Nonetheless, debate continues about
whether the courts have the authority to order governments to provide this
increased funding.173
Rowbotham and Fisher applications will increasingly be a feature of terrorism
trials, given the likely size of the files, the complexity of the evidence and the
need to involve experienced lawyers to ensure that the trials proceed efficiently
and fairly. If at all possible, decisions about funding defence counsel should
be made without such applications. The courts will impose a solution if they
must,174 but it would be better for all concerned if governments could reach
prompt agreements with counsel about funding that will avoid the time and
expense of litigating the issue.
Low legal aid tariffs make it very difficult for experienced lawyers to take on
long cases. It is one matter to take a short trial at a rate that does not pay the
169
170
171
172
(1988), 41 C.C.C. 1.
As described in the BC “Legal Services Society Factsheet” [BC Legal Services Society Factsheet].
R. v. Fisher, 2001 SKCA 136, 217 Sask. R. 134 (Q.B.).
Attorney General of Quebec v. R.C. (also cited as Quebec (Attorney General) v. R.C.), [2003] R.J.Q. 2027 (C.A.)
at para. 168.
173 BC Legal Services Society Factsheet.
174 However, uncertainty remains about whether courts should make orders departing from inadequate
legal aid tariffs or if they should stay proceedings: See Attorney General of Quebec v. R.C. (also cited
as Quebec (Attorney General) v. R.C.), [2003] R.J.Q. 2027 (C.A.) at paras. 6, 163-164, which held that a
stay of proceedings was the appropriate remedy but which also recognized that in a long prosecution
the Government had agreed to pay counsel fees beyond the regular legal aid rate.
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overhead of a successful law practice, but it is quite another to sign up for a
year-long trial at such rates. The Lesage and Code recently commented that this
can lead to “…a vicious circle: the longer criminal trials become, the less likely
it is that leading counsel will agree to conduct them on a Legal Aid certificate;
and yet having leading counsel conduct the defence in these cases is one of
the solutions to the overly long trial, as it is these counsel who are most likely to
conduct the trial in an efficient and focused manner.”175
British Columbia has taken steps to attract experienced and leading counsel
to complex cases by providing an enhanced fee structure and a separate and
confidential fee structure for exceptional matters.176 Federal cost-sharing is one
factor that allows British Columbia to do this. Indeed, federal funding facilitated
negotiating a consent Fisher order in the Air India trial, and this approach should
be used in future terrorism prosecutions. Attempting to save money by insisting
on regular legal aid rates for long terrorism prosecutions is short-sighted. It will
only add to the length and cost of the trial and may even diminish the chances
that the trial will reach a verdict.
9.3.4.2 Conduct of Counsel
Establishing a good working relationship between Crown and defence counsel
is an essential precondition to the successful management of any terrorism
prosecution. Given the difficult situations that counsel involved in terrorism
trials are likely to encounter, it is vitally important that counsel respect and
adhere to the rules of professional conduct and demonstrate civility in their
relations with each other.
In the Air India Trial, 37 counsel interacted over a 19-month trial, as well as during
the pre-trial process, which lasted almost three years and which also involved
the nine lawyers representing Reyat. The lawyers had to fulfill their roles in
the adversarial system while maintaining sufficient professional courtesy and
respect to work together and make appropriate concessions and admissions.
Wright and Code spoke of how well this relationship worked:
The exceptionally good administrative partnerships between
Crown and the defence resulted in immense savings in time
and money. At the end of final submissions, the trial judge
stated that had it not been for this Crown and defence
partnership, along with the very effective technology
innovations by Court Services and other agency staff, the trial
would have lasted at least twice as long.177
Lesage and Code noted how admissions made by defence counsel in the Air
India trial reduced a list of 883 potential Crown witnesses, with an estimated
175 Lesage and Code Report on Large and Complex Criminal Case Procedures, p. 96.
176 Lesage and Code Report on Large and Complex Criminal Case Procedures, p. 103.
177 Wright and Code Report on Air India Trial, Part I, p. 3.
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trial length of three to four years, to 85 Crown witnesses.178 This underlines how
responsible defence counsel who are willing to make reasonable admissions of
fact can shorten a complex terrorism trial. Conversely, irresponsible counsel can
prolong a trial to the point of making it almost impossible to reach a verdict.
Even during the Air India trial, however, defence lawyers at times expressed
concern about their relationships with the prosecution team179 and even
accused some counsel of misleading and sharp practice.180 Justice Josephson
suggested the need for increased courtesy in communications between Crown
and defence.181 He stated that proceedings such as the Air India trial could be
made significantly more difficult if a “…reasonable degree of mutual respect
and trust between counsel” was not present.182
In a recent article, Code stated that there is “…a well documented argument
that standards of civility have been in serious decline throughout all segments
of society in recent years” and that “…the legal profession has been subject to
a number of specific influences, pressures and changes that have made the
modern practice of law particularly susceptible to incivility.”183 This decline, he
said, is likely to cause more incidents that will require the intervention of trial
judges.
LeSage and Code addressed the ethical and legal duties of Crown and defence
counsel, as officers of the court, to make admissions of fact. They observed that
“…[c]ounsel for the Crown and the defence are both under ethical duties to
make reasonable admissions of facts that are not legitimately in dispute. The
court should encourage and mediate efforts to frame reasonable admissions.
When the defence fully admits facts alleged by the Crown, the court has the
power to require the Crown to accept a properly framed admission and to
exclude evidence on that issue.”184
Clearly, the conduct of counsel can have a profound effect on the pre-trial and
trial processes, and counsel must remember their ethical obligations. Code
identified several ethical duties that apply to counsel as officers of the court
which can facilitate trials in mega-cases. These duties would apply equally to
counsel in terrorism trials:
It is obvious that long and complex trials place a particularly
high premium on counsel’s ethical duties as officers of
the court. These duties apply to both the Crown and the
defence. Making responsible admissions of matters that
178
179
180
181
182
183
Lesage and Code Report on Large and Complex Criminal Case Procedures, p. 103, fn. 133.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at para. 24.
2002 BCSC 484 at para. 42.
2002 BCSC 484 at para. 40.
2002 BCSC 484 at para. 40.
Michael Code, “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice
System” (2007) 11 Can. Crim. L. Rev. 97 at 98 [Code Article on Counsel’s Duty of Civility].
184 LeSage and Code Report on Large and Complex Criminal Case Procedures, p. 89.
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cannot realistically be disputed, refusing to make frivolous
arguments that have no real basis in fact or law and treating
your opponent with respect and courtesy are all hallmarks
of the professionally responsible lawyer. When counsel abide
by these ethical duties in large complex cases, their conduct
will invariably shorten and simplify the trial and the pre-trial
motions. The result will be a better quality of justice both for
the client and for the overall administration of justice.185
It cannot be stressed too much that the trial judge plays a key role
in determining the level of civility in the courtroom. It is the judge’s
responsibility not to remain passive, but to set the tone and to discipline
errant counsel. Ultimately, the trial judge is the person in charge and,
regrettably, as discussed below, it is not uncommon for trial judges to lose
control of the proceedings.
9.3.5 Accountability of the Legal Profession for Trial Delays
Legitimate criticism has been directed at the legal profession for its role
in extending the length of trials. This criticism applies to civil and criminal
proceedings, but the following discussion addresses criminal proceedings,
where lawyers and judges both bear responsibility for the problem.
9.3.5.1 Lawyers
It is essential that constitutional rights granted to Canadians not be placed
in jeopardy. However, obstructionist tactics employed under the guise of
protecting Charter rights are a reality in our justice system. Such tactics are
an abuse of the system and a threat to the efficient administration of justice.
Regrettably, obstructionist tactics are a frequent occurrence in Canadian courts.
When they are allowed to be used, it can fairly be said that the judge has lost
control of the court proceedings to some extent.
Evidence of this loss of control is seen in the tolerance of judges for delay tactics
and frivolous applications by defence counsel. Though the right to fair answer
and defence is unassailable, applications without merit by defence counsel
should not be tolerated in light of their duties as officers of the court.186 Besides
being admonished by the trial judge, miscreant lawyers should be reported to
the appropriate law society.
Lesage and Code, as well as some judges, have raised concerns about the
ability of law societies to discipline lawyers for making frivolous motions that
threaten the possibility of deciding a case on its merits.187 Law societies must
185 Code Article on Mega Trial Phenomenon at 463.
186 See, for example, Chapter 10 of Alberta’s Code of Professional Conduct, addressing the lawyer’s role as
advocate. Rules 1 and 2 provide, respectively, that “A lawyer must not take any step in the
representation of a client that is clearly without merit” and that “A lawyer must use reasonable efforts
to expedite the litigation process”.
187 Lesage and Code Report on Large and Complex Criminal Case Procedures, p. 141; R. v. Dunbar (2003),
191 B.C.A.C. 223 (B.C.C.A); R. v. Francis (2006), 207 C.C.C. (3d) 536 at 542-543 (Ont. C.A.).
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take their disciplinary mandates seriously when confronted with misconduct in
the court room. They should consider robust sanctions, including suspensions
from practice and even disbarment, for lawyers who bring genuinely frivolous
motions that threaten the viability of long trials. As discussed earlier, adequate
funding should also be available to ensure that experienced defence lawyers can
afford to take on long terrorism prosecutions. Invoking disciplinary measures
and involving experienced counsel in terrorism trials will minimize the chances
that terrorism prosecutions will be impaired by needless motions and delaying
tactics.
Equally, the conduct of Crown counsel is not beyond reproach. Agents of
the Attorneys General are under the disciplinary control of the law society to
which they belong.188 In addition, their conduct of trials is the responsibility of
the Attorney General of the province where the trial occurs. Those in charge
of Crown counsel should not wait for judges or law societies to take remedial
action if unreasonable actions by Crown counsel contribute to prolonged trials.
It is important that experienced and reasonable prosecutors be assigned to
terrorism prosecutions and that there be effective oversight of their actions.
While delay and ill-conceived applications are, as a rule, the province of defence
counsel, the Crown contributes equally to the length of trials by overcharging.
In many cases, instead of carefully considering a charge or charges, the Crown
lumps several accused together and lays multiple charges of conspiracy and
specific offences. This is a particular likelihood under the Anti-terrorism Act, which
contains many overlapping offences. Overcharging results in long preliminary
hearings and lengthy instructions to juries at trial. The corollary of overcharging
is that it gives defence counsel the chance to attack legitimately the multiplicity
of inappropriate charges. All this serves only to lengthen a trial.
Canadian law societies have a duty to respond when irresponsible actions
by their members add to the length of trials. Law societies must respond to
complaints, particularly from judges, but they must do more. In today’s climate
of frequent abuse, it is not sufficient that law societies react only to complaints
by the courts or others. Law societies must be more proactive, in order to ensure
that all counsel are aware of their ethical duties to the court, including the
prohibition against frivolous motions or refusals to make obvious admissions of
fact. As Lesage and Code argued, trial judges should also “…insist on high levels
of professionalism from all counsel in long complex trials. This should begin with
educative steps, to remind counsel of the basic rules of court room behaviour
and of their duties as officers of the court. At the first sign of misconduct, the
judge should intervene and remind counsel of their proper role.”189
9.3.5.2 Judges
The increased length of Canadian criminal trials is a recent development. Chief
Justice McLachlin recently observed that murder trials which used to take five
188 Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372.
189 Lesage and Code Report on Large and Complex Criminal Case Procedures, p. 179.
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to seven days now routinely take five to seven months, if not longer.190 Other
judges have observed how the Charter and pre-trial motions have contributed
to prolonging trials.191 However, the judicial contribution to overly long trials has
sometimes been overlooked. Judges bear a good part of the responsibility for
delay caused by misconduct by counsel, and by endless, pointless applications
in their courtrooms. It is important to understand why some judges today are
losing control of long trials.
In recent years, there has been a large increase in the number of judges, both
provincial and federal. Each judge brings different experiences, strengths and
weaknesses to the court room. All judges, however, must be able to conduct
themselves in a fully independent manner.
Judicial independence has been a pillar of our judicial system. It may be that
not all judges realize the full reach of that independence. Judicial independence
can be abused, but history has shown that the benefits of such independence
outweigh the risk of abuse. Judicial independence is one of the principle features
of a democracy and is essential to the impartial administration of justice. It
ensures that a judge cannot be removed simply because the government of the
day happens to dislike his or her decisions. Judicial independence is said to put
the judiciary in a position where there is nothing to lose by doing what is right
and little to gain by doing what is wrong in the performance of its duties.192
The independence of the superior courts is entrenched in section 99 of the
Constitution Act, 1867, which provides that superior court judges hold office
during good behaviour and may only be removed by the Governor General on
Address of the Senate and House of Commons. The cumulative effect of sections
96 to 100 of the Constitution is to assign the appointment, tenure and removal
of superior court judges to Parliament. Judicial independence is also protected
under section 11(d) of the Charter, which gives a person who is accused of an
offence the right to be tried before an independent and impartial tribunal.193
Finally, judicial independence has been recognized as a fundamental principle of
the Constitution that is not limited to the textual provisions described above.194
Concerns about judicial independence should not be limited to the mechanics
of security of tenure, financial security and institutional independence from the
legislature and the executive. Concern should also extend to the spirit of judicial
independence.
190 Rt. Hon. Beverley McLachlin, “The Challenges We Face”, Remarks Presented at the Empire Cub of Canada
(March 8, 2007), online: Supreme Court of Canada <http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/
bm07-03-08-eng.asp> (accessed December 3, 2008).
191 Hon. Michael Moldaver, “Long Criminal Trials: Masters of a System They Are Meant to Serve” (2006) 32
C. R. (6th) 316 at 319[Moldaver Article on Long Criminal Trials]. The remarks were made during the John
Sopinka Lecture on Advocacy at the Criminal Lawyers’ Association Annual Fall Conference held in
Toronto on October 21, 2005.
192 W.R. Lederman, “The Independence of the Judiciary” 1956 (Volume 34) The Canadian Bar Review 1139
at 1179, citing R. MacGregor Dawson, The Government of Canada, 2nd ed. (Toronto: University of Toronto
Press, 1954), p. 475.
193 Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Generoux [1992] 1 S.C.R. 259.
194 Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3.
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Although the formal requirements of judicial independence continue to be
honoured, some judges in some long cases may believe that they are not fully
independent. Such perceptions may be inhibiting the ability of trial judges
to control a trial. In their recent report, Lesage and Code spoke of how “timid
judging”195 erects a barrier to effective judicial case management, including the
trial judge’s common law powers to determine schedules, set time limits and
impose other requirements with respect to pre-trial motions. The reasons for this
timidity must be addressed and, to the extent possible, it must be eliminated.
For a variety of reasons, judges may perceive that they are not fully free to
make rulings without fear of consequences. They may fear that exerting tight
control over the trial process may lead to claims of reasonable apprehension of
bias, reversal on appeal and complaints to their chief justice or to the Canadian
Judicial Council. This fear may inhibit judges from exercising the type of judicial
independence and power necessary to manage long terrorism trials. The only
factor that should influence a stern direction, an unpopular decision or a difficult
choice should be the judge’s carefully considered opinion.
Fortunately, appellate courts are increasingly recognizing that trial judges must
be able to exercise strong case management authority in order to control the
trial process. In one recent case involving protracted proceedings, the Ontario
Court of Appeal upheld the trial judge’s refusal to allow the Crown to lead
documentary material on the 67th day of a trial. Justice Rosenberg recognized
that “…a trial judge does have and must have a power to manage the trial.”
He added that, “in exceptional circumstances,” case management “…can even
include a power to require the prosecution to call its evidence in a particular
order.”196 He added:
The trial judge had spent 67 days of trial with the case. He was
intimately familiar with the issues and the potential pitfalls of
proceeding in the way suggested by the prosecution. Far from
showing impatience or partiality to one side or the other this
trial judge had shown considerable patience and restraint. But,
he was of the view that something had to be done to bring
the case back under control. This was not a demonstration of
partiality but an exercise of a trial management power.
Whatever may have been the case in the past, it is no longer
possible to view the trial judge as little more than a referee
who must sit passively while counsel call the case in any
fashion they please. Until relatively recently a long trial lasted
for one week, possibly two. Now, it is not unusual for trials to
last for many months, if not years. Early in the trial or in the
course of a trial, counsel may make decisions that unduly
lengthen the trial or lead to a proceeding that is almost
195 Lesage and Code Report on Large and Complex Criminal Case Procedures, p. 16.
196 R v. Felderhof (2003), 180 C.C.C. (3d) 498 at paras. 36, 39 (Ont. C.A.).
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unmanageable. It would undermine the administration
of justice if a trial judge had no power to intervene at an
appropriate time and, like this trial judge, after hearing
submissions, make directions necessary to ensure that the
trial proceeds in an orderly manner. I do not see this power as
a limited one resting solely on the court’s power to intervene
to prevent an abuse of its process. Rather, the power is
founded on the court’s inherent jurisdiction to control its own
process.197
Another case involved devoting five weeks to an issue raised under section
37 of the Canada Evidence Act. This involved access to information about an
informer. At an appeal taken before trial, Justice Sharpe warned that “…[t]he
trial judge certainly could and should have taken a firmer hand in moving this
issue along. She entertained lengthy and repetitive submissions that became
an ongoing dialogue instead of insisting on focused submissions.”198 The test for
reasonable apprehension of bias in a judge is strict. It requires a real likelihood
or probability of bias in the eyes of a reasonable and informed person.199 Trial
judges should not allow the remote possibility of reversal on appeal to fetter
their exercise of strong case management authority. To this end, it will be helpful
if terrorism prosecutions were conducted by trial judges who are experienced
and knowledgeable about the complex evidentiary and criminal law issues
involved.
Another possible perceived threat to judicial independence is the ability of the
Canadian Judicial Council (CJC), which is composed of about 40 chief justices
and associate chief justices, to investigate complaints about the judicial conduct
of the more than 1,000 federally-appointed judges.
The CJC was created pursuant to section 59 of the Judges Act. 200 Under the
Act, the CJC has the power to investigate complaints made by members of the
public about the conduct of superior court judges. Complaints can be made by
anyone, including an unhappy litigant or lawyer who has appeared before the
judge.
The Judicial Conduct Committee of the CJC can generally dismiss without
further process any complaints that are trivial, vexatious, made for an improper
purpose or manifestly without substance, or it can deal with complaints in
a summary manner. If the complaint is not dismissed summarily, additional
information may be sought from the judge, the judge’s chief justice and the
complainant, and remedial measures may be imposed. At higher levels, the
complaint may be considered by a panel of three or five judges, but the panel
may not include a judge from the same court as the judge who is the subject
of the complaint. This panel may recommend a formal inquiry, and the CJC may
197
198
199
200
R. v. Felderhof (2003), 180 C.C.C. (3d) 498 at paras. 39 and 40 (Ont. C.A.).
R. v. Omar, 2007 ONCA 117, 218 C.C.C. (3d) 242 at para. 31.
R. v. S.(R.D.), [1997] 3 S.C.R. 484 at paras. 111-112.
R.S.C. 1985, c. J-1.
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then decide to conduct a formal inquiry. Section 63(1) of the Act requires that a
formal inquiry be held without any of these intermediate steps if the complaint
is made by a provincial Attorney General or the federal Minister of Justice. The
Federal Court of Appeal has upheld this as consistent with judicial independence
even though the Attorney General or Minister may also effectively be a litigant
in the case in question.201
The CJC is chaired by the Chief Justice of Canada and consists of the chief
justice and associate chief justices of each superior court or branch or division
thereof throughout Canada, as well as the senior judges in the courts of the
territories. Section 60 of the Act defines the objectives of the CJC as being to
promote efficiency and uniformity, and to improve the quality of judicial service
in all superior courts of Canada. The CJC has the power under section 63 to
investigate complaints by members of the public or by a member of the Council
itself but, as noted above, it must conduct an inquiry if the Minister of Justice
or the Attorney General of a province requests one. After the investigation or
inquiry, which may include a request for a response from the judge, the CJC can
make recommendations, ranging from the removal of the judge from office to
delivery of a reprimand or a dismissal of the complaint.
Does the current Canadian Judicial Council (CJC) process sufficiently respect
judicial independence? The fact that the CJC is composed of judges and not
members of the executive or legislative branches of government satisfies
some of the more formal requirements of judicial independence. However, it is
important to go beyond formal requirements to ensure that, substantively, every
judge is able to exercise judicial independence when making difficult decisions
in often tense environments. There is a reasonable possibility some judges may
see the disciplinary power of the CJC as being akin to a “watchdog” that second
guesses difficult judicial decisions. Fear of such a watchdog is incompatible
with a full and robust exercise of judicial independence.
An instructive case bearing on these very issues involved a long “biker gang”
trial in Quebec. In the middle of the trial, the judge recused himself after he was
reprimanded by the CJC for insulting one of the accused’s lawyers at an earlier
bail hearing. 202 The CJC’s disciplinary decision was made available to a press
reporter before the judge had received official notification of it. The judge took
the position that, as a result of the reprimand, he had lost his moral authority
to preside over the trial. A mistrial was eventually declared. A 15-week jury
trial that had heard 113 witnesses had to be aborted. The judge’s recusal then
became the subject of a complaint by the Attorney General of Quebec to the
CJC. A formal inquiry found that the judge’s recusal was “improper” and that
the reason he gave for recusing himself “…was not a valid reason for withdrawal
201 Cosgrove v. Canadian Judicial Council, 2007 FCA 103, 279 D.L.R. (4th) 352 at para. 51. This decision
effectively recognizes that the historic mandate of the Attorney General to safeguard the integrity
of the Justice system is not incompatible with his or her ultimate responsibility for the conduct of
criminal prosecutions. The unique role played by the Attorney General is discussed elsewhere in this
volume.
202 R. v. Beauchamp, [2002] R.J.Q. 2071, 4 C.R. (6th) 318 (Que. S.C.).
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from the case.”203 The inquiry, undertaken by a panel of the CJC, found that
the judge had failed in the execution of his office, but that this failure did not
constitute grounds to recommend his removal from his office. The results of the
panel’s inquiry then came before the full CJC. The full CJC agreed that the judge
should not be removed but disagreed with the inquiry’s finding of impropriety.
It stated: “Except where a judge has been guilty of bad faith or abuse of office,
a discretionary judicial decision cannot form the basis for any of the kinds of
misconduct, or failure or incompatibility in due execution of office…. Exercise
of a judicial discretion is at the heart of judicial independence.”204 The CJC also
articulated some limits on complaints by Attorneys General under section 63(1)
of the Judges Act.
The CJC should continue to be sensitive to, and be seen to be sensitive to, the
difficult position of trial judges who must aggressively manage long criminal
trials. It should avoid fostering a concern that its operations threaten judicial
independence, particularly in relation to the management of trials. One change
that might reduce this concern lies in the composition of the Council. At present,
membership in the CJC is limited to chief justices and associate chief justices.
Historically, the chief justice was seen as the first among equals. The opinion of
a chief justice, then as now, is of no greater weight than that of a puisne judge
of the same court. As the number of judges has expanded in recent years, the
administrative role of chief justices and associate chief justices has grown. The
increase in administration includes additional and serious responsibilities, such
as dealing with space requirements, budget allocations and court assignments,
to name only a few. As a result, chief justices have become more distant from
the other members of the court. Increased responsibility has also added more
power to the office of chief justice. The result is a growing perception of what
might be described as an “employer-employee” relationship in the courts.
The employer-employee characterization is not apt because a chief justice has
no power of suspension or termination. Such powers would be inconsistent
with the independence of each judge, even though the chief justice is a judge
and not part of the executive or legislature. Chief justices do, however, have
responsibility for assigning cases and for approving attendance at conferences,
sabbaticals and other like activities, including service on public inquiries. Not
surprisingly, some judges may see the chief justice as their “boss” in the real
sense and not want to be adverse in interest. In truth, however, striving to please
the “boss” threatens judicial independence.
There is merit in making all superior court judges eligible to serve as Council
members, not merely as members of subcommittees. Professor Martin L.
203 Report of the Canadian Judicial Council to the Minister of Justice of Canada under ss. 65(1) of the
Judges Act concerning Mr. Justice Jean-Guy Boilard of the Superior Court of Quebec (December 19,
2003), p. 1, online: Canadian Judicial Council <http://www.cjc-ccm.gc.ca/cmslib/general/conduct_inq_
boilard_ReportIC_200312_en.pdf> (accessed December 5, 2008) [Canadian Judicial Council Report on
Mr. Justice Boilard].
204 Canadian Judicial Council Report on Mr. Justice Boilard, p. 2, quoted with approval in Cosgrove v.
Canada (Attorney General), 2008 FC 941, 331 F.T.R. 271 at para. 15.
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Friedland has argued that “…it would be desirable to involve puisne [regular, as
opposed to chief ] judges in discipline matters….To involve them in discipline
would give them a greater stake in the process and would ensure that it is not
solely the chief justices who are making the decisions.”205 This would allow puisne
judges to participate in the critical initial decisions about whether complaints
merit a formal public inquiry.206 It would also allow puisne judges to take part in
deciding whether to accept the findings and recommendations of inquiries.
Members of the CJC could be elected by members of their courts and serve a
fixed term, to allow for rotation of members. To maintain continuity, the Chief
Justice of Canada should remain the permanent Chairperson, as is the case
at present. Along with a reaffirmation by the CJC of the centrality to judicial
independence of judicial discretion and of the immunity of such discretionary
decisions from disciplinary oversight, such changes to the structure and
composition of the CJC would remove any alleged “chilling effect” that might
otherwise result from the CJC’s disciplinary powers. This “chilling effect” would
no longer serve as an excuse for judges to fail to discharge their duty to act
decisively and authoritatively in controlling the process in their court rooms.
Another change in the procedures of the CJC that would mitigate concerns that
the hearing of complaints could impinge on judicial independence is the repeal
of section 63(1) of the Judges Act. As discussed above, this provision requires a
formal and public inquiry if a provincial Attorney General or the federal Minister
of Justice lodges a complaint about a judge. The section 63(1) procedure shortcircuits many intermediate steps that are available to deal with complaints that
are made under section 63(2) of the Act. Section 63(1) has been the source of
controversy207 and Charter challenge on the basis of alleged inconsistency with
judicial independence. There is no evidence that the procedure has been abused
or exercised in a manner inconsistent with the Attorney General’s obligations to
act in the public interest.208 Without considering the merits of the Charter issue,
which will be resolved finally by the courts, section 63(1) is, in the Commission’s
view, in conflict with the spirit of full judicial independence. Section 63(1) allows
one side to a dispute, provincial or federal attorneys general who may prosecute
terrorism cases, to trigger a very formal and public process that can lead to
205 M.L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa: Canadian
Judicial Council, 1995), p. 138 [Friedland, A Place Apart].
206 A report commissioned by the Canadian Judicial Council recommended that while puisne judges
should be allowed to serve on subcommittees, they should not serve on committees. With respect
to the Judicial Conduct committee, the reason given was “…that it would not be appropriate for
individual puisne judges to have [the authority to resolve complaints] in respect of complaints about
other puisne judges”: The Way Forward: Final Report of the Special Committee on Future Directions to the
Canadian Judicial Council (2002), p.27, online: Canadian Judicial Council <http://www.cjc-ccm.gc.ca/
cmslib/general/news_pub_other_FuturesReport_20021129_en.pdf> (accessed December 3, 2008).
207 Professor Friedland recommended that the ability of provincial Attorneys General to initiate an inquiry
under s. 63(1) be removed: Friedland, A Place Apart, p. 139. Provincial Attorneys General conduct
the vast majority of criminal prosecutions, but in the terrorism context, the federal Attorney General
will frequently be the prosecution: see Chapter III.
208 Since 1977, there have been seven requests by an Attorney General for an inquiry under s. 63(1).
Four resulted in a recommendation that the judge in question not be removed, two resulted in the
judge’s resignation before the inquiry started and one resulted in the judge’s resignation after the
inquiry recommended that the judge be removed from office: Cosgrove v. Canadian Judicial Council,
2007 FCA 103, 279 D.L.R. (4th) 352 at para. 40.
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a recommendation that a judge be removed from office. Section 63(1) is not
necessary because provincial and federal attorneys general can bring complaints
like anyone else under section 63(2). Complaints under section 63(2), especially
when supported by an Attorney General, would be considered seriously. They
would, however, be subject to a process that is designed to resolve complaints
in a much more summary and less public manner and that reserves the formal
inquiry process as the last step of the complaint resolution process.
There are many reasons for the type of prolonged trials that create the danger
of rendering some terrorism prosecutions unmanageable. A variety of other
remedies relating to matters such as disclosure and pre-trial motions are
necessary and are examined elsewhere in this chapter. No single measure can
eliminate overly long trials. In some cases, such as the Air India trial, the very
nature of the subject matter will require a long trial. Nevertheless, the control
that judges exercise over the proceedings before them is a key factor in helping
long trials to proceed fairly and efficiently. Terrorism prosecutions present special
challenges in part because the stakes are so high. Both the prosecutor and the
accused may engage in unnecessary tactics for a variety of reasons, ranging from
extreme caution and adversarialism to outright attempts (by defence counsel)
to sabotage the prosecution. Such tactics can only be controlled by a strong
and independent judge. Although the suggestions advanced in the present
discussion can be helpful in removing perceived obstacles to the exercise of
judicial independence, in the end the issue comes down to judges’ willingness
to accept – and exercise with courage and integrity – the responsibility implicit
in their role. Even if it means exercising powers that will be unpopular with some
or all litigants and the public, or making decisions that run a risk of an appeal
or a complaint to the Canadian Judicial Council, judges must remain in control
of trials. Judicial independence is a fundamental part of our constitution. When
managing terrorism prosecutions, judges must appreciate the role of judicial
independence and act accordingly.
9.3.6 Pre-trial Motions
Much of the delay in a long trial occurs at the pre-trial stage. Ontario Court
of Appeal Justice Michael Moldaver once described long criminal trials as a “…
cancer on our criminal justice system” that posed a threat to its very existence.209
He attributed long trials largely to the increasing length of the pre-trial phase,
calling pre-trial motions “…this country’s greatest growth industry.”210 The
2006 Ontario Superior Court Report agreed with Justice Moldaver, adding
that pre-trial applications are “…the greatest reason why trials last longer than
anticipated.”211
Delays caused by pre-trial applications threaten the viability of terrorism trials.
It is here that the greatest need to introduce efficiencies to the trial process
arises. No legislative amendment is required to streamline pre-trial applications.
209 Moldaver Article on Long Criminal Trials at 316.
210 Moldaver Article on Long Criminal Trials at 319.
211 Ontario Superior Court Report on Criminal Trials, para. 307.
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As discussed earlier, much of the solution can be found with the judge hearing
the applications. A judge should not be afraid to control the courtroom –
including taking control of the pre-trial process and establishing ground rules
and deadlines for bringing applications.
Wright and Code recommended that all pre-trial applications be subject to the
following rules:
• that all motions be in writing;
• that they be served on opposing counsel with two weeks notice;
and
• that any defence to a motion be served in writing no later than one
week before its presentation.212
The trial judge, appointed early in the process, should hear most pre-trial
applications. As noted earlier, the Commission recommends that trial judges
be authorized to handle applications under section 38 of the Canada Evidence
Act. In fact, the trial judge should be the only judge to hear motions that are
central to the case. Since only the trial judge can decide constitutional issues,
having the trial judge appointed early also allows the early determination of
those issues. In addition, questions of admissibility of evidence are so central to
the case that they should not be heard by any judge but the trial judge. Such an
approach also reinforces the notion that the responsibility of ensuring that the
case comes to trial must be that of the trial judge.
There may be a few situations, however, where it is more appropriate for another
judge to decide pre-trial motions. For example, the following pre-trial matters
might be handled by a judge other than the trial judge:
• Rowbotham and Fisher-type applications;
• judicial interim release;
• plea discussion negotiations and guilty pleas (unless all accused
plead guilty); and
• related investigative hearings.
In the Air India case, at least three judges heard motions besides trial judge
Justice Josephson. Having such motions heard by a single judge other than
the trial judge would promote continuity in decisions about the case and would
make it much more likely that the judge hearing those motions would have a
sound knowledge of the case. However, appointing a single judge to hear all
motions that are not heard by the trial judge does risk setting up a second centre
of power in the trial, which may detract from the authority of the trial judge.
Some groups have called for a “case management” judge to handle many of
the pre-trial motions that the Commission recommends be handled by a trial
212 Wright and Code Report on Air India Trial, Part II, p. 8.
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judge who has been appointed sufficiently early in the trial process. The Federal/
Provincial/Territorial Working Group on Criminal Procedure, for example, recently
called for the nomination of a “trial management judge” as part of the “exceptional
trial procedure” that would come into play in a mega-trial.213 The 2004 Steering
Committee Report called for appointing a special “case management judge” to
share the workload of the trial judge in mega-cases. This judge would have the
same powers as the trial judge, and both judges would have the same status.214
The Steering Committee recommended that the case management judge would
be given authority to do the following:
• Consider all the issues relating to disclosure and make orders,
particularly on the content and format of the disclosure and on its
scheduling;
• Rule on bail applications and review of bail conditions;
• Rule on issues relating to funding for defence counsel, witnesses or
jury members ...;
• Permit, where necessary, access to proceeds of crime;
• Rule on applications for severance ...;
• Rule on preliminary issues involving the presentation of evidence,
including:
- Admissibility of evidence;
- Charter questions;
- Requests of the R. v. Corbett type (regarding the exclusion of past
convictions from the evidence);
- Expert status;
• Fix deadlines and ask the parties to report on the progress of the file;
• Invite the parties to identify the issues, keeping in mind that the
accused cannot be forced to make admissions ...;
• Put admissions made by the parties in the file.215
The Steering Committee recommended that the case management judge act as
a facilitator for any negotiations between the prosecution and the defence – for
example, about potential pleas and stays of prosecution. This was because “…
the trial judge must refrain from participating in any such discussions.”216 The
case management judge would serve as a mediator in negotiations regarding
potential pleas by the accused and potential stays of certain charges by the Crown.
The Steering Committee also recommended authorizing the case management
judge, in certain circumstances, to hear guilty pleas and pass sentence.217
213
214
215
216
217
F/P/T Working Group Proposals on Mega-Trials, pp. 6-9.
Steering Committee Report on Mega trials, s. 4.2.1.
Steering Committee Report on Mega trials, s. 4.2.3.
Steering Committee Report on Mega trials, s. 4.2.6.
Steering Committee Report on Mega trials, s. 4.2.6.
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In addition, the Steering Committee recommended that “…motions on matters
filed during the trial … be referred to the management judge when they deal
with matters completely separate from the evidence, or where a ruling from the
management judge may need to be reopened in light of new facts or exceptional
circumstances.”218As well, once the case is in order and ready to go to trial, the
case management judge would give the trial judge a report containing rulings
on preliminary motions, orders about the disclosure of evidence, admissions
made by the parties and issues identified by the parties.219
Some provinces already use case management judges and pre-trial judges to
ensure efficiency in managing the pre-trial process.220 The Steering Committee’s
recommendations would remove disparities among the provinces. The
recommendations would ensure that many more pre-trial applications could
be heard by a judge other than the trial judge, freeing the trial judge to attend
to trial issues exclusively. In particular, the recommendations would allow for
another judge to hear certain applications that are not appropriate for the trial
judge to hear. The recommendations would also ensure that a single judge is
responsible for every related application that is not to be heard by the trial judge.
Finally, the 2004 Steering Committee Report’s recommendations would force
parties to bring their applications before the case management judge during
the pre-trial phase or run the risk of having their late applications refused.221
Forcing parties to bring all or most of their applications during the pre-trial
phase would represent a significant departure from the existing practice in most
provinces and may not be advisable, particularly when it may not be possible for
counsel (both defence and prosecutor) to identify in advance all the applications
that should be brought. Good preparation and communication among counsel
will provide some certainty, but it is impossible to script litigation in the way
envisaged by the 2004 Steering Committee Report.
Leaving aside the merits of the proposals for non-terror cases, the Steering
Committee proposals do not take into account the unique challenges of
terrorism prosecutions. As discussed earlier, terrorism prosecutions are less
likely than many other cases to be resolved by plea negotiations. Issues of
disclosure, including whether secret intelligence will be disclosed to the
accused under section 38 of the Canada Evidence Act, will play an important
and sometimes critical role in terrorism prosecutions. The unique demands
of disclosure in terrorism prosecutions may result in late disclosure issues that
should be resolved by the trial judge. The trial judge must be able to reconcile
the competing needs for disclosure and secrecy in a terrorism prosecution and
revisit disclosure orders as the trial evolves. Remedies for disclosure violations
may be best decided at the end of the case by the trial judge, as would have
218 Steering Committee Report on Mega trials, s. 4.2.6.
219 Steering Committee Report on Mega trials, s. 4.2.4.
220 Background Dossier For Term of Reference (b)(vi), p. 41. See, for example, the pre-trial
recommendations of the Ontario Superior Court Report on Criminal Trials as well as the “management”
and “facilitation” conferences for penal and criminal cases in Quebec.
221 Steering Committee Report on Mega trials, s. 4.2.3.
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occurred in the Air India case but for the acquittals. These distinctive traits of
terrorism trials all suggest that a competent, experienced and committed trial
judge with the powers to make decisions about the broadest range of pretrial matters should be appointed early on in a terrorism prosecution. Such
early appointment should largely eliminate the need to bring another judge
(except in the case of certain pre-trial motions described earlier) into a terrorism
prosecution, even if the case management judge recommended in the 2004
Steering Committee Report is available.
Relying on a single trial judge to “case manage” a terrorism prosecution would
avoid the need for legislative amendments to empower pre-trial management
judges or to allow the parties or the Chief Justice to identify when a prosecution
would be sufficiently complex to require the appointment of a case management
judge. Moreover, relying on a single judge avoids the possibility of parties
attempting to ask the trial judge to re-open earlier decisions of the pre-trial
management judge.222 It is simpler and more efficient to appoint the trial judge
at an early stage. The proposed authority of the trial judge to re-visit any nondisclosure orders made under section 38 of the Canada Evidence Act would
also help to ensure fairness towards the accused if developments in the trial
make it necessary to disclose national security material that has previously been
withheld. Whatever the merits of a pre-trial management judge may be in nonterrorism prosecutions, a matter that is in any event beyond the Commission’s
mandate, the challenges of terrorism prosecutions require that the trial judge
firmly manage most aspects of the trial at the earliest possible opportunity.
In principle, divided responsibilities and accountability should be avoided.
Someone should be in charge. In a terrorism prosecution, the trial judge is that
person.
9.3.7 Pre-trial Conferences
Section 625.1 of the Criminal Code provides the authority for pre-trial conferences.
These are meant to promote a fair and expeditious trial and constitute one of the
first official meetings between Crown and defence counsel. Pre-trial conferences
222 Although he favoured the two-judge model because the single judge model was “administratively
rigid,” Code conceded that “…educating two separate judges about one case is more resource intensive
and creates some risk that the trial judge will disagree with the pre-trial judge’s rulings and will reverse
them if persuaded that something material has changed between the pre-trial and the trial. Only the
judge who makes the pre-trial ruling really knows whether some change in circumstances would
have been material to his or her original decision. Having two separate judges will inevitably
encourage attempts to revisit earlier rulings. Furthermore, assigning the case at an early stage to one
judge, who must both manage the case prior to trial and then try it (the one-judge model found in the
English rules), encourages that judge to take ownership of the case, work diligently to either resolve
it or shorten it, and take responsibility for the efficient management of his or her overall caseload”:
Code Article on Mega Trial Phenomenon at 457-458. On the English approach, which gives the trial
judge extensive powers of active case management, including the power to decide and if necessary
revise non-disclosure orders on the basis of public interest immunity, see Code Article on Mega Trial
Phenomenon at 440-445; Roach Paper on Terrorism Prosecutions, pp. 260-269. Roach also notes that
trial judges in Australia and the United States have robust case management powers, including the
ability to make decisions about whether secret intelligence must be disclosed to the accused or can be
disclosed in a modified form.
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are mandatory in jury trials. In other trials, Crown or defence counsel may apply
to the court for a pre-trial conference, or the court may order one on its own
motion.
The pre-trial conference is often the ideal forum for discussions between counsel
and the judge on matters such as disclosure, including disclosure involving
section 38 of the Canada Evidence Act, plea bargaining, choice of mode of trial
and length of trial, admissions of fact, Charter applications and other pre-trial
motions, including the rules for the presentation of the motions.223 Efficient and
early discussions on these issues, combined with the willingness of counsel to
compromise (and the authority to do so), can narrow the issues to be addressed
at trial and provide a more efficient pre-trial and trial.
However, in many jurisdictions, counsel fail to take pre-trial conferences
seriously,224 if they even bother to attend them at all. Counsel who do attend
often do so unprepared and without instructions from their clients, or they may
send junior counsel with no knowledge of the file and no authority to make
decisions or compromises.225 In addition, the judge who presides at the pre-trial
conference, if not the trial judge, may essentially be powerless to make binding
orders on critical matters such as disclosure.226 Such pre-trial conferences serve
no useful purpose.
The 2006 Ontario Superior Court Report recognized that pre-trial conferences
were not being taken seriously, were not being used to their full potential and
did not fulfill their role as case management tools. The Report responded with
a series of recommendations which set out proposed obligations for counsel
and the matters to be covered.227 The goal of these recommendations was to
create a pre-trial conference system where counsel would study the case before
the pre-trial conference and make binding commitments about various pre-trial
and trial issues, including pre-trial applications that they intended to present
and rules for their presentation.
The 2008 F/P/T Working Group Proposals also called for an enhanced pre-trial
conference procedure, recommending a provision in the Criminal Code similar
to section 536.4, which provides for pre-hearing conferences in the context of
preliminary inquiries.228 Section 536.4 contemplates meetings to identify the
issues that require the calling of evidence, which witnesses must be heard, and
their needs and circumstances. The section seeks to encourage the parties
to make decisions to promote a fair and expeditious process.229 Lesage and
Code commented, however, that pre-hearing conferences are not being used
effectively in preliminary inquiries because of the inability of the judges to make
223
224
225
226
227
Ontario Superior Court Report on Criminal Trials, paras. 197, 208.
Ontario Superior Court Report on Criminal Trials, para. 154.
Ontario Superior Court Report on Criminal Trials, paras. 155-156, 158-159.
R. v. S.(S.S.) (1999), 136 C.C.C. (3d) 477 (Ont. S.C.J.).
Ontario Superior Court Report on Criminal Trials, Chapter XVII: Compilation of Recommendations,
Recommendations Regarding Pre-trial Conferences.
228 F/P/T Working Group Proposals on Mega-Trials, p. 8.
229 Allowance would have to be made for the differences between preliminary inquiries, which have
limited objectives, and the conduct of actual criminal trials.
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binding orders about the conduct of the proceeding.230 This again underlines
the importance of allowing the trial judge, not another judge, to conduct a pretrial conference that produces binding deadlines and rulings.
As with the hearing of pre-trial motions, the trial judge should be involved in
the pre-trial conference. The trial judge is fully invested in the case and will have
a very direct interest in pressing for the case to proceed as efficiently as possible.
This is not to say that the trial judge should try to force counsel to attend a pretrial conference and dictate the issues to discuss. In some cases, it may be more
appropriate for the judge to inform counsel that he or she is available for a pretrial conference, but not to dictate the process, at least at that time. The main
point, however, is that the trial judge should be in charge. Moreover, the trial
judge should not be timid about managing the process to ensure that the case
proceeds to verdict in an efficient and fair manner.
9.3.8 Reducing Delays and Re-litigation Caused by Severance Orders and
Mistrials
Judges encouraging counsel to bring their applications early promises to
expedite the trial process. Many pre-trial matters relating to issues such as
disclosure, applications under section 38 of the Canada Evidence Act, the
sufficiency of search warrants and perhaps even the admissibility of evidence
could be made before trial. At the same time, it may be desirable for a
terrorism prosecution of multiple accused, each perhaps with differing levels
of involvement in the alleged terrorist activity, to be severed into smaller, more
manageable prosecutions. There is also a possibility that a terrorism prosecution
will end in a mistrial, as happened in R. v. Ribic, where the accused attempted
to call secret evidence in the middle of the trial. Litigation and appeals in the
Federal Court were necessary while the jury was kept waiting.231 The jury agreed
to the postponement, but the trial judge concluded at one point that, with
more Federal Court proceedings pending, he must dismiss the jury and declare
a mistrial.
At present, rulings rendered before a mistrial or before severance may have to
be re-litigated before the judge of the severed or new trial.232 Similarly, there
is no provision in the Criminal Code to allow common pre-trial motions to
be heard and decided in cases that were severed into separate prosecutions
from the start. The present state of the law provides a perverse incentive for
prosecutors to overload indictments with many accused and many charges and
to resist severance in order to achieve efficiency and consistency in decisions
about pre-trial motions. This deficiency in the Criminal Code persists despite
the observations of many trial judges that severance of prosecutions with many
230 Lesage and Code Report on Large and Complex Criminal Case Procedures, p. 60.
231 For a case study of this prosecution, see Roach Paper on Terrorism Prosecutions, pp. 217-234.
232 Courts of Appeal in Canada appear to be divided about whether rulings of a trial judge before a
mistrial continue to bind in the subsequent trial. See R. v. Wu (J.J.) (2002), 167 O.A.C. 141 at para. 25,
suggesting that such rulings do bind. In contrast, see R. v. Reashore, 2002 NSCA 167, 170 C.C.C. (3d) 246
at para. 11, suggesting that such rulings may not be binding at the second trial.
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accused and many charges is essential.233 Although overloaded indictments
and refusals to sever can make trials unwieldy, they ensure consistency in
rulings about critical pre-trial matters such as the disclosure of intelligence and
the admissibility of wiretaps, a consistency that might not be achieved with
severed counts if essentially identical pre-trial motions are decided by different
trial judges in separate trials.
MacFarlane argued that one of the causes of prolonged trials is overloaded
indictments with too many accused and too many charges. He maintained that
“…the Crown need not include every potential accused and every potential
charge on the indictment.”234 Code agreed that “…there is no doubt that one
cause of the mega trial phenomenon is over-loaded indictments with too many
accused and too many counts.” He added:
One of the main disincentives to severance under our
current legislative regime is that the Crown has a legitimate
interest in obtaining single consistent rulings on the major
procedural issues in a big case, such as disclosure, admissibility
of evidence and any arguable Charter breaches. It makes
no sense to litigate these issues repeatedly before separate
judges at separate trials. As a result, under our current regime,
the Crown understandably resists severance in order to
consolidate the rulings before a single judge at a single trial. If
the Criminal Code provided for an omnibus hearing of related
motions from all related trials, severance of large cases into
smaller cases would become a much more palatable remedy.235
It would not diminish the fairness of a subsequent trial to have the original ruling
bind the judge of a new trial that occurs because of a severance or a mistrial.
The accused and the Crown would have fully participated in the arguments
leading to the ruling that was made before the severance or mistrial. The same
is true if the cases are severed into separate, more manageable, prosecutions
from the start and an omnibus hearing of common motions, with all accused
represented, occurs before a single judge. In all these scenarios, the accused
and the Crown will have been present and participated fully in the arguments
leading to the ruling. Neither the accused nor the Crown can claim that the
process is unfair, and neither should be allowed to re-litigate the ruling unless
they can demonstrate a material change in circumstances. The same principle
should apply after a mistrial.236 Unless a material change in circumstances has
occurred, the trial judge’s rulings at the first trial should bind the parties at the
second trial.
233 Justice Krindle, for example, has observed: “In my opinion, a trial of perhaps seven or eight accused
would be difficult, but could be conducted, with the proper aids to the jury, without the jury’s losing
focus on the evidence and without the jury’s losing the ability to isolate the evidence to the individuals
and the issues. Beyond that number I believe that the interests of justice require severance”: R. v.
Pangman, 2000 MBQB 71, 149 Man. R. (2d) 68 at para. 30.
234 MacFarlane Paper on Terrorist Mega-Trials, p. 304.
235 Code Article on Mega Trial Phenomenon at 461-462.
236 However, this principle does not extend to a new trial ordered by an appeal court after it quashes a
conviction. In such a case, the parties would have to agree to be bound by the pre-trial rulings made at
the first trial.
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Experienced counsel can agree to accept a ruling made before severance or a
mistrial, but the preferred solution is to amend the Criminal Code to ensure that
the ruling of the original trial judge is not affected by a severance order or a
mistrial. The Criminal Code should also be amended to permit omnibus hearings
on common motions in related prosecutions that have already been severed.
That would mean, for example, that a pre-severance ruling on a voir dire about
the constitutionality of the anti-terrorism legislation would bind the judge at the
severed trial or that a ruling on the constitutionality of a wiretap at an omnibus
hearing would bind trial judges in subsequent and separate prosecutions.
The same should apply with rulings made before a mistrial is declared. The
subsequent judge should be permitted to revisit rulings of the original judge
only if materially different facts arise – as might occur, for example, because of
continuing disclosure.
Finality is an important value in the criminal justice system. Litigants have no
right to a second “kick at the can.” The approach proposed above is fair because,
in every case, the accused and the Crown are heard before rulings are made. Such
an approach is efficient because it prevents re-litigation of the same issues in
separate prosecutions. This approach is particularly important for prosecutions
of alleged terrorist groups or cells because it allows the prosecution to be broken
down and severed into manageable cases while still allowing common pre-trial
issues to be resolved in a consistent manner.
It would be important to restrict interlocutory appeals of rulings made before
a severance or mistrial, as well as those made at an omnibus motions hearing.
Interlocutory appeals can be prevented by deeming the pre-severance, premistrial or omnibus hearing rulings to be rulings of the trial judge in each
prosecution. The accused and the Crown could still appeal these rulings, but
only after the verdict, according to the standard appeal process of the Criminal
Code.
Once severed trials conclude, there may be separate appeals of similar issues – for
example, separate appeals of a pre-severance ruling about the constitutionality
of a wiretap. In cases of separate appeals of similar issues, it should be possible
for appellate courts to consolidate the appeals or grant standing to all the
accused who would be affected by the appeal. Appeal courts regularly deal
with problems created by multiple appeals of similar issues.237
The 2008 F/P/T Working Group Proposals suggest that more work needs to
be done to ensure that the accused and the Crown are bound by decisions
made before the prosecution is severed into separate trials and to deal with
problems such as standing at appeals of issues decided before severance.238
237 See, for example, Re McDonald and the Queen, 21 C.C.C. (3d) 330 (Ont. C.A.).
238 F/P/T Working Group Proposals on Mega-Trials. The F/P/T Working Group suggests that “extensive
examination” is still required “…to ensure that the joint hearing procedure as proposed would facilitate
the conduct of mega-trials and not give rise to further complexity and additional procedural delays”:
p. 20, Proposal 8. At the same time, the Working Group accepts the principle that rulings should
continue to bind after a mistrial is declared, absent fresh evidence or prejudice: p. 18, Proposal 7. It
is difficult to comprehend the idea that the accused or Crown can claim prejudice from the application
of the prior ruling unless there is fresh evidence demonstrating a material change in circumstances. It
may promote unnecessary litigation and should be abandoned.
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The Commission disagrees. The basic principles are relatively simple. First,
decisions made before severance should bind separate trials conducted after
severance. Second, omnibus hearings of common pre-trial motions should be
allowed in related prosecutions. Section 645 of the Criminal Code should be
amended to provide that decisions made on pre-trial motions before severance
or at an omnibus hearing are deemed to be decisions of the trial judge in any
subsequent prosecution. The decisions should be binding absent demonstration
of a material change in circumstances. The accused and the Crown should have
the right to appeal these rulings only according to regular appeal procedures
that apply after the completion of the trial. Appellate courts should be able to
manage problems raised by the possibility that one of the severed prosecutions
may result in an appeal before the other prosecution is completed, given their
control over matters of standing and intervention rights. An appellate decision
that is rendered in one case before a related prosecution is completed should
also be manageable. Trial judges regularly have to contend with changes in the
law that are made in unrelated appeals and they can do so even if the appeal
decision is made in a related case.
Prosecutions of suspected terrorist cells may involve many individuals with
differing levels of involvement in a terrorist plot. Indeed, one group may be
involved in multiple plots. The need for fairness and efficiency requires some
prosecutions to be severed into separate and more manageable proceedings. At
the same time, the problems of delay and re-litigation that will flow from sensible
severance orders need to be remedied. This can be done by amendments to
section 645 of the Criminal Code, as explained earlier, that will allow common
pre-trial issues to be decided fairly and efficiently, and with some finality.
Recommendation 25:
To make terrorism prosecutions workable, the federal government should share
the cost of major trials to ensure proper project management, victim services
and adequate funding to attract experienced trial counsel who can make
appropriate admissions of fact and exercise their other duties as officers of the
court;
Recommendation 26:
The trial judge should be appointed as early as possible to manage the trial
process, hear most pre-trial motions and make rulings; these rulings should not
be subject to appeal before trial;
Recommendation 27:
The Criminal Code should be amended to ensure that pre-trial rulings by the trial
judge continue to apply in the event that the prosecution subsequently ends
in a mistrial or is severed into separate prosecutions. The only case in which
rulings should not bind both the accused and the Crown should be if there is a
demonstration of a material change in circumstances;
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Recommendation 28:
The Criminal Code should be amended to allow omnibus hearings of common
pre-trial motions in related but severed prosecutions. This will facilitate severing
terrorism prosecutions that have common legal issues where separate trials
would be fairer or more manageable. All accused in the related prosecutions
should be represented at the omnibus hearing. Decisions made at omnibus
hearings should bind the Crown and accused in subsequent trials unless a
material change in circumstances can be demonstrated. Such rulings should be
subject to appeal only after a verdict.
9.4 Disclosure
Chapter V reviewed the law relating to disclosure and production of relevant
information to the accused. Canada has broad rights of disclosure which allow
the accused to have access to information held by the Crown that is not clearly
irrelevant to the case. The rationale of the rule is to protect the accused’s right
to a fair trial and to make full answer and defence, and to prevent miscarriages
of justice. However, broad disclosure rights impose costs. There is evidence that
they have damaged the relationship between the RCMP and CSIS because they
limit the willingness of CSIS to give information to the RCMP and the willingness
of the RCMP to receive it. Of greater relevance to the discussion in this chapter,
broad disclosure rights place a significant burden on the trial process. Disclosure
obligations in any terrorism prosecution are bound to be very onerous and will
include many documents related to the police investigation, including nonprivileged material relating to sources and agents. Disclosure may also involve
intelligence material developed by CSIS or foreign agencies.
Chapter V examined the possibility of enacting legislation to limit the accused’s
rights to disclosure and production of material from third parties. Ultimately, it
was concluded that such legislation would increase litigation, including Charter
challenges, and that it would not help produce a workable relationship between
intelligence and evidence. That said, it was also recommended that prosecutors
be reminded in clear terms of their obligation to disclose only information
that is relevant to the case, and that they need not disclose privileged material
– notably material protected by informer privilege or a national security
confidentiality claim. An indiscriminate “dump truck” approach to disclosure
should be avoided. Early, well-organized and focused disclosure facilitates
admissions of fact that will both shorten the trial process and permit the Crown
and defence to plan their cases.
In a case the size of the Air India trial, early preparation is vital to ensure that
the start of the trial is not delayed by late or incomplete disclosure. LeSage and
Code noted that early disclosure requires police and prosecutors to collaborate
closely to ensure a well-organized disclosure brief.239 Fortunately, the Federal
239 Lesage and Code Report on Large and Complex Criminal Case Procedures, p. 44.
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Prosecution Service Deskbook recognizes this important role of Crown counsel.240
The policies in the Deskbook stress close cooperation between the police and
the prosecutor with respect to the legal requirements and the organization of
disclosure. One of the important roles of the new federal Director of Terrorism
Prosecutions, a position whose creation is recommended in Chapter III, will be
to assist investigators in developing a well-organized disclosure brief and giving
legal advice to investigators about privileges that can protect information
from disclosure. Close prosecutorial involvement in investigations is also
required because section 83.24 of the Criminal Code requires the consent of the
Attorney General to proceedings in respect of terrorism offences. Prosecutorial
involvement should also facilitate informed discussions about the appropriate
charges and consequent disclosure obligations. The precise extent of disclosure
obligations depends on the nature of the charges that the accused faces.241
9.4.1 Electronic Disclosure
As noted earlier, much of the material disclosed in the Air India trial was
disclosed electronically. This included the Crown brief (which was also disclosed
in hard copy) and a second tier of material that might have been relevant to the
defence but was not going to form a portion of the prosecution. A third tier of
disclosure involved making large volumes of files available to the defence for
manual inspection.
In his testimony, Code spoke about coming up with a practical procedure in the
Air India trial and in future terrorism trials:
The procedure can be devised, and there’s nothing
constitutional about proper procedure here or practical
procedures here, so I think doing exactly what the B.C.
prosecutors did in Air India and that we agreed with -- there
was negotiation over this but it was all agreed with three tiers
of disclosure. The most relevant the core Crown brief should
be organized and produced in a hard copy in a Crown brief
as it always has been. The second tier of what’s recognized as
relevant but the Crown’s not relying on it, should be disclosed
240 The Federal Prosecution Service Deskbook provides that: “The most effective way of satisfying Crown
counsel’s ethical obligation to make full disclosure of the Crown’s case is to be involved at an early
stage and continue to be involved throughout the investigation. More than any other issue, the
preparation of disclosure materials requires intensive cooperation between Crown counsel and the
investigative agency, such that the responsibility should be viewed as a joint one. Crown counsel must
give the investigative agency sufficient assistance and direction to ensure that the investigators
produce a well-organized package that is as complete as possible and in a user-friendly format before
charges are laid. The assistance provided should seek to enable the police to produce both excellent
Crown briefs and complete disclosure packages for the defence.” It goes on to note the role of the
prosecutor in “…providing legal advice as to what material is privileged or non-disclosable for any
other reason”: The Federal Prosecution Service Deskbook, c. 54.3.1.3, online: Department of Justice
Canada <http://www.justice.gc.ca/eng/dept-min/pub/fps-sfp/fpd/ch54.html> (accessed November 24,
2008).
241 See R. v. Chaplin, [1995] 1 S.C.R. 727, discussed in Chapter V.
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in CD ROM form after scanning it, and the third tier of the really
marginal not clearly irrelevant material the Defence should
have access to and on an undertaking and it’s the Defence
onus to ask for a copy of something that they find helpful.
That’s the first question about how can we come up with a
practical procedure.242
Lawyers are increasingly computer literate. In terrorism trials that involve teams
of lawyers, the inability of some members of those teams to deal with electronic
disclosure should not be a problem since others will have sufficient computer
skills. In addition, enhanced funding for counsel can be made contingent upon
the legal team possessing sufficient technical abilities to manage electronic
disclosure.
Although the trend of recent decisions affirms the validity of electronic
disclosure, a legislative presumption in favour of electronic disclosure is
necessary to ensure that trials are not derailed by unnecessary proceedings
requesting paper disclosure.243 The Hon. Bernard Grenier testified about the
utility of electronic disclosure at mega–trials,244 as did Bruce MacFarlane.245 RCMP
Assistant Commissioner Souccar advocated identifying and managing disclosure
issues “…from day one of the investigation and not at the conclusion of the
investigation.”246
To encourage early disclosure and make voluminous disclosure more
manageable, the Criminal Code should be amended to permit electronic
disclosure and inspection of material by defence counsel in complex criminal
cases that are designated as such by the presiding judge. This would allow
a tiered approach to disclosure in appropriate cases, like that used in the Air
India prosecution. As in that prosecution, defence counsel could in appropriate
cases be required to attend at a secure location to inspect documents that, if
disclosed, could harm national security. This inspection option is particularly
important if, as required by the Supreme Court’s recent decision in Charkaoui247,
material relating to prior CSIS investigations and surveillance of the accused and
their associates is retained and the Crown agrees to make this material available
to the accused. In such circumstances, defence counsel should be permitted
242 Testimony of Michael Code, vol. 88, December 4, 2007, p. 11373. See also Code’s elaboration of a
proposed disclosure process at pp. 11371-11373.
243 In R. v. Chan 2003 ABQB 759 (Q.B.) at para. 77, Sulyma J. referred to a June 2000 order by a Provincial
Court judge, Maher J., that electronic disclosure was insufficient and that hard copy disclosure was
required. This order dealt a considerable blow to the Crown in this case, as providing disclosure in hard
copy to 34 co-accused was an enormous task. A stay of proceedings ultimately ended the Chan trial. At
that time, the Crown was still in the process of providing hard copy disclosure to the co-accused: R. v.
Chan 2003 ABQB 759. But for more recent decisions that recognize that electronic disclosure is
sufficient see R. v. Greer et al, 2006 BCSC 1894 and R. v. Piaskowski et al, 2007 MBQB 68, [2007] 5 W.W.R.
323.
244 Testimony of Hon. Bernard Grenier, vol. 92, December 10, 2007, pp. 12179-12183.
245 Testimony of Bruce MacFarlane, vol. 78, November 19, 2007, pp. 9915-9917.
246 Testimony of Raf Souccar, vol. 78, November 19, 2007, p. 9983.
247 Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326.
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to inspect such materials, but at a secure location where there are facilities for
maintaining the confidentiality of the lawyer’s work. Proposals have been made
in England for similar limits on access to respond to concerns that disclosure
could be misused, for example, to reveal the identity of those engaged in covert
surveillance.248
In its Final Submissions, the Attorney General of Canada warned that even minor
changes to the disclosure regime introduce complex and intractable issues about
provincial jurisdiction and the ability of northern and remote communities to deal
with the complexities of electronic disclosure.249 In an age of widespread computer
use, such concerns are overstated. In any event, the Attorney General of Canada
retains the authority to prosecute terrorism offences and to change the province
of venue of a terrorism trial, in the unlikely event that electronic disclosure would
prove to be beyond the capabilities of a particular jurisdiction. In short, a provision
could be added to the Criminal Code to allow the Crown to disclose evidence
electronically.
9.4.2 Staged Disclosure
As discussed earlier, the Air India trial involved staged disclosure. The Crown
brief was disclosed in paper format and electronically. Other relevant material
was disclosed electronically, and defence counsel were permitted to inspect and
obtain copies of further material, including sensitive material held by CSIS that
was not clearly irrelevant. This type of inspection may be particularly valuable
in cases like the Air India trial, where masses of wiretaps and other investigative
materials exist, but are of limited relevance and will not be adduced as
evidence. 250
By all accounts, the staged approach to disclosure at the Air India trial was fair
to all parties. It made the voluminous disclosure in this case more manageable.
Although the Crown brief in the Air India trial was disclosed in paper as well as
electronic format, paper disclosure may no longer be necessary. In these days
of the ubiquitous computer, “…if the accused or counsel requires a hard copy
of any of the material on the hard drive other than the video or audio portions
it is a simple matter of printing it from the hard drive.”251 In appropriate cases,
however, the Crown can make paper as well as electronic disclosure of the
Crown brief.
Staged disclosure, including the possibility of simply making some material
available for inspection, will be important in many terrorism cases. Relying
on inspection allows the Crown to comply with even the broadest reading of
Stinchcombe disclosure obligations while recognizing that disclosure of material
of limited relevance at the outer peripheries of the Stinchcombe rule, even
248 David Ormerod, “Improving the Disclosure Regime,” (2003) 7 International Journal of Evidence and
Proof 102 at 127.
249 Final Submissions of the Attorney General of Canada, Vol. III, February 29, 2008, paras. 80-84.
250 Criminal Code wiretaps that are used as evidence must be transcribed: Criminal Code, s. 540(6).
251 R. v. Greer et al, 2006 BCSC 1894 at para. 32.
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electronic disclosure, may sometimes be unworkable. Inspection requirements
can be designed to alleviate legitimate security concerns that sensitive material
that the Crown agrees can be disclosed to the accused’s counsel not be used
for other illegitimate purposes that may endanger sources and operatives. The
accused should be given the option of inspecting material at a secure location,
subject to compliance with security privileges that respect the need for solicitorclient confidentiality and the confidentiality of the lawyer’s work product.
The trial judge should also set time limits for this staged disclosure and not allow
disputes about disclosure to simmer or to delay the start of trial. In complex
terrorism prosecutions, it is a reality that not all disclosure can occur at the same
time. For this reason, the trial judge should “stay on top” of the disclosure process.
This does not mean that the trial judge should attempt to read all the disclosure
material or that counsel should be encouraged to dump all possible disclosure
issues onto the trial judge. The trial judge should be able to expect that Crown
counsel will discharge their ethical and legal obligations about disclosure, and
that defence counsel will take the opportunity to inspect material of limited
relevance, employ search engines to access electronically-disclosed materials,
and justify requests for disclosure that go beyond the investigative file and raise
peripheral matters.
Recommendation 29:
Electronic and staged disclosure should be used in terrorism prosecutions in
order to make them more manageable. Disclosure should occur as follows:
Recommendation 30:
The Crown should be permitted to provide in electronic form any material on
which it intends to rely and should have the discretion to provide paper copies
of such material. If the Crown decides to use electronic disclosure, it must ensure
that the defence has the necessary technical resources to use the resulting
electronic database, including the appropriate software to allow annotation
and searching;
Recommendation 31:
Material on which the Crown does not intend to rely but which is relevant should
be produced in electronic format, and the necessary technical resources should be
provided to allow the use of the resulting electronic database;
Recommendation 32:
The Crown should be able to disclose all other material that must be disclosed
pursuant to Stinchcombe and Charkaoui by making it available to counsel for the
accused for manual inspection. In cases where the disclosure involves sensitive
material, the Crown should be able to require counsel for the accused to inspect
the documents at a secure location with adequate provisions for maintaining the
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confidentiality of the lawyer’s work. Defence counsel should have a right to copy
information but subject to complying with conditions to safeguard the information
and to ensure that it is not used for improper purposes not connected with the
trial;
Recommendation 33:
The trial judge should have the discretion to order full or partial paper disclosure
where the interests of justice require; and
Recommendation 34:
The authority and procedures for electronic disclosure should be set out in the
Criminal Code in order to prevent disputes about electronic disclosure.
9.4.3 Disclosure Issues Relating to Section 38 of the Canada
Evidence Act
The undertakings signed by defence counsel in the Air India case permitted
disclosure of sensitive material without bringing into play the Federal Court
process currently required by section 38 of the Canada Evidence Act. This avoided
what Code described as a “…document-by-document litigation model instead
of a sensible negotiation model between counsel.”252 As noted earlier, counsel
who signed an undertaking were allowed to view documents that the Crown
might otherwise attempt to claim should be protected under section 38.
Code testified about the problems that he believed would arise if the parties
had litigated claims under section 38. He stated that “…nobody wanted to do
the section 38 procedure. It was an anathema.” This was in part because of the
procedure involved in educating a Federal Court judge about the case.253 He
testified further about hearing “…over and over again the legitimate concerns
of the victims in these cases that the delays are unacceptable and ... we’re just
inviting delays with the current section 38 procedure.”254
Two measures could facilitate addressing section 38 claims in future terrorism
trials. The first, used in the Air India trial, has been described as a “band-aid”
solution. It involved allowing defence counsel access to sensitive information
on signing an undertaking. The second, discussed extensively in Chapter VII,
is to move section 38 litigation out of the Federal Court and into the hands of
Superior Court judges presiding at terrorism trials.
The first solution – the undertaking by defence counsel – worked well in the
Air India trial. It was evidence of the commitment of experienced counsel
to a manageable trial. It also worked because many of the incidents under
252 Testimony of Michael Code, vol. 88, December 4, 2007, p. 11385.
253 Testimony of Michael Code, vol. 88, December 4, 2007, pp. 11386-11387.
254 Testimony of Michael Code, vol. 88, December 4, 2007, p. 11391.
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examination in the Air India trial were almost two decades old. Even if the
documents being reviewed were originally highly classified, their age meant
that there would be little danger of disclosing current CSIS intelligence, sources
or operational methods.
This will likely not be the case with future terrorism trials. The classified
information to which defence counsel will seek access will likely be current
and may reveal existing operations, targets, sources and intelligence.
Understandably, CSIS and the Attorney General would be reluctant to
allow counsel who do not have security clearances to review some of these
documents, and may challenge or prevent their release by using section 38.
Section 38 litigation may therefore be the only practical way to assess whether
it is appropriate to disclose material that brings national security issues into
play. Where litigation does become necessary, the Commission’s proposed
procedure for having section 38 applications heard by trial judges255 would be
much less disruptive than the current Federal Court procedure.
9.4.4 Late and Continuing Disclosure
The volume of materials to be disclosed can create a contest between providing
early partial disclosure on time and providing complete disclosure later. Given
that the accused are entitled to disclosure of all relevant evidence in the Crown’s
possession, the Crown’s inclination may be to withhold disclosure until it has
completed its review of all documents in the investigative file. In a perfect world,
the Crown would be able to provide disclosure as of the date of the indictment,
but this is often not the case, for a variety of reasons:
• The size of the investigative file may not permit a full review of the
evidence to be completed in time;
• The accused may be charged very quickly if they are caught in the
act;
• Evidence may be in the possession of numerous agencies and there
may be delays in compiling it;
• Evidence may continue to be gathered after the charges are laid,
especially if the investigation involves co-conspirators who have
not yet been indicted;
• The Government may have to request other agencies to remove
restrictions on the disclosure of information, but may not have
received permission as of the date of the indictment; and
• The Crown may have exercised its discretion over the timing of
disclosure to protect witnesses and sources.
255 See Chapter VII.
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A complete review of the evidence before disclosure might cause delays, and
ongoing investigations might make a complete one-time disclosure all but
impossible in any event. As a result, it is necessary to strike a balance between
timely and complete disclosure.
Late or incomplete disclosure has often been a significant issue in pre-trial
applications during mega-trials. In the Air India trial, for example, Justice
Josephson ruled on four occasions that the accused’s disclosure rights had
been violated as a result of lost or destroyed evidence256 or late disclosure.257 The
extent of the Crown’s duty to disclose and the timing of the disclosure required
considerable judicial attention, involving 14 days of hearings and elaborate
written submissions. At times, the discord that arose over disclosure strained
the relationship between Crown and defence counsel.258
Because Justice Josephson ultimately acquitted Malik and Bagri, he did not
need to decide the appropriate remedies for the various Charter breaches that
involved late disclosure.259 In other cases, Charter breaches flowing from late
disclosure have given rise to a range of different remedies. In most cases, the
remedies granted have been costs and adjournments. However, at times they
have included the more drastic remedies of exclusion of evidence, mistrials and
even stays of proceedings.260 In Chan, late and incomplete disclosure led the
accused to apply for a stay of proceedings on the grounds of unreasonable delay
and breach of the right under section 11(b) of the Charter to be tried within a
reasonable time.261 The judge ordered the stay.
The lesson is clear. Timely and full (to the extent possible) disclosure is an
indispensable element of the trial process. That said, there may be legitimate
reasons for delays in disclosure, especially in complex terrorism prosecutions
that may involve difficult issues of source and witness protection. The trial judge
should be available to deal with disclosure disputes at the earliest juncture,
and both the Crown and defence should come to the trial judge at the earliest
opportunity with disputes over disclosure.
9.5 Issues at Trial
9.5.1 Inability of the Trial Judge to Continue
The Air India trial began on April 28, 2003, and continued until December 3,
2004 – a total of 217 trial days. Justice Josephson delivered his judgment on
March 16, 2005.
256
257
258
259
260
R. v. Malik, Bagri and Reyat, 2002 BCSC 864; R. v. Malik and Bagri, 2004 BCSC 554, 119 C.R.R. (2d) 39.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484; R. v. Malik and Bagri, 2004 BCSC 1309, 124 C.R.R. (2d) 270.
R. v. Malik, Bagri and Reyat, 2002 BCSC 484 at para. 24.
R. v. Malik and Bagri, 2005 BCSC 350 at para. 1250.
The remedial jurisprudence is examined in Kent Roach, Constitutional Remedies in Canada (Aurora:
Canada Law Book, 1996), paras. 9.134-9.225.
261 R. v. Chan, 2003 ABQB 759.
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In a jury trial, section 669.2 of the Criminal Code allows for a new judge to
continue a jury trial if the first judge dies or becomes unable to continue. The
new judge has the discretion to continue the trial or to recommence it as if no
evidence had been taken.
The 2004 Barreau Committee Report and the 2004 Steering Committee Report
both offered recommendations to deal with the death of the trial judge or
the judge’s inability otherwise to continue with a jury trial. Recognizing that
this discretionary power to order a new jury trial could prove problematic, the
Barreau Committee recommended that, when appointing a trial judge, the
chief justice should also appoint an alternate judge. The alternate judge would
keep abreast of the facts of the trial on a regular basis, such as through weekly
summaries provided by the trial judge, and would be able to step in should the
trial judge be unable to complete the trial.262 The Barreau Committee argued that
appointing a judge as an alternate would not prevent that judge from taking
on other matters in the interim, since the responsibilities as an alternate would
not fully occupy the judge. This arrangement would therefore not further strain
judicial resources.263 The 2004 Steering Committee Report, following a similar
train of thought, spoke in favour of using a “case management judge” who could
replace the trial judge if necessary,264 as did the F/P/T Working Group.265
However, neither committee addressed the situation of a trial involving a judge
alone. Section 669.2 of the Criminal Code requires that if a trial judge sitting alone
becomes unable to complete the trial, the trial must begin anew. In the Air India
trial, this did not occur, but there was a theoretical possibility that the trial judge
could have become incapacitated. This would have led to the declaration of a
mistrial. The proceedings would have had to commence anew in their entirety
before another judge.
The 2008 F/P/T Working Group Proposals envisaged a trial management judge
hearing a range of motions to assist the trial judge. If a mistrial occurred because
of the inability of the trial judge to continue the trial or because of insufficient
juror numbers, rulings and orders made by the management judge, as well as
admissions by the parties, would continue to bind the parties. However, the
parties would not be bound if prejudice to the accused could be demonstrated
or if fresh evidence was introduced.266
There is a possibility a judge in a judge-alone terrorism trial would become unable
to continue. However, appointing an alternate judge or a case management
judge who could take over the trial may be an unnecessary response to a
problem that at this point remains largely theoretical. That said, rulings made
262
263
264
265
266
Barreau Report on Mega-trials, s. 2.6.2.
Barreau Report on Mega-trials, s. 2.6.2.
Steering Committee Report on Mega trials, s. 4.2.6.
F/P/T Working Group Proposals on Mega-Trials, pp. 6-7.
F/P/T Working Group Proposals on Mega-Trials, p. 18. The Working Group noted the similar
recommendation (recommendation 12) of the F/P/T Heads of Criminal Prosecutions on the
Management of Mega-cases, adopted by the F/P/T Deputy Ministers Responsible for Justice, Ottawa,
January 2004.
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by the trial judge should continue to bind the parties if there is a mistrial unless
a material change in circumstances can be demonstrated. This will at least
preserve pre-trial rulings if a trial judge in a judge-alone terrorism prosecution
becomes incapacitated. In many terrorism cases, the pre-trial rulings will take up
most of the judge’s time and thus the recommendation earlier that the pre-trial
rulings of a judge shall continue to bind the parties will go a long way towards
responding to the potential problems of the trial judge being incapacitated.
9.5.2 The Jury
Section 11(f ) of the Charter guarantees the right to a trial by jury for offences
carrying a maximum punishment of imprisonment for five years or more. With
few exceptions, terrorism offences267 qualify for jury trials on this basis. Some
have suggested that juries are not well-suited to terrorism trials and that
terrorism offences should be tried by a judge sitting alone. Trying terrorism
offences before a three-judge panel sitting without a jury is a second option,
one that the Commission’s terms of reference require it to explore. However,
both modes of trial would deprive the accused of the right to trial by jury. Doing
so would attract constitutional scrutiny.
It is of course possible to avoid a constitutional issue by employing one of the
following four measures:
• amending the Charter: Reaching the necessary political consensus
for such an amendment would be extremely unlikely, so this
possibility can be discounted;
• using the “notwithstanding clause” of the Charter268: It is unlikely
that a government would rely on the notwithstanding clause and,
in any event, the use of the notwithstanding clause would have
to be renewed every five years;
• justifying the abolition of jury trials for terrorism trials as a
reasonable limit on the section 11(f ) Charter right to a jury trial
• that “…can be demonstrably justified in a free and democratic
society”269: It will be very difficult to rely on section 1 of the
Charter to justify abolishing jury trials because of the range
of more proportionate responses that can be taken to improve
the trial process and the jury system for long terrorism trials.
There is also no evidence of widespread jury intimidation or
juror partiality in Canada, circumstances that have been used to
justify abolishing jury trials for terrorism trials in jurisdictions such
as Ireland and Northern Ireland; or
267 Set out in Part II.1 of the Criminal Code.
268 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act, 1982 (U.K.), 1982, c. 11, s. 33 [Charter].
269 Charter, s. 1. See also the test set out in R. v. Oakes, [1986] 1 S.C.R. 103.
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• reducing the maximum penalty for terrorism offences to less than
five years so that the right to trial by jury under section 11(f ) would
not apply: Given the gravity of most terrorism offences, a reduction
of maximum penalties to less than five years imprisonment is
simply not warranted.
As a result, the right to a jury trial is almost certain to remain a feature of terrorism
trials. It is not feasible to override the Charter right to trial by jury or even to
justify limits on the right, at least in the present circumstances in Canada.
Even if it was constitutionally possible to require that terrorism trials be held
before either a single judge or a panel of three judges, it is not clear that it would
be desirable to prevent trial by jury. In R. v. Turpin, Wilson J. spoke of the historical
importance of the right to a jury trial:
The right of the accused to receive a trial before a judge and
jury of his or her peers is an important right which individuals
have historically enjoyed in the common law world. The jury
has often been praised as a bulwark of individual liberty. Sir
William Blackstone, for example, called the jury “the glory of
the English law” and “the most transcendent privilege which
any subject can enjoy”: Blackstone, Commentaries on the
Laws of England (8th ed. 1778), vol. 3, at p. 379.
The jury serves collective or social interests in addition to
protecting the individual. The jury advances social purposes
primarily by acting as a vehicle of public education and
lending the weight of community standards to trial verdicts. Sir
James Stephen underlined the collective interests served by
trial by jury when he stated:
... trial by jury interests large numbers of people in the
administration of justice and makes them responsible
for it. It is difficult to over-estimate the importance of
this. It gives a degree of power and of popularity to the
administration of justice which could hardly be derived
from any other source
J. Stephen, A History of the Criminal Law of England
(1883), vol. I, at p. 573.
In both its study paper (The Jury in Criminal Trials (1980), at
pp. 5-17) and in its report to Parliament (The Jury (1982), at p.
5) the Law Reform Commission of Canada recognized that the
jury functions both as a protection for the accused and as a
public institution which benefits society in its educative and
legitimizing roles.270
270 R. v. Turpin, [1989] 1 S.C.R. 1296 at 1309-1310.
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The Quebec Barreau Committee report stated that “…this constitutional
guarantee [of a right to a jury trial] serves to protect citizens against potential
abusive or arbitrary procedures. It also serves to reassure citizens as to the quality
and impartiality of our justice system.”271 The Barreau Committee concluded
that the right to a jury trial should be maintained for all persons accused of a
crime for which section 11(f ) of the Charter guaranteed a right to a jury trial:
An important part of the right to a fair trial is the right to be
judged by a jury of peers, especially for the gravest crimes.
The creation of special tribunals goes against the underlying
principles of our legal tradition and our democratic values....
There is no reason justifying the setting aside of a right that
is essential to the functioning of the judicial system in a
democratic society.272 [Translation]
At a conference in Ottawa in 2007, Justice Josephson spoke of his experience
with the Air India trial and suggested that rulings in high profile terrorism trials
have a better chance of winning public approval if delivered by juries rather
than by judges: “I would have loved a jury trial to have made the factual findings
in that case.... I think there’s better acceptance of a verdict from a jury in the
community, whether they convict or acquit.”273
The issue then is not really about abolishing juries in terrorism trials. Instead,
it is about how to make the trial environment less problematic for juries. Many
of the recommendations discussed earlier are designed to make terrorism trials
more efficient and more manageable. For example, encouraging the counsel to
address matters through pre-trial motions, rather than motions during trial, will
resolve many matters before the jury even begins sitting, and avoid the delay
and the waste of jurors’ time that would occur if these matters were brought
up during the trial. Should motions that have to be heard outside of the jury’s
presence be required at trial, it is possible to schedule them in a manner that
reduces the inconvenience to jurors who, after all, are providing a valuable
public service. The Commission’s recommendations, designed to facilitate the
severance of terrorism prosecutions of large cells of alleged terrorists, should
enable trials to be broken down into manageable portions while ensuring
that common pre-trial motions are decided in a consistent, efficient and fair
manner.
There is little doubt that a lengthy terrorism trial is likely to have a very negative
financial impact on jurors. A review of the various provincial juror fee schemes
reveals that many jurors can earn less, sometimes much less, than $100 per
271 Barreau Report on Mega-trials, s. 2.2, relying on the findings in R. v. Born With A Tooth (1993), 10 Alta.
L.R. (3d) Q.B.
272 Barreau Report on Mega-trials, s. 2.2, relying on the findings in Genest v. R., [1990] R.J.Q. 2387 (C.A.).
273 Jim Brown, “Jury trials preferable in terror cases, says Air India judge” Winnipeg Free Press (June 11,
2007), online: Winnipeg Free Press <http://www.winnipegfreepress.com/historic/32266404.html>
(accessed July 8, 2009).
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sitting day, depending on their province of residence.274 In addition, the Canada
Revenue Agency considers juror fees to be income for a service and thus
taxable.275
More generous stipends should be available for jurors to avoid creating
financial hardship if they sit on a lengthy case. This would also ensure that the
jury represents a broad cross-section of the public, not merely those individuals
whose employers are willing or able to continue paying them during prolonged
jury duty. Although the setting of juror fees is a matter of provincial jurisdiction
under section 92(14) of the Constitution Act, 1867, the federal government
may have a role to play through cost-sharing agreements for particularly long
terrorism trials.
Ultimately, to facilitate the work of juries and to minimize the personal
difficulties that a lengthy commitment to a jury trial can cause, the trial process
must become more efficient. Many of the measures proposed elsewhere in
this volume are directed at doing just that. For example, allowing trial judges
to decide matters under section 38 of the Canada Evidence Act and abolishing
pre-trial appeals could prevent a situation like that in R. v. Ribic, where a jury
was kept waiting and ultimately was dismissed because of lengthy litigation
and appeals in the Federal Court. Measures recommended in this chapter
should help significantly to shorten terrorist trials and make them more
manageable. These measures include allowing omnibus hearings on common
pre-trial motions and encouraging severance of terrorism prosecutions that
might otherwise be characterized by multiple counts, multiple accused and
multiple alleged terrorist plots. Trials such as the recently completed Khawaja
prosecution tend to be heavily focused on pre-trial motions, with limited trial
days. In Khawaja, the pre-trial motions on various matters took two years, while
the actual trial – the time that a jury would be present if the case had been
tried by jury – took only 27 days of hearings.276 The early appointment of the
trial judge and adequate funding for experienced counsel should also facilitate
making reasonable admissions of fact. All these measures should help avoid
the undesirable spectre of jury trials that last for years.
In summary, the following measures could lighten the load on juries:
• encouraging judges to be more assertive in controlling the trial –
for example, by discouraging counsel from making needless or late
motions, introducing unnecessary or excessive evidence or
conducting excessive cross-examinations;
274 See the paper entitled “Juror Fees in Canada,” appended as Appendix 1 to Background Dossier For Term
of Reference (b)(vi).
275 Canada Revenue Agency, “Questions and answers about Other kinds of income”, online: Canada
Revenue Agency <http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/ncm-tx/rtrn/cmpltng/rprtng-ncm/lns101170/130/fq-eng.html> (accessed July 8, 2009).
276 R. v. Khawaja, [2008] O.J. No. 4244 (Sup. Ct.).
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• providing sufficient funding to allow accused to retain experienced
counsel and encouraging counsel to remember their obligations as
officers of the court, both of which will promote a more efficient
trial;
• encouraging more complete disclosure at the pre-trial stage so that
counsel will not need to take time to review newly-disclosed
material during the trial;
• encouraging severance where there are multiple accused and
multiple counts, in order to reduce the length and complexity
of trials;
• amending the law to ensure that decisions of the original pretrial judge on pre-severance motions (the admissibility of wiretap
evidence, for example) will not be re-litigated during the new
trial that was created by the severance, and by allowing omnibus
motions to be decided by one judge for common issues even when
the prosecutions were severed from the start;
• facilitating the pre-trial resolution of motions;
• encouraging the use of pre-trial conferences to arrive at agreed
statements of facts, admissions of fact and agreements on other
trial management issues; and
• involving an efficient project management team in the pre-trial and
trial processes.
9.5.2.1 Avoiding Mistrials Caused by Discharge of Jurors
During a jury trial, counsel and even the trial judge may be replaced without
having to start the trial anew. However, jurors may not be replaced, and section
644(2) of the Criminal Code requires a minimum of 10 jurors for a valid verdict.
If fewer than 10 jurors remain to deliberate after the evidence is heard, the trial
judge must order a mistrial and begin the trial anew with a new jury.277 Since
jury trials begin with 12 jurors, this means that the judge may discharge at most
two jurors. A discharge of three or more jurors results in a mistrial.278 Jurors are
chosen from the population at large and inquiries are generally not made about
a juror’s health at the start of the trial. Some jurors find the experience of sitting
on a jury to be quite stressful, for a variety of reasons, and this can contribute
to health problems. In contrast, a chief justice who assigns a trial judge to a
particularly long trial can take steps to ensure that the judge is experienced and
healthy. Thus there is a greater danger that jurors will become incapacitated
during a terrorism trial than a judge.
The risk of a mistrial in a long trial is obvious. In a 2003 BC Supreme Court
decision, Southin J. spoke of the need to make changes to the current jury
system because of this:
277 The issue of mistrials because of too few jurors is discussed in detail in Background Dossier For Term of
Reference (b)(vi), pp. 20-22.
278 Since 2002, s. 631(2.1) of the Criminal Code allows the trial judge to empanel up to 14 jurors at the time
of jury selection. However, these alternates are excused at the start of the trial if they are not
required at that time (s. 642.1(2)). The risk remains of a mistrial because of too few jurors at the stage of
jury deliberation.
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I digress to note that on at least five occasions, the 21st May,
3rd June, 16th June, 11th July, and 25th July, this trial had to be
adjourned because a juror was ill. Indeed, on the 25th July, two
jurors were ill. The Criminal Code prescribes the minimum
number of jurors who can give a verdict as ten. If the two jurors
were too ill to continue and had been discharged and if a
third juror had died suddenly on 29th July, this trial would have
become a thing of naught. With the advent in recent years of
very long trials, Parliament ought to enact a system in which
more than twelve jurors shall be empanelled, but at the end
of all the evidence only twelve, chosen in some manner, shall
deliberate upon the evidence and return the verdict.279
Given the pressures that jurors may face in future terrorism trials of the length
and complexity of the Air India trial, there is a substantial risk that more than two
jurors will be discharged over the course of the trial, leading to a mistrial and
the waste of much time. There also is a danger that unethical defence counsel
may attempt to “rag the puck,” hoping for such a mistrial.280 Wholly apart from
the additional stress and frustration for all parties – including the victims – that
would flow from having to empanel a second jury and undergo a second trial,
such a trial would impose enormous additional costs on the justice system. It
could undermine the right of accused to be tried within a reasonable time and
lead to a stay of proceedings. This in turn could (perhaps deservedly) cast the
justice system in a very negative light.
Empanelling additional jurors might also prevent the need for adjournments
when one of the jurors is temporarily unable to sit because of illness. In such
cases, the trial judge could dismiss the ill juror and continue the trial before the
remaining panel of jurors. Code noted that, at present, when jurors become
sick during a long trial, “…the present statutory regime places great pressure
on the trial judge to adjourn the trial, until the juror recovers, instead of simply
replacing the sick juror with an ‘alternate’. As a result, long trials become even
longer.”281
The Barreau Committee recommended increasing to 14 the number of jurors
empanelled in a mega-trial.282 Several witnesses before the Commission also
279 R. v. Ho, 2003 BCCA 663, 17 C.R. (6th) 223 at para. 6.
280 “An accused who has a weak defence on the merits, in a long complex case, may not agree to
admissions or to a judge-alone trial because the risk of a s. 644(2) mistrial becomes part of the
defence strategy. This kind of conduct is probably unethical but it introduces a completely arbitrary
risk that is unacceptable and that needs to be removed from our justice system”: Code Article on Mega
Trial Phenomenon at 454.
281 Code Article on Mega Trial Phenomenon at 454.
282 Barreau Report on Mega-trials, s. 2.2. See also Testimony of Hon. Bernard Grenier, retired Justice of the
Cour du Québec Criminal Division, who participated in the work of the Barreau Committee. He
described this 14-juror approach, rather than 15 or 16 jurors, as “a suitable compromise”: Testimony of
Hon. Bernard Grenier, vol. 92, December 10, pp. 12157-12158; translation, original in French. See
also Code Article on Mega Trial Phenomenon at 453, where the author states his support for
introducing “alternate” jurors. Sections 642.1, 643 and 644(1.1) of the Criminal Code would have to be
amended to allow a judge to empanel a jury of 14.
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supported increasing the maximum number of jurors empanelled to hear a
case,283 generally suggesting a total of 14 or 16 jurors.284 The Criminal Lawyers’
Association proposed a system very similar to that suggested by the Barreau
Committee: 14 jurors to hear the case, and a random system to discharge any
excess jurors if more than 12 remain at the start of jury deliberations.285
On the other hand, the 2004 Steering Committee Report rejected increasing
the maximum number of jurors and recommended instead that there be a
“…specific and in-depth examination” of the issue of reducing the minimum
number of jurors to 9 or 8, “…in particular, as regards potential constitutional
implications.”286 The 2008 F/P/T Working Group Proposals called for swearing
in up to 14 jurors, and reducing the minimum number required to deliberate to
nine.287
Using any of these models, the judge would be able to discharge more jurors
than at present and yet still prevent a mistrial. However, the model that involves
reducing the number of jurors required to deliberate to fewer than 10 raises
constitutional issues.288 Allowing a lesser number of jurors to render a verdict
might also raise concerns about how well the jury represents the community.289
(However, as long as 10 jurors remain at the start of deliberations, it is worth
considering allowing a verdict to stand even if one of those remaining 10 jurors
becomes unable to complete the deliberation process.)
The better approach is simply to increase the maximum number of jurors. It
avoids potential Charter issues and increases the likelihood that the jury will be
seen as representing the community.
If judges are allowed to empanel additional jurors, there are two plausible
models for choosing the jurors who would ultimately deliberate on the case
if more than 12 jurors remain when deliberations begin. In the first model, all
jurors believe from the outset of the trial that they are full jurors, but some may
283 Testimony of Ralph Steinberg, vol. 93, December 11, 2007, pp. 12316-12317; Testimony of Bruce
MacFarlane, vol. 79, November 20, 2007, pp. 10041-10046. The Air India Victims’ Families Association
stated that “…(c)onsideration should be given to the provision of alternate jurors or reducing the
number of jurors required to maintain the trial and deliver a verdict”, but it did not provide any further
detail or opinion on the matter: Where is Justice? AIVFA Final Written Submission, February 29, 2008,
p. 168.
284 Bruce MacFarlane stated that, under federal American law, it is well established that up to and
including six alternate jurors can be empanelled when a case is expected to be lengthy. He suggested
that adopting this practice in Canada “…would be quite a jump from where we are right now” and that
adding four extra jurors, as is done in the Victoria model in Australia, would be an acceptable
compromise: Testimony of Bruce MacFarlane, vol. 78, November 19, 2007, p. 9905; Testimony of Bruce
MacFarlane, vol. 79, November 20, 2007, pp. 10045-10046.
285 Submissions of the Criminal Lawyers’ Association, February 2008, pp. 50-51 [Submissions of the
Criminal Lawyers’ Association].
286 Steering Committee Report on Mega trials, s. 5.3.
287 F/P/T/ Working Group Proposals on Mega-Trials, p. 15.
288 Testimony of Pierre Lapointe, vol. 94, December 12, 2007, pp. 12478-12479; Barreau Report on Megatrials, s. 2.2. See also Testimony of Ralph Steinberg, vol. 93, December 11, 2007, p. 12316 and Code
Article on Mega Trial Phenomenon at 452.
289 Code Article on Mega Trial Phenomenon at 452-453.
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be removed by ballot as deliberations begin.290 Balloting would not inevitably
be necessary, since juror illness during a long trial could see the jury numbers
reduced.
The second model involves distinguishing from the outset between regular and
alternate jurors.291 Alternate jurors would know that they would be called on to
deliberate only if too few regular jurors remained when deliberations began.
The Commission prefers the balloting system, which should promote greater
“ownership” of the case by all jurors. The “alternate” juror model might lead to
the alternates not feeling as fully committed to paying attention at the trial,
since there would be a good chance that they would not ultimately be involved
in the jury deliberations.292
The Commission recommends authorizing the trial judge to empanel up to four
additional jurors at the outset of the trial, bringing the possible number of jurors
at the start of the trial to 16. This would permit the judge to discharge six jurors
before it would be necessary to declare a mistrial (if the minimum number of
jurors remains at 10). If more than 12 jurors remain at the start of deliberations,
the 12 jurors who are to deliberate should be selected by ballot.
Empanelling additional jurors would of course raise costs and introduce
additional logistical issues. Increasing to 16 the number of jurors was considered
by the Quebec panel at Commission hearings to be something that would
considerably increase jury management problems. This might be a price that
must be paid. The disadvantages are easily outweighed by the many benefits of
reducing the risk of a mistrial or having to adjourn a trial because a juror is sick. If
more jurors are empanelled at the start, the trial judge can dismiss a sick juror in
order to continue the trial in an efficient manner. Moreover, the trial judge could
decide how many additional jurors would hear the case and would not have to
empanel 16 jurors in every case.
9.5.3 Three-judge Panels
The Commission’s terms of reference require it to analyze “…whether there is
merit in having terrorism cases heard by a panel of three judges.” The issue of a
three-judge panel was raised in the Rae Report:
The families’ concerns also extend to the conduct of criminal
trials in cases of this kind. Some have suggested that a panel
of three judges would be more appropriate. While I have
not suggested this as a specific question for the inquiry, it is
certainly an issue worthy of study and discussion.293
290 Testimony of Bruce MacFarlane, vol. 78, November 19, 2007, p. 9906.
291 Testimony of Bruce MacFarlane, vol. 78, November 19, 2007, p. 9906.
292 Testimony of Bruce MacFarlane, vol. 79, November 20, 2007, p. 10047. See also Submissions of the
Criminal Lawyers’ Association, p. 51.
293 Lessons to be Learned, p. 4.
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It is apparent that discussion of three-judge panels was intended to focus on their
use within the existing common law model of adjudication. The call to consider
a three-judge panel at the trial level is not to be misinterpreted as a call for an
inquisitorial system. Any such change would profoundly alter the principles of
the Canadian legal system. The terms of reference would certainly have made it
clear if a consideration of shifting from a common law to an inquisitorial model
of adjudication was to form part of the analysis.
The passage from the Rae Report quoted above leaves open three possible uses
of a three-judge panel:
• to replace a judge sitting alone;
• to replace a judge sitting with a jury, leaving the jury to perform its
traditional function; or
• to replace both judge and jury.
It is apparent that proposals for three-judge panels in terrorism cases are limited
to cases that are not heard by a jury. It would not be practical or desirable for
a three judge panel to sit with a jury. As a result, the discussion of three-judge
panels here is restricted to considering whether they should replace trial by
judge and jury or trial by judge alone.
Replacing judge and jury: Some foreign jurisdictions allow trials for terrorism
offences to be heard without a jury even if the right to trial by jury is longestablished and constitutionally protected. In the Republic of Ireland, the Special
Criminal Court hears trials for numerous matters, including terrorism offences.294
The Special Criminal Court sits as a three-judge panel with no jury, and verdicts
are by majority vote.295 Judge-alone trials, known as “Diplock”296 courts, were
used for terrorism trials in Northern Ireland after the right to a jury trial was
suspended in 1973, in large part because of concerns about juror partiality and
intimidation.297 The authority to hold such non-jury trials continues under the
Justice and Security (Northern Ireland) Act, 2007,298 including in cases involving
proscribed organizations or offences committed “…as a result of, in connection
with or in response to religious or political hostility of one person or group of
294 Offences against the State Act, 1939, Ireland Statute No. 13/1939, online: Irish Statute Book <http://www.
irishstatutebook.ie/ZZA13Y1939.html> (accessed November 20, 2008).
295 The Courts: Special Criminal Court, online: Ireland Courts Service <http://www.courts.ie/courts.ie/
Library3.nsf/6556fea313d95d3180256a990052c571/41c06a30e5feda7b80256d870050508c?
OpenDocument> (accessed November 20, 2008).
296 MacFarlane describes the origins of the “Diplock courts”: “When the United Kingdom government
imposed direct rule on Northern Ireland in 1972 following Bloody Sunday, it tried to steer towards a
policy, known as “criminalization”, of dealing with political violence through the criminal courts.
It set up a commission chaired by Lord Diplock, a British law lord, to review criminal procedure, which
recommended a number of security measures, including the introduction of single judge trials known
as “Diplock” trials in place of the jury in cases of political violence”: MacFarlane Paper on Terrorist
Mega-Trials, pp. 174-175.
297 MacFarlane Paper on Terrorist Mega-Trials, pp. 174-175.
298 (N.I.), 2007, c. 6, s. 1.
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persons towards another person or group of persons.”299 The evidence before
the Commission makes it clear that one of the purposes of the three-judge panel
in Ireland is to increase the level of safety of the judges themselves.
Another example of a three-judge panel without a jury was the ad hoc court
created to hear the Lockerbie case. By agreement, the Libyan accused were tried
in The Netherlands before a panel of three Scottish judges sitting without a jury.
The Scottish Parliament had to enact a special provision to create the threejudge panel, allow it to hear the case in the absence of a jury, issue verdicts by
majority vote and sit outside Scotland.300 Bruce MacFarlane has commented on
the dangers of ad hoc changes to the justice system to respond to horrific acts
of terrorism, including the Lockerbie and Air India bombings.301
France uses jury trials for the gravest offences, but has also adopted a trial
system without jury for terrorism trials.302 Le tribunal de grande instance de Paris –
the Tribunal of Paris – was granted a national competence for terrorism cases.303
This led to the specialization of eight magistrates from the prosecution service
and eight judges from the investigation service.304 From this pool of magistrates
and judges, a panel with one president and six assessors is assembled for each
trial.305 Verdicts are rendered by a majority vote.306
The constitutional difficulties that would arise if a three-judge panel were to
replace trial by judge and jury are substantial. Furthermore, there is a long
tradition of trust in the jury in the common law system. For these reasons alone,
the jury trials should remain an option in terrorism cases unless compelling
reasons can be provided to eliminate the jury.
This is not to deny that three-judge panels may have some attractive features.
For example, the Hon. Ruth Krindle, a retired Manitoba Court of Queen’s Bench
judge, suggested in her testimony that three judges would probably move
more expeditiously than a jury. However, there is no certainty that three judges
would be significantly more efficient than a judge and jury. Indeed, it is possible
that the need to retain the attention of a jury helps focus the efforts of both the
Crown and the accused. Even informed speculation that a three-judge panel
might be more efficient than a jury does not justify the procedural upheaval
that introducing a three-judge panel would cause.
In his report prepared for the Commission, MacFarlane rejected the notion of a
three-judge panel for several reasons:
299 (N.I.), 2007, c. 6, s. 1(6).
300 The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 (S.I. 1998 No.
2251), Arts. 3, 5.
301 MacFarlane Paper on Terrorist Mega-Trials, pp. 181-193.
302 French Penal Code, Art. 698-6(1).
303 French Penal Code, Art. 706-17.
304 Olivier Dutheillet de Lamothe, “French Legislation Against Terrorism: Constitutional Issues” (November
2006), pp. 6-7.
305 French Penal Code, Art. 698-6.
306 French Penal Code, Art. 698-6(3). This vote is tabulated through a secret ballot system, where each
ballot is read in open court and then burned (Art. 358).
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In my view, replacement of a judge and jury with a panel
of three judges in a terrorist case would, from a policy
perspective, be ill-advised for several reasons.
First, it seems to me that the conclusions of a panel would
have to be unanimous on all essential issues of fact and law.
Otherwise, almost by definition, a reasonable doubt exists
in the case and an acquittal must be entered. In a jury trial,
the issue of reasonable doubt is resolved through a unique
process of group deliberation. Judges, however, have no such
mandate, and would be entitled, in essence, to “vote” on the
issue. Because the group deliberation and dynamic that is so
important in jury fact-finding will not necessarily be present in
a trial by a panel of professional judges, it seems to me that a
bench trial could actually be a less effective fact-finding body
than a jury of twelve randomly-selected jurors drawn from the
general population.
Second, the real challenge for future terrorist trials is . . .
prolixity and complexity. Creation of a three judge bench trial
is not responsive to that issue. Indeed, a bench trial simply
raises new problems. . . . [I]n a lengthy trial a judicial panel
could lose one of the judges just as easily as a jury could lose
one of the jurors. What happens then? Do you proceed with
just two judges? What do you do if the panel is reduced to
one? At what stage do you declare a mistrial? Or do you “load
up” at the front end with three judges and an alternate? In
my view, few if any jurisdictions in Canada could afford the
resource burden of routinely assigning four judges to hear
terrorist trials.
Finally, bench trials are ill-advised in Canada because they will
raise significant issues of legitimacy. A panel of judges hearing
a criminal case will be unique and without precedent in
Canadian legal history. At the international level, terrorist cases
would be seen as having been diverted out of the mainstream
of Canadian trial procedure, and placed into the hands of
a tribunal which has no parallel in Anglo-based criminal
justice systems. Such a process would expose the tribunal
to allegations of “show trial”, as occurred in the Lockerbie
experience, and may tend to diminish Canada’s reputation for
fair justice in the eyes of the international community.307
As discussed earlier, it would be extremely difficult to argue successfully that
taking away the accused’s right to a jury trial under section 11(f ) of the Charter
is a reasonable and demonstrably justified limit on the right. A court hearing
307 MacFarlane Paper on Terrorist Mega-Trials, p. 301.
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such an argument would rightly be concerned that the state had not pursued
other means of expediting terrorism trials that are less likely to diminish rights.
Indeed, the simple expedient of increasing the number of alternate jurors has
not been tried. The many reports and recommendations that have already been
issued on the reforms needed to reduce the length of criminal trials would be
cited as persuasive evidence that there are means to deal with the problem
of long criminal trials short of taking away the right to trial by jury. Courts
would also be aware that Canada, fortunately, has not suffered the history of
juror intimidation and partiality found in places such as Northern Ireland. The
remaining constitutional options, such as amending the Charter, adjusting
maximum punishments for terrorism offences below five years so that the right
to trial by jury does not apply, or using the notwithstanding clause, are simply
not feasible.
Realistically, that only leaves consideration of the three-judge panel as a
replacement for a judge sitting alone. In other words, the accused would have
the ability to select either trial by jury or trial by a three-judge panel in terrorism
cases. There are possible merits in three-judge panels here:
• “Three heads may be better than one” in a long, complex
terrorism trial. The combined attention of three judges
might ensure a more thorough and accurate understanding
of the evidence. MacFarlane noted, for example, that “…
[i]nternationally, trial by a panel of judges is considered desirable
on the basis that a panel sitting together (usually three) would
reduce the strain on a single judge, and the resulting decision
would have greater credibility than a judge sitting alone”;308
• The law recognizes terrorism as a special phenomenon
in criminal justice, in terms of motive, purpose, potential
penalties, and (until recently, when the authority to
hold investigative hearings and make preventive arrests ended)
investigative procedures. Arguably, the institutional structure
for adjudication should also be adapted to respond to
terrorism as an especially grave political or moral phenomenon.
If nothing else, the allocation of extra judicial resources
to terrorism trials would symbolize the state’s recognition of
terrorism as being uniquely hostile to Canadian values; and
• In the absence of a jury of fellow citizens, the public might
have more confidence in a panel of judges, deliberating
collectively on a verdict, than in a single judge, deciding alone
without the benefit of a “sounding board” for some critical
decisions (for example, on a matter of personal judgment such
as assessing a witness’s credibility). In the event of a controversial
308 MacFarlane Paper on Terrorist Mega-Trials, p. 250. See also Testimony of Michael Code, vol. 88,
December 4, 2007, p. 11404.
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acquittal or conviction, the system of justice as a whole might be
better protected from the corrosive effect of public criticism if
a panel of judges, rather than a lone – and possibly overburdened –
judge, reached the decision.
However, it is not clear that having three judges would reduce the risk of a
mistrial, since one of them might become ill. Other questions remain to be
resolved. How would the members of the panel be nominated, what rules of
procedure would apply, and how would the panel’s decisions be rendered about
procedural questions, findings of law, findings of fact, credibility of witnesses,
and ultimate findings about guilt? Although these procedural complexities
are not insurmountable, they would make terrorism trials more complex and
uncertain. Terrorism prosecutions are already difficult enough without having
to work with novel and unprecedented institutions such as a three-judge trial
panel. Although it can be argued that decisions rendered by three judges
rather than one judge may inspire greater public confidence, even this is not
a certainty, especially if one judge issues a dissent on a contentious issue. It
would be difficult to force unanimity on judges who each enjoy the protections
of judicial independence.
Code specifically raised in his testimony the difficulty posed by inconsistent
findings of fact among panel members:
At a trial level where the fundamental function of a trial court
is fact-finding and . . . [the judges] agree on their verdict, you
don’t have a problem. You, in essence, end up with one set of
reasons.
But if they get to their verdict by different routes or if they’ve
got a dissent, then I think you’re into very, very serious
difficulties because what you’re going to have is ... a majority
carrying out their [R. v. Sheppard309] duty to show the path
by which they got to their fact-finding and a minority
setting out their path by which they got to a different factual
conclusion.310
The verdict of a judge sitting alone has the advantage of being clear and
unequivocal. Divergent verdicts in a three-judge panel could cause serious
problems. For example, a majority decision could lead to numerous appeals and
further delays.
Ralph Steinberg, an experienced criminal lawyer, suggested that three-judge
panels “…would add another layer of complexity that would just probably
lengthen the duration of trials. I mean, if that proposal is directed toward one
judge becoming incapacitated and causing a mistrial ... it may be an answer
309 2002 SCC 26, [2002] 1 S.C.R. 869.
310 Testimony of Michael Code, vol. 88, December 4, 2007, pp. 11401-11402.
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to that but I don’t think that that problem occurs with sufficient frequency to
cause that kind of reform to be instituted.”311 Justice Krindle testified that, “…
on a very practical level it would decimate any court to have three experienced
trial judges [try a case].”312 Indeed, a three-judge panel could place undue strain
on already sparse judicial resources, especially in smaller provinces.313 It could
also generate pressure for appeals on matters in which the three-judge panel
rendered a split decision.314
There are other reasons for rejecting three-judge panels for terrorism trials.
Among the most important, introducing a three-judge panel would be
inconsistent with the spirit of other Commission recommendations that move
towards strengthening the role of Superior Court judges in non-jury trials. There
is a need for one trial judge, not a panel of independent judges, to be in charge
of managing the trial process. As well, there is no sound basis for believing that
the verdict of the judge alone is any less valid than that to be rendered by a
three-judge panel. The use of the three-judge panel might not make the trial
shorter or more likely to come to a verdict. It therefore does not appear to be a
certain solution to concerns about unduly lengthy trials.
Finally, the legitimacy of the novel institution of a three-judge panel might be
called into question, especially if used only for terrorism trials. As MacFarlane
suggested in his study for the Commission, Canada’s reputation for fair justice in
the eyes of the international community may be diminished if terrorist cases are
seen as having been diverted from the ordinary system of justice.315 Attempts
to devise new courts to deal with national security matters have not generally
been successful.316
9.5.4 Mandatory Jury Trials
At present, there are two trial options for terrorism trials – trial by judge alone or
trial by judge and jury. Is there any compelling reason for terrorism offences to
involve a mandatory jury trial?
The Criminal Code contains a number of offences that at first reading seem to
compel trial by judge and jury. These are found in section 469 and include murder,
treason and crimes against humanity. Even with these offences, however, the
accused and the Attorney General can consent under section 473(1) to a trial
by a Superior Court judge. Thus, there are no offences in the Criminal Code that
must always be tried by a jury. The recommendation made by AIFVA that no
terrorism prosecutions be held before a judge alone would require creating a
new and unprecedented category of offences that could not be tried by judge
alone even if the Crown and defence were prepared to consent to trial by judge
alone.
311
312
313
314
315
316
Testimony of Ralph Steinberg, vol. 93, December 11, 2007, pp. 12364-12365.
Testimony of Hon. Ruth Krindle, vol. 94, December 12, 2007, p. 12425.
Testimony of Kent Roach, vol. 95, December 13, 2007, p. 12558.
Testimony of Kent Roach, vol. 95, December 13, 2007, p.12570.
MacFarlane Paper on Terrorist Mega-Trials, p. 301.
Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125.
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Requiring mandatory jury trials for all terrorism prosecutions would add further
inflexibility to the present system. It could result in jury trials when both the
Crown and the accused agree that a jury trial is not appropriate or even possible.
The result could be lengthy trials that would tax the endurance of juries. The
result, even with an expanded 16-member jury panel, could be mistrials that
prevent important cases from reaching a verdict.
A less drastic alternative would be to add terrorism offences to the short list of
offences under section 469 of the Criminal Code. Trial by jury would be required
unless the Crown consented under section 473(1) to trial by judge alone. It
would take away the option, exercised by Mohammad Momin Khawaja, the first
person charged with a terrorism offence under the Anti-terrorism Act, to select
trial by judge alone.
There are good reasons why those accused of terrorism offences may want
to elect trial by judge alone. The facts or allegations in a terrorism cases may
be both shocking and very well-publicized. The trial may involve evidence,
including that relating to the accused’s motives, which could have a significant
prejudicial effect on the jury. A powerful argument is needed to justify restricting
the choice of the accused about mode of trial.
Some might suggest that a mandatory jury trial will produce a more just verdict
than trial by judge alone. However, there is no evidence to show this to be
the case, and a decision to impose a mandatory jury trial should not be based
on mere speculation that it will produce a better result. In addition, greater
efficiency can be achieved in cases involving trial by judge alone – for example,
the ability to decide questions of law that arise during the trial without having
to excuse the jurors.
Recommendation 35:
It is recommended that:
a) the Criminal Code be amended to allow the judge in a jury trial to empanel
up to 16 jurors to hear the case if the judge considers it to be in the interests of
justice;
b) if more than 12 jurors remain at the start of jury deliberations, the 12 jurors
who will deliberate be chosen by ballot of all the jurors who have heard the
case;
c) the minimum number of jurors required to deliberate remain at 10;
d) the idea of having terrorism trials heard by a panel of three judges be rejected
because it offers no demonstrable benefit; and
e) the call for mandatory jury trials in terrorism cases be rejected in view of the
difficulties of long trials with juries and the accused’s present ability to opt for
trial by judge alone.
�Chapter IX: Managing the Consequences of Disclosure: The Air India Trial
9.5.5 Addressing the Needs of Victims
Unlike most criminal trials, where the number of victims is limited, the Air India
tragedy profoundly affected the lives of direct family members and others close
to the victims. Accommodating the important needs of so many individuals
at the trial was challenging. In fact, Gaul described the efforts of the Air India
Crown Victims and Witnesses Service in dealing with the families of the Air India
victims as “Herculean”:
It was a joint venture with the federal government in the sense
of financing of the project. They provided the financing. We
provided the…human resources, and it was [an] integral,
absolutely integral part of the prosecution team of having a
professional staff to be able to deal with the victim issues…of
them coming into Vancouver, how to handle them in the sense
of logistically, but also emotionally.
...
I think it’s important that the resources are made available and
the right people so to speak; again, you have to have people
skills.... [Y]ou can put up with some difficult personalities or
challenging personalities for a month or so, but if we’re talking
years, you have to have somebody who knows their field but
also has strong interpersonal skills to deal with the emotional
aspects of this case and can lead the team of people working
with that person….317
Unfortunately, future terrorism trials could again see many victims or family
members of victims. In such cases, the only way to deal humanely with their
needs and to make the resulting trial workable is to provide carefully designed,
culturally sensitive, comprehensive and adequately funded victim services. The
approach to witness services in the Air India trial, detailed earlier in this chapter,
may serve as a very useful model.
9.6 Conclusion
In his report for the Commission, Bruce MacFarlane notes that “…[t]wentyfirst century terrorist trials are exceptionally complex in nature, and there
is a demonstrable need to ensure that they do not collapse under their own
weight.”318 The Air India trial reached a verdict despite significant obstacles. These
included: the extraordinary length of the trial; huge costs; massive amounts
of material to disclose, including documents that brought national security
considerations into play; numerous motions, witnesses and exhibits; scores of
defence and Crown counsel; hundreds of family members of the victims; and a
very significant public profile. Much could have happened to prevent the trial
from reaching a verdict.
317 Testimony of Geoffrey Gaul, vol. 88, December 4, 2007, pp. 11414-11415.
318 MacFarlane Paper on Terrorist Mega-Trials, p. 297.
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The experience of the Air India trial offered several lessons that can help
future terrorism trials reach a verdict. This chapter has also explored several
other measures that will lead to the same result. Collectively, these lessons and
measures can be summarized as follows:
• putting in place a project management team;
• early selection of a trial judge who can exercise firm control over
the pre-trial and trial processes;
• organizing and controlling the pre-trial process more effectively
to minimize pre-trial delays, and making rulings on many pretrial motions that will continue to bind the parties even if the
prosecution is severed into smaller prosecutions or a mistrial is
declared;
• allowing omnibus hearings of related motions from all related trials;
• putting into place a process for early and staged disclosure, relying
heavily on electronic disclosure and the ability of defence counsel
to inspect material that is of only marginal relevance to the case;
• ensuring that funding is available to retain experienced counsel,
both defence and Crown, who can better serve the interests of their
clients and help the trial move forward efficiently;
• developing a more effective procedure for trial judges to deal with
applications under section 38 of the Canada Evidence Act; and
• providing comprehensive services for the families of victims.
Many of these measures will also reduce the burden on juries. The likelihood
of reaching a verdict in a jury trial can be further enhanced by empanelling
additional jurors. The present situation, where there are no alternate jurors and
no more than two jurors can be discharged once a trial has started without
causing a mistrial, is unacceptable. It is an invitation to having an important
terrorism prosecution like the Air India trial fail to reach a verdict.
As noted at the outset, Canada has had very little experience with terrorism
prosecutions. This relative good fortune should not become an excuse for
failing to address the deficiencies in the justice system that may derail future
prosecutions. The gravity of terrorist acts and the compelling public interest in
bringing prosecutions for those acts to a final verdict demands that Canada’s
justice system prepare for the exceptional challenges of terrorism prosecutions.
That is the very least that can be expected of governments in Canada. The
federal government should be prepared to lead through the limited but vital
amendments to the Criminal Code proposed in this chapter. It should also be
willing to enter into cost-sharing agreements with the provinces in order to
serve the national interest in fair and efficient terrorism prosecutions.
�VOLUME THREE
THE RELATIONSHIP BETWEEN INTELLIGENCE
AND EVIDENCE AND THE CHALLENGES OF
TERRORISM PROSECUTIONS
CHAPTER X: RECOMMENDATIONS
Recommendations from Chapter II: Coordinating the Intelligence/
Evidence Relationship
Recommendation 1:
The role of the National Security Advisor in the Privy Council Office should be
enhanced. The National Security Advisor’s new responsibilities should be as
follows:
• to participate in setting strategic national security policies and
priorities;
• to supervise and, where necessary, to coordinate national security
activities, including all aspects of the distribution of intelligence
to the RCMP and to other government agencies;
• to provide regular briefings to the Prime Minister and, as required,
to other ministers;
• to resolve, with finality, disputes among the agencies responsible
for national security;
• to provide oversight of the effectiveness of national security
activities; and
• to carry out the government’s national security policy in the public
interest.
In carrying our these new duties, the National Security Advisor should be
assisted by a Deputy and by a staff of secondees from agencies which have
national security responsibilities, such as CSIS, the RCMP, the CBSA, and DFAIT.
The National Security Advisor should continue to support relevant Cabinet
committees and serve as Deputy Minister for the CSE, but these duties could, if
necessary, be delegated to the Deputy National Security Advisor or to another
official within the office of the NSA.
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Measures to enhance the role of the NSA should not be delayed until the
enactment of legislation on a new national security privilege.
Recommendations from Chapter III: Coordinating Terrorism
Prosecutions
Recommendation 2:
The role of the National Security Advisor should be exercised in a manner that
is sensitive to the principles of police and prosecutorial independence and
discretion, while recognizing the limits of these principles in the prosecution of
terrorism offences. The principle of police independence should continue to be
qualified by the requirement that an Attorney General consent to the laying of
charges for a terrorism offence.
The Attorney General of Canada should continue to be able to receive relevant
information from Cabinet colleagues, including the Prime Minister and the
National Security Advisor, about the possible national security and foreign
policy implications of the exercise of prosecutorial discretion.
Recommendation 3:
Terrorism prosecutions at the federal level should be supervised and conducted
by a Director of Terrorism Prosecutions appointed by the Attorney General of
Canada.
Recommendation 4:
The office of the Director should be located within the department of the
Attorney General of Canada and not within the Public Prosecution Service of
Canada. The placement of the proposed Director of Terrorism Prosecutions
in the Attorney General’s department is necessary to ensure that terrorism
prosecutions are conducted in an integrated manner, given the critical role
of the Attorney General of Canada under the national security confidentiality
provisions of section 38 of the Canada Evidence Act.
Recommendation 5:
The Director of Terrorism Prosecutions should also provide relevant legal
advice to Integrated National Security Enforcement Teams and to the RCMP
and CSIS with respect to their counterterrorism work to ensure continuity and
consistency of legal advice and representation in terrorism investigations and
prosecutions.
�Chapter X: Recommendations
Recommendation 6:
The Director of Terrorism Prosecutions should preferably not provide legal
representation to the Government of Canada in any civil litigation that might
arise from an ongoing terrorism investigation or prosecution, in order to avoid
any possible conflict of interest.
Recommendation 7:
A lead federal role in terrorism prosecutions should be maintained because
of their national importance and the key role that the Attorney General of
Canada will play in most terrorism prosecutions under section 38 of the Canada
Evidence Act. The Attorney General of Canada should be prepared to exercise
the right under the Security Offences Act to pre-empt or take over provincial
terrorism prosecutions if the difficulties of coordinating provincial and federal
prosecutorial decision-making appear to be sufficiently great or if a federal
prosecution is in the public interest.
Recommendation 8:
Provincial Attorneys General should notify the Attorney General of Canada
through the proposed federal Director of Terrorism Prosecutions of any potential
prosecution that may involve a terrorist group or a terrorist activity, whether
or not the offence is prosecuted as a terrorism offence. The National Security
Advisor should also be notified.
Recommendations from Chapter IV: The Collection and Retention
of Intelligence: Modernizing the CSIS Act
Recommendation 9:
In compliance with the 2008 Supreme Court of Canada decision in Charkaoui,
CSIS should retain intelligence that has been properly gathered during an
investigation of threats to national security under section 12 of the CSIS Act.
CSIS should destroy such intelligence after 25 years or a period determined by
Parliament, but only if the Director of CSIS certifies that it is no longer relevant.
Recommendation 10:
The CSIS Act should be amended to reflect the enhanced role proposed for the
National Security Advisor and to provide for greater sharing of information with
other agencies.
Section 19(2)(a) of the CSIS Act should be amended to require CSIS to report
information that may be used in an investigation or prosecution of an offence
either to the relevant policing or prosecutorial authorities or to the National
Security Advisor.
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If the National Security Advisor receives security threat information from CSIS,
he or she should have the authority, at any time, to provide the information to
the relevant policing or prosecutorial authorities or to other relevant officials
with a view to minimizing the terrorist threat. The National Security Advisor
should make decisions about whether intelligence should be disclosed only
after considering the competing demands for disclosure and secrecy. In every
case, the decision should be made in the public interest, which may differ from
the immediate interests of the agencies involved.
Intelligence prepared to assist the National Security Advisor in his or her
deliberations, and the deliberations themselves, should be protected by a new
national security privilege. The privilege would be a class privilege similar to
that protecting information submitted to assist with Cabinet deliberations.
Recommendation 11:
To the extent that it is practicable to do so, CSIS should conform to the
requirements of the laws relating to evidence and disclosure when conducting
its counterterrorism investigations in order to facilitate the use of intelligence in
the criminal justice process.
Recommendation 12:
In terrorism prosecutions, special advocates, given powers similar to those
permitted under the Immigration and Refugee Protection Act, should be allowed
to represent the accused in challenging warrants issued under section 21 of the
CSIS Act or under Part VI of the Criminal Code. The special advocates should have
access to all relevant information, including unedited affidavits used to justify the
warrants, but should be prohibited from disclosing this information to anyone
without a court order. Both the judges reviewing the validity of warrants and
the special advocates should be provided with facilities to protect information
that, if disclosed, might harm national security.
Recommendations from Chapter V: The Disclosure and Production
of Intelligence
Recommendation 13:
Federal prosecutorial guidelines should be amended to make it clear to those
who prosecute terrorism cases that only material that is relevant to the case and
of possible assistance to the accused should be disclosed. Material of limited
relevance – in the sense that it is not clearly irrelevant – should, in appropriate
cases, be made available for inspection by the defence at a secure location.
�Chapter X: Recommendations
Recommendation 14:
There is no need for further legislation governing the production for a criminal
prosecution of intelligence held by CSIS. The procedures available under section
38 of the Canada Evidence Act provide an appropriate and workable framework
for the trial court to determine whether production of such intelligence is
warranted.
Recommendations from Chapter VI: The Role of Privileges in
Preventing the Disclosure of Intelligence
Recommendation 15:
The RCMP and CSIS should each establish procedures to govern promises of
anonymity made to informers. Such procedures should be designed to serve
the public interest and should not be focused solely on the mandate of the
particular agency.
Recommendation 16:
Section 19 of the CSIS Act should be amended to provide that information about
an individual which is exchanged by CSIS with a police force or with the NSA
does not prejudice claiming informer privilege.
Recommendation 17:
CSIS should not be permitted to grant police informer privilege. CSIS informers
should be protected by the common law “Wigmore privilege,” which requires
the court to balance the public interest in disclosure against the public interest
in confidentiality. If the handling of a CSIS source is transferred to the RCMP, the
source should be eligible to benefit from police informer privilege.
Recommendation 18:
The Canada Evidence Act should be amended to create a new national security
privilege, patterned on the provision for Cabinet confidences under section 39
of the Act. This new class privilege should apply to documents prepared for the
National Security Advisor and to the deliberations of the office of the National
Security Advisor.
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Recommendations from Chapter VII: Judicial Procedures to Obtain
Non-Disclosure Orders in Individual Cases
Recommendation 19:
The present two-court approach to resolving claims of national security
confidentiality under section 38 of the Canada Evidence Act should be
abandoned for criminal cases. Section 38 should be amended to allow the
trial court where terrorism charges are tried to make decisions about national
security confidentiality. Section 38 should be amended to include the criminal
trial court in the definition of “judge” for the purposes of dealing with a section
38 application that is made during a criminal prosecution.
Recommendation 20:
In terrorism prosecutions, there should be no interim appeals or reviews of
section 37 or 38 disclosure matters. Appeals of rulings under sections 37 or 38
should not be permitted until after a verdict has been reached. Appeals should
be heard by provincial courts of appeal in accordance with the appeal provisions
contained in the Criminal Code. If not already in place, arrangements should be
made to ensure adequate protection of secret information that provincial courts
of appeal may receive. Sections 37.1, 38.08 and 38.09 of the Canada Evidence
Act should be amended or repealed accordingly.
Recommendation 21:
Security-cleared special advocates should be permitted to protect the accused’s
interests during section 38 applications, in the same manner as they are used
under the Immigration and Refugee Protection Act. Either the accused or the
presiding judge should be permitted to request the appointment of a special
advocate.
Recommendation 22:
The Attorney General of Canada, through the proposed Director of Terrorism
Prosecutions, should exercise restraint and independent judgment when
making claims under section 38 of the Canada Evidence Act and avoid using
overly broad claims of secrecy.
Recommendation 23:
The Federal Prosecution Service Deskbook and other policy documents that
provide guidance about making secrecy claims should be updated to encourage
the making of requests to foreign agencies to lift caveats that they may have
placed on the further disclosure of information. These documents should
also be updated to reflect the evolution of national security confidentiality
jurisprudence. In particular, the Deskbook should direct prosecutors to be
�Chapter X: Recommendations
prepared to identify the anticipated harms that disclosure would cause,
including harms to ongoing investigations, breaches of caveats, jeopardy to
sources and the disclosure of secret methods of investigations. The Deskbook
should discourage reliance solely on the “mosaic effect” as the basis for making
a claim of national security confidentiality.
Recommendations from Chapter VIII: Managing the Consequences
of Disclosure: Witness and Source Protection
Recommendation 24:
A new position, the National Security Witness Protection Coordinator, should be
created. The Coordinator would decide witness protection issues in terrorism
investigations and prosecutions and administer witness protection in national
security matters. The creation of such a position would require amendments to
the Witness Protection Program Act.
The National Security Witness Protection Coordinator should be independent
of the police and prosecution. He or she should be a person who inspires public
confidence and who has experience with criminal justice, national security and
witness protection matters.
Where appropriate and feasible, the Coordinator should consult any of the the
following on matters affecting witness and source protection: the RCMP, CSIS,
the National Security Advisor, the proposed Director of Terrorism Prosecutors,
Public Safety Canada, Immigration Canada, the Department of Foreign Affairs
and International Trade and the Correctional Service of Canada. The Coordinator
would generally work closely with CSIS and the RCMP to ensure a satisfactory
transfer of sources between the two agencies.
The National Security Witness Protection Coordinator’s mandate would
include:
• assessing the risks to potential protectees resulting from disclosure
and prosecutions, as well as making decisions about accepting
an individual into the witness protection program and the level of
protection required;
• working with relevant federal, provincial, private sector and
international partners in providing the form of protection that best
satisfies the particular needs and circumstances of protectees;
• ensuring consistency in the handling of sources and resolving
disputes between agencies that may arise when negotiating
or implementing protection agreements (this function would
be performed in consultation with the National Security Advisor);
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• providing confidential support, including psychological and legal
advice, for protectees as they decide whether to sign protection
agreements;
• negotiating protection agreements, including the award of
payments;
• providing strategic direction and policy advice on protection
matters, including the adequacy of programs involving
international cooperation or minors;
• providing for independent and confidential arbitration of disputes
that may arise between the protectee and the witness protection
program;
• making decisions about ending a person’s participation in the
program;
• acting as a resource for CSIS, the RCMP, the National Security
Advisor and other agencies about the appropriate treatment
of sources in terrorism investigations and management of their
expectations;
• acting as an advocate for witnesses and sources on policy matters
that may affect them and defending the need for witness
protection agreements in individual cases.
The National Security Witness Protection Coordinator would not be responsible
for providing the actual physical protection. That function would remain with
the RCMP or other public or private bodies that provide protection services and
that agree to submit to confidential arbitration of disputes by the Coordinator.
Recommendations from Chapter IX: Managing the Consequences
of Disclosure: The Air India Trial and the Management of Other
Complex Terrorism Prosecutions
Recommendation 25:
To make terrorism prosecutions workable, the federal government should share
the cost of major trials to ensure proper project management, victim services
and adequate funding to attract experienced trial counsel who can make
appropriate admissions of fact and exercise their other duties as officers of the
court;
�Chapter X: Recommendations
Recommendation 26:
The trial judge should be appointed as early as possible to manage the trial
process, hear most pre-trial motions and make rulings; these rulings should not
be subject to appeal before trial;
Recommendation 27:
The Criminal Code should be amended to ensure that pre-trial rulings by the trial
judge continue to apply in the event that the prosecution subsequently ends
in a mistrial or is severed into separate prosecutions. The only case in which
rulings should not bind both the accused and the Crown should be if there is a
demonstration of a material change in circumstances;
Recommendation 28:
The Criminal Code should be amended to allow omnibus hearings of common
pre-trial motions in related but severed prosecutions. This will facilitate severing
terrorism prosecutions that have common legal issues where separate trials
would be fairer or more manageable. All accused in the related prosecutions
should be represented at the omnibus hearing. Decisions made at omnibus
hearings should bind the Crown and accused in subsequent trials unless a
material change in circumstances can be demonstrated. Such rulings should be
subject to appeal only after a verdict.
Recommendation 29:
Electronic and staged disclosure should be used in terrorism prosecutions in
order to make them more manageable. Disclosure should occur as follows:
Recommendation 30:
The Crown should be permitted to provide in electronic form any material on
which it intends to rely and should have the discretion to provide paper copies
of such material. If the Crown decides to use electronic disclosure, it must ensure
that the defence has the necessary technical resources to use the resulting
electronic database, including the appropriate software to allow annotation
and searching;
Recommendation 31:
Material on which the Crown does not intend to rely but which is relevant should
be produced in electronic format, and the necessary technical resources should
be provided to allow the use of the resulting electronic database;
341
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Volume Three: The Relationship Between Intelligence and Evidence
Recommendation 32:
The Crown should be able to disclose all other material that must be disclosed
pursuant to Stinchcombe and Charkaoui by making it available to counsel for the
accused for manual inspection. In cases where the disclosure involves sensitive
material, the Crown should be able to require counsel for the accused to inspect
the documents at a secure location with adequate provisions for maintaining
the confidentiality of the lawyer’s work. Defence counsel should have a right
to copy information but subject to complying with conditions to safeguard
the information and to ensure that it is not used for improper purposes not
connected with the trial;
Recommendation 33:
The trial judge should have the discretion to order full or partial paper disclosure
where the interests of justice require; and
Recommendation 34:
The authority and procedures for electronic disclosure should be set out in the
Criminal Code in order to prevent disputes about electronic disclosure.
Recommendation 35:
It is recommended that:
a) the Criminal Code be amended to allow the judge in a jury trial to empanel
up to 16 jurors to hear the case if the judge considers it to be in the interests of
justice;
b) if more than 12 jurors remain at the start of jury deliberations, the 12 jurors
who will deliberate be chosen by ballot of all the jurors who have heard the
case;
c) the minimum number of jurors required to deliberate remain at 10;
d) the idea of having terrorism trials heard by a panel of three judges be rejected
because it offers no demonstrable benefit; and
e) the call for mandatory jury trials in terrorism cases be rejected in view of the
difficulties of long trials with juries and the accused’s present ability to opt for
trial by judge alone.
�
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PDF Text
Text
Air India Flight 182
A Canadian Tragedy
VOLUME FOUR
Aviation Security
�©Her Majesty the Queen in Right of Canada, represented by the
Minister of Public Works and Government Services, 2010
Cat. No: CP32-89/2-2010E
ISBN: 978-0-660-19926-9
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
K1A 0S5
Telephone: (613) 941-5995 or 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Publications@pwgsc.gc.ca
Internet: www.publications.gc.ca
�VOLUME FOUR
AVIATION SECURITY
TABLE OF CONTENTS
CHAPTER I: INTRODUCTION
CHAPTER II: RESPONSES TO THE BOMBING OF AIR INDIA FLIGHT 182
2.1 International Response
2.1.1 International Air Transport Association
2.1.2 International Civil Aviation Organization
2.1.3 United States: Federal Aviation Administration
2.1.4 Ireland: Coroner’s Inquest
2.1.5 India: Kirpal Commission
2.2 Canadian Response
2.2.1 Introduction
2.2.2 1985 Airport Security Audit
2.2.3 Seaborn Report
2.2.4 Canadian Aviation Safety Board Investigation
2.2.5 Changes to Legislative and Regulatory Framework
2.2.6 Changes in Oversight
2.2.6.1 Roles and Responsibilities
2.2.6.2 Inspection and Enforcement
2.2.7 Changes in Training
2.2.8 Enhancements in Security Systems and Equipment
2.2.9 Conclusion
2.3 Failure to Learn: The Bombing of Pan Am Flight 103
2.3.1 Failure to Address the Known Threat of a Bomb in
Interlined, Unaccompanied Baggage
2.3.2 Air India and Pan Am: Parallel Systemic Failures
2.3.3 Responses to the Bombing of Pan Am Flight 103
2.3.4 Failure to Appreciate Significance of Air India
Flight 182 Bombing
2.3.5 Conclusion
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CHAPTER III: CIVIL AVIATION SECURITY IN IHE PRESENT DAY
3.1 Responses to the Terrorist Attacks of September 11, 2001
3.1.1 Historical Context
63
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�Volume Four : Aviation Security
3.1.2
International Response
65
3.1.2.1 International Civil Aviation Organization:
Annex 17 Amendments
66
3.1.2.2 International Civil Aviation Organization:
Universal Security Audit Program
68
3.1.2.3 North America
76
3.1.2.4 Europe
77
3.1.3 Canadian Response
77
3.1.3.1 Introduction
77
3.1.3.2 Canadian Air Carrier Protective Program
82
3.1.3.2.1 Genesis and Development of the CACPP 76
3.1.3.2.2 Threat Matrix
83
3.1.3.2.3 Role of Aircraft Protective Officers
84
In-Flight Security
Airport Security
Behavioural Analysis
Intelligence
3.1.3.2.4 Criticism of Air Marshal Programs
88
3.1.3.2.5 APO Recruitment, Training and
Retention
90
3.1.3.2.6 Flight Crew Training
92
3.1.3.2.7 International Cooperation
92
3.1.3.2.8 Funding
93
3.1.3.2.9 Need for the Program
93
3.1.4 After 9/11: Danger of Complacency Continues
94
3.1.5 Conclusion
95
3.2 Oversight in Aviation Security
96
3.2.1 InternationalGovernance
99
3.2.1.1 International Regulatory Regime
99
3.2.1.1.1 International Conventions
102
3.2.1.1.2 Annex 17 and the ICAO Security
Manual
106
3.2.1.2 Limitations on International
Governance
111
3.2.2 Oversight of Aviation Security in Canada
116
3.2.2.1 Concepts in Oversight
120
3.2.2.2 Oversight of Aviation Security
120
3.2.2.2.1 Annex 17 and Canadian Aviation
Security
121
Regulatory Framework
National Civil Aviation Security
Program and Stakeholder
Security Programs
National Aviation Security
Committee and Stakeholder
Security Committees
3.2.2.2.2 Regulatory Regime
130
Underlying Principles
�Volume Four : Aviation Security
Proactive Approach
Layered Approach
Performance-based Approach
Security Culture and Risk Management
Identifying Threats: Past, Present
and Future
3.2.2.2.3 Inspection and Enforcement
141
3.2.2.2.4 Shared Responsibility: Role of
Stakeholders in Oversight
142
3.2.2.2.5 Independent Reviews of Aviation
Security
143
3.2.3 Conclusion
146
3.3 Risk Management in Aviation Security
147
3.3.1 Risk Management: Introduction
148
3.3.2 Risk Management in Aviation Security
150
3.3.3 Risk Management Methodology
155
3.3.4 Risk Management Decision-making in Practice
160
3.3.5 Matching Limited Resources with Risk Control
Objectives
172
3.3.6 Shared Responsibility and Accountability
174
3.3.7 Culture of Security
179
3.3.8 Conclusion
181
3.4 Use of Intelligence in Aviation Security
181
3.4.1 Integrated Threat Assessment Centre
183
3.4.2 Information Sharing: Canadian Air Transport Security
Authority
184
3.4.3 Information Sharing: Aviation Security Partners
186
3.4.4 Conclusion
190
3.5 Passenger and Baggage Screening
191
3.5.1 Post-1985 Developments
192
3.5.1.1 Hold Bag Screening
192
3.5.1.2 Creation of the Canadian Air Transport Security
Authority
195
3.5.2 Passenger and Baggage Security: Lessons Yet to
be Learned
198
3.5.2.1 Need for Proactive Approach
198
3.5.2.2 Holistic Security: “Single Entity” Doctrine
201
3.5.3 Passenger and Baggage Screening: Current Procedures
and Future Developments
203
3.5.3.1 Hold Bag Screening and Passenger-Baggage
Reconciliation
203
3.5.3.2 Pre-Board Screening
205
3.5.3.2.1 Identity Screening Initiatives
207
Advance Passenger Information and
Passenger Name Record
Trusted Traveller Programs
Behavioural Analysis
Passenger Protect Program
�Volume Four : Aviation Security
Rationale for the Program
Advisory Group and Specified
Persons List
Reconsideration Process
Consequences of Boarding Denials
Balancing Security and Rights
Regulatory Amendments
3.5.4 Conclusion
3.6 Use of Technology
3.6.1 Technology and Pre-board Screening
3.6.1.1 Dual Energy X-ray
3.6.1.2 Threat Image Projection Systems
3.6.1.3 Explosives Detection Trace and Explosives
Vapour Detection Systems
3.6.1.4 Closed-Circuit Television Monitoring
3.6.2 Technology and Hold Bag Screening
3.6.2.1 Canada’s Five-level HBS System
3.6.2.2 CT X-ray Systems
3.6.3 Access Control
3.6.3.1 Biometrics
3.6.4 Technology: Concerns and Limitations
3.6.4.1 Privacy and Safety Issues
3.6.4.2 Reliability
3.6.5 Other Screening Systems
3.6.5.1 Passenger-Baggage Reconciliation
3.6.5.2 Explosives Detection Dogs
3.6.6 Conclusion
3.7 Screeners
3.7.1 Recruitment
3.7.2 Training
3.7.3 Turnover
3.7.4 Testing
3.7.5 Conclusion
3.8 Closing the Gaps in Aviation Security
3.8.1 Air Cargo
3.8.1.1 Air Cargo Security: A Decades-old Concern
3.8.1.1.1 The Seaborn Report
3.8.1.1.2 Reasons for Inaction
3.8.1.1.3 Need for a Proactive Approach
3.8.1.2 International Developments in Air Cargo Security
3.8.1.2.1 The Problem: Cargo Consignments
can Target Specific Aircraft
3.8.1.2.2 The Proposed Solution:
“Known Shipper”
3.8.1.3 Canada’s Existing Air Cargo Security Regime
3.8.1.3.1 Lack of Vigilance: “Known Shipper”
Misconstrued
3.8.1.3.2 Canada Falls Behind
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�Volume Four : Aviation Security
3.8.2
3.8.3
3.8.1.3.3 Voluntary Programs
3.8.1.3.4 Inadequate Cargo Screening
Note on Terminology
Minimal Searching of Air Cargo
Lack of Technological Equipment
Challenges in Searching Air Cargo
Lagging Technological Advancement
Explosives Detection Dogs
Working Toward a Cargo Screening
Standard
Interim Measures
3.8.1.3.5 Inadequate Training
3.8.1.3.6 Poor Access Control
3.8.1.3.7 Enhancements Required
3.8.1.4 Proposal for an Enhanced Regime: Air Cargo
Security Initiative
3.8.1.4.1 Developments in Air Cargo Security
in the United States
3.8.1.4.2 Hardening Supply Chain Security
Supply Chain Security Program
Oversight and Compliance
Monitoring
3.8.1.4.3 Improving Air Cargo Screening: Use of
Technology
3.8.1.4.4 Funding
3.8.1.5 A Call for Action from the Government of
Canada
3.8.1.6 Conclusion
Airport Security
3.8.2.1 Air India Flight 182: Airport Security Deficiencies
Revealed
3.8.2.2 Basic Principles
3.8.2.3 Air Terminals as Targets of Opportunity
3.8.2.4 The Price of Poor Access Control
3.8.2.5 Access Control at Canadian Airports
3.8.2.5.1 Supervision of Non-Security Cleared
Individuals
3.8.2.5.2 Restricted Area Identification Card
3.8.2.5.3 Instilling a Culture of Security
Awareness Airport Security Watch
Program
3.8.2.6 Conclusion
Fixed Base Operations and General Aviation
3.8.3.1 Enhancing Security and Meeting the Needs
of Industry
3.8.3.2 Transport Canada: Action Taken but More
Required
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�Volume Four : Aviation Security
3.8.3.3 Conclusion
3.9 Duty to Warn and Transparency in Aviation Security
3.9.1 Public Warning System for Security Threats
against Airlines
3.9.2 Informing the Public: Greater Transparency Required
in Civil Aviation Security
3.9.3 Conclusion
3.10 Funding Aviation Security
3.10.1 Cost-Effective Security: Reasonable Balance,
Flexibility and a Risk Management Approach
3.10.2 Sustainable Funding
3.10.3 Conclusion
371
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EPILOGUE
398
373
378
384
385
385
393
397
CHAPTER IV: RECOMMENDATIONS
APPENDICES
Appendix A
417
Chronology: Significant Acts of Unlawful Interference with Civil Aviation
Appendix B
441
Report on Security Arrangements Affecting Airports and Airlines in Canada
[“Seaborn Report”]: Principal Recommendations of the Airport/Airline Security
Report
Appendix C
443
The Myth of Security At Canada’s Airports: Report of the Standing Senate
Committee on National Security and Defence – Recommendations
Appendix D
449
Flight Plan: Managing the Risks in Aviation Security – Report of the Advisory
Panel – List of Recommendations
Appendix E
457
Canadian Security Guidebook 2007 Edition: Airports – Appendix III Index of New
Recommendations
�VOLUME FOUR
AVIATION SECURITY
CHAPTER I: INTRODUCTION
The terms of reference for the Commission require the Commissioner to make
findings and recommendations with respect to “…whether further changes
in practice or legislation are required to address the specific aviation security
breaches associated with the Air India Flight 182 bombing, particularly those
relating to the screening of passengers and their baggage.”1
Despite knowledge of existing threats and of the need for protective security
measures, Canada was ill-prepared to defend itself against aviation terrorism
in 1985. The bombing of Air India Flight 182 on June 23, 1985, revealed major
shortcomings in the country’s aviation security regime. Although Canada
responded immediately and has since made numerous improvements to security,
many deficiencies exposed in the wake of the bombing remain unaddressed.
It became clear to the Commission early on in its work that a broad interpretation
of this aspect of its mandate was required. Although the bombing resulted
directly from an unaccompanied bag that infiltrated the airline system and was
then interlined to the Air India flight in Toronto, a narrow focus by the Commission
on passenger and baggage security would not have provided assurance that all
the security deficiencies that led to the bombing had been examined. Breaches
in aviation security do not often occur in isolation. The security deficiencies that
led to the bombing were widespread and interdependent, ranging from poor
threat communication to lax aircraft and airport security.2
Aircraft and airport environments are attractive targets for terrorists because
they offer the potential of a large number of victims in a contained area, along
with a virtual guarantee of widespread public attention after an attack. Air travel
is comparatively safe, since aircraft have one of the lowest accident rates of any
mode of transportation.3 Nevertheless, when accidents or terrorism incidents
occur, the consequences can be profound and their high visibility generates
much public concern. Terrorists specifically target civil aviation because they
have expectations of a high propaganda return from a successful attack.4
1
2
3
4
Terms of Reference, P.C. 2006-293, para. b(vii).
See Volume Two: Part 1, Pre-Bombing, Sections 1.9, 2.4, 4.3, 4.4 and 4.7 for a detailed analysis of the
security breaches associated with the bombing of Air India Flight 182.
Exhibit P-169, p. 15 of 202.
Exhibit P-169, p. 15 of 202.
�10
Volume Four: Aviation Security
Since the 1960s, aviation has witnessed an increase in the deadliness of terrorist
attacks, from simple aircraft seizures with the purpose of escaping political
oppression in the 1960s to the use of aircraft as guided missiles in suicide
attacks, as on September 11, 2001. Included on this continuum was the era of
sabotage involving the unaccompanied, infiltrated bag – the modus operandi of
the Air India bombers.
A careful examination of the history of civil aviation security reveals patterns
that experts say give predictability to air terrorism. As Rodney Wallis, one of the
Commission’s key experts in civil aviation security, observed, “...There is very
little that is new in threat[s] or in aviation security generally. What is changing is
the ability to respond.”5
In many ways, civil aviation security in Canada has made great strides since
1985. A stronger regulatory regime and oversight mechanism exist today. Threat
communication and screening technology have vastly improved and a new
government agency, the Canadian Air Transport Security Authority (CATSA),
has been established exclusively to screen passengers, their baggage and
non-passengers seeking access to restricted areas of airports. Still, important
security deficiencies remain, despite recognition of these very deficiencies in
the immediate aftermath of the bombing of Air India Flight 182.
As suggested by Wallis, the Commission has not found many new weaknesses
in civil aviation security, but the fact that many deficiencies persist more than
two decades after they first surfaced is of great concern. Earlier reviews of civil
aviation security in Canada, notably those of the Standing Senate Committee on
National Security and Defence (Senate Committee) and an independent review
panel, the CATSA Act Review Advisory Panel (CATSA Advisory Panel), also called
attention to many of these deficiencies,6 but they remain unaddressed.
Specifically, the Commission learned that there are several methods of sabotage
besides those involving passengers and baggage. One of the most significant
vulnerabilities is air cargo, which, though largely unscreened, travels in the hold
of passenger aircraft.7 Persons and vehicles accessing airside and restricted areas
of airports are also inadequately screened.8 In addition, the General Aviation
(GA) sector and Fixed Base Operations (FBOs) have not been designated for
CATSA screening. As a consequence, some passengers and their baggage
are not screened at all, and the facilities used by the GA sector and FBOs are
often not well secured. Flights from these facilities sometimes land at one of
89 “designated” airports in Canada, and their passengers may then transfer to
connecting flights without ever being screened. In addition, a number of FBOs
are located at the periphery of designated airports and permit direct access
to restricted areas that normally require passing through levels of security
5
6
7
8
Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5009.
See Exhibits P-169, P-171 and P-172; see also Appendices C, D and E for a listing of the
recommendations of these reports.
See Section 3.8.1, which provides a detailed analysis of the current deficiencies in air cargo security.
See Section 3.8.2, which provides a detailed analysis of the current deficiencies in airport security.
�Chapter I: Introduction
screening that FBOs do not offer.9 These security weaknesses in the GA sector
and FBOs leave the aviation system as a whole vulnerable to attack. Bombs can
still find their way onto passenger aircraft.
A key lesson of the Air India bombing is that security measures must be applied
in mutually reinforcing layers that address all vulnerabilities. Each layer on its
own is not foolproof, as no measure on its own can ever be. Redundancy helps
ensure that, if one measure fails, another will cover the gap. Effective security
requires that all gaps be covered.
In 1985, the Government of Canada itself recognized that a broad-based
examination of aviation security was required in response to the bombing.
Shortly after, the Government commissioned a comprehensive review, which
resulted in the “Seaborn Report.” In many respects, this report is as relevant
today as it was in 1985. It recommended sweeping changes to aviation security
to better manage the threat of sabotage. Transport Canada implemented some,
but not many, of the report’s recommendations.10 Many weaknesses identified
in the Seaborn Report are now the focus of this volume of the Commission’s
own report.
Annex 17 to the Convention on International Civil Aviation (“Chicago Convention”),
a treaty governing civil aviation, outlines the minimum security standards.11 As a
signatory, Canada is obliged to comply with the Convention, but the Commission
finds that it has not done so.
Besides calling for a multi-layered, holistic approach to security, aviation security
experts and officials from Transport Canada identified several other underlying
principles to strengthen defences against terrorists. Many of these principles are
rooted in the lessons learned from the bombing of Air India Flight 182. Security
measures must be developed to anticipate threats,12 provide for flexibility
and performance-based measures where suitable,13 and foster a culture of
security awareness. The security regime must be constantly scrutinized for its
effectiveness. Since there are few security measures available to prevent harm
once an aircraft is aloft, effective security must be provided on the ground. As
well, technology, even if properly used, should rarely be seen as the final answer.
It is merely one tool that may assist in providing security.
Transport Canada reported that it is developing proposals to address many of
the security gaps that were the focus of the Commission – primarily air cargo
security, airport security and FBO and GA security. It has also undertaken a
comprehensive review of its regulatory regime. The Commission strongly urges
9
10
11
12
13
See Section 3.8.3, which provides a detailed analysis of the current deficiencies at FBOs and in the GA
sector.
Exhibit P-101 CAF0039; see also Appendix B, which provides a list of the recommendations.
International Civil Aviation Organization (ICAO), Convention on International Civil Aviation (“Chicago
Convention”), 7 December 1944, (1994) 15 U.N.T.S. 295; Exhibit P-181.
Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4646.
Exhibit P-169, +pp. 92-93 of 202.
11
�12
Volume Four: Aviation Security
Transport Canada to ensure that it honours all of its Annex 17 obligations, and to
exceed them where possible by looking to international best practices. Almost
25 years after the bombing of Air India Flight 182, the time for reflection is long
past. Action is now required.
There is also a need for independent oversight of security measures. For
this reason, the Commission recommends a regular five-year review by an
independent panel of experts to ensure that Canada is addressing threats
as effectively as possible. The Commission strongly encourages the Senate
Committee and the Auditor General of Canada to continue to inform the public
about the state of civil aviation security in Canada.
The Commission was greatly assisted in its work, not only by the members of
the independent CATSA Advisory Panel, the Senate Committee, including its
Chair, Senator Colin Kenny, and the Auditor General of Canada, but also by
members of the Office of the Privacy Commissioner of Canada, including the
Privacy Commissioner, Jennifer Stoddart, and the many industry representatives
and Transport Canada officials who appeared at the hearings. The Commission
extends its thanks as well to its civil aviation security experts, including
Moses Aléman, Dr. Peter St. John and Dr. Kathleen Sweet, and its expert in risk
management, Dr. William Leiss, who assisted in navigating this technical field.
The Commission wishes to extend its deep gratitude, in particular, to Rodney
Wallis, whose knowledge and expertise in civil aviation security provided
essential guidance throughout the hearings and during the preparation of this
volume.
�VOLUME FOUR
AVIATION SECURITY
CHAPTER II: RESPONSES TO THE BOMBING OF AIR INDIA FLIGHT 182
In the early morning of June 23, 1985, Air India Flight 182 was on its way from
Toronto to London, England,1 when a bomb exploded on board. The aircraft, a
Boeing 747 named the Kanishka, crashed in the Atlantic Ocean off the southwest
coast of Ireland, killing all 329 passengers and crew.2 The bomb had been
concealed in a suitcase that began its journey on Canadian Pacific Airlines (CP
Air) Flight 060 from Vancouver and was later transferred to the Air India aircraft in
Toronto.3 Throughout its entire transport, the suitcase containing the bomb was
not accompanied by any corresponding passenger.4 Less than an hour before
Flight 182 disappeared, another bomb hidden in a suitcase exploded in the
baggage handling area of Narita Airport in Japan, killing two baggage handlers
and injuring four others. This suitcase had also travelled unaccompanied from
Vancouver – in this case, on CP Air Flight 003 – and was destined for loading
onto Air India Flight 301 to Bangkok.5
The bombing of Air India Flight 182 marked a watershed in international civil
aviation security.6 There had been incidents of aircraft sabotage before, but the
scale of destruction in 1985 was unprecedented. This was also the first time that
a specific modus operandi was identified. An unaccompanied bag had entered
the airline system and was subsequently interlined to the target aircraft in a
different city.7
Until the events of September 11, 2001, the bombing of Air India Flight 182 was
the worst act of air terrorism the world had seen.8 It remains Canada’s worst
encounter with terrorism.9 Before the bombing, Canada’s non-controversial
international roles had bred complacency within Transport Canada’s Civil
Aviation Security Branch.10 No known terrorist group harboured grievances
1
2
3
4
5
6
7
8
9
10
The flight made a transit stop in Montreal: Exhibit P-35, p. 1.
Exhibit P-164, p. 1.
Exhibit P-157, p. 11 of 135.
Exhibit P-157, pp. 25, 77 of 135.
Exhibit P-157, p. 11 of 135.
Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4288.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4209-4210; see also Testimony of Rodney Wallis,
vol. 37, May 31, 2007, p. 4517.
Exhibit P-35, p. 1.
Exhibit P-35, p. 2.
Exhibit P-157, p. 54 of 135; see also Exhibit P-259: Rodney Wallis, Combating Air Terrorism (New York:
Brassey’s, 1993), p. 7 [Wallis, Combating Air Terrorism].
�14
Volume Four: Aviation Security
against Canada11 and, despite indications to the contrary,12 there was a
tendency to believe the country immune to the violent regional conflicts that
had elsewhere led to a rash of hijackings and other forms of air terrorism.13 As a
result, civil aviation security was given low priority.14
The bombing of Flight 182 was the result of a conspiracy that was conceived,
planned and executed in Canada, and most of the victims were Canadians.15 It
demonstrated that terrorist acts need not be confined to the country that was
the source of a dispute, but could be perpetrated anywhere that suited terrorist
purposes.16
To that point, Canada had failed to keep pace with the realities of air terrorism.
The Air India bombing led to significant changes in Canadian and international
civil aviation security regimes. The focus quickly shifted from preventing
hijackings to preventing sabotage, particularly the threat of explosive devices
hidden in checked baggage.17 A number of post-bombing investigations and
reviews in Canada and abroad recommended sweeping changes to existing
aviation security systems. Chief among the changes then made in Canada was
the introduction of passenger-baggage reconciliation, a measure that had
already been used here, and that, had it been used in June 1985, might well
have prevented the Air India bombing. In the aftermath, Canada became the
staunchest proponent of passenger-baggage reconciliation, leading the way
for this measure to become a mandatory international civil aviation security
standard. The basic security philosophies that were established following the
bombing form the foundation of security regimes today.18
However, despite these efforts to enhance security, it remained inadequate.
The Air India bombing revealed significant weaknesses, not only in passenger
and baggage security, but in almost all areas of aviation security. Reviews of the
disaster recognized that passenger aircraft were exposed to multiple methods
of terrorist attack, and outlined a clear vision for comprehensive change. The
Seaborn Report, commissioned by the Government of Canada in 1985, provided
a strategic plan whose principles remain relevant.19 Nevertheless, the focus of
the response in Canada and internationally was on passenger and baggage
security. Although attempts were made to address other areas of vulnerability,
they were not adequate. It was not until Pan American World Airways (Pan Am)
Flight 103 was destroyed more than three years later, using the same method
employed against Air India, that a greater commitment to reform in security
emerged. Efforts to secure reform were further strengthened following the
attacks of September 11, 2001. Still, many lessons of the Air India bombing
remain unheeded almost 25 years later.
11
12
13
14
15
16
17
18
19
Wallis, Combating Air Terrorism, p. 7.
Exhibit P-157, pp. 47-48 of 135.
Exhibit P-157, p. 54 of 135.
Exhibit P-157, p. 54 of 135.
Exhibit P-35, p. 2.
Wallis, Combating Air Terrorism, p. 7.
Exhibit P-157, p. 75 of 135.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4219.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4507.
�Chapter II: Responses to the Bombing of Air India Flight 182
2.1 International Response
The international civil aviation security community responded within days of
the loss of Air India Flight 182. The International Civil Aviation Organization
(ICAO) called a special meeting of its assembly. The International Air Transport
Association (IATA) convened an extraordinary meeting of its Security Advisory
Committee (SAC).20 The SAC was a special security body of IATA established in
1967 to develop collective airline policies for combatting aviation terrorism.
Although there was no initial confirmation that a bomb had destroyed Flight
182, suspicion ran high. Given the nature of the incident and the connection
to the Narita bombing, the working assumption was that a bomb had brought
down Flight 182. Both incidents involved a non-existent passenger, the same
airline was targeted, physical evidence of a bomb was discovered at Narita
Airport,21 and those participating in the search and recovery process for Air India
Flight 182 had observed catastrophic damage. On this basis, those attending
the meetings at IATA and ICAO recommended major reforms to civil aviation
security to reduce the risk of sabotage.22 Canada played a prominent role,
leading the push for mandatory passenger-baggage reconciliation.23
2.1.1 International Air Transport Association
IATA is the trade association for international scheduled airlines.24 On June 28,
1985, airline security chiefs from around the world,25 including representatives
of Air India, CP Air and Air Canada, assembled at IATA’s headquarters in Montreal
to attend the SAC meeting. The measures recommended by the SAC became
mandatory after the full membership adopted resolutions.26
The SAC meeting was convened to review the recent aviation terrorism events
and to identify immediate steps to close security gaps.27 The attendance of
airline representatives from around the world only days after the Air India
bombing reflected the deep concern of the industry.28 The airlines sought to
restore public confidence, which had been “badly shattered by the incidents,”29
and to maintain the viability of their operations.30 A number of observers also
20
21
22
23
24
25
26
27
28
29
30
Wallis, Combating Air Terrorism, p. 5.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4483.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4482-4483.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4755.
Wallis, Combating Air Terrorism, p. 102.
The extraordinary meeting included representatives from the following airlines: CP Air, Air India,
Swiss Air, KLM, TWA, Qantas, Air France, UTA, Middle East Airlines, Japan Airlines, Aer Lingus, Nigeria
Airways, British Caledonian, South African Airways and British Airways. The meeting was also attended
by representatives of the International Civil Aviation Organization (ICAO) and the Air Transport
Association of Canada. See Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4474-4475.
Exhibit P-260: Rodney Wallis, Lockerbie: The Story and the Lessons (Westport, Conn.: Praeger Publishers,
2001), pp. 4-5 [Wallis, Lockerbie].
Wallis, Combating Air Terrorism, pp. 5-6.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4475.
Wallis, Combating Air Terrorism, p. 6.
Wallis, Combating Air Terrorism, p. 6.
15
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Volume Four: Aviation Security
attended the IATA meeting, including representatives of Transport Canada and
the US Federal Aviation Administration (FAA). The presence of government
representatives at an “airline meeting” demonstrated the significance attached
to the issues being discussed.31 The holding of the meeting so soon after the
bombing permitted IATA to learn the industry’s immediate reaction and to
represent its views shortly afterwards at ICAO’s special meeting.32
Notably absent from the SAC meeting, however, were security representatives
from the US airlines. According to Rodney Wallis, Director of Security at IATA
at the time, officials from American air carriers viewed the bombing as a
“foreign” matter that held little relevance for their operations.33 They were
focusing instead on another incident unfolding at the same time involving an
American aircraft. A Trans World Airlines (TWA) Boeing 727 had been hijacked
in the Mediterranean region on June 14, 1985, resulting in a two-week hostagetaking and the killing of one American passenger.34 This was a major event in the
US, with daily coverage in the media. Because American hostages were being
held, “…the level of emotion created in the United States was certain to give
precedence of thought in that country to this criminal act rather than to the
Air India disaster.”35 The relative inattention of US airline representatives to the
lessons of the Air India bombing was to have grave repercussions three years
later when, according to Wallis, Pan Am Flight 103 was bombed after the airline
abandoned the key preventive measure developed following the Air India
bombing.36
The SAC meeting in June 1985 resulted in a number of recommendations for
IATA’s membership and marked the beginning of “massive changes”37 in aviation
security around the world. The most significant was passenger-baggage
reconciliation38 – the process of matching passengers with their baggage to
prevent unaccompanied bags being carried on aircraft.39 To avoid the danger that
arose when ill-intentioned passengers voluntarily separated themselves from
their baggage, it became necessary to treat the passenger and accompanying
baggage as a single entity. It was not sufficient simply to identify “no shows”
at the gate, or missing transit and transfer passengers. Bags that had illegally
“infiltrated” the system had to be identified.40
Passenger-baggage reconciliation was an established procedure even before
the Air India bombing. Some countries, including Spain and Turkey, had
implemented fairly rudimentary passenger-baggage reconciliation procedures,
31
32
33
34
35
36
37
38
39
40
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4474-4475.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4475-4476.
Wallis, Lockerbie, p. 10.
Wallis, Lockerbie, p. 10.
Wallis, Lockerbie, p. 10.
Wallis, Lockerbie, p. 11.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4476.
Wallis, Lockerbie, pp. 10-11.
Wallis, Lockerbie, p. 152.
Wallis, Lockerbie, p. 13.
�Chapter II: Responses to the Bombing of Air India Flight 182
mostly on an ad hoc basis in response to bomb threats.41 Passenger-baggage
reconciliation had been used successfully in Canada by KLM and CP Air in
relation to a bomb threat in 1984.42 After the Air India bombing, the goal was
to ensure that such procedures became mandatory, that they were enhanced,
where applicable, through a process of automation and that the procedures
were workable for both developed and developing nations.43 Wallis described
the mandatory requirement for passenger-baggage reconciliation as the most
significant change in international civil aviation security standards during the
1980s.44
The SAC identified additional security issues that needed greater attention,
including ramp and air cargo security. Air cargo, in particular, was known to be
susceptible to sabotage, and there was increasing concern about the ability
to use devices hidden in air cargo to target specific aircraft. IATA established
working groups of aviation security experts to review these vulnerabilities45 and
to review the ICAO Security Manual.46 The groups reported at the next regular
SAC meeting in September 1985, essentially confirming the SAC’s initial views
about where improved security was required.47
Those attending the SAC extraordinary meeting gave priority to implementing
controls over checked baggage,48 but a proposal to screen all checked baggage
did not find favour.49 This measure had been strongly advocated by Transport
Canada.50 As an adjunct to passenger-baggage reconciliation, it would enhance
passenger security.51 After the bombing, airlines at Canadian airports had been
instructed to conduct full checked baggage screening for all international
flights through physical or X-ray inspection.52 However, this caused considerable
delays, with opportunity costs estimated at $10,000 to $18,000 per hour in
1985 dollars.53 The SAC supported other measures instead, calling for improved
communication and intelligence54 and enhanced security at airports. IATA
eventually established minimum criteria for securing airports against terrorism
and inaugurated a corresponding program of airport surveys.55
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
These procedures consisted of passengers physically identifying their baggage before it was loaded on
the aircraft. See Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4412-4413, 4478.
Exhibit P-101 CAF0637, pp. 18-19.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4476, 4478, 4485-4486.
Wallis, Lockerbie, p. 10.
See Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4477, 4480.
Exhibit P-162, p. 4.
Exhibit P-162, p. 5.
Exhibit P-162, pp. 3, 5.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4481.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4481.
Wallis, Lockerbie, p. 154.
Exhibit P-263, Tab 13, p. 2 of 4. Note, however, that X-ray screening was still considered a cosmetic
security measure that was of limited used for detecting bombs in baggage. See Wallis, Lockerbie, p. 12.
These figures were in relation to wide-bodied jets: Testimony of Rodney Wallis, vol. 37, May 31, 2007, p.
4482.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4481.
Exhibit P-157, p. 89 of 135.
17
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Volume Four: Aviation Security
While IATA is influential in the international civil aviation community, its mandate
is to represent the commercial concerns of its membership, international
scheduled airlines. Its recommendations represent best practices but do not
have the force of law.56 Nevertheless, IATA and ICAO have always enjoyed a cooperative relationship. In 1985, on behalf of IATA, Wallis brought the concept of
passenger-baggage reconciliation – an airline proposal – to the subsequent ICAO
deliberations on the Air India bombing,57 and ICAO “…ran with this idea.”58
2.1.2 International Civil Aviation Organization
ICAO is a specialized agency of the United Nations and is the supreme lawmaking body in international civil aviation.59 Within days of the Air India
bombing, ICAO convened a special Ad Hoc Committee of Experts, consisting
mainly of government representatives from around the world, to discuss security
weaknesses that had led to the bombing.60 Key issues included the baggage that
CP Air had accepted for interlining without a reservation on the onward flight,
and the handling of the interlined baggage that arrived in Toronto without its
corresponding passenger.61 ICAO recognized that the international civil aviation
security regime and Annex 17 to the Convention on International Civil Aviation
(“Chicago Convention”) in particular, had been wholly inadequate in dealing
with the threat of sabotage. Annex 17, Safeguarding International Civil Aviation
Against Acts of Unlawful Interference, governs civil aviation security and outlines
the security standards with which all Contracting States must comply. On July 10,
1985, the ICAO Council requested a complete review of Annex 17. A wholesale
revision of the Annex followed, among the most significant in its history. The
Ad Hoc Committee made recommendations that led to fundamental changes
in baggage security procedures. However, one of the most important changes
– the introduction of passenger-baggage reconciliation as an international
standard – was criticized as inadequate.62
The Ad Hoc Committee had intended to develop a standard for Annex 17 to
ensure that no bag would travel if its owner intentionally separated him- or
herself from it. This would ensure that no extraneous bag would infiltrate the
airline system, as had occurred with Air India. The matching of passengers on
board with baggage to be loaded was seen as the primary countermeasure.63
Both IATA and Transport Canada, through its representative, were strong
proponents of a comprehensive measure. Indeed, Canada championed the
cause of passenger-baggage reconciliation on the international stage.64
56
57
58
59
60
61
62
63
64
See Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4486, 4495.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4477, 4486.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4477.
Wallis, Combating Air Terrorism, p. 91.
Wallis, Lockerbie, p. 11; see also Wallis, Combating Air Terrorism, p. 5.
Wallis, Combating Air Terrorism, p. 7.
Wallis, Lockerbie, p. 11.
Wallis, Lockerbie, p. 11.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4755-4756
�Chapter II: Responses to the Bombing of Air India Flight 182
Transport Canada pushed for a strict rule where no unaccompanied baggage
could travel, regardless of the circumstances. Its position was reflected in the
simple maxim, “…no passenger, no bag.” IATA did not support this proposal,
maintaining that such a measure was unrealistic, since there were many reasons
that a bag might need to be carried unaccompanied,65 including its mishandling
by airlines.66 Wallis argued on behalf of IATA that unaccompanied baggage
should be permitted on aircraft if subjected to the highest degree of scrutiny.67
Thoroughly screened baggage, he stated, should not be considered dangerous.
ICAO accepted this position.68
The text that was eventually published in Annex 17 as Standard 5.1.4 was a
compromise. It did not satisfy Canada’s or IATA’s original intent or that of the Ad
Hoc Committee. The text of Standard 5.1.4 read:
Each Contracting State shall establish measures
to ensure that operators providing service to or
from that State do not place or keep the baggage
of passengers who have registered, but have not
reported for embarkation, on board the aircraft,
without subjecting it to security control.69
This rule ensured that all baggage, including interlined baggage,70 belonging
to booked passengers who did not present for boarding71 on international
flights72 would not be loaded onto or transported on an aircraft. However,
the unaccompanied baggage that had arrived in Toronto in June 1985 to be
transferred to Air India Flight 182 was not associated with a booked passenger
because “M. Singh” did not have a reservation on that flight. This situation was
therefore not captured by the rule. In other words, infiltration of the airline
system by an unaccompanied bag was not covered,73 and the rule, as written,
would not have prevented the bombing of Air India Flight 182.74
A further problem arose because some states, lobbied by their national airlines,
interpreted the rule as allowing unaccompanied baggage to travel if it had been
subjected to security controls before the discovery of a “no show” passenger. Such
security controls would have included X-ray machines and vapour detection
equipment, both of which were insufficiently developed to be used as the sole
65
66
67
68
69
70
71
72
73
74
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4477.
Wallis, Lockerbie, p. 12.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4477.
Exhibit P-269, p. 12.
“Security control” was defined in Annex 17 as “…[a] means by which the introduction of weapons or
articles likely to be utilized to commit an act of unlawful interference can be prevented.” See Exhibit
P-153, pp. 7, 12 of 47.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4500.
Such passengers are referred to as “no shows.”
Annex 17 standards and recommended practices apply only to international flights. ICAO does not
legislate for domestic services. See Wallis, Lockerbie, p. 11.
Wallis, Lockerbie, p. 11.
Wallis, Lockerbie, p. 11.
19
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Volume Four: Aviation Security
security controls.75 The security controls described in Standard 5.1.4 were meant
to be applied to baggage after it had been identified as unaccompanied, not
before.76
Watered-down provisions are not unusual at ICAO due to the consensus model
that has been adopted for their approval.77 States with limited financial resources
are often unable to agree to stronger, often costlier, provisions. The consequence
is an imperfect text that reflects the “lowest common denominator” in security.78
Since Annex 17 essentially sets minimum standards, developed countries are
always encouraged to exceed the standards.79 As will be discussed, the US
Federal Aviation Administration (FAA) did just that for passenger-baggage
reconciliation. However, insufficient compliance monitoring meant that Pan
Am’s discontinuance of reconciliation before the 1988 Lockerbie tragedy went
unnoticed.
The ICAO rule respecting passenger-baggage reconciliation applied as of
December 19, 1987, but states were encouraged to implement the rule
beforehand as soon as was practicable and feasible.80 The implementation date
was then delayed until April 1989 to enable the technical aspects of automated
reconciliation to be resolved.81 However, those states capable of implementing
the procedure sooner were urged to do so.82
As discussed, the addition of this standard was part of a major revision of Annex
17 conducted by the Ad Hoc Committee of Experts. The Committee was later
renamed the Panel of Aviation Security Experts83 and eventually came to be
known as the AVSEC Panel.84 It was given a permanent mandate to investigate
acts of unlawful interference with civil aviation and to develop amendments
to security measures for worldwide adoption. The Panel was to meet annually
to review the security measures in Annex 17 and recommend new provisions.
In March 1986, a completely revised and expanded Annex 17 was published,85
with 35 mandatory international standards, where previously that had only been
13.86 This was the first comprehensive review of Annex 17 since its adoption in
1974,87 and remains one of its most fundamental.88
75
76
77
78
79
80
81
82
83
84
85
86
87
88
Wallis, Lockerbie, p. 12.
Wallis, Lockerbie, p. 11.
Wallis, Lockerbie, p. 11.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4218-4219.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4218.
Exhibit P-153, p. (vii); see also Wallis, Lockerbie, p. 12.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4484.
Contracting States can withdraw from their obligations under Annex 17 by informing ICAO of their
inability or unwillingness to comply. The economic consequences, however, such as loss of air services
and insurance coverage, can be substantial: Exhibit P-157, pp. 78-79.
Wallis, Lockerbie, p. 11.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Exhibit P-157, p. 88 of 135; see also Wallis, Lockerbie, p. 11.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4219.
�Chapter II: Responses to the Bombing of Air India Flight 182
The revision of Annex 17 was necessary to improve counter-sabotage measures
in civil aviation security. Still, many security weaknesses revealed by the Air India
bombing were not adequately addressed. IATA placed proposals before ICAO
to enhance air cargo security, but these did not find sufficient support among
Contracting States following the bombing.89 The concept of 100 per cent hold
bag screening also failed to gain widespread support. It was not until after the
bombing of Pan Am Flight 103 and the September 11, 2001, attacks that a more
comprehensive approach to address security deficiencies took hold.90
Additional ICAO developments included the establishment of a “model clause”
on security to be used as part of the basic language governing bilateral air
agreements between countries. As well, ICAO began to conduct security
surveys at airports that requested assistance, providing recommendations for
improvements. More affluent states such as Canada provided assistance in
the form of security experts and funding for states in need. In addition, ICAO
developed a list of high-risk air carriers and imposed heightened security
measures on them.91
During this period Canada played a significant role at ICAO and in helping to
develop several international aviation security initiatives. Canada’s role there
continues to be prominent.92
2.1.3 United States: Federal Aviation Administration
Unlike the ICAO standard, the rule implemented by the US Federal Aviation
Administration (FAA) to address security gaps exposed by the Air India bombing
was comprehensive. The FAA introduced a passenger-baggage reconciliation
requirement for US airlines in November 1985, well ahead of the publication
of the ICAO standard. The FAA rule required all airlines with flights operating at
extraordinary-risk airports to “…conduct a positive passenger/checked baggage
match resulting in physical inspection or non carriage of all unaccompanied
bags.”93
According to Wallis, this was a foolproof rule. It applied to interlined baggage
and, if correctly employed, would prevent an extraneous bag from infiltrating
the system. Unfortunately, the FAA failed to monitor its implementation, and was
unaware in 1988 that Pan Am had dropped the procedure at both its Frankfurt
and London operations. The bombing of Pan Am Flight 103 demonstrated that
the development of rigorous rules by regulatory authorities is not sufficient.
Their application must be properly monitored as well.94
89
90
91
92
93
94
Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5002.
Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5002.
Exhibit P-157, p. 88 of 135.
Exhibit P-157, p. 89 of 135.
Wallis, Lockerbie, p. 12.
Wallis, Combating Air Terrorism, p. 37.
21
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Volume Four: Aviation Security
2.1.4 Ireland: Coroner’s Inquest
A coroner’s inquest relating to Air India Flight 182 took place in Cork, Ireland,
from September 17 to 24, 1985.95 The inquest was to establish the identities of
the Air India victims and determine how, where and when they died.96 Cornelius
Riordan, the Cork County Coroner, presided over a jury of ten local citizens. There
was a significant Canadian presence as well, including Ivan Whitehall, counsel
for Canada’s Department of Justice; Robert Hathaway of the Canadian Embassy
in Dublin, representing the Government of Canada; and Bruce Garrow, counsel
from Canada attending on behalf of a number of the victims’ relatives.97 The
inquest heard testimony from air traffic controllers, navy officers and others who
participated in the recovery process, representatives of Air India, pathologists
who examined the bodies, and police officers who coordinated emergency
services following the crash.98
During the inquest, Whitehall argued that a bomb was only one of several
possibilities and that there was “no evidence”99 to indicate the nature of what
had occurred on the aircraft. This conflicted with evidence presented by Dr.
Ian Hill, a British aviation pathologist, who concluded that there was a “good
chance”100 that an explosive decompression had occurred, caused either by
an explosion or by structural failure. Although Hill found no evidence of an
explosive device,101 he believed that the available evidence was consistent with
a “catastrophic event”102 that had occurred at altitude, leading to the breakup of
the aircraft in mid-air.103
When the coroner requested that certain forensic reports from police
laboratories form part of the record at the inquest,104 the Irish State Solicitor,
Barry Galvin,105 asserted that these reports were being used by the RCMP
in its investigation into the possibility of a “criminal act”106 – a fact that, in
itself, might have served to undermine the Canadian position at the inquest.
Galvin insisted that the reports were privileged107 and should not be made
public. Although the coroner persisted with his requests, he relented on the
final day of the inquest.108
95
96
97
98
99
100
101
102
103
104
105
106
107
108
See Volume Two: Part 2, Post-Bombing, Section 5.1, Early Government Response for an analysis of
Canada’s participation at the inquest.
Public Production 3428, p. 1 of 2 (entered on December 13, 2007 as a compendium of documents on
DVD as Exhibit P-391).
Public Production 3428, p. 1 of 2 (entered on December 13, 2007 as a compendium of documents on
DVD as Exhibit P-391).
Public Production 3428, pp. 1-2 of 2 (entered on December 13, 2007 as a compendium of documents
on DVD as Exhibit P-391).
Exhibit P-101 CAE0339, p. 3 of 4.
Exhibit P-101 CAE0339, p. 2 of 4.
Exhibit P-101 CAE0339, p. 2 of 4.
Exhibit P-101 CAE0339, p. 2 of 4.
Exhibit P-101 CAE0339, p. 2 of 4.
Exhibit P-101 CAE0339, p. 3 of 4.
Public Production 3428, p. 1 of 2 (entered on December 13, 2007 as a compendium of documents on
DVD as Exhibit P-391).
Exhibit P-101 CAE0339, p. 3 of 4.
Exhibit P-101 CAE0339, p. 3 of 4
Exhibit P-101 CAE0339, p. 3 of 4.
�Chapter II: Responses to the Bombing of Air India Flight 182
At the conclusion of the inquest, Hathaway reported that the coroner “appeared
to have made up his mind”109 that the disaster was most likely caused by a bomb.
The coroner considered instructing the jury to recommend closer scrutiny of
baggage at airports. Indeed, Garrow argued that deficiencies in airport security
had caused baggage to be interlined to Air India without confirmation that the
corresponding passengers were on board.110 In response, Whitehall attempted
to impose restrictions on the scope of the inquest. He argued that the coroner’s
powers were limited by legislation to determining the cause of death and identity
of the victims. He maintained that there were a number of possible causes for
the crash, that the inquest had not heard all the available evidence, that only
medical evidence had been presented and that another investigation with a
wider mandate was then in progress.111 He submitted that there was no evidence
to indicate that security failings at either the Montreal or Toronto airports had
caused the crash. This position was taken in spite of a confidential security audit
conducted in Canada in July 1985, which revealed significant security failings at
both airports. In addition to finding weak airside and aircraft security, the audit
noted that there was inadequate protection of checked baggage at Toronto’s
Pearson International Airport.112 Yet Whitehall asserted at the inquest that there
was “no basis for speculation unsupported by evidence.”113
In the end, Canada’s position at the inquest prevailed. Hathaway reported that,
as a result of the arguments made on behalf of the Government of Canada,
the coroner “ultimately accepted”114 Canada’s position and instructed the jury
that there was no conclusive evidence as to the cause of the crash and that no
recommendations should be made.115
On September 24, 1985, the final day of the inquest, an unprecedented review
of airport and airline security in Canada was released. The review had been
commissioned by the Government of Canada in response to the events of June
23, 1985.116 This review, known as the Seaborn Report, made recommendations
designed expressly to help Canadian aviation security prevent sabotage.117
2.1.5 India: Kirpal Commission
Because the Flight 182 bombing occurred over international waters, the
Government of India was designated as the investigative authority in accordance
with ICAO Annex 13, which dealt with aircraft accident investigations.118
The Honourable Mr. Justice B.N. Kirpal, Judge of the High Court of Delhi, was
109 Exhibit P-101 CAE0339, p. 3 of 4.
110 Exhibit P-101 CAF0878, p. 1 of 8.
111 Exhibit P-101 CAE0339, p. 3 of 4. Whitehall was likely referring to the work of the Kirpal Commission,
discussed below; see also Exhibit P-164.
112 Exhibit P-457, p. 19 of 27.
113 Exhibit P-101 CAE0339, p. 4 of 4.
114 Exhibit P-101 CAE0339, p. 4 of 4.
115 Exhibit P-101 CAE0339, p. 4 of 4.
116 Exhibit P-101 CAF0039, p. 1 of 10.
117 Exhibit P-101 CAF0039, p. 5 of 10.
118 Exhibit P-164, p. 3.
23
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Volume Four: Aviation Security
appointed by the Government of India to lead a formal investigation into the
causes and circumstances of the disaster.119 On February 26, 1986, after a lengthy
and thorough investigation, the Kirpal Commission presented a report.120
The Commission concluded that the detonation of a bomb on board the
Kanishka was the only plausible explanation for its disappearance:
After going through the entire record we find
that there is circumstantial as well as direct
evidence which directly points to the cause
of the accident as being that of an explosion
of a bomb in the forward cargo hold of the
aircraft. At the same time there is complete
lack of evidence to indicate that there was any
structural failure.121
While much of the report dealt with forensic findings and safety matters,
the Kirpal Commission recognized the need to address security issues. The
Commission directed its recommendations about aviation security to ICAO, IATA,
governments and industry. The recommendations aimed to improve security
and prevent explosives from being placed aboard commercial aircraft.122 To this
end, the report recommended that ICAO, IATA and state governments undertake
an ongoing review of established aviation security standards for preventing
explosives being placed aboard aircraft. The report called for the creation of a
system to monitor security measures implemented in airports around the world,
along with a means of reporting findings and suggesting improvements for each
airport studied.123 It also recommended that ICAO develop a “model clause” on
security, for use in bilateral air agreements, to govern the exchange of mutual air
traffic rights, and that ICAO consider establishing training standards for security
personnel.124 Both ICAO and IATA responded to these recommendations.125
The Kirpal Commission made comprehensive recommendations to address
the security deficiencies that it had identified as leading to the bombing
of Flight 182. Several recommendations pertained to security measures for
interlined passengers and their baggage, passenger-baggage reconciliation
and unaccompanied baggage:
• IATA should develop practical procedures for reconciliation of
interlined passengers and their baggage at intermediate airports;
• Interlining of checked baggage should not occur without a
confirmed reservation on the onward carrier flight;
119 See Volume Two: Part 2, Post-Bombing, Section 5.1, Early Government Response for an analysis of
Canada’s participation at the Kirpal Commission.
120 Exhibit P-164, p. 172.
121 Exhibit P-164, pp. 159-160.
122 Exhibit P-157, p. 78 of 135.
123 Exhibit P-164, p. 172, Recommendation 5.1(a) and (b).
124 Exhibit P-164, p. 172, Recommendation 5.2(a) and (b).
125 Exhibit P-157, pp. 88-89 of 135.
�Chapter II: Responses to the Bombing of Air India Flight 182
• The baggage of interlined passengers should be matched with
passengers by the onward carrier before being loaded onto the
aircraft;
• A passenger count should be done at the boarding gate and, in
the case of a passenger “No Show,” the passenger’s baggage must
be offloaded;
• All checked baggage, regardless of whether it has been screened
by X-ray machine or not, should be personally matched and
identified with the passengers boarding an aircraft, and any
baggage not so identified should be offloaded; and
• All unaccompanied bags should be placed aboard the aircraft only
after their contents have been physically checked, or alternatively,
after being placed in a decompression chamber and where the host
state is satisfied that the baggage is clean and the shipper has been
identified. 126
The Kirpal Commission also made recommendations relating to intelligence
communication during times of “high security threats”:
• Whenever a government becomes aware of a particular high risk
security threat, it should notify not only the airline at risk, but also
all connecting airlines to ensure that extra precaution can be
taken at potential points of introduction of interline baggage into
the system; and
• When an airline is aware of a high security threat, it should inform
the host state, and if possible and prudent to do so, other airlines
operating there.127
The Kirpal Commission warned against excessive reliance on technology. It
commented on the known failings of the available screening equipment.
Significantly, it recommended offloading checked baggage that had not been
matched with passengers, even if it had been subjected to X-ray screening. The
Commission explained:
…[E]xamination of the baggage with the help of
an X-ray machine has its own limitations and is
not fool proof. Some explosives hidden in Radios,
Cameras, etc. may not be readily detected by
such a machine. In fact an explosive not placed
in a metallic container will not be detectable by
an X-ray machine. Similarly, a plastic explosive
can be given an innocuous shape or form so as
to avoid detection by an X-ray. Reliance on an
X-ray machine alone may in fact provide a false
sense of security.128
126 Exhibit P-164, pp. 172, Recommendations 5.3, 5.4, 5.5, 5.8, 5.9, 5.11.
127 Exhibit P-164, pp. 172-174.
128 Exhibit P-164, p. 173, Recommendation 5.9.
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Volume Four: Aviation Security
In a separate recommendation, the Kirpal Commission singled out the
inadequacy of the PD-4 “sniffer” upon which Air India had placed sole reliance
for screening checked baggage on June 22, 1985, when the X-ray machine
in Toronto broke down: “…Effectiveness of the instrument known as PD-4 is
highly questionable. It is not advisable to rely on it.”129
The Commission recommended that airlines ensure that they have effective
backup equipment or procedures in the event of a breakdown of security
equipment.130
Many of the Kirpal recommendations, including passenger-baggage
reconciliation, were eventually adopted worldwide,131 and numerous other
recommendations were implemented by Canada.132
2.2 Canadian Response
2.2.1 Introduction
The Canadian response to the Air India bombing was swift. On June 23, 1985, the
day of the bombing, Transport Canada introduced additional security measures
for all international flights leaving Canada. These measures were implemented
by directing Canadian and foreign air carriers to amend their security programs,
rather than by adopting new regulations.133 The measures included:
• More rigorous screening of passengers and their carry-on baggage;
• The physical or X-ray inspection of all checked baggage (this
measure was later extended to domestic flights);134
• A 24-hour hold on cargo, except perishables from known shippers,
unless a physical search or X-ray inspection had occurred;
• The acquisition and deployment of 26 new explosives detector
units (then in the final stages of development and testing); and
• The acquisition and deployment of additional X-ray units for carryon baggage, hand-held metal detectors and walk-through metaldetector units.135
All checked baggage interlined to Air India flights was also to undergo physical
or X-ray inspection.136 It does not appear that this requirement was extended to
baggage interlined to other air carriers.
129
130
131
132
133
134
135
136
Exhibit P-436, p. 30; Exhibit P-164, p. 173, Recommendation 5.10.
Exhibit P-164, p. 174, Recommendation 5.12.
Exhibit P-157, p. 78 of 135.
Exhibit P-35, p. 20.
Exhibit P-157, p. 79 of 135.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4485.
Exhibit P-35, p. 19.
Exhibit P-263, Tab 14, p. 1 of 6.
�Chapter II: Responses to the Bombing of Air India Flight 182
When Transport Canada introduced these additional security requirements, air
carriers were initially required to conduct hand searches of all checked baggage
to be carried on international flights. This caused delays, and Transport Canada
recognized that the practice was not sustainable in the long term.137 Over the
months that followed, the application of the Transport Canada measures was
clarified.138 Additional Linescan II X-ray machines, with wider apertures, were
deployed to ensure that a combination of hand searching and X-ray scanning
of checked baggage was in place until passenger-baggage reconciliation could
be implemented.139
These measures recognized the need for enhanced security in the immediate
aftermath of the bombing, but they did not sufficiently address the problem
of bombs placed in unaccompanied baggage. When asked whether these
measures could have prevented the bombing, Jean Barrette, Director of Security
Operations at Transport Canada at the time of the Commission hearings,
responded “…No, obviously the reconciliation of passenger baggage…was
key.”140
Although Canada was instrumental at the international level in the days
following the bombing, steadfastly promoting mandatory passenger-baggage
reconciliation, it did not immediately implement the procedure itself.141
Passenger-baggage reconciliation had been used successfully in Canada by
KLM and CP Air in the context of a bomb threat in 1984.142 Reconciliation should
have been implemented by Air India in June 1985 because of the elevated threat
facing the airline.
The Commission heard evidence that it was not possible for all airlines to
implement this measure immediately following the Air India bombing.143 The
simplest form of reconciliation would have been the identification of baggage
by passengers before they boarded, as done in 1984. While this was feasible
at smaller airports, major airports required some form of automation.144
Manufacturers could not immediately provide the appropriate technology,
an inability reflected in the delayed implementation of Standard 5.1.4 of
ICAO’s Annex 17.145 Nevertheless, Canada was the first ICAO member country
to require passenger-baggage reconciliation on international flights before
the publication of the ICAO standard. Canada later extended the measure to
domestic flights.146
137
138
139
140
141
142
143
144
145
146
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4485.
Exhibit P-263, Tab 14, p. 1 of 6.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4485.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4509.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4477
Exhibit P-101 CAF0637, pp. 18-19.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4478-4479.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4478.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4479.
Exhibit P-35, p. 20.
27
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Volume Four: Aviation Security
Measures used in place of passenger-baggage reconciliation did not adequately
address the threat of bombs in checked baggage, let alone unaccompanied
baggage. X-ray machines provided only black and white images147 and were
known to be a largely cosmetic form of security.148 The Kirpal Commission
recognized this,149 and Wallis testified that, even with skilled operators, the value
of X-rays in screening for explosives was limited:
…[X]-rays were not designed as bomb detecting pieces
of equipment. They were designed to identify images. If
you were successful in hiding an image, then the screener
wouldn’t pick it up. That’s always assuming the screener had
been trained to pick up images and was conscientious in his
program.150
This Commission heard evidence that even hand searches required skilled and
knowledgeable screeners, and that electronic equipment in baggage, which
could conceal explosives, would need thorough inspection.151 It was unlikely
that sufficiently skilled screening personnel would be immediately available to
handle the sudden influx of X-ray machines for screening checked baggage.
Both Wallis and Dr. Peter St. John, a former professor of international relations
with expertise in air terrorism, warned of the danger of implementing security
measures too rapidly. St. John warned that confusion could result “…when you
do too much too quickly.”152 Wallis testified that, to be effective, emergency
plans needed to be worked out in advance:
If you have a set of procedures that are working on a day-today basis, you can’t suddenly ratchet them up to become two
or three times as effective overnight. That doesn’t work. That
creates chaos because the airport won’t have the staff to do
this. The airlines won’t have the staff. Queues build up. They go
outside the terminal building. You’ve created a new target of
opportunity for terrorists….
You have to be flexible but governments and airlines have
to work together on this. You can’t be flexible by receiving
a dictate from government. That is a recipe for disaster. The
governments and the airlines must have worked in advance on
flexibility so that when the government feels the need to bring
147
148
149
150
151
152
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4509.
Wallis, Lockerbie, p. 12.
Exhibit P-164, p. 173, Recommendation 5.9.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4256.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4418-4419.
Testimony of Peter St. John, vol. 37, May 31, 2007, p. 4510.
�Chapter II: Responses to the Bombing of Air India Flight 182
something new in, it can be put in as quickly as possible but
without creating the hazards that we’ve seen….153
The danger posed by misplaced reliance on X-ray equipment may have been
mitigated somewhat by the deployment of explosive vapour detection (EVD)
units across Canada immediately after the Air India bombing. Designed for
screening hold baggage, the units had been under development since the
1970s.154 In the aftermath of the bombing, Transport Canada expedited the
installation of 26 units at major Canadian airports. This equipment was known
to be effective in explosives detection and became increasingly sophisticated
and reliable in the years to follow.155 As early as the late 1980s, the Canadiandeveloped EVD technology became the world standard.156
In addition to reconciliation procedures, Transport Canada reported in a briefing
to the Hon. Bob Rae that it had already acted on several recommendations
from the Kirpal Commission. These included: continuous monitoring by
trained security inspectors at airports; participation in ICAO’s AVSEC Panel;
participation in international technical groups, including those involving
explosives-detection technologies; continuous assessment of world events that
could affect international and domestic aviation security; and assessment and
dissemination of information received from intelligence agencies worldwide.157
Transport Canada continued to improve its security regime in the late 1980s and
1990s by implementing further Kirpal Commission recommendations. In 1989,
Canada adopted a new “model clause” on security as part of its basic language
governing bilateral air agreements. Transport Canada also required that any
contractual changes between private security companies and air carriers not
adversely affect screening standards or performance.158 Further improvements
to Canada’s aviation security regime included:
• Consolidating security functions in Transport Canada through the
creation of a dedicated, multi-modal, multi-functional group, now
known as the Security and Emergency Preparedness Directorate;
• Increasing the complement of security inspectors and personnel
dedicated to the Directorate;
• Funding ($5 million) for the development of new technologies;
• Performing a general overhaul of the regulatory framework,
including the creation of a four-level alert system, with security
measures adjusted accordingly; and
• Increased and more efficient sharing of security intelligence
information with domestic and international partners.159
153
154
155
156
157
158
159
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4508.
Testimony of Jean Barrette, vol. 38, June 1, 2007, pp. 4563-4564.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4529.
Testimony of Jean Barrette, vol. 38, June 1, 2007, pp. 4563-4564.
Exhibit P-263, Tab 13, p. 2 of 4.
Exhibit P-263, Tab 13, pp. 3-4 of 4.
Exhibit P-263, Tab 13, p. 3 of 4.
29
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Volume Four: Aviation Security
Alongside the Kirpal Commission’s investigation in India, three important
studies were undertaken in Canada to address the destruction of Air India Flight
182 and aviation security:
• A 1985 security audit of the international airports in Toronto,
Montreal and Vancouver, conducted in the weeks after the
bombing. It revealed significant deficiencies in several areas,
including access to restricted and airside areas of airports, and
the security of air cargo, mail and the aircraft themselves. It also
identified a need for improved monitoring of security procedures
and better trained security personnel;
• A Canadian Aviation Safety Board (CASB) study; its report, released
in January 1986, was written to assist the Kirpal Commission; and
• An additional study commissioned by the Government of
Canada to make a more holistic assessment of aviation security,
since the CASB’s mandate was limited to the disaster itself.160
This resulted in a far-reaching and widely-praised report,
known as the Seaborn Report, released in September 1985.
Foremost among its recommendations, consistent with Canada’s
position at the meeting of ICAO’s Ad Hoc Committee of Experts
in the days following the tragedies and with the Kirpal
Commission’s later recommendations, was that checked baggage
not be carried on international flights unless the corresponding
passenger was also on board.161
Although the CASB, Kirpal and Seaborn investigations influenced Canada’s
aviation security program,162 many of the weaknesses they exposed remain.163
2.2.2 1985 Airport Security Audit
On July 4, 1985, the Deputy Minister of Transport requested an audit164 of
Pearson, Mirabel and Vancouver International airports to assess delivery of the
Civil Aviation Security Program (CASP) in place at the time and to determine
whether Transport Canada, the RCMP and air carriers were fulfilling their
responsibilities.165 The CASP was based on the concept of “…clean aircraft, clean
160
161
162
163
164
Exhibit P-35, p. 20.
Exhibit P-35, p. 20.
Exhibit P-157, p. 75 of 135.
See Section 3.8, which discusses the current gaps in civil aviation security in Canada.
The audit report contains an introductory note: “Report prepared for Department of Justice Counsel
Assessing the Potential for Litigation.” Indeed, throughout this Commission’s proceedings and after
the close of hearings, the Attorney General of Canada exerted a claim of solicitor-client privilege
over this document and did not permit its disclosure or use by the Commission, despite protracted
negotiations with the Commission. It was not until February 2009 that the Attorney General agreed to
release the audit report in full. Although the document was subsequently disclosed to the parties, the
result of the delay meant that its full content was not available for examination by all parties during
the course of the public hearings: Exhibit P-457.
165 Exhibit P-457, p. 3 of 27.
�Chapter II: Responses to the Bombing of Air India Flight 182
passengers, clean baggage, clean cargo and clean mail.”166 The Internal Audit
Branch of Transport Canada conducted the audit and reported its findings
on July 25, 1985.167 The audit focused on four main areas: the screening of
passengers, flight crew, baggage, mail, aircraft and cargo; the patrolling of airside
areas; the security pass system; and the provision of physical security facilities
and equipment.168 The audit revealed significant deficiencies in each of these
areas. Contrary to the CASP directive,169 the audit was unable to determine the
adequacy of air carrier screening of cargo, mail and aircraft, because there were
no applicable standards or regulations.170 The audit report concluded that “…
only part of aircraft loads can be considered to be clean in terms of the CASP,”171
because cargo, mail and flight crew baggage were not screened.172 This is also
one of the major findings of the present Commission.
The audit reported such weaknesses as unauthorized access to restricted areas,
including cargo and mail warehouses and airside portions of airport terminals.
The audit also found deficiencies in the monitoring of security standards,
problems with airport and air carrier security plans, weaknesses in addressing
different levels of security and inadequate training of security personnel.173
Problems with access control included unlocked gates, insecure doors, nonstandard fencing, unprotected aircraft and insufficient control and inspection
of identification passes.174 The audit noted that several thousand identification
passes could not be accounted for because they had been lost or stolen or not
returned by the recipients.175 In some instances, access doors could be opened
with credit cards, or entry codes were written on the doors themselves.176
“Sterile” areas were sometimes compromised because unscreened passengers
from feeder airports were allowed to enter them.177
The audit found deficiencies in the daily monitoring of security measures and
inspection procedures and in follow-up action related to security reviews.178
Some airport security plans were outdated, and emergency/disaster plans did
not define stakeholder responsibilities at different levels of threat.179 At Pearson
International Airport in particular, checked baggage security was inadequate.
Control over baggage tags was inconsistent and control over access to accepted
baggage awaiting loading was weak.180 Security personnel were generally
insufficiently trained.181
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
Exhibit P-457, p. 6 of 27.
Exhibit P-457, p. 1 of 27.
Exhibit P-457, p. 5. of 27.
Exhibit P-457, p. 10 of 27.
Exhibit P-457, p. 6 of 27.
Exhibit P-457, p. 24 of 27.
Exhibit P-169, p. 52 of 202.
Exhibit P-101 CAF0695, p. 1 of 3.
Exhibit P-101 CAF0695, p. 1 of 3.
This was noted at Toronto’s Pearson International Airport: Exhibit P-457, p. 13 of 27.
Exhibit P-457, p. 14 of 27.
This was specifically noted at Toronto’s Pearson International Airport: Exhibit P-457, p. 18 of 27.
Exhibit P-101 CAF0695, p. 2 of 3.
Exhibit P-457, p. 13 of 27.
Exhibit P-457, p. 19 of 27.
Exhibit P-457, pp. 17-18 of 27.
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Volume Four: Aviation Security
A post-audit Transport Canada memorandum addressed to the Deputy Minister
proposed a plan to address the major deficiencies. Both short- and long-term
initiatives were included:
• Development of new cargo and mail screening requirements;182
• Facility improvements and repairs;
• Increased monitoring of access points by security personnel and
airlines;
• New regulations to enhance enforcement of access control through
sanctions and fines;
• Increased regulatory inspections and spot checks of access points;
• Strengthened standards, guidelines and follow-up procedures
for day-to-day monitoring of security measures, including air cargo
security;
• Updated airport and air carrier security plans and implementation
of test exercises;
• Development of staffing requirements for different threat levels;
and
• Establishment of a security awareness program for airport workers
and users.183
The deficiencies were to be corrected on a high-priority basis,184 but many
remain today. In particular, air cargo and mail, as well as restricted and airside
areas of airports, remain vulnerable.185 In addition, stakeholder security plans,
training of security personnel and security awareness have been singled out as
still needing improvement.
2.2.3 Seaborn Report
Because of the Air India bombing, the Government of Canada requested the
Interdepartmental Committee on Security and Intelligence to undertake an
overall review of airport and airline security in Canada, under Intelligence and
Security Coordinator Blair Seaborn.186 When it was released on September 24,
1985, the Seaborn Report was widely praised at home and abroad as a seminal
document in civil aviation security. Jim Marriott, Director of Transport Canada’s
Aviation Security Regulatory Review at the time of the Commission hearings,
spoke of the report’s importance:
182
183
184
185
Exhibit P-101 CAFO555, p. 9 of 10.
See, generally, Exhibit P-101 CAF0695.
Exhibit P-101 CAF0695, p. 3 of 3.
See Sections 3.8.1 and 3.8.2, which discuss the deficiencies in air cargo and airport security,
respectively.
186 Exhibit P-101 CAF0039, p. 1.
�Chapter II: Responses to the Bombing of Air India Flight 182
The Seaborn Report really became a strategic plan for
the Department for many years to follow. It outlined a
large number of practices…to further enhance aviation
security. And the Department very aggressively pursued
implementation of all recommendations in the Seaborn Report
over the course of the coming years, in conjunction with and in
coordination with other federal government departments that
had security responsibilities, and, of course, in conjunction and
in coordination with the aviation industry, airlines, airports and
labour groups with airports and airlines for that matter.
So it was really a roadmap to take aviation security in Canada
from where it was in the aftermath of 1985 to a new and much
higher ground. I think it’s also important to recognize that not
only was it a significant report for Canadian aviation security
but also for international aviation security.
…[T]he recommendations implemented by Canada became
standards…or benchmarks against which international
aviation security evolved and looked to.187
Indeed, the report highlighted several general principles that remain relevant
today. It cautioned that terrorism should not be permitted to interfere unduly
with the activities of daily life, but recognized the vulnerability of air travellers
to terrorist attacks.188 It advised that the needs of security must be balanced
with the need to facilitate travel.189 The report emphasized the importance of
sharing and integrating security information, integrating decision-making and
establishing clear lines of authority.190 It called for greater security awareness,
a proactive approach,191 effective coordination among stakeholders in aviation
security192 and practical means for improving security. The report recommended
a graduated system of security measures, to be adjusted according to the level of
threat,193 with rigorous procedures established even for normal threat levels.194
During the work of the Commission, many experts and stakeholders stressed
similar measures as components of strong aviation security.
The Seaborn Report identified checked baggage and air cargo as particularly
vulnerable to sabotage. It outlined screening measures for both, with adjustments
made according to levels of threat: normal, enhanced and high.195 As discussed,
one of the most significant changes resulting from the Seaborn Report was
187
188
189
190
191
192
193
194
195
Testimony of Jim Marriott, vol. 37, May 31, 2007, pp. 4504-4505.
Exhibit P-101 CAF0039, p. 7.
Exhibit P-101 CAF0039, p. 1.
Exhibit P-157, p. 75 of 135.
Exhibit P-101 CAF0039, p. 1.
Exhibit P-101 CAF0039, p. 3.
Exhibit P-101 CAF0039, p. 9.
Exhibit P-101 CAF0039, p. 4.
Exhibit P-101 CAF0039, pp. 3-4.
33
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Volume Four: Aviation Security
passenger-baggage reconciliation, which Seaborn considered a “better frontline defence against sabotage” than X-raying checked baggage during normal
threat levels.196 Instead, the report recommended supplementing reconciliation
with a checked baggage “profile” that airline check-in personnel would apply.
Additional measures, including X-ray inspection, explosives detection dogs,
hand searching of checked baggage and hijacker “profiles,” were suggested for
enhanced and high levels of threat.197
The report noted that terrorists could use small cargo parcels to target specific
aircraft, and suggested that these be X-rayed even in normal threat situations.198
The report recommended subjecting larger cargo to various methods of
inspection or to a hold period, as appropriate, during enhanced threat level
situations. It stated that new technology for detecting explosives vapour would
likely be available within two to three years, and encouraged the continued
development of technology for enhancing aviation security, as well as the use of
explosives detection dogs.199 For high threat levels, the report advocated either
a ban on cargo or refusal of all cargo that could not be thoroughly inspected.200
For both baggage and air cargo, no exceptions to the rules were to be tolerated
when threat levels were enhanced or high.201
In 2009, air cargo remains largely unscreened and technology for this purpose
is still being developed.
The Seaborn Report did not recommend removing responsibility for screening
passengers and baggage from air carriers.202 Instead, it recommended adequate
training for those performing screening.203 The CATSA Act Advisory Review Panel
(CATSA Advisory Panel) was asked in November 2005 to review the civil aviation
security breaches associated with the Air India bombing. It produced a report,
Air India Flight 182: Aviation Security Issues, in 2007. The report characterized the
screening of passengers and baggage by air carriers as a “serious weakness”
that was rectified only after the attacks of September 11th and the creation of
CATSA.204
The 2007 CATSA Advisory Panel report also identified shortcomings in airport
security. It recommended full screening of passengers and materials arriving
at international airports from less secure airfields. In addition, it recommended,
as a condition of employment, security and criminal background checks for all
airside employees and for others with access to sensitive areas of the airport
196
197
198
199
200
201
202
203
204
Exhibit P-157, p. 76 of 135.
Exhibit P-101 CAF0039, p. 4.
Exhibit P-101 CAF0039, p. 4.
Exhibit P-101 CAF0039, p. 4.
Exhibit P-101 CAF0039, p. 4.
Exhibit P-101 CAF0039, p. 5.
Exhibit P-157, p. 76 of 135.
Exhibit P-101 CAF0039, p. 5.
Exhibit P-157, p. 67 of 135.
�Chapter II: Responses to the Bombing of Air India Flight 182
or to aircraft.205 The report advised airport management and air carriers to
maintain a high level of security awareness throughout the airport and on the
airfield. It noted that the public could contribute to enhancing security.206 It
described vigilance as key to effective security, meaning careful auditing and
regular testing of the system.207
Intelligence was not viewed as reliable for predicting and thwarting specific
acts of terrorism. Rather, the main value of intelligence was its usefulness in
determining the level of security required for the perceived threat.208 Thus,
the report recommended a graduated, multi-level system of security, with
appropriate measures at each level.209
In terms of oversight and auditing, the report recommended that the Department
of Transport, in consultation with the Solicitor General, report annually to the
Prime Minister on the adequacy and effectiveness of the security regulations
in place. It also called for reporting about the existence of an up-to-date “warbook” at each airport for managing terrorist incidents.210
Many of the Seaborn Report’s recommendations required major changes to
Canada’s aviation security regime. Some recommendations were immediately
followed. However, it was recognized that others would need to be implemented
over the coming years.211 Of the Seaborn Report’s 15 principal recommendations,
10 were directed towards Transport Canada and procedures for strengthening
aviation security. The CATSA Advisory Panel observed that all 15 were accepted in
principle and eventually addressed to some degree.212 As a result of the Seaborn
Report, Canada was the first ICAO member to require passenger-baggage
reconciliation on international (and, later, domestic) flights, comprehensive
background checks for airport workers, removal of coin-operated baggage
lockers from major airports and bans on the use of cameras around security
checkpoints.213
The Seaborn Report had advocated a more prescriptive (as opposed to
performance-based) regulatory framework because of the magnitude of the
systemic failures involved in the Air India tragedy. The CATSA Advisory Panel
noted that, given the threat and lack of preparedness, this was an appropriate
response at the time. However, the Panel viewed the prescriptive legacy of the
Seaborn Report as leading to an overly-detailed, rigid security regime that does
not allow for the flexibility required in today’s dynamic threat environment.214
205
206
207
208
209
210
211
212
213
214
Exhibit P-101 CAF0039, pp. 5-6.
Exhibit P-101 CAF0039, p. 6.
Exhibit P-101 CAF0039, p. 7.
Exhibit P-101 CAF0039, p. 2.
Exhibit P-101 CAF0039, p. 9.
Exhibit P-101 CAF0039, p. 7.
Testimony of Jim Marriott, vol. 37, May 31, 2007, pp. 4506-4507.
Exhibit P-157, p. 75 of 135.
Exhibit P-263, Tab 13, p. 3 of 4.
Exhibit P-157, p. 75 of 135.
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Volume Four: Aviation Security
The Seaborn Report also addressed Canada’s performance in civil aviation
security. It acknowledged that, before June 23, 1985, the emphasis in aviation
security had been on anti-hijacking measures. It concluded that airport and
airline security in Canada had “…by and large been adequate and in line with
international standards.”215 This finding is not surprising, not only because ICAO’s
Annex 17 sets only minimum standards, which developed countries are expected
to exceed,216 but also because Annex 17 was itself inadequate at the time of the
Air India bombing.217 The report noted that Transport Canada had responded
quickly to the events of June 23, 1985, initiating several comprehensive security
measures on all international flights leaving Canada. The report found that the
Government was instituting measures to address shortcomings identified by
the 1985 security audit of three major airports.218
The Seaborn Report included a statement that, at the time of its completion,
there was no intelligence to corroborate the theory that a bomb had destroyed
Air India Flight 182.219 Nevertheless, its focus was on combatting sabotage
against civil aviation.220
There is no doubt that the Seaborn Report played a pivotal role in enhancing
aviation security in Canada.221 However, the CATSA Advisory Panel noted the
striking similarities between its own recommendations and those of the Seaborn
Report more than two decades earlier.222 Despite the broad recommendations
of the Seaborn Report, subsequent improvements to Canada’s security regime
focused primarily on passenger and baggage security. Few improvements were
made to the security of air cargo and mail, and those directed at airport security
were not sufficient. Consequently, aviation remains vulnerable to attack.223
2.2.4 Canadian Aviation Safety Board Investigation
The Canadian Aviation Safety Board (CASB) completed its investigation of the Air
India tragedy on January 22, 1986.224 This investigation was undertaken to assist
the Kirpal Commission in India. Its objective was to identify safety deficiencies
and to recommend corrective measures to regulatory and enforcement
authorities.225 Much of the report dealt with the forensic evidence related to the
aircraft wreckage and the possible safety and structural causes of the disaster.
The CASB report concluded:
215
216
217
218
219
220
221
222
223
224
Exhibit P-101 CAF0039, p. 7.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4218.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Exhibit P-101 CAF0039, p. 3.
Exhibit P-101 CAF0039, p. 2.
Exhibit P-101 CAF0039, p. 1.
Exhibit P-157, p. 75 of 135.
See Exhibit P-157, pp. 118, 120 of 135.
Exhibit P-157, p. 91 of 135.
See Volume Two: Part 2, Post-Bombing, Section 5.1, Early Government Response for an analysis of
Canada’s subsequent use of the CASB Report at the Kirpal Commission.
225 Exhibit P-167, Title page.
�Chapter II: Responses to the Bombing of Air India Flight 182
There is considerable circumstantial and other evidence to
indicate that the initial event was an explosion occurring
in the forward cargo compartment. This evidence is not
conclusive. However, the evidence does not support any other
conclusion.226
Like Seaborn, the CASB report found that the Canadian aviation security
arrangements then in place met or exceeded international standards. Also like
the Seaborn Report, it emphasized that the focus had been placed on preventing
the boarding of weapons, including explosive devices, in hand baggage, and
that the screening of checked baggage was undertaken only in circumstances
of heightened threat.227
The CASB report made several findings of fact about the security circumstances
of the events of June 22 and 23, 1985. It concluded that the security numbering
system used in Toronto did not prevent the unaccompanied interlined baggage
from being loaded onto the flight, and that the effectiveness of the explosives
detector used by Air India was in doubt.228 The report found that, had passengerbaggage reconciliation been performed in Toronto, the unaccompanied
baggage “would have been detected” and “…airline procedures would have
prevented the placement of the suitcase on the aircraft.”229
2.2.5 Changes to Legislative and Regulatory Framework
Concluding a multi-year effort, the Aeronautics Act was amended on June 28,
1985 – just days after the Air India bombing. These amendments were not
directly related to the bombing. Most related to safety and enforcement, and
some referred to security.230 The amendments laid the foundation for what was
to become Canada’s modern aviation security and enforcement regime.231
The security amendments to the Aeronautics Act gave the Minister of Transport
greater regulation-making authority over airport operators and persons carrying
on activities at airports. The CATSA Advisory Panel explained this authority:
Authority to make regulations applying to Canadian and
foreign aircraft was no longer limited to screening activities,
but could extend to a wide variety of other security activities
required to protect passengers, crew members, aircraft and
other aviation facilities. The new rules were expressed in the
Air Carrier Security Regulations and the Aerodrome Security
Regulations. The amendments also permitted the Minister of
226
227
228
229
230
231
Exhibit P-167, p. 58.
Exhibit P-167, p. 54.
Exhibit P-167, p. 59.
Exhibit P-167, pp. 56-57.
Exhibit P-157, p. 79 of 135.
Exhibit P-263, Tab 15, p. 1 of 5.
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Volume Four: Aviation Security
Transport to make confidential orders, called “measures,” to
deal with such security-sensitive issues as security of persons
and their carry-on baggage and cargo, as well as security
screening equipment.232
Unauthorized disclosure of these confidential security measures was an
offence.233
In December 1985, amendments were made to the Civil Aviation Security
Measures Regulations and its corresponding Order and to the Foreign Aircraft
Security Measures Regulations and Order. These amendments authorized the
Minister to approve security procedures for a broad range of security purposes
and required air carriers to carry them out. In February 1986, Transport Canada
issued the first edition of approved security procedures applicable to foreign
and domestic air carriers. They prescribed the flights that required screening and
detailed the screening procedures required. They also addressed the security
of passengers, carry-on baggage, checked baggage and cargo, and included
measures applicable to security equipment and security officers. All screening
equipment used by air carriers required the Minister’s approval.234 Passengerbaggage reconciliation counts were required for checked baggage, and the
baggage was to be removed if the passenger was not on board.235
In 1987, the Air Carrier Security Regulations replaced the Civil Aviation Security
Measures Regulations and Foreign Aircraft Security Measures Regulations and
the corresponding Orders associated with each regulation. New Aerodrome
Security Regulations were introduced at the same time. The Air Carrier Security
Regulations and Aerodrome Security Regulations authorized the Minister to
approve air carrier security procedures during periods of normal and increased
levels of threat. They required air carriers and airport operators to submit written
security programs containing the approved procedures and formalized many
internal policies and procedures adopted by Transport Canada as owner and
operator of the international and major domestic airports in Canada.236
The first set of approved security measures for aerodromes was issued in 1987.237
It dealt with implementing background checks for employees with regular
access to restricted areas and flowed from the recommendations of the Seaborn
Report. The Aerodrome Restricted Area Access Clearance Program (ARAACP)
instituted checks of criminal backgrounds and criminal associations, in addition
to the credit checks conducted by Transport Canada.238
A 1990 Federal Court decision struck down the ARAACP. Transport Canada then
corrected what was essentially a legal and drafting problem with the ARAACP
232
233
234
235
236
237
238
Exhibit P-157, p. 79 of 135.
Exhibit P-263, Tab 14, p. 1 of 6.
Exhibit P-263, Tab 14, p. 2 of 6.
Exhibit P-157, p. 80 of 135.
Exhibit P-157, p. 80 of 135.
Exhibit P-263, Tab 14, p. 3 of 6.
Exhibit P-157, p. 86 of 135.
�Chapter II: Responses to the Bombing of Air India Flight 182
by making two new orders – the Air Carrier Security Measures Order and the
Aerodrome Security Measures Order. These orders, by reference, incorporated
approved security measures for air carriers and aerodromes, including the
ARAACP.239
2.2.6 Changes in Oversight
2.2.6.1 Roles and Responsibilities
The following roles and responsibilities in Canada’s civil aviation security program
were prescribed under the June 28, 1985, amendments to the Aeronautics Act:
The Minister of Transport was responsible for aviation security policy, the
regulatory framework and compliance monitoring;
• Airport managers, who were employees of Transport Canada,
were responsible for implementing the security measures and
procedures prescribed under the Aerodrome Security Regulations
and the Aerodrome Security Measures, including the preparation of
security and emergency plans and procedures;
• All commercial air carriers with flights into and out of Canada were
responsible for implementing the security measures and
procedures prescribed under the Air Carrier Security Regulations
and the Air Carrier Security Measures, and for providing the Minister
with an Air Carrier Security Plan; and
• The RCMP was responsible for policing at Canadian international
airports and some major domestic airports.240
As the CATSA Advisory Panel observed, the key to any effective security regime
is the clear delineation, communication and application of policies and rules
by those responsible for their implementation. After the Air India bombing,
a Transport Canada task force recommended the establishment of a multimodal, multi-functional transportation security directorate to oversee security
divisions, including intelligence, for all modes of transportation. The Security and
Emergency Preparedness Directorate was created in July 1986, and was given
responsibility for policy development, the transportation security clearance
program and security training guidelines for inspectors and the industry.241
2.2.6.2 Inspection and Enforcement
The Transport Canada task force recommended deploying a dedicated team of
security inspectors across the country to monitor and inspect airport and air
carrier field operations, and to take enforcement action when they saw violations
of legislation or regulations. The mandate to monitor, inspect and enforce was
239 Exhibit P-263, Tab 14, p. 3 of 6.
240 Exhibit P-157, p. 82 of 135.
241 Exhibit P-157, pp. 82-83 of 135.
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Volume Four: Aviation Security
carried out in various ways: inspections of air carriers and airports; monitoring
and testing of screening procedures; monitoring and inspection of cargo
facilities, air terminal facilities and airside access controls; and certification and
designation of security officers. Under the Aeronautics Act, inspectors had the
authority to inspect, to enter business premises, to search and seize, to detain
an aircraft and to levy “administrative monetary penalties” for non-compliance
with regulations or measures.242
Transport Canada undertook a more aggressive and cyclical security inspection
program of air carriers and airports, based on threat assessments and consistent
with international obligations. By 1990, Transport Canada’s Security Inspection
and Compliance Branch included about 30 security inspectors.243
At the heart of the Department’s aviation security enforcement philosophy
was “…the conviction that aerodromes and air carriers would find voluntary
compliance with regulations and measures to be in their self-interest, as well
as in the public interest.”244 Where voluntary compliance was not forthcoming,
enforcement action occurred in a manner that attempted to be fair, consistent
and uniform across all regions.245 Voluntary compliance was encouraged and
supported through education, publicity and the presence of inspectors in the
field. The intention of the inspection and enforcement framework was to create
conditions where voluntary compliance with regulations was “…the logical,
desirable and economically feasible choice for the regulated community.”246
According to Transport Canada, this was a new program designed to provide a
wide range of flexible, proactive and proportional options to secure compliance.
Inspectors supported the program by carrying out their responsibilities in the four
core areas of activity: prevention, detection, investigation and enforcement.247
Seminars and presentations were delivered to individuals, industry groups and
outside agencies upon request.248 Publicity programs were designed to increase
aviation security awareness and to prevent security violations.249 Providing
advice on security matters became an integral component of the day-to-day
business of security inspectors.250
242
243
244
245
246
247
248
249
250
Exhibit P-157, p. 83 of 135.
Exhibit P-157, p. 83 of 135.
Exhibit P-263, Tab 15, p. 3 of 5 [Emphasis in original].
Fairness in the enforcement context meant that: the Department’s inspection and enforcement
manual were to be made available for public scrutiny to the fullest extend possible, without
compromising national security; industry was to be consulted on an ongoing basis, with senior
departmental officials accessible to explain the program and receive suggestions for improvement;
inspectors were not to exceed their delegated authority in carrying out their duties and were required
to declare any apparent or actual conflicts of interest; voluntary compliance was to be encouraged
and supported through education, publicity and inspector presence in the field; minor violations
were to be handled leniently at first instance, through administrative rather than prosecutorial action;
and violations that were pre-meditated or were marked by indifference were to be dealt with
vigorously. See Exhibit P-263, Tab 15, pp. 3-4 of 5.
Exhibit P-263, Tab 15, p. 4 of 5.
Exhibit P-263, Tab 15, p. 4 of 5.
Exhibit P-157, p. 84 of 135.
Exhibit P-263, Tab 15, p. 4 of 5.
Exhibit P-157, p. 84 of 135.
�Chapter II: Responses to the Bombing of Air India Flight 182
If a security violation occurred, inspectors had a range of enforcement options:
• Emergency action, including detention of aircraft, denial of air
traffic control clearance, or emergency suspension of a Canadian
aviation document, where circumstances created an immediate
threat to aviation security and the public interest;
• Judicial action, by summary conviction prosecution or, upon advice
of Crown counsel, by prosecution by indictment; or
• Administrative action, with a series of proportional and graduated
responses, beginning with letters of enforcement, proceeding to
the imposition of administrative monetary penalties and
appearance before a specialized administrative tribunal, and ending
with the suspension or cancellation of a Canadian aviation
document, or the Minister’s refusal to renew.251
2.2.7 Changes in Training
Transport Canada created a joint industry-government training task force in
response to the Air India bombing. This resulted in improved training programs,
certification and inspection standards and testing of passenger screening
personnel. Air carriers were responsible for training screening personnel,
and Transport Canada was responsible for providing the training materials.252
Transport Canada developed an educational program to ensure a sound
knowledge of civil aviation security legislation and the consequences of noncompliance. A training component was designed for pre-board screening
personnel, including both practical and written examinations to assess screening
officer qualifications.253 The tests became more difficult, more extensive, and had
a higher pass mark. Transport Canada reported that there were a great number
of failures initially, and that these individuals were removed from active duty.254
The new training programs were also directed at supervisors and trainers.255 In
addition, security training programs were developed for air traffic controllers,
flight service station operators, airside employees, passenger agents, pilots
and flight crews. Transport Canada provided training and awareness programs
for its own airport managers and workers, as it owned and managed most
major airports in Canada at the time. In addition, airport security committees
met more frequently and provided security updates to airport workers on a
regular basis.256 In October 1988, Transport Canada retained three education
and training specialists to professionalize the security inspectors’ occupational
certification program.257
251
252
253
254
255
256
257
Exhibit P-263, Tab 15, p. 5 of 5.
Exhibit P-157, p. 84 of 135.
Exhibit P-157, p. 84 of 135.
Exhibit P-263, Tab 16, p. 1 of 5.
Exhibit P-157, p. 84 of 135.
Exhibit P-157, p. 85 of 135.
Exhibit P-263, Tab 16, p. 1 of 5.
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Volume Four: Aviation Security
2.2.8 Enhancements in Security Systems and Equipment
By 1985, Transport Canada was already testing explosive vapour detection
(EVD) units for hold bag screening, but had not yet deployed them in airports.
Immediately after the Air India bombing, the Department expedited the
acquisition and installation of 26 units at major airports. Though Transport
Canada initially trained its own security officers to operate the EVD units, the
RCMP assumed responsibility for training and operating the units in 1987. In
1995, the first series of EVD units were replaced with newer, enhanced units
that were portable and that could detect plastic explosives. In 1997, the notfor-profit Air Transport Security Corporation, which was funded by the airlines
to deliver screening on their behalf, relieved the RCMP of its responsibility for
operating EVD units when it took over the entire screening function on behalf
of air carriers.258
Air carriers were responsible for operating and manning the security equipment,
which consisted of walk-through and hand-held metal detectors and devices
for screening carry-on baggage. Transport Canada initially maintained the
equipment. It later transferred its maintenance role to the Air Transport Security
Corporation, but before that upgraded the X-ray equipment at 28 major
airports from black and white to “dual-energy” colour capable of detecting both
explosives and organic material.259
After 1985, additional facilities and systems were established, and equipment
purchased, to increase protection of restricted areas and improve passenger
and baggage screening. These measures included electronic surveillance
systems, key card access control systems, enhanced communication systems,
and upgraded fences, security doors and gates. Additional security measures
at perimeter access points were also implemented, with upgraded signage and
security guards at access gates to collect identifying information from vehicles
and their occupants.260
As well, Transport Canada’s research and development program focused on
projects to improve aviation security, particularly in those areas exploited by
terrorists in the Air India tragedy. Projects included X-ray pattern recognition,
enhancement of trace explosives detection equipment, creating walk-through
and X-ray explosives detection equipment and automating the passengerbaggage reconciliation process.261
2.2.9 Conclusion
The Air India bombing demonstrated the inadequacy of the anti-sabotage
measures in place at the time. This led to a transformation of the Canadian
and international civil aviation security regimes. Annex 17 to the Chicago
258
259
260
261
Exhibit P-157, p. 85 of 135.
Exhibit P-157, pp. 85-86 of 135.
Exhibit P-157, p. 86 of 135.
Exhibit P-157, p. 86 of 135.
�Chapter II: Responses to the Bombing of Air India Flight 182
Convention was completely revised to better address the threat of sabotage,
and the Canadian regime was overhauled, with changes to its regulations, an
improved system of inspection and enforcement, a clarification of roles and
responsibilities, and enhancements to screening technologies. Transport Canada
was also instrumental in securing important changes at the international level, in
particular the adoption of passenger-baggage reconciliation as an international
standard.
The international and domestic responses to the bombing were impressive in
many ways, but also sometimes flawed. Although Annex 17 required passengerbaggage reconciliation through the adoption of Standard 5.1.4, this standard
was imperfect. The new standard did not address an extraneous bag infiltrating
the system – the situation that Air India faced in June 1985. As well, the wording
of the Standard was unclear, leading some in the civil aviation community to
argue that security controls were not required following the discovery of an
unaccompanied bag if some type of screening of the bag for prohibited items
had been conducted beforehand.
The immediate emergency response in Canada was also deficient, with
continued reliance on X-ray technology that was known to be ineffective for
detecting explosives. It would be more than a decade before the technology
was adequate for this purpose. The deployment of additional X-ray machines at
the time was not an adequate substitute for passenger-baggage reconciliation
(admittedly, however, reconciliation was not available for across-the-board
application until some months after the bombing). Cosmetic measures might
provide a false sense of security and waste precious resources.
The international and Canadian responses were also incomplete. They failed to
adequately address other weaknesses revealed by the bombing – specifically,
air cargo security and access control at airports. Improved technology to
facilitate full hold bag screening was also recognized by many as an important
goal. To its credit, the Government of Canada recognized that a limited response
was insufficient, and that a holistic review of deficiencies in security was
required. In the resulting Seaborn Report, the Government received a guide to
comprehensive change, but failed to implement many recommendations.
Support for more systemic improvements was lacking at the international
level and there was inadequate follow-through domestically. Enhancements
to passenger and baggage security became the primary focus, but even these
were not fully addressed. It was only following the bombing of Pan Am Flight
103 (whose method of sabotage paralleled that of the Air India bombing) and
September 11, 2001, that more comprehensive, multi-layered solutions to the
threat of sabotage began to be implemented.
Because of persistent vulnerabilities in the system following the loss of Air India
Flight 182, passenger security continued to be deficient. Bombs could still be
introduced by means other than passengers and baggage. More than 20 years
later, the 2007 report by the CATSA Advisory Panel noted that many deficiencies
43
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Volume Four: Aviation Security
first highlighted in the Seaborn Report remained. While the importance of
passenger-baggage reconciliation must not be diminished, the Air India
bombing revealed more than just the danger of unaccompanied, infiltrated
bags. The bombing exposed other widespread deficiencies in procedures for
preventing sabotage. Comprehensive action to improve civil aviation security
is long overdue.
2.3 Failure to Learn: The Bombing of Pan Am Flight 103
Had the rules which emanated from the Air India bombing
been applied in 1988, Lockerbie would never have
happened.262
The history of civil aviation security shows repeated failures to learn from the past.
Some aviation experts, including Rodney Wallis, a former Director of Security
at the International Air Transport Association whose words are quoted above,
believe that this deafness to what history might teach has seldom been more
apparent than in the 1988 bombing of Pan American World Airlines (Pan Am)
Flight 103 over Lockerbie, Scotland. The acts that led to the bombing emulated
precisely those which led to the destruction of Air India Flight 182 three years
earlier. An unaccompanied suitcase concealing a bomb was interlined to Pan
Am Flight 103 from a different carrier.263 Pan Am did not detect the bomb.
Yet this method of sabotage was well understood because of the experience
gained from the Air India disaster, and international standards had recognized
passenger-baggage reconciliation as the incontrovertible solution.264 Still,
terrorists launched a successful attack on Flight 103 that killed 270 people.265
The United States Commission on Aviation Security and Terrorism (US
Commission), established in August 1989, concluded that the bombing of Flight
103 was preventable:
Stricter baggage reconciliation procedures could have stopped
any unaccompanied checked bags from boarding the flight at
Frankfurt.266
Like Air India, Pan Am did not use passenger-baggage reconciliation as a
security measure. Unlike Air India, Pan Am had been required to do so by US
federal regulation – a measure introduced as a direct result of the Air India
bombing.267 In testimony before the Commission, Wallis recounted how
Pan Am, in a bid to cut costs, unilaterally discarded compulsory passengerbaggage reconciliation. In its place, Pan Am screened interlined baggage for
262
263
264
265
266
267
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4210.
Exhibit P-166, pp. 2-3.
Wallis, Lockerbie, pp. 11-12.
Wallis, Lockerbie, p. 1.
Wallis, Lockerbie, p. 46.
Exhibit P-166, p. 3.
�Chapter II: Responses to the Bombing of Air India Flight 182
explosives using X-ray technology that it knew to be ineffective.268 Air India had
made similar decisions in 1985. In both cases, the decision not to implement
passenger-baggage reconciliation was symptomatic of broader deficiencies in
the security regime. These included insufficient regulatory oversight, a failure
of shared responsibility, a misplaced reliance on ineffective technology and an
inappropriate balancing of efficiency and security concerns.
The failure to appreciate the lessons of Air India was all the more significant
because the Air India disaster was a watershed in the history of aviation
security.269 It was the worst aviation terrorism incident the world had seen, and
remained so until the events of September 11, 2001.270 The bombing of Flight
182 signalled the urgent need for a shift in focus from preventing hijacking
to preventing sabotage,271 and was the driving force behind one of the most
extensive reforms of the international regulatory regime for civil aviation. The
result was a more stringent Annex 17 to the Convention on International Civil
Aviation (“Chicago Convention”), which better addressed the security threats
facing civil aviation.272
The loss of Air India Flight 182 ought to have brought complacency about the
threat of sabotage to an end.273 However, Wallis suggested that it was “a fact of
life” to tend to attach more significance to incidents that were seen to affect “the
Anglo-Saxon world,” rather than people from a different heritage.274 As Peter St.
John, a retired professor of international relations with expertise in air terrorism
and extensive knowledge of the bombing of Air India Flight 182, observed, “…
there was a popular conception in Canada that somehow the Canadians of
Indian origin on board Air India 182 were Indian citizens from India, and that it
wasn’t our crisis and it wasn’t our problem.”275
2.3.1 Failure to Address the Known Threat of a Bomb in Interlined,
Unaccompanied Baggage
Pan Am Flight 103 was a service from Frankfurt to New York, with a transit stop
in London. On December 21, 1988, not long after departing London’s Heathrow
Airport for New York, a bomb detonated aboard the Boeing 747, named Maid of
the Seas, just as it had reached 31,000 feet above the small town of Lockerbie,
Scotland.276 The aircraft shattered and its remains“…rained death and destruction
on the town of Lockerbie.”277 All 259 passengers and crew on board were killed,
along with 11 local residents who died when debris fell to the ground.278
268
269
270
271
272
273
274
275
276
277
278
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4516-4517.
Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4288.
Exhibit P-35, p. 1.
Exhibit P-157, p. 75 of 135.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4209.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4527.
Testimony of Peter St. John, vol. 37, May 31, 2007, p. 4524.
Wallis, Lockerbie, p. 1.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4525.
Wallis, Lockerbie, p. 1.
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Volume Four: Aviation Security
The modus operandi was identical to that used to destroy Air India Flight 182.279
Both Air India and Pan Am had been operating under an elevated level of threat
from sabotage.280 As with Air India Flight 182, the bomb that destroyed Pan Am
Flight 103 began its journey at an outlying airport from which Pan Am did not
operate. The idea was to gain access to the intended aircraft by initially sending
the bomb in an interlined, unaccompanied suitcase on the connecting flight
of another air carrier – one that was not operating under an elevated level of
threat:281
The means to attack the Maid of the Seas were readily available,
and the methodology was a tried and familiar one, proven
effective by earlier terrorist groups. In so many ways the loss
of the Maid of the Seas paralleled the destruction of Air India’s
Kanishka in 1985. In both, an unaccompanied suitcase carrying
an improvised explosive device concealed in a cassette
radio had been infiltrated into the airline industry’s interline
baggage system. An airport, off-line to the targeted carrier’s
route network, had been selected for this purpose. The device
was first flown on a feeder service from that airport to another,
where it was transferred to the intended aircraft.282
The similarities between the two incidents warrant a detailed description. In
1985, a passenger appeared at the Canadian Pacific Air (CP Air) ticket counter at
Vancouver Airport and checked in a suitcase that contained a bomb. The suitcase
was loaded onto a CP Air flight destined for Toronto. At the passenger’s insistence,
the suitcase was labelled with an interline tag for onward carriage on Air India
Flight 181 in Toronto (the flight number changed to 182 during a transit stop in
Montreal).283 An interline tag was placed on the bag in contravention of CP Air’s
standard security procedures,284 since the passenger did not have a reservation
for the subsequent leg of the journey. Once in Toronto, the unaccompanied bag
was delivered to the airport’s baggage makeup area where it was interlined to
the Air India aircraft.285
With Pan Am Flight 103, the bomb was initially placed aboard an Air Malta
aircraft in Malta as a result of a breach in airside security. The perpetrator was
279
280
281
282
283
284
285
Exhibit P-166, p. 2.
Wallis, Combating Air Terrorism, p. 27; see also Exhibit P-157, p. 49 of 135.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4516.
Wallis, Lockerbie, p. 63.
Exhibit P-436, pp. 18, 20.
Exhibit P-436, p. 18.
Exhibit P-436, p. 29.
�Chapter II: Responses to the Bombing of Air India Flight 182
a former chief of security with Libyan Arab Airlines286 whose links to the airline
gave him access to the baggage makeup area and, ultimately, to baggage
tags. The suitcase concealing the bomb had not gone through normal checkin procedures. It was simply labelled with an interline tag, loaded onto the Air
Malta flight and interlined to Pan Am in Frankfurt. Like the situation leading
to the bombing of Air India Flight 182, the bag was not accompanied by a
corresponding passenger on any segment of its journey.287 Though some of the
finer points of the Pan Am and Air India bombings differed, there were many
core similarities:
…Introduce your bomb bag at an airport, off-line to the major
carrier so that guards are down. The bag slips into the interline
system and the interline system carried it onto the target
aircraft. So they are identical situations.288
By 1988, this modus operandi for committing sabotage against aircraft was
well known. The loss of Flight 182 in 1985 had sparked an immediate flurry
of activity within the international civil aviation community,289 which realized
that its security regime had been insufficient against sabotage.290 The result
was a complete revision of Annex 17 to the Chicago Convention.291 The revision
established passenger-baggage reconciliation as an international standard.292
Passenger-baggage reconciliation sought to prevent unauthorized bags,
possibly containing bombs, from being placed on aircraft by matching checked
baggage with passengers on board.293 Before the bombing of Flight 182,
reconciliation procedures had been used on an ad hoc basis during periods of
high threat,294 but were not a requirement of most aviation security regimes.295
Several international and Canadian reviews of the Air India disaster concluded
that passenger-baggage reconciliation was the one measure that, on its own,
could have prevented the bombing.296
Although Pan Am and Air India were both operating under an elevated level of
threat, neither airline was using passenger-baggage reconciliation around the
time of the sabotage against their aircraft. Unlike the situation with Air India in
286 He was also an intelligence officer of the Libyan government. In 2001, he was found guilty of murder
in the bombing of Pan Am Flight 103 and was sentenced to 27 years in prison: Wallis, Combating
Air Terrorism, p. 38.
287 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4516.
288 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4517.
289 Exhibit P-162, pp. 2-3.
290 Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
291 Annex 17 is the treaty that governs matters of international civil aviation security. See Exhibit P-153,
the 1986 revised edition of Annex 17 which resulted from the bombing of Air India Flight 182.
292 Testimony of Moses Aléman, vol. 35, May 29, 2007, pp. 4217-4218.
293 Wallis, Lockerbie, p. 152.
294 See, for example, Exhibit P-101 CAF0637, pp. 18-19.
295 The Commission received evidence, however, that the United Kingdom’s Department of Transport had
implemented a rule, prior to 1985, that required bags on flights leaving the country to be reconciled
with their passengers.
296 See, for example, Exhibit P-101 CAF0039, p. 4 of 10.
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1985, Pan Am was required by law to do passenger-baggage reconciliation for
Flight 103.297 Even before the international reconciliation standard took effect,
the US Federal Aviation Administration (FAA)298 required reconciliation by all
US airlines operating out of airports designated as “extraordinary risk.” Starting
in November 1985, the FAA rule required all checked baggage to be matched
with passengers on board the aircraft. Any unaccompanied baggage was to be
physically inspected or else removed from the flight.299 Rodney Wallis praised
the FAA rule, claiming that it should have provided “foolproof protection
against the infiltrated, unaccompanied bag.”300 Indeed, in October 1988, before
the loss of Flight 103, Dr. Assad Kotaite, then President of the International Civil
Aviation Organization (ICAO) Council, hailed reconciliation as “the cornerstone
of aviation’s defense against the saboteur.”301
The measures implemented after the Air India disaster sought to prevent
similar sabotage.302 By late 1988, the FAA had designated all airports in Europe
as extraordinary risk.303 Because of this, Flight 103 was required to conduct
passenger-baggage reconciliation.
Both Air India Flight 182 and Pan Am Flight 103 were scheduled to make one
transit stop before their transatlantic crossings.304 Flight 103 did more than
simply make a transit stop at Heathrow Airport in London. A change of aircraft
took place. A Boeing 727 had flown from Frankfurt to London, where a larger
jet, a Boeing 747, was waiting to take both Frankfurt- and London-originating
passengers on to New York. The two aircraft were parked beside each other,
and baggage from the 727 aircraft was placed in a container to be loaded
aboard the 747. This presented a further opportunity to do passenger-baggage
reconciliation.
Besides the FAA rule, the United Kingdom Department of Transport required all
flights leaving the country to reconcile bags with passengers:
This rule had been in place prior to 1985 when the [UK
Department of Transport] had emphasized the potential
danger arising from interline baggage. In Frankfurt the FAA
had mandated U.S. airlines to apply positive passenger/
baggage matching procedures; with the same rule applying
at Heathrow, the opportunity existed there to identify and
297 Exhibit P-166, p. 3.
298 The Federal Aviation Administration (FAA) is no longer in existence. Since 2001, civil aviation security
in the United States is managed by the Transportation Security Administration, which is governed by
the Department of Homeland Security (DHS). See Exhibit P-157, p. 96 of 135.
299 Wallis, Lockerbie, p. 12.
300 Wallis, Lockerbie, p. 46.
301 Wallis, Combating Air Terrorism, p. 30. Kotaite made this statement in an address to the FAA’s
Washington Triennial Aviation Security Conference.
302 Wallis, Lockerbie, pp. 1-2.
303 Wallis, Combating Air Terrorism, p. 30.
304 Air India Flight 182 had stopped in Montreal following its departure from Toronto, on its way to
London: Exhibit P-436, pp. 37-38.
�Chapter II: Responses to the Bombing of Air India Flight 182
remove or physically search any unaccompanied bags. Because
that did not happen, what should have been a foolproof
system was defeated.305
Air India Flight 182 missed one opportunity to match baggage with passengers.
Pan Am Flight 103 missed two.306
As mentioned earlier, the US Commission described the bombing of Flight 103
as “preventable.”307 By late 1988, Flight 103 was operating under a heightened
level of threat of sabotage, since the FAA had designated all European airports
as extraordinary risk for US air carriers. In addition, Pan Am was aware that
Flight 103 was a specific target.308 Two months before the bombing, the airline
was informed about the discovery of a terrorist ring in Germany that had been
manufacturing bombs containing Semtex plastic explosives for detonation
on board aircraft. At least two bombs, hidden in Toshiba cassette radios, were
known to be in circulation.309 On December 5, 1988, the US Embassy in Helsinki
received an anonymous telephone call warning of the bombing of a Pan Am
aircraft operating between Frankfurt and the US “within the next two weeks.”310
Both Finnish and US authorities concluded at the time that the call was a hoax.311
Nonetheless, when the warning was received, the FAA shared the details of the
threat with Pan Am and other US airlines.312
In summary, according to Wallis, Pan Am management in Frankfurt, in breach
of US federal regulations, and despite the elevated threat of sabotage, decided
to discontinue its reconciliation practices because of concerns about the cost
of matching interlined baggage with passengers.313 In its place, the airline
opted to scan interlined baggage for explosives using less expensive X-ray
technology.314
Pan Am set up a subsidiary company in Frankfurt, Alert Management, to carry
out its security operations, and bought new X-ray machines to conduct checked
baggage screening. Wallis wrote that the airline concluded that this measure
absolved it of the need to match interlined passengers with their baggage.315
By 1988, it was well known that X-ray technology was unreliable in detecting
explosive devices in checked baggage.316 In 1986, the Indian inquiry established
to investigate the bombing of Air India Flight 182 (Kirpal Commission)
concluded:
305
306
307
308
309
310
311
312
313
314
315
316
Wallis, Combating Air Terrorism, pp. 26-27.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4517.
Wallis, Lockerbie, p. 46.
Wallis, Combating Air Terrorism, p. 27.
Wallis, Combating Air Terrorism, p. 27.
Wallis, Combating Air Terrorism, p. 27.
Given the discovery of bomb manufacturing in Germany, experts agreed that the warning had
constituted a detailed threat: Wallis, Combating Air Terrorism, pp. 27-28.
Wallis, Combating Air Terrorism, p. 28.
Wallis, Lockerbie, p. 109.
Wallis, Combating Air Terrorism, p. 31.
Wallis, Lockerbie, p. 109.
Wallis, Lockerbie, p. 23.
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All checked-in baggage, whether it has been screened by X-ray
machine or not, should be personally matched and identified
with the passengers boarding an aircraft. Any baggage which
is not so identified should be off-loaded. This is advisable as
examination of the baggage with the help of an X-ray machine
has its own limitations and is not fool proof. Some explosives
hidden in Radios, Cameras etc. may not be readily detected by
such a machine. In fact an explosive not placed in a metallic
container will not be detectable by an X-ray machine. Similarly,
a plastic explosive can be given an innocuous shape or form so
as to avoid detection by an X-ray. Reliance on an X-ray machine
alone may in fact provide a false sense of security.317
As in 1985, the X-ray equipment used in 1988 was of limited value. It provided
only black and white images and required skilled operators.318 Wallis wrote
that the operator on duty for Pan Am on December 21, 1988, had received no
training on the equipment, had not been provided with the machine’s operating
manual, and had not been tested on his ability to interpret images on the screen.
Earlier in the year he had been employed as a cleaner for Pan Am. He had poor
eyesight and used his glasses only when he wanted to see detail more clearly.
Like all screening staff working for Alert Management, he had not been made
aware of the Toshiba cassette radio bomb warning and had received no special
instruction on bomb identification.319
Wallis stated that Pan Am was, moreover, informed that the bombs recently
discovered in Germany would be difficult, if not impossible, to detect by X-ray.
Tests conducted at the time demonstrated that the equipment was unable to
detect the plastic explosives contained within the cassette radio bombs found
by police320:
By August 1988, knowledge that terrorists had improved
technology for the construction of improvised explosive
devices (IEDs) designed for use against aircraft was becoming
available. Modifications in the manufacture of these
bombs [were] coupled with changes in the method of their
concealment. It had become obvious that detailed baggage
search techniques would be necessary to detect the devices,
since X-ray examination was known to be inadequate for the
purpose. Nor was the average screening operator considered
up to the task of identifying the high-tech detonation
mechanisms now available to the terrorists. The FAA
317
318
319
320
Exhibit P-164, p. 173.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4517.
Wallis, Lockerbie, p. 116.
Wallis, Lockerbie, p. 23.
�Chapter II: Responses to the Bombing of Air India Flight 182
requirement for all baggage to be matched with passengers
took on even greater importance.321
Wallis concluded that, despite its knowledge about the lack of utility of X-ray
equipment in the current threat situation, Pan Am did not revert to passengerbaggage matching.322 It chose to use X-ray equipment as its sole security control
for interlined baggage.323
Following the bombing, a Scottish Fatal Accident Inquiry confirmed that
the improvised explosive device consisted of Semtex-type plastic explosive
concealed in a Toshiba cassette radio carried in a suitcase.324 The inquiry also
concluded that “...limitations of X-ray screening as a means of detecting plastic
explosives contained in electronic equipment were generally recognized” by
December 1988,325 and that reliance by Pan Am on X-ray screening alone for
interlined baggage in London and Frankfurt was a “defect” which contributed
to the deaths.326
The US Commission established in 1989 also concluded that the bombing of
Flight 103 was preventable:
Stricter baggage reconciliation procedures could have stopped
any unaccompanied checked bags from boarding the flight at
Frankfurt.327
Echoing the words of the ICAO Council President two months before the
bombing, the report called passenger-baggage reconciliation “…the bedrock
of any heightened civil air security system.”328
2.3.2 Air India and Pan Am: Parallel Systemic Failures
The need for passenger-baggage reconciliation as a primary security defence
against in-flight bombings was one of the key lessons of the loss of Air India
Flight 182, but a narrow focus on this ignores other security weaknesses. In
1985, the failure of Air India to institute this measure, and of the Government of
Canada to require it, was symptomatic of major systemic security deficiencies in
aviation which, in combination, created an environment vulnerable to sabotage.
These deficiencies have been the subject of much of the Commission’s focus
during its review of aviation security.
321 Wallis, Lockerbie, p. 20.
322 Wallis, Lockerbie, p. 23.
323 Wallis, Combating Air Terrorism, p. 31; see also Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp.
4517-4518.
324 Wallis, Lockerbie, p. 55.
325 Wallis, Lockerbie, p. 56.
326 Wallis, Lockerbie, p. 56.
327 Wallis, Lockerbie, p. 46
328 Wallis, Combating Air Terrorism, p. 33.
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The US Commission’s report was critical of both Pan Am and the FAA. It stated
that Pan Am’s apparent security lapses and the FAA’s failure to enforce its own
regulations followed a pattern that had existed for months before the bombing
and that continued for nine months after.329 Although the FAA was instrumental
in helping ICAO develop new rules after the bombing of Flight 182, the FAA did
not effectively monitor their implementation. Despite audits of Pan Am security
operations at Frankfurt,330 the FAA was unaware that Pan Am had stopped
matching passengers with baggage at Frankfurt and Heathrow airports.331 Pan
Am was also never cited for other breaches of the federal security program.
In October 1988, the FAA inspector responsible for overseeing civil aviation
security measures in Frankfurt recorded several failures by the airline, including
the absence of any identifiable tracking system for interline baggage. He made
recommendations to overcome these shortcomings, but did not cite the airline
for violating FAA baggage security requirements. Instead, the inspector’s report
concluded that the minimum FAA requirements were being met.332
The Scottish Fatal Accident Inquiry also concluded that the direction and circulars
provided to airlines by the UK Department of Transport “…afforded insufficient
protection against the possibility that an undetected unaccompanied bag
would be transferred”333 from the Frankfurt feeder flight to the Boeing 747 at
Heathrow. Wallis remarked on the significance of this finding:
Many government civil aviation officials around the world
have been apt to issue directives with little or no effort being
made to ensure their terms are understood. Monitoring
implementation of the regulations is nonexistent. Often the
rules are put together by civil servants who have no practical
experience of airline or airport operations and are developed
without consultation with aviation operations executives.
[The Scottish Inquiry’s] comments might bring home to
government authorities the need to understand the operation
and the conditions under which regulations have to be
applied before drying the ink on a new set of administrative
requirements.334
While effective oversight by government is crucial for ensuring a properly
functioning regime, security is a shared responsibility.335 It is an integrated system
that involves government departments and agencies, as well as private sector
and non-profit entities.336 All stakeholders are obligated to respect the rules that
apply to them, and must faithfully discharge their responsibilities. Anything less
329
330
331
332
333
334
335
336
Wallis, Lockerbie, pp. 45-46.
Wallis, Lockerbie, pp. 46-47.
Wallis, Lockerbie, p. 82.
Wallis, Lockerbie, pp. 46-47.
Wallis, Combating Air Terrorism, p. 36.
Wallis, Combating Air Terrorism, p. 37.
Exhibit P-361, Tab 1, p. 8.
Exhibit P-169, p. 31 of 202.
�Chapter II: Responses to the Bombing of Air India Flight 182
than this destroys the value of a legislated regime. Any weakness gives terrorists
the chance to exploit the system – a danger clearly demonstrated in the Pan
Am bombing. US airlines at the time generally did not favour requiring positive
passenger-baggage matching,337 despite knowing the threat of bombs being
placed in unaccompanied baggage. Some airlines were granted permission
to use X-rays in place of reconciliation procedures at airports that were not
designated as “extraordinary risk.” Frankfurt airport, however, was designated as
extraordinary risk.338
Air carriers play a vital role in ensuring passenger protection. Not only must they
adhere strictly to the regime under which they are operating but “…regardless
of rules laid down by governments, the carriers themselves need to ensure that
their procedures are commensurate with the prevailing threats and risks.”339
As noted earlier, the Pan Am station in Frankfurt relied on ineffective technology
to screen baggage rather than on the established method of baggage-passenger
reconciliation. This was similar to the situation in 1985, when Air India relied on
technology that was known to be ineffective because it was deemed to be more
efficient than the time-consuming and costly passenger-baggage matching
process. Air India took this course of action, despite testing that had revealed
the PD-4 sniffer to be incapable of detecting explosives, and despite knowing of
the limited value of X-ray equipment in explosives detection.340 When the X-ray
machine malfunctioned in Toronto on June 22, 1985, screening officers received
only cursory, on-the-spot training about the PD-4 equipment, which was then
used to check the remaining unscreened baggage.341
As early as 1986, an Israeli security consultancy firm had suggested in a report
commissioned by Pan Am that the airline was placing too much reliance on
technology. The report described the airline’s security operations at European
airports as “dangerously lax”342 and criticized the airline’s heavy reliance on
technical equipment. The report noted that, under the current program, Pan
Am was “highly vulnerable to most forms of terrorist attack.” That Pan Am had
not already suffered a major disaster was “merely providential.”343 The report
attacked the air carrier’s management structure, its selection of staff, the lack
of adequate training for security employees and the absence of monitoring
programs.344 The report declared the entire operation not cost-effective, but did
not view an increase in budget as necessary. Rather, all that was required was
proper “authority, management and resolve.”345
337
338
339
340
341
342
343
344
345
Wallis, Lockerbie, p. 13.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4516.
Wallis, Combating Air Terrorism, p. 37.
Exhibit P-436, pp. 31-32.
Exhibit P-436, p. 31.
Wallis, Lockerbie, p. 30.
Wallis, Lockerbie, p. 30.
Wallis, Lockerbie, p. 30.
Wallis, Lockerbie, p. 31.
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In the case of Pan Am, the breach in security involved, as noted, a former chief of
security of an airline. He gained access to restricted areas of the airport in Malta,
enabling the baggage containing the bomb to circumvent normal security
procedures altogether. According to Wallis, this “…portrayed the worst possible
scenario facing legitimate governments with respect to attacks against civil
aviation targets, namely direct involvement (rather than coercion) of airline staff
with knowledge of and access to attack aircraft under cover of their legitimate
roles.”346 He noted that this was not the first civil aviation security incident of this
nature.347 This highlights the importance of ensuring adequate security measures
for airside and restricted areas of airports, and the need for international cooperation to ensure consistent security throughout. A weakness in security in
one location can surreptitiously weaken security at another, whether in the
same country or abroad.
Good security must have multiple, robust layers. It must be based on a proper
understanding of risk – including an in-depth knowledge of past threats and
their current relevance – and it requires the co-operation and collaboration of
many entities in Canada and abroad.
It is telling that an exact repeat of the Air India bombing could occur in a field –
aviation security – often criticized for “fighting the last war instead of the next.”348
The evidence suggests that neither the last war nor the next have been fully
addressed, leaving unacceptable gaps in security. Indeed, the Commission has
concluded that many of the lessons from 1985 have yet to be incorporated into
the domestic regime.349 While Canada immediately championed passengerbaggage reconciliation following the Air India disaster,350 passengers remain
vulnerable to sabotage because bombs can still be introduced onto aircraft by
means other than passengers and their baggage.351
2.3.3 Responses to the Bombing of Pan Am Flight 103
The bombing of Air India Flight 182 was the deadliest single aviation terrorism
incident to that time, killing even more than the sabotage of Pan Am Flight 103
three years later. However, as the experts who appeared before the Commission
observed, the loss of Pan Am Flight 103 generated a greater sense of collective
urgency on the world stage and more support for systemic change. Emphasis
was placed on the very same issues that had been raised after the loss of Flight
182, such as hold bag screening (HBS) and air cargo security. Many countries,
particularly in Europe, demonstrated a greater commitment to following
through with these initiatives.352 Yet earlier work by ICAO, IATA and the Kirpal
Commission following the Air India disaster had reached the same conclusion
346
347
348
349
350
351
Wallis, Lockerbie, p. 38.
Wallis, Lockerbie, p. 38.
Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4646.
See Section 3.8, which reviews the major deficiencies that still remain in the Canadian regime.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4755.
Deficiencies in air cargo and airside security continue to provide an avenue by which bombs can be
introduced aboard passenger aircraft. See Sections 3.8.1 and 3.8.2 for further details.
352 Exhibit P-166, p. 6.
�Chapter II: Responses to the Bombing of Air India Flight 182
as the later US and Scottish investigations into the Pan Am bombing – that
passenger-baggage reconciliation was the key security measure for preventing
bombs in baggage from being placed aboard aircraft.353
Jim Marriott, Director of Transport Canada’s Aviation Security Regulatory
Review at the time of the Commission hearings, represented Canada on
ICAO’s Aviation Security Panel of Experts after the bombing of Flight 103. He
participated in similar meetings across Europe for Transport Canada and was
uniquely positioned to observe the response as it unfolded. He described as
“striking” the attention that many governments paid to the need for widespread
enhancements in civil aviation security following the Pan Am tragedy. A series
of action plans were developed, with the UK playing a lead role within ICAO to
promote broad improvements.
By early 1989, the UK government had made eight proposals to ICAO.354 Among
them was a proposal dealing with passenger-baggage reconciliation,355 a
measure that ought to have been fully addressed in the wake of the Air India
bombing. The adoption of passenger-baggage reconciliation as a mandatory
standard for international flights was foremost among the changes made to
Annex 17 after the loss of Air India Flight 182. Although an initial implementation
date was set for December 19, 1987, the date was changed to April 1989 to
allow Contracting States time to comply. However, states that could implement
the standard sooner were strongly urged to do so. Still, even by the 1990s, only
a few states had begun implementing passenger-baggage reconciliation.356
A further UK proposal called for full HBS of all checked baggage with explosivesdetecting equipment. The technology available in 1989, like that of 1985, lacked
sophistication. Marriott testified that much of the drive to invest significant
resources in research and development for HBS could be traced to the aftermath
of Pan Am Flight 103,357 although the same need had been identified earlier
following the Air India bombing. Technologies were in development before
1988, but the Pan Am disaster led to an increase in this activity.358 Marriott
remarked that:
…[T]he task of integrating [hold] baggage screening systems into
airport baggage handling systems was one that received a great deal
of engineering attention…. [T]he events of the Pan Am 103 tragedy
drove a great many governments, the international community, to
focus a great deal more attention on the enhancement of aviation
security across the whole range of theme areas, but [hold] bag
screening certainly was…[a] principal focus….359
353
354
355
356
Wallis, Combating Air Terrorism, pp. 33, 35.
Exhibit P-157, p. 89 of 135.
Exhibit P-157, p. 89 of 135.
While standards are mandatory, Contracting States can withdraw from their obligations by informing
ICAO of their inability or unwillingness to comply: Exhibit P-157, pp. 89-90 of 135.
357 Testimony of Jim Marriott, vol. 37, May 31, 2007, pp. 4520-4521.
358 Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4521.
359 Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4521.
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Some countries, including the UK, managed to implement 100 per cent HBS
fairly quickly, but many others, including Canada,360 did not do so until the ICAO
standard took effect on January 1, 2006.361
The UK also aggressively pursued enhancements to air cargo security after
the Pan Am bombing.362 Following the loss of Air India Flight 182, air cargo
security had been singled out by the international community as a significant
vulnerability.363 Much like hold baggage, air cargo was becoming an increasingly
easy vehicle for getting bombs aboard passenger aircraft.364 Nonetheless, efforts
to improve security measures for air cargo did not gain widespread support until
1989, after the bombing of Pan Am Flight 103. By 1990, the US and the UK had
joined forces with IATA to promote greater security for air cargo throughout its
supply chain. The concept of the “known shipper”365 (the term was later changed
to “regulated agent”),366 in which a shipper or consolidator would be licensed
by the government after meeting certain security standards, and which was
introduced after the Air India bombing, was finally accepted by ICAO in 1991
for addition to Annex 17.367 The UK moved quickly to implement the measure,
developing regulations by 1993.368 Canada, on the other hand, has only recently
considered measures to strengthen air cargo security in conformity with the
ICAO principle.369
The UN Security Council and General Assembly also weighed in on efforts to
address the failings that led to the destruction of Pan Am Flight 103. In June
1989, recognizing the difficulty in detecting plastic explosives such as those
used in the Pan Am attack, the UN Security Council passed Resolution 635.
The Resolution urged ICAO “...to intensify its work on devising an international
regime for the marking of plastic and sheet explosives for the purpose of
detection.”370 The UN General Assembly subsequently affirmed this resolution.
In response, ICAO drafted the Convention on the Marking of Plastic Explosives
for the Purpose of Detection (1991). The Convention prohibits the manufacture,
sale or possession of plastic explosives, commonly used in air terrorism, without
specific chemical markings stipulated by the Convention.371 Chemical markers
360
361
362
363
364
365
366
367
368
369
370
371
Exhibit P-169, p. 65 of 202.
Exhibit P-157, p. 89 of 135.
Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4529.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4480-4481; Testimony of Rodney Wallis, vol. 41,
June 6, 2007, p. 5002.
Exhibit P-162, p. 4; see also Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4480-4481.
This term, as it is used in Canada, does not correspond to the meaning attributed to it by Annex 17. In
Canada, the term “known shipper” is not a government-licensed shipper or consolidator, but an
entity that is known to an airline because a business relationship has been established. See Testimony
of Reg Whitaker, vol. 38, June 1, 2007, p. 4630; see also Testimony of Rodney Wallis, vol. 41, June 6, 2007,
pp. 5002-5003.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4249.
Wallis, Combating Air Terrorism, p. 78.
Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5003.
See, for example, Exhibit P-189; see also Section 3.8.1 for a more detailed analysis of air cargo security in
Canada.
Exhibit P-157, p. 90 of 135.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4228.
�Chapter II: Responses to the Bombing of Air India Flight 182
in plastic explosives make it easier for electronic equipment and explosives
detection dogs to identify them. The Convention entered into force in 1998.372
The Pan Am bombing prompted Canada to address even more vigorously several
systemic security issues exposed following the loss of Air India Flight 182. This
included a new emphasis on HBS. Research and development in technology
for screening hold baggage for explosives was expedited, with bilateral and
trilateral agreements involving Canada, the US and the UK. Transport Canada
also accelerated its “foreign offshore security inspection program” to ensure
compliance monitoring and quality control, particularly for passenger-baggage
reconciliation. In general, the inspection program was meant to ensure that
foreign-registered and domestic air carriers departing from foreign airports
were implementing Canadian regulatory requirements.373
The US reacted to the Pan Am bombing by working within international
organizations, including ICAO, to improve aviation security worldwide. It also
worked with certain countries individually to address specific issues or threats,
and examined its own security framework. In May 1990, the US Commission
that reviewed the Pan Am disaster made 64 recommendations, among them
to:
• transfer primary responsibility for aviation security from US air
carriers to the US State Department;
• ensure mandatory criminal record checks for all airport employees;
• conduct mandatory passenger-baggage reconciliation; and
• create a technical assistance program, through the FAA, to
provide aviation security assistance to countries upon request and
to concentrate efforts wherever the threat was greatest.374
The CATSA Act Review Advisory Panel (CATSA Advisory Panel), the independent
panel of experts that, as part of its mandate, reviewed aviation security issues
associated with the bombing of Air India Flight 182, reported that many of
the US Commission’s recommendations were not implemented. Ironically, this
failure flowed, at least in part, from industry concerns about the cost of funding
security initiatives and the impact they would have on their operations.375 One
influential family member of a victim of the Pan Am bombing later argued that
“…history has proven the aviation industry’s lack of sincerity and willingness to
address safety and security on behalf of their customers.”376
372 Canada incorporated the requirements of the Convention through amendments to the Explosives Act,
which came into force on September 11, 1996. See Exhibit P-157, p. 90 of 135, note 113; see also
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4228.
373 Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4528.
374 Exhibit P-157, p. 90 of 135
375 Exhibit P-157, p. 90 of 135.
376 Victoria Cummock, who was appointed as a Commissioner on the subsequent 1996/7 White House
Commission on Aviation Safety and Security to investigate the loss of another Boeing 747, TWA Flight
800, later made these remarks in a letter of dissent to the report of that Commission: Wallis, Lockerbie,
p. xiv.
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In his 2001 book, Lockerbie: The Story and the Lessons, Wallis noted that US
aviation security standards were still not optimal then and that passengers
remained vulnerable to the baggage bomber.377 He contended that it was not
just a “lack of sincerity and willingness” on the part of air carriers, but also that,
despite the best efforts of ICAO, IATA and other international bodies, many
national authorities failed to understand what was required of them. He also laid
blame on the inadequate funding pledged to civil aviation security.378 The CATSA
Advisory Panel noted that, even when governments and other organizations
worked together after the Pan Am bombing to improve and standardize security
measures around the world, many measures proposed by ICAO remained either
voluntary or were not adopted by member states.379
Transport Canada officials considered the bombing of Pan Am Flight 103 to be
the second watershed in civil aviation security, with Air India Flight 182 being
the first.380 However, Wallis considered the Pan Am bombing merely to represent
a failure to respond to the lessons of Air India Flight 182.381 The loss of Pan Am
Flight 103 simply demonstrated that the Air India disaster had not resonated
with the international community as a whole.
2.3.4 Failure to Appreciate Significance of Air India Flight 182 Bombing
The bombing of Flight 182 was a seminal moment in the history of civil aviation
security. Within days, emergency meetings were held at IATA and ICAO. Airline
security chiefs and authorities came from around the world to discuss how to
address major security deficiencies.382 The bombing triggered a major overhaul
of international civil aviation security. As well, the Kirpal Commission in India
conducted a thorough investigation of the incident, producing an extensive
report in 1986. The report made key recommendations directed at ICAO, national
authorities, airlines and airports.383 Had these recommendations been followed,
terrorists might not have succeeded in bombing Pan Am Flight 103 in 1988.
Experts who appeared before the Commission agreed that, although the Air
India bombing was one of the most significant acts of unlawful interference with
civil aviation, it was only the loss of Pan Am Flight 103 that led to more definitive
action on the very same security issues.384 The bombing of Flight 103 resulted in
a significant increase in dialogue internationally about civil aviation security.385
However, the question remains: Why did the earlier Air India bombing not have
greater impact on aviation officials, even when they faced a specific threat of
sabotage?
377
378
379
380
381
382
383
384
385
Wallis, Lockerbie, pp. 150-151.
Wallis, Lockerbie, pp. 151-152.
Exhibit P-157, p. 91 of 135.
Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4510.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4210.
Exhibit P-162, pp. 2-3, 13.
Exhibit P-164, pp. 172-175.
See, for example, Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4525.
Exhibit P-166, p. 6.
�Chapter II: Responses to the Bombing of Air India Flight 182
The CATSA Advisory Panel suggested that the loss of Flight 103 merely three
years after the Air India bombings had “…resulted in a dramatic loss of public
confidence in civil aviation and further pressured governments into taking
action.”386 However, the Commission heard evidence suggesting that the
different treatment of virtually identical incidents cannot be entirely explained
by this public outrage.
Both Wallis and St. John highlighted the symbolism that the attack against Pan
Am Flight 103, an American flag carrier, created. The Pan Am bombing killed all
of the mostly American passengers and crew.387 It was seen as a calculated act
of aggression against the US.388 Both the fact that it was an American aircraft
and that “enemies in the Middle East” caused the crash, ensured extensive
media coverage, particularly in the US.389 Air India, on the other hand, was the
flag carrier for India. When Flight 182 was destroyed, India, not Canada, was the
target. The bombing of Flight 182 did not create the same sort of imagery as the
Pan Am attack.390
Shortly after the Pan Am bombing, it was widely believed that the attack
was retaliation for a tragic accident in which an American warship, the USS
Vincennes, mistakenly shot down an Iran Air Airbus “full of pilgrims.”391 More
than 200 passengers and crew died after their aircraft was struck by a surfaceto-air missile.392 Ultimately, however, responsibility for the Pan Am bombing
was attributed to a Libyan, not Iranian, operative. The subsequent imposition of
sanctions on Libya by the US served to maintain the Pan Am bombing as a live
international issue.393
As well, another event overshadowed the Air India bombing for the American
public and the US civil aviation community. This was the seizure of an aircraft
belonging to Trans World Airlines (TWA), an American airline, on June 14, 1985,394
and the subsequent saga of hostages held in Lebanon. The lessons of the Air
India disaster were overlooked – a profound mistake, according to Wallis:
The importance given by the U.S. carriers to the TWA seizure
was understandable. It was a major national and media event
with daily pictures of the aircraft on the ground at Beirut
being shown on all the front pages and on the television news
bulletins…. With a number of men taken and held hostage in
Beirut, the level of emotion created in the United States was
certain to give precedence of thought in that country to this
386 Exhibit P-157, p. 89 of 135.
387 Exhibit P-157, p. 89 of 135.
388 Testimony of Peter St. John, vol. 37, May 31, 2007, p. 4522; see also Testimony of Rodney Wallis, vol. 37,
May 31, 2007, p. 4526; see also Wallis, Lockerbie, p. 53.
389 Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4525-4526.
390 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4527.
391 Testimony of Peter St. John, vol. 37, May 31, 2007, pp. 4522-4523.
392 Wallis, Combating Air Terrorism, p. 28.
393 Testimony of Peter St. John, vol. 37, May 31, 2007, pp. 4522-4523.
394 Wallis, Combating Air Terrorism, p. 2.
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Volume Four: Aviation Security
criminal act rather than to the Air India incident. Yet it was a
gargantuan mistake for the Air India disaster to be afforded
only second-level importance by the U.S. airlines. From
the loss of the Kanishka came the most significant change
in international aviation security standards in the 1980s –
the mandatory requirement for passenger and baggage
reconciliation. Failure by Pan Am to implement this procedure
was to claim 270 more lives just three years later.395
Wallis speculated that, had US airlines participated more fully in the debates
within IATA that followed the Air India bombing, their attitudes towards
passenger-baggage reconciliation might have been different.396 Passenger and
baggage matching had been recommended by IATA since the summer of 1985.
The Kirpal Commission urged the same measure in its February 1986 report,
particularly for interlined baggage.397
Wallis also noted that the Pan Am disaster, unlike the bombing of Air India Flight
182, occurred over land. The wreckage was strewn over the town of Lockerbie
and people also died on the ground: “...The hunt for wreckage, for evidence as
to what had happened, the attempt to recover the victims” was all on dry land
and was “played out on television.”398 In contrast, Flight 182 crashed into the sea,
and although the hunt for wreckage received media coverage, the extent of the
damage was not as easily visible.399
However, it was perhaps the perception that the bombing of Pan Am Flight
103 was an attack on the West, rather than on the East, that lies at the heart
of the issue. As St. John observed in testimony, the downing of an American
airline containing mostly British and American passengers created “...enormous
consternation and international reaction.”400
Some other civil aviation security incidents give rise to similar inferences. On
November 29, 1987, liquid explosives carried in hand baggage destroyed Korean
Air Flight 858 as it flew over the Andaman Sea, destined for Seoul. All 115 people
on board died. South Korea was the target.401 This was clearly a significant act of
aviation terrorism, but the threat posed by liquid explosives was not addressed
by the international community until 2006, when a terrorist plot was exposed in
the UK to launch simultaneous attacks on several Western air carriers using liquid
and gel explosives. Only then were lasting security measures implemented. A
ban on liquids and gels in carry-on baggage occurred, and limits on the volumes
of liquids and gels are now a feature of pre-board screening (PBS).402
395
396
397
398
399
400
401
402
Wallis, Lockerbie, pp. 10-11.
Wallis, Lockerbie, p. 13.
Exhibit P-164, Recommendation 5.5, p. 173.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4525.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4525.
Testimony of Peter St. John, vol. 37, May 31, 2007, p. 4522.
Wallis, Combating Air Terrorism, p. 18.
Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4585.
�Chapter II: Responses to the Bombing of Air India Flight 182
No country, air carrier or airport operator can afford to ignore aviation security
incidents, wherever in the world they occur. A threat to one must be understood
as a threat to all.
2.3.5 Conclusion
Security can never be perfect, but there is no excuse for repeating mistakes
when the measures to prevent them are known and available. The bombing of
Air India Flight 182 spurred the civil aviation community to action to prevent
sabotage. The introduction of a regulation requiring passenger-baggage
reconciliation was a known method of preventing a recurrence of this disaster.
Federal regulations in the US required its use. Yet Pan Am did not implement the
measure for its Flight 103.
Perhaps the greater focus on the Pan Am bombing reflected the US-centred
axis of world media. Within the civil aviation security community itself, this
bias should not have carried weight. The lessons from the bombing of Air India
Flight 182 should have been absorbed into the marrow of that community. The
follow-up lesson taught by Pan Am Flight 103 should not have been necessary
before the security gaps already identified after the Air India bombing were
addressed.
The CATSA Advisory Panel noted that, even after the Air India and Pan Am
bombings, the implementation of many measures proposed by ICAO remained
voluntary and that, even when the measures were mandatory, Contracting
States did not always adopt them. Before September 11, 2001, few governments
had introduced regulations requiring the screening of all passengers and
hold baggage on all flights. Few countries conducted passenger-baggage
reconciliation, and equipment for detecting plastic explosives at airports was
relatively rare.
Words and pledges of action are not enough. Improved security conceived in
theory is fine, but the practical application is the only thing that will save lives.
Aviation authorities around the world must commit in concert to an unfaltering
focus on effective security. If weaknesses are allowed here and there, terrorists
will simply direct proven methods of sabotage to these points of vulnerability.
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�VOLUME FOUR
AVIATION SECURITY
CHAPTER III: CIVIL AVIATION SECURITY IN THE PRESENT DAY
3.1 Responses to the Terrorist Attacks of September 11, 2001
On September 11, 2001, four American passenger jets were hijacked in a
coordinated terrorist attack. Two were flown into the twin towers of the World
Trade Center in New York City. The third aircraft struck the Pentagon building in
Arlington, Virginia, while the fourth, possibly destined for an attack on the White
House, crashed into a field southeast of Pittsburgh, Pennsylvania.1
These attacks represented a fundamental change in aviation terrorism. Never
before had aircraft been successfully used as guided missiles in a sophisticated
suicide mission.2 Existing measures for aviation security proved ineffective.3
Canadian aviation security underwent its most significant change as a result of
these attacks.4
3.1.1 Historical Context
There was a popular misconception that this was the first time terrorists had
orchestrated an incident using multiple aircraft. In fact, the first coordinated
incident involved Dawson’s Field, an abandoned airstrip in the Jordanian
desert, some 30 years earlier. It was organized by Leila Khaled, a prominent
leader within the Popular Front for the Liberation of Palestine (PFLP). The group
planned to hijack three aircraft, representing different countries and departing
from different locations, and then direct them to Dawson’s Field.5
On September 6, 1970,6 members of the group successfully took over a Swissair
Coronado aircraft and a Trans World Airlines (TWA) 707 and flew them to Dawson’s
Field. The plan also included an attack on an El Al aircraft, which involved Khaled
herself. She flew from Germany with a fellow PFLP member and they transferred
to the El Al flight in Amsterdam. Two others were to join them on this mission,
but the flight was overbooked and the two were unable to secure seats. Instead,
1
2
3
4
5
6
Bob Rae, Lessons to be Learned: The report of the Honourable Bob Rae, Independent Advisor to the Minister
of Public Safety and Emergency Preparedness, on outstanding questions with respect to the bombing of Air
India Flight 182 (Ottawa: Air India Secretariat, 2005), p. 42 [Lessons to be Learned].
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4532; see also Exhibit P-157, p. 93 of 135.
Exhibit P-157, p. 93 of 135.
Exhibit P-169, p. 16 of 202.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4530.
See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
�64
Volume Four: Aviation Security
they seized a Pan American (Pan Am) Boeing 747 and flew it to Cairo, where the
aircraft was destroyed by explosives following its evacuation.7
Although Khaled and her companion continued with their El Al hijacking
plans, they were unsuccessful. Guards on board the El Al flight intervened,
her companion was shot and Khaled was taken into custody in London, the
destination to which the aircraft had been diverted. In immediate response,
other members of the PFLP hijacked a British Overseas Airways Corporation
(BOAC) aircraft, and it joined the other commandeered planes at Dawson’s Field.
About 300 hostages were held in the desert during negotiations for the release
of terrorists detained in several European countries. The terrorists achieved their
objectives and the passengers were released unharmed.
This was a highly successful coordinated terrorist attack.8 It is generally
considered to represent the birth of modern air terrorism.9
The terrorists in the Dawson’s Field incident wanted to make a political
statement, but they also wanted to emerge alive, unlike those involved in the
events of September 11th.10 The civil aviation community had considered the
possibility of terrorists seizing and exploding aircraft over major world capitals
with the intent of “raining terror from the skies.”11 Even so, the “disposable”
terrorist who sacrificed his or her life in the attack was not considered a serious
possibility before 2001.
In 1994, terrorists attempted to explode a hijacked aircraft over Paris, but
authorities foiled the plot.12 The prospect of planes being flown into critical
infrastructure buildings was raised in the United States as early as 1972. On
November 10, 1972, Southern Airways Flight 49 was seized by three fugitives in
a lengthy hijacking. At one point, the hijackers threatened to crash the aircraft
into an atomic power plant in Oak Ridge, Tennessee.13
7
8
9
10
11
12
13
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4530-4531; see also Exhibit P-448, pp. 70-71.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4531.
Exhibit P-259: Rodney Wallis, Combating Air Terrorism (New York: Brassey’s, 1993), p. 92 [Wallis,
Combating Air Terrorism].
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4531.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4532.
On December 24, 1994, Air France Flight 8969, bound for Paris from Algiers, was hijacked by the
Algerian terrorist organization Armed Islamic Group (GIA). The four hijackers boarded the aircraft
disguised as Air Algérie security staff. Authorities delayed departure of the aircraft, but were
intimidated into giving the go-ahead when the hijackers killed two of the 227 persons on board. The
French government decided not to allow the aircraft to approach Paris because its consulate in Oran,
Algeria had received an intelligence warning that the hijackers intended to explode the aircraft over
Paris. The flight crew convinced the hijackers that refueling in Marseille was required. After the aircraft
touched down, hours of negotiations ensued, whereupon the terrorists demanded fuel. French police
commandos (GIGN) stormed the aircraft and after a 20-minute gunfight successfully rescued the 161
remaining passengers (some had been released during negotiations) and three flight crew. This
method of air terrorism was discussed among aviation security circles for some time afterwards. See
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4532; see also Appendix A, Chronology: Significant
Acts of Unlawful Interference with Civil Aviation.
See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
�Chapter III: Civil Aviation Security in the Present Day
Successful suicidal hijackers were also not completely unheard of before the
September 11th attacks. On December 10, 1987, a disgruntled former US Air
employee hijacked a US Air aircraft. He shot the pilot, sending the aircraft into a
dive and crash that left no survivors among the 43 people on board.14 Suicidefor-insurance schemes were a feature of aviation sabotage in the 1950s and 60s.15
These incidents, however, involved “the fringe element”16 – suicidal individuals
with isolated agendas – whose behaviour was random and very different from
that of “…a group of people planning and carrying out a mass attack.”17 Aviation
security measures should of course be designed to protect against both suicidal
individuals and those intent on carrying out a mass attack.
3.1.2 International Response
The international civil aviation community reacted swiftly to the events of
September 11th. In the following months, the International Civil Aviation
Organization (ICAO) passed several resolutions strongly condemning the use of
aircraft as weapons of mass destruction.18 It also called upon aviation security
specialists to bring focus to what some described as the “new post-9/11 threat
level.”19 An urgent review of Annex 17 to the Convention on International Civil
Aviation (“Chicago Convention”) began. Annex 17 set out the basis for the ICAO
civil aviation security program. The review led to the tenth amendment to Annex
17. Amendment 10 was a major revision,20 introducing many new standards
to strengthen security overall and to respond directly to the September 11th
attacks.21
In the autumn of 2002, ICAO introduced a mandatory program for auditing
state compliance with Annex 17 standards known as the Universal Security
Audit Program (USAP).22 Annex 17 was further amended by Amendment 11
in April 2006. Amendment 11 clarified the wording of some provisions and
significantly raised the standards for screening passengers, baggage and cargo.
This amendment is the most current security standard for safeguarding civil
aviation.23
14
15
16
17
18
19
20
21
22
23
Wallis, Combating Air Terrorism, pp. 2-3; see also Appendix A, Chronology: Significant Acts of Unlawful
Interference with Civil Aviation.
On July 25, 1957, an explosion occurred on Western Air Lines Flight 39 while it was mid-air over the
Mojave Desert in Southern California. In what was believed to be a suicide-for-insurance scheme, a
retired jeweller had set off dynamite explosives in the lavatory shortly after the flight had taken off.
The perpetrator died in the incident, but all others aboard were uninjured. A murder-for-insurance
scheme had occurred in Canada several years earlier. On September 9, 1949, near Sault Au Cochon,
Quebec, a bomb exploded in a forward baggage compartment of a Quebec Airways (Canadian Pacific)
DC-3, killing 23 people. Albert Guay and two accomplices (the bomb maker and the person who
delivered the package containing the bomb to the plane) were tried, convicted and executed. Guay’s
wife, who died in the incident, had been insured, with Guay as the beneficiary. See Exhibit P-448, p. 95;
see also Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4534.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4534.
Exhibit P-157, p. 93 of 135.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4706.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4707.
Exhibit P-157, p. 93 of 135; see also Exhibit P-180.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4709.
Exhibit P-157, p. 94 of 135.
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3.1.2.1 International Civil Aviation Organization: Annex 17 Amendments
Amendment 10 to Annex 17 was developed by the Aviation Security Panel
(AVSEC Panel) of ICAO, which met in the autumn of 2001. The Panel was created
after the Air India bombing.24 This group of international civil aviation security
experts provides advice to ICAO on the development of Annex 17 standards
and recommendations. As it did after the Air India bombing, the AVSEC Panel
undertook a comprehensive revision of Annex 17 in 2001.25 Amendment
10, or the Seventh Edition, to Annex 17 was adopted in December 2001 and
became effective in April 2002.26 It introduced many new standards to enhance
security, both on the ground and in aircraft, including a requirement to ensure
the prevention of unauthorized access to the cockpit,27 a direct response to
the attacks of September 11th.28 Other new provisions relating to domestic
operations were described by one commentator as “…an unprecedented reach
by an international organization into domestic law…accomplished through the
exercise of the organization’s quasi-legislative authority to amend the Chicago
Convention.”29 Provisions dealt with:
•
•
•
•
•
•
•
•
•
•
international co-operation regarding threat information;
the National Aviation Security Committee;
the appropriate authority;
quality control;
access control;
screening of passengers, carry-on baggage and hold baggage;
in-flight security personnel;
code-sharing and collaborative arrangements;
human factors in civil aviation security; and
management of responses to acts of unlawful interference.30
In April 2006, Annex 17 was again revised. Amendment 11 set out the current
security standards for civil aviation. The amendment clarified the wording of
existing standards and included significant improvements to the requirements
for passenger, baggage and cargo screening. For example, Standard 4.5.3
strengthened previous provisions implemented by ICAO in 198931 for passengerbaggage reconciliation. Standard 4.5.3 reads as follows:
24
25
26
27
28
29
30
31
In the immediate aftermath of the Air India and Narita Airport bombings, ICAO convened an ad hoc
group of security specialists to review Annex 17. It later became a permanent group and was renamed
the AVSEC Panel. See Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4707.
Exhibit P-157, p. 93 of 135; see also Exhibit P-180.
Exhibit P-157, p. 93 of 135.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4708.
See Exhibit P-157, p. 93 of 135, quoting from Paul Dempsey, Aviation Security: The Role of Law in The War
Against Terrorism, Columbia Journal of Transnational Law, 2006, p. 689.
Exhibit P-180, p. viii; see also Exhibit P-157, p. 93 of 135.
Exhibit P-157, p. 94 of 135.
�Chapter III: Civil Aviation Security in the Present Day
Each Contracting State shall ensure that commercial air
transport operators do not transport the baggage of
passengers who are not on board the aircraft unless that
baggage is identified as unaccompanied and subjected to
additional screening.32
Hold bag screening (HBS) was addressed in Standard 4.5.5, which required each
Contracting State to ensure that:
…commercial air transport operators transport only items
of hold baggage which have been individually identified as
accompanied or unaccompanied, screened to the appropriate
standard and accepted for carriage on that flight by the air
carrier. All such baggage should be recorded as meeting these
criteria and authorized for carriage on that flight.33
Amendment 11 also required security controls for cargo and mail before they
were loaded onto commercial aircraft.34 New requirements about screening
personnel were established, including security clearance procedures,
performance standards, certification and recertification, periodic audits, tests,
surveys and inspections, and the authority to require remedial actions.35
Amendment 11 required ICAO Contracting States to have in place restricted area
clearance systems for authorized personnel, checkpoints to verify their identity
on entry to restricted areas and random screening of persons and identification
of vehicles entering restricted areas. The relative proportion of these measures
was to be based on a risk assessment carried out by the appropriate national
authority.36 In addition, Amendment 11 enhanced the security provisions of other
Annexes to the Chicago Convention, such as the recommended use of biometric
data, including face recognition, iris scans and fingerprints in machine-readable
travel documents,37 as well as aircraft and airport perimeter security.38
In-flight security measures were addressed in Standard 4.7. These included the
handling of disruptive passengers and the provision of armed “in-flight security
officers,” or air marshals.
In response to the 2006 plot in the UK to bomb several US- and Canada-bound
aircraft by using liquid or gel explosives, ICAO expanded its list of items prohibited
on aircraft to include liquid, gel and aerosol products. ICAO pledged to deal
32
33
34
35
36
37
38
Exhibit P-157, p. 94 of 135.
Exhibit P-157, p. 94 of 135.
Exhibit P-157, p. 94 of 135.
Exhibit P-157, p. 94 of 135.
Exhibit P-157, p. 94 of 135; see also Exhibit P-181, p. 4-1, s. 4.2.
Exhibit P-157, p. 95 of 135.
See Extracts from Annex 9 – Facilitation and Extracts from Annex 14 – Aerodromes, Exhibit P-181, pp.
ATT-4, ATT-10; see also Exhibit P-157, p. 95 of 135.
67
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“proactively” with this and other threats that might emerge. It also promised
to focus on enhanced airside security, including screening airport workers, and
cargo, catering and hold baggage security, as well as the possible introduction
of other security measures, such as behavioural pattern recognition.39
According to the CATSA Act Review Advisory Panel (CATSA Advisory Panel), an
independent panel of experts, the two amendments to Annex 17 that were
adopted after September 11th reflected the lessons learned from events such
as the Air India and Pan Am bombings and the attacks of September 11th. ICAO
continues to review and update Annex 17 to address the changing aviation
security environment.40
3.1.2.2 International Civil Aviation Organization: Universal Security Audit
Program
In February 2002, ICAO convened a high-level ministerial conference on aviation
security to develop a plan for continued security enhancements. Among the
most significant initiatives was the Universal Security Audit Program (USAP).41
Although the concept of such a program had been discussed at a ministeriallevel meeting of ICAO in 1989, the idea did not gain sufficient political support.
Issues of national sovereignty hindered progress.42 It was not until 13 years
later, after the 9/11 attacks, that the 33rd Assembly of ICAO “…reached the
same conclusion as the earlier meeting of ministers.”43 Following the high-level
ministerial conference in 2002, Canada was invited to participate in a working
group to develop the audit program.44 Transport Canada’s Director of Security,
Jean Barrette, participated. The audit program was launched in the autumn of
2002.45
Administered by ICAO, the USAP is an international program for assessing state
compliance with Annex 17 standards46 through “regular, mandatory, systematic
and harmonized audits.”47 Under the program, a team of auditors is sent to a
state after advance notice from ICAO.48 The team evaluates national aviation
security at the government level, studying the country’s regulatory structure,
including legislation and regulations that pertain to aviation security, to assess
the structure’s comprehensiveness and sustainability.49 On a sample basis,50 the
39
40
41
42
43
44
45
46
47
48
49
50
Exhibit P-157, p. 95 of 135.
Exhibit P-157, p. 95 of 135.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4709.
Exhibit P-261: Rodney Wallis, How Safe Are Our Skies? Assessing the Airlines’ Response to Terrorism
(Westport, Conn.: Praeger Publishers, 2003), p. 72 [Wallis, How Safe Are Our Skies?].
Wallis, How Safe Are Our Skies?, p. 72.
Testimony of Jean Barrette, vol. 39, June 4, 2007, pp. 4714-4715.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4709.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4709.
Exhibit P-157, p. 93 of 135.
Advance notice usually consists of a few months. See Testimony of Jim Marriott, vol. 39, June 4, 2007, p.
4724.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4734.
Wallis, How Safe Are Our Skies?, p. 72.
�Chapter III: Civil Aviation Security in the Present Day
team also examines security and policing of airports and airlines.51 The audit
identifies and helps correct deficiencies in the implementation of Annex 17
security standards and recommendations.52 An ICAO manual outlines the audit
process and includes a code of ethics. The manual describes the items to be
audited, the method for conducting the audit, the process for state notification,
and pre- and post-audit briefings. It also covers the selection, training and
certification of auditors. The manual is available to all Contracting State members
of ICAO.53
The USAP exemplifies collaborative action by ICAO members. This is both its
strength and its weakness.
Audit teams are selected by ICAO from a pool of auditors nominated by member
states. Typically, these auditors are drawn from national aviation or transportation
security administrations. They are public servants with experience in aviation
security.54 Auditors who participate in the USAP are trained further and certified
by ICAO.55 Canada contributes regularly to ICAO’s pool of auditors. Canadian
participants who are ICAO-trained and certified may work under the auspices
of the USAP around the world.56
A USAP audit of Canada took place in May 2005. According to the agreements
signed between ICAO and audited states, USAP findings and recommendations
cannot be made public.57 The USAP audit report of Canada therefore remains
confidential. Nevertheless, at least three independent national reviews of
Canada’s aviation security, both before and after the USAP audit, identified
significant and ongoing deficiencies. The reports include The Myth of Security
at Canada’s Airports,58 published in January 2003 by the Standing Senate
Committee on National Security and Defence (Senate Committee); Flight Plan:
Managing the Risks in Aviation Security,59 issued in 2006 by the CATSA Advisory
Panel; and the Canadian Security Guide Book,60 an update on airport security
released by the Senate Committee in 2007.
The Commission finds that deficiencies in security still have not been addressed
sufficiently. Problems that remain include those relating to air cargo security,
non-passenger screening and access to airside and restricted areas of airports,
as well as Fixed Base Operations (FBOs) and the General Aviation (GA) sector.61
51
52
53
54
55
56
57
58
59
60
61
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4734.
Exhibit P-157, p. 93 of 135.
Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4716. As of April 2009, there were 190 Contracting
States of ICAO.
Testimony of Jim Marriott, vol. 39, June 4, 2007, pp. 4710-4711.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4712.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4710.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4714.
Exhibit P-171, pp. 41-42, 47-96 of 256.
Exhibit P-169; see, in particular, pp. 52-56, 57-59, 67-69 of 202.
Exhibit P-172; see, in particular, pp. 11-44, 65-74 of 155.
See Sections 8.1, 8.2 and 8.3 for further elaboration regarding these deficiencies.
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The secretive nature of the USAP audit, in which results are shared only with the
state,62 raises some concerns, particularly because problems that were raised by
others before the audit seemed to persist even after the audit. Rodney Wallis,
an international aviation security expert and former Director of Security for the
International Air Transport Association (IATA), noted:
...[I]t is an interesting situation, because if we are looking
at [the audit] in ignorance and we note that the audit team
came, do we assume that the audit team found nothing, and
everything was rosy? Do we assume that they found things
were wrong, and nothing has been done? And I say nothing
has been done because [the Senate Committee] comes along
and [is] critical, and I just wonder how the two relate.63
It appears that the USAP audit raised some concerns, because Canada prepared
a Corrective Action Plan in response to the audit, and because ICAO made a
follow-up visit in 2007 to review Canada’s progress on issues that were raised
during the 2005 audit.64
Transport Canada officials advised the Commission in May 2008 that ICAO had
completed a full cycle of audits. In other words, all Contracting States had been
audited under the existing USAP. The focus of ICAO audits is now shifting from
the scrutiny of aviation security practices at the government and airport level
towards a review of the oversight capabilities of states. In future, ICAO will audit
each Contracting State’s ability to audit its own aviation security regime.65
Transport Canada officials praised the USAP, but it received sharp criticism from
Wallis. During his time at IATA between 1980 and 1991, Wallis was responsible
for a similar international airport survey program, known as the Intensified
Aviation Security Program. This program was established in the late 1970s by
the Security Advisory Committee (SAC), a specialist committee of IATA. SAC
membership consisted of security chiefs of major airlines, and the Committee
was led by IATA’s Director of Security.66 The SAC sought to identify lessons to
be learned and it developed collective policies for preventing terrorism. Its
members recognized that some airports were more vulnerable than others,
since implementation of Annex 17 standards differed widely, and not all
governments had adopted the security rules contained in Annex 17. The SAC
noted ICAO’s inability to secure implementation of its provisions. In response,
the SAC developed its Intensified Aviation Security Program,67 which involved
surveying airports that member airlines identified as problematic.68 Sometimes
62
63
64
65
66
67
68
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4714.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4741.
Exhibit P-101 CAF0827, p. 11 of 19.
Exhibit P-101 CAF0827, p. 13 of 19.
Wallis, How Safe Are Our Skies?, p. 69.
Wallis, How Safe Are Our Skies?, p. 69.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4717-4718.
�Chapter III: Civil Aviation Security in the Present Day
airlines would nominate airports to be surveyed because security standards
were perceived to be poor. Other times, an airport authority would approach
IATA and request a survey. Either way, surveys took place with the full consent
of the authority concerned.69 Wallis wrote about the benefits of the Intensified
Aviation Security Program for airlines:
This was not an altruistic action by the airlines. It was simply
a very cost effective way of ensuring that airlines serving a
particular airport were afforded the maximum protection
against terrorist attacks.70
The Council of Europe, in a review of aviation security, declared the IATA
program to be the “...only objective survey program available to the industry
and to governments.”71
Wallis was responsible for about 200 airport surveys around the world during
his time at IATA. He expressed several concerns about the USAP auditing
process. First, he noted the considerable delay in establishing the program after
it was conceived. ICAO had discussed the possibility of an audit program in
1989, following the bombing of Pan Am Flight 103.72 A program to assess state
and airport compliance with compulsory security measures would have been
understandable in the aftermath of this bombing, since it involved a failure of
Pan Am to implement a federally-required passenger-baggage reconciliation
program.73 ICAO convened a ministerial-level meeting in 1989, a meeting which
included Canada’s Minister of Transport and corresponding ministers from the
US and the UK.74 Those at the meeting referred to IATA’s survey activities and
recommended starting a voluntary ICAO-based security survey program for
states, to be initiated only on state request. Wallis viewed the voluntary nature
of the proposed program and the fact that it would come into play only when
a state requested as a limitation. Nonetheless, he concluded that, though such
a service could have proved valuable, the political nature of ICAO, as discussed
earlier, hindered approval of the program.75
The 13-year delay in establishing the ICAO audit program highlights a theme
that has emerged before the Commission – that it is often not the first major
incident that sparks change in security measures, but only the second or third.
Only then does a protective measure find acceptance. Examples of measures,
besides the USAP and passenger-baggage reconciliation, where implementation
or enforcement showed this pattern of delay include full hold bag screening
(HBS) and air cargo security initiatives, such as cargo screening and a system
69
70
71
72
73
74
75
Wallis, How Safe Are Our Skies?, p. 71.
Wallis, How Safe Are Our Skies?, p. 71.
Wallis, How Safe Are Our Skies?, p. 72.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4718; see also Wallis, How Safe Are Our Skies?, p. 72.
Exhibit P-260: Rodney Wallis, Lockerbie: The Story and the Lessons (Westport, Conn.: Praeger Publishers,
2001), p.12 [Wallis, Lockerbie].
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4718; see also Wallis, How Safe Are Our Skies?, p. 72.
Wallis, How Safe Are Our Skies?, p. 72.
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of regulated agents. Air cargo security still has not been properly addressed in
Canada.
Wallis questioned the effectiveness of the USAP. He felt the underlying principles
were problematic. The survey of airports only on a “sample basis” was of particular
concern, since the security of passengers depended upon the security practices
of all airports and airlines. He argued that the focus of audits should be on the
application of security measures, not merely on the high level organization
running the security program.76
Wallis was also concerned about how auditors were selected and their level of
expertise, particularly since they were drawn from the civil service of their home
countries, unlike the experts engaged for the IATA survey program:
One difference between any ICAO program and that of IATA
might be in the experience of the teams chosen to undertake
the monitoring task. The airline teams were all practicing
security professionals with line responsibilities within their
own airlines. They had to maximize protection for their
companies and its customers. There is a danger the ICAO
teams will comprise civil servants, volunteered for the task
by individual countries, but who have had no direct, practical
aviation security experience at airports or within airlines.77
Wallis was concerned that, in an imperfect world, states might not engage in
a rigorous process of selection and might nominate persons “…for the simple
reason [that] it’s somebody[’s] turn or some department’s turn to have somebody
working in an international field. So you can send anybody in effect.”78 As well,
individuals might be selected for the USAP from states that have minimal
experience in aviation security. Instead, he said, auditors should be appointed
from countries with proven experience and competence in security.79
Wallis stated that he was not “in any way” challenging the integrity of individuals
nominated by states, but that he was “questioning the practicality of such a
structure,” since civil servants generally did not have a working knowledge of
aviation security at the airport or airline level.80 He stated that individuals lacking
practical experience in aviation security could not suddenly become competent
merely by taking a few weeks’ training.81 In contrast, IATA audit teams consisted
of security heads of major airlines who possessed considerable experience with
76
77
78
79
80
81
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4719.
Wallis, How Safe Are Our Skies?, p. 73.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4720.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4720.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4720, 4722.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4723-4724.
�Chapter III: Civil Aviation Security in the Present Day
their own airlines and with other airlines and airports around the world.82 He
continued:
You have to have knowledge of another airlines’ operation, and
I consider the people that have come up through this arena are
the true experts capable of monitoring, auditing, identifying
problems at airports around the world. They are there to
protect their commercial interests in such places. I don’t see
this with ICAO.83
If auditors lacked this expertise, notifying states of upcoming audits increased
the potential for states to devise “cosmetic” solutions to disguise deficiencies
in time for the audit. On the other hand, the IATA audit teams, which sought
permission to survey airports where problems were already identified, could not
be fooled. They were experts in the field and they were auditing airports where
industry members had identified many deficiencies. In such cases, auditors
could readily detect contrived or cosmetic solutions to security issues.
Wallis described how the IATA survey program was structured in the 1980s. A
request for an audit team would usually be made by an industry member. A team
of experts would be selected, based on those airlines with direct or planned
involvement in a geographic area. The experts would have airline experience and
often also a military or police background. The IATA audit teams reviewed eight
key security points, beginning at the national level, assessing state compliance
with several international conventions, including compliance with Annex 17
provisions. The team would then assess airport security. For example, it would
review whether a crisis plan existed for dealing with an instance of unlawful
interference. It would also examine issues such as perimeter security, access
control, the security of catering supplies and engineering services, passenger
and baggage screening, reconciliation procedures, cargo security, surveillance
mechanisms, lighting and the possible security threats posed to aircraft by
cleaners, groomers and flight crews.84
Wallis did not know if the IATA survey program continues today.85
Transport Canada officials stated that many of Wallis’s concerns were discussed
during the development of the USAP, but that other perspectives were influential
as well. Jim Marriott, Director of Transport Canada’s Aviation Security Regulatory
Review at the time of the Commission hearings, expressed concern that having
industry experts on audit teams might allow them to see sensitive commercial
and state information.86 He stated that ICAO built teams of auditors from a
pool of very experienced aviation security professionals, some with extensive
82
83
84
85
86
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4720.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4721.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4727-4732.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4732.
Testimony of Jim Marriott, vol. 39, June 4, 2007, pp. 4732-4733.
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industry experience.87 Wallis countered that the possibility that industry experts
might see sensitive information had never caused concern in the IATA survey
program. He argued that airlines needed to be aware of sensitive security
information to put appropriate security procedures in place. He testified about
his concern that, under the USAP, using foreign government representatives as
auditors might give them access to sensitive information about other states.88
Wallis had earlier written that this was one of the concerns raised by states when
the audit program was first proposed in 1989, and which led to the shelving of
the concept at the time.89
Marriott noted that the eight key survey activities that formed part of IATA’s
Intensified Aviation Security Program bore a “striking resemblance” to those
carried out by USAP teams.90 Marriott agreed that providing notice to states
might permit them to improve their operations in advance of the audit, or come
up with explanations or justifications. However, the time frame was normally only
a few months. Marriott stated that this would not be enough time to implement
significant enhancements. He explained that notice was necessary because of
the amount of preparatory work required by the audit teams. The notice period
allowed states to provide the team with documentation so it could study the
state’s regulatory instruments and structure, which in turn enabled an informed
and comprehensive audit.91
Wallis raised concerns about the USAP, notably the potential for problems when
a country conducts its own security audits. Extensive experience in aviation
security at the ground level becomes all the more important for audit team
members. Wallis offered a workable solution for the concerns he raised. He noted
that ICAO and IATA, as organizations, were conceived at the same Conference
on International Civil Aviation, held in Chicago in 1944,92 and that there has
been an ongoing requirement for the two to collaborate.93 A blending of their
respective areas of expertise would provide the best solution, with civil servants
and industry experts working together. In addition, those countries with the
greatest expertise in monitoring aviation security standards, including Canada,
should serve as the primary source of government expertise:
Continental governments that with their national air carriers
have regularly participated in monitoring security standards
around the world may be able to provide a nucleus around
which ICAO can build. Canada, Australia, Singapore, and Japan
may also make valid input. A combination of personnel from
such governments plus aviation industry professionals, who
have more than a passing interest in the standard of security
87
88
89
90
91
92
93
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4733.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4739-4740.
Wallis, How Safe Are Our Skies?, p. 72.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4734.
Testimony of Jim Marriott, vol. 39, June 4, 2007, pp. 4724-4725.
Wallis, Combating Air Terrorism, p. 91.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4723.
�Chapter III: Civil Aviation Security in the Present Day
at international airports, could be the way ahead. In any event,
ICAO officials will have to bite on one unpalatable bullet: They
must accept that most of their contracting states will not
have the expertise to participate as team players in any audit
program. Such states will instead need to be recipients of the
service.94
Wallis warned of the inherent difficulties of working within international fora.
He noted the remarks of Dr. Assad Kotaite, a former ICAO Council President,
following the decision to develop an international audit program: “...This is
a historic moment in the evolution of civil aviation. I am extremely proud of
the work we have achieved at this Conference and I am convinced that it will
contribute greatly to protecting lives, restoring public confidence in air travel,
and promoting the health of air transport.”95 Wallis said that such rhetoric, or
“glorified language,”96 within the international community must not be allowed
to mask the need for real change in aviation security. Rules, programs and
policies may be put into place, but it is their application that matters:
I’m not sure that any announcement actually strengthens
international aviation security. It comes down to application of
the intentions behind such an announcement.
I am always suspicious when the rhetoric rises…and often
new announcements are sort of sound bites which have some
sort of political value. But it comes down to what actually is
implemented.97
Wallis testified about his continuing worry about the state of aviation security
around the world and was “…yet to be convinced that the international
response to 9/11 is quite the response that we need.”98 Still, he acknowledged
the important role of ICAO:
And really, having an opportunity for states to come together
to debate and discuss the situation is very valuable. And
that to me is the real value of ICAO. It provides a chamber in
which the…contracting states of the organization can discuss
security matters. It is there that I personally would look not
for rhetoric but for input by the major states who can be an
influence on the smaller ones, even to the extent of funding
certain things in a smaller state either by way of aid or simply
as a bilateral relating to civil aviation operations.99
94
95
96
97
98
99
Wallis, How Safe Are Our Skies?, pp. 73-74.
Wallis, How Safe Are Our Skies?, p. 74.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4722.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4747.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4722.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4748.
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3.1.2.3 North America
The US reacted quickly to the September 11th attacks, passing legislation
in November 2001 that transferred federal responsibility for passenger and
baggage screening from the Federal Aviation Administration (FAA) to the
Transportation Security Administration (TSA), which later became part of the
Department of Homeland Security (DHS). The new legislation required that all
checked baggage be screened and that screeners be certified.100
With the threat presented by September 11th – that of suicide attackers
commandeering aircraft for use as weapons101 – the United States decided it
would no longer permit aircraft to land at Ronald Reagan Washington National
Airport (Reagan National Airport)102 without an air marshal on board.103 The main
concern was the proximity of the airport to significant government landmarks
in Washington.104 The US asked Canada to deploy only RCMP officers as air
marshals travelling to Reagan National Airport. Transport Canada then directed
the RCMP to develop an air marshal program to enable Canadian flights to
land at Reagan.105 The Canadian Air Carrier Protective Program (CACPP) was
implemented in 2001.106
On December 12, 2001, Canada and the US signed the Smart Border Declaration,
with its 30-point Action Plan designed to enhance the security of their shared
border while facilitating legitimate flows of people and goods. The Declaration
included measures related to aviation security, such as the development of
common standards for biometric identifiers on travel documents,107 the mutual
recognition of national security standards and the sharing and analyzing of
transborder and international passenger information.108
Since June 2005, the United States, Canada and Mexico have co-operated to
protect aviation in North America from terrorist threats.109 A joint statement
issued on March 31, 2006 declared that innovative risk-based approaches
to improving security and facilitating trade and travel would be encouraged.
These were to include close coordination on infrastructure investments and
vulnerability assessments, screening and processing of travellers, baggage and
cargo, a single integrated North American trusted traveller program and swift
law enforcement responses to criminal or terrorist threats.110
100 Exhibit P-157, p. 96 of 135.
101 Exhibit P-157, p. 93 of 135.
102 The Ronald Reagan Washington National Airport is also referred to by the code “DCA.” See Testimony of
Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8059-8060.
103 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8059.
104 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8060.
105 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8059-8060.
106 Exhibit P-157, pp. 105-106 of 135.
107 The NEXUS Air program uses biometric recognition technology to identify pre-approved, low-risk
Canadian and US travelers for facilitated entry through Customs and Immigration to both countries.
See Exhibit P-157, p. 96 of 135.
108 Exhibit P-157, p. 96 of 135.
109 Exhibit P-157, p. 96 of 135.
110 Exhibit P-157, p. 96 of 135.
�Chapter III: Civil Aviation Security in the Present Day
3.1.2.4 Europe
Before September 11, 2001, there was no binding mechanism in Europe to
ensure the proper application of security standards outlined by ICAO and the
European Civil Aviation Conference (ECAC), an intergovernmental organization
established to promote a safe, efficient and sustainable European air transport
system. To remedy this, the European Union (EU) introduced a security policy to
give legal force to the rules and mechanisms for co-operation at the EU level.111
On January 19, 2003, a mandatory European Council Regulation (2320/2002)
came into effect, establishing security standards at all EU airports.112 Under
the regulation, National Aviation Security Programmes and National Quality
Control Programmes were established to ensure proper implementation of
security standards. The EU also acquired the authority to inspect the security
procedures of all member airports and to demand compliance with the new
rules.113 The Annex to the regulation, as well as its implementing regulations,
contained detailed rules for improvements in many areas: airport security,
including access control and 100 per cent staff screening; aircraft security,
including aircraft inspections and protection of the aircraft when in and out of
service; passenger and cabin baggage screening; hold baggage screening and
protection (positive passenger-baggage reconciliation had been mandatory
in most European countries since 1989); cargo, courier and express parcels,
including detailed rules on the handling, screening and protection of cargo;
company mail and materials and public mail; air carrier catering, cleaning, stores
and supplies; general aviation; staff recruitment and training; and equipment
standards.114
3.1.3 Canadian Response
3.1.3.1 Introduction
As noted earlier, the attacks of September 11th resulted in a major transformation
of Canada’s civil aviation security regime. According to the CATSA Advisory
Panel, the Government of Canada made it an urgent priority to enhance the
country’s counterterrorism capabilities and preparedness. This effort included a
renewed focus on aviation security.115
As the September 11th attacks were unfolding, rapid decisions were made about
North American aviation security. The result was an “…unprecedented shutdown
of the aviation system in North America.”116 Canada acted as a haven for aircraft
that required redirection to safe locations. The Government of Canada worked
closely with the FAA to divert aircraft, all the while aware that some of these
aircraft might also risk being hijacked. Aircraft were met by police and customs
officials.
111
112
113
114
115
116
Exhibit P-157, pp. 96-97 of 135.
Exhibit P-157, p. 96 of 135.
Exhibit P-157, p. 97 of 135.
Exhibit P-157, p. 97 of 135.
Exhibit P-169, p. 16 of 202.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4534.
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One of the most difficult steps afterwards was restarting “the whole system.”117
Initial security enhancements addressed areas that were considered to be
highest risk, including the pre-board screening (PBS) of passengers and their
carry-on baggage, the enhancement of security on board aircraft, and airport
control.118 Airports received very clear directions to supplement their access
control systems with security personnel at doors.119 Police presence was
increased at airports and directions were issued to lock the cockpit doors of
passenger aircraft departing from Canadian airports.120 Increased monitoring
by aviation security inspectors was another measure.121 The Government of
Canada also assumed third-party war risk liability following the withdrawal
of insurance from the commercial sector, so that the aviation industry could
continue operating.122
The Government’s response had yet another dimension. Jean Barrette, Director
of Security for Transport Canada, testified that significant efforts were made after
September 11th to ensure that the Canadian public was adequately informed
that air terrorism could hit close to home:
…[P]ost-9/11 saw a very, very wide range of awareness
material, again, going down to the public creating that
awareness that perhaps Canada could no longer enjoy what
I called the ‘Canadian naivety’ around security; that terrorism
was not only something happening on the other side of the
ocean but that following the attack on the towers in New York,
that it was very, very close to home.123
In October 2001, the Government announced increased funding initiatives for
security:
• More than $79 million for new equipment and supporting activities
at airports;
• $55.7 million for the purchase and deployment of advanced
explosives detection systems (EDS), which had been in
development, and which the Government now pressed to be
developed more rapidly;
• Funding for 28 additional airport security inspectors; and
• Training programs for cargo and baggage handlers and airline and
airport staff to support implementing the new technologies.
117
118
119
120
121
122
123
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4534.
Exhibit P-157, p. 97 of 135.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4535.
Exhibit P-157, p. 97 of 135.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4535.
Exhibit P-157, p. 97 of 135.
Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4843.
�Chapter III: Civil Aviation Security in the Present Day
Transport Canada also published enhanced security requirements for air carriers
and airport operators. These included screening for electrical and electronic
devices and sharp and other dangerous objects in carry-on baggage, cockpit
protection and protection of US-bound aircraft.124 Besides the obligatory
presence of armed police officers on flights to Reagan National Airport, Canada
made other adjustments to its aviation security regime to accommodate special
US requirements for these flights, including additional advance passenger
information (API) and extra security requirements for the preparation and takeoff of aircraft.125
A second wave of aviation security initiatives was identified in the December
2001 federal Budget “…[a]s the full impact of the events of September 11, 2001,
was realized.”126 Barrette described the significance of the funding provided in
the Budget:
[The] December 2001 budget announcement by the
Government was…an unprecedented investment in aviation
security in Canada. This resulted in an investment in security
of over $2.2 billion…. [T]his is significant for Canada. That
resulted in basically a five-year plan in increasing capacity.
Thirty-five million dollars were invested in reinforcing cockpit
doors of commercial aircraft, increased policing at airports and
a very, very important element was also the creation of [the]
Canadian Air Transport Security Authority, which came into
being in April 2002.127
In April 2002, the Canadian Air Transport Security Authority (CATSA) was
created as a Crown Corporation by the Canadian Air Transport Security
Authority Act (CATSA Act).128 CATSA assumed several core security functions,
particularly the screening of passengers, carry-on baggage and checked
baggage. Unlike the Government’s response following the loss of Air India
Flight 182, the response to the events of September 11th saw responsibility
for screening transferred from air carriers to a government entity. The
CATSA Advisory Panel concluded that leaving the screening of passengers
and baggage to the air carriers after the Air India bombings was a serious
weakness in the security system, since security would not be the carriers’ primary
concern.129 Even the bombing of Pan Am Flight 103, which flowed from the same
security weakness, did not prompt such change. It was only after September
11th that the recommendations of the 1985 Seaborn Report, commissioned by
the Government of Canada to review aviation security, were taken further.130
124
125
126
127
128
129
130
Exhibit P-157, p. 98 of 135.
Exhibit P-157, p. 98 of 135.
Exhibit P-157, p. 98 of 135.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4536.
S.C. 2002, c. 9, s. 2, s. 5(1); see also Exhibit P-169, p. 16 of 202.
Exhibit P-157, p. 67 of 135.
Exhibit P-157, p. 98 of 135.
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Marriott, in his testimony before the Commission, acknowledged the benefits
of having a single government organization responsible for the security of
passengers and baggage. He noted that, when screening was left to the air
carriers, it was administered in a less coordinated fashion nationally. With CATSA,
a single set of standard operating procedures governed screening personnel
across the country, and more uniform training was provided to them.131
In November 2002, CATSA’s role was expanded to include the random screening of
non-passengers who sought access to restricted areas of airports.132 At the same
time, CATSA was assigned responsibility for developing and implementing the
Restricted Area Identification Card (RAIC) program. The program was designed
to augment the existing security access control system, which required all nonpassengers to carry a Restricted Area Pass (RAP) to enter restricted areas. The
RAIC program incorporated into the RAP biometric identifiers that were linked
to a central database and that permitted the tracking of cardholders.133
The December 2001 Budget funded other security initiatives, some of
which echoed the enhancements highlighted in the October 2001 funding
announcement:
• The hiring of 59 additional Transport Canada security inspectors;
• Up to $30 million for aircraft security modifications, including
reinforced cockpit doors;
• $1 billion over five years for the purchase of EDS for baggage
screening;
• Increased police presence and security at airports; and
• A program of armed RCMP officers (“air marshals”) on aircraft.134
The Budget also introduced new limits for carry-on baggage, as well as random
secondary searches of passengers for flights to the US.135 The Budget created
the Air Travellers Security Charge (ATSC), a fee to be paid by travellers beginning
April 1, 2002. The revenues were to help fund many new aviation security
initiatives, including CATSA.136
Also in reaction to the September 11th attacks, Parliament enacted the Public
Safety Act, 2002.137 Under the Act, which came into force in stages, beginning
131 Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4538.
132 A non-passenger is anyone who works at an airport, who visits an airport to provide services or deliver
goods or who requires access to an airport’s restricted areas. Screening is similar to passenger
screening. See Exhibit P-169, p. 18 of 202.
133 Exhibit P-169, p. 18 of 202.
134 Exhibit P-157, p. 99 of 135.
135 Exhibit P-157, p. 99 of 135.
136 There has been criticism that the revenues from the ATSC are collected and disbursed in a nontransparent manner, making it difficult to confirm that the funds are indeed spent on aviation security
initiatives. Changes have been called for by a number of stakeholders. See Exhibit P-169, pp. 168-169
of 202; see also Section 3.10, which discusses the concerns surrounding the ATSC in greater detail.
137 S.C. 2004, c. 15.
�Chapter III: Civil Aviation Security in the Present Day
in May 2004, certain departments and agencies received authority to collect
passenger information for transportation and national security purposes.
Interim orders could also be issued in emergencies, and provisions were
included to deter the proliferation of biological weapons and to provide greater
control over explosives and hazardous substances.138 The Act also significantly
amended the security provisions of the Aeronautics Act. The Minister of Transport
received explicit authority to introduce confidential security measures, to grant,
suspend or cancel security clearances for Restricted Area Passes, and to delegate
authority to give emergency directions in the face of immediate threats to
security. Offences were created for persons endangering the safety or security
of aircraft or persons on board.139
The Public Safety Act, 2002 gave Transport Canada the authority to identify
individuals who were threats to aviation security and led to the establishment
of Canada’s first “no-fly” list, known as the Passenger Protect Program.140
Development of the Program began in 2004141 and it came into effect on June
18, 2007.142 The Program involved creating a list of individuals who might pose
an immediate threat to aviation security if they boarded a flight.143 Transport
Canada could require airlines to provide information about such individuals144
and to issue Emergency Directions if an immediate threat to security was
perceived.145 The Program is now used as an additional pre-board passenger
screening tool.
The Public Safety Act, 2002 also amended the Aeronautics Act to address the
security of foreign aircraft arriving in Canada. Transport Canada was given
authority to conduct security assessments of air carriers and facilities outside
Canada. The Foreign Security Inspection Program became responsible
for conducting assessments of foreign air carriers and airports to ensure
that Canadian security requirements for flights destined for Canada were
implemented. If security concerns arose, periodic and random inspections
could be conducted.146
Following the September 11th attacks, training was enhanced for Transport
Canada inspectors and for air carrier passenger service agents. In 2002, for
example, briefing sessions that provided an overview of the changes to security
measures since September 11th were given across Canada to passenger service
agents working at airports. In 2003, Transport Canada established a working
group to address training requirements for ground personnel and revised its
cargo screening training program for all employees engaged in accepting cargo
for transport on passenger aircraft. In the summer of 2004, a national air cargo
security awareness campaign began.147
138 Exhibit P-157, p. 99 of 135.
139 Exhibit P-157, p. 100 of 135.
140 Exhibit P-157, p. 100 of 135; see also Section 3.5.3.2.1, which discusses the Passenger Protect Program
in detail.
141 Exhibit P-157, p. 100 of 135.
142 Exhibit P-278, Tab 8, p. 1.
143 Exhibit P-157, p. 100 of 135.
144 Exhibit P-157, p. 100 of 135.
145 Exhibit P-278, Tab 13, p. 8.
146 Exhibit P-157, p. 100 of 135.
147 Exhibit P-157, p. 101 of 135.
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The events of September 11th have continued to influence aviation security in
Canada. In 2005, Transport Canada began to develop a national Transportation
Security Action Plan for security programs in all transportation modes. The Plan’s
goal was to assess current and future threats to transportation, evaluate what
had already been achieved and identify future challenges and priorities, using
a risk management model.148 The Plan was expected to serve as a road map for
security programs in all modes of transportation for the following five to seven
years.149
The 2006 Budget provided new funding of $133 million over two years to assist
CATSA with increased costs due to the growth in air traffic. The funding would
support CATSA’s security services, including passenger and baggage screening.
The Budget also committed up to $26 million over two years for improving
air cargo security. In August 2006, Canada participated in a multi-country
coordinated response to the threat uncovered in the UK involving liquids and
gels. Canada updated its list of prohibited items for carry-on baggage and
permitted only small quantities of liquids, gels and aerosols to be carried on
passenger flights.150
The 2008 Budget took into account that significant operational pressures and
continued growth in air traffic would challenge CATSA’s ability to handle its
future screening responsibilities. Acknowledging the ongoing risk that terrorists
posed to civil aviation, the Budget pledged $147 million to assist CATSA.151
I
n January 2009, the Government of Canada announced additional funds to
support passenger, baggage and cargo security. The 2009 Budget stated that
“…[n]ew and enhanced aviation security measures are required to strengthen
the security of Canadians; ensure that Canada remains closely aligned with the
security measures of its key international partners; and ensure that Canadian
airports and air carriers remain competitive internationally.”152 It promised $282
million over the following two years to support the development of aviation
security plans, improve CATSA operations and implement a new passenger
assessment system. The measures included new, advanced screening equipment
and other technology and improved training for screening personnel. The 2009
Budget also promised $14 million in 2009-2010 to help implement a new air
cargo security program at Canadian airports.153
3.1.3.2 Canadian Air Carrier Protective Program
The Canadian Air Carrier Protective Program (CACPP) is an air marshal program
that deploys specially trained RCMP officers, known as Aircraft Protective
Officers (APOs), to provide covert, armed security in the airport environment
and on aircraft.154
148
149
150
151
152
153
154
Exhibit P-157, p. 101 of 135.
Exhibit P-263, Tab 23, p. 2 of 2.
Exhibit P-157, p. 101 of 135.
See Exhibit P-465.
See Exhibit P-407.
See Exhibit P-407.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8073.
�Chapter III: Civil Aviation Security in the Present Day
3.1.3.2.1 Genesis and Development of the CACPP
Although long established in the US, air marshal programs came relatively
recently to Canadian aviation. The programs were introduced in the United
States in the 1970s155 in response to a series of domestic and foreign hijackings.
The objective was to use what were then termed “sky marshals” to protect
against hijackings.156
As noted, after September 11th, the threat of suicide attackers using aircraft
as weapons led the US to deny aircraft permission to land at Reagan National
Airport without an air marshal on board.157
The CACPP was implemented in 2001, and was originally funded by CATSA
through federal appropriations.158 The sole focus of the CACPP initially was to
provide APO coverage for all flights to Reagan National Airport. The program
later evolved to provide APOs on selected Canadian commercial aircraft159 flying
to certain destinations.160 As the program grew and became better funded, it
was able to assume additional tasks. The CACPP received requests for APO
assistance in other locations where threats appeared to warrant this measure.
The CACPP started to design protocols for particular destinations to which APOs
were flying on a regular basis. While APOs at first flew to these locations due to
specific circumstances, a more regular pattern of deployment was established
with the development of a “threat matrix.”161
3.1.3.2.2 Threat Matrix
About two years after the CACPP began, a threat matrix was created to
provide a consistent method for determining routine and more urgent APO
deployments.162 The matrix is an internationally-accepted tool that has been
studied and tested throughout the world.163 It was developed by the Civil
Aviation Protective Intelligence (CAPI) Unit of the RCMP. The CAPI Unit is directly
connected to the APO program.164
The threat matrix grades flights according to specific factors, such as destination.
Because resources are limited, the matrix identifies flights with the highest
155 Testimony of Craig Hall, vol. 64, October 23, 2007, p. 7985. See also Testimony of Moses Aléman, vol.
35, May 29, 2007, p. 4212; Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4982; Testimony
of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8058.
156 Testimony of Moses Aléman, vol. 35, May 29, 2007, pp. 4211- 4212.
157 Exhibit P-157, p. 93 of 135; Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8059.
158 Exhibit P-157, pp. 105-106 of 135. Funding arrangements were altered as of April 1, 2008. Funding is
now provided directly to the Royal Canadian Mounted Police (RCMP), as discussed below. See
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8075.
159 See Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8100; see also Exhibit P-157, p. 110 of
135.
160 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8060.
161 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8060.
162 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8066, 8076.
163 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8076.
164 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8066.
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potential for an incident. The matrix also determines which domestic and
international flights require APOs on an ongoing basis, within the confines of
the resources available.165
The threat matrix determines the routine scheduling of APOs on various flights
and is also influenced by explicit threats against particular aircraft and global
events on a given day.166 The CAPI Unit provides threat assessments, for example,
on events in particular cities to which Canadian aircraft fly. The information
is fed into the matrix167 and routine flight schedules for APOs may be altered
accordingly.168
RCMP Superintendent Alphonse MacNeil testified that he would “highly
doubt” that an aircraft facing a very specific threat would fly until the threat
was thoroughly investigated and cleared.169 In other words, with a very specific
threat, it would be highly unlikely that the security response would be simply to
place an APO on board and allow the aircraft to fly.
3.1.3.2.3 Role of Aircraft Protective Officers
Although the term “air marshal” is commonly used, ICAO uses the term “in-flight
security officer,”170 which is now considered the generic description.171 Other
countries with air marshal programs may use different terms. Australia, for
example, uses the term “aircraft security officers.”172
Other countries often require their air marshals to perform additional duties,
such as protective policing. Canada’s Aircraft Protective Officers (APOs), on the
other hand, must commit their time fully to their duties as APOs.173 APOs are
trained, armed officers who conduct covert operations.174 Their responsibilities
are not limited to in-flight security, but also extend to security in the airport
environment.175 Besides preventing the commandeering of aircraft, APOs remain
vigilant for other terrorist activity and assist in controlling criminal activity.
In doing this, APOs both gather and use intelligence. They are trained to use
observational skills, including behavioural analysis techniques, and to intervene
only in extreme circumstances. APOs are most effective when their identities
remain unknown to passengers and when their activities are covert.
The Commission was told that the value of air marshal programs, in large part,
was their deterrent effect.176 While APOs were not placed on all flights, apart
165
166
167
168
169
170
171
172
173
174
175
176
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8066, 8076.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8066, 8076.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8075-8076.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8066, 8076.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8067.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8059.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4768.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8059.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8067.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4768.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8073.
Testimony of Craig Hall, vol. 64, October 23, 2007, p. 7985.
�Chapter III: Civil Aviation Security in the Present Day
from those to Reagan National Airport, the program served as a deterrent
because they could be present on any flight.177
MacNeil testified that there had been no incidents to that point of “having to
take someone down on an aircraft.”178 This could have been due in part to the
deterrent effect of the program, according to Captain Craig Hall, Director of the
National Security Committee of the Air Line Pilots Association, International
(ALPA):
…We get back to the randomness; people are a little bit more
reticent to do something bad to an aircraft if they think they
may run into a marshal’s team….
So I think as I said, a very large measure of success is the fact
that I think that there’s a very, very big deterrent value. I don’t
think you can really quantify the success any further than that
because it is hard to quantify a negative result, but in security
that’s a lot of what we do.179
The Commission questioned the deterrent effect, however, because publicity
about the APO program appeared to be minimal. Dr. Reg Whitaker, Chair of
the CATSA Advisory Panel, agreed that, although this information had been in
the public domain for some time, the general public might need to be better
informed that an air marshal might be on board any Canadian-registered airline.
This information could be provided in a way that does not jeopardize national
security or alert terrorists about how the program operates.180 MacNeil agreed
that there was a need for greater public awareness about the program and the
work of APOs on aircraft and in airports. The CACPP is currently working on
methods to better inform the public. MacNeil stated that testimony before the
Commission might have served as one means to increase public awareness.181
In-Flight Security
When an APO is to be placed on an aircraft, the CACPP informs the air carrier.
It is the carrier’s responsibility to inform the pilot-in-command and chief flight
attendant of the APO’s presence and seat location.182
If an attempt is made to commandeer an aircraft, the APO is capable of
intervening empty-handed or with a firearm.183 The Canadian program sets
177 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5282.
178 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8072. See also Testimony of Craig Hall, vol.
64, October 23, 2007, p. 7985.
179 Testimony of Craig Hall, vol. 64, October 23, 2007, pp. 7985-7986.
180 Testimony of Reg Whitaker, vol. 38, June 1, 2007, pp. 4602-4603.
181 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8072, 8088.
182 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8080-8081,
183 Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8079.
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clear guidelines about the timing and method of intervention.184 The threshold
is high. APOs intervene only where the integrity of the aircraft is at risk or where
there is a serious risk of harm to an individual. Until then, APOs must maintain
their cover.185 The key to success is the element of surprise, which gives an
important advantage to an APO when attempting to overpower an individual
intent on committing a violent act.186
The disruption caused by an unruly passenger, for example, would not meet
the threshold for intervention.187 Flight crews are well-trained to handle such
passengers and do so when APOs are not on board.188 The CACPP is aware
that one tactic to identify an APO on an aircraft is for a “passenger” to create a
disturbance.189
Airport Security
APO responsibilities are not limited to in-flight security. They also provide armed,
covert security in the airport environment.190 Areas outside the secured zones of
the airport terminal are considered potential targets. Congestion caused by long
queues at airline check-in and security screening counters creates a “target-rich”
environment because many people are gathered in a confined area. Similarly,
during security breaches, passengers are routinely evacuated from secure areas,
causing congestion in non-secure areas of the airport terminal.191 An attack in
July 2007 on a non-secure area of Glasgow Airport, using a vehicle loaded with
propane canisters, illustrated the vulnerability of such areas.192
Recognizing the growing security concerns surrounding the airport environment,
the CACPP training program is evolving to provide greater emphasis on these
concerns, including problems associated with crowds and security at the
boarding gate.193
184 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8097.
185 The approach to intervention is not graduated; there is one, high-level threshold which must be met
before an APO will engage in an interventional activity. See Testimony of Greg Browning, vol. 65,
October 24, 2007, p. 8079. See also Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8098.
186 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8078.
187 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8097.
188 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8099.
189 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8098.
190 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8073.
191 The CATSA Advisory Panel suggested that “…[s]olutions to this situation of vulnerability could be
as drastic as redesigning a terminal building, or could involve integrating the security process
into other layers, thereby reducing the number of passengers congregating in one location.
Emergency evacuation procedures should also be reassessed by the appropriate authorities (the
Airport Security Committees) to avoid the necessity of a crowd gathering in a small area”: Exhibit
P-169, p. 57 of 202.
192 Canadian Broadcasting Corporation, “Britain remains on highest alert, 5 suspects arrested” (July 1,
2007), online: CBC <http://www.cbc.ca/world/story/2007/07/01/glasgow-attack.html> (accessed
January 16, 2010). See also Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8073.
193 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8074.
�Chapter III: Civil Aviation Security in the Present Day
General APO surveillance also assists in identifying potential criminal activity
at airports. In 2007, the Standing Senate Committee on National Security and
Defence reported that organized crime was a serious concern at Canada’s
airports, with some organizations possibly linked to terrorist activities.194 APOs
are aware of the potential for criminal activity and, as trained observers, can
help mitigate such activity.195 MacNeil testified that APOs are trained and wellsuited to recognize both terrorist and other criminal activity.196
APOs generally do not become involved if they observe suspicious activity or
behaviour, except in emergency situations. Instead, they notify the appropriate
unit at the airport.197
Behavioural Analysis
MacNeil confirmed that APOs use behavioural analysis techniques.198 He
stated that these techniques assess behavioural cues only and do not involve
judgments based on racial, ethnic or cultural background. They are not based on
dress or appearance.199 Behavioural analysis gauges the reactions of individuals
to changes in the environment, such as the arrival of a uniformed officer in the
airport. Such an occurrence, for example, could cause concern for an individual
with malicious intent, who might then exhibit particular behaviours that APOs
are trained to detect.200
Training in these techniques includes promoting an awareness that individual
reactions to environmental stimuli might differ because of cultural or racial
background. MacNeil stated that it is impossible to provide instruction on the
range of reactions from all cultures, but that “no one reaction will stand on its
own”:
… [O]ur people are trained not to look at one specific reaction
and say, “Oh, I know what that means.” It’s a cumulative effect
of a lot of reactions that we’re looking for….201
Many factors must be present before an individual’s behaviour can be considered
suspicious. MacNeil stated that training takes into account that many airports
are international environments. He stated that a lack of awareness of cultural
and racial differences would make APO operations ineffective.202
194
195
196
197
198
199
200
201
202
Exhibit P-172, p. 17 of 155.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8087.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8073.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8073, 8087-8088.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8075.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8089.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8075.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8090.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8090-8091.
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Intelligence
Intelligence within the CACPP flows in two directions. The CACPP receives
intelligence from the CAPI Unit, which in turn obtains its intelligence from the
Integrated Threat Assessment Centre (ITAC),203 among other sources. APOs
also generate intelligence in performing their duties and they give the RCMP
information they acquire relating to national security and criminal intelligence.204
A tactical intelligence unit exists within the CACPP. A tactical intelligence officer
positioned at each field unit receives information, for example, from the local
Criminal Analysis or Organized Crime Investigation Section. The information is
then shared with APOs. This might include information about the identity of a
specific individual. APOs then act as “eyes and ears” in the airport and on aircraft,
and can report any information obtained.205
MacNeil said that information obtained through the Passenger Protect Program,
which maintains and manages Canada’s “no-fly” list, might be shared with the
CACPP via the CAPI Unit. He testified that it is rare for the CACPP to receive
information from the CAPI Unit about passengers in particular seats, but that
such information would be shared with the CACPP if the CAPI Unit has it and if
there is a threat. 206
The CACPP shares information with its international partners about world
trends and events. If the CACPP obtains information about a specific incident
and other programs would benefit from the information, it will be shared.
MacNeil stated that the CACPP adheres to all rules governing the sharing of
specific information.207
3.1.3.2.4 Criticism of Air Marshal Programs
During Commission hearings, experts and industry stakeholders disagreed
about the benefits of air marshal programs. Wallis, the Commission’s main
expert on international aviation security, saw no value in the programs. He
stated that “…[t]here is no place for a weapon of any sort in the cabin of an
airplane,” and that a firearm could be turned against the aircraft if it fell into the
hands of a terrorist.208 He challenged the deterrent effect of such programs for
several reasons. The presence of sky marshals in the 1970s had, at least once,
failed to prevent a hijacking.209 On another occasion, a plane crashed because
203 The Integrated Threat Assessment Centre (ITAC) is a functional component of the Canadian Security
Intelligence Service (CSIS). It is a community resource, staffed by representatives of a number of
government departments and agencies, whose primary objective is to produce comprehensive
terrorist threat assessments for timely distribution within the intelligence community. See Exhibit
P-169, p. 33 of 202. See also Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8077.
204 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8077.
205 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8087.
206 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8085.
207 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8077.
208 Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 4765, 5009.
209 Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4766.
�Chapter III: Civil Aviation Security in the Present Day
of a fight that occurred while the plane was airborne.210 Wallis argued further
that if terrorists were aware that APOs were on certain flights, such as those to
Reagan National Airport, they will simply choose other flights. Wallis also argued
that today’s terrorists might be willing to perish for their cause, so that a shootout with an armed marshal would not cause them concern if they succeeded
in their objective.211 As well, terrorists had operated in teams in recent years, so
that a “small army” of air marshals would be required to defeat them. Wallis saw
“only one outcome” of a fight in such circumstances.
Dr. Kathleen Sweet, another international aviation security expert, was also
skeptical about the value of air marshals. She acknowledged that “any tool in
the toolbox” was useful, but was concerned about the lack of training for air
marshals – a particular problem in the United States, she said – as well as cost
effectiveness.212 On both counts, improvements were necessary. Training was
critical to ensure that APOs discharged their duties competently and with the
appropriate authorization.213 As well:
…[T]he key to airport security is on the ground, not once
the plane is airborne. Once the plane is airborne, you have
very limited resources to prevent something terrible from
happening.214
Options are limited once a flight is airborne, but this does not mean that
legitimate security measures on board aircraft should be abandoned. Absolute
security is not possible.215 The Commission was repeatedly told about the
benefits of a multi-layered approach to security; if one layer is by-passed, other
layers remain.216 The CATSA Advisory Panel identified the CACPP as one layer.217
Any robust security regime must ensure that no gaps remain in the system.218
The Standing Senate Committee on National Security and Defence (Senate
Committee) concluded that locked cockpit doors on aircraft eliminated the
need for air marshals,219 but this position was challenged. Yves Duguay, Director
of Security for Air Canada and a former RCMP officer, agreed generally with
the CATSA Advisory Panel, stating that armed marshals represented one layer,
possibly a significant layer, in a multi-layered approach:
210
211
212
213
214
215
216
217
218
219
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4767.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4766.
Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4983.
Testimony of Jim Marriott, vol. 39, June 4, 2007, pp. 4768-4769.
Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4940.
Exhibit P-169, p. 36 of 202.
Exhibit P-169, p. 38 of 202.
Exhibit P-169, p. 39 of 202.
Exhibit P-361, Tab 1, p. 9.
Exhibit P-172, p. 52; see also Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4764.
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The last barrier is the cockpit, the reinforced cockpit, and
the one barrier before that would be the APO, the aircraft
protection officer or the sky marshal of the United States.220
3.1.3.2.5 APO Recruitment, Training and Retention
Not all US air marshals are trained police officers. They come from various
backgrounds and then receive special training. In Canada, all APOs are fullytrained RCMP officers.221
Superintendent Greg Browning, Director of National and International Learning
Services for the RCMP, had overall responsibility for APO training, recertification
and training assets.222 In describing the evolution of the APO training program,
Browning suggested that it was probably “…one of the best programs that we
have ever built from the ground up….” Duguay testified that he had visited the
APO training centre and that he was impressed by the level of training. He saw
the Canadian training program as “…probably one of the best programs.”223
In its early days, the CACPP relied on the US air marshal training program. The
Canadian program has evolved considerably since then and has been designed
in consultation with international experts.224
APOs are carefully selected members of the RCMP.225 RCMP membership, which
brings with it a recognized level of skills and training, is a prerequisite, but it
alone is not sufficient. Applicants must demonstrate superior skills in several
areas. Shooting skills, for example, must be better than the norm. As well, all
applicants must pass specific psychological assessments and physical tests
before admission.226
APOs undergo several weeks of basic training. They then proceed to their
operational units. Recertification is required twice annually.227 Browning
stated that Canada is the only country that requires recertification of its air
marshals.228
In addition to the initial and recertification training courses, there is ongoing
interaction between instructors and trainees. The National Training Centre is
“hardwired” to the operational units, allowing for constant contact between
instructors and the officers they train. The CACPP training program is unique in
220
221
222
223
224
225
226
227
228
Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5282.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8058.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8056.
Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5282.
Testimony of Greg Browning, vol. 65, October 24, 2007, pp. 8061, 8064.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8061.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8064.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8061.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8061.
�Chapter III: Civil Aviation Security in the Present Day
that its instructors not only conduct training and recertification, but are required
to fly as active APOs for a number of weeks each year.229
Training focuses on intervention skills, as well as observational and intelligencegathering skills. These core skills are designed to enable APOs to interpret
threats and behaviour, and to intervene only when absolutely necessary.230
Since they are active police officers, the roles of APOs are not limited to in-flight
activities. According to Browning, their role begins when they start their day
and continues during the drive to the airport, within the airport environment
and while on the aircraft.231 Training, in general, is focused on the strategies that
individuals could use to hijack aircraft.232
Intervention training includes the use of the Incident Management/Intervention
Model (IM/IM). This is a “use of force” model employed by police officers across
Canada which dictates the intervention threshold in any scenario. APOs are
required to use the IM/IM in deciding when and how to intervene.233 APOs
receive training in personal intervention skills to deal with the entire spectrum
of encounters from empty hand to firearms.234 The training facility also has
aircraft fuselages to facilitate training.235
APOs are armed and their shooting skills must be of the highest standard.
Browning stated that shooting skills standards for APOs are “…arguably the
highest in the world.” He described the precision with which APOs use firearms
as “surgical in nature.”236 Only RCMP members who have attained a certain score
from the practical pistol course distinguishing them as marksmen are admitted.
The APO training program further enhances their shooting skills through
advanced courses and scenario-based drills.237
Browning stated that it is important for the entire operation to remain covert,
from the identity of instructors and officers to their practices and training
locations.238
APOs are recruited for three-year assignments. The RCMP places value in diversity,
and its institutional policy requires members to acquire new skills and change
positions regularly. A three-year limit was chosen because it was thought that
this would benefit the organization and the members. Some APOs remain with
the CACPP longer because they are promoted to supervisory positions.239
229
230
231
232
233
234
235
236
237
238
239
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8061.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8062.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8062.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8065.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8064.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8063.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8063.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8062.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8063.
Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8063.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8080-8082.
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MacNeil testified that most APOs report high job satisfaction and want to remain
with the program beyond the three-year term.240
3.1.3.2.6 Flight Crew Training
The CACPP also trains pilots and chief flight attendants at its training centre.
Specific scenarios are reviewed to prepare them for an intervention and to
explain their roles and responsibilities. The CACPP is currently developing a tool
to provide the same information without requiring attendance at the CACPP
training centre. Airlines would use this in their ongoing training.241
Hall spoke highly of the APO program and stated that the RCMP kept flight
crews well-informed. He said that additional information on the expectations
of “front-end” and “back-end” flight crew members during an incident would be
welcomed.242
3.1.3.2.7 International Cooperation
Canada plays a leading role in the international air marshal community. MacNeil,
on behalf of Canada’s APO program, is Chair of the International Air Marshal
Committee, which consists of representatives from the countries most active in
delivering air marshal services.243 Representatives meet twice yearly in person
and monthly via teleconference. According to MacNeil, these meetings provide
an important forum for sharing information about issues around the world that
affect air marshal programs.244
The Committee’s main purpose is to share best practices.245 As an example,
a request arose from a Committee meeting to develop specific scenarios
involving hijackings. Ten scenarios were developed, each focusing on attempts
to identify and eliminate the covert air marshal. Each scenario was analyzed
and confirmed as a potential situation in which an individual could take over an
aircraft. Mitigation strategies were then developed.246
Training scenarios and methodologies used in the program are not developed
in isolation, but through co-operative international efforts. Besides sharing best
practices at the International Air Marshal Committee, APO trainers discuss best
practices and do case studies with other trainers from around the world. The
CACPP’s scenario-based training takes into account situations that have occurred
or that might occur. Some of the CACPP’s counterparts have experienced
240 The CACPP has conducted surveys to assess job satisfaction within the program. See Testimony of
Alphonse MacNeil, vol. 65, October 24, 2007, p. 8082.
241 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8080-8081,
242 Testimony of Craig Hall, vol. 64, October 23, 2007, p. 7987.
243 MacNeil has been elected to two terms as Chair, commencing in September 2006. See Exhibit P-254.
244 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8055.
245 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8055.
246 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8065.
�Chapter III: Civil Aviation Security in the Present Day
incidents, but not the CACPP. Browning stated that this might indicate the
success of the Canadian program.247
3.1.3.2.8 Funding
The CACPP was initially funded by CATSA through federal appropriations.248 The
CATSA Act allows CATSA to enter agreements with the RCMP for it to provide
security services, including services on aircraft.249
In its 2006 review of the CATSA Act, the CATSA Advisory Panel recommended
that CATSA be relieved of its responsibility for managing funding for the
CACPP and that funding should be provided directly to the RCMP or through
Transport Canada.250 MacNeil, who is responsible for financial issues pertaining
to the program, told the Commission that, as of April 1, 2008, funding was to be
provided directly to the RCMP.251
The CATSA Advisory Panel observed that CATSA did not have any authority to
direct or plan the CACPP252 and that the program was not related to CATSA’s
core mandate.253 Reviews of the program were carried out periodically by an
expert consultant. The Panel believed that a separate audit of the CACPP by the
Auditor General or by an external auditor could serve just as well or better.254
3.1.3.2.9 Need for the Program
To date, there have been no incidents in Canada in which an APO has faced
an attempted hijacking. MacNeil stated that the challenge faced by air marshal
programs lies in the difficulty of showing the worth of the program when APOs
are, it is hoped, never engaged.255 However, this dilemma is common to many
who provide aviation security services, including those who conduct pre-board
screening (PBS), hold bag screening (HBS) and non-passenger screening (NPS).
Screeners, for example, must remain vigilant, despite the likelihood that most
will never encounter a prohibited item such as a weapon.256
The APO program has been lauded by industry stakeholders as a world leader.
The Commission acknowledges that the value of this program is impossible to
assess, and it is likely that the deterrent value of air marshal programs will never
be known. However, as long as Canadian commercial aircraft fly to Reagan
National Airport and the United States continues to require the presence of air
marshals, Canada will maintain its APO program. Using Canadian air marshals
247
248
249
250
251
252
253
254
255
256
Testimony of Greg Browning, vol. 65,October 24, 2007, p. 8074.
Exhibit P-157, p. 106 of 135.
Canadian Air Transport Authority Act, S.C. 2002, c. 9, s. 2, s. 28(2) [CATSA Act].
Exhibit P-169, pp. 70-71 of 202.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8075.
Exhibit P-169, p. 70 of 202. See also Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4797.
Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4621.
Exhibit P-169, p. 70 of 202.
Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8071.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4542.
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under a Canadian program is far better than alternatives such as the imposition
of foreign air marshal programs on Canadian aircraft or the development of a
comparable security measure by the airline industry. In a system that depends
on multi-layered security, this program may provide another layer to protect
high-risk flights in the air and non-secure areas of airport environments, where
protection is currently minimal.
3.1.4 After 9/11: Danger of Complacency Continues
The renewed focus on aviation security following the events of September 11th
included closer, system-wide coordination between Canada and the United
States.257 Many discussions focused on harmonizing the implementation of
enhanced security measures.258 Marriott testified that such harmonization was
merely the extension of a long-standing connection between the Canadian and
US aviation regimes:
...Canada and the United States have always had a very
close relationship on aviation security, and that’s a matter of
necessity because our aviation systems are so interlinked.
We’re each others largest aviation customer, if you put it that
way.
A huge amount of traffic crosses the border daily. And
we’ve had for many, many, many years a very close working
relationship prior to 9/11 with the US Federal Aviation
Administration and with its successor in the area of aviation
security, the Transportation Security Administration, which
sprang up after 9/11.
But it was apparent that, as close as our working relationship
with the United States was, that relationship would need to be
further intensified to best ensure that the security measures
applicable to trans-border traffic were fully satisfactory at all
times, and that we had a high level of operational readiness
across the border.
So the frequency of contact with our US counterparts
increased dramatically. Dedication of staff to manage that
relationship increased incredibly immediately after 9/11 and
our relationship has been ever stronger and ever growing
since.259
Wallis had a different opinion of the security relationship between the two
countries. He testified that the US conducted its civil aviation security affairs in
257 Exhibit P-157, p. 97 of 135.
258 Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4535.
259 Testimony of Jim Marriott, vol. 37, May 31, 2007, pp. 4536-4537.
�Chapter III: Civil Aviation Security in the Present Day
relative seclusion before September 11th. He had warned of the dangers of such
an approach:
… I had warned sometime previously [before September 11,
2001], that whilst it was okay perhaps for the United States
to be isolationist in its approach to aviation security, and
that was based on their huge domestic operation that they
had and which was why they wouldn’t take on some of the
international programs which we believed would have helped
them, I did write and say that if the attitude of the terrorists
changed and disposable or suicidal terrorists were to arise,
then the earlier attitude of US security relating to aircraft is
going to have to change. And we saw the suicidal terrorists in
full flight, as it were, on 9/11.260
Wallis also stated that complacency could set in when the system did not
experience an incident for a period of time, and that this could result in faltering
government commitment to matters such as legislation to help promote
security.261
The Air India and Pan Am bombings focused world attention on aviation
terrorism and on the need for strong security. Governments and other
organizations subsequently worked together to enhance security measures
around the world.262 Even after these events, however, many of the measures
that had been proposed by ICAO remained voluntary or were not adopted
by Contracting States. By September 11th, few governments, including that of
Canada, had introduced regulations to require the screening of all passengers
and hold baggage on all flights. Few countries did positive passenger-baggage
reconciliation. As well, despite the Convention on the Marking of Plastic Explosives
for the Purpose of Detection (1991), which followed the bombing of Pan Am Flight
103, equipment at airports for detecting plastic explosives was relatively rare.263
As the CATSA Advisory Panel observed, the changes to global aviation security
were incremental in the 15 years following the Air India bombing and the world
was “shocked into a new era of accelerated reaction”264 after September 11th.
Despite the unparalleled commitment of Canada to enhancing civil aviation
security following the September 11th attacks, critical gaps remain.265
3.1.5 Conclusion
A more careful examination of the history of unlawful interference against civil
aviation and a greater observance of trends in terrorist activities might have
260
261
262
263
264
265
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4533.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4541.
Exhibit P-157, p. 91 of 135.
Exhibit P-157, p. 91 of 135.
Exhibit P-157, p. 92 of 135.
Exhibit P-157, p. 104 of 135.
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revealed the form that air terrorism was to take on September 11th. Like the
bombing of Air India Flight 182, the 2001 attacks showed a failure of collective
imagination in security matters.
Aviation security regimes around the world should have been more prepared
than they were. Indeed, Wallis has argued that “…[t]here is very little that is
new in threat or in aviation security generally. What is changing is the ability to
respond.”266
In most cases, the measures that were implemented after September 11th –
such as strengthened passenger and baggage screening, improved oversight
through inspections and audits, enhanced training for security personnel and
the removal of core screening functions from air carriers – were merely the full
realization of initiatives that were considered or should have been considered
and implemented in response to the Air India and Pan Am bombings. Flaws in the
system and the necessary corrective measures were well known. Nevertheless,
it took a third major terrorism incident and the loss of thousands of lives before
many of these measures were implemented.
3.2 Oversight in Aviation Security
Transport Canada is the designated authority ultimately responsible for
national civil aviation security.267 However, operational responsibility for security
measures is shared by a multitude of entities.268 Air carriers, airport operators,
caterers, retail establishments at airports, ground-handling services, screening
service providers and the Canadian Air Transport Security Authority (CATSA) are
examples.269
266 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5009.
267 Under Standard 2.1.2 of Annex 17 to the Chicago Convention on International Civil Aviation (“Chicago
Convention”), all Contracting States of the International Civil Aviation Organization (ICAO) are obliged
to name a designated authority with responsibility for civil aviation security: “Each Contracting
State shall establish an organization and develop and implement regulations, practices and procedures
to safeguard civil aviation against acts of unlawful interference taking into account the safety,
regularity and efficiency of flights.” Transport Canada represents Canada at ICAO: Exhibit P-181, p. 2-1, s.
2.1.2; Exhibit P-169, p. 30 of 202; Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4271.
268 See, for example, Exhibit P-172, pp. 59-60 of 155, which provides a non-exhaustive list, prepared
by the Standing Senate Committee on National Security and Defence, of organizations that have some
responsibility for aviation security at Toronto Pearson International Airport.
269 Exhibit P-169, pp. 31-32 of 202.
�Chapter III: Civil Aviation Security in the Present Day
These entities reflect a variety of organizational models, including private
Sector,270 non-profit271 and government.272 For many, security is not their
sole or necessarily even their primary concern. Security may be one of
many priorities, or the need to pay attention to security may be merely a
consequence of working in civil aviation.273 The physical environments
in which these organizations operate also vary and can affect how security
measures are implemented. Airports differ in size, layout, volume of traffic and
types of security equipment available.274 Fixed Base Operations (FBOs) and the
General Aviation (GA) sector have further differences,275 functioning outside
the system of “designated” airports.276 As well, some industry participants may
be obliged by Canadian programs or laws to carry out certain security operations
at off-shore sites, beyond Canada’s physical borders, to be allowed to operate
into Canada.277
Transport Canada must preside over these often substantially different
entities. The Department is responsible for ensuring that each implements
and adequately maintains civil aviation security measures in compliance with
legislation and directives. This objective must be accomplished within a rather
weak enforcement framework in which monetary or more severe penalties
are rarely imposed and only as a last resort.278 In a system that relies heavily
on voluntary compliance,279 the strength of Canada’s civil aviation security
depends on vigilant oversight, a shared vision and absolute clarity in all
communications.
Proper oversight of civil aviation security in Canada requires, in the first
instance, a robust regulatory regime that prescribes a comprehensive set of
security measures. Guidance – in the form of stipulated requirements – is found
270 Many retail establishments at airports, air carriers, independent screening contractors that provide
screening officers to the Canadian Air Transport Security Authority (CATSA) and private aircraft and
air services that form part of the General Aviation sector are some examples of entities that belong
to the private sector. See Testimony of Georgina Graham, vol. 66, October 25, 2007, pp. 8232-8233;
Exhibit P-169, p. 31 of 202; Exhibit P-101 CAF0827, pp. 2, 7 of 19.
271 Airport authorities, for example, are incorporated as not-for-profit organizations. See Testimony of Fred
Jones, vol. 65, October 24, 2007, p. 8139.
272 CATSA, for example, was established by the CATSA Act as a Crown Corporation on April 1, 2002. CATSA
is responsible for several core security screening functions, including the screening of passengers
and their baggage, as well as the screening of non-passengers and their belongings at major airports:
Exhibit P-175, ss. 6(1); see also Exhibit P-169, pp. 16, 18 of 202.
273 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5203.
274 Exhibit P-169, pp. 96, 103 of 202.
275 Exhibit P-169, p. 55 of 202.
276 In Canada, 89 airports have been designated to receive CATSA’s screening services, which represents
approximately 99 per cent of all passenger traffic. Of the 89 airports, nine have been designated
as Class 1, or major, airports, 20 are designated as Class 2, or intermediate, airports, and 60 are
designated as Class Other, or smaller, airports. See Exhibit P-169, pp. 103, 199 of 202.
277 The Passenger Protect Program, Canada’s no-fly list, must be administered by air carriers whose flights
will arrive at designated aerodromes in Canada. This may require administration of the Program
outside of Canada’s borders for international flights arriving in Canada. See Exhibit P-278, Tab 13, p. 4.
278 See, for example, Exhibit P-101 CAF0827, p. 19 of 19.
279 The system of voluntary compliance represents a philosophy that originated in the post-1985 period
and has continued today. See Exhibit P-263, Tab 15, p. 3 of 5 and Tab 20, p. 1 of 1.
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at the international level. Annex 17,280 the security annex to the Convention
on International Civil Aviation (“Chicago Convention”),281 outlines the minimum
security standards that must be applied by all signatories.282 Most countries,
including Canada, are signatories.283 As one of the wealthiest nations in the
world, Canada should be able to exceed these standards, as all developed
nations are encouraged to do.284
All aspects of Canada’s civil aviation security regime must address the prevailing
threat environment appropriately.285 The system must be devised so that it both
routinely accounts for all significant risks and it includes a carefully considered
plan for responding to emergencies. Because civil aviation security presents a
dynamic environment of risk,286 oversight must include the capacity to monitor
the overall system constantly to ensure that it remains capable of thwarting
terrorist threats and that the system can adapt quickly to changes in threats.
This involves understanding past, present and future threats, including threats
that arise in other parts of the world.
There are several key elements to an adequate regime: a solid understanding
of the history of global air terrorism and its trends and patterns; a consistently
proactive approach; a system of organized and intentional redundancy in
which multiple, reinforcing layers of security are established;287 a flexible and
performance-based approach;288 and the systematic application of commonly
accepted risk management protocols.289
Oversight in civil aviation security must take into account that air terrorism
threats transcend borders. Canada depends for its own security on the soundness
of civil aviation security regimes established by other countries.290 Security
weaknesses in one country can permit aircraft in that country to be used as
an entry point for terrorists, possibly allowing them to bypass more stringent
280 The Eighth Edition of Annex 17 (April 2006) is the current edition. See Exhibit P-181.
281 The 1944 Chicago Convention is the foundational treaty for international governance in civil aviation.
See Exhibit P-150.
282 There is an opt-out provision, however. Article 38 of the Chicago Convention enables Contracting
States to notify ICAO of any differences between their national regulations and practices and the
international standards contained in Annex 17, should they find it “impracticable to comply in all
respects” or if it is deemed “necessary to adopt regulations or practices differing in any respect from
those established by an international standard.” See Exhibit P-150, pp. 44-46, Art. 38. See also Exhibit
P-181, p. (v); Testimony of Rodney Wallis, vol. 36, May 30, 2007, pp. 4270-4271.
283 Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4270.
284 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4218.
285 Exhibit P-169, p. 26 of 202.
286 Exhibit P-361.
287 Exhibit P-169, p. 38 of 202.
288 Exhibit P-169, pp. 92-93 of 202.
289 Exhibit P-361, Tab 1, p.10.
290 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4746.
�Chapter III: Civil Aviation Security in the Present Day
controls elsewhere.291 Besides monitoring the global aviation security situation
for its impact on Canada, Transport Canada’s oversight responsibilities should
include offering support and leadership to strengthen civil aviation security
around the world.
Although Canada has made substantial progress in many areas of security
since the bombing of Air India Flight 182, it has yet to adequately fulfill its
obligations under Annex 17.292 Improvements to the regime were prompted
mainly by major aviation security incidents which have affected Canada and
the US (notably, the bombings of Air India Flight 182 and Pan Am Flight 103
and, especially, the attacks of September 11, 2001). These incidents exposed
known weaknesses in the system. There has been little improvement in the
security system to anticipate future threats, and the system has failed – in some
instances, for decades – to deal with several known security threats.293
Transport Canada has launched an initiative to review the national civil aviation
security regulatory regime in its entirety.294 This is a welcome and important
development. Any useful redesign of the system must embrace Annex 17 at its
core, in the spirit in which its provisions are intended, and must be informed
by international best practices, while addressing any unique threats that
Canada faces. Canada must strive to implement timely solutions for significant
vulnerabilities and must not wait until solutions are imposed by other regimes
or, worse, by an act of terrorism.
3.2.1 International Governance
The international civil aviation security regime has developed primarily in an
ad hoc manner, in direct response to particular security incidents. The focus has
been on reacting to incidents, not on preventing them.
3.2.1.1 International Regulatory Regime
Modern civil aviation began as the Second World War was nearing an end. The
Conference on International Civil Aviation, held in Chicago in 1944, created
two organizations that would guide the development of civil aviation in the
291 The bombing of Pan Am Flight 103 on December 21, 1988 is a prime example. An employee of
Libyan Arab Airlines at Malta’s Luqa Airport was implicated in facilitating the acceptance of a bombladen unaccompanied suitcase on Air Malta, for interlining to Pan Am in Frankfurt. See Wallis,
Combating Air Terrorism, p. 38. See also Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp.
4209-4210 and Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4516.
292 Canada does not currently have a written civil aviation security program, nor does it require some of its
major security partners and stakeholders to develop and maintain security plans, as required by Annex
17. See Exhibit P-181, p. 3-1, ss. 3.1.1, 3.2, 3.3.1; see also Exhibit P-169, p. 97 of 202.
293 Experts and stakeholders have repeatedly noted deficiencies in the security measures that address air
cargo, airport security, Fixed Base Operations (FBOs) and the General Aviation (GA) sector. See Sections
3.8.1, 3.8.2 and 3.8.3.
294 Exhibit P-101 CAF0827, p. 16 of 19.
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coming decades: the International Civil Aviation Organization (ICAO) and the
International Air Transport Association (IATA).295
ICAO is the supreme law-making body for international civil aviation296 and
IATA is the not-for-profit trade association for the world’s scheduled airlines.297
The establishment of both organizations at the same time was deliberate. It
reflected an understanding, from the beginning, of the interdependence of
industry and government in civil aviation.298 ICAO was created as the governing
body to develop international civil aviation after the war, and it was recognized
that a sister organization was required to address commercial aspects of civil
aviation.
Security measures cannot be developed in a void and cannot operate in a
manner that debilitates the aviation industry. Since their inception, ICAO and
IATA have collaborated to advance civil aviation, a shared effort that is viewed
as essential. As Rodney Wallis, the former Director of Security at IATA, stated,
“….They have to work together because you can’t separate the governmental
side of civil aviation from the commercial side.”299
IATA is formally charged with working alongside ICAO. Besides promoting “…safe,
reliable and secure air services for the benefit of the peoples of the world,”300 one
of IATA’s principal goals, set out in its Articles of Association, is to co-operate with
ICAO and other relevant international organizations.301 ICAO also acknowledges
295 Wallis, Combating Air Terrorism, p. 91. IATA, which had previously been constituted in 1919 as the
International Air Traffic Association, was reconceived at the 1944 conference.
296 Wallis, Combating Air Terrorism, p. 91.
297 IATA currently represents approximately 250 members: Testimony of Georgina Graham, vol. 66,
October 25, 2007, p. 8209; see also Wallis, Combating Air Terrorism, p. 89.
298 The preamble to the Convention on International Civil Aviation, which established ICAO, states, in
part that “…the undersigned governments having agreed on certain principles and arrangements
in order that international civil aviation may be developed in a safe and orderly manner and that
international air transport services may be established on the basis of equality of opportunity and
operated soundly and economically; Have accordingly concluded this Convention to that end.” Exhibit
P-150, Preamble, p. 12. One of the stated aims and objectives of ICAO is to “Meet the needs of the
peoples of the world for safe, regular, efficient and economical air transport” [Emphasis added]:
Exhibit P-150, p. 50, Art. 44 d).
299 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4214.
300 IATA Articles of Association, adopted as of May 2005, online: IATA <http://www.iata.org/NR/
rdonlyres/1C373605-4F10-48C0-81DB-98676881A06A/0/agm61articlesofassociationamended_
agm61_tokyo_2931may2005.pdf> (accessed January 14, 2009) [IATA May 2005 Articles of Association]
301 The principal goals given to IATA in its original Articles of Association were:
To promote safe, regular and economical air transport for the benefit of the peoples of the world,
to foster air commerce and to study the problems connected therewith.
To provide means for collaboration among the air transport enterprises engaged directly or indirectly
in international air transport service.
To cooperate with the International Civil Aviation Organization and other international
organizations.
As Rodney Wallis noted, although these objectives were set in 1946, long before terrorism
became a concern of international civil aviation, they continue to have direct application: Wallis,
Combating Air Terrorism, pp. 102-103. In IATA’s current Articles of Association, the wording of
its mission statement has been altered slightly, most notably with respect to the first objective, which
now includes reference to security. It states that IATA shall “…[p]romote safe, reliable and secure air
services for the benefit of the peoples of the world” [Emphasis added]: IATA May 2005 Articles of
Association.
�Chapter III: Civil Aviation Security in the Present Day
the important contribution to its civil aviation mandate made by IATA and by
other international organizations.302 IATA is one of only two non-state members
that participate on ICAO’s Aviation Security Panel (AVSEC Panel). The Panel
reviews ICAO security requirements and recommends changes as necessary.303
Within its membership, IATA supports and promotes the consistent application
of the international security standards and recommended practices established
by ICAO. International harmonization of security practices is of particular
importance to IATA. Adherence to a common set of international standards
ultimately benefits passengers. It provides assurance that security procedures
are understood by the international carriers implementing them and that the
level of security is consistent across jurisdictions. With a harmonized approach,
airlines can focus on ensuring “…the highest level of security standards” rather
than on determining which measures to apply in a particular jurisdiction.304
Canada plays a unique role in supporting the ongoing co-operation between
ICAO and IATA, since both organizations are headquartered in Montreal.305
In 1945, acting on behalf of the world’s governments, Canada’s Parliament
provided IATA with its current charter.306
Several other international and regional bodies besides ICAO and IATA have a
significant impact on civil aviation security. These include the European Civil
Aviation Conference (ECAC), whose Security Forum seeks to harmonize civil
aviation security policies and practices among its member states.307 Although
ECAC is subordinate to ICAO, the political weight of its member states lend
it an “…influence far exceeding its numeric strength at the parent body.”308
The Airports Council International (ACI) promotes policies and services that
strengthen the ability of airports to serve their passengers, customers and
communities,309 and is an important and authoritative voice in the civil aviation
security community.310
302 ICAO reports that it “…works in close collaboration with other specialized agencies of the United
Nations such as the International Maritime Organization, the International Telecommunication Union
and the World Meteorological Organization. The International Air Transport Association, the Airports
Council International, the International Federation of Air Line Pilots’ Associations and other
international organizations participate in many ICAO meetings.” See ICAO Backgrounder, p. 5.
303 In the wake of the liquid and gel explosives threat that was uncovered in the United Kingdom in
August 2006, ICAO convened an extraordinary meeting of its Council, and IATA worked closely with
ICAO’s AVSEC Panel to develop harmonized regulations that could be applied in all jurisdictions of
the world, to simplify the procedures that both airlines and passengers would have to follow:
Testimony of Georgina Graham, vol. 66, October 25, 2007, pp. 8210-8211.
304 Testimony of Georgina Graham, vol. 66, October 25, 2007, p. 8211.
305 Wallis, Combating Air Terrorism, p. 89.
306 Wallis, Combating Air Terrorism, p. 102.
307 Exhibit P-101 CAF0831, p. 7 of 8.
308 Wallis, Combating Air Terrorism, p. 89.
309 Exhibit P-101 CAF0831, p. 8 of 8.
310 Wallis, Combating Air Terrorism, p. 90.
101
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3.2.1.1.1 International Conventions
ICAO was established by the Chicago Convention, which serves as the foundation
for all international civil aviation operations.311 It specifies the privileges and
restrictions that pertain to all signatories, or Contracting States, and provides
for the adoption of international standards and recommended practices in all
areas of civil aviation.
ICAO is an agency of the United Nations. Its membership consists of sovereign
nations. Currently, 190 Contracting States312 together comprise ICAO’s main
body, the Assembly, which meets once every three years.313 The Assembly adopts
resolutions, but does not set the international rules with which members must
comply. The Council, ICAO’s governing body, converts Assembly resolutions into
international standards and recommended practices. The Council consists of 36
nations elected from the Assembly for a three-year term, with representation
to ensure that those states with the greatest involvement in civil aviation enjoy
majority participation and that the main geographic areas of the world are
represented.314
The international standards and recommended practices adopted by the ICAO
Council are published in Annexes to the Chicago Convention. Since 1944, 18
Annexes have been added to the Convention, each pertaining to a different
area of civil aviation, such as aircraft operation, licensing, air worthiness and
meteorology.315 Standards are mandatory provisions with which all signatories
to the Convention must comply.316 Recommended practices are not obligatory,
but are considered desirable measures317 that should be adopted by states that
have the ability to do so.318
311 Wallis, Combating Air Terrorism, p. 91.
312 Online: International Civil Aviation Organization < http://www.icao.int/cgi/goto_m.pl?cgi/statesDB4.
pl?en> (accessed January 14, 2009).
313 Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4216.
314 Two-thirds of the Council is comprised of states that engage the most in civil aviation, while the
remaining one-third aims to ensure geographical representation. During their terms of office, Council
representatives function as ambassadors to ICAO, operating out of its headquarters. The third main
body of ICAO is the Secretariat, which consists of the employees of ICAO, led by the Secretary General:
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4216.
315 Testimony of Moses Aléman, vol. 35, May 29, 2007, pp. 4216-4217; see also ICAO Backgrounder, p. 8.
316 A Standard is defined in the Eighth Edition of Annex 17 to the Chicago Convention (April 2006) as
“…[a]ny specification…the uniform application of which is recognized as necessary for the safety or
regularity of international air navigation and to which Contracting States will conform in accordance
with the Convention: in the event of impossibility of compliance, notification to the Council is
compulsory under Article 38 of the Convention” [Emphasis added]: Exhibit P-181, p. (vi).
317 A Recommended Practice is defined in the Eighth Edition of Annex 17 to the Chicago Convention
(April 2006) as “…[a]ny specification…the uniform application of which is recognized as desirable in
the interests of safety, regularity or efficiency of international air navigation, and to which Contracting
States will endeavour to conform in accordance with the Convention” [Emphasis added]: Exhibit
P-181, p. (vi).
318 Testimony of Moses Aléman, vol. 35, May 29, 2007, pp. 4216-4217.
�Chapter III: Civil Aviation Security in the Present Day
The issue of security, addressed in Annex 17, came late to ICAO.319 When ICAO
was created, air terrorism was not a concern.320 Flight safety and the economic
conditions of civil aviation were the main focus of the developing international
regulatory regime.321 Thirty years would pass before security was viewed as being
of sufficient interest to the international community to merit a distinct Annex
to the Convention. By the late 1960s, the hijacking of aircraft for political ends
was occurring with increasing frequency,322 and three successive and important
conventions (in addition to the existing Chicago Convention) were drafted
in response to specific security incidents. The three conventions provided a
network of international rules that covered jurisdiction and the responsibilities
of states with respect to “acts of unlawful interference.” As well, ICAO issued a
detailed, non-binding security manual to guide states on implementing security
measures. Despite these developments, it became clear that the existing regime
could not deal adequately with the security threats being encountered,323 and
Annex 17, Security: Safeguarding International Civil Aviation Against Acts of
Unlawful Interference, was adopted in 1974.324 Annex 17 set out the minimum
standards for an effective aviation security regime.
The Convention on Offences and Certain Other Acts Committed on Board Aircraft,325
commonly known as the Tokyo Convention, was the first to address security
in civil aviation. It was not primarily concerned with hijackings or sabotage,
preceding the occurrence of many such incidents by several years.326 Only
one provision of the Convention referred to the unlawful seizure of aircraft,327
demonstrating the low level of concern at the time.328 The Convention dealt
mainly with criminal offences committed on board aircraft. It was enacted in
response to a 1960 incident in which a passenger killed another passenger on
board an aircraft while it flew over the Atlantic Ocean, but for which there was no
legal remedy at the time. The alleged offender could not be prosecuted because
international law did not give any state jurisdiction in such circumstances.
The Tokyo Convention established rules governing jurisdiction over acts or
offences committed on board an aircraft while in flight or outside the territory
of a state.329 Under the Convention, jurisdiction is normally given to the state
319
320
321
322
323
324
325
326
327
328
329
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4215.
See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
Exhibit P-157, p. 15 of 135.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4211.
Exhibit P-157, p. 15 of 135.
Exhibit P-151.
See Exhibit P-154.
Wallis, Combating Air Terrorism, p. 92.
Exhibit P-154, p. 5, Art. 11(1).
Wallis, Combating Air Terrorism, p. 92.
Exhibit P-154, pp. 3-4, Arts. 1(1)-(2), 3, 4.
103
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of registration of the aircraft.330 Other states can be granted jurisdiction under
certain circumstances.331
The Tokyo Convention laid the foundation for government intervention when
offences occur on board an aircraft.332 Although only one provision dealt with
the unlawful interference with aircraft, it was nevertheless regarded as an
important provision and continues to have relevance.333 It required Contracting
States to “…take all appropriate measures to restore control of the aircraft to
its lawful commander or to preserve his control of the aircraft” in the event of
an unlawful seizure.334 While the inclusion of this provision might have been
viewed as a proactive security measure, the potential benefit was negated by
the fact that states were slow to ratify the Convention. Signed in 1963, it was
unenforceable when a hijacking occurred in 1968 and return of the seized aircraft
to its rightful state was not honoured. The Convention needed ratification by
one more country before it could come into force. In response, the United States
immediately ratified the Convention, and it came into force in 1969.335
The late 1960s witnessed a rash of aircraft hijackings, and 1970 saw the first
coordinated multi-aircraft terrorist hijacking. Three aircraft were destroyed
at Dawson’s Field in Jordan, as well as one aircraft at Cairo, and hundreds of
passengers were taken hostage. This organized attack by the Popular Front for
the Liberation of Palestine (PFLP) is generally accepted as the birth of modernday air terrorism.336 It was evident that the Tokyo Convention could not sufficiently
deal with such incidents:
There was a need to specify in an international treaty the
action that had to be taken by states when an aircraft was
seized unlawfully. The Hague [Convention] did that. Its
language recognized the deterrent effect punishment could
have on offenders and called on all ICAO contracting states to
make the offense “punishable by severe penalties.”337
330 Exhibit P-154, p. 3, Art. 3.
331 “A Contracting State which is not the State of registration may not interfere with an aircraft in flight in
order to exercise its criminal jurisdiction over an offence committed on board except in the following
cases: (a) the offence has effect on the territory of such State; (b) the offence has been committed by
or against a national or permanent resident of such State; (c) the office is against the security of
such State; (d) the offence consists of a breach of any rules or regulations relating to the flight
or maneuver of aircraft in force in such State; (e) the exercise of jurisdiction is necessary to ensure the
observance of any obligation of such State under a multilateral international agreement”: Exhibit
P-154, pp. 3-4, Art. 4.
332 Wallis, Combating Air Terrorism, p. 92.
333 Wallis, Combating Air Terrorism, p. 92.
334 Exhibit P-154, p. 5, Art. 11(1).
335 The United States became the 12th country to ratify the Tokyo Convention. Although the Tokyo
Convention applied to the 1968 hijacking, which occurred in the Middle East, it could not be enforced
because only 11 countries had ratified the treaty at that time: Testimony of Moses Aléman, vol. 35, May
29, 2007, pp. 4225-4226.
336 Wallis, Combating Air Terrorism, p. 92. See also Appendix A, Chronology: Significant Acts of Unlawful
Interference with Civil Aviation.
337 Wallis, Combating Air Terrorism, p. 92.
�Chapter III: Civil Aviation Security in the Present Day
The Convention for the Suppression of Unlawful Seizure of Aircraft (“Hague
Convention”) was signed in 1970 and entered into force in 1971.338 With the
alarming growth in aircraft hijackings, the Convention obliged Contracting
States to declare hijacking a criminal offence. The goal was to eliminate safe
havens for hijackers by imposing a choice on Contracting States for dealing with
offenders: prosecute or extradite.339 In his 1993 book, Combating Air Terrorism,
Wallis remarked that such strong language made for a powerful treaty, if fully
enacted by Contracting States:
If there were no havens to which hijackers could escape after
committing their acts of terror, much of their motivation would
disappear.
While the Hague Convention is viewed as an important development in
international civil aviation security, its deterrent effect is no doubt weakened
because some governments have failed to live up to their obligations340 and
because a new era of suicide terrorism has emerged.
Another limitation of the Hague Convention is that it deals only with the hijacking
of aircraft. In 1970, as the text for the Convention was being finalized, its drafters
recognized that acts of sabotage were not included. Although not as common
as hijacking at the time, sabotage was a known method of unlawful interference
with civil aviation. Instead of delaying passage of the Hijacking Convention, as the
Hague Convention was also known, ICAO decided to develop a separate treaty
to address bombings and similar attacks on aircraft.341 A year later, in 1971, the
result of its deliberations was the Suppression of Unlawful Acts against the Safety
of Civil Aviation (“Montreal Convention”), which came into effect in 1973.342 The
Montreal Convention addressed the sabotage of aircraft, whether in flight or
on the ground, as well as similar attacks on air navigation facilities.343 It listed
a range of offences to be punished by Contracting States.344 They were also
called upon to “…take all practicable measure[s] for the purpose of preventing
the offences” specified in the Convention.345 This proved to be a valuable clause,
since it gave the airline industry the authority for its efforts to enhance airport
security around the world. It also gave ICAO a springboard for launching Annex
17 to the Chicago Convention.346
The Montreal Convention did not cover all sabotage against civil aviation. This
became apparent after simultaneous attacks at the airport terminals in Rome
338
339
340
341
342
343
344
345
346
See Exhibit P-155, pp. 1-2.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4226.
Wallis, Combating Air Terrorism, p. 93
Wallis, Combating Air Terrorism, p. 94.
See Exhibit P-156, pp. 1-2.
Exhibit P-156, p. 2, Art. 1.
Exhibit P-156, pp. 5-6, Arts. 3, 8; see also Wallis, Combating Air Terrorism, pp. 94-95.
Exhibit P-156, p. 7, Art. 10.
Wallis, Combating Air Terrorism, p. 95.
105
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and Vienna in December 1985.347 The Council of ICAO wanted to invoke the
Montreal Convention, but realized this was not possible since the treaty did
not address public areas of airports. Only the local police had jurisdiction over
these incidents.348 This void in authority over a matter concerning aviation
terrorism prompted the development, in 1988, of the Montreal Protocol for the
Suppression of Unlawful Acts of Violence at Airports Serving International Civil
Aviation. The Montreal Protocol, as it is commonly known, adds to and amends
the Montreal Convention to create uniform legislation for the suppression of
terrorist attacks at airports. It should be read with the Montreal Convention as a
single instrument.349
The most recent ICAO convention in aviation security stemmed, once again,
from a major incident. The destruction of Pan Am Flight 103 on December 21,
1988, was caused by plastic explosives concealed in unaccompanied, interlined
baggage. Although it was well known that plastic explosives were difficult to
detect using existing X-ray equipment, and intelligence reports at the time
had warned specifically about the imminent use of plastic explosives to target
an aircraft in flight,350 local Pan Am management staff chose X-ray scanning as
the sole method to screen interlined baggage for explosives.351 The baggage
containing the explosives slipped undetected onto Flight 103. Following the
bombing, ICAO developed the Convention on the Marking of Plastic Explosives
for the Purpose of Detection. The Convention prohibits the manufacture, sale or
possession of plastic explosives without the chemical markings specified by the
Convention. These markings make it easier for screening equipment to detect
the explosives. Signed in 1991, the Convention came into force in 1998.352
As well as developing conventions to address civil aviation security, the Council
of ICAO decided in 1969 to establish the Committee on Unlawful Interference,
observing that the threat posed to civil aviation required the urgent and
continued attention of ICAO.353 The Committee is comprised of a subset of
Council members354 who review incidents of hijacking and sabotage and submit
recommendations to the Council.355
3.2.1.1.2 Annex 17 and the ICAO Security Manual
In 1968, in response to a number of hijackings related to Cuba, ICAO convened
an ad hoc group of experts to prepare a security manual that could assist
Contracting States in addressing acts of unlawful interference with international
347
348
349
350
351
352
353
See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
Testimony of Moses Aléman, May 29, 2007, p. 4227.
Exhibit P-263, Tab 3, p. 2 of 3.
Wallis, Lockerbie, p. 23.
Wallis, Lockerbie, p. 104.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4228.
ICAO 1969 News Release, online: International Civil Aviation Organization <http://www.icao.int/icao/
en/nr/1969/pio196904_e.pdf>, p. 2 (accessed January 14, 2009) [ICAO 1969 News Release].
354 ICAO 1969 News Release, p. 2.
355 ICAO 1969 News Release, p. 4.
�Chapter III: Civil Aviation Security in the Present Day
civil aviation. First published in 1971,356 the Security Manual for Safeguarding
Civil Aviation Against Acts of Unlawful Interference (Security Manual) was purely
a guide for states and security stakeholders. The measures it outlined were not
binding, since the Security Manual did not have any official regulatory status.357
After Annex 17 came into existence in 1974, the Security Manual could be used
to assist states in applying the Annex and to provide governments, airports and
air carriers with practical guidance for meeting their security responsibilities.358
Annex 17 and the Security Manual are meant to be companion documents.359
Annex 17 uses broad language to describe the desired outcomes of its standards
and recommended practices, while the Security Manual provides specific ways
for states and their security partners to accomplish these objectives.
Unlike Annex 17, the Security Manual is a lengthy document that specifies in
detail several methods for implementing various security measures, from the
simplest and most cost-efficient options for states with fewer resources, to the
more sophisticated procedures that wealthier states may be able to afford.360
The Security Manual includes guidance about the security measures required
of most partners in civil aviation security, such as airports, air carriers, security
officers and police. The Manual is a restricted document provided by ICAO to
Transport Canada, and only Transport Canada has the authority to share its
contents.361
356
357
358
359
Subsequent amendments were made in 1974, 1977 and 1983. See Exhibit P-157, p. 17 of 135.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4211.
Exhibit P-157, p. 17 of 135.
Indeed, the Security Manual is specifically referenced throughout the text of Annex 17 as a guidance
document to assist with the implementation of various standards. See Exhibit P-181, pp. (v) and
2-1– 4-3. See also Testimony of Moses Aléman, vol. 36, May 30, 2007, p. 4278.
360 Testimony of Moses Aléman, vol. 36, May 30, 2007, pp. 4278-4279.
361 The Security Manual is provided only to a state’s designated authority as specified under Standard 3.1.2
of Annex 17. See Exhibit P-181, p. 3-1, s. 3.1.2. See also Testimony of Moses Aléman, vol. 36, May 30,
2007, pp. 4278-4279.
107
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Volume Four: Aviation Security
Figure 1: International Aviation Security Regulatory Framework
Convention on
International
Civil Aviation
Annex 17
Security
Security Manual for
Safeguarding Civil
Aviation Against Acts of
Unlawful Interference
Also referred to as the Chicago
Convention or the ICAO
Convention
One of 18 Annexes to the Convention on
International Civil Aviation. Annex 17 sets
out Standards and Recommendations on
civil aviation security.
The ICAO Security Manual provides
guidance material or advice to ICAO
Contracting States to support
compliance with Annex 17.
The first edition of Annex 17, adopted in 1974, established the international
standards and recommended practices that were to comprise the minimum
security framework expected of all Contracting States.362 The first edition, however,
consisted primarily of recommendations, which are akin to best practices363 and
are optional.364 Some experts who appeared before the Commission viewed
this edition of the Annex as a substandard document that did not give states
the means to meet the myriad security threats facing civil aviation.365 Very little
was added to Annex 17 in its second edition, which was adopted in 1981366 and
which was the edition in force when Air India Flight 182 was destroyed.367 Only
then did ICAO recognize that Annex 17 did not adequately address the threats
to civil aviation and that a much more robust document was necessary.368 A
wholesale revision of Annex 17 ensued.369
362 Exhibit P-157, p. 16 of 135. Although adopted in 1974, Annex 17 did not come into effect until 1975.
See Exhibit P-151. See also Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
363 Exhibit P-157, p. 16 of 135.
364 Wallis, Combating Air Terrorism, p. 97.
365 See, for example, Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
366 See Exhibit P-152.
367 In 1985, Annex 17 obliged Contracting States to “…take the necessary measures to prevent
weapons or any other dangerous devices, the carriage or bearing of which is not authorized, from
being introduced, by any means whatsoever, on board an aircraft engaged in the carriage of
passengers”: Exhibit P-152, Standard 4.1.5. It recommended “…the necessary procedures to prevent
the unauthorized introduction of explosives or incendiary devices in baggage, cargo, mail and stores to
be carried on board aircraft” and further recommended measures to protect the same between the
terminal buildings and aircraft “…with the view to safeguarding such aircraft against acts of sabotage”:
Exhibit P-152, Recommendation 4.1.14 and Recommendation 4.1.16.
368 Testimony of Moses Aléman, vol. 35, May 29, 2007, pp. 4217-4218.
369 See, for example, Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
�Chapter III: Civil Aviation Security in the Present Day
ICAO named an ad hoc group of international security experts, initially from 16
nations and four international organizations, to revise Annex 17. The revised
Annex adopted 35 standards, where previously there were only 13.370 The group
was also required to meet periodically to review Annex 17 and to consider
whether new standards should be adopted and whether recommended practices
needed to be elevated to the status of standards.371 The group eventually became
known as the AVSEC Panel,372 which served as a specialist security body, with
membership drawn from states and international organizations, and reported
to the Committee on Unlawful Interference.373
Annex 17 has been described as “…a small, singularly simple publication but one
born out of much debate in order to balance the perceived needs of civil aviation
seen through the eyes of security specialists (the AVSEC Panel), against the
political and economic considerations of the members of the ICAO Committee
on Unlawful Interference and the Council.”374 The current edition of Annex 17
was adopted in 2005 and came into effect in April 2006.375 It is organized into
five main chapters that address the following: (1) definitions, to clarify key
terminology used in international civil aviation security; (2) general principles;
(3) the organization of national regimes; (4) preventive security measures; and (5)
the management of responses to acts of unlawful interference.376 Most nations,
including Canada, are signatories to the Chicago Convention,377 and Annex 17 is
the core document from which all national civil aviation security regimes must
flow. It provides a blueprint for the essential elements that comprise a basic, but
inclusive, regime. Among other obligations under Annex 17, Contracting States
are required to:
• Establish an organization and develop and implement regulations,
practices and procedures for safeguarding civil aviation against acts
of unlawful interference;378
• Establish and implement a written national civil aviation security
program;379
• Designate and specify to ICAO an appropriate authority with
responsibility for developing, implementing and maintaining the
national civil aviation security program;380
• Establish a national aviation security committee to coordinate
security activities between all entities with responsibilities within
the national civil aviation security program;381
370
371
372
373
374
375
376
377
378
379
380
381
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Wallis, Combating Air Terrorism, p. 90.
Wallis, Combating Air Terrorism, p. 97.
Exhibit P-181, p. (viii).
Exhibit P-181, p. (iii).
See Exhibit P-452.
Exhibit P-181, p. 2-1, s. 2.1.2.
Exhibit P-181, p. 3-1, s. 3.1.1.
Exhibit P-181, p. 3-1, s. 3.1.2.
Exhibit P-181, p. 3-1. s. 3.1.5.
109
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Volume Four: Aviation Security
• Require all airports382 and commercial air carriers383 to
establish, implement and maintain a written security program
for their operations that meets the requirements of the national
civil aviation security program;
• Ensure that each airport establishes an airport security committee
to assist in implementing the airport security program;384
• Establish measures to prevent unauthorized weapons, explosives
or anything that could unlawfully interfere with civil aviation from
being introduced on board an aircraft,385 including measures
relating to:
- Access control, particularly non-passenger and vehicular
access to airside and restricted areas of airports, through means
such as identification systems, background checks, appropriate
supervision and the screening of at least a proportion of nonpassengers and their belongings;386
- Aircraft security, including conducting aircraft security checks
and protecting the flight crew compartment;387
- Screening and protection of passengers and their cabin
baggage;388
- Screening and protection of hold baggage, including ensuring
that the baggage of any passenger not on board an aircraft is
not transported unless appropriately identified and screened;389
- Screening and protection of cargo and mail390 and the
application of security controls to catering, stores and
supplies391 carried on passenger aircraft;
• Ensure, to the extent practicable, that security measures are applied
based upon a security risk assessment carried out by the relevant
national authorities;392
• Ensure the development and implementation of a national training
program for the personnel of all entities with responsibility for
aspects of the national civil aviation security program;393
382
383
384
385
386
387
388
389
390
Exhibit P-181, p. 3-1, s. 3.2.1.
Exhibit P-181, p. 3-1, s. 3.3.1.
Exhibit P-181, p. 3-1, s. 3.2.3.
Exhibit P-181, p. 4-1, s. 4.1.
See Exhibit P-181, p. 4-1, ss. 4.2.1-4.2.6.
See Exhibit P-181, p. 4-1, ss. 4.3.1-4.3.3.
See Exhibit P-181, pp. 4-1–4-2, s. 4.4.1-4.4.4.
See Exhibit P-181, p. 4-2, s. 4.5.1-4.5.5.
This includes a process for approving regulated agents if such a program is established by a
Contracting State. See Exhibit P-181, p. 4-2, ss. 4.6.1-4.6.4.
391 See Exhibit P-181, p. 4-2, s. 4.6.5.
392 Exhibit P-181, p. 2-1, s. 2.2.2.
393 Exhibit P-181, p. 3-1, s. 3.1.6.
�Chapter III: Civil Aviation Security in the Present Day
• Develop and maintain a national civil aviation security quality
control program to assess compliance with and to validate the
effectiveness of its national civil aviation security program;394
• Constantly review the level of threat to civil aviation within its
territory and adjust relevant elements of its national civil aviation
security program accordingly;395 and
• Co-operate with other states in developing and exchanging
information concerning national civil aviation security, training and
quality control programs, as necessary.396
3.2.1.2 Limitations on International Governance
Several concerns have been raised about ICAO governance in civil aviation
security, such as its political constitution, which can hinder decision-making
and result in the appointment of representatives poorly qualified to work in
this highly technical and specialized field. As with other international bodies
with representatives from nations, ICAO is seen as a political organization. The
language developed to govern international civil aviation is necessarily based
on compromise.397 Any rules adopted require consensus398 and must enable
those states with the fewest resources to comply.399 Wallis has described the
problem of resources:
Sometimes the words are weak because the country simply
doesn’t have money to do things. You might have a country
that has to make a decision between having an X-ray machine
at an airport and an X-ray machine in a hospital. They
might opt to have an X-ray machine in the hospital but in a
developed country you would expect them to have all of these
things, and they could push ahead.400
The process of establishing standards can prove frustrating. Annex 17 security
provisions often fail to find acceptance on anything more than the level of
the “lowest common denominator.”401 Inevitably, the wording chosen for
international standards gives states considerable freedom in implementing
them.402
ICAO standards must be considered minimum standards that states with the
requisite resources, particularly developed countries, should be able to easily
394
395
396
397
398
399
400
401
402
Exhibit P-181, p. 3-1, s. 3.4.4.
Exhibit P-181, p. 3-1, s. 3.1.3.
Exhibit P-181, p. 2-1, s. 2.4.2.
Wallis, Combating Air Terrorism, p. 91.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4218.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4218.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4218.
Wallis, Combating Air Terrorism, p. 91; Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4285.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4218.
111
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exceed.403 Exceeding these standards, where it is possible to do so, appears to
have been a long-established practice. Before the bombing of Air India Flight
182, Canada, the US and many European nations had established national
regimes exceeding the standards in Annex 17.404 Aviation security reviews and
investigations concluded that Canada had exceeded Annex 17 standards at the
time of the Air bombings. This should have been no surprise, although Transport
Canada officials often mentioned it as being particularly noteworthy.405
There is also concern that government representatives who serve ICAO’s main
bodies and committees are drawn from the civil service and often lack substantial
background in civil aviation security.406 The Committee on Unlawful Interference
consists of ICAO Council members who function much like national ambassadors
and whose security backgrounds may be minimal or non-existent.407 Yet this
Committee finalizes recommendations to be put to the Council to provide
direction in aviation security.408 In contrast, IATA established a Security Advisory
Committee (SAC) in 1967, with goals similar to ICAO’s Committee on Unlawful
Interference, but with a notably different composition. Formed to develop
collective airline policies to combat air terrorism, the SAC, later renamed the
Security Advisory Group, consisted of experts in civil aviation security. These
were drawn from among the security heads of international airlines.409
Despite its limitations, ICAO has produced important international legal
instruments to manage civil aviation security, although these have largely
developed in an ad hoc and reactive fashion. Since 1985, the Committee on
Unlawful Interference has sought guidance from the AVSEC Panel, which consists
of security experts from several states and organizations,410 including IATA.411
The AVSEC Panel authored the first substantial rewrite of Annex 17 after the
destruction of Air India Flight 182,412 introducing a much more rigorous regime
of international civil aviation security standards.413 Experts in security were
added to advise the Committee on Unlawful Interference. This was a welcome
development, and its continued influence in matters of security, particularly
related to Annex 17,414 might help to balance the deficiencies associated with
other ICAO bodies that have responsibilities in civil aviation security. However,
even though the AVSEC Panel provides specialist knowledge, only the individual
Contracting States, through their representatives, have the authority to finalize
ICAO rules.415 Their decisions can be swayed by competing interests and may
403
404
405
406
407
408
409
410
411
412
413
414
415
Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4271.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4501.
Wallis, Combating Air Terrorism, p. 104.
Testimony of Moses Aléman, vol. 35, May 29, 2007, pp. 4216-4217.
Wallis, Combating Air Terrorism, pp. 90, 104.
See Wallis, Combating Air Terrorism, pp. 103-104.
Wallis, Combating Air Terrorism, p. 90.
Testimony of Georgina Graham, vol. 66, October 25, 2007, p. 8210.
Wallis, Combating Air Terrorism, p. 90.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4241.
Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4217.
Wallis, Combating Air Terrorism, p. 90.
�Chapter III: Civil Aviation Security in the Present Day
not be informed by the appropriate expertise. This is an inherent limitation of
the process for developing standards.
A further limitation is that the international civil aviation security regime does
not provide for any mechanism of enforcement. This is an issue of sovereignty.
Despite the obligation on signatories of the Chicago Convention to comply with
Annex 17, there is no mechanism to force states to comply:
There is no penalty or sanction provided by ICAO. ICAO has
refused throughout the years to become an international
policeman. The reasoning that they use is that it is an
international organization of sovereign countries and every
country is left to apply the standards in their own method....416
A formal mechanism exists for states to opt out of implementing an Annex 17
standard. Under Article 38 of the Chicago Convention, states are obliged to
notify the Council of ICAO of any departures from the international standards:
Any State which finds it impracticable to comply in all respects
with any such international standard or procedure, or to
bring its own regulations or practices into full accord with
any international standard or procedure after amendment of
the latter, or which deems it necessary to adopt regulations
or practices differing in any particular respect from those
established by an international standard, shall give immediate
notification to the International Civil Aviation Organization of
the differences between its own practice and that established
by the international standard…. In any such case, the Council
shall make immediate notification to all other states of the
difference which exists between one or more features of an
international standard and the corresponding national practice
of that State.417
States may be unable or unwilling to comply with an Annex 17 standard for
several reasons. One may be financial:
The state may simply not have the money to implement
the procedures called for by the annex. This is often so in
developing countries. A government could quite literally be
faced with a choice of providing a new security facility or
feeding a hungry or even starving population. It becomes a
matter of priorities.418
416 Testimony of Moses Aléman, vol. 36, May 30, 2007, pp. 4274-4275.
417 Exhibit P-150, pp. 44-46, Art. 38.
418 Wallis, Combating Air Terrorism, p. 98.
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ICAO standards, as noted, are essentially set at the level of the lowest common
denominator to accommodate the states with the least means. This should
keep to a minimum the number of states that lack the resources to comply with
Annex 17.419 But other operational, administrative and political considerations
also come into play. A delegate to ICAO might “vote with the mood of those
present”420 when a rule is adopted, only to discover later that it is not possible to
implement the rule domestically. Other times, a state representative may lack
the authority or influence to put ICAO decisions into practice. It may also be that
the implications of a rule were not fully understood at the time of its adoption.
Although ICAO conducts its meetings in several official languages, some
delegates may end up using a language with which they are not completely
familiar and may not grasp the subtleties of debates as a result. Further reflection
and an opportunity for discussion in home surroundings may reveal unforeseen
obstacles. It could also be that a state disagrees with the rule from the beginning
but chooses not to say so in an open forum.421
The formal procedure for notifying ICAO of a failure to meet international
standards is termed “filing a difference.”422 The state must notify the Council
of ICAO and provide details of the differences between the standard and its
national regulations.423 Typically, ICAO publishes a list of states that have filed
differences and specifies the nature of the discrepancies.424 The publication
of differences works effectively for annexes that deal with other matters in
civil aviation, but security issues are confidential and must be treated in a
more circumspect manner to avoid information falling into the wrong hands.
Differences filed in civil aviation security are not published, but are shared with
the designated authorities of all signatories to the Chicago Convention.425 Each
state can then determine how this information should be used, to whom it
should be disseminated and whether its own security requirements must be
altered in response. ICAO does not interfere with such decisions, as these are
considered state matters.426 The filing of differences can result in the loss of
insurance coverage or the loss of access to services because of blacklisting by
other countries.427
ICAO publications, even those marked “restricted,” have wide circulation.428
Moreover, rogue states that are members of ICAO, or rogue airlines that are
members of IATA, will be privy to any security-sensitive information discussed
or shared within these organizations. There is no fail-safe method of preventing
such documents from reaching terrorists. All security programs must be
designed so that measures remain effective even if terrorists have knowledge
419
420
421
422
423
424
425
426
427
428
Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4285.
Wallis, Combating Air Terrorism, p. 97.
Wallis, Combating Air Terrorism, p. 97.
Wallis, Combating Air Terrorism, p. 97.
Testimony of Moses Aléman, vol. 36, May 30, 2007, p. 4273.
Wallis, Combating Air Terrorism, p. 97.
Testimony of Moses Aléman, vol. 36, May 30, 2007, pp. 4282-4283.
Testimony of Moses Aléman, vol. 36, May 30, 2007, p. 4285.
Exhibit P-157, p. 16 of 135.
Wallis, Combating Air Terrorism, p. 98.
�Chapter III: Civil Aviation Security in the Present Day
of them.429 However, information relating to the filing of differences presents a
particular problem:
…[I]f a state indicated, for example, that it could not comply
with the standard calling for reconciliation of passengers with
their baggage, terrorists would be able to identify this loophole and attack civil aviation operations through it.430
At least ICAO’s restriction of civil aviation security information makes it more
difficult than it would otherwise be for terrorists to obtain and misuse the
information.431
The Commission was informed that some states have filed differences with ICAO
in relation to Annex 17, but the current status or content of those differences is
not known.432 The Commission was further informed that states do not always
file differences because they may be reluctant to admit that they are not
complying with standards.433 This can endanger the security of other states and
air carriers that may unknowingly be exposed to security weaknesses because
of the inaction of the offending state.434
In practice, international airlines are often aware of security deficiencies, even if
ICAO is not informed, simply because they conduct security operations around
the world.435 Their employees work and reside in various jurisdictions and can
observe whether standards are met.436 Airport security committees become
an important place for airlines and other stakeholders to openly discuss their
concerns about security.437
Oversight in international civil aviation security matters is limited. Annex 17 sets
only minimum standards, and there is no mechanism to compel compliance.
Reliance on airport security committees is not sufficient to make up for
deficiencies in oversight.438
Although ICAO has no means to enforce its rules, improved oversight became
available through the Universal Security Audit Program (USAP) developed after
September 11, 2001. The USAP’s initial objective was to assess compliance with
Annex 17 standards by reviewing the aviation security regimes of Contracting
States, as well as by examining airport security on a sample basis.439 Canada
429
430
431
432
433
434
435
436
437
438
439
Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4277.
Wallis, Combating Air Terrorism, p. 98.
Testimony of Moses Aléman, vol. 36, May 30, 2007, p. 4279.
Testimony of Moses Aléman, vol. 36, May 30, 2007, p. 4283.
Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4285.
Wallis, Combating Air Terrorism, p. 98.
Testimony of Rodney Wallis, vol. 36, May 30, 2007, pp. 4285-4286.
Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4286.
Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4286.
Exhibit P-181, p. 3-1, s. 3.2.2.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4734.
115
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was audited by ICAO under the USAP in 2005. Canada prepared a Corrective
Action Plan in response and, in 2007, ICAO reviewed Canada’s progress.440 The
agreement between ICAO and member states does not permit making USAP
findings and recommendations public.441
In May 2008, Transport Canada officials advised the Commission that ICAO
had completed a full cycle of audits. In other words, all Contracting States had
been audited under the USAP. Future ICAO audits will no longer review national
aviation security regimes, but instead will review the ability of states to audit
their own regimes.442 ICAO audits will review the practices and procedures that
enable states to oversee their national aviation security systems.443
3.2.2 Oversight of Aviation Security in Canada
The Government of Canada named Transport Canada as the designated
authority responsible for national civil aviation security,444 and its officials
represent Canada at ICAO.445 Under its civil aviation security mandate, Transport
Canada is responsible for:
• Developing aviation security policy, including the designation of
airports for CATSA screening;
• Developing the Canadian Aviation Security Regulations for
Governor-in-Council approval;
• Adopting security Measures, Orders, Emergency Directions and
Interim Orders;
• Monitoring the aviation industry to ensure compliance;
• Managing the Airport Restricted Area Access Clearance Program;
and
• Working with intelligence agencies446 to provide intelligence to
CATSA, airport operators and air carriers.447
Although Transport Canada, as noted earlier, is the ultimate domestic
authority in civil aviation security, operational responsibility for security
is shared by several federal government departments and agencies, air
carriers, airport operators and many other stakeholders. It is an integrated
system that involves government, private sector448 and not-for-profit
440
441
442
443
444
445
446
Exhibit P-101 CAF0827, p. 11 of 19.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4714.
Exhibit P-101 CAF0827, p. 13 of 19.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4711.
Exhibit P-181, p.
Exhibit P-169, p. 30 of 202.
The main intelligence agencies with which Transport Canada collaborates are CSIS, the RCMP and ITAC.
See Exhibit P-169, p. 30 of 202, note 24.
447 Exhibit P-169, p. 30 of 202.
448 Exhibit P-169, p. 31 of 202.
�Chapter III: Civil Aviation Security in the Present Day
organizations.449 These include retail establishments, FBOs and groundhandling service providers. Figure 2 illustrates the complexity of security
operations and the different organizations often involved at the airport level.
Figure 2: The Airport Security Environment
2.1 The airport security environment
Source: Canadian Air Transport Security Authority Act Review Advisory
Panel, Flight Plan: Managing the Risks in Aviation Security - Report of the
Advisory Panel (2006), Exhibit P-169, p. 27.
Note: CBSA is the Canada Border Services Agency.
Transport Canada has a broad mandate, with responsibility for all major
modes of transportation, including civil aviation.450 Because security is not the
Department’s sole concern, some observers have questioned its suitability to
have primary responsibility in civil aviation security.
In its 2007 report on airport security in Canada, the Standing Senate Committee
on National Security and Defence (Senate Committee) was critical of leaving
449 Airport authorities are incorporated as not-for-profit organizations: Testimony of Fred Jones, vol. 65,
October 24, 2007, p. 8139.
450 Exhibit P-169, p. 35 of 202.
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aviation security matters with Transport Canada. The Committee spoke of the
incompatible interests of security and industry:
Transport Canada should get out of the security field and focus
on areas in which it has competence, [like] making Canada’s
transportation network more efficient. This is what Transport
Canada is really interested in – moving people and things with
maximum [efficiency]. The Committee is not saying that this is
not a worthy pursuit. It surely is.
But others should be in charge of security, primarily because
the need for proper security sometimes gets in the way of
moving people and things as quickly as they could be moved
without proper security. Putting Transport Canada in charge
of security is comparable to putting Industry Canada in
charge of the environment. Industry Canada wants maximum
production. Environmentalists want to ensure that production
doesn’t despoil the planet. The roles don’t mix.451
The Senate Committee recommended that Transport Canada be relieved of its
responsibility for security at airports and that this responsibility be transferred
to the Department of Public Safety and Emergency Preparedness Canada (now
Public Safety Canada),452 which was created after the events of September 11,
2001.453
The Committee’s view is not widely shared. The establishment of ICAO and
IATA at the same conference in Chicago in 1944 acknowledged the need in civil
aviation for ongoing collaboration between those who regulate and those who
implement.454 While governments set the rules, consideration must be given to
their feasibility within the air transport industry. In 1985, the Seaborn Report,
which undertook a comprehensive review of aviation security in Canada after
the bombing of Air India Flight 182, spoke of the need for “…a reasonable
balance between the expeditious movement of passengers and the assurance
of their safety and security”455 and stressed the importance of “…practical means
of improving airport and airline security.”456 Efficient air travel and effective
aviation security, the report said, must be accomplished together:
The threat of terrorism must not be permitted unduly to
interfere with the normal activities of daily life, including air
travel. It must, however, be recognized that air travellers are
vulnerable to terrorist and other similar attacks. It is, therefore,
451
452
453
454
455
456
Exhibit P-172, p. 63 of 155.
Exhibit P-172, p. 64 of 155.
Exhibit P-169, p. 35 of 202.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4214.
Exhibit P-101 CAF0039, p. 2 of 10.
Exhibit P-101 CAF0039, p. 2 of 10.
�Chapter III: Civil Aviation Security in the Present Day
most important that air security be based on efficient as well
as effective means, as a matter of routine, of security checking
large numbers of persons and their baggage as well as air
cargo and mail.457
This issue recently received comprehensive consideration as part of an
independent five-year review of the Canadian Air Transport Security Authority
Act (CATSA Act).458 Based on the recommendations of the CATSA Act Review
Advisory Panel (CATSA Advisory Panel), the Government decided that authority
over civil aviation security would remain with Transport Canada.459 The CATSA
Advisory Panel echoed the sentiments of the Seaborn Report, saying that most
stakeholders stressed the importance of an economically viable civil aviation
sector that maintained public service while providing the highest standards
of security.460 The Panel stated that most members of the travelling public
also wished to see security as part of an efficient and comfortable system of
air travel.461 Indeed, Annex 17 requires states to implement their security
regulations, practices and procedures while taking into account the “regularity”
and efficiency of flights.462 This is emphasized in Recommended Practice 2.3:
Each Contracting State should whenever possible arrange
for the security controls and procedures to cause a minimum
of interference with, or delay to the activities of, civil aviation
provided the effectiveness of these controls and procedures is not
compromised.463 [Emphasis in original]
The Panel found little support and “few compelling arguments”464 from
stakeholders or interested parties for a change in governance for civil aviation
security.465 It noted that Transport Canada’s situation is analogous to the
arrangement in the UK, where the Department of Transport is the designated
national authority, but differs from that of the US, where the Transportation
Security Administration (TSA) is part of the Department of Homeland Security
(DHS), which is separate from the US Department of Transportation.466 The Panel
reported that the consensus among stakeholders and others with an interest in
civil aviation was that Transport Canada, with its mandate for the transportation
457
458
459
460
461
462
463
Exhibit P-101 CAF0039.
See Exhibit P-169.
Exhibit P-101 CAF0871, p. 1 of 4.
Exhibit P-169, p. 23 of 202.
Exhibit P-169, p. 23 of 202.
Exhibit P-181, p. 2-1, s. 2.1.2.
Exhibit P-181, Recommended Practice 2.3, p. 2-1. Note: In order to easily differentiate Recommended
Practices from Standards in Annex 17, the former are printed in italics and are accompanied by
the prefix “Recommendation” [Emphasis in original]: Exhibit P-181, p. (vi).
464 Exhibit P-169, p. 35 of 202.
465 Exhibit P-169, p. 35 of 202.
466 The federal responsibility for passenger and baggage screening was transferred from the Federal
Aviation Administration (FAA) to the TSA in November 2001, in the wake of the events of September
11, 2001. See Exhibit P-157, p. 96 of 135; Exhibit P-169, p. 34 of 202.
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sector as a whole, was the most appropriate authority for aviation security and
could best integrate security with more general transportation policy.467
The Commission agrees that civil aviation security measures must enable the
air travel industry to continue to operate efficiently, and that Transport Canada
is best placed to pursue both security and efficiency, even if these objectives
sometimes compete. It must do so, however, with ever-vigilant regulatory
oversight that will foster a common vision for aviation security and true
collaboration among stakeholders. Both security and efficiency can be achieved
if the public and the responsible authorities adequately understand the issues
involved and if there is a proper mix of policies and legislative instruments.468
3.2.2.1 Concepts in Oversight
The Commission has concluded that effective oversight in civil aviation security
is not possible without a comprehensive regulatory regime. The regime
must be made clear to all stakeholders. A thorough assessment of the threat
environment and of overall security needs is required before an appropriate
regime can be established. Even after it is established, the regime will require
constant monitoring and re-evaluation. Oversight will also involve inspection
and enforcement efforts to ensure compliance. This will include the regular
testing and auditing of security procedures. Transport Canada has a welldeveloped national network of aviation security inspectors who assess regulatory
compliance by CATSA, airports and air carriers,469 and who conduct infiltration
tests of the security screening system.470 Finally, oversight requires Canadian
participation and, as appropriate, leadership in international organizations, in
particular ICAO. Canada depends in part for its own security on the security
regimes of other countries.
3.2.2.2 Oversight of Aviation Security
An adequate regulatory regime and its ongoing review are essential components
of oversight in civil aviation security. These are also requirements prescribed by
Annex 17 of the Chicago Convention. Standard 2.1.2 of the Annex requires each
Contracting State to “…establish an organization and develop and implement
regulations, practices and procedures to safeguard civil aviation against acts of
unlawful interference taking into account the safety, regularity and efficiency
of flights.”471 Standard 3.1.3 obliges each Contracting State to “…keep under
constant review the level of threat to civil aviation within its territory, and
establish and implement policies and procedures to adjust relevant elements of
its national civil aviation security programme accordingly, based upon a security
risk assessment carried out by the relevant national authorities.”472
467
468
469
470
471
472
Exhibit P-169, p. 35 of 202.
Exhibit P-169, p. 23 of 202.
Exhibit P-169, p. 87 of 202.
Exhibit P-173, p. 37.
Exhibit P-181, p. 2-1, s. 2.1.2.
Exhibit P-181, p. 3-1, s. 3.1.3; see also Exhibit P-169, p. 26 of 202.
�Chapter III: Civil Aviation Security in the Present Day
In addition, the regulatory regime should ensure that it adequately addresses
the particular threat environment facing Canada. The system should account for
risks effectively so fewer emergencies arise. At the same time, when emergencies
arise, the system should facilitate fully effective crisis management. Any effective
security program must be based on reliable intelligence and up-to-date threat
assessments, and must be flexible enough to respond to emerging threats.473
Canada does not fully comply with the minimum requirements of Annex 17. It is
beyond dispute that many long-recognized risks to civil aviation in Canada have
remained inadequately addressed, some for more than 25 years.474
3.2.2.2.1 Annex 17 and Canadian Aviation Security
Regulatory Framework
Transport Canada has established regulations, practices and procedures
to protect civil aviation from acts of unlawful interference, as required by
Standard 2.1.2.475 However, it has not ensured that these “…protect the safety
of passengers, crew, ground personnel and the general public in all matters
related to safeguarding against acts of unlawful interference with civil aviation,”
as stipulated by Standard 2.1.3 a) [Emphasis added].476 Specifically, Contracting
States are obliged under Standard 4.1 to establish measures to prevent
unauthorized explosives and other dangerous devices or substances from being
introduced on board civil aviation aircraft “by any means whatsoever.”477 To meet
this standard, Contracting States are directed to implement preventive security
measures in several areas that:
• Control access to airside and restricted areas of airports,478 including
the use of identification systems for vehicles entering such areas;479
• Protect aircraft,480 including the performance of aircraft security
checks or searches in certain circumstances;481
• Screen and protect passengers and baggage;482 and
• Subject cargo, mail and other goods to appropriate security
controls,483 in the absence of a regulated agent system,484 prior to
acceptance by passenger aircraft.485
473 Exhibit P-169, p. 26 of 202; see also Section 3.4 for a thorough review of the use of intelligence in civil
aviation security.
474 See Sections 3.8.1, 3.8.2 and 3.8.3, which describe some of the major gaps in the Canadian civil aviation
security regime. See also, for example, Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5018-5019.
475 Exhibit P-181, p. 2-1, s. 2.1.2.
476 Exhibit P-181, p. 2-1, s. 2.1.3 a).
477 Exhibit P-181, p. 4-1, s. 4.1.
478 See, generally, Exhibit P-181, p. 4-1, s. 4.2.
479 See Exhibit P-181, p. 4-1, s. 4.2.3.
480 See, generally, Exhibit P-181, p. 4-1, s. 4.3.
481 Exhibit P-181, p. 4-1, s. 4.3.1.
482 See, generally, Exhibit P-181, pp. 4-1–4-2, ss. 4.4 and 4.5.
483 Exhibit P-181, p. 4-2, s. 4.6.
484 See Section 3.8.1, which discusses regulated agent systems and the proposed Air Cargo Security
Initiative being developed by Transport Canada.
485 Exhibit P-181, p. 4-2, s. 4.6.4; see also, in general, Exhibit P-181, p. 4-2, s. 4.6.
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The fundamental shortcoming of civil aviation security in Canada is that it is
not comprehensive. Security resources have disproportionately focused on
passenger and baggage security,486 leaving many possible avenues of attack.
The civil aviation security system as a whole, which must deal with security
issues occasioned by passengers, crew and ground personnel, as well as by the
general public, remains vulnerable because it remains possible to place bombs
and other weapons of sabotage on aircraft by exploiting air cargo, weaknesses
in airport security and other deficiencies.487 This situation fails to comply with
Standard 4.1.488
After the 1985 Air India and 1988 Pan Am bombings and the terrorist attacks
of September 11, 2001, significant improvements occurred in Canadian civil
aviation security. These dealt primarily with the security screening of passengers
and their carry-on and hold baggage.489 However, concentrating efforts to
improve security almost exclusively on passenger and baggage screening has
left other potential routes for sabotage poorly protected or virtually ignored.
Specifically, inadequate measures exist to address aspects of airport security,490
the security of air cargo, mail and stores,491 and the security of FBOs and the GA
sector.492
There is no evidence that effective identification systems are being used to
prevent vehicles from gaining unauthorized access to airside and restricted
areas of airports, as required by Standard 4.2.3.493 In fact, there is evidence to the
contrary.494 The Attorney General of Canada stated that “…vehicles are subject
to only cursory, visual examination by airport operators at a limited number of
vehicle access gates.”495 The few security controls that have been applied to air
cargo are far from reflecting international best practices496 and have not reduced
486 Following the events of September 11, 2001, Budget 2001 emphasized passengers as the key risk and
directed funding only to passenger transportation. Risks from air cargo and general aviation, for
example, attracted less scrutiny, despite the level of concern that has been generated. See Exhibit
P-411, pp. 8-9.
487 See Sections 3.8.1, 3.8.2 and 3.8.3, which discuss the security risks posed by air cargo, airport security,
Fixed Base Operations and the General Aviation sector.
488 Standard 4.1 requires Contracting States to establish measures to prevent all dangerous weapons and
substances from being introduced on board aircraft engaged in civil aviation “by any means
whatsoever.” See Exhibit P-181, p. 4-1, s. 4.1.
489 See Chapter II and Section 3.1 for a more detailed discussion of the civil aviation security responses
to the bombing of Air India Flight 182, the bombing of Pan Am Flight 103 and the attacks of
September 11, 2001, respectively.
490 See Section 3.8.2, which discusses the deficiencies in airport security.
491 See Section 3.8.1, which discusses the deficiencies in air cargo security.
492 See Section 3.8.3, which discusses the deficiencies in FBO and GA security.
493 Exhibit P-181, p. 4-1, s. 4.2.3.
494 In March 2009, a covert operation involving the current Minister of Transport, the Hon. John Baird,
and the Chair of the Standing Senate Committee on National Security and Defence, the Hon.
Colin Kenny, sought to test airside security at Pearson International Airport in Toronto. The test
found that perimeter security was easily breached with a vehicle through an unlocked, unguarded
door, and without the need for identification.
495 Final Submissions of the Attorney General of Canada, Vol. II, para. 380.
496 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4259. See also Section 3.8.1, which discusses the
inadequacy of the “known shipper” regime currently in place in Canada and the need for a regulated
agent system that is in line with international best practices.
�Chapter III: Civil Aviation Security in the Present Day
the risk of sabotage through air cargo. They therefore cannot be considered
“appropriate security controls,”497 as required by Standard 4.6.4.498 Transport
Canada has acknowledged these security deficiencies, and is considering
enhanced security programs for air cargo499 as well as for FBOs500 and the GA
sector.501 The Department is also currently considering recommendations made
by the CATSA Advisory Panel to provide more comprehensive security for airside
and restricted areas of airports, including vehicle searches at major airports.502
Canadian aviation security legislative instruments include:
•
•
•
•
•
•
•
•
•
•
•
•
•
Aeronautics Act;
CATSA Act;
Canadian Aviation Security Regulations;
CATSA Aerodrome Designation Regulations;
Designated Provisions Regulations;
Identity Screening Regulations;
Air Carrier Security Measures Order;
Air Carrier Security Measures;
Aerodrome Security Measures Order;
Aerodrome Security Measures;
Security Screening Order;
Special Locations Security Measures;
Civil Aviation Security Alert Condition and Response System for Air
Carriers;
• Civil Aviation Security Alert Condition and Response System for
Aerodrome Operators and Tenants;
• Interim Order – Prohibited Items and Prohibited Items List; and
• Designation Standards for Screening Officers.
Some of these instruments are discussed elsewhere in this volume.
National Civil Aviation Security Program and Stakeholder Security Programs
Besides requiring a designated authority responsible for national civil aviation
security, Annex 17 sets out several other organizational requirements.503 Key
497 Exhibit P-181, p. 4-2, s. 4.6.4.
498 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4629. See also Section 3.8.1, which discusses the
deficiencies in air cargo security in Canada.
499 See Exhibit P-422.
500 See Exhibits P-101 CAF0847, CAF0851
501 See Exhibit P101 CAF0852.
502 Exhibit P-101 CAF0871. See also Exhibit P-169, p. 58 of 202.
503 Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4271.
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among these is an obligation to establish and implement a written national civil
aviation security program.504 Transport Canada does not have a specific written
document that describes the program in its entirety. Rather, the Department
states that its substantial body of documents, including all its legislative and
regulatory instruments, which together capture all the security requirements, is
the equivalent of the national program envisioned by Annex 17.505
The experts disagreed with Transport Canada. The CATSA Advisory Panel
conceded that Canada likely does comply with the spirit of this Annex 17
requirement, but remained “…convinced that a formal planning system,
beginning with Transport Canada, would greatly benefit the aviation security
sector.”506 Wallis did not accept that the legislative and regulatory instruments
alone satisfied the Annex 17 requirement for a written national civil aviation
security program. He stated that these various documents may contain the vast
bulk of information included in a formally written program, but that there was a
need for the information to be contained in one document – the format which
Annex 17 seems to require.507 Although an important guidance document,
Canada’s National Security Policy, created in 2004,508 is not a national civil
aviation security program.
There is much evidence to suggest that ICAO expects a single document apart
from the legislation that a country develops. First, the confidential ICAO Security
Manual provides a sample written national civil aviation security program
as guidance about the expectations for such a program.509 Second, Wallis
suggested that, when interpreting terminology in international civil aviation
security conventions, common sense plays a key role.510 The need to develop
and implement regulations, practices and procedures is already addressed in a
separate standard of Annex 17.511 Applying a common sense interpretation, a
separate standard requiring a written security program implies that something
beyond the collection of legislative instruments is necessary. Third, the current
Canadian regulatory regime consists of volumes of material. Some stakeholders,
particularly air carriers that fly between numerous international jurisdictions,
must have a good knowledge of different security regimes to comply with them.
Other countries likely have also amassed a considerable volume of legislative
and policy instruments.512 Having all information about security matters in one
document – a national civil aviation security program – would make it easier
for all stakeholders, policy makers and government officials to understand the
program.513
504 “Each Contracting State shall establish and implement a written national civil aviation programme to
safeguard civil aviation operations against acts of unlawful interference, through regulations, practices
and procedures which take into account the safety, regularity and efficiency of flights”: Exhibit P-181,
p. 3-1, s. 3.1.1.
505 Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4791.
506 Exhibit P-169, p. 97 of 202.
507 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5014.
508 Exhibit P-418.
509 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5014.
510 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5000.
511 Exhibit P-181, p. 2-1, s. 2.1.2.
512 Testimony of Georgina Graham, vol. 66, October 25, 2007, p. 8211.
513 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5014.
�Chapter III: Civil Aviation Security in the Present Day
A separate Annex 17 standard requires the appropriate authority to “define
and allocate tasks and coordinate activities” between all entities, including
governments, air carriers and airports, that have responsibility for implementing
various aspects of the national civil aviation security program.514 Moses Aléman,
an expert in international civil aviation security, discussed the implications of
this standard. Reference to the national program, he said, indicated that it must
include the state’s full slate of civil aviation security policies and procedures, and
must outline each entity’s role so that the functions of all entities were properly
coordinated.515
In fact, Annex 17 requires designated authorities to ensure that airports and air
carriers implement and maintain written security programs that conform with
the national civil aviation security program.516 This further suggests the need for
a single program document for use as a reference by stakeholders.
Transport Canada no longer requires airports and air carriers to establish written
programs.517 The Department decided during the 1990s to discontinue this
obligation. The Department determined that “…a comprehensive program of
national regulations that would cover all aspects of aviation security”518 would
suffice and would permit “a uniform national level of security at all airports” to be
maintained.519 The decision to discontinue requiring written security programs
was reached only “…after considerable reflection about the most advantageous
way of using the security resources available at the time”520 and “…led to the
continuing development of a robust program of national aviation security
regulations.”521
In its 2006 report, the CATSA Advisory Panel recommended that Transport
Canada develop a written national civil aviation security program, according
to Annex 17 requirements. The Panel further recommended that Transport
Canada require airport operators and air carriers to develop and maintain
written security programs, and that CATSA and airport tenants do so in their
respective areas of responsibility.522 The Panel noted that the UK requires all key
stakeholders in civil aviation, including airports, air carriers, cargo shippers and
caterers, to produce comprehensive and effective security plans that comply
with its national plan. The Panel recommended a similar approach to security
514
515
516
517
518
519
520
521
522
Exhibit P-181, p. 3-1, s. 3.1.4.
Testimony of Moses Aléman, vol. 36, May 30, 2007, p. 4272.
Exhibit P-181, p. 3-1, ss. 3.2.1 and 3.3.1.
Exhibit P-169, p. 97 of 202.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4790.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4790.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4790.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4790.
Exhibit P-169, p. 101 of 202.
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planning in Canada, particularly as Canada moves towards a more resultsbased523 regulatory regime.524
The Commission supports these recommendations of the CATSA Advisory
Panel. Clear direction from the governing authority is required in any civil
aviation security regime. Formal harmonization of individual security programs
within a written national program would show that all stakeholders are working
towards the same objectives – an important demonstration that all are “on the
same page,” since Canada’s system of enforcement is based upon a philosophy
of voluntary compliance, with no monolithic regime imposed from above.525
Transport Canada’s proposed initiative to strengthen air cargo security through
a system of regulated shippers, agents and air carriers will require participating
entities to submit written security programs with respect to air cargo.526
Transport Canada has indicated that it will consider the CATSA Advisory Panel’s
recommendations relating to security programs as part of an initiative to
carry out a comprehensive review of its national aviation security regulatory
framework.527
In May 2009, Transport Canada announced that the 2009 Budget would include
$2.9 million to support the development of aviation security plans, with the
priority being security plans for airports.528
The CATSA Advisory Panel proposed a framework of compulsory security
programs that should flow from national transportation and security policies.
Besides meeting Annex 17 requirements, a national civil aviation security
program would take into account and conform to:
• Canada’s National Security Plan;
• Transport Canada’s National Transportation Policy; and
• Transport Canada’s National Transportation Security Plan.529
A written national civil aviation security program would outline the national
policy, as well as the strategy and objectives to be met through a series of
integrated industry plans.530
523 The terms “results-based” and “performance-based” are used interchangeably to describe a regulatory
regime in which the outcome is prescribed, but the methods for achieving the outcome remains
flexible. This concept is discussed further in Section 3.2.2.2 under the subheading “Underlying
Principles.” See also Exhibit P-169, pp. 91-92 of 202.
524 Exhibit P-169, p. 97 of 202.
525 Exhibit P-263, Tab 20, p. 1 of 1.
526 Exhibit P-422, pp. 6-8.
527 Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4791.
528 Transport Canada News Release, May 5, 2009.
529 Exhibit P-169, p. 98 of 202.
530 Exhibit P-169, p. 98 of 202.
�Chapter III: Civil Aviation Security in the Present Day
Figure 3: National Civil Aviation Security Program
4.2 Canada’s Civil Aviation Security Program
Proposed Framework
National Transportation Policy
(Transport Canada)
National Security Policy
Securing an Open Society, April 2004
National Transportation Security Plan
(Transport Canada)
National Civil Aviation Security Program
(Transport Canada)
Air Carrier National
Security Programs
Local Aerodrome
Security Programs
CATSA
National Security Program
CATSA Local Security Programs
(airport specific)
Airport Tenants’ Security Programs (all categories: cargo operators
caterers, aviation fueling companies, FBOs, etc.)
Exhibit P-169, p. 94
Within this structure, each major stakeholder would be required to establish
security programs that conform to Transport Canada’s national civil aviation
security program.531 As required by Annex 17, Transport Canada would constantly
review threat levels and make adjustments to its national civil aviation security
program based on risk assessments.532 Similarly, civil aviation stakeholders would
undertake a security and risk assessment before establishing their programs,
using protocols established by Transport Canada. Although smaller airports
would likely have less complex programs and risk assessments than larger
ones, the process is “…no less important in maintaining a security posture.”533
Under the proposed structure, CATSA would maintain a national program and
531 Exhibit P-169, p. 99 of 202.
532 Exhibit P-181, p. 3-1, s. 3.1.3.
533 Exhibit P-169, p. 99 of 202.
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site-specific programs for all airports at which it operates. These site-specific
programs would complement each airport’s security program.
Major airport tenants would also be required to produce programs that would
form an integral part of each airport’s security program.534 As recommended in
Transport Canada’s proposed Air Cargo Security (ACS) Initiative, all regulated
entities, including shippers and freight forwarders located outside the airport,
would also be required to submit security programs that correspond to the
national program.535 Stakeholder security programs would ideally contribute to
meeting the requirement to have a national civil aviation security program by
clearly defining the responsibilities and authority of each organization.
Aviation security programs would identify weaknesses in infrastructure, policies
and procedures, as well as the potential countermeasures and changes that may
be required. At a minimum, programs would include:
•
•
•
•
Measures to prevent unauthorized access to facilities;
Assignment of security-related duties and responsibilities;
Procedures for responding to threats to or breaches of security; and
Procedures for periodically reviewing and updating programs.536
Programs would include a description of how entities meet regulated objectives,
with periodic auditing by Transport Canada inspectors.
In its oversight capacity, Transport Canada would approve programs and ensure
compliance through monitoring and enforcement.537 Multi-year programs could
be approved and adjusted as necessary.538 This integrated system of security
programs would be similar to the regime that was established for marine
security after September 2001.539
National Aviation Security Committee and Stakeholder Security Committees
Annex 17 also contains a requirement for stakeholder collaboration. Standard
3.1.5 requires Contracting States to establish a national aviation security
committee “…for the purpose of coordinating security activities” between
government departments and agencies, airport and aircraft operators and
others responsible for implementing aspects of the national civil aviation
534
535
536
537
538
539
Exhibit P-169, p. 99 of 202.
Exhibit P-422, pp. 6-8.
Exhibit P-169, p. 99 of 202.
Exhibit P-169, p. 99 of 202.
Exhibit P-169, p. 99 of 202.
The system for marine security was implemented under the Marine Transportation Security Act and the
Marine Transportation Security Regulations. See Exhibit P-169, p. 99 of 202.
�Chapter III: Civil Aviation Security in the Present Day
security program.540 In 2005, Transport Canada established the Advisory Group
on Aviation Security (AGAS), which appears to serve a similar purpose.
The AGAS plays an important consultative role at the national level, bringing
together government and aviation industry representatives twice yearly541 to
exchange views on aviation security policy, strategy and regulatory and program
priorities.542 It is a forum for high-level discussions between senior levels within
federal departments and the Canadian aviation security community.543 AGAS
meetings consist of:
• Security intelligence briefings;
• Transport Canada briefings on aviation security policy and on
regulatory and program priorities;
• High-level strategic advice from stakeholders;
• Discussion of common problems to determine whether the
program is appropriate for the threat and risk environment; and
• Progress reports from technical committees, including those
dealing with air carrier security, aerodrome security and security
screening.544
Annex 17 also requires each airport to establish an airport security committee
to assist in implementing the airport security program.545 The Canadian Aviation
Security Regulations require airports to have security committees, but these
committees vary in size, level of representation and effectiveness. The CATSA
Advisory Panel called for a more consistent approach to ensure the systematic
sharing of information among committee members and a solid foundation for
establishing common goals and procedures in aviation security incidents.546
Security programs and committees are essential to ensure optimal
communication among those responsible for civil aviation security.547 Wallis
argued that ongoing, open dialogue between government officials, who often
do not possess practical, on-the-ground experience in aviation security, and
representatives of airports and air carriers, as well as others involved in ensuring
540 “Each Contracting State shall establish a national aviation security committee or similar arrangements
for the purpose of coordinating security activities between the departments, agencies and other
organizations of the State, airport and aircraft operators and other entities concerned with or
responsible for the implementation of various aspects of the national civil
aviation security programme”: Exhibit P-181, p. 3-1, s. 3.1.5.
541 Exhibit P-101 CAF0859, p. 3 of 44.
542 Participants in AGAS include representatives of airport authorities, air carriers, police departments,
courier services, relevant Transport Canada departments, industry associations, CATSA, IATA, labour
groups and cargo carriers. See Exhibit P-101 CAF0860 for a list of participants; see also Exhibit P-169,
p. 49 of 202.
543 Exhibit P-101 CAF0859, p. 3 of 44.
544 Exhibit P-101 CAF0859, pp. 2-3 of 44.
545 Exhibit P-181, p. 3-1, s. 3.2.3.
546 Exhibit P-169, p. 49 of 202.
547 Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4271.
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the security of civil aviation, is important for developing sound security measures
and procedures for the industry.548
3.2.2.2.2 Regulatory Regime
Underlying Principles
A sufficiently robust regime can be achieved and sustained through adherence to
several key principles repeatedly mentioned by many experts and stakeholders
who appeared before the Commission. These principles include the following:
• Developing measures in a proactive manner;
• Establishing a multi-layered system of security;549
• Providing for flexibility and performance-based measures, where
suitable;550
• Fostering a culture of security awareness; and
• Determining the relative need for security measures through the
systematic application of accepted risk management protocols,
both on an individual and on a global basis.551
The effectiveness of the regime in confronting past, present and future threats
must be constantly scrutinized.
These principles are all aimed at achieving civil aviation security’s ultimate
objective – prevention.
Proactive Approach
A proactive approach is critical in civil aviation security, since the ultimate goal
is to anticipate and thwart unlawful interference.552 Yet this approach has been
largely missing in Canada and throughout the world. Canadian security, like
security in other jurisdictions, has generally been reactive. Dr. Reg Whitaker,
Chair of the CATSA Advisory Panel, elaborated:
We noticed very clearly the reactive quality of Canadian
security. The pattern is recurrent. It is always plugging the
holes that have appeared. We have had – if you [go] back to
the pre-Air India [bombing] era, the focus on airline hijacking
and the concern to prevent hijacking, [which was] perfectly
reasonable but it focused attention in a certain direction
and then suddenly you had a bomb being put on a plane
unaccompanied by a passenger.
548
549
550
551
552
Wallis, Combating Air Terrorism, p. 37.
Exhibit P-169, p. 38 of 202.
Exhibit P-169, pp. 92-93 of 202.
Exhibit P-361, Tab 1, p.10; See Section 3.3.
Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8114.
�Chapter III: Civil Aviation Security in the Present Day
And then in the aftermath of Air India, we had, again,
reasonable and important responses to that such as passenger
baggage reconciliation, but again a kind of pattern of looking
backward after 9/11, and the sudden appearance of the idea
of the suicide terrorist using a plane as a weapon and then we
have a whole new set of responses.
All these are necessary, certainly, but there is a danger that we
are always, to use a particular metaphor I suppose, fighting the
last war instead of the next. This is easy to say, but it is much
harder to come to [a] determination of how…[to] develop
the capacity to think ahead, to be imaginative, to anticipate a
threat which is in fact a constantly evolving threat. Terrorists
don’t stand still and they analyze the kind of security that
we have and think of ways of getting around it and think of
imaginative ways, as happened in 9/11, of inflicting terror.553
The Panel acknowledged that applying a proactive approach in practice is
inherently challenging.554 Dr. Jacques Bourgault, a member of the Panel, stressed
that proactive thinking must not occur sporadically. Rather, it must be part of
the overall strategic plan, with organizations taking a proactive approach on a
continuous basis.555 However, noted Bourgault, history has demonstrated that
the desired approach is not always achieved:
The experience has proven that looking forward is not part
of the usual practices, not only in Canada, in most of the
countries, and it’s a problem because from time to time,
terrorists win, as we have seen.556
The Hon. Bob Rae also discussed both the challenges and importance of
implementing a proactive approach in civil aviation security:
…[I]t is very hard to predict where the next threat is going to
come from or where it may take place. It’s very, very difficult
for us to know that. So all you can do is have a series of
contingencies which allow you to do [that].
I am reminded of the phrase which emerged from 9/11 which
was that 9/11 – the question was not that it was a failure of
intelligence but it was a failure of imagination and I think
that is where one hopes that government would have an
553
554
555
556
Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4646.
See Testimony of Reg Whitaker, Chern Heed and Jacques Bourgault, vol. 38, June 1, 2007, p. 4647.
Testimony of Jacques Bourgault, vol. 38, June 1, 2007, p. 4647.
Testimony of Jacques Bourgault, vol. 38, June 1, 2007, p. 4648.
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ability to imagine things that might happen and what are the
contingencies that should be put in place to deal with those
terrible possibilities, and that is what I think we should be
spending some time as a country thinking about.557
Layered Approach
The Commission heard repeatedly that a multi-layered approach to civil aviation
security is essential. Since no procedure or measure is foolproof,558 a system of
redundancies is necessary, so that if a terrorist penetrates one layer of security,
protection is still provided by the remaining layers.559 Analogies were made to
layers of an onion: if one layer is peeled away, another is revealed beneath it.
Comparison was also made to a “Swiss cheese” model, in which each layer of
security has holes, or areas of weakness, but as long as the layers are positioned
to ensure that the holes do not line up, security is maintained.560
Canada advocates, but does not achieve in practice, a multi-layered system of
security in which mutually reinforcing and complementary layers ensure “…
that when passengers and baggage get on board aircraft they are as secure
as they can be.”561 The layered approach can be applied to a specific security
measure, such as the multi-tiered process for hold bag screening (HBS), where
checked baggage can pass through up to five levels of screening before being
cleared for loading onto an aircraft. This process recognizes that no one piece of
equipment or method of screening baggage is fail-safe. The concept of layering
also applies to the aviation security system as a whole. Organizations and
authorities, each with specific security responsibilities, have been established,
along with accompanying security measures, to address all vulnerabilities.562
Performance-based Approach
A performance-based (also known as “results-based”)563 approach prescribes
the desired outcome, but does not dictate how to achieve it. This approach
recognizes that resources and facilities differ among those responsible for security
and that, as long as the objective is achieved, the precise method becomes less
important. For example, a performance-based approach recognizes that several
electronic and manual methods are available to ensure that an unaccompanied
bag does not travel if the corresponding passenger is not on board the flight.
The exact method can be left to the air carrier. This approach differs from the
prescriptive approach imposed for passenger-baggage reconciliation after the
Air India bombings.
557
558
559
560
561
562
563
Testimony of Bob Rae, vol. 58, October 4, 2006, p. 567.
Wallis, How Safe Are Our Skies?, p. 81.
Exhibit P-169, p. 38 of 202; see also Testimony of Jacques Bourgault, vol. 38, June 1, 2007, p. 4637.
Testimony of Craig Hall, vol. 64, October 23, 2007, p. 7933.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4708.
Exhibit P-169, pp. 38-39 of 202.
Exhibit P-169, p. 91 of 202.
�Chapter III: Civil Aviation Security in the Present Day
The terrorist threat is constantly evolving. The Commission heard that a more
flexible, performance-based, regulatory approach to security is necessary as a
result. After the Air India bombing, Transport Canada moved from a “planning
and performance-based regulatory framework”564 to a more prescriptive
regulatory framework, which involved detailed regulations for procedures
such as passenger-baggage reconciliation.565 Whitaker stated that this was
an appropriate response at the time, given the egregious security breaches
exposed by the bombing.566 Before 1985, responsibility for screening was left
to air carriers, whose focus on customer service resulted in security not being
a priority.567 Air carriers were required to submit their security programs to
Transport Canada, but no formal approval process was set out in legislation.
The CATSA Advisory Panel concluded that the regime at the time was vague
and had left “a degree of interpretation and flexibility”568 about how air carriers
designed and implemented their security systems. The 1985 Seaborn Report,
which reviewed airport and airline security following the Air India bombings,
understandably recommended a more prescriptive aviation security regime.569
This prescriptive approach was reinforced after the September 11, 2001, attacks
when authorities further tightened the rules.570
However, the CATSA Advisory Panel concluded that an overly prescriptive
regulatory framework might reduce security. Rigid procedures could become
predictable, enabling someone who observed the system over time to circumvent
it. An inability to adopt new equipment and security methods quickly might
also reduce security. In certain circumstances, rigidity would simply increase
costs and reduce security. 571
For example, the Panel noted that the Security Screening Order which, together
with the Canadian Aviation Security Regulations, defined CATSA’s roles and
responsibilities, left little room for CATSA to make operational decisions, deploy
resources efficiently or develop new ways to achieve its objectives. CATSA’s
inability to deviate from the regulations and security orders sometimes reduced
both service to customers and cost effectiveness.572
CATSA itself called for increased financial flexibility in its operations.573 During
the liquid and gel explosives threat in August 2006, CATSA required extra funds
for a public awareness campaign.574 Crown corporations would normally set their
own operational policy, but CATSA’s ability to do so was largely dictated by the
regulatory framework. The Panel observed that this framework did not provide
564
565
566
567
568
569
570
571
572
573
574
Exhibit P-169, p. 91 of 202.
Exhibit P-169, p. 91 of 202.
Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4624.
Exhibit P-169, p. 92 of 202.
Exhibit P-157, pp. 19-20 of 135.
Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4624.
Exhibit P-169, p. 91 of 202.
Exhibit P-169, p. 91 of 202.
Exhibit P-169, p. 91 of 202.
Exhibit P-101 CAF0827, p. 2 of 19.
Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4843.
133
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for “…the managerial discretion and creativity necessary to achieve its other
objectives in a balanced way.”575 The Panel contended that CATSA had reached
a level of maturity as an organization because it possessed the experience and
knowledge to make operational decisions and to be held accountable for them,
provided that security remained its main focus.576
Many industry stakeholders stressed to the Commission the importance of
avoiding a “one-size-fits-all” approach to aviation security.577 Stephen Conrad,
Project Director for Air Cargo Security at Transport Canada, testified that both
prescriptive and performance-based measures might be required, depending
on the context. Where a measure was very technical or complex, a greater
degree of prescription might be warranted.578
The CATSA Advisory Panel also acknowledged that “ …[r]egulation, ranging
from prescriptive to results-based, has to be seen as a continuum rather than a
dichotomy”579 and that some prescription would always be required for security
matters.580 However, the Panel concluded that, with a much better aviation
security regime in place today than in 1985, and with a Crown Corporation,
rather than air carriers, now responsible for screening, the regime imposed on
CATSA was too heavily weighted towards prescription. It also concluded that the
private sector would benefit from a performance-based approach to aviation
security. Bourgault testified that “…CATSA, with…[its] operational procedures,
has to be prescriptive with its own personnel doing the searching. But CATSA
as a body, as a corporation, has to be results-based in terms of procedures,
protocols and approach to prevent any terrorist attack.”581
Transport Canada favours a more performance-based approach to aviation
security. It recently initiated a multi-year and comprehensive review of Canada’s
aviation security regulatory framework.
The CATSA Advisory Panel stated that performance-based regulations could be
either “loosely” or “tightly” specified. A somewhat tighter approach might be
appropriate for industry, in part because of its profit motive and tendency to
contain costs. For a government agency such as CATSA, whose entire purpose
was security, the Panel suggested a looser approach.582
Conrad testified that the flexibility afforded by a performance-based approach
enabled industry and other stakeholders to devise “unique and innovative
575 Exhibit P-169, p. 90 of 202.
576 Exhibit P-169, pp. 91-92 of 202.
577 Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8114; see also Exhibit P-101 CAF0827, p. 16 of 19.
578 Conrad spoke particularly in the context of a proposed Air Cargo Security (ACS) Initiative that would
see security controls applied to air cargo by industry outside the air terminal building: Testimony
of Stephen Conrad, vol. 42, June 13, 2007, pp. 5185-5186.
579 Exhibit P-169, p. 93 of 202.
580 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4625.
581 Testimony of Jacques Bourgault, vol. 38, June 1, 2007, p. 4625.
582 Exhibit P-169, p. 95 of 202.
�Chapter III: Civil Aviation Security in the Present Day
ways of solving new and emerging problems”583 and to meet their compliance
obligations in the most efficient and cost-effective manner. The CATSA Advisory
Panel concluded that this approach also facilitated a culture of continuous
improvement, a characteristic of a “high reliability organization.”584 It was also a
typical objective in risk management.585
The Panel concluded that, for regulators, performance-based requirements
were simpler and less detailed to prepare in the first instance. This reduced the
need for regulatory exemptions and the time and effort required to produce
regulatory amendments. This would free Transport Canada from making and
enforcing detailed rules, enabling it to focus on other pressing objectives, such
as the development of an air cargo security regime.
The Panel described the disadvantages of the performance-based approach
as including greater complexity in compliance monitoring than under the
prescriptive approach. The Panel stated that a performance-based regime
required a culture shift by inspectors to an audit approach to compliance
monitoring, but that this should allow for more efficient use of inspectors. A
performance-based approach might also make it more difficult for a regulator to
demonstrate compliance with international agreements. The Panel noted that
a performance-based regime could be supported by a Security Management
Systems (SeMS) approach (discussed below), with which international bodies
such as ICAO and many ICAO member states were familiar. SeMS was being
actively discussed in these venues.586
The Panel warned, however, that with any move towards a performancebased regime, Transport Canada must still fulfill its obligations under Annex
17. In particular, Transport Canada needed to develop a written national civil
aviation security program and require all stakeholders to develop programs
for their operations that are consistent with the national plan. Compliance
with the approved programs would then be monitored and audited through
regular inspections by Transport Canada.587 The Panel called for AGAS, which
plays an important consultative role at the national level by bringing together
government and industry participants, to be fully engaged in the development
and maintenance of a performance-based regime.588
From January to April 2008, Transport Canada held briefings with industry
stakeholders to explain an aviation security regulatory review that was designed
to enhance and update the regulatory framework.589 Stakeholders stressed the
need for clarity about government and industry responsibilities.590 This was an
583
584
585
586
587
588
589
590
Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5186.
Exhibit P-169, p. 95 of 202.
Exhibit P-361, Tab 1, p. 10.
Exhibit P-169, p. 95 of 202.
Testimony of Reg Whitaker and Chern Heed, vol. 38, June 1, 2007, pp. 4625-4626.
Exhibit P-169, pp. 95-96 of 202.
Exhibit P-101 CAF0827, p. 16 of 19.
Exhibit P-101 CAF0827, p. 16 of 19.
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important point. The Fatal Accident Inquiry in Scotland, which reviewed the
bombing of Pan Am Flight 103, found that the directions and circulars issued by
the UK Department of Transport were not sufficient to ensure that an “infiltrated”
unaccompanied bag would not be placed on board the flight when a transfer of
aircraft took place at Heathrow Airport.591 Writing in 1993, Wallis stated that this
finding was highly significant592:
Many government civil aviation officials around the world
have been apt to issue directives with little or no effort being
made to ensure their terms are understood. Monitoring
implementation of the regulations is frequently nonexistent.
Often the rules are put together by civil servants who have
no practical experience of airline or airport operations and
are developed without consultation with aviation operations
executives.… Rules laid down by a state’s aviation authorities
should be crystal clear to all parties.593
The CATSA Advisory Panel recommended that Transport Canada make it a “high
priority” to develop a more results-based regulatory framework for aviation
security.594
Any move to a performance-based regulatory regime must involve effective,
clear communication between all organizations with responsibilities in civil
aviation security, as well as vigilant oversight by Transport Canada. Where
measures are performance-based, the outcome prescribed should specify the
highest possible standard, based on risk management principles. Care must
be taken to avoid crafting “minimum standards” like those in the Annex 17
provisions.
Security Culture and Risk Management595
Absolute security is not achievable.596 However, optimal security can be obtained
through proper risk management, which seeks to find the most cost-effective
ways to allocate limited resources for dealing with each risk. Risk management
protocols provide a systematic approach for reviewing a global set of risks,
which are then prioritized and addressed so that all significant risks are reduced
to an acceptable level. Since responsibility for civil aviation security is divided
among several industry, government and non-profit organizations, common
protocols and a shared understanding for carrying out risk assessment and risk
management procedures are essential. Rigorous risk management principles
must be an integral component of any civil aviation security system.597
591
592
593
594
595
596
Wallis, Combating Air Terrorism, p. 36.
Wallis, Combating Air Terrorism, p. 37.
Wallis, Combating Air Terrorism, p. 37.
Exhibit P-169, p. 93 of 202.
See Section 3.3.7, which also discusses the establishment of a security culture.
See, for example, Testimony of Jim Bertram, vol. 65, October 24, 2007, p. 8148; see also Exhibit P-169, p.
36 of 202.
597 Exhibit P-361, Tab 1, pp. 8-10.
�Chapter III: Civil Aviation Security in the Present Day
The Commission notes the holistic approach to risk management adopted
by Australia and New Zealand. Their national risk management standards
encourage risk management processes to be integrated into an organization’s
philosophy and practices, rather than being viewed as a separate activity, so
that “…everyone in the organization becomes involved in the management of
risk.”598
The CATSA Advisory Panel recommended Security Management Systems (SeMS)
as the methodology that could best support a performance-based regime.599
SeMS has been described as an approach that incorporates many of the key
underlying principles needed to ensure a robust civil aviation security regime,
including increased operational flexibility, a proactive approach and a rigorous
risk management process that prioritizes risks and addresses them in a timely
and preventive manner.600
The Commission learned that the concept for SeMS was derived from a
model developed to address issues related to aviation safety, known as safety
management systems, which was being implemented by airports, air carriers
and other stakeholders in the aviation system at the time of the hearings.601 One
reported strength of the safety management systems approach is its practice of
non-punitive reporting of safety concerns, in which all involved are encouraged
to report potential problems without fear of retribution. The entire thrust is
accident prevention.602 The safety management systems approach is expected
to produce a lower accident rate through more proactive management of risk,
reduced industry costs and more efficient use of government resources, all of
which would benefit security as well.603
SeMS adopts the core principles of the safety management systems approach,
extending them to the security environment for application by airports, air
carriers, CATSA and others with responsibilities in aviation security. Some of the
more significant elements of this approach include timely sharing of information,
a culture of greater security awareness, reporting of potential hazards and selfauditing of security programs.604 The CATSA Advisory Panel described how to
employ the SeMS approach:
To be effective, SeMS must become an element of corporate
management that sets out the organization’s security
policies and its intent to embrace security as an integral
part of its overall business. Thus, security becomes a culture
that percolates throughout the entire organization rather
than simply being an obligation. There are various basic
598
599
600
601
602
603
604
Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix F, p. 12.
Exhibit P-169, p. 93 of 202.
Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8114.
Testimony of Fred Jones, vol. 65, October 24, 2007, pp. 8113-8114.
Testimony of Craig Hall, vol. 64, October 23, 2007, p. 8000.
Exhibit P-169, p. 94 of 202.
Testimony of Fred Jones, vol. 65, October 24, 2007, pp. 8113-8114.
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elements associated with SeMS, including adopting a security
management plan, implementing a training program, tracking
quality assurance and oversight, as well as developing an
emergency response plan.605
Although many industry stakeholders indicated their support for SeMS, the
Commission was informed that the concept was still under development.606 In
May 2008, Transport Canada gave the Commission a discussion paper describing
the conceptual framework for SeMS. This was Transport Canada’s most current
document on the topic, but officials advised that its contents were likely
outdated, as thinking around SeMS had evolved since January 2007, when the
paper was produced.607 Some industry stakeholders were confused about the
meaning of SeMS and how it was to be applied.608 Concerns were also expressed
about the effective application of the principles of safety management systems
to the security environment, since issues of safety deal with unintended actions,
whereas security must prevent intentional harm.609
As part of the consultative process provided by AGAS, a SeMS technical
committee was established to develop the details of the regulatory structure for
SeMS, with input from civil aviation stakeholders.610 Fred Jones, Vice President
Operations and Legal Affairs with the Canadian Airports Council (CAC), which
was involved in this process, told the Commission that “…right now we’re
talking about principles; we’d like to reduce them to…more concrete practices
on a national level.”611
Transport Canada also advised that industry, CATSA and other key stakeholders
were being consulted “…to answer broad and fundamental questions still
outstanding for policy and implementation,”612 and that it had sought the input
and expertise of international stakeholders, including the G8, ICAO, IATA and
the DHS,613 to identify best practices in the field.614 It noted growing government
and industry interest in SeMS. Some industry organizations, such as IATA, were
actively pursuing a SeMS approach.615 Transport Canada reported that the SeMS
approach was a strategic priority and key element of its vision for securing
Canada’s transportation system:
A SeMS approach will focus regulators and industry on
achieving strong levels of security performance in areas of
605
606
607
608
609
610
611
612
613
614
615
Exhibit P-169, p. 93 of 202.
Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8114.
Exhibit P-101 CAF0827, p. 10 of 19.
Testimony of Craig Hall, vol. 64, October 23, 2007, p. 8000.
Testimony of Craig Hall, vol. 64, October 23, 2007, p. 8000.
Testimony of Fred Jones, vol. 64, October 24, 2007, p. 8114.
Testimony of Fred Jones, vol. 64, October 24, 2007, p. 8114.
Exhibit P-101 CAF0835, p. 17 of 35.
Exhibit P-101 CAF0835, p. 17 of 35.
Exhibit P-101 CAF0837, p. 1 of 1.
Exhibit P-101 CAF0837, p. 1 of 1.
�Chapter III: Civil Aviation Security in the Present Day
highest security risk and priority. It does not replace other
regulatory requirements, but builds upon them while moving
TC [Transport Canada] and industry to an approach that
is more proactive, collaborative, performance-based, and
incorporates risk-management principles.616
The Commission encourages further discussion and development of SeMS
through the consultative process of AGAS but, as discussed elsewhere,617 it
remains cautious about broad concepts that may be poorly understood. There
is no doubt that a culture of greater security awareness is imperative for the
current security regime. However, any system-wide approach requires clarity,
precision in terminology and a solid understanding among stakeholders of what
is required of each of them. As well, greater responsibilities for other players in
civil aviation should not absolve Transport Canada of its overall responsibilities
as regulator.
Identifying Threats: Past, Present and Future
A thorough grasp of the historical developments relating to unlawful
interference with civil aviation is a vital part of Transport Canada’s oversight role,
and is consistent with its duty to build an appropriate regulatory regime for
civil aviation security. As well, Transport Canada must constantly monitor global
incidents and trends, however insignificant they may at first seem. Dr. Peter St.
John, a retired professor of international relations with expertise in air terrorism,
testified that it is only through persistent attention that patterns emerge and
connections can be made that may assist in revealing threats – from the past,
present and into the future – that might otherwise pass unnoticed.618 Wallis
contended that the isolationist stance in North America should have come to
an end with the bombing of Air India Flight 182 in 1985, which demonstrated
that terrorism was not confined to other parts of the world. Ongoing critical
analysis of threats in the Canadian context is required. This may seem an
obvious prerequisite for oversight responsibilities in civil aviation security, and
an exercise that must be conducted in any analysis of risk,619 but the record to
date fails to show that this ongoing analysis has occurred in Canada or beyond.
The importance of such analysis cannot be overstated:
Review of past incidents is vital if aviation security is to close
the door to terrorists. But the task in this millennium must be
for security executives to be proactive rather than reactive. For
this to happen, the right people have to be employed to direct
the security functions within airlines, at airports, and within
616
617
618
619
Exhibit P-101 CAF0837, p. 1 of 1.
See Section 3.3.7.
See Testimony of Peter St. John, vol. 35, May 29, 2007, pp. 4220-4223.
Formal risk management procedures in civil aviation security were only recently introduced by
Transport Canada in 2006, and some concerns have been expressed about the comprehensiveness of
the process. For a more detailed analysis, see Section 3.3.4.
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governments. Security directors, whether within an airline
or with an airport company, must meet the needs of the task
delegated to them. Good aviation security depends on the
caliber, the knowledge, and the experience of the personnel
selected to manage the function.620
Since the early days of air terrorism, measures for safeguarding civil aviation have
been largely unplanned, responding to incidents as they occurred, rather than
being produced in an anticipatory, proactive manner. The continuing reactive
stance seen at the international level has been mirrored domestically.621 But
a cursory study of past acts of unlawful interference reveals several incidents
where terrorist tactics provoked no new security measures. The same tactics
were used later, ostensibly taking the civil aviation community by surprise.
Rae described the failure to anticipate the terrorist attacks of September 11,
2001 as a failure of imagination.622 Almost 30 years earlier, in 1972, hijackers
of Southern Airways Flight 49 in the US threatened to crash the plane into an
atomic power plant in Tennessee, presaging the use of aircraft as weapons in
themselves.623 In 1987, all 115 on board Korean Airlines Flight 858 were killed
after it was destroyed as it flew over the Andaman Sea. Liquid explosives had
been deliberately carried on board by passengers belonging to the North
Korean Workers Party.624 Still, the civil aviation security community did not
address the threat from liquid explosives until 2006, when a plot to use liquid
and gel explosives against several aircraft leaving the UK was unearthed. Only
then were measures introduced to restrict liquids and gels in carry-on luggage,
first in the form of hasty emergency measures and later, as the immediate threat
subsided, as a standard part of pre-board screening (PBS).
St. John testified that a careful examination of past acts of unlawful interference
with civil aviation revealed a number of patterns. Since 1947, there had been
five or six “cycles” of civil aviation incidents. This indicated a certain predictability
and therefore had implications for assessing threats to the system. He said that
the copycat effect, for example, was prevalent in aviation terrorism: “Ideas that
are in the air are captured and used and reused by successive people.”625
Wallis also spoke of the importance of looking at past incidents:
620 Wallis, How Safe Are Our Skies?, p. 165.
621 See Chapter II and Section 3.1, which detail the specific enhancements to the civil aviation security
regime following the bombing of Air India Flight 182, the bombing of Pan Am Flight 103 and the
terrorist attacks of September 11, 2001, respectively.
622 Testimony of Bob Rae, vol. 58, October 4, 2006, p. 567.
623 This was a lengthy hijacking in which the aircraft landed at several locations in North America,
including Toronto and twice in Cuba, before the incident was resolved. See Appendix A, Chronology:
Significant Acts of Unlawful Interference with Civil Aviation.
624 See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
625 Testimony of Peter St. John, vol. 35, May 29, 2007, p. 4222.
�Chapter III: Civil Aviation Security in the Present Day
Hindsight is a great blessing. History provides an opportunity
for turning hindsight into foresight. Hands-on experience
gained in a variety of countries helps in the development of
security defences. All security executives should have this
experience and be avid students of what has gone on before.
It will help them predict and prevent incidents occurring in the
future. It will also go a long way to making the skies safer for
passengers and crews and for people on the ground. Security
managers must always be open to innovative ideas and be
unafraid to experiment in the interest of passenger security.626
3.2.2.2.3 Inspection and Enforcement
In carrying out oversight, Transport Canada has established a system for
inspection and enforcement of the national regulatory regime, which includes
the Aeronautics Act and the CATSA Act, regulations, measures and orders. At
the larger airports, inspectors are kept on site. Smaller airports are subject to
regular visits by inspectors. Inspectors perform oversight of airport, air carrier
and CATSA operations.627
There are approximately 120 inspectors in Canada, posted across five regions.
They are responsible for providing a constant or occasional presence at the 89
“designated” airports, depending on the airport category. Inspectors perform
duties related to Canada’s Aviation Security Inspection and Enforcement
Program. The key components of the program are prevention, detection,
investigation and enforcement.628
Prevention activities are conducted through education, presence, advertising
and consulting. The objectives are to prevent violations and to promote
voluntary compliance. Detection activities include observation, monitoring,
inspection, auditing and testing against legislation to determine whether
aerodromes, air carriers and screening authorities are in compliance. This
includes infiltration tests of screening checkpoints, hold baggage screening,
cargo facilities, Restricted Area Identification Cards and aircraft security. A
rigid protocol for infiltration tests is laid out in the Inspection and Enforcement
Manual.629 Infiltration testing is a key component of compliance monitoring.630
Investigations attempt to determine whether a contravention has occurred and,
if so, whether reasonable grounds exist for enforcement action. Enforcement
action could include verbal warnings, letters of enforcement and “administrative
626
627
628
629
630
Wallis, How Safe Are Our Skies?, p. 166.
Exhibit P-169, p. 87 of 202.
Exhibit P-101 CAF0827, p. 15 of 19.
The Inspection and Enforcement Manual was presented to the Commission in November 2007.
Exhibit P-101 CAF0827, p. 15 of 19.
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monetary penalties” under the Aeronautics Act. No criminal penalties are
involved. Inspectors are responsible for verifying that deficiencies are
corrected.631
The overall approach is one of voluntary compliance,632 with a formal policy
requiring such compliance developed after the bombing of Air India Flight
182.633 Transport Canada’s philosophy of voluntary compliance is governed
by principles including transparency, fairness, timeliness, consistency and
confidentiality.634 Although voluntary compliance is encouraged through an
incremental approach to enforcement, earlier imposition of the more severe
penalties for non-compliance may sometimes be warranted.
Inspections are also conducted to ensure that relevant overseas operations
comply with Canadian requirements. As part of the Off-shore Inspection
Security Program, teams of security specialists are sent to inspect foreign
air carrier operations in other countries to verify compliance with Canada’s
regulatory regime. Before issuing operating certificates to foreign air carriers,
Canadian inspectors visit the off-shore site to ensure that standard bilateral
reciprocal security clauses will be honoured. Such clauses form part of bilateral
agreements with foreign air carriers and stipulate that Annex 17 standards and
Canadian regulatory requirements will be respected.635
Inspectors are trained over an 18-month period, and their powers are granted
incrementally. Inspectors must satisfy a test of competence at each level of their
training. 636
3.2.2.2.4 Shared Responsibility: Role of Stakeholders in Oversight
Stakeholders also have to perform oversight of their own security operations.
For example, Yves Duguay, Director of Security for Air Canada at the time of the
Commission hearings, testified that Air Canada tested its aircraft groomers and
cleaners by hiding prohibited items on an aircraft to see if they were discovered.
If the items were not found, issues of compliance and security awareness were
addressed. Air Canada developed this testing based on the best practices being
used by Transport Canada. Air Canada also tested other security procedures
for which it was responsible, including passenger-baggage reconciliation and
intrusions into restricted areas.637
In its review of the Canadian aviation security regime, the CATSA Advisory Panel
expressed concerns about the overlapping and potentially excessive oversight
brought to bear on security screening personnel,638 confusion about which rules
631
632
633
634
635
636
637
638
Exhibit P-101 CAF0827, p. 16 of 19.
Exhibit P-101 CAF0827, p. 16 of 19.
Exhibit P-263, Tab 15, p. 3 of 5.
Exhibit P-263, Tab 20, p. 1 of 1.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4541.
Exhibit P-101 CAF0827, p. 16 of 19.
Testimony of Yves Duguay, June 14, 2007, p. 5269.
Exhibit P-169, p. 87 of 202.
�Chapter III: Civil Aviation Security in the Present Day
should be used for inspecting screening officers,639 and the underuse of CATSA
management for oversight.640
All stakeholders should develop and maintain their own systems of oversight
and audit. Airport operators, which manage a variety of independent tenants,
complained of constraints on their oversight because they lacked the regulatory
authority to impose sanctions for non-compliance – powers available only to
Transport Canada inspectors.641 As Transport Canada reviews its regulatory
regime, it should consider providing limited enforcement authority to some
stakeholders, such as CATSA and airport operators, which supervise other
entities.
3.2.2.2.5 Independent Reviews of Aviation Security
In 1985, as a direct result of the bombing of Air India Flight 182, the Government
of Canada commissioned the Interdepartmental Committee on Security and
Intelligence to undertake a review of airport and airline security in Canada.642
Its report, known as the Seaborn Report, was described as a “strategic action
plan”643 for Transport Canada, as well as “…a roadmap to take aviation security
in Canada from where it was in the aftermath of 1985 to a new and much higher
ground.”644 The report came to be regarded as a seminal guidance document for
aviation security in Canada and around the world.645 However, many important
recommendations, particularly about air cargo and airport security, were
never implemented. This means that civil aviation has remained susceptible to
sabotage, despite some security improvements since the release of the report.
In 2006, the CATSA Advisory Panel said it was “struck by the similarity”646 of many
of its own recommendations for addressing deficiencies in aviation security
to those that had appeared in the Seaborn Report more than two decades
earlier.647
The Standing Senate Committee on National Security and Defence published
two reviews of aviation security in Canada – one in 2003,648 and an update in
2007649 – with a focus on security at Canadian airports. The Auditor General of
Canada also reviewed various aspects of the civil aviation security regime.650
639
640
641
642
643
644
645
646
647
648
649
650
Exhibit P-169, p. 88 of 202.
Exhibit P-173, p. 38.
Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8161.
Exhibit P-101 CAF0039, p. 1 of 10.
Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4504.
Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4505.
Testimony of Jim Marriott, vol. 37, May 31, 2007, pp. 4504-4505.
Exhibit P-157, pp. 91-92 of 135.
Exhibit P-157, pp. 91-92 of 135.
See, generally, Exhibit P-171.
See, generally, Exhibit P-172.
See, generally, Exhibit P-173; see also Exhibit P-411 and Status Report of the Auditor General of
Canada to the House of Commons, March 2009, Chapter 1: “National Security: Intelligence and
Information Sharing”, online: Office of the Auditor General of Canada <http://www.oag-bvg.gc.ca/
internet/docs/parl_oag_200903_01_e.pdf> (accessed January 26, 2010) [March 2009 Status Report of
the Auditor General of Canada, Chapter 1].
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The Commission notes that these reports have assisted in raising public
awareness about the inadequacy of aviation security measures in Canada,
many of which are applied away from public view. These reports have also led
Transport Canada to identify how shortcomings will be addressed. The review by
the CATSA Advisory Panel in 2006 was prompted by a requirement in the CATSA
Act for a review of its provisions and of CATSA’s operations, and for a report of
the review to be presented to Parliament.651 The report, Flight Plan: Managing
the Risks in Aviation Security, led Transport Canada to embark on a systematic
review of the recommendations and to report publicly on its progress.652
Although almost 25 years have passed since the Air India bombings, some of
the security deficiencies highlighted by the bombing only recently began to
be addressed. For example, a comprehensive air cargo security regime is being
contemplated to replace the largely vulnerable system that has existed, virtually
unchanged, for much of the last two decades.653 Initiatives to extend screening
requirements to improve long-known weaknesses in security at FBOs and in the
GA sector are being contemplated.654 A review of the entire aviation security
regulatory regime is in progress.655
It is impossible to know the extent to which improvements in aviation security
have flowed from these public reports or from the influence of the international
community or specific state partners in security. ICAO, for example, conducted a
confidential review of Canada’s civil aviation security program in 2005, under the
Universal Security Audit Program (USAP), to which Transport Canada responded
with a confidential Corrective Action Plan.656 The initiative to improve air cargo
security coincided with a similar drive in the United States.657
The Canadian Air Carrier Protective Program (CACPP), which covertly places
air marshals on particular flights, was established solely because of a directive
issued by the United States immediately following the September 11, 2001,
attacks.658 The CACPP is a sophisticated program that has received widespread
praise and serves as an example of best practices within the international air
marshal community.659 In contrast, Canada’s first “no-fly” list, the Passenger
Protect Program, also implemented because of US pressure, has been widely
criticized.660
651 Exhibit P-175, ss. 33(1), 33(2).
652 See, for example, Exhibit P-101 CAF0871.
653 See, generally, Exhibit P-422; see also Section 3.8.1, which provides a detailed analysis of the
deficiencies in air cargo security in Canada.
654 Exhibit P-101 CAF0827, pp. 6-9 of 19; see also Section 3.8.3, which describes the security deficiencies
identified at FBOs and in the GA sector.
655 Exhibit P-101 CAF0827, pp. 16-17 of 19.
656 Exhibit P-101 CAF0827, p. 11 of 19.
657 See Section 3.8.1.4, which discusses attempted improvements in the United States and in Canada since
2004.
658 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8059-8060.
659 See Section 3.1.3.2, which discusses the CACPP in greater detail.
660 See Section 3.5.3.2.1, which discusses the Passenger Protect Program in greater detail.
�Chapter III: Civil Aviation Security in the Present Day
In May 2009, Transport Canada issued a news release announcing that the 2009
Budget would allocate funds for the development of an airport security plan
initiative that was “inspired by the findings and recommendations” of the CATSA
Advisory Panel’s 2006 report.661 The requirement for airport security plans
is set out in Annex 17. The Commission heard that, in response to the CATSA
Advisory Panel report, Transport Canada established a number of committees
in collaboration with CATSA to review the recommendations. Jean Barrette,
Director of Security Operations at Transport Canada at the time of the hearings,
stated that Transport Canada was working to push the recommendations “…
through to fruition and make the necessary changes required to meet the intent
and the spirit of the recommendations, as proposed by the Panel.”662
Barrette told the Commission that Transport Canada welcomed the Panel
report:
…just like we welcome review from the OAG [Office of the
Auditor General], as well as contribution from the [Standing]
Senate Committee on [National] Security and Defence.
Transport Canada always sees these reports as an opportunity
over and above what we do in approving aviation…security
as valuable information and recommendations to always
enhance the aviation security program.663
Barrette noted that the recommendations of the Panel did not come as a
surprise to the Department and that, in many areas, it had already begun to
make improvements.664
There have been many influences on aviation security over the past 25 years.
The public independent reviews by government bodies and experts have
clearly provided an important check on the system, enhancing accountability
for security in Canada. Such reports serve as oversight of Transport Canada’s
role as regulator. In light of Transport Canada’s interest in moving towards a
more performance-based regime and the trend internationally towards selfauditing,665 the Commission views further independent, public reviews of
aviation security as an ongoing necessity.
As the Seaborn Report concluded in 1985, “…the key to effective security is
vigilance, which depends on careful audit and regular testing of the system.”666
Despite the ongoing threat of air terrorism, it is well-recognized that when
661 Transport Canada, “Government of Canada invests in Aviation Security” (Transport Canada News
Release, May 5, 2009).
662 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4795.
663 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4795.
664 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4795.
665 Exhibit P-101 CAF0827, p. 13 of 19.
666 Exhibit P-101 CAF0039, p. 10 of 10.
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enough time passes without an incident, complacency becomes a danger.
Governments have many pressing priorities and their commitment to security
can wane as competing interests arise.667 Complacency was recognized as
a contributing factor in Transport Canada’s lack of response to the threat
of sabotage before 1985.668 The relative lack of aviation terrorism incidents
between the 1988 bombing of Pan Am Flight 103 and September 11, 2001, may
have also given rise to complacency. This also appears to be the case with air
cargo security.
The ongoing threat of terrorist attack and the need to remain alert to the
evolving nature of air terrorism do not permit complacency. The Commission
therefore recommends a comprehensive and independent review of the civil
aviation security regime every five years.
3.2.3 Conclusion
Oversight in civil aviation security includes the establishment of a regime that
adequately addresses threats to the system. This requires knowledge of the
history of aviation terrorism, as well as constant monitoring of the current threat
environment. Any comprehensive regime must begin by meeting the minimum
standards outlined by Annex 17, in the spirit with which the provisions were
intended. As a prosperous nation, Canada should not only meet, but exceed
these standards. Furthermore, to create a system that can best respond to the
dynamic nature of aviation terrorism, a Canadian regulatory regime must be
proactive, multi-layered, flexible and performance-based, and it must effectively
foster an environment of security awareness.
Many entities are involved in civil aviation. A sound aviation security system
involves vigilant monitoring of stakeholder compliance and appropriate
enforcement. Current penalties for infractions may not be commensurate with
the potential consequences of a successful terrorist attack. Canada’s inspection
and enforcement measures have improved since 1985, but they must improve
further to meet the ever growing needs of aviation security.
Stakeholders have an important role in ensuring compliance with security
procedures within their own operations. Key to maintaining compliance is clear
communication between Transport Canada and stakeholders.
As Transport Canada undertakes a review of its regulatory regime, it must ensure
that gaps in security are adequately addressed and that any failure to meet
Annex 17 standards is rectified. A periodic independent review of the regime is
necessary, along with continued monitoring by the Standing Senate Committee
on National Security and Defence and by the Auditor General of Canada.
667 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4542.
668 Exhibit P-157, p. 54 of 135.
�Chapter III: Civil Aviation Security in the Present Day
3.3 Risk Management in Aviation Security
Two months before the Air India bombing, the International Air Transport
Association (IATA) Director of Security, Rodney Wallis, spoke at the US Federal
Aviation Administration’s Fourth International Aviation Security Conference.
Wallis called for more consistent risk management processes in aviation security.
He stated that persistent political unrest throughout the world demanded that
at least some attention be paid to political risk analysis, particularly because
commercial aviation remained a newsworthy target. He also spoke of the role
of risk management in ensuring cost-effective security, given the preceding
years of relative economic decline in the international aviation industry. His
observations remain relevant today. Risk management that is intelligencedriven and that helps to determine the allocation of limited resources is now
viewed as a fundamental part of aviation security. Effective risk management
requires systematic and coordinated application across all sectors and between
all stakeholders.
Aviation security exists to defend against risks of harm to aviation.669 Risk
management in aviation security faces several challenges because of the nature
of the security risks involved and because resources, both human and financial,
are limited.670 Unlike risk scenarios involving finance, technology or health,
aviation security deals with deliberate attempts to increase risk. Securityrelated risks involve the element of threat, in which there are attempts to attack
and disrupt the system.671 Threats to aviation are of human design, involve
malevolent intent and are calculated to evade detection and prevention.672 The
primary source of these threats is terrorists, who constantly probe the system
for weaknesses. Aviation security has been described as an “intensely dynamic”
environment of risk.673
When defensive resources are limited and threats arise from determined and
malign extremists, risks can never be completely eliminated.674 Although it is
669 See Wallis, Combating Air Terrorism, pp. xvii-xviii; see also Exhibit P-157, pp. 15-16 of 135 and Exhibit
P-149, p. 1.
670 Exhibit P-169, pp. 36-37 of 202.
671 Only a small category of risks involves malevolent intent on the part of human actors. See Testimony of
William Leiss, vol. 91, December 7, 2007, p. 11971; Exhibit P-361, Tab 5, pp. 5-6.
672 Exhibit P-169, p. 37 of 202.
673 Exhibit P-361, Tab 1, p. 8.
674 In addition to the problem of limited resources, additional factors, such as privacy and human rights
concerns, as well as the efficient flow of passengers and goods in the aviation industry, also influence
the nature and breadth of security measures adopted. As an example, the CATSA Advisory Panel cited
the availability of sophisticated new screening technology that produces near-nude images of
passengers. While this equipment promises to provide enhanced security, “…concerns over the
invasion of privacy and expectations of public resistance have dampened official interest in purchasing
such equipment.” Nonetheless, this technology has been the subject of pilot studies in Canada and a
decision may be made to deploy such equipment for use in pre-board screening. The point is that
while the government may have the capacity to take strong security measures, it may in practice face
cultural, ethical or political constraints, among others. Such factors are taken into consideration
following a risk assessment, as part of the decision-making process when adopting security measures.
This is further discussed later in this section. See Exhibit P-169, p. 36 of 202, note 30; see also Testimony
of Jean Barrette, vol. 40, June 5, 2007, p. 4930.
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widely acknowledged that “absolute security is an illusory goal,”675 risks must be
managed to a level considered acceptable.676 As a consequence, risk management
in aviation security involves the delicate balancing of an appropriate level of
security with finite resources. It requires a principled approach in which a global
set of risks is assessed and prioritized to help decide how best to allocate limited
resources.677 Where responsibility for managing security risks is shared among
several entities, as in aviation, full, transparent and clear communication is
vital.678 In addition, public confidence in aviation security demands that those
institutions involved provide adequate disclosure of their methods to manage
risk, as well as assurance that resources are optimally used to reduce identified
risks.
3.3.1 Risk Management: Introduction
Dr. William Leiss, the Commission’s expert in risk management, defined risk
as the “chance of loss or harm” or, more technically, the “probability that some
discrete type of adverse effect will occur.”679
Risk must not be confused with threat. However, they are related concepts.680
Threat is an expression of intention to inflict evil, injury or damage.681 Threat
is an essential component for assessing security-related risks,682 and can be
identified through intelligence.683 For security-related risks, accurate intelligence
is indispensable.684
The ultimate goal of risk management is to reduce risk to a predetermined and
acceptable level.685 In other words, risk management seeks to anticipate and
prevent or mitigate serious harms that may be avoidable. This is achieved by
applying a reliable method for identifying the highest priority risks to determine
appropriate risk control measures. This process assists in allocating risk control
budgets across the entire risk spectrum in the most cost-effective manner.686 Risk
management seeks to inform decision-making by providing full and complete
risk estimation (the likelihood that a given threat will cause an incident) and
analysis.687 In a comprehensive risk management system, no important risks are
left unattended.688
675
676
677
678
679
680
681
682
683
684
685
686
687
688
Exhibit P-169, p. 36 of 202.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11993.
Exhibit P-169, p. 36 of 202.
Exhibit P-361, Tab 1, pp. 8-9.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11978.
Exhibit P-258, Tab 5, p. 55.
Exhibit P-258, Tab 5, p. 55.
Exhibit P-361, Tab 5, p. 5.
Exhibit P-258, Tab 5, p. 54.
Exhibit P-101 CAF0873, p. 5.
Exhibit P-258, Tab 5, p. 55.
Exhibit P-361, Tab 1, pp. 3-4, 9.
Exhibit P-361, Tab 5, p. 8.
Exhibit P-361, Tab 1, p. 9.
�Chapter III: Civil Aviation Security in the Present Day
Leiss testified that risk management is by no means unique to aviation security,
nor is it a novel concept. Financial risk management is a well-established
concept689 and has served as a foundation for many modern risk management
models used in industry.690
Leiss testified that the application of formal methods of assessing and managing
risk to diverse fields was fairly recent. It was driven primarily by the rising
concern over environmental risks in the United States in the 1970s.691 To provide
a more precise method for addressing these risks, the general approach of the
financial risk management model was adopted and extended. The science of
risk management then developed rapidly. By the 1980s, flow-chart diagrams
outlining a standard methodology for managing risks began to appear. Such
diagrams consisted of a tightly-ordered sequence of steps, beginning with the
identification of a threat or hazard, and ending with a decision about how to
manage a risk after all reasonable risk control options had been considered.
Health Canada was a pioneer in this area, implementing risk management by
1985. However, it took time for risk management methods to spread to other
government departments.692
Leiss stated that the general lack of systematic risk management methods at
the time of the Air India bombing did not imply a lack of risk management
altogether. Procedures for managing risks were in place, although they did not
employ the more ordered, quantitative and probability-oriented approach that
has since developed.693
The first official standardized protocols for risk management were developed in
the 1990s. These protocols merely formalized methods that were already in use.694
Ideally, risks are managed by using a standard methodology that can be applied
to any type of risk, ranging from financial to security to public health risks, and
within any organization.695 Several such standards have been developed around
the world.696 Canada was one of the first countries to develop its own national
standard, issued by the Canadian Standards Association (CSA) in 1997 and
entitled Risk Management: Guideline for Decision-Makers – A National Standard
689
690
691
692
693
694
695
696
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11958.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11969.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11968.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11969.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11969.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11962.
Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix F, p. 6.
Exhibit P-361, Tab 1, p. 7: Leiss noted the Canadian Standards Association CAN/CSA-Q850-97 (R2007),
“Risk Management: Guideline for Decision Makers”; Australian Standard 4360 Risk Management;
United Kingdom, HM Treasury, The Orange Book: Management of Risk – Principles and Concepts
(2004); and the Institute of Risk Management, based in London, to which Canada belongs and which
provides materials and training resources upon which Canada relies. Leiss also recommended referring
to materials on risk assessment and risk management that are available through the online resource,
Wikipedia.
149
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for Canada (CSA Risk Management Guideline).697 The International Standards
Organization (ISO) is attempting to produce a guide to risk management for
use by any entity for any type of risk. A Canadian working group is involved
in this effort.698 The guide will likely reflect the existing fundamental principles
of risk management and will likely be considered the “gold standard” for risk
management worldwide.699
3.3.2 Risk Management in Aviation Security
The International Civil Aviation Organization (ICAO), through Annex 17 to the
Convention on International Civil Aviation (“Chicago Convention”), requires its
member states to implement “to the extent practicable” measures based on
security risk assessments carried out by the relevant national authority.700 As a
signatory, Canada is obliged to comply.701
The Commission heard frequent references to “risk,” “risk assessment” and, in
particular, the need for a “risk-based approach” in aviation security.702 Experts and
stakeholders, including Transport Canada, emphasized the value of this approach
when determining security measures, policies and protocols. Most parties
with ongoing responsibilities for aviation security also stated a commitment
to this approach.703 However, there was little elaboration of the meaning of
these terms.704 The CATSA Act Review Advisory Panel (CATSA Advisory Panel),
an independent panel of aviation security experts charged with reviewing the
Canadian Air Transport Security Authority Act (CATSA Act),705 warned that such
phrases serve to mislead if they are not properly understood.706
This vague terminology fails to convey how security measures are selected
based on risk. The terms suggest some type of evaluation of risk, but lack
detail. This, in turn, fails to instill confidence that risks are being appropriately
managed or that a coordinated effort to manage risk exists. The Standing Senate
Committee on National Security and Defence (Senate Committee), which has
697 This guideline was reaffirmed in 2002 [Canadian Standards Association CAN/CSA-Q850-97 (R2007)].
See Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix F, p.1;
see also Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11962-11963.
698 Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix F, p. 6.
699 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11963. As of the time of writing of this report,
the ISO risk management guideline has not yet been released.
700 Exhibit P-181, p. 2-1, s. 2.2.2.
701 Annex 17 requirements are considered “minimum standards” that all modern states should be capable
of exceeding. See Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4271.
702 See Exhibit P-361, Tab 1, pp. 2-3.
703 Exhibit P-361, Tab 1, pp. 1-2.
704 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11959.
705 The CATSA Act came into effect in March 2002, establishing CATSA as the body responsible for
several core aviation security functions. Section 33 of the Act required the Minister of Transport to
review the legislation and report the results of the review to Parliament during the Act’s fifth year. On
November 23, 2005, the Minister announced the appointment of a three-member Advisory Panel
to conduct an independent study and analysis and to prepare a report with recommendations and
observations. See Exhibit P-169, pp. 16, 19 of 202.
706 Exhibit P-169, p. 35 of 202.
�Chapter III: Civil Aviation Security in the Present Day
monitored aviation security in Canada since 2001, has expressed concern that
assertions of a “risk-based approach” to security policy simply provide an excuse
for inaction.707
Dr. Kathleen Sweet, a US-based international civil aviation security expert,
highlighted the concern over terminology in air cargo security matters. As
in Canada,708 there is currently very little screening or searching of air cargo
in the United States before it is put aboard passenger aircraft,709 despite the
known risk of sabotage of air cargo.710 She testified that the US Department of
Homeland Security nevertheless professed some comfort with this situation,
as long as the stakeholders handling air cargo used adequate “risk assessment”
protocols.711 Sweet was critical of this reasoning and cautioned against taking
any reassurance from such a statement if stakeholders attribute different
meanings to the terminology:
…They use the term “risk assessment,” but how every airline
implements that term, how every freight carrier implements
that term, how every truck driver that carries the cargo to the
airport defines that term, all goes into the mix.712
Leiss was also troubled by the apparently loose use of the terms “risk-based
approach” and “risk assessment.”713 He stated that mere assertions that such an
approach or assessment was being followed could not alone provide assurance
that robust processes were in place.714
Despite claims by government agencies and large businesses outside aviation
that they employ risk management, there is abundant proof that these same
institutions often fail to manage risk effectively.715 A bleak example was Canada’s
failure to appropriately manage the risk of blood-borne infections in blood
donated during the 1980s.716 More recently, the failure of financial institutions
to assess and manage the risks associated with certain debt instruments has
caused profound and global economic damage.
Risk management is not foolproof. To achieve maximum benefit, its underlying
methods must be made as robust as possible. This requires precision in
terminology. Leiss testified that risk management derived its strength primarily
707
708
709
710
711
712
713
714
715
716
Exhibit P-169, p. 38 of 202.
Exhibit P-169, p. 52 of 202.
Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4946.
Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4958-4959.
See Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4946.
Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4946.
Exhibit P-361, Tab 1, p. 6.
Exhibit P-361, Tab 1, p. 3.
Exhibit P-361, Tab 1, pp. 2-3.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11979.
151
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from the use of precise language.717 Yet risk management has been described as
being hampered by semantic confusion.718
Clear explanation of the terms “risk-based approach” and “risk assessment”
is necessary for the public to maintain confidence in aviation security. Where
public information is lacking, there can be no assurance of the adequacy of risk
management processes.719 Furthermore, where risk management is a shared
responsibility, as in aviation security, miscommunication among stakeholders
may occur if they attach different meanings to the same terms.720 Leiss stated
that it was entirely possible that all parties shared an understanding of the
terms “risk assessment” and “risk-based approach” and that they applied them
in the same manner, but that it would be unwise to assume such without further
evidence.721 He stated that such assumptions could lead to important risks being
overlooked.722
Leiss was critical of the phrase “risk-based approach.” A better characterization,
he maintained, was “risk-based decision-making.”723 A similarly descriptive
phrase is “risk management decision-making process,” which has been used to
describe the protocol outlined in the CSA Risk Management Guideline.724 Yet
Leiss said that even these phrases required further explanation. The underlying
process was still not sufficiently clear.725
Those responsible for risk management in aviation security must give assurance
that all parties:
• Employ methods that are appropriate according to prevailing
professional standards and that are based on current best
practices in risk management;
• Set objectives and targets for controlling risk against which
performance is measured on a regular basis – ideally, adopting
a performance standard of continuous improvement, delivering risk
in all relevant areas that is as low as reasonably achievable
(ALARA); and
• Achieve acceptable levels of risk control in all of the domains of
risk pertinent to civil aviation security.726 [Emphasis in original]
717 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11959.
718 Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix F, p. 2.
For a comparison of the different meanings attributed to different terms in risk management
by various international and national bodies, see Exhibit P-361, Tab 5, Additional Documents for Tab 1,
Appendix E and Appendix F, Appendix F, p. 3.
719 Exhibit P-361, Tab 1, p. 3.
720 Exhibit P-361, Tab 1, p. 2.
721 Exhibit P-361, Tab 1, p. 2.
722 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11960.
723 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11959.
724 Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix F, p. 4.
725 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11959.
726 Exhibit P-361, Tab 1, pp. 2, 10; see also Testimony of William Leiss, vol. 91, December 7, 2007, p. 12010
�Chapter III: Civil Aviation Security in the Present Day
In addition, where many parties share responsibility for overall risk management,
each should have the same methods, objectives and targets.727 With shared
responsibility, the importance of precision in terminology is “…orders of
magnitude more serious because you need then further assurance that
everybody is on the same page with respect to their methods so that they can
compare results.”728 The components outlined in the bulleted passage above
represent standard aspects of any risk management process that all institutions
managing risk should be able to articulate.729 This is particularly important in an
area of vital public interest, such as aviation security.730
Describing methods, objectives and targets can be done without compromising
the secrecy necessary in security matters.731 As will be discussed below, the
Canadian Air Transport Security Authority (CATSA) submitted a report to
the Commission as a public exhibit, setting out in detail its risk management
decision-making process.732 Leiss testified that, by providing such information,
institutions with responsibilities in aviation security can instill confidence that
risks are being managed appropriately.733
Leiss identified four “major domains of risk” in aviation security – passengers,
non-passengers, cargo and fixed base operations (FBOs).734 The Commission
heard ample evidence that at least three – non-passengers, cargo and FBOs
– still have significant security gaps.735 The vagueness of the term “risk-based
approach” and the possibility that stakeholders will apply it inconsistently leaves
the Commission concerned that protection will remain inadequate.
727
728
729
730
731
732
733
734
735
Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11960-11961.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11961.
Exhibit P-361, Tab 1, p. 2.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11959.
Exhibit P-361, Tab 1, p. 2.
Exhibit P-361, Tab 5.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11960.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11960.
Exhibit P-169, pp. 52, 55, 68 of 202; see also Exhibit P-172, pp. 17, 29, 58 of 155 and Testimony of
Rodney Wallis, vol. 41, June 6, 2007, pp. 5002-5003, 5039, 5041.
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Figure 1
Overview of Risk
(Exhibit P-361)
Five Key Activities within a Risk Management Framework (“the overall
enterprise”):
• Set goals and focus: identifying context, prioritizing objectives, and setting
the scope and focus of the overall exercise. The choices made within
this activity are based on a judgment about interests (whose interests
count?) and entities (which entities have value?). This is sometimes called
“endpoint selection - which risk are we considering?
• Describe: arriving at an objective understanding of the likelihood and the
magnitude of an impact (in qualitative or , better, quantitative terms).
As such it is largely a technical or scientific activity.
• Prescribe: evaluating the quality of forecasts provided within the
descriptive step, the balancing of positive and negative effects,
the decisions on how to mitigate and otherwise manage the risk and the
implementation of measures. As such it is evidence and judgement-based
activity that requires the consideration of the big picture. It represents
the key decision-making step within the risk management framework
(which should not imply that decisions of another nature are not taken
elsewhere).
• Communicate: communicating among the key actors in the process as well
as with the intended beneficiaries and other stakeholders. Communication
can be broadly understood as to include public information, consultation,
engagement or even partnership. Public designates “the regulated”
and other stakeholders.
• Monitor and learn: an activity that describes the monitoring of the effects
of decisions and activities that cause changes to the environmental
conditions and the emergence of new evidence. Decisions on the need
for re-evaluations and the implementation of lessons learned are
part of this outcome-oriented activity. These activities are components
of performance measurement and results-based management.
The bombing of Air India Flight 182 might well have been prevented if the known
risks to aviation security had been better managed. Appropriate risk control
measures were available but were not instituted. In the threat environment of
1985, the failure of Air India to institute, and of Transport Canada to require,
passenger-baggage reconciliation meant that the risk posed by unaccompanied
baggage was not addressed. Passenger-baggage reconciliation was known
to be successful in countering the threat of bombs in suitcases.736 Passenger
convenience and concerns about delay may have influenced the decision to
736 Exhibit P-101 CAF0163, p. 5; Exhibit P-101 CAF0637, pp. 6, 18.
�Chapter III: Civil Aviation Security in the Present Day
rely on other security measures for checked baggage.737 However, passengerbaggage reconciliation was the primary defence against a bomb in an
unaccompanied bag.
Reliance was placed instead on risk control measures that were known to be
ineffective for screening checked baggage for explosives, the precise threat at
issue. X-ray machines provided only simple black and white images. Even with
skilled operators, the ability of these devices to detect explosives was highly
questionable.738 The PD-4 “sniffer” device was employed as a substitute when
the X-ray machine broke down. The PD-4 had previously been shown to be
ineffective in detecting explosives in checked baggage.739
The decision of the CP Air agent to tag the baggage for interlining to Air India
when the passenger had no reservation for the onward journey was critical, and
in violation of CP Air’s checked baggage security procedures.740 Had CP Air been
made aware of the threat environment in which Air India was then operating,
it might have prevented unaccompanied baggage from travelling on CP Air
flights interlining to Air India.741 At the very least, CP Air might have exercised
greater vigilance in implementing its existing security procedures.
In 1985, the mounting threat that resulted in the destruction of Air India Flight
182 was known by the Government and by Air India. The ability or inability of
various security measures to eliminate the threat was also known. Nevertheless,
Air India decided to employ methods known to be of questionable use in
defeating the threat faced and to waive protective measures where there should
have been no discretion.
Many parties now stress the central importance of a “risk-based approach” and
of “risk assessment” in aviation security. A more thorough discussion of what
these terms mean is necessary. There is a need for clarity, consistency and
transparency.
3.3.3 Risk Management Methodology
The Commission sought guidance from Leiss about the key elements of a robust
risk management framework for aviation security. He identified the principal
components as follows:
• “Anticipate”: Developing the capacity to amass evidence in a
timely manner so that proactive, cost-effective measures can be
implemented to control risk when the level of risk appears excessive
according to some standard;
737
738
739
740
741
Exhibit P-101 CAF0581, p. 1.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4256.
Exhibit P-157, pp. 61-62 of 135.
Exhibit P-157, pp. 64-65 of 135.
Exhibit P-157, p. 31 of 135.
155
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• “Prevent”: Removing a source of harm in order to eliminate all of
the potentially harmful consequences; and
• “Mitigate”: Reducing the anticipated consequences of the harm
even when the cause of harm cannot be eliminated.742
The term “risk management” itself is broadly defined in the CSA Risk Management
Guideline:
Risk management – the systematic application of management
policies, procedures and practices to the tasks of analyzing,
evaluating, controlling and communicating about risk issues.743
In 2004, the External Advisory Committee on Smart Regulation (EACSR), a body
established by the federal government, provided a largely similar definition of
“risk management.” The EACSR definition summarized the process involved in
risk management decision-making:744
Risk management is a systematic approach to setting the
best course of action under uncertainty by identifying,
understanding, assessing, prioritizing, acting on and
communicating about potential threats, whether they affect
the public’s social, financial or economic well-being, health and
safety, or the environment.
Managing the related risk involves allocating limited
national resources where they can do the most good for the
greatest number of people. It includes the following steps:
identification of the issue; assessment of the level and severity
of risk; development of the options; decision; implementation
of the decision; and evaluation and review of the decision. At
each step of the process, communication and consultation
activities, legal considerations and ongoing operational
activities must also be taken into account in effective risk
management strategies.
As indicated in the EACSR definition, risk management decision-making
involves a systematic approach – a standard methodology – in which each
known harm is addressed to arrive at a decision whether risk control measures
are necessary. Although the inputs may be highly diverse745 and the analysis
may be complex,746 the process followed is the same for all known harms. Where
742
743
744
745
746
Exhibit P-361, Tab 1, pp. 3-4.
Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix F, p. 2.
Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix F, p. 2.
Exhibit P-361, Tab 1, p. 2.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11962.
�Chapter III: Civil Aviation Security in the Present Day
possible, scientific data and statistical analysis are used.747 Leiss stated that
the “great strength” of risk management was the consistent application of this
systematic approach.748
Leiss outlined the seven basic steps common to most standardized risk
management models:
1. Identifying the threats or hazards;
2. Identifying the exposure to a given threat;
3. Determining the likelihood that a given threat will cause an incident
(also known as risk estimation);
4. Identifying the consequences of an incident;
5. Determining the risk and ranking all risks in a matrix;
6. Identifying and implementing risk control options; and
7. Monitoring and review.
All risk management protocols, including the CSA Risk Management
Guideline, take a similar approach. Figure 2 contains a schematic model of this
approach.749
747 Exhibit P-361, Tab 1, p. 2.
748 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11962.
749 Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11962-11963.
157
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Figure 2
CSA Risk Management Decision Making-Process
Exhibit P-361
Risk management decision-making begins with an identification of hazards.
This involves a listing of all the specific harms that can occur. In aviation security,
�Chapter III: Civil Aviation Security in the Present Day
this includes hazards such as the placement of an explosive device in baggage,
cargo or mail, or the commandeering of an aircraft.750 The possible level of
exposure to each hazard is then examined to arrive at a risk estimation.751 The
two fundamental components of risk estimation are hazard and exposure. The
risk estimation represents the likelihood that the hazard and the exposure will
intersect to cause an aviation security incident.752
When reasonably good data are available, risks can be expressed in quantitative
terms. In the public health sector, for example, the risk in Canada that a unit
of donated blood contains HIV is estimated today to be “…1 in 7.8 million
donations.”753 Quantitative risk estimations also state an uncertainty range,
usually expressed as a “95 per cent confidence interval,” which provides a range,
represented by minimum and maximum values, within which the true risk falls.754
No risk estimation is complete without mention of an uncertainty range.755
Risk estimations – the assignment of a particular range of risks – must be
developed for each individual risk within the range of risks. For example, the
four domains of risk outlined by Leiss – passengers, non-passengers, cargo
and FBOs – can be further subdivided, and risk estimations calculated for
each subdivision.756 If sufficient statistical data are not available, a qualitative
judgment can be sought, such as an opinion from qualified experts.757
The CATSA Advisory Panel cautioned that any risk assessments expressed in
quantitative terms must be based on data that “inspire confidence”: “…Risk
assessments must come with very high standards of accuracy when the margin
for error is so small.”758 The strength of the entire assessment hinges on reliable
data. The Panel noted that the degree of certainty and confidence surrounding
threats to security presents additional challenges not found with other types of
risks. Threats to safety, for example, can be categorized as “malignant threats”
since they arise from such measurable matters as design flaws, environmental
stress and human error.759 Risk assessments must be based on solid data and
750
751
752
753
754
755
756
757
758
759
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11963.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11964.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11964.
Exhibit P-361, Tab 1, p. 4.
For example, maximum and minimum risk estimation values, such as “1 in 3.6 million” and “1 in 20
million,” respectively, may be stated to represent the range of risk. This is then interpreted as providing
95 per cent certainty that the true risk is neither higher nor lower than the given range. Applying this
confidence interval to the example of the risk of finding HIV in a unit of donated blood, the conclusion
can be drawn that the residual risk, after screening and testing, is very low, but not zero. The message
that can then be communicated to the public is that the Canadian blood supply has almost certainly
never been safer than it is currently, but that the responsible authorities remain vigilant in managing
their risk control objectives. See Exhibit P-361, Tab 1, pp. 4-5.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11979.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11970.
Exhibit P-361, Tab 1, p. 4.
Exhibit P-169, p. 37 of 202.
Exhibit P-169, p. 37 of 202.
159
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on adequate intelligence.760 The more information that is available, the more
precise one can be in assessing risk.761
Leiss stated that quantitative measures are preferable, but that an element
of judgment comes into play with aviation security risks. Judgment may be
required to assess whether the information available amounts to a genuine
increase in threat. For example, evaluating the sources of information about a
given threat may produce a qualitative “confidence interval.”
Once a risk estimation is established, risk-based decision-making requires
understanding the type and magnitude of the consequences of each hazard.
Assessing consequences produces an estimate of damage or loss that may result
from an identified harm.762 This assessment involves identifying immediate and
long-term losses, including the number of deaths and injuries, the degree of
financial loss, and the possibility that air travel may decline.763
Risk assessment attempts to provide a clear picture of the likelihood (also known
as the estimated frequency or estimated probability) and the consequences of
exposure to a specific hazard.
The level of risk can be expressed as a product of two factors – likelihood and
consequences (Risk = Likelihood x Consequences) – and placed in a “risk matrix,”
with likelihood (frequency) and consequences each representing an axis.764
Risk is therefore the probability (likelihood) of encountering certain types of
consequences.
Figure 3
RISK MATRIX
Exhibit P-361
Appendix D: Risk Matrix
Consequence Catastrophic
Critical
Marginal
Negligible
Frequency
High
Moderate
Low
Class I
Class II
Class III
Minimal
Negligible
760
761
762
763
764
Class IV
Exhibit P-169, p. 38 of 202; see also Testimony of William Leiss, vol. 91, December 7, 2007, p. 11971.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11980.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11966.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11966.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11966.
�Chapter III: Civil Aviation Security in the Present Day
The seriousness of a risk can be ascertained as a function of its level of likelihood,
its level of consequences, or both.765 One class of risks, “low probability, high
consequence,” includes a serious earthquake or a catastrophic failure at a nuclear
power plant.766
The risk matrix facilitates ranking risks according to the urgency of controlling
the risk:
• Class I: Calls for urgent attention and significant risk control
measures;
• Class II: Risk control measures are needed;
• Class III: A risk that should be monitored; and
• Class IV: A risk that does not need to be managed.767
The risk matrix provides a basis for comparing risks: Class I risks cannot be
ignored, while Class IV risks can.768 Such a matrix is required where more than
one risk must be managed, as in aviation security.769
In 1985, for example, the risk of sabotage against Air India would have ranked
“high”in a risk matrix, had one been used. Many factors point to such a conclusion.
In particular, on June 1, 1985, Air India’s Chief Vigilance and Security Manager
in Bombay sent a telex (the “June 1st Telex”) to all Air India offices worldwide,
warning that Sikh extremists might try to smuggle explosive devices hidden in
baggage onto Air India aircraft. The telex directed Air India stations to ensure
the meticulous implementation of counter-sabotage measures for all flights,770
and outlined specific baggage screening and airport security measures to be
implemented by all operations.771 In the highly charged and ongoing threat
environment facing Air India at the time, the telex’s warning should have
featured prominently, and should have been understood as a risk that could
not be ignored. When asked about the effect of the warnings that had been
received, Wallis responded:
Air India were operating under high risk. They had invoked
emergency procedures. So in effect, they were almost putting this on
the same level as specific risk.772
765
766
767
768
769
770
771
772
Exhibit P-361, Tab 1, p. 4.
Exhibit P-361, Tab 1, p. 4.
Exhibit P-361, Tab 1, p. 12.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11970.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11970.
Exhibit P-101 CAA0185.
Exhibit P-101 CAA0185.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4415-4416.
161
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The June 1st Telex was shared with some RCMP branches, but not with many
other important stakeholders, notably Transport Canada773 and CSIS.774
During a document review in October 1987, John Cook, a Special Projects
Officer in Transport Canada’s Security and Emergency Planning Group, learned
of the June 1st Telex.775 He wrote that it was “unbelievable” that the telex had not
been shared with Transport Canada and that a meeting had not been arranged
to discuss “the necessary measures to meet the perceived threat.”776 Dale
Mattson, Transport Canada’s Safety and Security Manager at Pearson Airport
in 1985, appeared to agree that the telex was a key document respecting the
threat of sabotage to Air India. He reported that, had he seen the telex, he
would have contacted the Civil Aviation Security Branch for further instructions.
Transport Canada had the authority to apply “additional procedures that were
needed to address the relevant threat.”777 Ray Kobzey, a CSIS officer involved in
investigating the suspected terrorist activity prior to the bombing of Air India
Flight 182, testified that the information in the June 1st Telex would have been
“extremely helpful” to his surveillance activities. Specifically, the telex “…may
have twigged CSIS to a different interpretation of the “blast” heard in Duncan,
British Columbia” because of the reference to time-delayed bombs.778 Dr. Reg
Whitaker, Chair of the CATSA Advisory Panel, as well as a professor of political
science and an intelligence expert, testified that the telex, coupled with the
surrounding screening deficiencies on June 23, 1985, would have constituted
reasonable grounds for delaying the departure of the Air India flight until
security issues could be managed better.779
Leiss was told about the June 1st Telex during his testimony and was asked for
his opinion about how it would be classified within a risk matrix.780 He stated
that the telex appeared to provide as specific a warning as is possible in aviation
773
774
775
776
777
778
779
780
Exhibit P-101 CAA0335, p. 8.
Exhibit P-101 CAA0205, p. 34.
Exhibit P-367, p. 1.
Exhibit P-367.
Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3215, 3232.
Testimony of Ray Kobzey, vol. 33, May 24, 2007, pp. 3810-3811.
Testimony of Reg Whitaker, vol. 36, May 30, 2007, p. 4370.
In preparing for his testimony, Leiss was provided with key exhibits in the Commission’s documentary
record pertaining to civil aviation security in the current day and in 1985, as well as to the events
surrounding the bombing of Air India Flight 182. These exhibits included the CATSA Advisory Panel’s
review of civil aviation security in Canada as it relates to the CATSA Act (Exhibit P-169), its review of
the civil aviation security issues surrounding the bombing of Air India Flight 182 (Exhibit P-157), Bob
Rae’s report, Lessons Learned (Exhibit P-35), the Auditor General’s 2006 Special Examination Report of
CATSA (Exhibit P-173), the Seaborn Report (P-101 CAF0039), the Kirpal Commission Report (Exhibit
P-164) and the Canadian Aviation Safety Board Report (Exhibit P-167). Subsequent to his testimony,
Leiss reviewed the June 1st Telex and associated documents, and was provided with significant
background material in relation to the telex and the threat environment at the time. Such material
included the Air India disclosure documents pursuant to subpoena (Exhibit P-284) and Air India telexes
received by Canadian authorities relating to the period June 1984 to June 1985. Following a thorough
review of these documents, Leiss provided the Commission with a sworn affidavit, dated August 20,
2008, reaffirming all of the opinions he expressed during his testimony, without modification. In
particular, he confirmed his statements in relation to the June 1st telex. See Exhibit P-433.
�Chapter III: Civil Aviation Security in the Present Day
security.781 The telex represented a risk that would have rightly been classified as
a high probability risk both in terms of its likelihood782 and its consequences.783
Leiss testified that the risk would have been “off the end of the scale in terms of
the use of the risk matrix.”784 This would have demanded implementing every
possible security measure to mitigate the risk, a view that appears to have been
shared by both Cook and Mattson.785 Yet the information in the telex was not
distributed as widely as it should have been, and those who had access to it
discussed and acted upon it inadequately.786
Leiss was told that the June 1st Telex formed part of a series of warnings that
had occurred over a period of time in which no incident had materialized, and
that this may have led to some degree of complacency. He stated that, if the
reiteration of the threat over a period of time during which no subsequent
terrorist incident materialized was in fact interpreted as a diminution of the
level of risk, this would have demonstrated “a catastrophic misunderstanding
of the nature of risk.”787 The lack of a previous incident was immaterial to the
level of risk. The persistence of a series of threats should have been a warning
in itself.788
The CATSA Advisory Panel stated that those responsible for maintaining security
are often vulnerable to human error when responding to malevolent threats
and that it was common to underestimate the threat before it materialized.789
This appears to have been, at least in part, the situation with the June 1st Telex.
Maintaining appropriate vigilance and guarding against complacency appear
to be as critical in risk assessment and risk management as it is for all aspects
of aviation security. Formal risk management protocols were likely not in use to
filter and compare risks in 1985, but any risk management process at the time
should have identified the telex as having a significant impact on the perceived
risk. The history of the June 1st Telex illustrates the role that risk management
standards could play in helping to delineate, prioritize and address risks in
aviation security systematically.
Once a risk assessment is completed, the results and several other factors are
considered in a decision process. These factors may include:
• A risk control options analysis;
• The legal, regulatory and policy framework, both domestic and
international;
• Cost-benefit analyses;
781
782
783
784
785
786
787
788
789
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11982; see also Exhibit P-433.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11982; see also Exhibit P-433.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11971; see also Exhibit P-433.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11982; see also Exhibit P-433.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11983; see also Exhibit P-433.
Testimony of William Leiss, vol. 91, December 7, 2007, pp. 12024-12025; see also Exhibit P-433.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11973; see also Exhibit P-433.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11974; see also Exhibit P-433.
Exhibit P-169, p. 37 of 202.
163
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• The public perception of risk, including sensitivity to
consequences;790
• The sharing of responsibility among various actors; and
• The acceptable level of risk.791
The relative importance of a factor varies, sometimes considerably, according to
the particular risk, time frame and circumstance.792
Risk control objectives, or targets, must be acceptable to the public. Since most
risks cannot be managed to the level of zero,793 the objective often becomes to
manage the full set of risks to a level that is “as low as reasonably achievable”
(ALARA). If the level of risk mitigation for a particular risk does not appear to be
acceptable to the public, additional resources may be required.794
Security measures should be selected after this multi-step process of
evaluating risks and resources has been completed. Implementation requires
a commitment of resources as well as communication and coordination with
appropriate stakeholders, possibly including the public. Once implemented,
ongoing monitoring, evaluation and review are required. Measures may need
to change based on new information.795 Security measures to which resources
have been committed must remain relevant and proportionate to the level of
risk.796
In emergencies, it may not be possible to analyze potential hazards fully.
Intelligence, for example, may show that immediate action is required. The
international aviation security community faced this situation in August 2006
with the threat of liquid and gel explosives. Leiss testified that the initial response
of banning all liquids and gels from carry-on baggage was appropriate, given
the threat and the urgency of the circumstances. Overly-inclusive measures
might be needed temporarily, until there was time to fully evaluate whether
they were appropriate.797 Indeed, Nick Cartwright, Director of the Security
Technology Branch, Security and Emergency Preparedness, at Transport Canada,
testified that the ban on liquids and gels would not have been sustainable, but
was necessary because of the immediate threat at the time.798 Upon further
evaluation, a decision was made to allow small volumes of liquids and gels in
carry-on items, as this continued to mitigate the risk.799 Leiss approved of the
approach because of the way the threat unfolded.800
790
791
792
793
794
795
796
797
798
799
800
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11967.
Exhibit P-361, Tab 1, p. 5.
Exhibit P-361, Tab 1, p. 5.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11968.
Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11967-11968.
Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix E.
Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11993, 11997.
Testimony of William Leiss, vol. 91, December 7, 2007, pp. 12005-12006.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5139.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5140.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 12006.
�Chapter III: Civil Aviation Security in the Present Day
It would also be necessary to evaluate whether the threat should have been
identified earlier. In other words, did the “environmental scan” fail to identify the
threat beforehand? This evaluation is important because of the ongoing need
to examine and improve the procedures for managing risk. Since aviation will
face new threats over time, it is essential to determine whether, for example,
threat identification protocols remain adequate. Information obtained through
such evaluations can be used to improve the protocols.801
A proactive approach to risk management is essential for strong robust aviation
security. The terrorist plot uncovered in 2006 envisaged attacking seven aircraft
simultaneously using liquid and gel explosives. The threat was characterized as
an“emerging threat”802 but it was not new. In 1987, Korean Air Flight 858 exploded
over the Andaman Sea after liquid explosives were detonated on board. Two
passengers had carried explosives disguised as alcohol from the duty free shop
onto the aircraft. Although many governments, including Canada’s,803 claimed
to move quickly on the liquids and gels threat in 2006, the Korean Air bombing
showed that, long before, the same sabotage technique was used and was
largely ignored by governments and the aviation industry. Wallis testified that
the response to the liquids and gels threat hardly qualified as “quick.”804 Whitaker
speculated that the political will to impose such restrictions on passengers
had been lacking earlier. However, he suggested, the political will to impose
restrictions was found in 2006.805
The public perception of risk is merely one of many factors to consider in
determining appropriate security measures.806 Underestimation of threats is
common in aviation security.807 The need to be proactive rather than reactive
emerged as an important theme during Commission hearings. Terrorists
constantly search for new methods of attack,808 so risk management must
respond to both known and new threats.809
In sum, making sound risk management decisions requires adherence to
principles that reflect common best practices, including:
1. Risk management methods and protocols, following sequential steps
that are widely recognized by professional practitioners in the field;
2. “Robust” procedures for ranking risks and effectively allocating risk
control resources across the range of risks;
3. Robust procedures for scanning the environment for novel threats
(anticipation of harms), since risk is often a “dynamic environment;”
801
802
803
804
805
806
807
808
809
Testimony of William Leiss, vol. 91, December 7, 2007, p. 12006.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5132.
Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4841.
Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4268.
Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4585.
Exhibit P-361, Tab 1, p. 5.
Exhibit P-169, p. 37 of 202.
Exhibit P-169, p. 37 of 202.
Exhibit P-361, Tab 1, p. 5.
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4. Continual updating of risk assessments and risk rankings based on
new information, even for threats that are well known;
5. An explicit performance standard against which entities can be held
accountable (for example, a “continuous improvement standard” or
ALARA); and
6. Regular reporting to stakeholders and the public regarding risk
assessment and risk management where serious risks are managed,
where this can be done without compromising security.810
3.3.4 Risk Management Decision-making in Practice
When the Commission asked some stakeholders about their “risk-based
approaches” to aviation security, an inconsistent picture emerged. The contrast
between the approaches of CATSA and Transport Canada was particularly
striking. Leiss reviewed the risk management protocols in each case.
Both CATSA and Transport Canada reported that they used the Integrated
Risk Management Framework issued by the Treasury Board Secretariat.811 Leiss
criticized the Framework as not being designed for managing public interest
risks, but for organizational risks like those that might threaten the integrity of
a business entity – for example, financial, human resource and strategic risks.812
The Framework, he said, was intended only as a general guidance document
and could not be considered a rigorous protocol for managing the type of risks
involved in aviation security.813
Leiss reviewed a summary prepared for the Commission of CATSA’s Risk
Management Program.814 He reported that CATSA had done a very competent
job of creating a methodical risk management strategy whose structure was
similar to the standard systematic approach. CATSA’s Risk Management Program
consisted of two streams, one dealing with organizational risk, as would be
expected with the use of the Integrated Risk Management Framework, and
another dealing with the management of the types of security risks facing
aviation. Under the CATSA Program, a systematic approach was applied to each
security risk identified, including:815
• Listing of discrete risk accompanied by specific background
information;
• Expressing probability (likelihood) and impact (consequences) in
quantitative terms (percentages) as well as in qualitative terms (low,
medium, high, catastrophic);
• Identifying levels of exposure;
810
811
812
813
Exhibit P-361, Tab 1, pp. 5-6.
Exhibit P-361, Tab 3.
Exhibit P-361, Tab 5, p. 5.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11976; see also Exhibit P-361, Tab 1, p. 7,
note 3.
814 Exhibit P-361, Tab 5.
815 Exhibit P-361, Tab 5, pp. 6, 12-13.
�Chapter III: Civil Aviation Security in the Present Day
• Using an appropriate risk matrix, with likelihood and consequences
as its axes, to identify the class of risk (low, medium, high,
catastrophic);
• Identifying triggering events;
• Determining a prevention plan; and
• Determining a mitigation plan.
Leiss noted, with approval, the explanation of the Program’s “impact rating
criteria,” which consisted of both quantitative and qualitative data. He was
satisfied overall with the detail, terminology and methodology provided.816 He
stated that the Risk Management Program presented CATSA’s approach to risk
management in a way that instilled confidence in the process.817 Tables 1 and 2
show the criteria that CATSA uses for rating likelihood and impact in qualitative
terms.
Table 1
Likelihood Rating Criteria
Exhibit P-361
Table 1: Likelihood Rating Criteria
(Quanlitative Measure of LIKELIHOOD over 24 month time horizon)
Level
1
2
3
Likelihood
Low
Medium
High
Description
The event is unlikely to occur
The event should occur at sometime
The event is expected to occur in most
circumstances
816 Leiss advised that he would have preferred an expanded list of criteria related to “damage”, fewer
criteria related to “reputation loss” and qualitative criteria accompanied by more conventional
quantitative terminology, such as “10 to the minus six” (the standard method of expressing “1 in a
million”). See Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11987-11989; Exhibit P-361,
Tab 5, pp. 6, 7, 12.
817 Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11987-11990.
167
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Volume Four: Aviation Security
Table 2
Impact Rating Criteria
Exhibit P-361
Table 2 : Impact Rating Criteria
(Qualitative Measure of IMPACT)
Level
Impact
Damage
1
Low
First Aid
Treatment
required
Asset loss less
than $100K
2
Medium
Serious injury
Asset loss
$100K - $1M
3
High
Death
Asset loss $1M
- $25M
4
Catastrophic Numerous
deaths
Asset loss
greater than
$25M
Operational
Effects
Schedule
delays to minor
projects
Reputation Loss
Setback in
building
stakeholder trust
Some
unfavourable
media/public
attention
Some loss of
Disruption
stakeholder trust
of/gaps in
Negative media/
essential
services for less public attention
than 24 hours
Schedule
delays to major
projects
Significant loss
Disruption
of stakeholder
of/gaps in
trust
essential
services for less Public calls
for removal
than 7 days
of CATSA
Inability
executives/
to meet
Board members
operational
targets
Complete loss of
Disruption
stakeholder trust
of/gaps in
Resignation of
essential
CATSA
services
executives/
indefinitely
Board members
Operational
ineffective
It was reassuring to learn that CATSA employed a risk management standard
that accorded with common best practices. Transport Canada was unable to
provide similar reassurance. Formal risk management standards have been
�Chapter III: Civil Aviation Security in the Present Day
available in Canada since 1997, but it appears that Transport Canada only
recently adopted this approach for aviation security risks. Several reports in
recent years have suggested that Transport Canada’s risk management strategy
in aviation security was deficient. In 2005, a report of the Auditor General
expressed disappointment that the Department had not implemented formal
risk management protocols.818 The report criticized the existing risk management
system. It found that Transport Canada’s approach to assessing security risks in
air transport, “to the extent that it has done so,” was consistent with the Treasury
Board’s Framework,819 but it expressed disappointment that Transport Canada
had “not fully implemented formal risk management.”820
Specifically, the report found that Transport Canada had not conducted any
comprehensive assessment of key risks, nor had it measured the likelihood or
potential impact of specific threats.821 The report recommended that Transport
Canada complete a formal analysis of threats and risks to the entire aviation
system which could assist with deploying resources and enforcement efforts.822
Transport Canada filed the following in response to the Auditor General’s
report:
Transport Canada recognizes the importance of risk
management, which has been an essential foundation of its
aviation security program since its inception in the 1970s.
More recently, the Department has initiated a comprehensive
Transportation Security Strategy, which will examine risk in
all modes and activities within each mode. The strategy will
include a formal threat-and-risk-analysis instrument that could
be used in risk management decision making for regulatory,
legislative, and enforcement activities (spring 2006).823
In 2006, Transport Canada issued a Strategic Security Risk Assessment
Methodology and User Guide.824 The CATSA Advisory Panel noted “with approval”
818
819
820
821
822
823
824
Exhibit P-411, p. 8.
Exhibit P-411, pp. 7-8.
Exhibit P-411, p. 8.
Exhibit P-411, p. 8.
Exhibit P-411, p. 9.
Exhibit P-411, p. 9.
Transport Canada, Transport Canada Strategic Security Risk Assessment Methodology and User
Guide, Version 6.0 (March 17, 2006). This is a confidential document that was provided to the
Commission following the close of hearings. Transport Canada advised the Commission that this
document comprises the risk assessment methodology that is used for civil aviation security. Counsel
for the Attorney General of Canada asserted during the hearings that Transport Canada had been
“taken by surprise” with the evidence respecting risk assessment and risk management, maintaining
that there had been no advance request from Commission counsel regarding Transport Canada’s risk
management procedures. Commission counsel, on the other hand, indicated that inquiries had
been made in advance and that Commission counsel had been referred to the Treasury Board of
Canada Secretariat’s Integrated Risk Management Framework. See Transcripts, vol. 91, December 7,
2007, pp. 12042-12043.
169
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in its 2006 report that Transport Canada had conducted at least one exercise
in which aviation threats were measured quantitatively, ranked and assessed
according to risk. However, the Panel noted the lack of further exercises.825 Leiss
testified that these reports provided little confidence that Transport Canada
regularly applied appropriate risk management processes. The use of the
approach in one instance did not provide sufficient reassurance.826
The Commission asked Transport Canada to confirm that the Strategic Security
Risk Assessment Methodology and User Guide represented the current
expression of Transport Canada’s approach to risk management and risk
assessment. In response, the Attorney General of Canada requested an inperson briefing for Commission counsel with Transport Canada representatives,
to ensure that the intricacies of risk assessment and risk management would
not be overlooked in a simple response to these questions. Leiss attended this
briefing in his capacity as an expert.
During the briefing, Transport Canada officials confirmed that there were no
further documents to describe its approach to managing security risks. They
maintained that the Methodology and User Guide was developed only after
considerable consultation with experts and that it was consistent with industry
standards, including the CSA Risk Management Guideline.827 The Commission
was told that a risk matrix was used, but Transport Canada officials were unable
to articulate a consistent means for assessing and managing risk. In addition,
although it appears that risk management was beginning to be discussed at
the Advisory Group on Aviation Security (AGAS), a multi-stakeholder forum
for addressing security issues in Canada, Transport Canada did not appear
to be fully informed about the risk management processes used by various
stakeholders.828 For instance, Transport Canada informed the Commission that
it was not necessarily aware of the risk management methodology employed at
the local level by air carriers.829
Transport Canada advised the Commission that it was “… making significant
progress … to establish an aviation security performance measurement
framework.”830 On the issue of public accountability, the Department stated
that public confidence relied on the overall aviation security program, and that
such confidence was an underlying objective of risk assessment. However, Leiss
stated that it was not the purpose of a risk assessment to set a level of adequate
performance in the management of a risk.831 A risk assessment described the
likelihood of an adverse outcome and, if it occurred, the possible consequences.
This gave the risk manager an idea of the severity of a risk. The risk manager
825
826
827
828
829
830
831
Exhibit P-169, p. 37 of 202, note 33.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11990.
Exhibit P-101 CAF0873, p. 3.
Exhibit P-101 CAF0873, p. 4.
Exhibit P-101 CAF0873, p. 4.
Exhibit P-101 CAF0873, p. 5.
Exhibit P-101 CAF0873, p. 5.
�Chapter III: Civil Aviation Security in the Present Day
would then have to apply some standard of risk control – for example, ALARA
(“as low as reasonably achievable”) – if the existing level of risk appeared too
great.
The evidence provided to the Commission suggests that Transport Canada
is not using an appropriate standard protocol for risk management decisionmaking in aviation security, based on a common set of protocols, using current
best practices and operating under a performance standard of continuous
improvement to arrive at levels of risk that are as low as reasonably achievable.
Perhaps a comprehensive, systematic approach is in place, but Transport Canada
did not give the Commission sufficient reassurance of this.
Transport Canada is the national authority responsible for the development,
maintenance and oversight of civil aviation security in Canada. It has the lead
role as policy-maker and regulator.832 The Commission expected that Transport
Canada would have provided direction in establishing and requiring risk
management procedures, after appropriate consultation.
Systematic approaches to risk assessment and risk management were introduced
to government in 1985, and a national standard was developed by 1997. By
2007, risk assessment and management protocols were well established in
Canada. Transport Canada should have been able to articulate methodically the
approach that it uses for risk management, for all types or categories of risk.
The Commission also noted the varying approaches to risk management
among others in aviation security. In particular, IATA outlined an approach that
defined risk as comprising three factors – “threat,” “vulnerability” and “criticality.”
It described its approach as consisting of five basic steps:833
• Accurately identifying the risk;
• Assessing the consequences of risk exploitation and likelihood of
exploitation;
• Finding and identifying measures to protect against, control or
eliminate a certain risk;
• Assessing the measures for their effectiveness and consequences;
and
• Implementing measures to ensure that each risk is appropriately
managed.
IATA’s goal is to “… reduce the probability that a particular risk will be exploited.”834
The approach involves using a “threat response matrix” to determine whether
a threshold level has been reached to support using certain security measures
and undertaking consequence assessments, also known as “assessing criticality.”
832 Exhibit P-169, p. 30 of 202.
833 Exhibit P-258, Tab 5, p. 56.
834 Exhibit P-258, Tab 5, p. 56.
171
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Many terms used by IATA differ from those used in other discussions of risk
management, and the IATA approach does not follow the standard approach
precisely. However, it appears to offer a systematic, methodical means of
addressing all risks.
Yves Duguay, Director of Security for Air Canada at the time of the Commission
hearings, described an intelligence-driven approach that reviews“vulnerabilities,”
“probabilities” and “impact on industry.”835 Again, there was some sense of a
systematic approach, although further inquiry would be necessary to assess Air
Canada’s risk assessment methodology properly.
Stakeholders sometimes appear to describe similar aspects of risk management
using different terms. It is important for each party to be able to understand the
risk management processes being described by the other parties so that they
can intelligently compare and discuss approaches.
A 2005 report of the US Government Accountability Office recommended
adopting a risk-based management approach to aviation security in the US. Like
the IATA approach, that of the US included setting strategic goals and objectives,
assessing risk (threat, vulnerability and criticality), evaluating alternatives,
selecting initiatives, and implementing and monitoring those initiatives.836
3.3.5 Matching Limited Resources with Risk Control Objectives
Resources for managing risks are limited. An institution’s “risk budget” must be
allocated across the full set of risks in a defensible way. One approach is to use
cost-effectiveness, or maximum benefit per unit of expenditure, with the overall
caveat that no important risk be neglected. Public expectations and good risk
management practices demand that specified risks be controlled to a level
that is regarded by the public as “acceptable” and that no gaps remain in the
system.837
Leiss testified that every major enterprise has a risk management plan for all
the risks they face. A global budget, usually annual, provides for “enterprise risk
management.” Each type of risk, including financial, occupational and health,
is allocated a portion of the budget. Choices must be made in allocating the
limited resources to maintain risks at an acceptable level.838
Governments manage entire sets of risks under one budget. The risks posed to
aviation security are only one type of risk that Transport Canada manages.839
Within aviation security itself, risks can be divided and subdivided into a
number of categories. Leiss testified that an allocation must be made to aviation
835
836
837
838
839
Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5238.
Exhibit P-417, p. 3.
Exhibit P-361, Tab 1, p. 9.
Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11991-11992.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11992.
�Chapter III: Civil Aviation Security in the Present Day
security as a whole and that sub-allocations are required for categories such as
passengers, non-passengers, cargo and FBOs. He said that, ideally, allocations
should be proportionate to the risk presented by each category.840 The risk
matrix could assist in deciding allocations.841
Leiss stated that answering two main questions can help determine whether
risks have been appropriately managed in the face of limited resources:
1. Are resources sufficient to manage risks to an acceptable level? If not,
have additional resources been sought?
2. Have resources been allocated wisely?842
The position of Leiss can be summarized as follows: Managing several
independent risk factors simultaneously within the same envelope (such
as passengers, non-passengers, cargo and FBOs) requires achieving a
predetermined level of acceptable risk for each. It may be possible to rebalance
resources to achieve this. If rebalancing resources is not sufficient, additional
resources must be found.843
The case of air cargo security is instructive. The Commission heard much
evidence that significant gaps remain in aviation security. The most troubling
relates to air cargo.844 The CATSA Advisory Panel referred to air cargo as “…a major
security gap, perhaps the single most significant gap that has been brought to
our attention. Air cargo is largely unscreened at present, and this represents
a serious vulnerability in the system.”845 Both Wallis and Sweet also identified
air cargo as among the weakest links in aviation security,846 one recognized for
nearly 30 years but still not addressed adequately.847 Sweet testified that security
resources have been disproportionately weighted towards screening passengers
and their baggage, and away from air cargo. She stated that, paradoxically, this
worked to the detriment of passenger security:
…[W]e have focused so much on passengers and passenger
baggage that we have failed to recognize that there is a huge
part of that aircraft that is loaded up with pallets of cargo that
is moved round with passengers on board, and how and where
and when that cargo is screened is a huge gap….848
840
841
842
843
844
845
846
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11993.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11999.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 11993.
Exhibit P-361, Tab 1, p. 9.
Exhibit P-169, p. 52 of 202; see also Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4329.
Exhibit P-169, p. 52 of 202.
Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5003; see also Testimony of Kathleen Sweet, vol. 41,
June 6, 2007, pp. 4958-4959.
847 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5003.
848 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4942.
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Transport Canada is now attempting to address the air cargo security gap.849 It
informed the Commission that a risk assessment was conducted before the Air
Cargo Security Initiative (ACS Initiative) was developed, but provided no details
that would show rigour in its approach.
Simply because air cargo has not yet been implicated in a major security incident
does not alter the level of risk. As with the June 1st Telex in 1985, the absence of
an incident should not play a role in decisions about risk management where
there is evidence of an ongoing threat.850 Wallis testified, however, that it is
tempting to cuts costs when an incident fails to materialize:
If you go a few years without an incident, then you will even reach the stage where
politicians will want to try to divert money to some other source because you do not
need it; nothing is happening. That’s what you have to guard against….851
There has been some criticism that the “risk-based approach” to aviation security
may be used to hide inaction, particularly if serious security shortcomings
remain.852 The CATSA Advisory Panel agreed that risk management should
not be conducted superficially or used as an “ex-post facto rationalization for
inaction,” but it did not entirely support the premise about how a risk-based
approach might hide inaction. The Panel provided the following reasons:853
• Government resources are not unlimited;
• Security policy is not the sole priority of government or the
Canadian public; and
• Threats to security are not of equal magnitude or urgency.
The Panel advised that limited resources must be deployed after careful risk
assessments.854 The Commission agrees that decisions based on best practices
and standard protocols offer the greatest promise for addressing risks and
deploying resources in aviation security.
3.3.6 Shared Responsibility and Accountability
Civil aviation security in Canada is a shared responsibility. Transport Canada is
the regulatory authority with ultimate responsibility, but several government
bodies share operational responsibilities. These include CATSA, the RCMP and
local police. Other stakeholders, such as air carriers and airport operators, are
849 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5183.
850 Testimony of William Leiss, vol. 91, December 7, 2007, p. 12003.
851 Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4771-4772.
852 Members of the Standing Senate Committee on National Security and Defence have expressed doubt
that a risk-based approach is an adequate solution for serious security shortcomings. See Exhibit P-169,
p. 38 of 202; see also Exhibit P-171.
853 Exhibit P-169, p. 38 of 202.
854 Exhibit P-169, p. 38 of 202.
�Chapter III: Civil Aviation Security in the Present Day
also involved. CSIS provides Transport Canada with intelligence relating to
security.855 However, shared responsibility brings with it the danger of missing
important security risks and measures to address them.856 Seamless coordination
is required to avoid gaps.857
Agencies all need to follow the same methods and protocols for risk
management decision-making. Each agency should be able to explain clearly to
all partners the structure and protocols of its “risk-based approach” and should
provide regular updates. Discrepancies in the protocols must be identified
and resolved. Once stakeholders share an understanding about the methods
followed, each stakeholder can safely rely on the information or analysis
provided by the others. Stakeholders can achieve seamless coordination only
if they all meet both regularly and on an as-needed basis.858
Transport Canada created the Advisory Group on Aviation Security (AGAS)
in 2005 to provide a secure forum for government and industry stakeholders
to exchange views about aviation security policies and initiatives.859 The
mandate of AGAS is to provide information to stakeholders about current
and emerging security priorities and to receive “high-level strategic advice”
from them.860 Five technical subcommittees of AGAS deal with particular
security issues – aerodromes, security screening, air carriers, air cargo security
and Security Management Systems (SeMS).861 The CATSA Advisory Panel
described AGAS as playing an important consultative role at the national level.
Representatives from the Canadian Airports Council (CAC) and the Airline Pilots
Association, International (ALPA), both of which participate in AGAS, praised its
effectiveness.862 Fred Jones, Vice President of Operations and Legal Affairs at the
CAC, described the main benefit of AGAS:
…[Y]ou get a better end regulatory result; you have a better
regulatory policy when you can understand the viewpoints of
all stakeholders in the aviation community through a face-toface exchange….863
The existence of AGAS is encouraging, but the Commission saw little evidence
of coordination of risk management among stakeholders. The evidence points
to the contrary conclusion. Yet, AGAS appears to be an ideal forum for dealing
with risk management. Risk management principles are a fundamental element
of decisions in aviation security, and the Commission sees merit in moving
quickly to ensure clear and coordinated efforts within AGAS.
855
856
857
858
859
860
861
862
Exhibit P-169, pp. 30-33 of 202.
Exhibit P-361, Tab 1, p. 8.
Exhibit P-361, Tab 1, pp. 8-9.
Exhibit P-361, Tab 1, pp. 8-9.
Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8117; see also Exhibit P-169, p. 49 of 202.
Exhibit P-169, p. 49 of 202.
Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8117.
Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8117; see also Testimony of Craig Hall, vol. 64,
October 23, 2007, p. 7999.
863 Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8117.
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Failing to share responsibility effectively in aviation security can lead to
consequences such as those leading to the bombing of Air India Flight 182.
The mishandling of the June 1st Telex provides a prime example of a breakdown
in risk communication among the entities responsible for security. The main
stakeholders were Transport Canada, the air carriers, the RCMP and CSIS.864 It
appears that both Air India and certain branches of the RCMP reviewed the
telex,865 but it also appears that there were no follow-up discussions, nor was
the telex shared with other stakeholders, notably CSIS and Transport Canada.866
Leiss was highly critical of this failure:
…[G]iven the specificity of that threat collectively, in terms of
Air India’s corporate responsibility, it seems appalling that you
would not follow up, you would not find out what would be
done with that information. You would not insist on having
a meeting, a further dialogue of trying to see whether you
could actually work out a common plan and not say, “Well, do
whatever you want with this,” but say “what can Air India and
the Canadian Government and police forces do together to
lower the risk that’s involved. Or, what other options do we
have to control the risk involved?”867
The bombing of Air India Flight 182 was preventable. It represented a true
failure of shared responsibility in aviation security. As Bob Rae observed in
his report, Lessons Learned:
Despite the precautions and protections that were supposed
to be in place, almost everything that could have gone wrong
did go wrong. The bags should never have been checked
without an accompanying passenger in Vancouver. Canadian
Pacific Flights 060 (Vancouver to Toronto) and 003 (Vancouver
to Narita) should not have taken off without a reconciliation
that would have shown no accompanying passenger for these
bags aboard either flight. When the bag arrived in Toronto
from Canadian Pacific Flight 060 it should not have been
transferred to the Air India plane without being checked and a
bag reconciliation taken.
However, the suitcase with the bomb did get through 2
airports, both in Vancouver and Toronto. The mid-air explosion
off the west coast of Ireland in the early morning of June 23,
1985, was the consequence.868
864
865
866
867
868
Exhibit P-157, pp. 22-24 of 135.
Exhibit P-157, p. 30 of 135.
Testimony of J.B. MacDonald, vol. 27, May 14, 2007, p. 2865; Exhibit P-101 CAA0335, p. 8.
Testimony of William Leiss, vol. 91, December 7, 2007, p. 12025.
Exhibit P-35, p. 11.
�Chapter III: Civil Aviation Security in the Present Day
The bombing of Air India Flight 182 was only possible because of aviation
security failures by several stakeholders. Each stakeholder failed to manage its
risks properly:
• CP Air failed to follow its own baggage security procedures;
• Air India was inexcusably careless in deploying checked baggage
screening devices and procedures that it ought to have known
were inadequate for the purpose, and it failed to prevent
unauthorized bags from being loaded onto the aircraft;
• Transport Canada, on behalf of the Government of Canada, failed
in its role as regulator by denying Air India the security support it
required and by permitting Air India to rely on inadequate security
procedures and plans; and
• Air India, Transport Canada and the RCMP each failed to assess
threat and intelligence information appropriately and to
communicate this information adequately to relevant stakeholders.
Today, air cargo appears poised to become the next example of a failure to
share responsibility appropriately in risk management. This is despite air cargo
security being the focus of one of the technical subcommittees of AGAS. Those
responsible for air cargo security should coordinate their efforts. They should
learn about and develop an understanding of the efforts of others, and use
complementary methods and protocols to address security issues. Stakeholders
should hold regular discussions to stay abreast of the efforts of others.
Leiss testified that enhanced public accountability is also required to reassure
the public that there is adequate coordination among stakeholders and that
risks are being properly addressed.869 Public accountability requires assurance
from stakeholders that they are all using a standard protocol – ideally, the same
standard protocol – for risk management decisions.870 Leiss also maintained that
the ranking of aviation security risks within the risk matrix should be disclosed
and justified in order to maintain public confidence that the allocation of
resources is rational. He said it would not be a breach of security to disclose the
methods and language used.871
However, Transport Canada did not give the Commission any information about
which, if any, methods for assessing and managing risk are currently used in
Canada. Other stakeholders also appeared to have difficulty in obtaining this
information from Transport Canada. The Commission heard from the Office of
the Privacy Commissioner about its discussions with Transport Canada about the
Passenger Protect Program, a passenger screening initiative aimed at preventing
persons who are considered potentially harmful to aviation from boarding a
flight (also involving what is colloquially called a “no-fly” list). Lindsay Scotton,
869 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11961.
870 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11997.
871 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11997.
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the Privacy Impact Assessment Review Manager in the Privacy Commissioner’s
office, was asked whether she knew of any risk-based assessment conducted by
Transport Canada to justify the program:
The answer to that is no. That was one of our specific
recommendations in our response to the Privacy Impact
Assessment, which was, “Please show us the assessments, the
studies, quantitative or qualitative, that would … justify the
substantial intrusion into the privacy rights of Canadians.” We
haven’t received such a study, so the answer to that is no.872
Transport Canada did not provide any information to the Commission that would
allow it to conclude that the Department had completed a risk assessment for
the Passenger Protect Program.
A 2002 report of the United Kingdom’s Strategy Unit on Risk and Uncertainty,
Improving Government’s Capability to Handle Risk and Uncertainty,873 outlined
five principles for managing risks in the public interest. These might inform the
development of a more robust risk management decision-making process in
Canada:
Openness and Transparency
Government will make available its assessments of risks that affect the public,
how it has reached its decisions, and how it will handle the risk. It will also do
so where the development of new policies poses a potential risk to the public.
When information has to be kept private, or where the approach departs from
existing practice, it will explain why. Where facts are uncertain or unknown,
government will seek to make clear what the gaps in its knowledge are and,
where relevant, what is being done to address them. It will be open about where
it has made mistakes, and what it is doing to rectify them.
Involvement
Government will actively involve significant stakeholders, including members
of the public, throughout the risk identification, assessment and management
process. This will support timely and targeted action. Two-way communication
will be used in all stages of policy development, risk assessment and risk
management. Where there are differences in interpretation it will aim to clarify
these through open discussion, and it will seek to balance conflicting views in a
way that best serves the wider public interest. It will explain how views obtained
through consultation have been reflected in its decisions.
872 Testimony of Lindsay Scotton, vol. 72, November 6, 2007, p. 9017.
873 Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix F, p. 20.
�Chapter III: Civil Aviation Security in the Present Day
Proportionality and Consistency
Government will seek to apply a consistent approach to its assessment of risks
and opportunities and to its evaluation of the costs and benefits of options for
handling them, and will ensure that these are clearly articulated. It will apply the
precautionary principle where there is good reason to believe that irreversible
harm may occur and where it is impossible to assess the risk with confidence,
and will plan to revisit decisions as knowledge changes.
Evidence
Government will aim to ensure that all relevant evidence has been considered
and, where possible, quantified before it takes decisions on risk. It will seek
impartial and informed advice that can be independently verified wherever
possible, and seek to build a shared understanding of the risks and options
for action. It will consider evidence from a range of perspectives, including the
public as well as experts.
Responsibility
Government, where possible, will ensure that those who impose risks on others
also bear responsibility for controlling those risks and for any consequences of
inadequate control. It will aim to give individuals a choice in how to manage
risks that affect them, where it is feasible and in their interest to do so and where
this does not expose others to disproportionate risk or cost.874
3.3.7 Culture of Security
One of the great failures of the aviation security regime in 1985 was the general
lack of a security culture.875 The current national standard for risk management in
Australia and New Zealand specifically advocates a holistic approach that brings
“risk management thinking” into the culture of an organization, its business
practices and everyday activities:
To be most effective, risk management should become part
of an organization’s culture. It should be embedded into the
organization’s philosophy, practices and business processes
rather than be viewed or practiced as a separate activity.
When this is achieved, everyone in the organization becomes
involved in the management of risk.876
874 In 2001, the British Prime Minister announced the creation of a Strategy Unit on Risk and Uncertainty.
In 2002, the Strategy Unit published a comprehensive report, Risk: Improving government’s capability
to handle risk and uncertainty. This report introduced a number of ideas that go beyond the
information contained in the CSA Risk Management Guideline, including the listing of the five
Principles of Managing Risks to the Public, as outlined above. See Exhibit P-361, Tab 5, Additional
Documents for Tab 1, Appendix E and Appendix F, Appendix F, pp. 20, 23.
875 Exhibit P-157, p. 72 of 135.
876 Exhibit P-361, Tab 5, Additional Documents for Tab 1, Appendix E and Appendix F, Appendix F, p. 12.
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The Commission heard evidence of a move towards a culture of greater
security awareness through the Security Management Systems (SeMS). The
SeMS approach requires all individuals and departments within the aviation
environment, regardless of their particular duties or mandates, to help maintain
overall security.877 The CATSA Advisory Panel described SeMS as a “risk-based
approach” and identified it as a necessary basis for any aviation security
regime.878
For SeMS to be effective, an organization must embrace security as part of its
overall business so that “…security becomes a culture that percolates throughout
the entire organization.”879 In addition to requiring a security policy, a process of
goal-setting about security objectives, training of personnel and internal and
external reviews of the system, the SeMS approach requires:
• A process for identifying security risks and evaluating and
managing the associated responses; and
• A process for the internal reporting and analysis of threats,
incidents and breaches and for taking corrective actions
to prevent similar incidents.880
SeMs is an evolving concept.881 There appears to be confusion among stakeholders
about its meaning and application.882 Transport Canada made no mention of
SeMS during a briefing of Commission counsel on risk management.883
A culture of security awareness requires awareness of risk management
practices. The Commission encourages the further development of SeMS,
a process that should involve consultation with all stakeholders, along with
coordinated efforts in risk management decision-making. This too requires
clarity, precision in terminology and transparency amongst stakeholders, so
that all participants have the same understanding of what is required under
this system. The Commission is skeptical about poorly understood and abstract
concepts being held out as solutions. It remains to be seen whether SeMS will
improve aviation security.
877
878
879
880
881
882
883
Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8111.
Exhibit P-169, p. 37 of 202.
Exhibit P-169, p. 93 of 202.
Exhibit P-169, p. 94 of 202.
Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8114.
Testimony of Craig Hall, vol. 64, October 23, 2007, p. 8000.
Exhibit P-101 CAF0873.
�Chapter III: Civil Aviation Security in the Present Day
3.3.8 Conclusion
The terms “risk-based approach” and “risk assessment” were used liberally during
Commission hearings, with little explanation of and little apparent regard
for their precise meanings. Although this created an impression of rigorous
management of security, the evidence often suggested otherwise. Even when
pressed, Transport Canada officials could not articulate a consistent means by
which the Department manages risk in aviation security. Furthermore, although
responsibility for security is shared among many stakeholders, there was little
evidence of coordination or a system-wide risk management strategy.
Because there is no systematic approach to risk management, significant
risks may go unnoticed. Serious gaps already exist in aviation security. It is
essential that a risk management decision-making process be established and
implemented quickly.
The evidence before the Commission leads to the conclusion the aviation
security system should have the following characteristics:
1. A common set of protocols for carrying out risk management;
2. Risk management protocols and methods based on current best
practices in the field;
3. A performance standard of continual improvement, delivering levels of
risk in all relevant areas that are as low as reasonably achievable; and
4. Acceptable levels of risk control in all of the domains of risk pertinent
to aviation security.
3.4 Use of Intelligence in Aviation Security
As discussed elsewhere in this report,884 the collection and analysis of critical
intelligence about threats to civil aviation in the years leading up to the bombing
of Air India Flight 182 lacked coordination, and any sharing of that intelligence
was unstructured and inconsistent.885 A key lesson of the bombing was that
aviation security is diminished by unwarranted constraints on the flow of
intelligence and other threat information. Due to a general climate of excessive
secrecy, information was frequently not shared with concerned parties, such
as air carriers and Transport Canada. This was exemplified by the institutional
preoccupation with the “need to know” principle. Even when threat information
was being disseminated, the lack of secure communications channels slowed
the arrival of the information where it was needed, limiting the ability of airports
and air carriers to respond to threats.
884 See for example, Volume Two: Part 1, Pre-Bombing, Section 4.4, Failures in Sharing of Information.
885 See Testimony of Reg Whitaker, vol. 36, May 30, 2007, pp. 4310-4312.
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These intelligence failures resulted in air carriers that interlined passengers and
their baggage to Air India – for example, CP Air – operating as if normal security
conditions prevailed, even though Air India faced a serious risk of terrorist
attack. CP Air took no extraordinary security precautions in June 1985, and took
no steps to remove the interlined checked bag belonging to “M. Singh” when
he failed to board CP Air Flight 060. CP Air breached its own security program
in two ways: by agreeing to interline the bag even though Singh did not have a
reservation on Air India Flight 182, and by failing to offload the bag from Flight
060 once CP Air became aware that he did not show up for the flight. There is
good reason to believe the airline would have been much more vigilant if it had
known of the threat facing Air India.
The Canadian Air Transport Security Authority Act (CATSA) Review Advisory Panel
concluded that any effective aviation security program must be “…intelligenceled, based upon up-to-date threat assessments and resilient enough to adapt
to new threats as they emerge.”886 Rodney Wallis, former Director of Security
at the International Air Transport Association (IATA), has long contended that
intelligence has a crucial role to play in confronting terrorism.887 Similarly, Yves
Duguay, Senior Director of Air Canada Security and the Chairman of the IATA
Security Committee, testified that the best security system was intelligencedriven.888 The aviation security program in place in 1985 was deficient because
it focused on the waning threat of hijacking and on called-in “specific threats” as
the exclusive triggers for emergency action. Peter St. John, a retired professor
of international relations with expertise in air terrorism, testified that the lack
of better intelligence about the threat before the Air India bombing could itself
be seen as a failure by Canada’s intelligence community to co-operate and to
establish appropriate systems for discerning such threats.889
After the Air India bombing, Transport Canada established the Security and
Emergency Preparedness Directorate890 to deal with transportation security.
The Directorate is responsible for policy development, intelligence, the
transportation security clearance program, and security training guidelines
for its security inspectorate and for industry. It is concerned with all modes of
transportation overseen by Transport Canada, not merely aviation.
The intelligence failures leading up to the bombing led to changes in how
intelligence relating to terrorism and aviation security was collected, analyzed
and disseminated. Still, it was only after the attacks of September 11, 2001,
that Canada’s intelligence community began to shift its operational focus from
a culture of secrecy marked by the “need to know” mentality to a focus that
contemplated a “need to share.” The “need to share” concept was discussed in
the Hon. Bob Rae’s report, Lessons to be Learned, in relation to the notorious
reluctance of US agencies to share information before the September 11th
886
887
888
889
890
Exhibit P-169, p. 26 of 202.
See, for example, Exhibit P-148, p. 9.
Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5238.
Testimony of Peter St. John, vol. 38, June 1, 2007, pp. 4573-4576.
Exhibit P-157, p. 83 of 135.
�Chapter III: Civil Aviation Security in the Present Day
attacks, as well as in relation to the institutional firewalls between the RCMP
and CSIS.891
The CATSA Advisory Panel stated that, as aviation security continues to tighten,
terrorists could be expected to shift tactics and seek out and target as-yetunnoticed weaknesses or “the unknown unknown.”892 This increased the need for
intelligence gathering and threat assessments. The Panel added that, since 2001,
the Government of Canada placed a much greater emphasis on the integration
of intelligence gathering and analysis, as well as on the broader and timely
dissemination of this information.893 Even so, many obstacles that impeded the
proper flow of information in 1985 persist today, particularly tensions between
the producers and consumers of aviation security intelligence over its sharing.
3.4.1 Integrated Threat Assessment Centre
Among the aviation security and intelligence reforms undertaken since 2001
was the creation of the Integrated Threat Assessment Centre (ITAC). ITAC was
established in October 2004.894 It produces comprehensive threat assessments
focused exclusively on terrorism.895 There was no such integrated capacity in
1985.896 ITAC was created in recognition of the fact that “…the current scope of
threat assessment requirements exceeds the capacity of any one organization.”897
Many of Canada’s allies had already developed integrated intelligence
organizations, and ITAC would enhance Canada’s ability to participate as an
equal in the international intelligence community and protect Canadians.
ITAC operates out of CSIS. It has access to CSIS information and is staffed by
personnel seconded from a broad cross-section of government organizations,
including Transport Canada, CSIS, the RCMP, the Department of National
Defence, the Canada Border Services Agency, and the Communications Security
Establishment.898 ITAC distributes its threat assessments to its core intelligence
community partners, including Transport Canada, which is represented at ITAC
by the Security and Emergency Preparedness Directorate.899 Transport Canada
then provides this information to related stakeholders, including CATSA, as it
considers appropriate. The CATSA Advisory Panel stated that one of ITAC’s most
valuable contributions was its ability to make intelligence and other classified or
restricted threat information available to recipients in a form appropriate to the
recipient’s level of security clearance.900
891
892
893
894
895
896
897
898
899
900
Exhibit P-35, p. 23.
Exhibit P-169, p. 38 of 202.
Exhibit P-169, p. 42 of 202.
Testimony of John Schmidt, vol. 53, September 27, 2008, p. 6643.
Exhibit P-157, p. 107 of 135.
Exhibit P-157, p. 107 of 135.
Testimony of John Schmidt, vol. 53, September 27, 2008, p. 6644.
Exhibit P-223, Tab 4, p. 4.
Exhibit P-169, p. 42 of 202.
Exhibit P-157, p. 107 of 135.
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Dr. Reg Whitaker, chair of the CATSA Advisory Panel, testified that, since 1985,
there had been a move to integrate and coordinate the various actors involved in
the intelligence process.901 This required a shift away from the “information silos”
and turf wars of the past, characterized by intelligence failures and preventable
tragedies. According to the Panel, ITAC’s place within the intelligence community
was an example of both horizontal and vertical integration. Horizontal
integration occurred, for example, when ITAC drew on a wide range of sources
and served the broader intelligence community in producing security threat
assessments.902 Vertical integration involved channels for providing intelligence
to its many consumers. For example, ITAC and CSIS threat assessments were
passed to Transport Canada and then to CATSA.
3.4.2 Information Sharing: Canadian Air Transport Security Authority
CATSA told the CATSA Advisory Panel that CATSA depended on timely and
accurate intelligence to manage its daily operations, to plan long-term strategic
policies and to facilitate more effective screening by front line officers.903 For
this reason, the Standing Senate Committee on National Security and Defence,
in its 2003 report, The Myth of Security at Canada’s Airports, recommended that
CATSA develop its own intelligence capabilities.904 The Committee repeated
this recommendation in the 2007 Canadian Security Guide Book, and also
recommended that CATSA receive all available intelligence related to aviation
security.905
CATSA officials argued that CATSA did not have sufficient access to the
intelligence essential to its operations. In addition, they wanted a seat at the ITAC
table.906 The CATSA Advisory Panel concluded, however, that Transport Canada
remained the most appropriate recipient of strategic intelligence information
about terrorism, which it could then disseminate to CATSA.907
Jim Marriott, Director of the Aviation Security Regulatory Review for Transport
Canada, testified that the Department “actively shared” with CATSA the securityrelated information it needed.908 The CATSA Advisory Panel also found that
CATSA was receiving appropriate intelligence.909 Whitaker suggested that
CATSA’s concern that it was not receiving sufficient intelligence might be fueled
in part by the prestige and mystique attributed to intelligence stamped “Top
Secret,” and by the envy felt by those who thought that information was being
withheld from them.910
901
902
903
904
905
906
907
908
909
910
Testimony of Reg Whitaker, vol. 38, June 1, 2007, pp. 4570-4571.
Exhibit P-169, pp. 42-43 of 202.
Exhibit P-169, p. 44 of 202.
Exhibit P-171, p. 129 of 256.
Exhibit P-172, p. 76 of 155.
Exhibit P-169, p. 46 of 202.
Exhibit P-169, p. 46 of 202.
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4803.
Exhibit P-169, pp. 44-46 of 202.
Testimony of Reg Whitaker, vol. 38, June 1, 2007, pp. 4581-4582.
�Chapter III: Civil Aviation Security in the Present Day
The Standing Senate Committee on National Security and Defence made a
valid point in 2003, however, when it stated that “…CATSA, as an arm’s length
security agency, will have a hard time staying one step ahead of people with
bad intentions if it does not have an intelligence component…. [S]urely security
training is based on intelligence.”911 As discussed below, there is considerable
value in providing front line personnel with usable, actionable912 intelligence
through regular briefings or security updates. This is already done to some
extent and should be encouraged further. The sharing of intelligence keeps
front line personnel aware of current threats, boosts their motivation and
morale and instills a genuine sense of mission. The value of sharing intelligence
with those whose work requires vigilance but is often perceived as monotonous
and lacking prestige cannot be overstated.
The CATSA Advisory Panel described three types of intelligence that CATSA
wanted: actionable, issue-specific or tactical, and strategic.913 Whitaker testified
that CATSA did receive actionable intelligence relevant to its screening
mandate.914 The Panel stated that it was “...[c]learly … in the interests of the
travelling public and national security for actionable intelligence to be provided
to those who can act upon it.” However, the Panel did not think it necessary for
CATSA to receive intelligence about individuals or groups that might be a threat
to aviation, since CATSA screening officers did not check identity documents
and were concerned solely with searching for dangerous objects.915
Intelligence that was “issue-specific” or “tactical” might involve information
about new types of improvised explosive devices or new ways of concealing
weapons.916 One example of tactical intelligence was that about the threat,
publicized in the summer of 2006, of terrorist attacks against aircraft using liquidbased explosives. This led to a ban on liquids and gels in carry-on baggage.917
Here, the necessary intelligence was rapidly communicated to Canadian
authorities. CATSA was immediately advised and it quickly implemented new
security measures. This successful coordination and CATSA’s response were
described as “an intelligence victory”918 and a “textbook example” of how the
system ought to work.919
The third type of intelligence – strategic – was described by CATSA as “…the
type of intelligence needed to enhance its understanding of all aspects of the
terrorist threat, including motivating factors, ideological underpinnings, main
objectives, financing, modus operandi and operational support base.” The
CATSA Advisory Panel noted CATSA’s desire to “…be at the table at ITAC along
911 Exhibit P-171, p. 123 of 256 [Emphasis added].
912 The CATSA Advisory Panel described “actionable intelligence” as “threat information that requires
immediate response”: Exhibit P-169, p. 44 of 202.
913 Exhibit P-169, p. 44 of 202.
914 Testimony of Reg Whitaker, vol. 38, June 1, 2007, pp. 4577-4578.
915 Exhibit P-169, p. 45 of 202.
916 Exhibit P-169, p. 45 of 202.
917 Exhibit P-169, p. 45 of 202.
918 Testimony of Craig Hall, vol. 64, October 23, 2007, pp. 7945-7946.
919 Testimony of Reg Whitaker, vol. 38, June 1, 2007, pp. 4584-4585.
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with Transport Canada and the other [intelligence producers].” However, it saw
no clear advantage to ITAC or to the strategic intelligence community from
CATSA’s participation, since CATSA was primarily an intelligence consumer and
only a limited producer of intelligence. The Panel concluded that “…Transport
Canada remains the appropriate channel from ITAC as the integrated analyst to
CATSA as consumer.”920
Wallis testified that CATSA should not go beyond its core screening specialization
and “re-invent the wheel” by developing an intelligence function. He stated,
however, that it was essential for Transport Canada to ensure that CATSA
received all information relevant to its operations.921 The CATSA Advisory Panel
also urged closer co-operation between Transport Canada and CATSA in sharing
intelligence.922
According to the Final Submissions of the Attorney General of Canada, Transport
Canada and CATSA were working to implement the CATSA Advisory Panel’s
recommendations and to ensure that CATSA “…receives all the intelligence
required and that both organizations have a continuous learning environment
in 2008.”923
3.4.3 Information Sharing: Aviation Security Partners
The sharing of intelligence by government agencies with others involved in
aviation security, such as air carriers, airports and front line workers, must be
addressed. As the Panel noted, the threat environment requires that “…front-line
actors be provided with real-time, actionable intelligence capable of warning
against and pre-empting attacks.”924
The Canadian Airports Council (CAC) has 46 airport authority members,
collectively operating about 180 airports in Canada. This membership accounts
for 95 per cent of the passenger volume and almost all cargo and international
operations in the country.925
Aviation stakeholders need to be informed about threats to airports and aircraft.
They must, as the CATSA Advisory Panel recommended, be kept abreast of other
changes to the threat environment to be able to respond adequately to new
threats, rather than being forced to react at the last minute.926 Regular security
briefings for all stakeholders are warranted, including briefings for front line
workers that will boost morale and promote a sense of mission.
920
921
922
923
924
925
926
Exhibit P-169, p. 45 of 202.
Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5013-5014, 5031-5032.
Exhibit P-169, p. 46 of 202.
Final Submissions of the Attorney General of Canada, Vol. II, para. 330.
Exhibit P-169, p. 43 of 202.
Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8105.
Exhibit P-169, p. 47 of 202.
�Chapter III: Civil Aviation Security in the Present Day
Fred Jones, Vice President of Operations and Legal Affairs for the CAC, testified
that many CAC members were concerned about a lack of timely access to
intelligence.927 One particular concern was the inability to transmit pertinent
information securely. Transport Canada responded by creating a secure system,
the Secure Remote Access Security Database (SRAS), to distribute and access
security information measures. It also had the potential to transmit intelligence.
Jones testified, however, that even when security information was sent to
airports, it was not always timely or complete and it might not reach the right
people in time for them to take appropriate action.928 The CATSA Advisory Panel
also reported that several airlines complained that they were not receiving
information and threat assessments on a timely basis.929
Jim Bertram, Director of Public Safety for the Greater Toronto Airports Authority
(GTAA), also testified that timely delivery of intelligence was an ongoing
problem. He also called for confusion over the types of information certain
groups wanted to be addressed:
…. Canada is one of the world leaders in its ability to gather
and analyze intelligence. We do that very well through the
RCMP, through CSIS, Transport Canada. And I think the first
question that we ask is simply: what is intelligence?
There are a large number of groups, even within our own
airport, that would like almost on a daily basis the dumping
of raw data, as opposed to analyzed data or intelligence. So
they haven’t yet articulated what they mean when they say
they want something. They want more intelligence. They’re not
saying what it is. So we first of all need to identify what that
is and then allow the people that collect it and analyze it or
cause them to share that information with people that do need
it.930
Airport authorities and other stakeholders that want more intelligence risk
becoming inundated. The important issue is not the quantity of information that
a stakeholder receives, but the relevance of the information to the stakeholder’s
activities.
Bertram saw a serious danger in reacting to intelligence that had not been
analyzed and assessed. Jones agreed, testifying that receiving quality
intelligence was essential. A way was needed to distill the vast amounts of
security information and intelligence into a refined, actionable form, while
ensuring its prompt delivery to stakeholders.931
927
928
929
930
931
Testimony of Fred Jones, vol. 65, October 24, 2007, pp. 8119-8120.
Testimony of Fred Jones, vol. 65, October 24, 2007, pp. 8119-8120.
Exhibit P-169, p. 41 of 202.
Testimony of Jim Bertram, vol. 65, October 24, 2007, pp. 8120-8123.
Testimony of Fred Jones, vol. 65, October 24, 2007, pp. 8172-8173.
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Bertram testified about the organizational problems in providing timely, relevant
intelligence to airport authorities:
…. [T]he airport authority is a not-for-profit organization. It is
not a law enforcement agency. And law enforcement agencies
that are responsible for collecting and analyzing and creating
intelligence don’t have the authority in a lot of cases to give
me particularly, as the Director of Public Safety, information
that affects our airport. By law they can share it with other
enforcement agencies but they can’t share it with me. So
that is a glitch in the system and does cause some timeliness
concerns for us.932
Bertram added that government agencies would decide what intelligence
information was important to an airport. He stated that more complete threat
information about aviation security should instead be passed on to the airports
to use as they saw fit. He had seen some improvements, but the concerns of
airports about timeliness and quantity and access to intelligence were only
slowly being addressed.933
IATA stated that “…much more work needs to be done by regulators to share
intelligence information with airlines. There is a distinct ‘need to share’ not only
during regular operations but in times of emergency operation as well. All [too]
often we find regulators stubbornly fixated on the ‘need to know’ paradigm.”934
Georgina Graham, the Global Head of Security and Facilitation for IATA, testified
about IATA’s concerns about the need to share:
And too often governments say that in terms of security
information, “We will tell you what we think you need to know,”
but the airline needs to be able to do its own risk assessments,
its own threat and risk assessments and to work out where its
own vulnerabilities are, and you really need robust intelligence
to be able to do that effectively.
… [P]articularly with the events of August 2006 in the foiled
U.K. terror plot, what we saw there was the government
having good intelligence data and using that data wisely, and
letting the industry know what was happening and prevented
something from occurring. And that is what we need to see,
the ability to share data between regulators and our airlines,
and in the industry, to ensure the best use of that data to
prevent these acts of unlawful interference from occurring in
the first place.935
932
933
934
935
Testimony of Jim Bertram, vol. 65, October 24, 2007, pp. 8120-8121.
Testimony of Jim Bertram, vol. 65, October 24, 2007, pp. 8120-8121.
Exhibit P-258, Tab 1, p. 12.
Testimony of Georgina Graham, vol. 66, October 25, 2007, p. 8240.
�Chapter III: Civil Aviation Security in the Present Day
Such lines of communication must, of necessity, be established between states
and their airlines rather than through IATA. The airlines will be the direct recipients
of the intelligence. IATA must continue to promote security management
systems and information sharing within the aviation industry.
Steps have been taken to ensure that the local police at airports have the
security clearances required to receive intelligence about threats. Jean
Barrette, Director of Security Operations at Transport Canada, testified that the
policing community was a very important source of local intelligence936 and
that information frequently passed from the local police to Transport Canada
and CSIS, and vice versa. Duguay testified that, at Toronto’s Pearson Airport,
Air Canada was taking part in an intelligence exchange with Peel Police, the
RCMP and CATSA, through daily advisories.937 Air Canada was also working with
government departments to establish national security committees among the
roughly 62 agencies involved in security, as well as to establish local security
committees for each airport.
Dr. Kathleen Sweet, a US-based aviation security expert, testified that giving
screeners intelligence instilled motivation and a greater sense of mission and
purpose. She discussed a pilot project at Dulles International Airport where
screening personnel received regular intelligence briefings. She described it as
an “absolutely great” program that gave them “a bit of intelligence” and made
them feel important.938 The screeners regularly received low-level but pertinent
intelligence about potential threats and upcoming events that merited particular
vigilance. The screeners were also trained about suspicious “flags,” such as a
passenger wearing a bulky, heavy coat on a hot day.
Pierre Cyr, Vice President of Strategic and Public Affairs at CATSA, testified that
it would be difficult to implement a similar program in which CSIS briefed the
screeners at all 89 designated airports each day. However, CATSA screening
officers regularly received security information from in-house sources.939 This
was done through daily briefings by screening point leaders and area managers,
as well as through CATSA Screening Operations Bulletins and Transport Canada
Security Notices. Screening officers were expected to read these documents.
Captain Jean Labbé, Security Coordinator of the National Security Committee of
the Air Line Pilots Association, International (ALPA), testified that pilots did not
have adequate access to intelligence about threats to aviation.940 He stated that,
although the industry worked on a “need to know basis,” pilots had a need to
know; they should be made aware of threats to their flights and should also be
privy to broader intelligence concerning threats to aviation as a whole. Labbé
stated that pilots were an important part of security, and that making them
936
937
938
939
940
Testimony of Jean Barrette, vol. 39, June 4, 2007, pp. 4803-4804.
Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5280-5281.
Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4968-4969.
Testimony of Pierre Cyr, vol. 39, June 4, 2007, pp. 4809-4810.
Testimony of Jean Labbé, vol. 64, October 23, 2007, p. 8001.
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aware of possible concerns, along with threats and security risks, could only
improve security.
Captain Craig Hall, Director of the National Security Committee of ALPA, shared
Labbé’s views about the importance for pilots of access to intelligence.941 Hall
stated that a small, select group of airline pilot representatives did occasionally
receive high-level briefings in response to requests for further information on
a specific topic.942 He did not say that pilots required raw intelligence or that
they should be considered for top secret security clearance, but rather that they
should receive information appropriate to their duties.943
Hall stated that intelligence flowed in two directions. Pilots required information
about the conditions under which they operated aircraft, to help them make
appropriate and informed decisions. As well, if properly briefed, pilots could
provide extensive observations about matters that should be reported, but that
were not necessarily being reported. He described pilots and crew as an untapped
intelligence resource. Some 100,000 aircraft pilots were directly engaged in the
aviation system each day and saw changes in conditions all over the world. An
even larger number of flight attendants interacted with passengers.944
3.4.4 Conclusion
Canadian aviation security in 1985 lacked coordination and communications.
Organizational conflicts limited the effective use of intelligence. Canada has
made significant progress since then in collecting and analyzing intelligence
and in distributing it promptly to aviation stakeholders. The creation of ITAC,
its vertical and horizontal integration between intelligence producers and
consumers, and its ability to distribute information in a form appropriate to
recipients’ security clearance levels, clearly represent significant improvements.
Still, substantial disagreement remains about access to intelligence between
high-level producers of intelligence and front-line consumers. The “need to
know” continues to be accepted by those who produce the information and
resisted by those at the front lines. The clear consensus of the many security
experts and stakeholders heard by the Commission was that more work was
needed to ensure that a reflexive “need to know” approach does not dominate
the “need to share” approach, and to ensure that the need to share is reflected
in practice. Much of the work of aviation security takes place not only within
intelligence agencies, but also on the front lines.
The Commission stresses the critical importance of ensuring that those
concerned with airport and aircraft security receive focused, adequate and
actionable intelligence in a timely fashion.
941
942
943
944
Testimony of Craig Hall, vol. 64, October 23, 2007, pp. 8002-8003.
Testimony of Craig Hall, vol. 64, October 23, 2007, p. 8035.
Testimony of Craig Hall, vol. 64, October 23, 2007, pp. 8002-8003.
Testimony of Craig Hall, vol. 64, October 23, 2007, pp. 8002-8003.
�Chapter III: Civil Aviation Security in the Present Day
An uncritical acceptance that the existing flow of information about aviation
security is adequate must be avoided. As in the past, the organizations that
produce and disseminate intelligence, threat assessments and other security
information might conclude that the current level of sharing is adequate.
Complaints from those on the front lines, such as CATSA, that too little
intelligence is reaching them, and suggestions that CATSA might need to
develop intelligence-producing capacities, help to substantiate the argument
that intelligence is not being provided in a timely manner to those on the
front lines. Behind the thinking of those on the front line is a fear of a disaster
occurring because an intelligence producer unwisely concluded that an
intelligence consumer had no need for a particular item of intelligence. In short,
all participants in the intelligence and aviation security communities must
constantly assess whether the information necessary to protect civil aviation is
reaching, in time, the people who need it.
3.5 Passenger and Baggage Screening
Passenger and baggage screening was designated as a central aspect of the
Commission’s mandate in aviation security, to be examined within the context of
lessons learned from the bombing of Air India Flight 182.945 Indeed, the screening
of passengers and their carry-on and checked baggage is a core element in the
defence of civil aviation.946 Before 1985, aviation security measures focused on
screening passengers and carry-on baggage,947 since the primary aim at the
time was to prevent aircraft hijackings.948 Despite knowledge by government
of a generalized risk of sabotage,949 little emphasis was placed on screening the
checked baggage to be loaded into the hold of an aircraft, except in certain
cases of heightened threat.950 This changed with the bombing of Air India Flight
182. In response to this and later sabotage incidents worldwide – in particular,
the bombing of Pan Am Flight 103 and the terrorist attacks of September 11,
2001 – layers of screening measures for passengers, carry-on and hold baggage
were built up to address this threat, each complementing the other.
A comprehensive system for passenger and baggage screening now exists in
Canada. A government agency, the Canadian Air Transport Security Authority
(CATSA), has been established to deliver screening services for passengers
and baggage, removing this key responsibility from air carriers. Passengers
and baggage are screened using much more sophisticated technology than
was available in 1985,951 with enhanced capabilities for detecting prohibited
items, including explosive devices. Passenger-baggage reconciliation and
945 Para. b(vii) of the Commission’s Terms of Reference called for findings and recommendations to address
“whether further changes in practice or legislation are required to address the specific aviation security
breaches associated with the Air India Flight 182 bombing, particularly those relating to the
screening of passengers and their baggage” [Emphasis added].
946 Exhibit P-169, p. 16 of 202.
947 Exhibit P-157, p. 17 of 135.
948 Exhibit P-157, p. 75 of 135.
949 Exhibit P-263, Tab 5, p. 15
950 Exhibit P-263.
951 Exhibit p-157, p. 103 of 135.
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a multi-tiered process for full hold bag screening (HBS) together provide the
best defence available against bombs in checked baggage.952 Passengers are
also subjected to layers of screening that involve metal detectors and that may
also involve hand searches and inspection by explosive trace detection units at
secondary or random screening. Besides being required to produce a boarding
pass, passengers must show valid photo identification at the boarding gate.953
Passenger screening is becoming increasingly intrusive. As more invasive
screening technology is considered for routine use, concerns about individual
privacy rights have been raised, challenging the relative unassailability of the
traditional “no search, no fly” principle. A profound shift also appears to be
taking place in the conceptualization of passenger screening itself, with a focus
not only on the detection of prohibited objects, but also on the identification of
individuals who pose a danger to aviation. Canada has recently instituted its own
“no-fly list” under the Passenger Protect Program, and is evaluating behavioural
analysis techniques for screening. Such measures have the potential to violate
rights, including those protected by the Charter.954 Indeed, the constitutionality
of the Passenger Protect Program is currently being challenged in the Federal
Court of Canada by the first (and, to the Commission’s knowledge, the only)
individual to be denied boarding privileges under its auspices.955
Although an impressive, multi-layered approach to passenger and baggage
screening has been developed since 1985,956 other vulnerabilities in civil
aviation remain, exposing passengers and aircraft to the risk of sabotage.
Aviation is secure only if all vulnerabilities are appropriately addressed. These
vulnerabilities are discussed in other parts of this volume.957
3.5.1 Post-1985 Developments
3.5.1.1 Hold Bag Screening
Within months of the bombing of Air India Flight 182, Transport Canada made
passenger-baggage reconciliation mandatory for international flights, later
extending the measure to domestic flights.958 Passenger-baggage reconciliation
952 In Canada, Air Regulation 812, dated December 17, 1974, directed air carriers to examine checked
baggage on aircraft in the event of a specific threat: see Exhibit P-157, p. 56 of 135. Internationally,
the 1983 ICAO Security Manual for Safeguarding Civil Aviation Against Acts of Unlawful Interference
suggested that passenger-baggage reconciliation be conducted where a flight was “…believed to
be the subject of a specific threat” or where air carriers were operating at airports that were considered
to be in “high risk areas.”: Exhibit P-157, p. 57 of 135. Air India’s Security Programme in Canada
provided for increased checked baggage security as part of its Emergency Procedures: see Exhibit
P-157, pp. 27-28 of 135. In 1984, KLM and CP Air together implemented a passenger-baggage
reconciliation measure in response to a bomb threat: see Exhibit P-101 CAF0637, pp. 18-19.
953 Exhibit P-157, p. 103 of 135.
954 Wallis, Lockerbie, p. 154.
955 See Exhibit P-426.
956 Exhibit P-157, p. 86 of 135.
957 See Section 3.8.
958 Exhibit P-35, p. 20.
�Chapter III: Civil Aviation Security in the Present Day
involves correlating passengers with their baggage to verify that passengers with
checked baggage have actually boarded the aircraft.959 It addresses the danger
presented when ill-intentioned passengers voluntarily separate themselves
from their baggage – that of a bomb in unaccompanied baggage.960 It deals
with the principle that passengers and their baggage must be treated as a
single entity, a principle arising directly from the events that led to the loss of Air
India Flight 182.961 Not only was Canada the first country to require passengerbaggage reconciliation on international flights, but it played a lead role in
persuading the international community to adopt this measure as a standard to
be incorporated into Annex 17 to the Convention on International Civil Aviation
(“Chicago Convention”).962 In the immediate aftermath of the Air India bombing,
methods of automating passenger-baggage reconciliation procedures were
established to enable the measure to be implemented in larger centres with
high passenger volumes.963 In 1988, the then-President of the International
Civil Aviation Organization (ICAO) Council described passenger-baggage
reconciliation as “the cornerstone of security against the baggage bomber.”964
Today, it is still considered a key defence against sabotage.965
However, passenger-baggage reconciliation alone is not sufficient because it
does not account for the “unwitting accomplice” who unknowingly introduces
a bomb on board an aircraft.966 In 1986, a Palestinian terrorist placed a bomb in
the hand baggage of his Irish fiancée, without her knowledge. The bomb was
destined for an Israeli jumbo jet, but the bomb’s discovery before she boarded
the flight prevented the destruction of the plane.967 In addition, passengerbaggage reconciliation cannot counter a suicide bomber who knowingly boards
an aircraft with an explosive device in checked baggage,968 a threat which has
become increasingly prevalent.969
Effective technology for screening explosive devices is also required.970 Unlike
the summer of 1985, vastly-improved explosives-detecting technology is now
available for screening hold baggage.971 After 1985, research and development
projects at Transport Canada focused on eliminating some technological
deficiencies that had figured in the Air India bombing. Projects included the
development of X-ray pattern recognition and enhancement of capabilities for
detecting trace explosives.972 At the time of the bombing, Transport Canada
959
960
961
962
963
964
965
966
967
968
969
970
971
Exhibit P-157, p. 58 of 135.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4476.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4477.
Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4722.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4478; see also Exhibit P-157, p. 86 of 135.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4237.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4507.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4257.
Testimony of Peter St. John, vol. 35, May 29, 2007, p. 4250.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4257.
Testimony of Peter St. John, vol. 35, May 29, 2007, p. 4251.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4257.
Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4415; see also Section 3.6, which describes the
technology currently being used and considered for civil aviation security.
972 Exhibit P-157, p. 86 of 135.
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was already testing explosive vapour detection (EVD) units for screening hold
baggage, but had not yet deployed them at airports.973 Following the loss of Flight
182, these units were rapidly commercialized and installed in airports across
the country. In the years that followed, the technology became increasingly
sophisticated and reliable.974
Even then, the technology was “nowhere near as refined”975 as it is today.
Following the bombing of Pan Am Flight 103, which was destroyed by plastic
explosives concealed in unaccompanied interlined hold baggage, significant
research and development efforts were devoted to methods for screening hold
baggage for explosives and for introducing these technologies into the airport
environment.976 In 1995, the first series of EVD units were replaced with a new
generation of portable equipment that could detect plastic explosives.977 A
few years later, images produced by X-ray equipment, including that used for
screening carry-on baggage, improved from black and white images (which
were known in 1985 as unreliable and even merely “cosmetic”) to “dual-energy”
colour X-ray imaging capable of detecting explosives and organic material.978
Following the Pan Am bombing, renewed emphasis was also placed on
requiring full hold bag screening (HBS). Both full HBS and passenger-baggage
reconciliation are required to address adequately the threat of bombs in checked
baggage:
Airports that have in place passenger and baggage
reconciliation systems…and have introduced baggage
screening in a multilayered security program have already
moved to minimize the possibility of an improvised explosive
device being carried in a suitcase.979
Since January 1, 2006, in accordance with Annex 17 of the Chicago Convention,
all hold baggage has been screened at all of Canada’s designated airports. Up
to five levels of screening may occur before the baggage is loaded onto an
aircraft.980 As was amply demonstrated by the bombings of Air India Flight 182
and Pan Am Flight 103, baggage screening alone, in the absence of passengerbaggage reconciliation, does not provide adequate protection against bombs
in checked baggage:
973
974
975
976
977
978
979
980
Exhibit P-157, p. 85 of 135.
Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4529.
Testimony of Jim Marriott, vol. 37, May 31, 2007, pp. 4520-4521.
Testimony of Jim Marriott, vol. 37, May 31, 2007, pp. 4520-4521.
Exhibit P-157, p. 85 of 135.
Exhibit P-157, pp. 85-86 of 135.
Wallis, Lockerbie, p. 31.
Exhibit P-169, pp. 65-66 of 202; see also Exhibit P-181, p. 4-2, s. 4.5.
�Chapter III: Civil Aviation Security in the Present Day
Used as an addition rather than an alternative to the matching
process, [baggage screening] will add to passenger safety,
providing it is effectively implemented using state-of-the-art
technology and procedures. It should never be a substitute for
passenger and baggage matching, just one of the important
ingredients in the security mix.981 [Emphasis in original]
Neither HBS nor passenger-baggage reconciliation is sufficient alone, but
together they provide a powerful defence against bombs in checked baggage.
As one expert noted:
Good security requires an amalgam of ideas, an amalgam of
approaches. If you’re going to be truly effective, there is no
one way to stop the terrorist.982
The combination of HBS and passenger-baggage reconciliation exemplifies the
layered approach required for effective security.983
3.5.1.2 Creation of the Canadian Air Transport Security Authority
In 1985, passenger and baggage screening was an air carrier responsibility,
with limited direction and oversight provided by federal authorities. This was
one of the major security weaknesses.984 Systemic deficiencies contributed to a
series of failures in passenger and baggage screening, which allowed a bomb
concealed in unaccompanied interlined baggage to be placed on board Air
India Flight 182. Security was not the primary concern of air carriers, which
contracted with private security firms, often hiring the lowest bidder to provide
screening services.985 Generally, the customer service department of air carriers,
rather than the security division, hired and supervised screening contractors.
Transport Canada recognized this shortcoming:
The Passenger Services staff at airports are primarily concerned
with facilitation; security and facilitation are often in direct
conflict with each other. There have been many cases when
Passenger Services staff have put pressures on the contract
screening company which is working for them to speed up
security and move passengers through the screening process
quickly.986
981
982
983
984
985
986
Wallis, Lockerbie, p. 154.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4258.
Testimony of Georgina Graham, vol. 66, October 25, 2007, p. 8234.
Exhibit P-157, p. 115 of 135.
Exhibit P-157, p. 55 of 135.
Exhibit P-157, p. 55 of 135.
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After the bombing of Flight 182, Transport Canada considered other methods
for delivering screening services for passengers and baggage. Ultimately,
the Department decided to leave screening with the air carriers, but develop
a highly prescriptive regulatory regime and strengthen training programs
for screening personnel. It was not until 2002, in response to the September
11, 2001, attacks, that this arrangement was altered. A separate government
authority was created, dedicated exclusively to security screening.987
On March 27, 2002, the Canadian Air Transport Security Authority Act (CATSA Act)988
received Royal Assent, and a new Crown corporation, the Canadian Air Transport
Security Authority (CATSA) was established. CATSA had broad responsibilities for
screening passengers and their carry-on and checked baggage.989 In November
2002, the Minister expanded CATSA’s responsibilities to include the random
screening of non-passengers with access to restricted areas at airports, along
with their possessions.990 Non-passengers work at airports, provide services
or deliver goods to airports, or pass through airports and require access to
restricted areas.991 The CATSA Act assists Canada to comply with Annex 17 of the
Chicago Convention, which requires contracting states to screen all passengers
and their carry-on baggage,992 checked baggage993 and a proportion of nonpassengers with access to restricted areas of an airport.994
Section 6(1) of the CATSA Act outlines CATSA’s mandate:
The mandate of the Authority is to take actions, either
directly or through a screening contractor, for the effective
and efficient screening of persons who access aircraft or
restricted areas through screening points, the property in their
possession or control and the belongings or baggage that
they give to an air carrier for transport. Restricted areas are
those established under the Aeronautics Act at an aerodrome
designated by the regulations or at any other place that the
Minister may designate.
Under the CATSA Act, “screening” is defined as “…screening, including a search,
performed in the manner and under the circumstances prescribed in aviation
security regulations, security measures, emergency directions or interim orders
made under the Aeronautics Act.”995
987
988
989
990
991
992
993
994
995
Exhibit P-157, p. 67 of 135.
S.C. 2002, c. 9, s. 2.
Exhibit P-169, p. 16 of 202.
Exhibit P-169, p. 18 of 202. CATSA is also responsible for implementing the Restricted Area
Identification Card (RAIC), which incorporates biometric identifiers for those granted access to
restricted areas of airports: see Exhibit P-169, pp. 61, 73 of 202.
Exhibit P-169, p. 18 of 202.
Exhibit P-181, pp. 4-1-4-2, s. 4.4.
Exhibit P-181, p. 4-2, s. 4.5.
Exhibit P-181, p. 4-1, s. 4.2.
CATSA Act, s. 2.
�Chapter III: Civil Aviation Security in the Present Day
CATSA provides screening services at 89 airports across Canada designated
by Transport Canada,996 covering roughly 99 per cent of all passenger traffic. It
screens more than 37 million passengers, 700,000 non-passengers and 60 million
pieces of luggage annually. More than 4,000 screening officers are employed by
private security firms with which CATSA has contracted for screening services.997
CATSA is responsible for establishing criteria for the qualifications, training and
performance of screening contractors and screening officers. These criteria
must be at least as stringent as the standards established in the aviation security
regulations made under the Aeronautics Act,998 and CATSA must certify all
screening contractors against these criteria.999 CATSA has established detailed
Standard Operating Procedures (SOPs) for its screening services, and has
developed operational plans for all 89 designated airports.1000
As part of its screening mandate, CATSA manages the acquisition, installation and
maintenance of screening equipment.1001 It has deployed more than 6,000 pieces
of equipment, involving X-ray, Computed Tomography (CT-X) and explosive
trace detection technologies for screening carry-on and hold baggage.1002 This
equipment is far more advanced than the simple X-ray machines and crude
explosives detection devices that were available in 1985, and is capable of
detecting prohibited items more quickly and with much greater sensitivity and
accuracy.1003
CATSA does not currently employ its own explosives detection dogs to assist
with passenger and baggage screening. One of the main concerns is that such
dogs are not trained to interact in a screening capacity with passengers and
could pose a danger. CATSA is reviewing the possibility of incorporating the
dogs as an added security layer for passenger and baggage screening.1004
In 2006, a report was released by the CATSA Act Review Advisory Panel (CATSA
Advisory Panel), an independent three-member panel of experts appointed by
the Minister of Transport to conduct a five-year review of the CATSA Act and
CATSA’s operations.1005 The report, Flight Plan: Managing the Risks in Aviation
Security,1006 noted that in CATSA’s five years of existence, the organization had “…
achieved a great deal when measured against the security situation prior to its
996 Exhibit P-169, p. 17 of 202.
997 Exhibit P-157, p. 104 of 135.
998 CATSA Act, s. 8(1).
999 CATSA Act, s. 8(2).
1000 Exhibit P-157, p. 104 of 135.
1001 Exhibit P-169, p. 32 of 202.
1002 Exhibit P-169, p. 160 of 202.
1003 Exhibit P-157, p. 104 of 135; see also Section 3.6 for a more detailed account of the current technology
being used for passenger and baggage screening.
1004 Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4825.
1005 Section 33 of the CATSA Act directs the Minister of Transport to conduct a review of the legislation
five years after its enactment and to report the results to Parliament. On November 23, 2005,
the Minister of Transport announced the appointment of a three-member panel of experts to conduct
an independent review and to provide its recommendations and observations. See Exhibit P-175,
ss. 33(1), 33(2); see also Exhibit P-169, p. 19 of 202.
1006 See Exhibit P-169.
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inception.”1007 Among the Panel’s many recommendations,1008 it is notable that
no concerns were expressed about the current security measures for screening
passengers and their baggage.1009
Experts and stakeholders have identified CATSA as the appropriate authority to
take on greater screening functions, including those involving air cargo.1010
3.5.2 Passenger and Baggage Security: Lessons Yet to be Learned
3.5.2.1 Need for Proactive Approach
Most improvements to passenger and baggage screening occurred only after
major aviation security disasters: Air India Flight 182, Pan Am Flight 103 and
the terrorist attacks of September 11th. In a consistently reactive process, new
layers of screening have been introduced against sabotage by passengers or
by bombs in baggage. The effectiveness of these measures has been limited
by the technology used and by the skill of security screening staff and their
supervisors.
Aviation security, however, must be based on risk management principles1011
which are proactive and forward-looking, while at the same time providing
protection from existing threats. Although aviation security incidents are rare,
their consequences can be devastating. The aim is prevention. In virtually every
major aviation security incident since 1985, the need for enhancements to
passenger and baggage screening was known, or ought to have been known,
often well in advance of the occurrence. Complacency and lack of vigilance
exacted a price.
A recent pre-board screening (PBS) initiative illustrates the point. In August
2006, a terrorist plot was uncovered in the United Kingdom. It was suspected
that explosive liquids and gels would be used to launch a simultaneous attack
against several aircraft crossing the Atlantic.1012 The threat was considered
imminent. Canada, along with others in the international community, quickly
implemented emergency security measures. A complete ban on liquids and gels
in carry-on baggage was immediately instituted until the risk could be further
assessed. It was later determined that limiting the volumes of liquids and gels in
carry-on baggage would adequately address the risk and minimize passenger
inconvenience. The response was impressive: in a surprisingly short time, the
international community successfully coordinated its efforts to deal with what
1007 Exhibit P-169, p. 18 of 202.
1008 Exhibit P-169, pp. 177-183 of 202; see also Appendix D for a complete list of the Panel’s
recommendations.
1009 A number of recommendations dealt with improving the ability of screening officers, however, to
effectively implement the security screening measures that are in place. See Section 3.7, which
provides a detailed analysis of screening officers within the civil aviation security regime.
1010 Exhibit P-169, pp. 55, 69 of 202.
1011 See Section 3.3 for a detailed analysis of risk management principles in civil aviation security.
1012 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4585.
�Chapter III: Civil Aviation Security in the Present Day
UK intelligence had exposed as an impending threat to aviation. Since then,
limits on the amounts of liquids and gels in carry-on baggage have become a
routine PBS security screening measure to prevent sabotage.1013
Transport Canada has frequently cited the rapidity and ultimate success of
the response to the liquids and gels threat of August 2006 as an example of
the effectiveness of its security regime and of worldwide collaboration in this
area.1014 Still, emergency measures are never ideal. Measures that are rapidly
instituted in emergency situations can generate chaos and confusion and
leave room for error. The measures may inadvertently heighten risk. In 2006,
the sudden implementation of sweeping screening measures for liquids and
gels created an additional security risk. Heathrow Airport in London came to a
standstill, with extraordinarily long lines forming at security screening points
and throngs of passengers assembled outside terminal buildings. Sabotage
aimed at aviation seeks to produce the greatest impact and probes for areas
of vulnerability. Crowds of passengers that congregate in less secure areas of
an airport create a “target of opportunity.”1015 Resort to “knee-jerk” emergency
measures must be avoided.
The Commission learned that the threat posed by liquids and gels was known
long before 2006. Virtually the same threat arose almost two decades earlier. On
November 29, 1987, liquid explosives carried in hand baggage resulted in the
destruction of Korean Air Flight 858 as it flew over the Andaman Sea, destined
for Seoul, South Korea. All 115 people on board were killed.1016 Liquid explosives
had been disguised as alcohol in a whiskey bottle that was sealed to appear
unopened. A portable radio containing the detonator was placed beside it
in a duty-free bag, along with a carton of cigarettes. These were items which
could easily have been purchased in the duty-free shop and had not aroused
suspicion.1017 The bag was placed in an overhead compartment on the flight by
two passengers, members of the North Korean Workers Party, who boarded at
the initial departure point in Baghdad. They disembarked at a scheduled transit
stop, purposely leaving the bag behind on the aircraft. The explosives were
timed to detonate later.1018
Following the Korean Air bombing, the Council of ICAO requested its
Committee on Unlawful Interference to advise on any changes required to
security procedures for detecting explosive substances and for controlling
the movement of transit and transfer passengers. Although the work of this
Committee does not normally “lend itself to rapid action,”1019 the airlines were
monitoring the latest developments in the field of explosive substances, much
of which research was conducted through government funding.1020 By 2006,
1013 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5139.
1014 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4842.
1015 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4508.
1016 Wallis, Combating Air Terrorism, p. 18.
1017 Testimony of Moses Aléman, vol. 36, May 30, 2007, pp. 4269-4270.
1018 Wallis, Combating Air Terrorism, pp. 18-19.
1019 Wallis, Combating Air Terrorism, p. 19.
1020 Wallis, Combating Air Terrorism, p. 19.
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this well-known threat should have been managed. Instead, the world seemed
caught by surprise. As a result, excessive measures were hastily put in place
in response to the imminent plot in the UK. Had security screening measures
already existed for liquid explosives, the response in 2006 could have simply
adjusted to deal with the specific threat.
Rodney Wallis, an expert in international civil aviation security, expressed
frustration that the imminent threat of a second incident was required before
appropriate measures were implemented:
Now, in the comparatively recent past, we have heard all sorts
of things about governments moving quickly on banning
liquids in flight. I say moving quickly, [but] we’re talking here
1987. 1987 to 2007 is hardly quick…we’ve had experience with
liquid explosives before.1021
The lesson of the threat from liquid explosives ought to have been learned more
than 20 years ago.1022 The CATSA Advisory Panel reasoned that action had not
been taken previously “…probably because there was…insufficient political
will to impose this new restriction on passengers. With [the] apprehension of
this [alleged 2006] plot that will was suddenly there.”1023 The Commission heard
evidence suggesting that threats, such as those exposed by the loss of Air India
Flight 182, may not be fully appreciated until they appear to be directed against
Western targets.1024 It is possible that the lack of political will in 1987 can be
similarly explained.
As part of a proactive approach to security, Canada must also do its utmost to
follow international best practices. Canada complied with the 2006 deadline set
by ICAO for implementing full HBS. However, the Annex 17 standards are really
minimum standards, since they require the consensus of all contracting states.
Nations with the sufficient resources should be able to exceed these standards.
The possibility that, in Canada, HBS could have been put in place much earlier
cannot be overlooked, particularly because multi-tiered screening of all hold
baggage had been conducted in the UK since the 1990s.1025
The bombing of Pan Am Flight 103 occurred in 1988. In 1990, the UK Department
of Transport proposed that the European Civil Aviation Conference (ECAC)
adopt full HBS as a standard security measure. However, the proposal met with
resistance since many states believed that no existing equipment was capable
of performing such a task. The ECAC set full HBS as a strategic objective to be
1021 Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4268.
1022 Testimony of Moses Aléman, vol. 36, May 30, 2007, p. 4270.
1023 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4585.
1024 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4527; see also Sections 3.3 and 3.8 for a more
detailed discussion of this issue and the gaps in aviation security which must be closed.
1025 Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4753.
�Chapter III: Civil Aviation Security in the Present Day
achieved by 2000. ICAO followed suit, setting 2006 as its target date for member
states.1026 Still, there was not full support for immediate action on HBS, except
for conducting research. The UK decided to move ahead unilaterally to develop
this measure.1027 The British Airports Authority, responsible for the majority of
airports in the United Kingdom, decided that, “rather than be pushed they’d
jump.”1028
The British Airports Authority collected equipment from around the world,
largely from the United States, and proceeded to conduct its own experiment
at Glasgow’s Abbotsinch Airport, beginning in 1993.1029 The equipment was
installed over the existing baggage belt system and a three-stage system for
screening 100 per cent of hold baggage was developed.1030 The experiment
proved successful and, by 1998, equipment was installed in several airports
across the UK, including Heathrow Airport in London. This was eight years
ahead of the ICAO deadline, primarily using equipment that was available in
North America.1031 Although full HBS was possible in the 1990s, Canada did not
accomplish this until the 2006 ICAO deadline.
Of note, the HBS process established in the United Kingdom in the 1990s was
accompanied by passenger-baggage reconciliation, which meant that those
airports using both systems had “the best defences available at the time.”1032
3.5.2.2 Holistic Security: “Single Entity” Doctrine
Although comprehensive passenger and baggage screening provides important
protection, more is required. The loss of Korean Air Flight 858 exemplified the
danger posed by “transit” passengers who board a flight and then disembark
at a transit stop.1033 Following the Korean Air disaster, the ICAO Council
requested its Committee on Unlawful Interference to review security measures
for passengers and their hand baggage at transit and transfer points. Just like
interlined passengers and baggage, transit passengers and their baggage need
to be accounted for:
So it’s the same recurring story, that people are dangerous
when they leave things behind. They are dangerous when they
separate themselves from their baggage....1034
1026 Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4750-4751.
1027 Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4751.
1028 Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4751.
1029 Exhibit P-179, p. 1.
1030 Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4751-4752.
1031 Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4752-4753.
1032 Testimony of Rodney Wallis, vol. 39, June 4, 2007, pp. 4753-4754.
1033 Wallis, Combating Air Terrorism, p. 18.
1034 Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4269.
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The principle that a passenger and his or her baggage must be considered a
single entity emerged from the international discussions in the days following
the bombing of Air India Flight 182. One significant outcome of an extraordinary
meeting of the Security Advisory Council (SAC) at the International Air Transport
Association (IATA) had been the need to accept the “single entity” doctrine:
that the danger of an act of unlawful interference arises whenever passengers
voluntarily separate themselves from their baggage.1035 This included “the no
show, the transit or online transfer and the interline passenger.”1036
Extending this concept further, the entire aircraft must be viewed as a single
entity, including all persons or things that are permitted on board or that
have access to it. A narrow focus on passengers and their baggage belies the
nature of aviation terrorism, which probes for weak links in the security chain.
The potential exists for a bomb to be placed on board an aircraft in cargo, mail
or catering supplies, for example, and by non-passengers who have access to
the aircraft. Security measures are not adequate to prevent these methods of
sabotage.1037
Since 1985, Canada’s efforts to enhance aviation security have disproportionately
focused on improving passenger and baggage screening, leaving other known
vulnerabilities, such as air cargo, undesignated airport facilities and persistent
gaps in airport security, unaddressed.1038 The Standing Senate Committee on
National Security and Defence (Senate Committee), which has been reviewing
the state of aviation security in Canada since 2002, compared aviation security
to a house with a “fairly well secured” front door, but with side and back doors
that are “wide open.”1039 Despite these known deficiencies and the fact that
passenger and baggage security has been quite comprehensively addressed
since January 2006, with the implementation of full HBS, successive budgets
have continued to concentrate funding on passenger and baggage initiatives,
perhaps at the expense of other aspects of aviation in need of attention.1040 The
2009 Budget pledged funding for a new air cargo security initiative, but it also
announced funding for a new passenger assessment system. It is important that
policy decisions in civil aviation security reflect all risks in a balanced manner. It
is only within the past five years that Transport Canada has begun to consider
strengthening some of the long-known gaps in the aviation security regime,
but concrete measures are still to be implemented.1041
1035 Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4475-4476.
1036 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4476.
1037 See Sections 3.8.1 and 3.8.2, which describe the vulnerabilities in air cargo and airport security in
greater detail.
1038 A 2005 report by the Auditor General of Canada, which reviewed the 2001 Anti-Terrorism Initiative,
noted that following the September 11, 2001 attacks, the federal budget had directed aviation security
funding only to passenger transportation. See Exhibit P-411, p. 9.
1039 Exhibit P-171, p. 9 of 256.
1040 Exhibit P-411, p. 9.
1041 See Section 3.8, which describes the current major gaps in security and Transport Canada’s plans to
address them.
�Chapter III: Civil Aviation Security in the Present Day
3.5.3 Passenger and Baggage Screening: Current Procedures and Future
Developments
3.5.3.1 Hold Bag Screening and Passenger-Baggage Reconciliation
With full HBS, the processing of checked baggage has become more complex,
as have the roles and responsibilities of the participants. Baggage is the air
carrier’s responsibility after acceptance from the passenger at check-in. It is
then processed through the airport’s baggage handling system to CATSA’s HBS
operations. Transport Canada has specified various configurations of equipment
and screening processes for HBS, depending on the volume of checked baggage
that passes through an airport, as well as space limitations.1042 A screening
process with up to five levels of in-line equipment, using advanced X-ray and
explosives detection technology, has been implemented.1043 Screening officers
review X-ray images from the explosives-detection equipment, looking for
potentially suspicious bags. If suspicions about an item cannot be resolved
following this process, the bag is opened and inspected by hand with the
passenger present.1044
At major airports where the five-level screening process is available, the system
can handle about 800 to 1,000 bags each hour. A certain percentage of baggage
in this system is cleared by the equipment, but images of bags that have not
been cleared are reviewed by one or more screening operators, who typically
have 15 to 20 seconds to make a decision. If baggage is not cleared within the
time limit, it is automatically sent to the next level of screening.1045 If, at any
stage, a screening officer suspects that an item dangerous to civil aviation has
been detected, the officer must call for emergency response.
While technology for screening hold baggage has greatly improved, it is still
limited by the skill of those doing the screening. The level of skill depends on
the initial and ongoing training received, as well as on the quality of oversight.
Attention to detail and constant vigilance are key in HBS.1046
If the baggage is cleared, it continues through the airport’s baggage handling
system and is delivered to the baggage make-up area.1047 Here, baggage
handlers record the check-in number of each piece, sort baggage according to
intended flights and transfer luggage to the appropriate aircraft.1048
Under the Air Carrier Security Measures, air carriers are responsible for passengerbaggage reconciliation to ensure that no baggage is placed on an aircraft if
1042 In some cases, equipment is in full view of passengers, while in other cases it is below or behind the
check-in area, out of sight. See Exhibit P-169, p. 65 of 202.
1043 Exhibit P-169, p. 66 of 202.
1044 Exhibit P-169, p. 66 of 202.
1045 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5156.
1046 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4966-4967; see also Section 3.7, which reviews
the challenges in recruiting and training qualified screening officers.
1047 Exhibit P-169, p. 67 of 202.
1048 Exhibit P-169, p. 67 of 202.
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the passenger does not board.1049 Passenger-baggage reconciliation can be
conducted manually or by electronic systems.1050 Whichever method is used, it
is the outcome that is important: reconciliation of passengers and baggage.1051
Today, automated systems at some airports electronically link boarding passes
with the baggage tags on checked baggage. When bags arrive in the baggage
make-up area, the baggage tag is scanned electronically, or in some cases, it is
manually recorded and matched with the container in which the bag will be
loaded for placement aboard the aircraft. If a passenger fails to board, the airline
departure control system will alert the departure gate staff, who then tell the
baggage handlers to remove the passenger’s baggage from the aircraft.1052
New technologies will facilitate passenger-baggage reconciliation. For example,
radio frequency identification (RFID) technology is being evaluated for use on
baggage tags. This technology allows baggage in the hold of an aircraft to be
identified quickly when its removal is required.1053
Although passenger-baggage reconciliation is mandatory and acknowledged
by Transport Canada to be “a very basic element of the security system,”1054 there
is evidence that air carriers do not always comply. In December 2006, facing
a Christmas rush, two air carriers – one Canadian-registered and the other
American-registered – violated reconciliation requirements. An administrative
monetary penalty of approximately $6,000 was imposed on each. Although
Transport Canada viewed this event as a demonstration of the effectiveness of
its enforcement program,1055 the penalty assigned to this very serious security
breach seems relatively insignificant. The absence of reconciliation procedures
in 1985 caused one of the greatest air terrorism incidents the world has seen.
In 1988, a breach of this same security regulation resulted in the bombing
of Pan Am Flight 103. There should be no exceptions to the rule requiring
passenger-baggage reconciliation on all domestic and international flights.
Any infringement should be treated in a manner that reflects the gravity of the
potential consequences. Full compliance must be the objective.
IATA noted that advances in reservation system technologies have made it
much easier for airlines to identify unaccompanied baggage and subject it to
additional screening. Airline departure control management systems can now
able automatically “red flag” baggage and reservation irregularities, whereas
this previously involved a time-consuming manual process.1056 Although air
carriers are in the best position to conduct passenger-baggage reconciliation
procedures, the Christmas 2006 incident suggests that there may still be
1049 Passenger-baggage reconciliation is required for all domestic and international flights in Canada. See
Exhibit P-157, p. 110 of 135.
1050 Exhibit P-157, p. 110 of 135.
1051 Testimony of Georgina Graham, vol. 66, October 25, 2007, p. 8234.
1052 Exhibit P-157, p. 58 of 135.
1053 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5273-5274.
1054 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4844.
1055 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4844.
1056 Exhibit P-258, p. 10.
�Chapter III: Civil Aviation Security in the Present Day
occasions where air carriers allow passenger convenience and issues of cost to
take priority over vital security measures. Consideration should be given to the
best method of achieving compliance with passenger-baggage reconciliation
measures.
3.5.3.2 Pre-Board Screening
Pre-board screening (PBS) consists of screening passengers and their carry-on
baggage. The CATSA Act gives CATSA the mandate to perform this function at
screening points, as required under Annex 17 of the Chicago Convention. The
focus is on detecting prohibited objects that could pose a threat to aviation.
These include weapons, improvised explosive devices and incendiaries.1057 As a
result of the terrorist threat uncovered in the United Kingdom in August 2006,
PBS was expanded to include liquids and gels.1058
All departing passengers must be screened before being permitted to enter the
airport departure lounge. Screening points for PBS have been established at
all of Canada’s 89 designated airports, and this involves a multi-stage process.
Boarding passes are checked by security screening officers, and all carry-on
baggage is scanned by X-ray equipment. If a suspect item is detected in a carryon bag, or if a bag is randomly selected, it may be subjected to a physical search
or to screening by explosives-detecting trace (EDT) equipment. EDT screening
is normally conducted by swabbing carry-on baggage and testing for traces of
dangerous chemicals. Passengers pass through a walk-through metal detector
(WTMD) archway and, if the alarm sounds or if a passenger is selected at random,
he or she may be further searched.1059
As with HBS, a screening officer who detects a suspected dangerous item calls
for emergency response. At some airports, doors or barriers at screening points
are automatically closed when an alarm is triggered, creating an isolation
zone, preventing passengers who have not yet been cleared from leaving the
area.1060
Some stakeholders have commented that new technologies for issuing boarding
passes through the Internet or from automated self-serve kiosks might increase
the risk of dangerous persons getting access to restricted areas and aircraft. Some
1057 Exhibit P-169, p. 63 of 202 and note 5.
1058 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4585.
1059 Exhibit P-169, p. 64 of 202. In the United States, trace explosives detection portals, commonly referred
to as “puffers,” have been used to screen passengers for possible contact with explosive substances.
The machines were deployed to airports in 2004 to screen randomly selected passengers, but did not
function well in the airport environment. The Transport Security Administration (TSA) has decided to
scrap the program because of the unreliability of the equipment when exposed to dirt and humidity
and resulting high maintenance costs. Since 2005, maintenance of the machines has cost over $6
million. See “TSA Scraps Airport Screening Program” The Associated Press (May 22, 2009), online: Today
Show <http://today.msnbc.msn.com/id/30875442> (accessed December 18, 2009) [“TSA Scraps
Airport Screening
Program”].
1060 Exhibit P-169, p. 64 of 202.
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have suggested that boarding pass confirmation or review of other air travel
documents should be included under CATSA’s mandate to ensure that this takes
place before passengers enter the departure area. Currently, air carriers perform
this function at baggage check-in (if the passenger checks a bag) and at the
departure gate.1061 The CATSA Advisory Panel noted that adding such duties to
CATSA’s PBS responsibilities might become necessary in the future, but would
require additional personnel and equipment and, to be effective, would require
further training for screening officers.1062
The CATSA Advisory Panel noted that new technologies will redefine what it
means to screen “persons” and “things.” Integrated scanning units are being
developed that can perform multiple functions, such as detecting metal objects
and explosives concealed on a passenger’s body, as well as explosives in shoes,
without the individual removing outer layers of clothing. This technology
may permit passengers to be screened without having to have their carry-on
baggage or personal belongings screened separately.1063
New technology may enhance the overall effectiveness of PBS, but privacy
concerns must also be considered. For example, Transport Canada has been
conducting a pilot project using backscatter X-ray and millimetre wave
technology as an added layer in passenger screening.1064 This technology
in effect allows looking under clothing to reveal hidden weapons or other
dangerous items.1065 In some instances, the images display a silhouette of the
body in a nearly nude state.1066 Transport Canada officials reported that these
images will likely be retained for reference in the event that a security breach
is subsequently detected,1067 but that the length of time such images would
remain in a databank remains unclear. Recognizing that there would need to
be specific limitations for retaining this information, officials indicated that
any retention period would likely be “only as long as is necessary”1068 to resolve
an incident. Transport Canada officials explained that this technology could
potentially be used as a primary screening tool, forming part of the multi-level
system of screening passengers.1069 The technology would not replace the
physical pat-down search, but would provide another tool in the “tool box” of
screening measures.1070
1061 Exhibit P-169, p. 65 of 202.
1062 Exhibit P-169, p. 65 of 202.
1063 Exhibit P-169, p. 163 of 202.
1064 Testimony of Jean Barrette, vol. 40, June 5, 2007, pp. 4929-4930. The media has reported that this bodyimaging technology is slated to replace the discontinued puffer machines as part of passenger
screening in the United States. Privacy concerns have been raised there as well. See “TSA Scraps
Airport Screening Program.”
1065 Exhibit P-278, Tab 6, p. 3.
1066 Testimony of Jean Barrette, vol. 40, June 5, 2007, pp. 4927-4928; see also Testimony of Nick Cartwright,
vol. 42, June 13, 2007, pp. 5134-5135.
1067 Testimony of Jean Barrette, vol. 40, June 5, 2007, pp. 4930-4931.
1068 Testimony of Brion Brandt, vol. 40, June 5, 2007, p. 4931.
1069 Testimony of Jean Barrette, vol. 40, June 5, 2007, p. 4929.
1070 Testimony of Jean Barrette, vol. 40, June 5, 2007, p. 4932.
�Chapter III: Civil Aviation Security in the Present Day
The Office of the Privacy Commissioner of Canada (OPC) reported that some
people find the technology more intrusive than pat-down searches because
of the nature of the images. Others consider it less intrusive than the physical
contact required in a pat-down search. The OPC recommended that, should
these technologies be introduced in Canada, they be used as selectively as
possible and that travellers have the option of a physical search.1071 Transport
Canada officials noted that passengers always provide their consent to be
screened under the traditional “no search, no fly” principle.1072 In the face of
increasingly intrusive technology, however, this once generally accepted rule
may now raise a major dilemma for passengers. An appropriate balance must
be struck between the security level being sought and the privacy rights of
individuals.
Privacy concerns have also been raised about a pilot project conducted at
Calgary Airport. There, one air carrier provided passengers with boarding passes
containing a scannable bar code. One purpose of the bar code is to detect forged
or fake boarding passes, but personal information is also captured, such as the
passenger’s name and flight number, and this is retained until the flight departs.
CATSA does not at present collect personal information about passengers and
does not know the identity of individuals in an airport. This would change if
a decision were made to implement the pilot project across the board. The
OPC reported that CATSA has provided its assurance that any such information
would be used only in the event of a security incident. The OPC acknowledged
that this program could be a helpful security measure if forged or fake boarding
passes pose a security risk. However, the OPC questioned the need for collecting
personal information from boarding passes.1073
3.5.3.2.1 Identity Screening Initiatives
The Calgary pilot project appears to be part of a growing trend towards “identity
screening.” While PBS has traditionally focused on preventing prohibited objects
from being brought onto aircraft, many stakeholders strongly criticized what
they consider to be a restricted view of security screening. Many advocated a
shift in focus to an individual’s trustworthiness and intent, which, it was argued,
would result in better use of limited resources and more appropriately reflect a
risk-based decision-making1074 approach to security:
The current aviation screening system is built upon a seriously
flawed assumption – that everyone poses a potential threat
to aviation security. The truth is that the vast majority of
individuals…do not pose any kind of threat….A very small
fraction of all passengers actually pose some degree of threat,
1071 Exhibit P-278, Tab 6, p. 3.
1072 Testimony of Jean Barrette, vol. 40, June 5, 2007, p. 4928.
1073 Exhibit P-278, Tab 6, p. 4.
1074 See Section 3.3, which discusses the concept of risk-based decision-making in civil aviation security in
detail.
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but our screening resources are greatly diluted by giving the
same degree of physical scrutiny to [every passenger].
…
Another erroneous assumption is that an individual does not
pose a threat once they have been successfully screened for
objects that could be used as weapons. Such a conclusion for
much of the general population may be warranted, but it does
not apply to a fanatically dedicated and highly trained terrorist.
Physical screening by itself is incapable of keeping terrorists
off…airplanes, because it is not designed to identify them.1075
It was contended that an appropriately layered approach to security screening
requires examining passengers for hostile intent, while at the same time
preventing dangerous objects being introduced on aircraft. The success of
such “human-centred screening” relies on the identification of trustworthy
individuals and then removing or reducing the scrutiny they receive so that
efforts can concentrate on “unknown” or “suspicious” individuals.1076 According
to the Airline Pilots Association, International (ALPA), which represents over
60,000 pilots and 39 airlines in North America:
Unless and until the system becomes more human-centred,
rather than weapon-centred, we will remain vulnerable
to potential hijackings and other aircraft attacks. It is an
unfortunate reality that trained terrorists do not need weapons
to perpetrate crimes aboard aircraft.1077
Screening that is based on identity is troubling from a privacy perspective,
however, because of the potential it creates for increased monitoring and
surveillance:
As more agencies collect more personal information about
our travelling patterns it will become increasingly easy to
track our movements. In addition, identity screening places
increased emphasis on the integrity of the authentication
documents, potentially leading to the need for greater and
more intrusive authentication procedures or for a universal
form of identification such as a national identity card. In other
words, identity screening can lead to other privacy invasive
measures.1078
1075 Exhibit P-252, Tab 1, pp. 5-6.
1076 Exhibit P-252, Tab 1, p. 6.
1077 Exhibit P-252, Tab 1, p. 4.
1078 Exhibit P-278, Tab 6, p. 4.
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In addition, where identity is being scrutinized, the potential to infringe
constitutionally protected rights exists. Following the September 11th terrorist
attacks, several security screening initiatives which address personal identity
have either been contemplated or put in place. Currently, CATSA does not
conduct any type of identity screening, nor is this part of CATSA’s mandate,
but stakeholders have named CATSA as an appropriate authority should such
screening become a regular component of PBS.1079
Advance Passenger Information and Passenger Name Record
The Advance Passenger Information and Passenger Name Record (API/PNR)
Program involves the collection, by government, of personal information relating
to all air travellers before their arrival in Canada. The purpose of the Program is
to identify passengers or crew members who may pose a risk to security.1080
API consists of information found, for the most part, in a passport or an equivalent
travel document, including name, date of birth, gender and citizenship, as well
as the passport, visa or alien resident number.1081 PNR data is far more detailed
and includes an array of personal information about passengers that air carriers
collect and store in their reservation systems for their own business purposes.1082
The Canada Border Services Agency (CBSA) has collected API data since October
2002 and PNR data since July 2003,1083 as a result of amendments to the Customs
Act1084 and the Immigration and Refugee Protection Act.1085 The CBSA retains this
information for 3.5 years.1086
In 2004, the enactment of the Public Safety Act, 20021087 brought about
amendments to the Aeronautics Act. These allowed Transport Canada to require
API/PNR data from air carriers in advance of an aircraft’s arrival in Canada.1088
The amendments specified up to 34 data elements that Transport Canada can
request from airlines,1089 provided that this information has been collected by air
carriers in their reservation systems.1090 The data elements include information
such as the phone number and address of the ticket holder and the travel
agency that issued the ticket, the names of the travel agency and the travel
agent that issued the ticket, the method of payment, whether the ticket was
paid for by someone other than the ticket holder, the number of checked bags
and corresponding baggage tag numbers, meal preferences, class of service,
1079 See, for example, Exhibit P-252, Tab 1, p. 7.
1080 Exhibit P-278, Tab 6, p. 1.
1081 Exhibit P-278, Tab 6, p. 1; Testimony of Brion Brandt, vol. 40, June 5, 2007, pp. 4914, 4918.
1082 Testimony of Brion Brandt, vol. 40, June 5, 2007, p. 4914.
1083 Exhibit P-278, Tab 6, p. 1.
1084 R.S.C. 1985, c. 1 (2nd Supp.), s. 107.1.
1085 S.C. 2001, c. 27, s. 148(1).
1086 Exhibit P-278, Tab 6, p. 1.
1087 S.C. 2004, c. 15.
1088 Aeronautics Act, R.S.C. 1985, c. A-2, s. 4.81 [Aeronautics Act].
1089 See Aeronautics Act Schedule for a list of API/PNR data that may be collected.
1090 Testimony of Brion Brandt, vol. 40, June 5, 2007, p. 4919.
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itineraries and dates such as the dates of booking, travel and ticket issuance.1091
Air carriers are required to provide this information electronically before the
aircraft arrives in Canada.
Concerns were raised by the OPC when the API/PNR Program was first
proposed. The OPC was particularly troubled by the creation of a database
containing extensive information on the foreign travel activities of Canadian
residents. Under the information-sharing provisions of the Customs Act, this
information would have been available for a virtually unlimited range of
governmental purposes, including law enforcement. Under the Aeronautics
Act, the sharing of information is more limited. API/PNR data obtained from air
carriers may be disclosed to other Transport Canada officials1092 and to other
specified government departments.1093 Disclosure must be for the purposes of
transportation security, defined as follows:
“…[T]ransportation security” means the protection of any
means of transportation or of any transportation infrastructure,
including related equipment, from any actual or attempted
action that could cause, or result in,
(a) loss of life or personal injury;
(b) substantial damage to or destruction of a
means of transportation or any transportation
infrastructure; or
(c) interference with any means of transportation
or with any transportation infrastructure that is
likely to result in loss of life or personal injury,
or substantial damage to or destruction of any
means of transportation or any transportation
infrastructure.1094
The retention period following any disclosure of API/PNR data is seven days.1095
The OPC reported that some of its concerns were addressed by the short
retention period and by limits on the purposes for which the information
1091 Aeronautics Act Schedule.
1092 Aeronautics Act, s. 4.81(2).
1093 API/PNR data as outlined in the Schedule to the Aeronautics Act may be disclosed only to the Minister
of Citizenship and Immigration and other persons in that department, the Minister of Public Safety and
Emergency Preparedness and persons in the CBSA, the chief executive officer of CATSA and other
persons at CATSA, the Commissioner of the RCMP and other designated persons, the Director of CSIS
and other designated persons for the purposes of transportation security. See Aeronautics Act, ss.
4.81(3), 4.81(4) and 4.82(1)-(12).
1094 Aeronautics Act, s. 4.81(0.1).
1095 Aeronautics Act, ss. 4.81(6)-(8), 4.82(14).
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can be used.1096 The OPC nevertheless maintained that “…the collection and
retention of a significant amount of personal information about all air travellers
is inherently troubling.”1097
There is less control over information that is shared beyond Canada’s borders.
In late 2001, Parliament enacted Bill C-44, An Act to amend the Aeronautics Act,
which authorized Canadian air carriers to divulge passenger information to the
customs and immigration authorities of foreign states. Information can therefore
be reciprocally shared with other countries. Under the Canada-US Smart Border
Declaration, the two countries share API/PNR information,1098 particularly with
respect to high-risk travellers identified through a jointly-developed riskscoring mechanism.1099 An automated process for sharing this information was
implemented on February 6, 2004, on a “need to know” basis.1100
Trusted Traveller Programs
A number of stakeholders believe that Canada should move expeditiously
toward implementing registered or trusted traveller programs. These programs
allow passengers whose trustworthiness has been established by criminal and
security background checks and whose identity can be verified with biometrics
to be screened electronically at separate checkpoints, facilitating cross-border
travel.1101 These “pre-cleared” individuals can then cross the border more quickly
than others.1102
Such programs already exist. CANPASS Air is a CBSA program that facilitates
the entry into Canada of pre-approved, low-risk travellers. These travellers clear
customs using their iris as a biometric identifier. The Government of Canada
contends that this program enables CBSA officers to concentrate on unknown
or high-risk travellers. The program is available to citizens and permanent
residents of Canada, as well as to citizens and resident aliens of the United States
who have resided in either or both countries for the previous three consecutive
years.1103 NEXUS is a broadly similar program. It is a joint Canada-US program
open to citizens and selected non-citizen residents of both countries. It involves
digital imaging. NEXUS facilitates entry into both countries, whereas CANPASS
is only for entry into Canada. Under both programs, extensive personal data
is shared during the application process, and background security checks are
conducted.1104
1096 Exhibit P-278, Tab 6, p. 2.
1097 Exhibit P-278, Tab 6, p. 19.
1098 Exhibit P-278, Tab 26, p. 5, item 8.
1099 Exhibit P-278, Tab 6, p. 2.
1100 Exhibit P-278, Tab 6, p. 2.
1101 Exhibit P-252, Tab 1, p. 7.
1102 Testimony of Lindsay Scotton, vol. 72, November 6, 2007, p. 9062.
1103 Exhibit P-278, Tab 23, p. 1.
1104 Exhibit P-278, Tab 6, pp. 2-3.
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Where personal information is exchanged for a benefit, privacy concerns usually
surround the use, collection and safeguarding of this information.1105 According
to the OPC, the fact that the disclosure of information involved in these
programs is voluntary somewhat mitigates the privacy concerns, but caution
is still warranted. As these programs expand, a “tipping point”1106 is eventually
reached whereby people become acclimatized to program requirements and
a “new normal”1107 is created. It becomes normal to expect that in order to
cross the border in a timely manner, significant personal information must be
divulged and that the information may be stored in a database maintained by
a foreign country. As increasingly intrusive security measures become more
acceptable, a reduced expectation of privacy results.1108 This calls into question
the “voluntary” nature of such programs, since disclosure becomes the general
expectation of normal travel. The OPC also expressed concern that individuals
enrolling in these programs may not be fully aware of the risks of providing
information that may be retained in a database in another country – in this case,
the United States.
Behavioural Analysis
A number of stakeholders called for behavioural analysis as an additional preboard screening measure.1109 Such a measure accepts the notion that monitoring
passengers for atypical or suspicious behavioural patterns or anomalous
behavioural attributes can identify those who may present a risk and who
may therefore require more rigorous questioning.1110 Supporters argued that
the additional questioning may make it possible to uncover a terrorist.1111 This
method of screening seeks to observe passenger behaviour displayed in the
airport environment1112 or with respect to ticket purchasing. Any assessment
or action taken would be based purely on the direct observations of passenger
interactions in these situations.1113 Proponents contended that behavioural
analysis would constitute an added element in the multi-layered approach
essential to security.1114
The events which led to the Air India Flight 182 bombing lends some support
to the use of such screening tools, since atypical passenger behaviour was a
feature of various interactions with Canadian Pacific Airlines (CP Air). The names
on the air tickets were changed just before their purchase; a return ticket was
switched to a one-way booking; the tickets were purchased within a few days
of the flights; two international tickets were paid for entirely in cash; demands
1105 Testimony of Lindsay Scotton, vol. 72, November 6, 2007, pp. 9062-9063.
1106 Testimony of Carman Baggaley, vol. 72, November 6, 2007, p. 9064.
1107 Testimony of Carman Baggaley, vol. 72, November 6, 2007, p. 9063.
1108 Testimony of Carman Baggaley, vol. 72, November 6, 2007, p. 9063.
1109 See, for example, Exhibit P-252, Tab 1, p. 7.
1110 Exhibit P-169, p. 163 of 202; see also Exhibit P-252, p. 7 and Testimony of Reg Whitaker, vol. 38, June 1,
2007, p. 4595.
1111 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4595.
1112 Testimony of Brion Brandt, vol. 40, June 5, 2007, p. 4892.
1113 Testimony of Brion Brandt, vol. 40, June 5, 2007, p. 4892.
1114 Exhibit P-252, Tab 1, p. 6.
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were made to interline a bag for a flight for which there was no reservation; and
when the request to interline was met with resistance, the passenger checking
his baggage displayed belligerent behaviour. On June 22, 1985, the passenger
known as “M. Singh” appeared at the CP Air check-in counter in Vancouver and
loudly insisted that his baggage be interlined to Air India Flight 182, even though
the flight from Toronto was overbooked and he did not have a reservation. He
was aggressive and bullying towards the ticket agent, who initially refused his
request but ultimately relented, contrary to standard industry practice and to
CP Air’s own security plan.1115 According to Dr. Reg Whitaker, Chair of the CATSA
Advisory Panel, the behaviour exhibited by “M. Singh” in 1985 demonstrated
a “…kind of textbook example of something very, very, very wrong with this
individual.”1116 Had suspicious behaviour been actively monitored in 1985, it is
possible that the passenger would have been flagged for greater scrutiny. The
decision to interline his baggage in violation of normal security procedures
might have been reconsidered, even without knowledge of the heightened
threat facing Air India.
On the other hand, the point was made that already proven security measures
– passenger-baggage reconciliation and hold bag screening – could well
have prevented the bomb from being placed aboard Flight 182.1117 Abnormal
passenger behaviour would have been irrelevant. However, a layered approach
to security intends measures to overlap. Redundancies provide the most robust
defence against air terrorism so that, if one layer fails, another is in place to
address the same threat.1118 Had behavioural analysis been applied in 1985,
the bombing might have been prevented even without passenger-baggage
reconciliation:
…I think the point here and why Mr. Singh’s “case” is such a
kind of a paradigm is that it also illustrates how passenger
profiling could certainly have singled out such an individual…
and having singled [him] out, given all the inappropriate and
anomalous aspects of this passenger and then subject[ing
him] to questioning…would have revealed very quickly, I
think, that this was a seriously false…proposition that we were
dealing with and therefore they would have gone to the bag,
et cetera, et cetera.
So it would be a layer of security that if everything works
properly, it’s certainly a good addition to the kind of security
we have which is presently directed toward discovering
dangerous objects, which is not perfect.1119
1115 Exhibit P-436, pp. 17-18, 40.
1116 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4599.
1117 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4610; see also Testimony of David Lyon, vol. 40, June
5, 2007, p. 4897.
1118 Exhibit P-252, Tab 1, p. 6.
1119 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4610.
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In fact, some of the troubling passenger behaviour exhibited by M. Singh in
June 1985 is now addressed by surveillance of activities that generally take
place before a passenger’s arrival at the airport. Ticket purchasing patterns are
monitored by the airline industry using tools that were not available 20 years
ago. Improved technology has enabled airline reservation systems to flag
suspicious transactions and travel patterns, which are then subject to further
investigation.1120
Air Canada currently monitors its ticketing system, whether web bookings or
direct interactions with its call centres, for unusual transactions and purchasing
behaviours. The system has been designed to flag transactions in which certain
“security indicators” arise. These include factors such as payment in cash by third
parties, one-way bookings and certain travel destinations.1121 Although the main
concern is fraud and similar criminal activity, the same indicators also serve to
identify possible threats to aviation security.1122 Call centre agents have been
trained to be attentive to such indicators and to refer any unusual behaviour to
their security department.1123
Monitoring ticket purchasing patterns addresses some behavioural issues
related to the Air India bombing. It does not deal with the contention that direct
observation of passenger behaviour prior to boarding might uncover hostile
intent and prevent an aviation security incident. Certainly, the terrorist attacks
of September 11th1124 may argue in favour of behavioural analysis. However,
a number of concerns were raised, the most notable being the difficulty in
constructing an effective and accurate tool that respects individual rights and
is not prone to abuse.1125 Other concerns included: the need for additional
resources; the competencies and training required; the choice of personnel
to conduct such screening; and the need to establish clear guidelines and
processes.1126 Experts and Transport Canada officials alike expressed reservations
about proceeding with any such measure without carefully considering all its
implications and thoroughly examining the experience in foreign jurisdictions.1127
Brion Brandt, Director of Security Policy at Transport Canada, acknowledged
that, although in theory there is merit to observing abnormal behaviour in the
airport environment, in practice it is fraught with “thorny difficulties.”1128
Despite these misgivings, a behavioural analysis program has already been
established in Canada to monitor passengers. Under the Canadian Air Carrier
Protective Program (CACPP), armed Aircraft Protective Officers (APOs) providing
covert security on selected flights use behavioural analysis when observing
1120 Exhibit P-258, Tab 1, p. 5.
1121 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5243-5244.
1122 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5243.
1123 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5243.
1124 Exhibit P-35, p. 42.
1125 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4601.
1126 Exhibit P-169, pp. 164-165 of 202; see also Testimony of Brion Brandt, vol. 40, June 5, 2007, p. 4892.
1127 Exhibit P-169, p. 65 of 202; see also Testimony of Brion Brandt, vol. 40, June 5, 2007, p. 4892 and
Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4822.
1128 Testimony of Brion Brandt, vol. 40, June 5, 2007, p. 4892.
�Chapter III: Civil Aviation Security in the Present Day
passengers in airports and on aircraft.1129 Although specific details of the
techniques could not be divulged, the Commission was informed that APOs
are trained to observe human behaviour and to recognize atypical reactions
to various stimuli, including unexpected changes in the environment.1130 Their
behavioural analysis training was designed to take into account the requirements
of APO work, such as the need to maintain a covert presence. The Commission
was informed that there are a vast number of training programs for behavioural
analysis and that methods must be tailored to the specific role.1131 As such, the
APO program in behavioural analysis might not suit screening officers. APOs
perform a different role and operate under different circumstances. They do
not function in a PBS capacity; their objective is to intervene in the event of
impending grievous bodily harm or a threat to the integrity of an aircraft.1132
APOs are also not subject to the same high traffic volumes and time constraints
as CATSA screeners.1133
The Officer-in-Charge of the CACPP, RCMP Superintendent Alphonse MacNeil,
was doubtful that the behavioural analysis program used for APOs could simply
be applied to CATSA’s passenger screening operations. He suggested, however,
that “…there may be another behavioural recognition program that would be
of value….”1134
Other countries have employed behavioural observation techniques as a
passenger screening tool. Israel, the pioneer in behavioural analysis models,
has used such techniques extensively and effectively for some time.1135 The
use of behavioural analysis by Israel’s national airline, El Al, to avert attempted
sabotage is often cited:
We know of one particular case of an aircraft that was going to
depart London Heathrow for Tel Aviv…[but] because an Israeli
security officer happened to be doing her job by profiling the
behaviour of a passenger, they managed to find an explosive
device, [which] prevent[ed] that aircraft from taking off and
saved hundreds of lives.1136
In Israel, trained front line personnel make initial judgments about a passenger’s
risk using behavioural observations. This results in the triage of passengers
1129 Known as Aircraft Protective Officers (APOs), these are specially trained RCMP officers whose function
is to provide armed air marshal services. See Testimony of Alphonse MacNeil, vol. 65, October 24, 2007,
pp. 8067, 8073, 8087.
1130 The appearance of a uniformed officer, for example, “is a change in the environment that could create
some concern for someone…if they’re doing something they shouldn’t be doing”: Testimony of
Alphonse MacNeil, vol. 65, October 24, 2007, p. 8075.
1131 Testimony of Alphonse MacNeil and Greg Browning, vol. 65, October 24, 2007, p. 8086.
1132 Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8079.
1133 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8086.
1134 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8086.
1135 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4595.
1136 Testimony of Craig Hall, vol. 64, October 23, 2007, p. 7967.
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into low-, medium- and high-risk streams. Aspects of this approach are being
adopted at some airports in Europe. In the United States, Boston Logan
Airport has pioneered a similar program that streams passengers according to
estimated risk, and the Transportation Security Administration (TSA) has piloted
the Screening of Passengers by Observation Techniques (SPOT) program that
may be applied at a wider range of US airports.1137
However, one of the most significant concerns raised about using this approach
in Canada was the discretion that would invariably be given to front line
personnel to form judgments about passengers, and the profound impact
that this could have on them.1138 Jean Barrette, Transport Canada’s Director
of Security Operations at the time of the hearings, noted that behavioural
assessment techniques are meant to employ objective evaluative criteria, but
cautioned that “a fine line”1139 exists between behavioural criteria and criteria
that amount to racial profiling.1140 The CATSA Advisory Panel also had “doubts
about the science”1141 and was concerned, in particular, about the potential
relationship between behavioural profiling and racial profiling.1142
Given the nature and history of aviation terrorism, behavioural analysis as a
passenger screening tool could properly include criteria related to religion,
nationality or ethnicity.1143 In 1985, for example, taking into consideration the
overall profile of “M. Singh,” including the ticketing purchase patterns, the
destinations and his highly agitated behaviour at the ticket counter, had he
also been “…somebody wearing a turban and appear[ing] to be Sikh at a time
when Sikh extremism was the issue…[this] would clearly have been a factor”1144
if behavioural analysis was being used at the time. Similarly, aviation currently
faces a threat from Islamist extremists “…and, therefore, certain kinds of people
from certain parts of the world with certain religious affiliation[s] are more likely
to pose a greater risk…that’s certainly true.”1145 The CATSA Advisory Panel noted
that with a properly implemented approach, racial, religious or ethnic “profiling”
is neither a necessary nor an inevitable outcome.1146 In theory, any such
screening model would require highly trained personnel with the capability to
analyze all behavioural cues without inflating the importance of racial, religious
or ethnic dimensions. Care would be needed to avoid using such indicators in
the prejudicial exercise of authority.1147 Whitaker noted that the difficulty lies in
the practical application of the analysis:
1137 Exhibit P-169, p. 164 of 202.
1138 Exhibit P-169, p. 164 of 202.
1139 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4822.
1140 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4822.
1141 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4597.
1142 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4597.
1143 Exhibit P-169, p. 164 of 202.
1144 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4600.
1145 Testimony of Reg Whitaker, vol. 38, June 1, 2007, pp. 4597-4598.
1146 Exhibit P-169, p. 164 of 202..
1147 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4600.
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…[U]nfortunately, it I think proves difficult in practice to
contain that within reasonable bounds. I think one of the
things we find is that in practice, those on the front line don’t
necessarily maintain the appropriate balance and their own
prejudices may in fact intrude into the practice of behavioural
[analysis].1148
The CATSA Advisory Panel noted that the threat environment in some other
countries, such as Israel, greatly exceeds anything experienced in Canada.
Consequently, there may be more widespread acceptance there of security
measures than in Canada. Israel, for example, looks at a number of behavioural
aspects, including ticket purchasing patterns, itineraries and particular
circumstances, which can include nationality, ethnicity and religion.1149
Certainly, any true form of racial, religious or ethnic profiling is “…generally
seen as inappropriate, if not illegitimate, in Canada.”1150 Both public perceptions
and civil liberties issues,1151 including the potential for offending the Charter,1152
would be need to be seriously considered.
Even Israel, with a behavioural analysis system that has been successfully
exported to other jurisdictions, has recognized the potential for violating the
rights of individuals and is re-evaluating its system:
…[T]he appropriate authorities have recognized, that
complaints…[have] been made for many years by human
rights organizations and by Arab and Palestinian and Muslim
organizations in Israel that in fact this system operates in a way
[that] differentially and prejudicially…often subjects Arab and
Muslim passengers to humiliating and degrading searches….
[This] has been in fact recognised and consequently they’re
trying to adjust their system.1153
Whitaker stated that any focus in Canada on criteria such as religion and race
would be a “colossal waste of resources,”1154 even apart from concerns over the
prejudicial effect of such a focus. He noted that, although the overwhelming
concern following the events of September 11th was Islamist extremism, only a
very “tiny minority” of the Islamic communities in Canada “…in any way, shape
or form pose a threat of being terrorists, of being extremists.”1155 A program that
focused on these criteria would not show effective risk management:
1148 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4598.
1149 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4595.
1150 Exhibit P-169, p. 164 of 202.
1151 Exhibit P-169, p. 164 of 202.
1152 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4597.
1153 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4598.
1154 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4601.
1155 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4601.
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And consequently, simply identifying people for special
attention on the basis of their religion or their ethnicity,
would be an enormous diversion of the kind of attention that
[could]…be directed [to] a number of other more pertinent
criteria.1156
While such criteria as religion and ethnicity might be appropriately considered
among many factors, the main concern remains the danger of sliding into a
system of racial or religious profiling. Maintaining the appropriate balance is
difficult.1157
CACPP officials advised that the behavioural analysis methods used by APOs do
not include indicators such as race, cultural background or appearance.1158 They
stated that APOs are specifically trained to avoid unintentional racial profiling.1159
They rely on assessing human responses, which, if considered abnormal, might
indicate that an individual’s circumstances may be suspect1160:
…[T]he observations are for behaviours out of the norm and
you cannot focus on…race or dress. You focus on the human
reaction to changes in the environment.1161
Yet even the neutrality of purported “objective” criteria can be questioned. A
2006 New York Times article described criteria used by US Transportation Security
Administration (TSA) behaviour detection officers in the United States.1162 The
article reported that TSA screening officers were being trained to recognize facial
expressions that denote emotions such as fear, which could indicate a cause
for concern: “…[F]ear is manifested by eyebrows raised and drawn together, a
raised upper eyelid and lips drawn back toward the ears.”1163 Such observations
would then be tabulated using a point system based on facial reactions.1164 In
addition to facial expressions, other potentially useful criteria appear to include
body and eye movements, changes in vocal pitch and other indicators of stress
and disorientation.1165
Counsel for the Air India victims’ families questioned the objectivity of allegedly
unbiased criteria, noting that a person’s reaction to changes in the environment
might be affected by their background. A reaction might be perceived as
“unusual”only because it represents a cultural expression with which the program
is unfamiliar. As well, emotions such as fear might be based on an individual’s
1156 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4601.
1157 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4601.
1158 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8089.
1159 Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8089.
1160 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8089.
1161 Testimony of Greg Browning, vol. 65, October 24, 2007, p. 8089.
1162 Exhibit P-253.
1163 Exhibit P-253, pp. 3-4 of 5.
1164 Exhibit P-253, p. 4 of 5.
1165 According to the article, the criteria were based on a state police program that had been used at
Boston’s Logan International Airport to identify drug couriers. See Exhibit P-253, p. 2 of 5.
�Chapter III: Civil Aviation Security in the Present Day
past experience – for example, with persons in authority – and not predict the
commission of harm.1166 The potential for misinterpreting behavioural cues
might unintentionally lead to targeting certain groups.
MacNeil testified that airports are international environments and that APOs
need to be aware of cultural sensitivities. Without such awareness, they would
not be effective. He acknowledged that it is not possible to receive instruction
on every culture, but emphasized the holistic approach taken by the CACPP.
APOs are trained to assess the overall picture, to look at cumulative factors and
not to evaluate any one reaction in isolation. APOs are aware that emotions such
as fear may have many causes, and are trained not to overreact so that they can
maintain, to the extent possible, their covert positions.1167
Dr. David Lyon, Research Chair in Sociology and Director of the Surveillance
Project at Queen’s University, raised another concern. He advised caution when
considering behavioural monitoring that does not deal with a concrete “first
order of behaviour,” such as a criminal record. Direct observations of human
behaviour do not have the strength of “a written record of past activities”1168 and
so deal with probabilities rather than the certainties provided by something
like a criminal record. In behavioural analysis, attempts are made to link certain
behaviours with possible malign intent. The aim is to prevent something from
happening.1169 Lyon saw the use of behavioural analysis for passenger assessment
as an example of the application of the precautionary principle, in which it is
“…believed that we must act on relatively little evidence.”1170 He acknowledged
that certain kinds of risks may warrant such an approach, but warned that “…we
need to take tremendous care when we’re talking about mere probabilities.”1171
The Commission heard little evidence about the accuracy or effectiveness of
behavioural analysis. The New York Times reported that during a nine-month
period, behaviour detection officers at Dulles International Airport in Virginia
referred several hundred people for further screening out of about seven
million departing passengers. Of those referred for further screening, less than
ten faced legal charges or follow-up, and, even then, largely for immigration
matters, outstanding warrants or forged documents.1172
The CATSA Advisory Panel noted that behavioural analysis can involve a mix of
technology and human judgment. The Panel was skeptical about developing
technologies and their ability to detect malicious intent. These technologies
include voice analysis, which measures stress levels, and physiological response
1166 See the line of questioning put to Alphonse MacNeil and Greg Browning by Raj Anand, counsel for the
Family Interests Party: Transcripts, vol. 65, October 24, 2007, pp. 8089-8091.
1167 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8091.
1168 Testimony of David Lyon, vol. 40, June 5, 2007, p. 4896.
1169 Testimony of David Lyon, vol. 40, June 5, 2007, p. 4895.
1170 Testimony of David Lyon, vol. 40, June 5, 2007, p. 4858.
1171 Testimony of David Lyon, vol. 40, June 5, 2007, p. 4896.
1172 Exhibit P-253, p. 3 of 5.
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detectors, which function like polygraph tests.1173 These technologies are based
on the principle that fear can be measured by psycho-physiological parameters.
The Panel thought it unlikely that any of these technologies would be available
in the near future.1174 Even if they were to prove practicable, other concerns
would no doubt arise about the indicators they claim to detect. For example, the
identification of stress could have many innocent explanations, such as stress
caused by air travel or the simple fact of being tested for stress indicators. In
short, the Panel was not persuaded by the evidence about these technologies
and did not recommend them for Canadian airports.1175
What is left in behavioural analysis is the exercise of human judgment, which
would require “an extensive amount of training”1176:
It is one thing to look at the criteria, but it is another thing to
train the individuals to recognize the behavioural reaction
or traits of an individual. And that is not learned over the
course of a two-week training course. This is a combination of
theoretical training as well as on-the-job kind of training with
proper supervision.1177
Whitaker agreed that any kind of behavioural analysis program in Canada would
require highly trained personnel capable of recognizing objective behavioural
traits and patterns. As discussed, utmost care and vigilance would be required
to avoid inappropriate profiling.1178 However, experts agreed that certain
atypical behaviours could properly be used for analysis in Canada, such as the
anomalous purchasing patterns and behavioural interactions seen in Vancouver
in June 1985.1179 It was also recommended that training should include the
proper questioning of individuals who have been flagged for greater scrutiny,
which also requires behavioural analysis skills.1180
Concerns were also expressed about the practicality of behavioural analysis
programs in Canada. While this screening process has been successfully used
at Israel’s Ben Gurion International Airport, its volume of passenger traffic is
relatively low – only about 30 per cent of the volume of passenger traffic at
1173 The Panel also reported that claims have been made on behalf of remote sensing technologies,
such as electromagnetic neurological imaging, but which “sound more like science fiction than
realizable technology”: Exhibit P-169, p. 163 of 202.
1174 The US TSA has begun testing of an Israeli-designed Suspect Detection System (SDS), which consists
of a booth in which a three-minute polygraph is administered through a voice recording in order
to discern possible criminal intent. If specific parameters are triggered, a further face-to-face
examination is conducted. See Exhibit P-169, p. 163 of 202.
1175 Exhibit P-169, pp. 163-164 of 202.
1176 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4822.
1177 Testimony of Jean Barrette, vol. 39, June 4, 2007, pp. 4822-4823.
1178 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4600.
1179 Testimony of David Lyon, vol. 40, June 5, 2007, p. 4897; see also Testimony of Reg Whitaker, vol. 38,
June 1, 2007, pp. 4599-4600.
1180 Exhibit P-253, p. 3 of 5.
�Chapter III: Civil Aviation Security in the Present Day
Pearson International Airport in Toronto.1181 Incorporating a full behavioural
analysis program at large Canadian airports might require redesigning them.
Ben Gurion International Airport, on the other hand, was designed with
multiple layers of security in mind. Introducing similar designs in Canada would
be costly, and the behaviour analysis program would likely greatly increase the
time passengers spend between arriving at the airport and departing on their
flights.
Jim Marriott, Director of Transport Canada’s Aviation Security Regulatory Review
at the time of the Commission hearings, testified that any incorporation of
behavioural analysis as a screening tool in Canada required careful evaluation:
…[I]t’s a very complex issue. It’s complex for policy and legal
reasons, and the possible introduction of a behavioural
analysis component into the Aviation Security Program is one
that we are in the very early days of studying. We are certainly
very interested in the experiences that other aviation security
authorities have with this approach to aviation security
as a possible additional layer that can be brought to the
enhancement of security.
But consistent with our overall approach to looking at
future enhancements to aviation security, we believe there’s
a delicate balance that needs to be maintained between
effectiveness of security, the efficiency of air transportation
and the continuing respect for Canadian values, which include
privacy and which include the provisions of our Charter.1182
Barrette testified that visits to other states where such programs have been
established showed both advantages and disadvantages. The program at
Boston’s Logan International Airport was examined to assess how it could be
applied in Canada.1183 He stated that that Transport Canada was adopting a
wait-and-see approach:
…[I]t is on our radar scope, more on the outside of it, to make
sure that we assess that properly. I’m a firm believer that if
we look at the present security controls that we have in place
right now to do right on-the-ground security, let’s wait a little
bit of time to see the effect of the added value of [Transport
Canada’s] Passenger Protect Program as well.
There’s a very, very important added value to our security
program before we launch head first or knee-jerk react in
implementing right away a behavioural assessment system
1181 Exhibit P-169, p. 165 of 202.
1182 Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4821.
1183 Testimony of Jean Barrette, vol. 39, June 4, 2007, pp. 4823-4824.
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and adding that as an additional responsibility to the preboard screener. [This is] an item not to be ignored, but one that
requires reflection, careful analysis and monitoring on how this
is being implemented around the world….1184
Barrette acknowledged the need to respect Canadian rights and values, and
the real concern about racial profiling. He stated that any additional layers in
aviation security must have a positive impact.1185
The current regulatory framework does not allow CATSA to screen individuals
on the basis of behaviour or identity. However, the CATSA Advisory Panel stated
that the CATSA Act is broad enough for CATSA to do this if required.1186 The Panel
expressed reservations about recommending behavioural analysis because
of concerns about the potential infringement of Charter rights, the resources
available, the rigorous training required and the space requirements at
airports.1187 Although Israel was cited as a successful example, its circumstances
were unique and its geopolitical context was quite different from that of Canada.
Such screening in Israel required rigorous, specialized training. The degree
of discretion assigned to front line workers in making such judgments could
have a serious impact on those targeted. The benefits must outweigh the risks,
and in some countries where there were higher baseline threat environments,
for example, Israel, such measures may be more acceptable to the public.1188
Marriott stated that the overall assessment of the CATSA Advisory Panel about
the potential benefits and challenges of behavioural analysis for Canada was
“on the mark.”1189
The Commission notes that funding for a new “passenger assessment system”
was announced in the 2009 Budget.1190 The Commission does not know the
nature of this new security program. If the program does anticipate introducing
behavioural analysis, it should do so only after a full and frank discussion.
The Commission agrees with the CATSA Advisory Panel that international
experiences need to be thoroughly reviewed. As well, carefully planned and
controlled pilot projects would need to be conducted in Canada to assess, for
example, the accuracy of the technique, the competencies and training required,
and the overall efficiency and effectiveness of such screening.1191 In particular,
the possibility of behavioural analysis leading, even unintentionally, to real or
perceived religious, ethnic or racial profiling, must be addressed.
1184 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4823.
1185 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4822.
1186 Exhibit P-169, p. 64 of 202.
1187 Exhibit P-169, p. 65 of 202.
1188 Exhibit P-169, p. 164 of 202.
1189 Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4822.
1190 See Exhibit P-407.
1191 Exhibit P-169, p. 165 of 202.
�Chapter III: Civil Aviation Security in the Present Day
Passenger Protect Program
“…too dangerous to fly, but too innocent to be arrested.”1192
On June 18, 2007, Transport Canada launched the Passenger Protect Program
(PPP)1193 amid considerable criticism, in large part from privacy and human rights
advocates.1194 The Program is a form of passenger screening. Its introduction
marks the advent of Canada’s first “no-fly” list1195 and employs mandatory preboard screening (PBS) focusing on a passenger’s identity.
The Passenger Protect Program permits the Minister of Transport to deny
boarding to any passenger whom the Minister believes poses an “immediate
threat to aviation security.”1196 Transport Canada describes the Program as an
additional layer that addresses the continued threat of terrorism and thereby
enhances civil aviation security.1197
The Program faced strong opposition since its development was announced in
2005.1198 Concerns were raised about:
• the rationale for the Program;
• the lack of transparency in the process by which individuals are
selected for inclusion on the no-fly list, known as the Specified
Persons List (SPL); and
• the lack of transparency in the process for reconsidering placement
on the SPL.
On June 28, 2007, ten days after the Program came into effect, Canada’s privacy
commissioners and privacy enforcement officials issued a joint resolution about
the Program. Among other demands, they called for the immediate suspension
of the Program and its referral to a parliamentary committee for a thorough
public review.1199 The Program has nevertheless continued. On June 4, 2008,
almost a year after its launch, the Minister of Transport issued the first boarding
denial under the Program to a young man who had booked an overseas flight
departing from Montreal. The denial led to a Federal Court challenge alleging
that the Program violates rights to free movement and due process guaranteed
under the Charter, and that it violates privacy rights.1200
1192 Testimony of David Lyon, vol. 40, June 5, 2007, p. 4858. Lyon was describing the Passenger Protect
Program and the effect of placing individuals on the Specified Persons List (SPL).
1193 Exhibit P-278, Tab 13, p. 3, s. 10; see also Testimony of Brion Brandt, vol. 40, June 5, 2007, p. 4855.
1194 Exhibit P-278, Tab 9, p. 1.
1195 Exhibit P-278, Tab 8, p. 1.
1196 Exhibit P-278, Tab 14, p. 1.
1197 Exhibit P-278, Tab 14, p. 1.
1198 Exhibit P-278, Tab 10, p. 1.
1199 Exhibit P-278, Tab 9, p. 2.
1200 Exhibit P-426.
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In October 2007, the Office of the Privacy Commissioner of Canada (OPC)
strongly criticized the Program for “…the secretive use of personal information
in a way that will profoundly impact privacy and other related human rights
such as freedom of expression and the right to mobility.”1201
Under the Program, Transport Canada generates a list of individuals whom it
believes pose an immediate threat to aviation security if they board an aircraft.1202
Before issuing a boarding pass, air carriers must screen the names of passengers
against this list.1203 If a passenger’s name, date of birth and gender match those
of a person specified on the list, the air carrier must contact Transport Canada
for a determination by the Minister or an authorized delegate about whether
to deny boarding.1204 If a decision is made to deny boarding, the Minister or
authorized delegate issues two “Emergency Directions,” one directing the air
carrier to disallow boarding of the aircraft and the other directing the passenger
not to board.1205
Rationale for the Program
According to Transport Canada, the Passenger Protect Program was implemented
to address the ongoing terrorist threat to aviation security, exemplified by the
events of September 11th.1206 Transport Canada developed the Program to
strengthen Canada’s approach to aviation security and to complement other
layers of screening.1207 The Program applies to all flights to, from and within
Canada.1208
The Program was developed after the enactment of the Public Safety Act,
2002 in May 2004. The Act included provisions to strengthen civil aviation
security, among them substantive amendments to the security provisions of
the Aeronautics Act.1209 This amendment gave the Minister of Transport new
powers:
• Section 4.81 of the Aeronautics Act allows the Minister, or a
delegate, to require an air carrier or an aviation reservation system
operator to provide certain information respecting:
- Persons on board or expected to be on board a specific flight
where there is an immediate threat to that flight; or
- Any particular person whom the Minister has specified for the
purposes of transportation security;
1201 Exhibit P-278, Tab 7, p. 30.
1202 Exhibit P-278, Tab 14, p. 2.
1203 Exhibit P-278, Tab 14, p. 1.
1204 Exhibit P-278, Tab 13, pp. 3-4.
1205 Exhibit P-278, Tab 13, p. 8.
1206 Testimony of Brion Brandt, vol. 40, June 5, 2007, p. 4851.
1207 Exhibit P-278, Tab 14, p. 1.
1208 Testimony of Brion Brandt, vol. 40, June 5, 2007, pp. 4851-4852.
1209 Exhibit P-157, p. 99 of 135.
�Chapter III: Civil Aviation Security in the Present Day
• Sections 4.76 and 4.77 authorize the Minister, or a delegate, to issue
Emergency Directions if the Minister or delegate is of the opinion
that there is an immediate threat to aviation security;
• Section 4.82 authorizes the Canadian Security Intelligence
Service (CSIS) and the RCMP to access and analyze air
passenger information for the purposes of transportation security
and to investigate threats to the security of Canada, and to disclose
this information under certain conditions to designated persons
and federal agencies, air carriers, the Minister of Transport, and
to any peace officer for reasons of transportation security; and
• Sections 4.85(1) and (3) prohibit persons who must be screened
from entering or remaining in an aircraft or a restricted area
unless they permit a screening to be carried out, and prohibit
air carriers from transporting a person unless that person has been
screened.1210
These provisions were criticized by some groups as being overly broad. In a
January 2007 letter to the Minister of Transport, the Information and Privacy
Commissioner of Ontario recommended the following changes to the
Aeronautics Act:
• amending section 4.81 to minimize the data required for collection
to that which is necessary for aviation security;
• amending section 4.76 to provide an objective standard such that
emergency directions are “reasonably necessary and consistent”
with the Charter;
• amending section 4.72 to preclude making secret “security
measures” which have an impact on civil liberties and human rights,
including the right to privacy;
• amending the Act to provide “reasonable grounds” that an
individual will cause or is involved in planning violence associated
with air terrorism; and
• repealing or amending section 4.82(11) to ensure that personal
information is disclosed only when an individual presents a serious
threat to transportation security or to the safety of the public.1211
Transport Canada officials maintained that the Public Safety Act, 2002,
underwent substantial parliamentary debate prior to its enactment in 2004,
following which Transport Canada undertook to implement the Passenger
Protect Program. The OPC was very involved in the public debate preceding
the enactment of the Act. At that time, however, the possibility that the new
provisions would be used for an initiative such as the Passenger Protect
Program was never discussed. The OPC became aware of Transport Canada’s
1210 Exhibit P-278, Tab 13, p. 4; see also Exhibit P-174, ss. 4.76, 4.77, 4.81, 4.82, 4.85(1), 4.85(3).
1211 Exhibit P-278, Tab 12, p. 1.
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plans for the Program through a newspaper report. Only then did Transport
Canada brief the OPC on plans for the Program.1212
The Privacy Commissioner was troubled by the lack of parliamentary scrutiny
of the proposal for the Program during the debate preceding the enactment of
the Public Safety Act, 2002:
That is of great concern to myself and to other privacy
commissioners across Canada, that a program with such
far-reaching consequences in terms of individual mobility
and individual rights should never have been mentioned
specifically in context with the possible uses of the legislation,
so that ordinary Canadians and, indeed, reasonably wellinformed organizations like my office, in fact, learned about
this from a newspaper article.1213
Transport Canada has asserted that the protection of privacy rights and human
rights is a core element of the Program and that, during its development, the
Department consulted with stakeholders and civil liberties and ethno-cultural
groups, and that it continues to work with the OPC on privacy issues.1214 The OPC
agreed that it had engaged in consultations with Transport Canada, but stated
that some of its concerns remained unaddressed.1215 In August 2005, the OPC
posed 24 questions to Transport Canada concerning the Program. Almost a year
later, in June 2006, the OPC received answers. The first and foremost of the OPC
questions dealt with the rationale for the Program, asking whether any studies
had been conducted to demonstrate that advance passenger information is
useful in identifying high-risk travellers. The OPC described as unsatisfactory1216
the answer it received, reproduced here:
The Passenger Protect program proposes to use a watchlist to
prevent specified individuals from boarding flights based on
practical global experience and risk assessment rather than
specific studies. Watchlists are used worldwide to protect the
public from the actions of certain individuals. Border agencies,
for instance, have stopped numerous dangerous individuals
from crossing borders. The [Canada] Border Services Agency
uses Advance Passenger Information for air passengers
already, to great benefit, to intercept dangerous individuals
once a flight has landed in Canada. Passenger Protect will use
1212 Testimony of Carman Baggaley, vol. 72, November 6, 2007, p. 9010.
1213 Testimony of Jennifer Stoddart, vol. 72, November 6, 2007, p. 9011.
1214 Exhibit P-278, p. 5.
1215 Testimony of Carman Baggaley, vol. 72, November 6, 2007, p. 9015.
1216 Testimony of Lindsay Scotton, vol. 72, November 6, 2007, p. 9016.
�Chapter III: Civil Aviation Security in the Present Day
a limited amount of Advance Passenger Information, with
respect to specified individuals, to stop individuals who pose a
risk to a flight from boarding the flight.1217
The OPC maintained that this response did not sufficiently address how a “nofly” list will improve aviation security.1218
In support of the Passenger Protect Program, Transport Canada developed the
Identity Screening Regulations under the authority of the Aeronautics Act. The
Regulations, which came into effect on June 18, 2007, outline the screening
measures to be carried out by air carriers. Under the original regulations, airlines
were required to screen the name of any individual who appeared to be 12 years
of age or older against the SPL before issuing a boarding pass, regardless of
the method by which a boarding pass may be obtained (the minimum age has
now been raised to 18 years). If there is a potential match, the air carrier must
verify the individual’s identity by examining government-issued identification.
If the verified name, date of birth and gender matches a name on the SPL, the
air carrier must inform a Transport Canada officer, who will decide whether the
individual poses an immediate threat to aviation security and inform the air
carrier whether the individual may board the flight.1219
Advisory Group and Specified Persons List
Under the Program, an advisory group created by the Minister is to assess
information regarding particular individuals and provide recommendations to
the Minister, or to an authorized officer of the Minister, for the purpose of making
decisions about threats to aviation security. Guidelines have been adopted by
Transport Canada to assist the advisory group. According to Transport Canada,
an individual will be placed on the SPL if that individual’s actions lead to a
determination that they may pose a threat to aviation security should they be
permitted to board an aircraft. These actions include the following:
• An individual who is or has been involved in a terrorist group, and
who, it can reasonably be suspected, will endanger the security
of any aircraft or aerodrome or the safety of the public, passengers
or crew members;
• An individual who has been convicted of one or more serious and
life-threatening crimes against aviation security; or
• An individual who has been convicted of one or more serious and
life-threatening offences and who may attack or harm an air carrier,
passengers or crew members.1220
1217 Exhibit P-278, p. 3.
1218 Testimony of Lindsay Scotton, vol. 72, November 6, 2007, p. 9016.
1219 Exhibit P-278, pp. 2-3.
1220 Exhibit P-278, Tab 14, p. 2.
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The criteria for inclusion on the SPL are not contained in the legislation or
regulations, but are simply provided as public information on Transport Canada’s
website.1221 The criteria have been widely criticized as being vague, and seem to
be provided as examples, leaving unclear the factors that determine inclusion
on the list.1222 Lyon warned about reliance on the “precautionary principle” that
the SPL entailed:
So we have moved from danger, which is fairly clearly defined
and has some legal precedence and legal definition, through
risk, where you have to collect information to try to find out
something in order to meet that risk in some way, through to
precaution. Risk…puts in this case, people into categories or
their data into categories. But precaution is based on even less.
We don’t know exactly what the threats might be and we don’t
know very much about those who may present risks.1223
And yet, it’s believed that we must act on relatively little
evidence. And so I think…we’re talking about a precautionary
principle.
This encourages us to further use new technologies, data
mining technologies for example, to try to find out who might
be a threat.1224
Even though the details of a given threat are not known in advance, and without
knowing in all cases the underlying rationale, action is taken:
We don’t know, but we believe we must act. And that seems to
me to be the, in a sense, the dilemma that we find ourselves in.
Because who is on the Specified Persons List? Well, it’s people
who are an immediate threat to aviation security. So, in other
words, these are people who are too dangerous to fly, but too
innocent to be arrested. So there’s a built-in tension within the
SPL.1225
Lyon spoke of the need to be aware of the shift away from more classical
notions of crime control, where due process and concepts such as presumption
of innocence are more established and enjoy greater legal protection.1226
1221
1222
1223
1224
1225
1226
Exhibit P-278, Tab 14, p. 2.
See, for example, Exhibit P-278, Tab 6, p. 9.
Testimony of David Lyon, vol. 40, June 5, 2007, pp. 4857-4858.
Testimony of David Lyon, vol. 40, June 5, 2007, pp. 4857-4858.
Testimony of David Lyon, vol. 40, June 5, 2007, p. 4858.
Testimony of David Lyon, vol. 40, June 5, 2007, pp. 4857-4858.
�Chapter III: Civil Aviation Security in the Present Day
In making its recommendations, the Advisory Group is to assess individuals case
by case, using information provided by CSIS and the RCMP. Led by Transport
Canada, the Advisory Group consists of a senior officer from CSIS, a senior
officer from the RCMP and, as required, other Transport Canada officials and
representatives from relevant departments or agencies, with advice provided
by the Department of Justice.1227
Information from foreign or multilateral intelligence and law enforcement
agencies will be vetted for accuracy through CSIS and the RCMP, and the Advisory
Group will independently analyze any proposal to include an individual on the
SPL.1228 A reconsideration process is available for those challenging their denial
of boarding. Appeals of decisions made by the Office of Reconsideration are
possible.1229
The OPC was critical of the dual role played by the RCMP and CSIS in the creation
of the SPL. Not only do these agencies provide information about potential
candidates for the SPL but, as members of the Advisory Group, they provide
input into the decision to add individuals they have identified to the list. Given
the significance of the SPL and the potential impact on individuals that could
arise from the use of incomplete or inaccurate information, some of which will
be derived from foreign sources, the decision to add an individual to the SPL “…
should be based on a rigorous evaluation of the information provided by the
RCMP and CSIS. However, with these two agencies on the Advisory Group one
has to question whether this will occur.”1230
Transport Canada stated that one result of its collaboration with the OPC is a
strict retention and disposal regime for personal information. Any identity
information received from air carriers is to be retained only for seven days
before being destroyed. Information disclosed by Transport Canada to third
parties, such as CSIS and the RCMP, must also be destroyed within seven days.
Information that Transport Canada receives from CSIS or the RCMP and other
security and intelligence agencies about individuals on the SPL is to be retained,
with the approval of the originator of the intelligence, usually for five years
following the removal of the individual’s name from the SPL.1231
Reconsideration Process
Individuals denied boarding receive an Emergency Direction that is in force for
72 hours, informing them that the Minister of Transport “…is of the opinion that
there is an immediate threat to aviation security or to any aircraft or aerodrome
or other aviation facility, or to the safety of the public, passengers or crew
members.”1232 They are referred to the Office of Reconsideration if they disagree
with the denial.1233
1227 Exhibit P-278, Tab 14, p. 2.
1228 Exhibit P-278, Tab 17, p. 10.
1229 Exhibit P-278, Tab 17, p. 4.
1230 Exhibit P-278, Tab 6, p. 10.
1231 Exhibit P-278, Tab 17, pp. 11-12.
1232 Exhibit P-278, Tab 19, p. 3.
1233 Exhibit P-278, Tab 19, p. 5.
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Reconsideration is purely a paper process. The applicant submits a written
application outlining the grounds for reconsideration. The Office of
Reconsideration assesses the applicant’s file and any other information
provided by the applicant, “using independent security advisors.”1234 Additional
information may be requested from the applicant. Based on the independent
advisor’s report, the Office of Reconsideration recommends to the Minister of
Transport either to confirm the original decision or to reassess the file. Transport
Canada then notifies the applicant in writing. If the reconsideration process
confirms the original decision, the applicant may seek judicial review in Federal
Court.1235
The OPC and other rights groups heavily criticized the reconsideration process
for several reasons:
• The criteria for inclusion on the SPL are unclear, making it difficult
for an individual to challenge the inclusion;
• There is no indication that individuals will have access to the
information used to justify their inclusion;
• There is no oral hearing. The process is conducted by
correspondence;
• There is a lack of independent decision making. The final
determination after reconsideration is made by the Minister, the
same person who made the initial determination;
• No monetary compensation is provided to individuals who have
missed flights or have suffered other losses or injuries; and
• The reconsideration process is not set out in the regulations or
legislation.1236
These issues were raised even before the Program came into effect. In January
2007, the Information and Privacy Commissioner of Ontario called for these
shortcomings to be remedied and for the process to be afforded the force of
law by way of statutory enactments.
Consequences of Boarding Denials
The OPC expressed concern to Transport Canada about how individuals who
are denied boarding may be treated by customer agents and airlines. Other
passengers may become aware of the denial of a boarding pass and may make
incorrect assumptions about the individual, particularly if the individual is a
member of a minority group.1237 The consequences of a denial of boarding may
be much more damaging, and even dangerous, if the denial occurs in relation
1234 Exhibit P-278, Tab 18, p. 1.
1235 Exhibit P-278, Tab 18, p. 1.
1236 Exhibit P-278, Tab 6, pp. 14-15; see also Exhibit P-278, Tab 11, p. 10.
1237 Exhibit P-278, Tab 6, p. 13.
�Chapter III: Civil Aviation Security in the Present Day
to international flights. Foreign citizens trying to leave Canada may be stranded
with no other method of returning home. They would undoubtedly have to
inform their country representatives of their inclusion on the SPL. This could
subject such individuals to further scrutiny by their home states. Similarly, those
denied boarding in a foreign country could be vulnerable and at potentially
greater risk of detention.1238
More troubling is the prospect of local police forces, both in Canada and abroad,
becoming aware that an individual has been denied boarding. Transport Canada
immediately notifies the RCMP when an Emergency Direction is issued, and the
RCMP may then notify the local police force, which can “take action as required.”
In addition, the RCMP can provide sensitive personal information, including
the individual’s name, gender, date of birth and the fact that there may be a
breach of the peace. In the case of an international flight abroad, the RCMP’s
International Liaison Branch in the country of departure will be informed of a
denial of boarding and could then inform the local police. The OPC expressed
profound concern that such disclosure to law enforcement agencies in other
countries might have very serious consequences. At a minimum, such a practice
will alert the local police to the individual’s whereabouts, and could lead to
monitoring of the individual or, worse, deportation or detention.1239
Maher Arar, a Canadian engineer, while in transit in the United States, was
deported to Syria, where he was imprisoned and tortured.1240 Arar has publicly
expressed concern about the Passenger Protect Program, particularly that many
names on the list are likely those of individuals with a Muslim background.1241
Balancing Security and Rights
Jean Barrette, Director of Security Operations at Transport Canada, advised that
all civil aviation security measures must balance three basic and sometimes
competing principles: optimal security, industry needs and respect for individual
rights, particularly those protected under the Charter.1242
It is reassuring that respect for individual rights is one of the three “basic pillars”1243
to be considered when developing security measures, but Transport Canada did
not provide any methodology for balancing these interests. According to the
OPC, national security and the protection of the privacy of individuals in Canada
need not be seen as trade-offs: “…One value does not necessarily need to be
sacrificed in the interest of the other. Both can be achieved with well-designed
1238 Exhibit P-278, Tab 6, p. 13.
1239 Exhibit P-278, Tab 6, p. 14.
1240 See “Maher Arar: Timeline” (January 26, 2007), online: CBC <http://www.cbc.ca/news/background/arar>
(accessed December 18, 2009).
1241 Exhibit P-278, Tab 22, p. 2.
1242 Testimony of Jean Barrette, vol. 40, June 5, 2007, p. 4893.
1243 Testimony of Jean Barrette, vol. 40, June 5, 2007, p. 4893.
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law, prudent policy, and effective checks and balances.”1244 The OPC offered a
series of questions to use in determining whether a given measure is justified:
• Is the measure demonstrably necessary in order to meet some
specific need?
• Is it likely to be effective in achieving its intended purpose?
• Is the intrusion on privacy proportionate to the security benefit to
be derived? and
• Is it demonstrably less privacy-invasive than other measures that
would achieve the same purpose?
Applying this approach to the Passenger Protect Program, the OPC
commented:
We do not question the need to enhance aviation security,
but it is not clear to us that the PPP is demonstrably necessary,
that it is likely to be effective or that it is proportionate to
the security benefit. Attempting to answer these questions
is difficult because the rationale for the program is not
clear. In particular, the notion that there are individuals who
pose an imminent threat to aviation security but who have
not committed any acts that warrant arrest is difficult to
understand.1245
Acknowledging that its expertise is not in aviation security, the OPC nonetheless
offered suggestions for less privacy-invasive security alternatives:
•
•
•
•
•
•
Checking the baggage of passengers perceived to pose a threat;
More thorough screening of cargo;
Greater use of air marshals;
Improved security awareness training for all airport personnel;
More rigorous baggage reconciliation; and
Stricter access controls to sensitive areas.
The OPC further noted the inherent incongruity in denying individuals the right
to board a flight, while at the same time permitting them to use other forms of
transportation, and to attend events where there are likely to be large numbers
of people gathered in one place.1246 Even the choice of an airport as the location
at which denial takes place is questionable, given that the ultimate criteria for
denial is that the individual is an “immediate threat to aviation security.” The
OPC again emphasized that it is not opposed to stronger security measures,
1244 Exhibit P-278, Tab 10, p. 2.
1245 Exhibit P-278, Tab 6, p. 5.
1246 Exhibit P-278, Tab 6, p. 5.
�Chapter III: Civil Aviation Security in the Present Day
provided they are effective and balanced, but noted that “…expanding the net
of surveillance and gathering more personal information does not necessarily
result in better security.”1247
The Passenger Protect Program now faces its first challenge in Federal Court.
Regulatory Amendments
It appears that Transport Canada has already acknowledged some of the
shortcomings identified in its original formulation of the Passenger Protect
Program. Since implementing the Program in June 2007, Transport Canada
has continued to consult with stakeholders and has agreed that the following
enhancements are required “to improve facilitation, transparency and
compliance”:
• Removal of requirement for passengers who appear to be under
the age of 18 to present identification (currently, a Ministerial
exemption is required);
• Removal of requirement for air carriers to verify name, gender and
date of birth at the boarding gate, and requiring that carriers verify
name only with government-issued documentation;
• Inclusion of the Restricted Area Identification Card (RAIC) as an
acceptable non-government identification document for
presentation at the boarding gate;
• Incorporation into the regulations of salient elements of the
voluntary Memorandum of Understanding currently signed by
carriers;
• Designation of monetary penalties (administrative fines) as a more
effective and efficient means to enforce the related regulations.1248
While these amendments do not address some of the core aspects of the
Program about which concerns have been raised – namely the criteria and
selection process for inclusion on the SPL and the reconsideration process –
they signal a recognition by Transport Canada that changes to the Program are
necessary.
3.5.4 Conclusion
Multi-level screening of passengers and baggage is a fundamental component
of aviation security. Canada has established an impressive program that
provides a robust defence against sabotage by passengers and by devices
placed in baggage. However, travellers remain vulnerable to other methods
of sabotage, particularly sabotage involving air cargo and mail. Excessive
1247 Exhibit P-278, Tab 10, p. 1.
1248 Exhibit P-429.
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emphasis on passenger and baggage screening to the exclusion of measures to
mitigate other threats is misplaced. A holistic approach to security is required.
Adequate measures must be implemented to secure air cargo and to protect
both restricted and public areas of airports.
The Commission also notes the growing trend towards identity screening. In
considering any such measures, the potential for infringing fundamental rights
and freedoms must be properly weighed against the possible increases in
aviation security. The use of behavioural analysis has the potential to provide
another layer of security, but its effectiveness in practice needs to be thoroughly
assessed.
3.6 Use of Technology
Technology continues to play an essential role in aviation security because of
ever-increasing passenger volumes, renewed awareness of terrorist threats and
the demand for faster and more sensitive screening of passengers, baggage
and cargo. The Canadian Air Transport Security Authority (CATSA) has put
technology to good use in screening 37 million passengers, 700,000 randomly
selected non-passengers and 60 million pieces of luggage at Canadian airports
each year.1249 Today’s technology is far more powerful and sophisticated than
that of 1985. Still, the crucial lesson from the bombing of Air India Flight 182 is
that technology is not infallible. However sophisticated it may be, it is only one
component of effective aviation security.
More than 6000 pieces of screening equipment are deployed at airports across
the country, including X-ray, computed tomography (CT) and explosives trace
detection equipment.1250 This represents an investment of over $500 million
in state-of-the art equipment. These devices are used for pre-board screening
of passengers and their carry-on baggage (PBS) and for screening checked, or
hold, bags (HBS) before they are loaded aboard aircraft. At present, 100 per cent
of passengers and carry-on bags are screened at Canadian airports for domestic
and international departures.1251 As of January 1, 2006, 100 per cent HBS was
attained for all domestic and international departures at each of Canada’s 89
designated airports.
3.6.1 Technology and Pre-board Screening
Today, as in 1985, PBS involves walk-through metal detector (WTMD) archways
and X-ray machines to screen passengers and their carry-on bags.1252 A
passenger approaching a screening point is met by a contracted screening officer
authorized by CATSA to search for prohibited items that could pose a threat to
aviation security. The screening officer examines the passenger’s boarding pass
1249 Exhibit P-157, p. 104 of 135.
1250 Exhibit P-169, p. 160 of 202.
1251 Exhibit P-157, p. 104 of 135.
1252 See Volume Two: Part 1, Pre-Bombing, Section 2.3.3, Over-Reliance on Technology.
�Chapter III: Civil Aviation Security in the Present Day
and then asks the passenger to place carry-on items on a conveyor belt for X-ray
scanning.1253 The passenger also places any outerwear along with the contents
of his or her pockets, and electronic devices (such as a laptop computer) into a
tray, and these are also sent along the conveyor belt to the X-ray machine.1254
The passenger then proceeds through the WTMD. Modern WTMD scanners
are sophisticated, computer-controlled devices that are far more precise
and consistent in scanning passengers than those in use in 1985. They can
differentiate between quantity and type of metals to a certain degree, such that
a passenger with a few coins in his or her pocket will not necessarily set off the
machine’s alarm.1255 This helps reduce the number of false alarms. If an alarm does
occur, the screener conducts another search using a hand-held metal detector
(HHMD) wand to determine the location of the metallic object. This secondary
examination is also conducted on randomly-selected passengers. If the metallic
items are satisfactorily accounted for, the passenger is cleared and can collect
belongings at the other end of the screening point, where the conveyor belt
delivers them after they have gone through the X-ray machine. If the metallic
items are not satisfactorily accounted for, the passenger may be subjected to a
physical search at the screening point in an enclosed private area.
During the PBS process, a passenger’s carry-on items are opened and searched
further if the screening officer observes a potentially suspicious item in the
X-ray image, or if the passenger has been randomly selected for additional
examination.1256 The carry-on items may also be examined using explosives
detection trace (EDT) equipment.
3.6.1.1 Dual Energy X-Ray
Unlike the low-powered, low-resolution X-ray machines in use in 1985, the
scanning systems in use today employ two X-ray beams at different energy levels,
allowing the device to differentiate materials within an object being scanned.1257
The device can detect inorganic materials such as metals, and organic materials
such as explosives. The images are displayed on high-resolution colour monitors
and are computer-enhanced so that metallic objects appear highlighted,
typically in blue, on the monitor, and potentially dangerous organic materials
typically appear in orange or red. The computer software is designed to err on
the side of caution, highlighting a range of materials as potentially dangerous to
minimize the chances of missing anything truly dangerous.1258 These computer
enhancements make it much easier for screeners to examine the contents of a
scanned bag. Future enhancements will increase the optical resolution of the
dual energy X-ray equipment, an advance that Nick Cartwright, Director of the
1253 Exhibit P-169, pp. 63-65 of 202.
1254 This stage of PBS is known as “divesture.” See Exhibit P-169, p. 112 of 202.
1255 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5126-5128.
1256 Exhibit P-169, p. 64 of 202.
1257 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5081-5083.
1258 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5087-5088.
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Security Technology Branch for Transport Canada, likened to the difference
between a standard television and a high-definition plasma television.1259
Small CT X-ray systems, described below Section 3.6.2, will also become available
in future for examining carry-on baggage, bringing a new level of image detail,
efficiency, and effectiveness to PBS.1260
3.6.1.2 Threat Image Projection Systems
One challenge in maintaining effective and thorough airport screening is to
avoid the screener becoming bored or distracted.1261 Screeners seldom, if ever,
encounter a weapon or other dangerous items in scanned baggage, but this
creates the risk that they will become less alert to dangers and less motivated
to be thorough, since they do not expect to find dangerous items. A new
technology – the Threat Image Projection System (TIPS) – plays an important
role in keeping screeners alert during PBS. Cartwright explained how the TIPS
system works:
… [T]hey developed, through the use of the computer
technology, an ability to impose on the image of the bag or
replace an image of a bag with something containing a device,
whether it be a weapon or a knife or an explosive device, so
that this would allow the screeners an opportunity to find
something in the course of their business.
… [I]t’s both a training [technique] and a useful sort of
motivational technique at the same time. There’s nothing
more that promotes people’s enthusiasm [in] their job than
actually being able to succeed. And the systems were set up so
that as soon as the operator identified something, they would
hit a button, and it if turned out to be one of the synthetic
images, they would get sort of a green bar … that said
“Congratulations, you found it. This was a TIPS image. You’ve
done your job, but remember you’ve still got the real bag to
do.”1262
The TIPS system is relatively new, introduced worldwide only after the attacks
of September 11, 2001. Cartwright testified that studies have shown that using
TIPS images increases screeners’ motivation to do a better job, and gives them
1259 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5095.
1260 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5104.
1261 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5088-5090.
1262 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5089.
�Chapter III: Civil Aviation Security in the Present Day
valuable experience in identifying dangerous items in baggage. The TIPS system
is now entering its second generation, with enhancements based on the lessons
learned from the first systems.1263
3.6.1.3 Explosives Detection Trace and Explosives Vapour Detection Systems
Explosives Detection Trace (EDT) equipment is present at the end of each
PBS X-ray point at Canadian airports for use as needed.1264 The equipment
can detect minute traces of explosives residue on the outside of carry-on or
checked baggage. Using this equipment avoids the potential danger posed
by opening and searching bags that may contain explosives. A cotton swab
or special sheet of paper is wiped along the edges of the object to be tested.
This will pick up traces of the residue left behind when an explosive device is
prepared and placed in or near the bag.1265 The swabbed sample is then fed
into the EDT device, which analyzes the sample and alerts the screener if any
suspect chemicals are detected.1266 The analysis by the device typically takes
about six seconds.1267 Some EDT devices require that the bag itself be physically
inserted into a testing chamber. The device then quickly analyzes air samples
from around the bag.
The explosives detectors in use today are much more sensitive and reliable than
those used in 1985. They can range from small hand-held units to large desktop
and floor units. Each has benefits and drawbacks. For instance, the small units
are portable, but less sensitive than the larger systems. In addition, the small
units can detect explosive vapours well, but are not as sensitive as larger devices
to particulate matter or residue.1268
EDT equipment must be extremely sensitive but also extremely accurate to
minimize false alarms, which decrease confidence in the equipment’s reliability.
Cartwright testified about the very small chemical differences between a
molecule of TNT, a powerful explosive, and a molecule of musk ambrette, a
very common ingredient in fine perfumes. These molecules differ by only a few
atoms of carbon and hydrogen, and would not have been easily distinguishable
in 1985.1269 Cartwright stated that early vapour detectors frequently gave false
alarms when exposed to perfumes based on musk ambrette, and that it took
some time to determine why.
1263 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5096.
1264 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5125.
1265 Exhibit P-188, p. 7.
1266 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4972-4973.
1267 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5124-5125.
1268 Exhibit P-188, p. 8.
1269 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5121-5122.
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3.6.1.4 Closed-Circuit Television Monitoring
CATSA also uses closed-circuit television monitoring in its airport screening
programs. All PBS lines are monitored by camera so that, in the event of a security
breach, the passenger in question can be identified and their picture, which
is retained for 15 days, relayed to Canada’s major airports if they need to be
located and apprehended. Monitoring is also useful when a passenger reports
a missing item, since footage from the screening process can help determine
what happened. As noted, images from the cameras are retained for 15 days,
and they can be stored indefinitely on a CD or DVD if a security event occurs that
warrants their retention.1270
3.6.2 Technology and Hold Bag Screening
Since January 1, 2006, and as required by Annex 17 of the Convention on
International Civil Aviation (“Chicago Convention”), Canada has been using EDT
equipment to screen checked baggage for all scheduled flights departing
from its designated airports.1271 The Hold Bag Screening (HBS) process has as
many as five stages. This is to ensure that potentially suspicious bags receive
increasingly intense levels of scrutiny until their contents can be identified as
safe or a threat.
3.6.2.1 Canada’s Five-level HBS System
The first screening stage (“level one”) is completely automated.1272 Once an
airline accepts checked baggage from a passenger, the bags are scanned using
a high-speed Advanced Technology (AT) X-ray machine which uses specialized
pattern recognition computer programs to identify suspicious images or shapes.
Bags are scanned from different angles to permit an examination from more
than one viewpoint.1273 The machines can handle a full flow of bags at a major
airport, typically between 800 and 1000 bags per hour.1274
If a bag is not cleared for loading aboard the aircraft during the level one
screening, it is forwarded to a screening officer for further examination (“level
two”). Like the dual energy X-ray machines used in PBS, the AT X-ray devices used
for HBS today are highly sensitive, computer-enhanced devices that produce
high-resolution images of a bag’s contents, making it easier to identify small
objects, such as wires, and view them in fine detail. A screening officer examines
the AT X-ray scans of the bag made during the level one screening and will clear
it or send it for closer examination. The screener’s decision must normally be
made in 15 to 20 seconds. The system has a fail-safe feature whereby the bag
1270 Testimony of Pierre Cyr, vol. 39, June 4, 2007, pp. 4816-4817.
1271 Exhibit P-169, p. 65 of 202.
1272 Exhibit P-157, p. 108 of 135.
1273 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5092-5093.
1274 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5156.
�Chapter III: Civil Aviation Security in the Present Day
is automatically sent for the next level of screening if the screener makes no
decision within this time.1275
Level three screening involves a CT X-ray machine conducting further scans
of the bag, obtaining three-dimensional images. The CT X-ray system also has
automated detection algorithms that allow the machine to determine whether
the bag’s contents include anything of concern.1276 If the bag is not cleared at
this point, it is sent to the fourth level screening for examination by another
screening officer. Computer enhancements to the image also allow potentially
suspect bags to be brought to the screener’s attention. The process can be
configured so that the screener has a finite time to make a decision or can keep
the bag in the machine and take further scans.1277
If the bag is still considered suspect, it is removed from the X-ray machine for
a level five examination. This requires having a screening officer test the bag
for explosives traces and open the bag for a manual search. Manual searches
are normally conducted while the passenger watches, usually from a separate
location via closed-circuit TV.1278 If this search does not resolve the concern,
then the bag is passed on to airport authorities and to the police of local
jurisdiction.1279
The five-level HBS system was designed to place the most sensitive and
sophisticated equipment where it would be most effective.1280 The large number
of bags screened at level one is best done by high-speed AT X-ray scanners.
The smaller number of bags that are not cleared by this initial screening can be
handled by highly sensitive, but slower, CT X-ray systems. The system also reflects
efforts to balance risk, level of security, cost and availability of resources.
Scanning equipment with the capacity to screen more than one bag at a time
gives the five-level HBS system an efficiency boost.1281 Instead of the line of bags
coming to a halt when a bag has to be examined by a screener to determine
whether it contains anything of significance, a scanning machine with what is
called multiplexing capability can process more than one bag at a time. Each
of a series of operators examines a different bag on their monitor. Accordingly,
the system is not slowed excessively when a bag is routed to a screening officer
from a lower level of HBS.
1275 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5156.
1276 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5156.
1277 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5157.
1278 Exhibit P-169, pp. 65-66 of 202.
1279 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5157.
1280 Exhibit P-188, pp. 14-15.
1281 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5093.
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3.6.2.2 CT X-ray Systems
These machines operate on the same principle as the CT (or CAT) scans used for
medical images, and are based on that technology.1282 The CT scan can provide
a three-dimensional image of a bag and rotate the image in any direction. The
screening officer can also examine multiple images of the bag at different crosssections, which facilitates identifying suspect items. Unlike the dual energy
X-rays used for PBS, which produce a two-dimensional image where objects
are superimposed over one another, the CT X-rays produce a three-dimensional
image.1283 This allows the contents of bags to be seen more clearly as individual
objects. The CT X-ray machines also feature enhanced automatic detection
capabilities, making them even more effective at distinguishing explosives
from other objects. However, as noted, CT X-ray systems are relatively slow,
typically processing only about 200 bags an hour. A large airport would require
bag throughput of at least 1000 bags per hour.1284 Cartwright testified that he
expected new CT systems to be able to handle that flow by 2009.
3.6.3 Access Control
One prominent use of technology at Canadian airports is access control. However,
as discussed in Volume Two (Pre-Bombing),1285 a locked door will not necessarily
prevent access to vulnerable areas of an airport, even if the door is protected
with a coded lock or sophisticated security system. Airport personnel must
also be trained well and instilled with strong security awareness. The evidence
before the Commission was replete with examples of carelessness leading to
unacceptable breaches of security, such as when the code needed to open a
secure door was written on the wall. In 1985, another significant problem was
the lack of control over restricted area passes. At Pearson Airport, for example,
many thousands of passes were lost, not returned, or could otherwise not be
accounted for.1286 This lack of control over restricted area passes continues
today. Dr. Kathleen Sweet, a US-based international civil aviation security expert,
testified that some airlines now issue passes that dissolve or turn black after 24
hours for visitors, and after one year for employees.1287
3.6.3.1 Biometrics
The Restricted Area Identity Card (RAIC) system now employed at major
Canadian airports is used to establish three different credentials before a person
can enter the restricted area: their identity, their clearance, and their right to
be in that area. The RAIC system uses biometrics to establish identity, making
fraudulent use of an RAIC card extremely difficult.
1282 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5087-5088.
1283 Exhibit P-188, pp. 4-5.
1284 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5096.
1285 Section 2.4, Security Culture at Canada’s Airports.
1286 Exhibit P-101 CAF0555, p. 4; Exhibit P-457, p. 13.
1287 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4956-4957.
�Chapter III: Civil Aviation Security in the Present Day
“Biometrics” refers to methods of identifying individuals based on their unique
physiological or behavioural characteristics. These include traits such as
fingerprints, but also the unique structures of the human face, hand and eye.
CATSA has selected a combination of fingerprints and the iris pattern of the eye
for biometric access control systems at Canadian airports.1288
Biometric information is recorded and used only for those who are not passengers.
At present, 100,000 non-passengers are entitled to secure area access at Canada’s
29 Class 1 and Class 2 airports.1289 Following the security clearance process, a
new airport or airline employee who requires an RAIC pass card will have his or
her iris patterns and fingerprints recorded. The tissue structure of the iris, the
coloured part of the eye, is unique for each person, even identical twins.1290 A
detailed photograph is taken of the employee’s iris and a digitally encoded copy
created of the mathematical calculations made from the distinctive patterns
within the iris. Similar biometric templates are generated from the fingerprints.
This data is then written into the computer chip contained in the RAIC card, and
the information is encrypted to protect it against unauthorized access.
A non-passenger seeking to enter a restricted area of the airport establishes
security credentials by swiping the RAIC near a smart card reader located at
the locked entrance door. Each RAIC card has a unique identifier number that
the reader scans and compares to a central database that contains only valid
identifier numbers. If the system finds a match and confirms that the RAIC card
holder is entitled to access the restricted area in question, the non-passenger is
then challenged to prove his or her identity by providing biometric information
through undergoing an iris or fingerprint scan,1291 or sometimes both. If the
system recognizes a match between the scanned iris or fingerprint and the
template stored on the card, entry is granted.
The CATSA Review Panel, the Standing Senate Committee on National Security
and Defence, and the Auditor General of Canada have all raised concerns about
the use of RAICs at Canada’s airports. These include the need to implement
biometric access control more comprehensively and rapidly and in conjunction
with an enhanced security awareness culture. The Senate Committee also
recommended “geo-fencing,” which monitors each time a person enters and
leaves a restricted area to enable tracking of unusual or suspicious movement
patterns. These concerns are discussed in greater detail in Section 3.8.2, Airport
Security.
Access control devices must also be able to prevent “piggybacking” or
“tailgating” – for example, where an individual with valid clearance holds a door
to a restricted area open for someone following behind but who lacks clearance
1288 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5159-5164.
1289 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5166-5167.
1290 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5160.
1291 Exhibit P-169, p. 74 of 202.
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to enter.1292 Airports are therefore required to ensure that individuals whose
clearance and identity have not been confirmed cannot enter a restricted
area. Several systems can do this, including “mantrap” doors that unlock only
when both the clearance validation and identity validation process have been
completed, and that use optical, infrared or pressure sensors to ensure that no
more than one person enters at a time.
3.6.4 Technology: Concerns and Limitations
As promising as these many screening and access technologies are, they also
have drawbacks. Technology is costly to purchase, maintain and replace. The
advanced CT X-ray machines used for HBS cost $2 million per unit, for example,
and are extremely large. Individual units weigh 18,000 pounds, and are 15 feet
long and nearly 10 feet high.1293 In addition, screening machines are complex.
The need to operate them 24 hours a day means that backups must be available
if one malfunctions. Servicing of this equipment is generally lengthy and
expensive.1294 There is also strong pressure to upgrade equipment as newer,
more effective models become available – bringing additional expense for the
equipment itself and for the training to operate it.
Sweet testified technology is an important component of aviation security,
but it cannot be its “saviour.”1295 It was essential to use all available tools, along
with common sense, and to avoid the temptation to “fight the last war” at the
expense of preparing for the next potential threat.
It is also important to adopt preventive strategies, such as implementing access
control systems and regular security patrols for vulnerable areas of the airport.
Sweet gave the example of airport fuel depots, which are not necessarily secure
or monitored, and could easily be a target for terrorists. She testified that,
while recently on a plane leaving Pearson Airport, she saw the gate to the fuel
depot open and unprotected.1296 Compared with the technology for screening
passengers and baggage, proper security protection for such areas would be
relatively inexpensive and would provide badly needed additional layers of
security on the ground. Rodney Wallis, former Director of Security at IATA, also
testified that an emphasis on perimeter security and access control at airports
“would be right at the top of the list” of priorities for security enhancement.1297
1292 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5167-5168.
1293 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5100.
1294 Exhibit P-169, p. 161 of 202.
1295 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4940-4941.
1296 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4942-4943.
1297 Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5000-5001.
�Chapter III: Civil Aviation Security in the Present Day
3.6.4.1 Privacy and Safety Issues
As discussed in the CATSA Advisory Panel report, Flight Plan: Managing the
Risks in Aviation Security, backscatter X-ray is an emerging technology that has
been put into trial service at some US and UK airports to help detect concealed
weapons and substances on individuals at screening points.1298 Backscatter
X-ray machines involve rapidly passing a single, low-energy X-ray beam over the
body of the person being scanned. The X-rays penetrate clothing but not skin.
As a result, the process produces a highly realistic image of the passenger’s body
under their clothing. Accordingly, the nearly nude image reveals any organic or
inorganic objects, such as weapons, explosives or narcotics, concealed on the
passenger’s body. In her testimony, Sweet bluntly referred to the image as “idiot
proof,” since any foreign objects would be immediately obvious to a screener
seeing the image of an otherwise naked body.1299
The privacy implications of such technology are obvious, as passengers would
be subjected to an intimately revealing search. In the UK, one solution is to
give passengers a choice between undergoing the backscatter X-ray where the
images are viewed by a screening officer of the same sex, and being frisked by
hand.1300 Manufacturers are working at enhancing “modesty filter” software so
that the system more appropriately masks private areas of the body. Another
technique is to have the image reviewed by someone in a remote location who
cannot actually see the person being screened, so will be unable to identify the
person later. The person in the remote location can simply notify a screener at
the screening location that an additional search of the person may be required,
and why – for example, an object in the person’s pocket.
Others are concerned about the potential health consequences for passengers
being subjected to a dose of radiation each time they are scanned with
backscatter X-rays.1301 Even if the process is safe for the general population,
there are concerns about whether pregnant women should be subject to these
scans.1302 Transport Canada states that the radiation levels of a single scan are
very low, even less than the dose one would be naturally receiving at cruising
altitude.1303 However, before such systems are routinely used in Canadian
airports, privacy and health and safety concerns must be addressed carefully.
The use of radio-frequency identification (RFID) tags at airports to gather
information about passengers raises further privacy issues. For example, a
pilot project that began at Calgary Airport on June 20, 2007, used RFID tags
embedded in boarding passes to track passenger traffic and wait times.1304
1298 Exhibit P-169, p. 162 of 202.
1299 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4971-4972.
1300 Exhibit P-169, p. 162 of 202.
1301 Exhibit P-169, p. 162 of 202.
1302 Testimony o f Kathleen Sweet, vol. 41, June 6, 2007, pp. 4971-4972.
1303 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5129-5130.
1304 Exhibit P-278, Tab 20.
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Jennifer Stoddart, the Privacy Commissioner of Canada, testified about the
privacy implications of a pilot project in the UK that, like Calgary Airport,
incorporated an RFID tag in boarding passes.1305 In the UK pilot project, the
RFID tag would be scanned by sensors located throughout the airport, making
it possible to track a passenger’s movement constantly.1306 Besides locating
passengers who had not reported to their flight by the time it was ready for
departure, the information obtained through these RFID tags could be used by
retail establishments to advertise their products based on passenger movement
patterns and time spent in line-ups and at retail locations. Stoddart testified that
these systems require much more transparency. Passengers should be informed
in advance of the uses of the information collected, and which agencies and
businesses will have access to it. For the Privacy Commissioner, informed
consent was important. She also expressed concern about potential leaks or
misuse of this data.1307
3.6.4.2 Reliability
In its report, the CATSA Advisory Panel stated that, despite all the novel and
even revolutionary advances brought to screening technologies by private
sector research and development, the impetus for technological solutions
has resulted in the marketing of devices whose reliability and usefulness were
at best dubious.1308 Volume Two (Pre-Bombing)1309 cites the example given
by Cartwright in his testimony about the “ALPHA Molecular Locator.”1310 This
device was useless. It did not even contain any working electronics. The undue
faith that Air India placed in the “PD-4” explosives detection device is an even
more poignant example of the risks posed by failing to evaluate claims by
manufacturers about the effectiveness of a device. The Panel emphasized the
importance of the Government being able to objectively assess such claims.1311
Some devices produce excellent results in laboratory conditions but are less
effective in practice. For example, trace explosive detection portals, also known
as “puffer” devices, are designed to identify individuals who are carrying or have
been exposed to explosives. These machines feature a walk-through portal
that blows air over the passenger’s entire body, releasing particles clinging to
clothing or the body. The air and any dislodged particles are then drawn into
the machine for analysis.1312 These devices have been deployed at airports
in some countries, including the US, but have been fraught with reliability
problems, particularly “false positives” which erroneously detect evidence of
1305 Testimony of Jennifer Stoddart, vol. 72, November 6, 2007, pp. 9066-9070.
1306 See the discussion of the RFID project in the Testimony of Georgina Graham, Vol. 66, October 25, 2007,
pp. 8232-8234.
1307 Testimony of Jennifer Stoddart, vol. 72, November 6, 2007, p. 9064.
1308 Exhibit P-169, p. 162 of 202.
1309 Section 2.3.3, Over-Reliance on Technology.
1310 As briefly described with manufacturer’s claims in Exhibit P-188, p. 22.
1311 Exhibit P-169, p. 162 of 202.
1312 Exhibit P-169, pp. 160-161 of 202.
�Chapter III: Civil Aviation Security in the Present Day
explosives.1313 These false positives and other reliability problems are largely
caused by common contaminants found in airports, such as dust, dirt and fuel
vapours.1314 The puffers also do not work quickly enough for primary screening,
and are better suited for when a passenger is selected for a secondary search.1315
While this technology has potential, Sweet testified that its reliability was not
yet any greater than that of explosives detection dogs, which she said are far
less expensive.1316
The EDT document scanner is an emerging detection system based on EDT
technology. The scanner works on the principle that an individual who handles
explosives becomes contaminated by particles of explosive residue and that
these particles will spread to other items that the individual routinely handles
and carries, including boarding passes and passports. The EDT document
scanner examines these documents, which individuals must present before
boarding an aircraft. Despite its promise, the reliability and effectiveness of this
technology has not yet been clearly demonstrated, and other obstacles remain.
For instance, boarding passes are often printed on thermally treated paper,
which will turn black if run through a conventional EDT document scanner,
making the passes unusable.1317
Devices to detect liquid explosives are another example of rapidly evolving
technology. Manufacturers are working to develop quick, affordable, reliable
and easy-to-use systems that can scan bottles and other containers during PBS.
Some systems are already being deployed, but have limitations. The CATSA
Advisory Panel gave the example of a device that uses a laser beam to scan liquids
inside clear bottles, but which cannot see through opaque containers.1318 Also,
the systems must scan one bottle at a time, making it impractical for large scale
use.1319 The value of these systems for aviation security is therefore limited.
Future screening systems may measure a passenger’s voice and physiological
responses for signs of stress and other indicators that may signify a malicious
intent.1320 These as-yet-unproven systems would integrate behavioural analysis
into the screening process, aided by the judgment of a screener questioning
the passenger and examining the computer’s results. One system under
development, the Suspect Detect System (SDS), consists of a booth in which the
subject is given a three-minute polygraph assessment. Over the three-minute
period, voice analysis is used to detect indications of fear, on the principle that
the indications could signal the apprehension of someone intending to commit
1313 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5118-5119.
1314 Exhibit P-169, pp. 160-161 of 202. These reliability problems prompted the US Transportation Security
Administration (TSA) to phase out their use. See “TSA Scraps Airport Screening Program” The
Associated Press (May 22, 2009), online: MSNBC <http://today.msnbc.msn.com/id/30875442/>
1315 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5120-5121.
1316 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4973.
1317 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5151-5123.
1318 Exhibit P-169, p. 161 of 202.
1319 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5136-5137.
1320 Exhibit P-169, p. 159 of 202.
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a criminal act.1321 If these indications were detected, the subject would be sent
to a face-to-face interview for further scrutiny.
The CATSA Advisory Panel also referred to even more speculative technologies
that rely on electromagnetic neurological imaging to “read” areas of the brain
that might reveal suspicious intentions, but regarded such technologies as little
more than science fiction.1322 It is likely that not all these technologies will be
shown to be effective, viable security tools in the near future. Even if they did
function with acceptable accuracy, the privacy concerns posed by devices that
require measurements of speech and physiological indicators such as heart rate
or blood pressure will be difficult to resolve. The Panel was not persuaded that
these systems should be developed for use at Canadian airports.1323
3.6.5 Other Screening Systems
3.6.5.1 Passenger-Baggage Reconciliation
Passenger-baggage reconciliation is now required for all domestic and
international flights departing from Canadian airports.1324 This means that
checked bags cannot be placed aboard an aircraft unless the owner travels on that
aircraft.1325 Passenger-baggage reconciliation is required of all air carriers under
the authority of the Air Carrier Security Measures regulations, and is either done
manually or through an automated computer system. This measure would not
thwart a terrorist who boards a flight bent on suicide, but it remains an essential
and highly effective component of aviation security in other situations.
Technology plays an important role. It is possible to implement such a system
without any technological assistance – for example, by placing bags on the
tarmac and requiring passengers to identify their bags before boarding, but
doing reconciliation without technology would be time-consuming and nearly
impossible at a large, modern airport that serves thousands of passengers
daily. As well, some manual methods of reconciliation, such as making note of
a checked bag’s sequencing number, are subject to human error. Yves Duguay,
Senior Director of Air Canada Security and Chair of the IATA Security Committee,
testified that Vancouver International Airport and Toronto’s Lester B. Pearson
International Airport now scan baggage bar codes to permit computerized
tracking.1326
Duguay testified that the aviation industry is also considering using baggage
tags equipped with RFID chips. This would promote even greater efficiency in
the passenger-baggage reconciliation process and, just as importantly, make
1321 Exhibit P-169, p. 159 of 202.
1322 Exhibit P-169, p. 159 of 202.
1323 Exhibit P-169, p. 160 of 202.
1324 Exhibit P-157, p. 110 of 135.
1325 Exhibit P-169, p. 155 of 202.
1326 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5273-5274.
�Chapter III: Civil Aviation Security in the Present Day
it easier to locate a specific bag in the aircraft’s hold whenever it becomes
necessary to offload a bag.1327
3.6.5.2 Explosives Detection Dogs
CATSA does not use explosives detection dogs for the routine examination of
carry-on or checked baggage. Dog teams are funded under contract by the airport
authority or provided by the police force having jurisdiction at the airport.1328
As in 1985, explosives detection dogs are available at airports for instances of
enhanced risk when a bag is considered suspicious following the PBS or HBS
process, or when an unattended bag or package is found at the airport. Dogs
are also used when there is a need to search an aircraft, in which case hand-held
detection devices are also used. Dogs are also used if a suspect vehicle is parked
outside the airport and the driver cannot be located.1329 Explosives detection
dogs are available 24 hours a day at Class 1 airports, such as Toronto’s Lester B.
Pearson International Airport or Vancouver International Airport.1330
Wallis testified that, in his experience, many security experts would rather have a
good explosives detection dog than a multi-million dollar piece of equipment.1331
He testified that dogs have a significant role to play in civil aviation security,
and recommended that CATSA screeners have the authority to call for the dogs
when needed.1332
Duguay testified that new technologies are being developed to screen large
amounts of cargo and are evolving quickly, but explosives detection dogs are
also being explored to screen cargo.1333 He stated that explosives detection dogs
are increasingly popular in Europe; Lufthansa, for example, is very interested in
making greater use of dogs to check cargo. Other countries such as Colombia
frequently use explosives detection dogs at airports and for checking vehicles
and baggage at hotels. An explosives detection dog team costs about $100,000 a
year, much less than the multi-million dollar cost of some screening devices.1334
Similarly, Sweet testified that the small investment required to deploy explosives
detection dogs for cargo and baggage brings long-term benefits for airport and
aircraft security:
Incredibly, $10,000 to train them; they’ll last for a good 10 to
12 years. Have a good trainer – a good handler, and that dog
is good. Those dogs are good. You know, they can sniff out,
1327 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5273-5274.
1328 Testimony of Jean Barrette, vol. 39, June 4, 2007, pp. 4773-4774.
1329 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5220-5222.
1330 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4792.
1331 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5006.
1332 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5014.
1333 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5259-5260.
1334 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5110-5112.
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what, 5,000 to 7,000 different chemicals, organic compounds
or more. Use dogs.
…
Use them on a random basis or you could do individual risk
assessments on particular aircraft; maybe aircraft … going
from Canada to a particular area that you might consider
dangerous or a little bit riskier, or just randomly.... T]heir
appearance sometimes is a deterrent as well, just walking
around, seeing them walking through and they stop and sniff
your bag, you know, maybe they smell something….
…[T]hey have an attention span … [of ] 20 minutes, then
you’ve got to give them a rest and then put them back on 20
minutes and then give them a rest and put them back on. But
… they don’t cost millions of dollars and they are so effective.
So effective. And I think that’s another way to spend money
wisely.1335
3.6.6 Conclusion
Technology has improved considerably in recent decades and has proven to be
of great assistance in aviation security. Promising new technologies are around
the corner. Still, there is a constant danger of placing too much reliance on
technology. Devices used for screening passengers and baggage often require
skilled operators. A determined terrorist can easily obtain the information
and supplies to create powerful explosives in a kitchen or garage.1336 These
individuals will try to exploit weaknesses in aviation security. It is vital to develop
new strategies and technologies to anticipate future tactics to avoid detection
of dangerous substances and devices.
Effective security must not focus solely on the “last war” fought. It demands
creativity and innovation as well as continued efforts to protect against tactics
used successfully in the past.1337 No single security system can be completely
effective and reliable in every situation. Multiple layers of security, including
built-in redundancies, must be incorporated into any security program.1338
In this way, the likelihood that a security threat will slip by unnoticed can be
minimized, since someone who manages to evade one layer of security will
very likely be caught by another. As well, the security value of low-cost, lowtechnology techniques, such as those involving human skills and canine units,
though not infallible, must not be underestimated.
1335
1336
1337
1338
Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4954-4955.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5131-5133.
Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5231.
Testimony of Reg Whitaker, vol. 38, June 1, 2007, pp. 4637-4638.
�Chapter III: Civil Aviation Security in the Present Day
3.7 Screeners
The Canadian Air Transport Security Authority (CATSA) was created as a Crown
corporation on April 1, 2002.1339 Key among the security functions assigned
to it was responsibility for screening passengers and baggage. The Canadian
Air Transport Security Authority Act (CATSA Act) defines CATSA’s mandate as
taking action to provide effective, efficient, and consistent screening across
Canada of persons who obtain access to aircraft or airport restricted areas
through screening points, as well as of their belongings and baggage.1340 This
responsibility includes random screening of non-passengers, such as airport
employees, who access restricted areas.1341 CATSA has jurisdiction at 89 airports
across Canada and is funded through an annual budget that must be reviewed
by Transport Canada and approved by the Treasury Board.1342
CATSA’s uniformed screening officers are a familiar sight at airport security
checkpoints. They conduct pre-board screening (PBS) of passengers and their
carry-on bags and belongings. They also perform hold-bag screening (HBS)
and non-passenger screening (NPS). These duties are described in detail in
Section 3.5.1343
At any given PBS checkpoint, five screening officers are normally present, each
with a different duty.1344 The first screener greets travellers and inspects boarding
passes. The second operates the X-ray machine to inspect carry-on items. The
third searches carry-on bags. The fourth operates Explosives Detection Trace
(EDT) equipment, and the fifth operates the walk-through metal detector and/
or the hand-held metal detector. If fewer than five screeners are available to
staff a checkpoint, some duties are combined.
All carry-on bags must be X-rayed during PBS and all passengers must clear the
metal detector search before being permitted to board an aircraft.1345 In addition,
random searches are conducted of X-rayed carry-on bags and passengers who
have cleared the walk-through metal detector, so that the screening officers
in these positions are “continuously busy.”1346 EDT screens are conducted both
randomly and when the X-ray operator identifies a potentially dangerous item.
1339 Exhibit P-169, p. 16 of 202.
1340 CATSA Act, ss. 6(1), 6(2).
1341 Exhibit P-169, p. 17 of 202.
1342 The CATSA Act Review Advisory Panel (CATSA Advisory Panel) expressed concerns about the impact of
the inflexible budgeting process on CATSA’s ability to perform its mandate: See Exhibit P-169, pp.
152-153 of 202.
1343 Passenger and Baggage Screening.
1344 Exhibit P-173, pp. 29-30 of 64.
1345 Exhibit P-173, p. 30 of 64.
1346 Exhibit P-173, p. 30 of 64. “Continuously busy” is defined as carrying out the necessary screening of a
passenger or bag as per the Standing Operating Procedures, then moving on to the next randomly
selected passenger.
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Since January 1, 2006, all checked bags for flights departing Canadian airports
have been screened with EDT equipment.1347 HBS is accomplished through
multiple layers of scrutiny that balance the automated detection capabilities
of state-of-the-art equipment with human skill and judgment. The layered
approach to HBS is discussed in detail in Sections 3.5 and 3.6.1348 Screening
officers are located throughout the HBS system, which is designed to inspect
bags rapidly but also to err on the side of caution. Bags that cannot be quickly
cleared by the computer-controlled detection equipment or by a screening
officer are held for further examination.1349 If a screening officer suspects that
a bag contains an item which poses a threat to aviation, such as an explosive
device, the officer must call for an emergency response.1350
Airport operators are responsible for physical access control, such as through
installation of doors that can be opened only with a Restricted Area Identification
Card (RAIC).
CATSA screening officers perform NPS at airports. This screening is conducted
randomly.1351 NPS can be done in several ways, including screening individuals
with hand-held or walk-through metal detectors, checking bags and tools
with X-ray or EDT equipment, or both. A non-passenger who refuses a search is
denied entry to the restricted area. The CATSA Act Review Advisory Panel (CATSA
Advisory Panel) recommended expanding NPS.
3.7.1 Recruitment
Several factors affect the staffing of screening officer positions, including
competitive job markets for potential applicants, lengthy delays in obtaining
security clearances for screeners and the loss of existing screening officers to
other jobs. Difficulties in recruiting screeners may lead to practices that increase
security risks, among them:
•
•
•
•
having too few screeners available during peak periods;
increasing the use of overtime, which may lead to fatigue;
deploying staff who lack proper security clearances; and
shifting staff between NPS and PBS duties.
There is also an ongoing need to “overhire” – hire more employees than strictly
needed for existing openings, due to the high turnover rates.
The CATSA Act permits CATSA to provide front line screening services at
airports in three ways. The first involves CATSA employees providing screening
1347 Exhibit P-169, p. 65 of 202.
1348 Passenger and Baggage Screening; Use of Technology.
1349 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5156.
1350 Exhibit P-169, pp. 66-67 of 202.
1351 Exhibit P-169, p. 67 of 202.
�Chapter III: Civil Aviation Security in the Present Day
services directly. The second involves the use of independent service providers
contracted by CATSA. The third has airport operators provide the services, either
directly or through contractors.1352 Since CATSA’s inception, contracted service
providers have performed its screening functions. CATSA now has more than 20
contracts with 12 organizations for screening services at Canada’s 89 designated
airports.1353 The contractors hire and deploy the screening officers. About 4400
screening officers are deployed across Canada, screening 37 million passengers
each year.
Contracting service delivery is less expensive than relying directly on CATSA
employees. The CATSA Advisory Panel estimated that moving away from
contracted screening services to using CATSA employees as screeners could cost
about 40 per cent more.1354 The Panel concluded that the current staffing model
“…seems to be working quite well,” and that it was fulfilling CATSA’s objectives
at a reasonable cost.1355 The Panel recommended, however, that the CATSA
Act continue to permit all three delivery models for future consideration and
flexibility. Transport Canada confirmed that the CATSA Act will retain all three
delivery models as options.1356 CATSA has since reviewed the three different
service delivery models and decided to continue with the contract model.
The Auditor General of Canada produced a Special Examination Report in 2006
about CATSA’s operations. The report noted some difficulties in the current
recruitment model. For example, at least five major airports in Canada had to
replace their contracted providers since 2004.1357 One airport replaced screening
providers four times, and another, three times. This makes the recruitment
and retention of screening officers more difficult. Although a new screening
contractor may hire many of the screening officers working for the previous
contractor, the new contractor will also need to hire new screeners, adding
to training costs. CATSA estimated the recent cost of contracted provider
turnover at more than $2.5 million.1358 CATSA has recognized these problems
and is beginning to improve its contracting process through measures such
as placing greater weight on technical competence when selecting screening
contractors.
Until recently, CATSA provided no guidance to screening contractors about
hiring screening officers.1359 Once hired, screening officers are required to read,
understand and remain up-to-date on large amounts of detailed and continually
updated security material, identify dangerous objects visually, and converse
with passengers during screening. However, the Auditor General’s report
indicated that CATSA did not impose minimum education requirements for
1352 CATSA Act, ss. 6, 7.
1353 Exhibit P-169, p. 104 of 202.
1354 Exhibit P-169, p. 107 of 202.
1355 Exhibit P-169, p. 107 of 202.
1356 Exhibit P-101 CAF0871, p. 1.
1357 Exhibit P-173, p. 50 of 64.
1358 Exhibit P-173, p. 50 of 64.
1359 Exhibit P-173, p. 34 of 64.
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screeners.1360 Under the Designation Standards for Screening Officers, discussed
below in connection with training, applicants for screening officer positions
must be at least 18 years old, Canadian citizens or permanent residents, able to
effectively speak, read, and write one or both official languages, and certified as
in good physical health. They must also meet minimum requirements for sight
and hearing. The Standards also require applicants to hold a valid Transportation
Security Clearance.1361
Particular difficulties arise in hiring and retaining enough bilingual screening
officers in cities with only small French-speaking populations. CATSA does
not require tests for proficiency in English or French.1362 Because of the lack of
bilingual screeners, the Commissioner of Official Languages concluded both
in 2004 and 2005 that CATSA failed to meet the requirements of the Official
Languages Act. CATSA’s contracts with screening contractors require them to
ensure that the public can be served in both official languages. The Auditor
General’s report stated that CATSA must ensure that its subcontractors respect
the language clauses in their contracts and provide bilingual services.1363
The Auditor General’s report recommended that CATSA provide greater
guidance to its screening providers in hiring screening officers.1364 CATSA
management agreed with this recommendation, noting that the Designation
Standards for Screening Officers, published by Transport Canada, prescribe the
minimum qualifications for screening officers and the duties they must be able
to perform. The Canadian Aviation Security Regulations require all screening
officers to meet these standards.1365
Another recruitment difficulty noted by the CATSA Advisory Panel related to
the level of pay that might be required to attract the best applicants. It noted
the case of Alberta, where the then-booming economy offered many job
opportunities. Airport screening officers there were paid significantly less than
other workers holding comparable jobs.1366 This made it difficult to attract
and retain highly qualified airport screeners. The Auditor General’s report also
noted the recruitment difficulties1367 and that the lengthy wait by screeners for
security clearances was contributing to a shortage of screeners throughout
Canada. It might take several months for a newly hired screener to obtain a
Transportation Security Clearance. Without this, prospective screening officers
could not receive an RAIC card or undergo training.1368 This made it even more
difficult to hire screeners, since applicants might be unable or unwilling to wait
for the clearance process to be completed, particularly in a bustling job market
with many other opportunities.
1360 Exhibit P-173, p. 34 of 64.
1361 Online: Canadian Air Transport Security Authority <http://www.catsa-actsa.gc.ca/so-ac/english/
legislation/designation.htm> (accessed October 30, 2009).
1362 Exhibit P-173, p. 34 of 64.
1363 Exhibit P-173, p. 35 of 64.
1364 Exhibit P-173, p. 39 of 64.
1365 Canadian Security Aviations Regulations, S.O.R./2000-111, ss. 6, 7.
1366 Exhibit P-169, p. 120 of 202.
1367 Exhibit P-173, p. 33 of 64.
1368 Exhibit P-169, p. 130 of 202.
�Chapter III: Civil Aviation Security in the Present Day
As of April 1, 2008, Transport Canada had completed a detailed audit of the
security clearance process to determine the causes of delay in issuing clearances,
as the CATSA Advisory Panel recommended. Transport Canada stated that it had
begun to take steps to correct the deficiencies identified in the process and to
speed it up.1369
The CATSA Advisory Panel also found that many screening officers, especially
at larger airports, held more than one job. At larger airports, 50 per cent of the
screening work force had two, or even three, jobs.1370 In areas where the cost of
living was high, or where screening officers had significant family responsibilities,
their income as screeners was insufficient. This forced them to take part-time or
even other full-time work. These jobs were often at the same airport, such as
at a retail outlet or an air carrier check-in counter. It was much more difficult
to organize the work shifts for screening officers who had more than one job,
increasing the risk that screening points would be understaffed.
CATSA manages staffing shortfalls in several ways, such as by paying overtime
to screeners, particularly during peak periods.1371 Whether working overtime
at a PBS or HBS screening point or working at multiple jobs, screening officers
are much less likely to be alert and motivated if stressed or fatigued by long
working hours.
CATSA also manages staff shortages by posting fewer screening officers on
screening lines during peak periods. This means one officer performs two
functions, such as both explosives trace detection and carry-on baggage
searches.1372 CATSA has also responded to shortages by moving screeners from
NPS to PBS. As a result, NPS is less effective and may diminish airport security.
Finally, CATSA may deploy “Level 0” screeners – those who do not yet have a
security clearance and training – to serve as “greeters” at the beginning of the
screening line,1373 after a basic background check by the police.1374
CATSA has acknowledged the many concerns expressed about its hiring and
retention problems and has sought to remedy these with changes to salaries,
benefits, job descriptions and pre-selection testing, as well as changes to career
planning and specialization. According to Pierre Cyr, CATSA’s Vice President of
Strategic and Public Affairs, CATSA named one of its general managers as the
coordinator responsible for hiring, training, retention, and security clearance.
Cyr also testified that CATSA has developed and implemented a visual pre-test,
in co-operation with the University of Zurich. Prospective screening officers
would undergo this test to identify those unable to recognize certain images
on a screen. About 25 per cent of the population has a visual deficiency that
prevents easily recognizing certain images. Eliminating these individuals from
1369 Exhibit P-101 CAF0871, p. 1.
1370 Exhibit P-169, p. 120 of 202.
1371 Exhibit P-169, p. 120 of 202.
1372 Exhibit P-173, p. 33 of 64.
1373 Exhibit P-173, p. 33 of 64.
1374 Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4806.
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the pool of prospective screeners means that more applicants who have the
necessary visual capabilities will complete selection and training programs.1375
In response to the Auditor General’s comments about staff shortages and
high turnover, CATSA stated that the shortage of screening officers did not
compromise security, but merely slowed passenger throughput at screening
points.1376 CATSA also indicated that screening officers were required to
follow its Standard Operating Procedures (SOPs) to ensure that security is not
compromised. However, given the stress, fatigue and potential for distraction or
inattentiveness on the part of screening officers caused by staffing shortages,
additional duties, and second jobs, the Commission questions CATSA’s
assurances.
The CATSA Advisory Panel expressed concern that credit checks were no longer
being conducted in the security clearance process for screeners.1377 Transport
Canada had ended such checks. The Panel was concerned that, without credit
checks to identify candidates with potential financial troubles, new screeners
(and, for that matter, any airport employee) with significant money worries
could pose a security risk. Indebted employees could engage in theft, already
widespread at airports or, worse, accept bribes to commit or facilitate serious
criminal activities at airports.
3.7.2 Training
The CATSA Act requires CATSA to set standards for the qualifications, training and
performance of screening contractors and screening officers that are at least
as stringent as those set by the aviation security regulations of the Aeronautics
Act.1378 CATSA relies on the Designation Standards for Screening Officers issued by
Transport Canada for guidance.
Under the CATSA Act, both screening contractors and prospective screening
officers must be certified as meeting CATSA’s qualification, training and
performance requirements.1379 Screening officer applicants who have
successfully completed their training are formally evaluated for their proficiency
in each screening technique as well for other skills, such as resolving alarms,
implementing emergency response procedures and exercising care and control
over baggage. Depending on their proficiency, screening officer applicants
receive endorsements for different skills, which are then itemized on a certificate
indicating that they have been certified by CATSA as capable of properly
conducting their duties and meeting performance standards. Screening officers
must present their certificates when asked by a Transport Canada security
officer. The prospective screening officers must also be designated in writing by
1375 Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4806.
1376 Exhibit P-173, p. 39 of 64.
1377 Testimony of Chern Heed and Jacques Bourgault, vol. 38, June 1, 2007, p. 4641.
1378 CATSA Act, ss. 8(1), 8(2).
1379 CATSA Act, s. 8(2).
�Chapter III: Civil Aviation Security in the Present Day
the Minister of Transport before they can conduct searches authorized by the
Aeronautics Act.1380
CATSA recently implemented an in-house training program for contract screening
officers. The CATSA National Training and Certification Program focuses on
developing fundamentals such as familiarity with security technology and good
interpersonal skills.1381 The program is based on regulatory requirements.1382
CATSA must certify the screening contractors or screening officers as satisfying
these requirements before the contractor or screener can provide screening
services. CATSA has the authority to vary, suspend or cancel the certification
if a screening contractor or officer no longer satisfies the requirements. The
program is also based on different proficiency levels for the screeners, ranging
from that of basic screening officer to specialist, as well as supervisory and even
instructor levels.
Screening officers are expected to know and comply with CATSA’s SOPs, which
it developed based on the requirements of the Security Screening Order.1383
During training, CATSA’s screening officers must become familiar with over 740
pages of such policies and procedures.1384 The SOPs can be amended by CATSA
Screening Operations Bulletins and can also be superseded by Transport Canada
Security Notices. Screening officers must remain up-to-date with this material
throughout their careers. This is facilitated by a new CATSA website. Besides
training in security screening, screening officers receive training in courtesy and
public relations to prepare them to interact with the public and to minimize
conflicts.1385
The Auditor General noted that CATSA’s training program was under considerable
stress due to employee turnover, the ever-growing need for screening officers
at Canada’s busy airports and the requirement to re-certify screening officers
every two years. CATSA is responding by streamlining training content and
by providing more intensive, higher-quality training, shortening the training
time required through reductions in classroom time and on-the-job training.
Additional training is being provided to screening officers doing HBS and
NPS.1386
The CATSA Advisory Panel raised a concern about the screeners’ “Point
Leaders.”1387 These are screening officers who have achieved a higher level of
certification through extra CATSA training and, in some cases, through seniority.
They are responsible for monitoring the operations of screening points and the
work of the screening officers. Point Leaders may not receive significant training
1380 Aeronautics Act, s. 4.84.
1381 Exhibit P-169, p. 120 of 202.
1382 Exhibit P-172, p. 62 of 155.
1383 Exhibit P-169, p. 86 of 202.
1384 Exhibit P-173, p. 35 of 64.
1385 Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4826.
1386 Exhibit P-173, p. 35 of 64.
1387 Exhibit P-169, p. 114 of 202.
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in leadership and are frequently concerned with relatively trivial details such
as monitoring break times. The Panel was concerned that there may be great
variability in the activities of the Point Leaders and that CATSA managers did not
provide sufficient oversight. Point Leader training is now being improved.1388
An additional issue is whether the mandate of screening officers should expand
to include searching passengers and baggage for large amounts of currency
and illicit substances such as narcotics. Jim Marriott, Transport Canada’s Director
of Aviation Security Regulatory Review, testified that the proper training
emphasis for screening officers is the prevention of unlawful interference with
civil aviation. Cyr agreed, testifying about CATSA’s perspective:
The more objects you ask a screener to try to identify the less
focussed he is on weapons and improvised explosive devices
that we absolutely don’t want to be on board an aircraft.… I
think it stands to reason that if we start asking them to look
for a multitude of other objects, their attention will be moving
to every direction and the risk of missing an item that could
create a threat to air transportation security would be greater.
…
And of course, if we happen to find – what you call contraband,
whether it’s large sums of money – which sometimes appear
as a mass which needs to be identified, then we call the
police. Sometimes we find drugs by accident, also by doing
pat-downs, the police [are] called, and the passenger and the
object is given to the police but this is not our main reason, our
main reason is to protect the air transportation system.1389
Dr. Kathleen Sweet, a US-based aviation security expert, agreed that a more
diffuse focus for screeners was inappropriate: “…[W]hen you have [screeners]
looking for marijuana or looking for cocaine, they’re not looking for a bomb.”1390
She testified that, at some airports, screeners receive a cash incentive when they
find and report narcotics and that this only distracts them from their primary
responsibility to ensure air safety. For similar reasons, the CATSA Advisory Panel
opposed training and requiring screeners to search for narcotics or other illicit
substances.1391
CATSA implemented two training programs to provide screening officers with
hands-on experience in identifying objects that may pose a threat. The programs
1388 Exhibit P-173, p. 35 of 64.
1389 Testimony of Pierre Cyr, vol. 39, June 4, 2007, pp. 4802-4803.
1390 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4969-4970.
1391 Testimony of Jacques Bourgault, vol. 38, June 1, 2007, pp. 4644-4645; Testimony of Reg Whitaker, vol.
38, June 1, 2007, p. 4645.
�Chapter III: Civil Aviation Security in the Present Day
have been deployed at all Class 1 and 2 airports in Canada. These programs are
important because screening officers only rarely encounter weapons and other
dangerous objects, yet they must be able to identify them.1392
The first system, known as the X-ray Tutor (XRT),1393 is an X-ray simulation that
allows screening officers to practise operating an X-ray machine in a discrete
training area under controlled conditions. As the officer becomes proficient at
identifying the dangerous items displayed within the images of bags on the
X-ray display, the simulation program becomes progressively more challenging.
The dangerous items become harder to find and identify. After completing their
training, CATSA screening officers are required to spend 20 minutes each week
with the XRT to refresh their skills.1394 Nick Cartwright, Director of the Security
Technology Branch, Security and Emergency Preparedness at Transport Canada,
testified that the XRT system tracks the screening officer’s progress and can
target weaker areas to help improve their performance.
The Auditor General’s report stated that, while CATSA deployed XRT systems
across the country, there were problems with the program. There were not
always enough computers equipped with XRT for screening officers, and some
computers were not in convenient locations.1395 In addition, the initial reports
of XRT usage compiled by CATSA showed that screeners were not using XRT in
large numbers, and that many who did were not progressing to the higher and
more difficult levels. CATSA management acknowledged these difficulties, and
CATSA is looking into more extensive use of XRT.
A second program, the Threat Image Projection System (TIPS), is used at screening
points in airports. TIPS is a computer system that superimposes images of a
weapon or explosive device on the display screen of an X-ray machine while a
bag is being scanned. The fictitious dangerous item appears to be within the
bag itself. Threat image projection is primarily used in PBS but it is beginning
to be used at other screening points, such as HBS.1396 Both TIPS and the XRT
provide training, and the TIPS program has the added advantage of helping to
motivate screening officers. When a screening officer identifies a dangerous
item on the X-ray screen, the officer must respond accordingly, and the device
acknowledges their performance with a message. Transport Canada was
reluctant, for security reasons, to indicate the general success rate of screening
officers who use TIPS or the degree to which its use has improved their abilities.
However, Cartwright testified that academic studies have confirmed that the
use of TIPS significantly enhances the motivation of the screening officers and
provides them with ongoing experience in identifying dangerous items.1397
1392 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5089.
1393 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5096.
1394 Exhibit P-173, pp. 35-36 of 64.
1395 Exhibit P-173, p. 36 of 64.
1396 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5088-5090.
1397 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5089.
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Screening officers must be re-certified every two years. CATSA provides informal
training through online seminars that explain new procedures, which are set
out in screening bulletins to CATSA Point Leaders, and runs “training bags”
containing simulated prohibited items through screening points.1398 On average,
20 new screening bulletins are issued each year as procedures and threats to
aviation security change. CATSA also provides a bulletin board at each airport
that depicts different types of improvised explosive devices (IEDs), to acquaint
screening officers with the appearance and design of such devices. However,
feedback from screening officers indicates that this has not done enough to
familiarize them with IEDs. The Commission heard evidence that explosive
devices had been found concealed in stuffed animals and even sex toys, objects
that would not necessarily receive a great deal of scrutiny.1399 Only confident,
well-trained and diligent screening officers would examine such objects in the
necessary detail.
The CATSA Advisory Panel recommended that CATSA do more ongoing training
and refresher training for all screening personnel, particularly about new
techniques to detect IEDs.1400 Similarly, the Auditor General’s report expressed
concern about the limited formal refresher training provided to screening officers,
pointing out that, in 2004, screening officers received a one-day training course.
The Auditor General called for CATSA to ensure that screening officers were
properly trained and individually equipped to adapt to the constantly changing
working environment.1401 The Auditor General also recommended that CATSA
refresher training include more than X-ray recognition, and that it cover topics
such as changes to the CATSA SOPs. The report stated that training should also
emphasize practical skills, like the proper use of the hand-held metal detector
and other passenger and baggage search techniques.1402 Finally, the training
bags used at checkpoints should be changed periodically to include new and
different threat objects.
Sweet testified about the importance of ongoing retraining and of fostering a
culture of security awareness among everyone working at airports, not merely
the screeners:
The key here is doing proper training in the first place and then
keeping the training constant. You don’t train somebody and
then two years later, train them again. And if somebody makes
a mistake on the line, you retrain them then, and you don’t just
retrain them on one set of software, because they get used to
picking out the bag that’s in the software exam.
1398 Exhibit P-173, p. 36 of 64.
1399 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4698.
1400 Exhibit P-169, p. 121 of 202.
1401 Exhibit P-173, pp. 35-36 of 64.
1402 Exhibit P-173, p. 36 of 64.
�Chapter III: Civil Aviation Security in the Present Day
You know, we don’t do the training of these screeners very
well and we don’t give them a positive enough attitude about
their job. That’s why I’m a proponent of – I meant to underline
the word “all.” All people – anybody who works at the airport
should have some type of security awareness training, whether
it’s the janitor or whether it’s the pilot or whether it’s the
airport manager.1403
Most important, the Auditor General’s report urged CATSA to ensure adequate
training resources. The report noted how thinly stretched CATSA Learning
and Performance Advisors were. Eight full-time and nine contract instructors
conducted the screening officer training and recertification programs.1404 The
instructors might be required to teach two full-day courses each day, working
from 7:00 a.m. until 11:00 p.m., and often had to travel considerable distances
between airports. Many screening officers had their mandatory recertification
testing rescheduled because of a lack of available training staff.
3.7.3 Turnover
The high turnover rate among screening officers creates many problems.
Staffing shortages result in long working hours for screening officers, and
having to perform multiple duties increases fatigue and decreases alertness and
motivation. The cost of training a screening officer is significant – about $4000,
besides other costs such as those for new uniforms.1405 Each new employee
must also undergo a lengthy security clearance process, causing further delays
and strains to the screening system. It is essential to reduce the turnover rate for
both security and cost reasons.
Several factors contribute to the relatively high turnover of screening officers,
including lengthy delays in obtaining security clearances, low rates of pay, highly
competitive job markets and the perceived lack of advancement opportunities
and prestige. The CATSA Advisory Panel suggested that the nature of the
job –monotonous, stressful work requiring constant vigilance – contributed
significantly to the turnover. According to the Panel, the average turnover rate
at Canada’s eight Class 1 airports in 2005-2006 was a “respectable” 12.2 per cent.
However, the Auditor General’s report noted that in the final quarter of 2006, the
turnover rate increased to 16.4 per cent.1406 The turnover rate varies greatly from
region to region, depending on competing employment opportunities.1407 For
example, Toronto and Vancouver International Airports had low annual turnover
rates of 6.5 and 3.8 per cent respectively. At four other Canadian international
airports (including Calgary, Edmonton and Winnipeg), the rate ranged between
26.4 per cent and 34.6 per cent.1408
1403 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4952-4953.
1404 Exhibit P-173, pp. 36-37 of 64.
1405 Exhibit P-169, p. 119 of 202.
1406 Exhibit P-173, p. 10 of 64.
1407 Exhibit P-169, p. 105 of 202.
1408 Exhibit P-173, p. 33 of 64.
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The average annual turnover of screening personnel at the 19 largest airports in
the US was 126 per cent per year in 1998-99. It has declined significantly to about
20 per cent annually since then. Screeners at US airports are now employees
of the Transportation Security Administration (TSA), not employees of private
companies. The still high rate of turnover can be explained in part because the
TSA screening officer position is seen as a possible entry point into the federal
civil service.1409
CATSA is aware that high employee turnover is costly, inefficient and demoralizing
for an organization. It has worked to attract and retain the highly skilled, highly
motivated personnel needed for this stressful work by negotiating a significant
pay increase. One of its first initiatives was to negotiate pay increases of about
50 per cent, resulting in an average wage of $15 an hour in 2006. This was
considered generally competitive in most areas of the country.1410 Cyr testified
that CATSA instituted a supplementary income program at some Alberta airports
to attract and retain screeners in the highly competitive job market there.1411
At the airport where the program was first tried, the attrition rate dropped by
68 percent. The program was then extended to the Calgary and Edmonton
airports. Those promoting the program hoped it to be self-financing because of
the large savings realized by having to train far fewer new workers. CATSA also
updated its Performance Payment Program to boost retention. The program is
in essence a bonus paid to contracted screening provider companies. CATSA
tied a significant part of the bonus funds to the retention of screening officers.
This created a strong incentive for screening providers to select and retain high
quality employees.1412
CATSA also rotates screening officers from duty to duty on a regular basis to
ensure that they remain alert and do not become distracted or bored. In
addition, screeners are permitted to work at X-ray machines for only 15 minutes
at a time to prevent boredom and fatigue.1413
Sweet recommended regular low-level security briefing to provide screeners
with a greater sense of mission.1414 She discussed a pilot project at Dulles
International Airport, near Washington DC, where screeners regularly
received intelligence briefings from the FBI and other intelligence agencies.
The screening officers did not receive highly classified information, only
security information pertinent for that airport for that day. Sweet testified
that such briefings enhanced the screeners’ diligence, security awareness, and
motivation. Cyr testified that, in Canada, it would be extremely unlikely that
CSIS or other intelligence officials would be willing and able to brief all CATSA
screening officers at 89 airports each day. He stated that screening officers
receive information from CATSA and Transport Canada through bulletins and
briefings by their Point Leaders.1415
1409 Exhibit P-169, p. 105 of 202.
1410 Exhibit P-169, p. 119 of 202.
1411 Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4806.
1412 Testimony of Pierre Cyr, vol. 39, June 4, 2007, pp. 4806-4807.
1413 Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4809.
1414 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4968-4969.
1415 Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4810.
�Chapter III: Civil Aviation Security in the Present Day
The Auditor General and the CATSA Advisory Panel have both acknowledged the
importance of providing accessible, timely information through retraining and
other regular updates. The Commission also believes that serious consideration
should be given to providing briefings, at selected Class I airports, of the type
suggested by Sweet.
3.7.4 Testing
Transport Canada tests whether dangerous items are being detected and
prevented from entering the restricted areas of an airport. These infiltration
tests are an important way to gauge the effectiveness of security measures.
Testing screening points helps identify both human failure and deficiencies
with screening equipment and procedures. Such testing is pointless, however,
without proper feedback and follow-up. Plans to correct deficiencies must be
developed and diligently carried out. This also requires adequate sharing of
information between Transport Canada and CATSA, and within CATSA itself.
Transport Canada security inspectors conduct infiltration tests by attempting
to bring a concealed, dangerous item such as a knife or inoperative firearm or
explosive device through a PBS checkpoint.1416 The inspectors note whether the
screening officers successfully detect the unauthorized objects.1417 If they fail to
detect the objects, Transport Canada sends an “enforcement letter” to CATSA,
and CATSA managers are expected to provide a written response explaining how
the failure is being addressed. The security inspectors also determine whether
screening officers hold proper qualifications, and test whether unauthorized
access to secure areas is prevented. The sole statistic tracked to measure the
performance of airport security, however, is the “infiltration failure rate” – the
rate at which screening officers fail to detect a threat object. The failure rate is
classified information.
When CATSA receives an enforcement letter, it proposes remedies to Transport
Canada. A range of remedies may be involved. Generally, screening officers who
fail an infiltration test receive additional training. Service providers sometimes
penalize screening officers who fail the infiltration test.1418
The Commission was given an example of a hypothetical screening officer
who failed to interpret X-ray images properly during searches of baggage at a
security checkpoint.1419 One option would be to decertify the individual for all
or some of the individuals’ current screening certifications, such as that for X-ray
screening. The individual would require retraining. Recurring violations might
lead CATSA to terminate the individual’s employment.
Transport Canada security inspectors who observe poor screening performance
have the authority to “de-designate” a screening officer by revoking, suspending
1416 Exhibit P-173, p. 20 of 64.
1417 Exhibit P-411, p. 17 of 48.
1418 Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4818.
1419 Testimony of Jean Barrette, vol. 39, June 4, 2007, pp. 4839-4840.
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or cancelling the officer’s certification.1420 Certification means that the screening
officer is trained and proficient at their duties, and designation means that the
individual is a legal authority with certain search powers that flow from the
Aeronautics Act. The individual cannot work as a screening officer until the
designation and CATSA certification are reinstated. De-designated screening
officers have a right of appeal to the Transportation Appeal Tribunal of Canada,
a quasi-judicial body.
Sweet testified that being removed for retraining was generally the best remedy
for screeners who failed an infiltration test or who performed poorly on the TIPS
system. She pointed to the example of Athens airport, where a strict policy is
applied to remove from the line any screeners who miss a TIPS image and to
provide them with further training at an on-site facility. She testified that if the
screeners were not removed and retrained, they would repeat the mistake.1421
The evidence before the Commission did not clearly demonstrate a need to
disclose the failure rates of infiltration tests. However, there must be continual
pressure placed on all those involved in aviation security to ensure that identified
weaknesses are quickly corrected in order to maximize security and justify the
public’s investment in CATSA and its confidence in Canada’s aviation security
regime as a whole.
There was little support within the aviation security community for publishing
infiltration test failure rates.1422 Instead, the experts who testified at the
Commission placed greater importance on ensuring that deficiencies are
identified and corrected. They stressed that testing alone is not enough; it is vital
to follow with solutions and to make sure that they are properly implemented.
In contrast, the Senate Standing Committee on National Security and Defence
recommended publishing a summary of intrusion test results after some
reasonable period of delay during which the deficiencies could be remedied.1423
The Committee had obtained information from “senior officials” that led its
members to conclude that the failure rate was unacceptably high. The Committee
suggested that disclosing such information would allow the public to decide
for itself whether air travel was sufficiently safe, and would place additional
pressure on CATSA and screening providers to strive for better results. Disclosure
of intrusion test results is discussed in greater detail in Section 3. 9.1424
TIPS and XRT provide additional means to assess the skills of screening officers
in detecting dangerous objects. The CATSA Advisory Panel encouraged
continuing with TIPS and XRT to provide practice, rate performance and give
direct feedback to screening officers. Significantly, the Panel recommended
1420 Exhibit P-169, p. 87 of 202.
1421 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4966-4971.
1422 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5050; Testimony of Yves Duguay, vol. 43, June 14,
2007, p. 5284.
1423 Exhibit P-172, p. 81 of 155.
1424 Duty to Warn and Transparency in Aviation Security.
�Chapter III: Civil Aviation Security in the Present Day
against using results as the basis for punitive actions such as fines, penalties,
reprimands or decertification. The focus instead should to be on continuous
learning and improving performance. The Panel also reported that screening
officers had a favourable view of using such tools for instruction and feedback.
It noted, however, that budget limitations prevented deploying these systems
widely enough to make TIPS and XRT accessible and practical for all screening
officers.1425
CATSA uses closed-circuit television (CCTV) at all screening checkpoints.
However, CATSA opposes the use of CCTV to monitor screening officer
performance, since its employees strongly object to such intrusive observation.
CATSA management also made the business decision not to use CCTV for this
purpose due to the complexity and expense of such a measure, and because
it believed that other, more effective, ways existed to monitor and evaluate
screening officers. These included hiring compliance monitors at airports and
better training for CATSA Point Leaders.1426
If an incident occurs at a checkpoint, such as a security breach or a report of
a missing item, any passengers or objects involved can be identified from the
CCTV images recorded at the checkpoint. CATSA Headquarters can monitor
all its screening lines across Canada in this manner. All 200 checkpoint CCTV
cameras are monitored on a rotating basis from 6:00 a.m. until 10:00 p.m.
daily. Recordings are kept for 15 days. However, if a security event occurs, the
recordings can be stored for future reference.1427
In a 2005 report on national security, the Auditor General identified flaws in
the security inspection and enforcement. Neither CATSA nor Transport Canada
possessed an accurate and complete inventory of the enforcement letters
that had been sent or of CATSA’s written responses.1428 The Auditor General
could find no response to about 12 per cent of the enforcement letters about
infiltration tests, and about 16 per cent of the enforcement letters about other
security deficiencies. Although CATSA then changed its procedures to track both
enforcement letters and responses more carefully, a 2006 report of the Auditor
General noted that, in most cases, CATSA management still did not provide
written responses to either CATSA Headquarters or to Transport Canada, and
found that CATSA’s performance in this area had actually worsened since the
2005 report.1429
Following publication of the Auditor General’s 2006 report, CATSA took steps to
ensure that every corrective action taken at airports regarding infiltration test
failures was documented, both at the airport and at CATSA Headquarters. In
addition, CATSA now reconciles its records with Transport Canada monthly to
verify that all failed infiltration tests have been reported.1430
1425 Exhibit P-169, p. 121 of 202.
1426 Testimony of Pierre Cyr, vol. 39, June 4, 2007, pp. 4833-4835.
1427 Testimony of Pierre Cyr, vol. 39, June 4, 2007, pp. 4816-4817.
1428 Exhibit P-411, p. 17 of 48.
1429 Exhibit P-173, p. 38 of 64.
1430 Testimony of Pierre Cyr, vol. 39, June 4, 2007, pp. 4817-4818.
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Both CATSA management and Transport Canada inspectors expressed
frustration with each other over infiltration tests.1431 The inspectors pointed out
to the CATSA Advisory Panel that, on many occasions, CATSA did not appear to
provide timely replies to letters of contravention issued by the inspectors. The
inspectors also took the view that changes needed to remedy infractions were
not always implemented. Some inspectors informed CATSA that they believed
screening officers were being recertified without proper retraining and testing
after a negative inspection report. Conversely, CATSA expressed concerns to
the Panel about the inflexible application of highly prescriptive rules governing
CATSA’s screening operations.
Other times, Transport Canada and CATSA disagreed about the meaning and
application of the detailed regulations, orders, measures and SOPs that prescribe
CATSA’s screening operations. The CATSA Advisory Panel noted confusion
about whether inspectors are to gauge screening officer performance based
on CATSA SOPs or on Transport Canada’s Security Screening Order.1432 There were
disagreements even as to the meaning of “random selection” at screening points.
Such confusion could contribute to the anxiety of screening officers as they
carried out their duties. Because of these disputes, the Panel recommended the
application of clear, consistent, mutually understood standards for monitoring
screening officers. The Commission agrees with the Panel. According to the most
recent information available, Transport Canada is still considering the Panel’s
recommendation.1433
The Auditor General’s 2005 report also noted flaws in the oversight and
enforcement model.1434 In particular, Transport Canada had not defined any
system-wide performance standards for CATSA, apart from the infiltration
failure rate, by which its compliance and effectiveness could be assessed. In
addition, CATSA did not face monetary penalties, unlike air carriers or airport
authorities, which would be fined for persistent non-compliance with security
requirements. According to the report, Transport Canada decided not to
introduce monetary penalties for CATSA because fines would redirect resources
from the implementation of CATSA’s security mandate.
The CATSA Advisory Panel acknowledged that it might not be appropriate
to exact monetary penalties from a Crown corporation funded by the public,
but questioned whether the oversight model could provide for effective
enforcement actions against CATSA.1435 The Auditor General recommended that
Transport Canada develop performance measures for CATSA that specify what
constitutes satisfactory performance.1436 The CATSA Advisory Panel endorsed
this recommendation.1437
1431 Exhibit P-169, p. 140 of 202.
1432 Exhibit P-169, p. 88 of 202.
1433 Exhibit P-101 CAF0871, p. 2.
1434 Exhibit P-411, pp. 17-18 of 48.
1435 Exhibit P-169, p. 88 of 202.
1436 Exhibit P-411, p. 18 of 48.
1437 Exhibit P-169, pp. 88-89 of 202.
�Chapter III: Civil Aviation Security in the Present Day
The CATSA Advisory Panel also concluded that Transport Canada’s dedesignation power was unnecessary and that, since CATSA is responsible
for training screening officers, it should have the sole responsibility for
“sanctioning” them.1438 Rodney Wallis, former Director of Security at the
International Air Transport Association (IATA), testified that it was important
to keep the oversight structure simple. If a Transport Canada inspection
identified problems with a screening officer’s performance, the obvious
recourse would be to inform CATSA management.1439 CATSA would then be
responsible for responding to the inspection findings, and Transport Canada
would be charged with monitoring the response.
Jean Barrette, Transport Canada’s Director of Security Operations, explained that
the Department was still considering the Panel’s recommendation. He stated
that the decision as to whether the de-designation power should be delegated
to CATSA involved many complicated issues. The certification and designation
of screening officers were two separate and necessary qualifications. Barrette
testified that Transport Canada retained the designation authority after CATSA
was created to enable the Department to exercise objective and independent
oversight over CATSA as a legislated entity. In addition, if CATSA were given the
designation and de-designation power, it would have additional responsibilities.
One would be to represent the Minister of Transport at the Transportation Appeal
Tribunal of Canada, the consequences of which Transport Canada wished to
consider carefully. Transport Canada was reluctant to give up its oversight role
before fully contemplating the implications.1440
CATSA is authorized to conduct simulated intrusion tests as a component of
screening officer training. These tests are conducted under controlled conditions
away from restricted areas rather than while screeners are performing their
duties. The results are used to measure performance and provide feedback to
the screeners. The CATSA Advisory Panel considered this to be an effective and
useful training tool.1441 Both the Auditor General and the Panel noted CATSA’s
dissatisfaction with the limited authority it had to conduct infiltration tests, and
that CATSA management felt it needed to be able to conduct full infiltration
tests, which would include the authority to take prohibited items through a
screening checkpoint.1442
There was considerable disagreement between CATSA and Transport Canada
about the threshold for failing an infiltration test.1443 Matters in dispute included
which screening officer was responsible for identifying the threat object, and
whether the screening officer correctly followed CATSA procedures in carrying
out the failed screening. Such disputes damaged the relationship between
Transport Canada and CATSA, and the Auditor General urged a speedy resolution
of these issues in her 2006 report.1444
1438 Exhibit P-169, p. 87 of 202.
1439 Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5042-5043.
1440 Testimony of Jean Barrette, vol. 39, June 4, 2007, pp. 4836-4841.
1441 Exhibit P-169, p. 121 of 202.
1442 Exhibit P-173, p. 20 of 64; Exhibit P-169, p. 149 of 202.
1443 Exhibit P-173, p. 20 of 64.
1444 Exhibit P-173, p. 21 of 64.
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3.7.5 Conclusion
There are many indications that CATSA and Transport Canada have recognized
the difficulties associated with recruiting, training, retaining and testing
screening officers, and that the two bodies have done considerable work to
overcome those difficulties. Ensuring that screening officers are well-trained,
attentive and skilled is essential for aviation security. It is also essential to hire
the candidates with the best potential to become effective and motivated
screening officers.
As with aviation security in general, however, there is no room for complacency
about the improvements needed. Airports in 1985 had strikingly inadequate
security, due in large part to the complacency, poor training and poor discipline
of the private security guards hired to screen passengers and baggage. A
failure by other airport employees to adopt a vigilant and informed attitude
towards security compounded this inadequacy. Security at Canadian airports
is improved today, but the human dimension of aviation security remains a
concern. As long as human judgment and skill remain integral components of
airport security, every effort must be made to ensure that training and re-training
is of the highest quality and readily available, and that performance standards
are clear and consistent. Only in this way can the competence, motivation, and
vigilance of the individuals involved in carrying out aviation security measures
be improved.
3.8 Closing the Gaps in Aviation Security
3.8.1 Air Cargo
The next act of sabotage against civil aviation could well target air cargo. Carried
primarily on passenger aircraft,1445 air cargo in this country is not routinely
searched before it is loaded,1446 and the screening measures applied to those
who present air cargo for transport are insufficient.1447 In many respects, the
state of air cargo security today is disturbingly similar to that of the security
applied to checked baggage before the loss of Air India Flight 182. At the time,
the few security controls that applied to baggage were insufficient to meet the
known threat of sabotage. Security measures were available that could have
prevented placement of the suitcase containing the bomb on the flight, but
were simply not implemented.
The security regime of the day suffered from poor regulatory oversight, a lack of
vigilance, a culture of complacency, excessive concern for customer convenience
and a reactive approach to security threats. The bombing of Flight 182 showed
the devastating consequences of sabotage directed against civil aviation. While
baggage security has largely overcome the failings that made the Air India
bombing possible, the same cannot be said for the security of air cargo.
1445 Testimony of Craig Hall, vol. 64, October 24, 2007, p. 8008; see also Exhibit P-169, p. 53 of 202.
1446 Exhibit P-169, p. 52 of 202.
1447 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4630.
�Chapter III: Civil Aviation Security in the Present Day
Air cargo, conveyed in the same hold of passenger aircraft as checked baggage,
shares many characteristics with baggage. Cargo and baggage are both
generally prepared for transport before they are taken to the airport and both
can conceal explosives. In some instances, baggage is expressly conveyed as air
cargo.1448 In fact, representatives of Air India contended at the hearings that the
“M. Singh” suitcase that was permitted to be placed on Flight 182 was properly
characterized as air cargo rather than as unaccompanied interlined baggage.1449
This argument is unpersuasive, however, since the suitcase was presented at the
Canadian Pacific (CP) Air ticket counter as checked passenger baggage and was
then labelled with an interline tag.1450 Nevertheless, the similarities between air
cargo and passenger baggage are unmistakeable.
As early as 1980, Transport Canada recognized air cargo, including mail, as a
means for placing explosive devices on aircraft.1451 One of the world’s first
in-flight bombings of a passenger aircraft took place in Canada through an
explosive device concealed in air cargo. On September 9, 1949, a bomb in a
mailed package, and not in a passenger’s baggage, destroyed a Canadian
Pacific Airlines DC-3 while it was in flight near St. Joachim, Quebec, killing 19
passengers and 4 crew members. Three people were subsequently executed for
the crime.1452 Security measures have nonetheless focused on passengers and
their baggage. As a result, the threat to aircraft posed by bombs has been only
partially addressed.
Initiatives to respond to the threat of sabotage developed slowly, with effective
measures emerging mostly in reaction to particular events. In the aftermath
of the Air India bombings, significant improvements were made to aviation
security to address the threat posed by bombs. Since the late 1970s, explosives
have displaced hijackings as the predominant threat. Passenger-baggage
reconciliation has been the main security improvement.1453 This mitigated
the threat posed by unaccompanied baggage, but only addressed part of
the security problem. Following the events of September 11, 2001, renewed
1448The Commission heard from several aviation security experts that there are circumstances in which
unaccompanied baggage is clearly considered cargo. Rodney Wallis, for example, explained that
baggage that is intentionally shipped separately by travelling passengers who wish to avoid
excess baggage charges is cargo. Chern Heed, a former Airport General Manager for Vancouver
International Airport and Toronto Lester B. Pearson International Airport, agreed with this
categorization. See Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4408. See also Testimony of
Chern Heed, vol. 37, May 31, 2007, p. 4378.
1449 See, for example, Testimony of Rajesh Chopra, vol. 37, May 31, 2007, p. 4437.
1450 Jim Marriott, Director of Transport Canada’s Aviation Security Regulatory Review at the time of
the hearings, explained that the characterization of baggage is dependent on its associated control
document. Thus, baggage can be deemed accompanied, unaccompanied, expedite or cargo based on
its corresponding tag or other documentation. See Testimony of Jim Marriott, vol. 38, June 1, 2007,
p. 4561.
1451 Exhibit P-101 CAF0163, p. 5.
1452 See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
1453 Exhibit P-411, pp. 8-9. See also Wallis, Combating Air Terrorism, p. 77 and Testimony of Kathleen Sweet,
vol. 41, June 6, 2007, p. 4942.
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efforts were made to improve security, again aimed primarily at passengers and
baggage, leaving critical gaps in air cargo security virtually untouched.1454
The differences in security measures now applied to passengers and their
baggage, on one hand, and air cargo, on the other, are striking. Passengers may
board an aircraft only after a gauntlet of security screening tests: identification
and boarding passes are verified, possibly several times, at checkpoints; names
are checked against those on a “Specified Persons List” (sometimes colloquially
called a “no-fly” list);1455 a walk-through metal detector scans for prohibited
items; and there may be a further examination by a hand-held metal detector or
physical search.1456 A secondary search may be performed at the boarding gate.
Carry-on items are also heavily scrutinized through mandatory X-ray scanning,
with a possible subsequent search by hand or by explosives-detecting trace
(EDT) equipment.1457 Thorough screening is also conducted to identify liquids
and gels above a certain volume.1458 Since January 1, 2006, every piece of hold
baggage is screened by EDT equipment,1459 and may pass through up to five
levels of in-line equipment and review by screening officers.1460 In contrast,
air cargo, for the most part, is simply placed alongside baggage in the aircraft
hold as long as the shipper has met the minimal criteria of having had a
regular business relationship with the air carrier.1461 The image of fully screened
passengers seated on aircraft with largely unscreened air cargo beneath them
is troubling.
The value of improvements to passenger and baggage screening is greatly
diminished if a bomb can be placed in a cargo shipment. This was the most
disturbing revelation about Canada’s current civil aviation security regime. It
was also the one uniting factor among all the experts and stakeholders who
appeared at the hearings. With striking unanimity, they agreed that air cargo
currently represented one of the most significant gaps in aviation security,
and that the gap must be addressed.1462 As the Standing Senate Committee on
National Security and Defence (Senate Committee) observed in its 2003 report
on aviation security, it appears that the “front door” of air security is fairly well
secured, while the “side” and “back doors” remain wide open.1463
The vulnerability of air cargo to exploitation for terrorist ends is even more
troubling because the vast majority of air cargo in Canada – almost 80 per
1454 Exhibit P-35, pp. 20-21; see also Exhibit P-411, p. 9.
1455 Exhibit P-182, p. 4 of 5; see also Testimony of Brion Brandt, vol. 40, June 5, 2007, pp. 4862-4863.
1456 Exhibit P-169, p. 64 of 202.
1457 Exhibit P-169, p. 64 of 202.
1458 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5138.
1459 Exhibit P-169, p. 65 of 202.
1460 Exhibit P-169, p. 66 of 202.
1461 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5293.
1462 See, for example, Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5003; see also Testimony of Reg
Whitaker, vol. 38, June 1, 2007, p. 4629, Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4246,
Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4958-4959; Exhibit P-169, p. 52 of 202; Exhibit
P-172, p. 40 of 155.
1463 Exhibit P-171, p. 9.
�Chapter III: Civil Aviation Security in the Present Day
cent – is carried on passenger aircraft.1464 About one million tonnes of cargo
is transported annually by air.1465 The amount carried on passenger aircraft is
therefore substantial. The air cargo industry represents a significant portion of
Canada’s economy, comprising 6.2 per cent of trade with the United States and
21 per cent of trade with other countries.1466 With the amount of air cargo on
passenger aircraft expected to double in the next two decades due to increasing
trade with Asia, the security risk posed by air cargo will worsen if not adequately
addressed.1467
In the United States, only about 25 per cent of air cargo is carried on passenger
aircraft. The US industry has economies of scale that permit most air cargo to
be transported by all-cargo aircraft.1468 Still, the security risk posed by air cargo
on passenger aircraft in the US is significant, since there is air cargo on many
passenger flights – about 6 billion pounds of cargo each year.1469 As in Canada,
aviation security in the US has been criticized for its focus on passenger and
baggage screening to the relative exclusion of air cargo security. In 2005, the
US Department of Homeland Security (DHS) reported that most air cargo on
passenger aircraft was not physically inspected. That same year, legislation was
enacted requiring additional steps to secure air cargo, including an increase in
the percentage of cargo destined for passenger aircraft that was inspected.1470
Despite their potential to do so, explosives hidden in air cargo on passenger
aircraft have not caused a major aviation tragedy in decades.1471 This may
explain the relative neglect of air cargo security over such an extended period.
Rodney Wallis, former Director of Security at the International Air Transport
Association (IATA) and an international civil aviation security consultant, was
the Commission’s primary expert in this area. He testified that air cargo has long
been known to be susceptible to sabotage, but that aviation security measures
are rarely formulated proactively. He stated that “the great leaps in aviation
security activity” inevitably followed a major incident.1472 In 1993, he voiced this
concern about air cargo:
History has shown that motivation to achieve good security
frequently, perhaps normally, comes in the wake of tragic
accidents like the loss of the Air India 747 in summer 1985. To
date, cargo has caused little problem.”1473
1464 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4629; see also Exhibit P-169, p. 53 of 202.
1465 Testimony of Chern Heed, vol. 38, June 1, 2007, pp. 4650-4651.
1466 Exhibit P-169, p. 52 of 202.
1467 Exhibit P-169, pp. 52-53 of 202.
1468 Exhibit P-101 CAF0872, p. 3. In 2004, it was estimated that 23 billion pounds of cargo was shipped with
the United States by air. About 75 per cent, or 17 billion pounds, travelled aboard all-cargo aircraft,
while the remaining 6 billion pounds travelled aboard passenger aircraft. See Exhibit P-417, p. 12.
1469 Exhibit P-417, p. 12.
1470 Exhibit P-417, pp. 1-2.
1471 See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
1472 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5010.
1473 Wallis, Combating Air Terrorism, p. 79.
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Even when a threat is known, it is often not perceived to be immediate.
If competing interests are vying for the same limited resources, political
commitment can falter. A 2005 report of the Auditor General of Canada, the
second in a two-part review of the 2001 national Anti-Terrorism Initiative,1474
observed that aviation security inspection resources were weighted towards
passengers and baggage. The report found that risks from air cargo had attracted
less scrutiny, notwithstanding the level of concern it had generated.
Passengers and baggage are now well-scrutinized by multiple layers of security
controls. As a result, terrorists will naturally seek weaker links in the security
chain. In 1993, Wallis observed:
As airline security programs make it more and more difficult to
use passengers and their baggage to cover acts of sabotage,
terrorists are bound to search for other avenues. Airlines must
not overlook the possibility of cargo, including shipments of
mail, becoming the chosen means.1475
Dr. William Leiss, an expert in risk management retained by the Commission,
maintained that proper risk management requires protecting all domains
of risk to an acceptable level. Gaps in security weaken the entire system and
increase risk. If such gaps exist, resources must be redistributed so that all risks
are sufficiently addressed.1476
Despite knowledge within the aviation community and government of the
vulnerability of air cargo, air cargo security has changed little over nearly three
decades. Only recently has the Government of Canada taken steps to improve
it. A pilot project is now under way. This is long overdue.
3.8.1.1 Air Cargo Security: A Decades-old Concern
By 1980 the Government of Canada was aware of the vulnerability of air cargo to
sabotage. In February of that year, the Joint Study Committee on Civil Aviation
Security met to conduct an intelligence review. The Committee consisted of
senior representatives of Transport Canada, the Air Transport Association of
Canada (ATAC) and the RCMP. The decision record of the Committee described
the threat to cargo:
… [T]he nature of the threat was changing and acts of
sabotage rather than hijacking were perceived as the main
threat to the safety of the air transportation system in the
future. As passenger screening procedures have proven to be
an effective deterrent to prevent the carriage of unauthorized
1474 Exhibit P-411, p. 3.
1475 Wallis, Combating Air Terrorism, p. 79.
1476 Exhibit P-361, Tab 1, p. 9 of 12.
�Chapter III: Civil Aviation Security in the Present Day
weapons and explosives in the aircraft cabin there is concern
that persons are now attempting to exploit the weaknesses in
the security system to place explosives in checked baggage,
express parcel shipments, cargo and mail.1477
According to Transport Canada, air cargo includes mail and packages, in addition
to larger pallets and containers.1478
In 1982, Transport Canada commissioned a study to review the adequacy of
existing air cargo and baggage security policies. The Department requested
recommendations for enhancing security if inadequacies were discovered.1479
A July 1983 draft study report made recommendations to improve air cargo
security.1480 Draft air carrier regulations in circulation since 1982 also recognized
the importance of protecting air cargo. The draft regulations required air cargo
screening to prevent or deter the unauthorized carriage of weapons, explosives
or incendiary devices in cargo on board aircraft. All unknown shippers were to
be identified, and additional precautions were to be taken during high threat
situations. These precautions might include searching all cargo by physical or
electronic means, delaying shipments to ensure that specific aircraft cannot be
targeted, or refusing to transport cargo.1481
It appears that Transport Canada had incorporated air cargo security into its
inspection regime by 1983. The Department’s Civil Aviation Security Inspection
Checklist at the time, used to conduct tests of airport and air carrier security,
included a section on cargo:
Cargo Security
32.
33.
34.
Have procedures been established to assure that air cargo is
accepted only from bona fide shippers?
Are cargo shipments controlled from time of acceptance until
loaded aboard the aircraft to prevent unauthorized access and
the introduction of explosives?
Are all suspect or unidentified shipments examined and
cleared by a responsible employee of the air carrier prior to being loaded aboard the aircraft?1482
In December 1983, Paul Sheppard, Director of Aviation Security for Transport
Canada, conducted a passenger screening test at Toronto International Airport
1477 Exhibit P-101 CAF0163, p. 5.
1478 Exhibit P-189, p. 8.
1479 Exhibit P-101 CAF0776, p. 1.
1480 Exhibit P-101 CAF0565, pp. 10-11.
1481 Exhibit P-101 CAF0565, pp. 8-9.
1482 Exhibit P-101 CAF0566, p. 7.
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using the Civil Aviation Security Inspection checklist, but did not pose these
questions relating to air cargo security.1483
Sheppard later reviewed Air India’s security plan and, on February 21, 1984,
accepted it as “…a commendable program that meets the requirements of
Canadian legislation.” The plan included measures for air cargo security under
both normal and emergency conditions. In emergency conditions, all cargo
was to be subject to a “cooling period” of 24 hours in the event of a bomb or
sabotage threat.1484
Transport Canada was aware of the security risk posed by air cargo, and evidence
before the Commission demonstrates that industry stakeholders made the
Department aware of inadequacies in security. In particular, the concern that
small packages could be directed to specific flights was brought to Transport
Canada’s attention. In 1984, Transport Canada conducted a security audit of
CP Air to assess its system for combatting acts of unlawful interference with
civil aviation. Feedback from a Canadian Air Line Pilots Association (CALPA) 1485
security representative for CP Air indicated that “…CALPA would like to see better
procedures in place for handling of checked baggage and cargo and believe
that more can be done to help with searches, electronically or otherwise.”1486
Another security representative indicated:
CALPA are quite concerned about the lack of procedures
in place for handling checked baggage, small parcels and
cargo…. [I]t is quite conceivable to direct a small parcel to a
specific flight. Neither the airlines nor Transport Canada have
any large x-ray facilities in place at airports to handle checked
baggage or cargo.1487
By 1985, cargo was acknowledged as a distinct security risk and air carriers were
responsible for applying security standards for cargo. The Civil Aviation Security
1483 Air cargo security, while part of the checklist, was not assessed on this particular occasion. No answers
had been provided to these questions in this particular review and a handwritten note beside each
of these questions read “not checked,” with no reason provided. It seems likely that cargo security was
not assessed because the testing had focused on passenger screening. The fact nevertheless remains
that Transport Canada considered cargo security to be of enough importance to include these
questions as part of its general Inspection Checklist for civil aviation security. See Exhibit P-101
CAF0566.
1484 Exhibit P-284, Tab 68, s. 8.1.4.
1485 CALPA, though not defined in this document, appears to refer to the Canadian Air Line Pilots
Association, which was formed in 1937. Its objective was “…to consolidate airline pilots’ views
regarding aviation concerns, with the authority to voice them when necessary.” In 1996, the
organization disbanded when Air Canada pilots formed their own organization, the Air Canada Pilots
Association (ACPA). In 1997, the remaining members of CALPA arranged a merger with the US-based
Airline Pilots Association (ALPA). See Exhibit P-412.
1486 Exhibit P-101 CAF0637, p. 10.
1487 Exhibit P-101 CAF0637, p. 14.
�Chapter III: Civil Aviation Security in the Present Day
Measures Regulations and Foreign Aircraft Security Measures Regulations in place
at the time required all air carriers to have manual, mechanical or electronic
surveillance and search systems for cargo, and to provide for restricted areas for
cargo at aerodromes.1488 The Measures also required air carriers to establish “…a
system of identification that prevents baggage, goods and cargo from being
placed on board aircraft if it is not authorized to be placed on board by the
owner or operator.”1489
In the first hours following the loss of Air India Flight 182, air cargo was identified
as a priority risk to civil aviation that required immediate attention. On June
23, 1985, the Government implemented provisional security measures while
awaiting further information that would help identify the more permanent
changes needed. Among these stop-gap measures were a 24-hour hold on all
cargo and a physical search or X-ray inspection.1490
Even before the bombing of Flight 182, Transport Canada understood that
cargo destined for aircraft needed protection from sabotage and that carrying
of explosives in cargo was a specific risk.
3.8.1.1.1 The Seaborn Report
As a result of the Air India bombing, the federal Cabinet1491 commissioned a
study to provide a holistic review of airport and airline security in Canada.1492
The report, known as the Seaborn Report, was released in late September 1985.
It called for an improved national civil aviation security regime for air cargo
and highlighted the need to protect likely targets of terrorism. It spoke of the
importance of maintaining a rigorous security regime, even under normal threat
levels.1493
The Seaborn Report outlined a program for enhanced air cargo security at
international airports. The program would vary according to the level of threat.1494
Echoing the feedback received during Transport Canada’s 1984 security audit
of CP Air, the report recommended paying greater attention to small parcels
because of their potential to target specific flights, and suggested that such
parcels be X-rayed, even in normal threat situations.1495
For instances of enhanced threat, the report recommended that, in addition to
X-raying small parcels, larger cargo should undergo X-ray, physical or canine
inspection, or be subject to a holding period that was not publicly disclosed.
The report called for a complete ban on cargo during high threat periods or,
1488 Exhibit P-165, Tab 4, ss. 3(1)(a), (b), (c); Exhibit P-165, Tab 5, ss. 3(1)(a), (b), (c).
1489 Exhibit P-165, Tab 4, s. 3(1)(f ); Exhibit P-165, Tab 5, s. 3(1)(f ).
1490 Exhibit P-35, p. 20; see also Testimony of Jean Barrette, vol. 37, May 31, 2007, p. 4509.
1491 Exhibit P-101 CAF0039, p. 1 of 10.
1492 Exhibit P-35, p. 20.
1493 Exhibit P-101 CAF0039, p. 3 of 10.
1494 Exhibit P-101 CAF0039, p. 6 of 10.
1495 Exhibit P-101 CAF0039, p. 6 of 10.
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alternatively, a refusal to ship cargo that could not be opened and thoroughly
inspected.1496
The report observed that “…[n]ew explosive vapour detection technology
should be available within the next two to three years to speed up the checking
of cargo.”1497 It urged Transport Canada to develop new technologies as a
priority “…to assist in streamlining and improving the effectiveness of security
detection techniques and equipment.”1498 The report noted that cargo screening
would generally be done by air carriers or by private security firms acting on
their behalf. It advised Transport Canada to set and enforce security standards
and to ensure adequate training for those screening air cargo.1499
The Seaborn Report was widely lauded as a seminal document in Canada and in
the international aviation security community. It continues to resonate within the
international community today.1500 Jim Marriott, Director of Transport Canada’s
Aviation Security Regulatory Review at the time of the hearings, outlined the
impact of the Seaborn Report domestically and internationally:
The Seaborn Report really became a strategic action plan
for the Department for many years to follow. It outlined a
large number of practices recommended to further enhance
aviation security. And the Department very aggressively
pursued implementation of all recommendations in the
Seaborn Report over the course of the coming years, in
conjunction with and in coordination with other federal
government departments that had security responsibilities,
and, of course, in conjunction and in coordination with the
aviation industry, airlines, airports and labour groups within
airports and airlines….
So it was really a roadmap to take aviation security in Canada
from where it was in the aftermath of 1985 to a new and much
higher ground….[N]ot only was it a significant report for
Canadian aviation security but also for international aviation
security.
…
…[T]he recommendations implemented by Canada became
standards against or benchmarks against which international
aviation security evolved and looked to.1501
1496 Exhibit P-101 CAF0039, p. 6 of 10.
1497 Exhibit P-101 CAF0039, p. 6 of 10.
1498 Exhibit P-101 CAF0039, p. 6 of 10.
1499 Exhibit P-101 CAF0039, p. 7 of 10.
1500 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4507.
1501 Testimony of Jim Marriott, vol. 37, May 31, 2007, pp. 4504-4505.
�Chapter III: Civil Aviation Security in the Present Day
Marriott’s statement that all Seaborn’s recommendations were aggressively
pursued seemed at odds with Transport Canada actions relating to air cargo
security. As discussed below, air cargo security measures were not implemented
in the way recommended by Seaborn. For example, small parcels were not, and
still are not, routinely X-rayed.1502 No routine search methodologies are used
for such packages, despite ongoing concern that they may be used to target
specific flights.1503 In 2006, an independent panel of experts reported on its
review of the Canadian Air Transport Security Authority Act (CATSA Act). The CATSA
Act Review Advisory Panel (CATSA Advisory Panel) noted that it was “…struck by
the similarity of many of our recommendations … to address deficiencies in
aviation security to those of the Seaborn Report, some twenty years earlier.”1504
Only in very recent years has the need to address air cargo security appeared to
gain currency with the Government of Canada.
Marriott testified that it would have been possible to act immediately to
implement some of Seaborn’s recommendations, but others required a number
of years to put into place.1505 More than two decades after the report was issued,
however, air cargo remains a major gap in security. This is not an acceptable time
frame to address a threat that profoundly endangers the lives of passengers and
all those involved with aviation.
Senator Colin Kenny, Chair of the Senate Committee which has been monitoring
aviation security in Canada in recent years,1506 conveyed the Committee’s
profound concern about the time taken to address cargo security:
Well, we frankly were appalled when the Government
announced approximately a year ago that it was commencing
a study to determine how they were going to handle cargo in
the hold.
It has been a long time since 9/11 and a much longer time
since Air India and the Committee was appalled that the
Government would just be starting to study this last year.
…
…I find it difficult to adequately express the frustration the
Committee has with the slowness of the Department of
Transport in addressing these issues.1507
1502 Exhibit P-169, p. 52 of 202.
1503 Testimony of Colin Kenny, vol. 38, June 1, 2007, p. 4679.
1504 Exhibit P-157, pp. 91-92 of 135.
1505 Testimony of Jim Marriott, vol. 37, May 31, 2007, pp. 4506-4507.
1506 Exhibit P-171, p. 151.
1507 Testimony of Colin Kenny, vol. 38, June 1, 2007, p. 4677.
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3.8.1.1.2 Reasons for Inaction
Key to the Air India tragedies was the carriage of interlined baggage without
an accompanying passenger, coupled with the failure to implement passengerbaggage reconciliation in the high-threat environment of June 1985. Yet
Transport Canada was already well aware of the threat of bombs in suitcases
and knew how to thwart this method of attack.1508 A lack of vigilance in aviation
security provided an opportunity for the bags to escape detection.
An analogous situation for air cargo has been allowed to persist for almost three
decades. It is alarming that most cargo loaded onto passenger aircraft is still not
subjected to inspection by X-ray or other means.
Why is this so? Transport Canada offered reasons related to the cost and
complexity of appropriate security screening measures for air cargo. Time has
been required to provide effective solutions. Yet this cannot explain a delay
spanning decades.
The Senate Committee suggested that other factors may be at play. In its 2003
report on aviation security, the Committee recommended immediately starting
random and targeted screening of air cargo.1509 Transport Canada responded
that a new initiative for cargo security was being developed in a manner that
would “… mitigate security risks to aviation and facilitate the efficient movement
of goods domestically and globally.”1510 It further advised that “…Transport
Canada’s approach will seek to maintain the efficiency of the cargo and aviation
industries while improving security.”1511 The Senate Committee was critical of
this response, suggesting that business interests, in maintaining efficiency in
the shipment of goods, were unduly interfering with cargo security. In 1993,
Wallis wrote that airlines might be reluctant to invest in security measures for
cargo because it might have an adverse impact on an important source of
revenue.1512
It is a general principle of civil aviation that security must be balanced with
efficiency.1513 Both the Senate Committee1514 and the Seaborn Report1515
recognized this. The goal of expeditiously moving passengers and baggage
must be balanced with security concerns; the challenge is the same for cargo.1516
Stephen Conrad, Transport Canada’s Project Director for Air Cargo Security,
acknowledged that one of the current objectives with respect to cargo security
is to ensure the continued efficient flow of goods.1517
1508 Exhibit P-101 CAF0637, pp. 19-20.
1509 Exhibit P-171, p. 55.
1510 Exhibit P-172, p. 41 of 155.
1511 Exhibit P-172, p. 41 of 155.
1512 Wallis, Combating Air Terrorism, p. 79.
1513 Exhibit P-169, p. 23 of 202.
1514 Exhibit P-172, p. 42 of 155.
1515 Exhibit P-101 CAF0039, p. 2 of 10.
1516 Exhibit P-169, p. 23 of 202; see also Exhibit CAF0039, p. 2 of 10.
1517 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5187.
�Chapter III: Civil Aviation Security in the Present Day
The air cargo industry, which includes courier services, is time-sensitive.1518 Some
goods shipped as cargo, such as cut flowers and newspapers, can be rendered
useless if delayed.1519 However, the Senate Committee stated that the interests
of industry stakeholders must not trump necessary security measures.1520
There is evidence before the Commission that, before 1985, passenger
inconvenience was a factor in Air India’s decision to switch from manual baggage
matching procedures to X-ray scanning,1521 even though X-ray technology was
in its infancy and was highly dependent on the skill of the operator to make it
work, to the very limited extent it could.1522
The CATSA Advisory Panel called leaving passenger and baggage screening to
air carriers in the wake of the Air India bombings “…a serious weakness in the
security system, as security would not be their primary concern.”1523 Nevertheless,
Transport Canada decided to leave the responsibility with air carriers and
to develop a strongly prescriptive regulatory regime, with improved training
programs for screening personnel. The Panel observed that it was not until after
September 11th that CATSA was created as a separate government authority
“…to take on this crucial responsibility.”1524 Striking the right balance between
efficiency and security has clearly been a perennial issue. The search to find that
balance for air cargo must be informed by lessons from the past.
With the air cargo security gap already widely publicized1525 and with a
heightened threat from terrorists, all flights carrying cargo and originating in
Canada are potential targets. Because there have been few incidents to date,1526
complacency has set in. However, that complacency is misplaced. As discussed,
a bomb hidden in air cargo caused an in-flight disaster in Canada many
decades ago, and this component of aviation remains relatively unprotected
from terrorist attack, while other aspects of civil aviation have benefited from
significant improvements in security measures. Although often characterized as
the “next threat,” the possibility of bombs in air cargo is more aptly described as
a long-recognized threat that has been left incompletely addressed. The risk of a
bomb being introduced on an aircraft, although identified as the main aviation
security concern since 1980, has never been treated seriously enough to trigger
the rigorous preventive measures required.
The challenge is to design and sustain a robust regime for air cargo security
before its weaknesses can be exploited. In 1985, the failure to implement
adequate security measures to avert a known threat can be attributed, at least in
part, to a culture of complacency.1527 As Transport Canada itself acknowledged
1518 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5203.
1519 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5187.
1520 Exhibit P-172, pp. 41-42 of 155.
1521 Exhibit P-101 CAF0581.
1522 Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4256-4257.
1523 Exhibit P-157, p. 67 of 135.
1524 Exhibit P-157, p. 67 of 135.
1525 Exhibit P-35, p. 21; Exhibit P-172, p. 29 of 155; Exhibit P-169, p. 52 of 202.
1526 See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
1527 Exhibit P-157, p. 54 of 135.
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in a report prepared in 1982, aviation security and security measures to counter
terrorism were given a low priority in Canada because such issues were not truly
viewed as an immediate threat to Canada:
Complacency can be identified as a potential issue both at
the senior management level and on sites. As Canada has
not experienced an increase in unlawful acts directed against
civil aviation it may well become more difficult to justify the
continuation of an adequate security program in the absence
of a clearly defined threat. Security costs are relatively easily
identified and hence present clear potential for cost reduction
in the continuing absence of a clearly perceived threat.1528
3.8.1.1.3 Need for a Proactive Approach
The CATSA Advisory Panel concluded that a proactive, rather than reactive,
approach was fundamental to effective aviation security.1529 Historically, as
noted, aviation security concerns have consistently been dealt with by reacting
to events. Passenger screening came about as a result of aircraft hijacking
incidents. Passenger-baggage reconciliation was implemented following the Air
India bombing. Heightened screening measures for passengers and baggage
resulted from the attacks of September 11th. Liquids and gels were restricted
because of an immediate and urgent threat in August 2006.
Canada is not alone in implementing security measures as a reaction to aviation
incidents. Both the bombings of Air India Flight 182 in 1985 and Pan American
(Pan Am) Flight 103 in 1988 focused the international civil aviation community’s
attention. Even after these events, however, many states were slow to improve
aviation security. Many measures proposed by the International Civil Aviation
Organization (ICAO) were voluntary or were not adopted by member states.1530
Complacency may not be unique to Canada, but this by no means absolves it of
responsibility for its inaction on air cargo.
At the hearings, Dr. Kathleen Sweet, an international civil aviation security expert
with particular experience in air cargo security, warned that the threat from air
cargo is imminent and that definitive action is required:
…[U]nless we get on this quickly…a plane is going to go
down. It is going to be in the cargo hold, and everybody is
going to be fighting the next war. Well, why didn’t we do this?
Well, why didn’t we do that?... We have the opportunity right
now to do it.1531
1528 Exhibit P-101 CAF0774, p. 22 of 98.
1529 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4646.
1530 Exhibit, P-157, p. 91 of 135.
1531 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4958-4959.
�Chapter III: Civil Aviation Security in the Present Day
Air cargo must undergo as vigilant a screening process as passengers and their
baggage. The precise route taken to achieve that outcome may vary according
to the context, circumstances and means available.
The same is true for air cargo on all-cargo flights. The CATSA Advisory Panel
concluded that all-cargo flights posed less risk because they did not carry
passengers, only a small crew was on board, and it was difficult for a terrorist
hiding in the hold to access the crew from there. All-cargo aircraft were therefore
relatively unattractive targets for terrorists,1532 who often aimed for the greatest
number of victims.1533 Still, large cargo aircraft have considerable fuel reserves
and can be commandeered and used as suicide weapons or for the dispersal of
biological or chemical weapons. The CATSA Advisory Panel did not see this threat
to be as significant in Canada as that posed by cargo on passenger aircraft.1534
Senator Kenny, on the other hand, argued that all-cargo aircraft were likely just
as vulnerable to sabotage as passenger aircraft.1535
Captain Jean Labbé, Security Coordinator for the National Security Committee
of the Air Line Pilots Association, International (ALPA), summed up the concern
with air cargo security:
Cargo is a big file for ALPA. There are steps that are being
taken to improve security on board cargo aircraft. Are those
measures being applied quickly enough? I don’t think so. Are
enough measures being introduced at this time? I don’t think
so, either.
I feel it’s a file that must and should be a priority. Cargo aircraft
are currently lacking in terms of security in comparison with
passenger aircraft, and even with passenger aircraft that
carry cargo, the cargo that is loaded and the way that cargo is
monitored – is screened – is perhaps not up to the standards
we’d like, which is comparable to the standards for baggage.1536
3.8.1.2 International Developments in Air Cargo Security
Immediately following the Air India bombing, air cargo was identified as a risk.
On June 28, 1985, in direct response to the loss of Air India Flight 182, IATA
convened an extraordinary meeting of its Security Advisory Committee (SAC),
which consisted of airline security chiefs from around the world. Representatives
from several international airlines and civil aviation stakeholders attended,
notably ICAO, Air India, CP Air, Air Canada and the Air Transport Association
1532 Exhibit P-169, p. 53 of 202.
1533 Exhibit P-263, p. 15.
1534 Exhibit P-169, p. 53 of 202.
1535 Testimony of Colin Kenny, vol. 38, June 1, 2007, p. 4683.
1536 Testimony of Jean Labbé, vol. 64, October 23, 2007, p. 7992 [translation].
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of Canada. Representatives from Transport Canada and the United States’
Federal Aviation Administration (FAA) were present as well.1537 Wallis, who had
convened the meeting as Director of Security for IATA, noted the significance
of delegates from Transport Canada and the FAA attending an “airline meeting.”
He said it was indicative of the level of interest that governments were taking in
the issues.1538
The issues discussed at the meeting eventually led to “massive changes” in civil
aviation security. From this meeting, three working groups were established
to address pressing aviation security issues.1539 One was devoted to air cargo
security.1540
3.8.1.2.1 The Problem: Cargo Consignments can Target Specific Aircraft
Airline officials were aware of the risks that cargo presented and that changes
occurring in the cargo industry increased those risks. For many years, it was not
possible to identify the flight on which a cargo consignment would be loaded.
This served as a built-in protection against terrorists wishing to attack a specific
aircraft. However, it was increasingly becoming possible to identify the flight
transporting a particular consignment.1541 This removed a “principal pillar”
of airline defences against saboteurs.1542 In addition, freight companies were
consolidating a wide range of small consignments into full aircraft containers,
making it more difficult for airlines to ascertain the integrity of the load.1543 The
nature, size and volume of cargo all militated against the effective application of
security controls at the airport.
Wallis testified that applying security controls to cargo at the airport was “too
late” in any event.1544 It was from the IATA deliberations that began in June 1985
that the concept of the “known shipper” developed.1545 The working group on
cargo security reported to the SAC at its next regular meeting in September
1985,1546 building on the work at the June 28th, 1985 meeting.1547
Transport Canada representatives attended the IATA meeting on June 28th. The
Department must have known about the working groups formed at both IATA
and ICAO to address air cargo security.
1537 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4474.
1538 In the weeks preceding this meeting there had been a number of other aviation security incidents,
including the hijacking of a TWA airplane in the Middle East, which had lasted for many days. Wallis,
who was Director of Security at IATA at the time and had convened the extraordinary meeting, testified
that “…it was the Air India incident which triggered the call for the meeting.” See Testimony of Rodney
Wallis, vol. 37, May 31, 2007, pp. 4474-4475.
1539 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4476.
1540 Exhibit P-162, p. 4.
1541 Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4480-4481.
1542 Wallis, Combating Air Terrorism, p. 79.
1543 Wallis, Combating Air Terrorism, p. 78.
1544 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5004.
1545 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5002.
1546 Exhibit P-162, p. 5.
1547 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4494.
�Chapter III: Civil Aviation Security in the Present Day
3.8.1.2.2 The Proposed Solution: “Known Shipper”
The solution to the threat posed by air cargo involved partners in the regular
movement of cargo.1548 The notion of the “known shipper” was a construct
devised by the airlines to decentralize cargo security.1549 Freight forwarders,
consolidators and manufacturers who were regular cargo handlers would
be required to apply security controls to cargo at their facilities and during
transport to the air carrier. To prevent interference with airport-bound cargo,
seals and other security controls would be applied to crates and vehicles upon
loading. These would be removed only when the cargo was delivered to the
air carrier or to its final destination.1550 Applying security controls before air
cargo arrived at the airport effectively “expanded” the outer perimeter of the
airport to encompass the facilities of the freight forwarders, consolidators and
manufacturers involved in the known shipper process.1551
It was not until 1989, however, that this approach gained currency at ICAO.1552
The bombing of Pan Am Flight 103 in December 1988, using the same ruses
that led to the bombing of Air India Flight 182, brought renewed urgency to the
issue.1553 The United Kingdom assumed the lead role internationally on air cargo
security. Wallis testified that the Pan Am bombing may have had greater effect
than the Air India bombings on the UK because it involved a failure of security at
a British airport, casualties had occurred on the ground and wreckage had fallen
on dry land. The aircraft had “…blown up over Scotland and had rained death
and destruction on the town of Lockerbie.”1554
In 1989, the airlines began actively promoting the “known shipper” model
for air cargo security and pushed for a formal known shipper procedure.1555
In 1990, ICAO formed its own working group on air cargo security. The group
consisted of representatives from the FAA and the UK Department of Transport,
an airport representative and Wallis, who represented IATA. Wallis knew about
IATA’s deliberations on this issue and was able to share these during the 1990
working group discussions.1556 Wallis stated that the civil aviation authorities of
the UK and the US “…quickly warmed to the principle” of the “known shipper,”
recognizing that such a system would facilitate securing air cargo against
potential terrorists.1557 Marriott, who had joined Transport Canada’s security
operations in 1986,1558 described the UK as a leading advocate, aggressively
pursuing enhancements for air cargo security on the international stage.1559 The
1548 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5004.
1549 Wallis, Combating Air Terrorism, p. 78.
1550 Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5004-5005.
1551 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5004.
1552 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5002.
1553 Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4529.
1554 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4525.
1555 Wallis, Combating Air Terrorism, p. 78.
1556 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4481.
1557 Wallis, Combating Air Terrorism, p. 78.
1558 Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4484.
1559 Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4529.
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US and UK civil aviation authorities and the world’s airlines started promoting
the concept of the “known shipper” within ICAO.1560
At the time, IATA defined the “known shipper” as “…an approved agent, freight
forwarder, account holder or other entity who has conducted business with
carriers on a regular basis and has provided an acceptable security program to
the appropriate authority.”1561 According to Wallis, the “known shipper” could
only be so designated if it was “known” to both the regulatory authority and the
air carrier.1562 The former requirement was fulfilled if the entity was licensed by
government, maintained a government-endorsed security program, possessed
the ability to screen cargo and was monitored through government inspections.
The latter requirement was satisfied if the entity had engaged in regular business
with the air carrier, demonstrating a history of involvement.1563
The ICAO working group on cargo security proposed adopting the “known
shipper” concept to the Aviation Security Panel (AVSEC Panel) in April 1990, but
was not successful. Member states expressed concern about the difficulties in
implementing such an approach. Wallis attributed this lack of endorsement to
the “lowest common denominator” or consensus model of decision-making
followed by ICAO.1564 It could be difficult for ICAO member states to reach
agreement because they had widely disparate priorities and resources.
In 1991, however, IATA submitted a further proposal to the AVSEC Panel, calling
for changes to Annex 17, the security annex to the Convention on International
Civil Aviation (“Chicago Convention”), including the establishment of a definition
for the “known shipper.”1565 Supported by proponents from the UK and US, the
AVSEC Panel was persuaded to adopt the “known shipper” concept and to
formally incorporate appropriate language into Annex 17.1566 Marriott testified
that “…the United Kingdom representative on the ICAO Aviation Security Panel,
together with Mr. Wallis, were I think firm anchors in advancing the definition of
a concept, a new…more enhanced concept for air cargo security that eventually
became part of the international regulatory framework and has trickled down
into international air cargo security programs.”1567
Wallis noted that such a system may have been difficult for developing nations to
implement at the time, but that the developed world had the resources and the
capability to do so. The UK moved swiftly to establish a “known shipper” system.
By 1993, two years after ICAO accepted the concept, the UK produced aviation
security regulations to govern the responsibilities of air cargo agents under its
air cargo security program.1568 Dr. Reg Whitaker, Chair of the CATSA Advisory
1560 Wallis, Combating Air Terrorism, p. 78.
1561 Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5002-5003.
1562 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4249.
1563 Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5002-5003.
1564 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5002.
1565 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5002.
1566 Wallis, Combating Air Terrorism, p. 78.
1567 Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4529.
1568 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5003.
�Chapter III: Civil Aviation Security in the Present Day
Panel, which had the opportunity to examine the UK air cargo security system,
called it “very impressive.”1569 Another Panel member, Chern Heed, testified that
the UK system included the regular inspection and certification of the entire
chain of cargo handlers, starting with the shipper.1570
Writing in 1993, Wallis remarked that “…[w]ith so much freight being carried
on passenger aircraft, it can be only a matter of time before other governments
follow the front runners and adopt similar approaches to the question of cargo
security.”1571 A number of European countries have introduced such air cargo
security programs. The Netherlands and Ireland, for example, have both adopted
sound security programs for air cargo in which security controls are administered
prior to the cargo’s arrival at the airport. The agents who administer the controls
are subject to inspection.1572
3.8.1.3 Canada’s Existing Air Cargo Security Regime
3.8.1.3.1 Lack of Vigilance: “Known Shipper” Misconstrued
Although the current Canadian air cargo security program employs the term
“known shipper,” the definition does not conform to the common international
understanding of the term. Unlike the air cargo security programs in Europe,
and unlike the definition sanctioned by the international regulatory regime,
the term “known shipper” in Canada does not refer to a formally regulated,
government-certified entity applying security controls to cargo at points away
from the airport. There is no requirement in Canada for a “known shipper” to be
“known” to government. Rather, the term simply refers to a shipper or freight
forwarder “known” to an air carrier because the two have conducted business
in the past.1573
The precise definition of “known shipper” in Canada is contained in confidential
regulations and measures. However, a publicly-accessible definition was
discovered by counsel for the Flight 182 victims’ families in correspondence
between the courier company Purolator, owned by Canada Post Corporation, and
the CATSA Act Review Secretariat. Allegedly based on the definition contained in
the confidential regulations and measures, “known shipper” was defined as an
entity that “…has shipped on at least three accessions [sic] during the preceding
six-month period.”1574 Under cross-examination, Yves Duguay, Senior Director of
1569 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4630.
1570 Testimony of Chern Heed, vol. 38, June 1, 2007, p. 4630.
1571 Wallis, Combating Air Terrorism, p. 78.
1572 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4951; Testimony of Stephen Conrad, vol. 42, June
13, 2007, p. 5192.
1573 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5293.
1574 Exhibit P-191, p. 2.
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Security at Air Canada during the Commission hearings, agreed that this closely
approximated the official definition.1575
Dr. Jacques Bourgault, one of the three members of the CATSA Advisory Panel,
testified about how the known shipper concept was explained to him when he
met with Air Canada representatives:
Well, we know the people around and they are known because
we know them and if we don’t know them, we apply the other
rule which is that you withhold the parcel for a minimum of 24
hours.1576
Under Canada’s current air cargo security program, known shippers are not
required to secure cargo either at their premises or during conveyance to the
air carrier. There is no requirement for known shippers to conduct employee
background checks.1577 Once an air carrier confirms the “known” status of the
shipper, the carrier can accept the cargo for transport on aircraft, with no
obligation on the carrier to conduct further screening.1578 Any screening of air
cargo by X-ray or other means lies at the discretion of the air carrier.1579 Air cargo
received from unknown shippers is subject to a delay period to prevent an
unknown shipper targeting a specific flight.1580 In the United States, in contrast,
air cargo originating from unknown shippers is not allowed on passenger
aircraft.1581
Because Canada imposes few or no requirements for the physical screening of
cargo, either before or after its acceptance, there can be no assurance that air
cargo is safe. The fact that an entity has shipped cargo without incident on three
previous occasions simply does not provide sufficient assurance that future air
cargo shipments are safe. The reality is that almost 80 per cent of air cargo in
Canada is transported by passenger aircraft,1582 that the aviation industry, and
air carriers in particular, are attractive targets for terrorists,1583 and that air cargo
is a recognized vehicle for bringing bombs onto aircraft. Without screening,
1575 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5296. Counsel for the Attorney General objected
to the disclosure of this information on the basis that it “may enable persons to attempt to qualify as
known shippers, to fall within that definition, and therefore get around the security controls”: Sandy
Graham, Counsel for the Attorney General of Canada, vol. 43, June 14, 2007, p. 5295. Counsel for the
families indicated that this document had been obtained from Transport Canada’s own website: Raj
Anand, Counsel for the Family Interests Party, vol. 43, June 14, 2007, p. 5292. The Commission has
concluded that this information has already been available in the public domain and discussion of its
content was relevant in understanding the current state of air cargo security; see also Submissions of
the Family Interests Party, paras. 74-75.
1576 Testimony of Jacques Bourgault, vol. 38, June 1, 2007, p. 4651.
1577 Exhibit P-171, p. 48.
1578 Exhibit P-171, p. 48.
1579 Exhibit P-169, p. 52 of 202.
1580 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5257-5258.
1581 Exhibit P-415, p. 30494.
1582 Exhibit P-169, p. 53 of 202.
1583 Exhibit CAF0039, p. 3 of 10.
�Chapter III: Civil Aviation Security in the Present Day
satisfying a single criterion – three previous shipments without incident –
cannot ensure that air cargo poses no danger.
Twenty-first century terrorists are often well-educated and well-financed.1584 It
is easy to imagine them manipulating the existing air cargo security regime in
Canada to achieve their ends. Nick Cartwright, Director of the Security Technology
Branch at Transport Canada, explained that, in combating air terrorism, it is
necessary to continue to “fight the last war,” but there is a need to look forward
constantly to “…the next threat that is going to emerge.”1585 Engaging in such
contemplative exercises is fundamental to aviation security, according to Wallis:
“We’ve got to think in those terms if we’re going to anticipate what they might
do next. Then we can develop defences against what they might do next.”1586
The Commission’s concern is that air cargo has been recognized as the “next
threat” for almost thirty years. This concern deepens because of the ease with
which a shipment can be used to target a specific flight. Senator Kenny testified
that, despite airline claims to the contrary, cargo can target a specific flight,
particularly in locations where flights are more predictable – for example, cities
that have only infrequent flights to a particular destination – or where packages
are delivered to an airport shortly before the final flight of the day to a given
city.1587 Wallis also maintained that, with courier traffic, “…the potential to target
a specific airline is there. That loophole still has to be closed….”1588 He had raised
this same concern more than a decade earlier.1589
The evidence before the Commission shows a long-standing concern about
terrorists using cargo to target specific flights. Airline pilots working for CP Air
cited this as a problem as early as 1984.1590 The Seaborn Report, released in
September 1985, drew particular attention to small packages and recommended
possibly routinely X-raying them, even under normal threat conditions.1591
Testimony before the Senate Committee in 2002 about the ease with which
air cargo could be used to transport bombs was compelling. Chuck Wilmink, a
former Manager of Corporate Security for Canadian Airlines, offered his insights
on the matter:
1584 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4249.
1585 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5231.
1586 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4249.
1587 Testimony of Colin Kenny, vol. 38, June 1, 2007, pp. 4679-4680; Kenny cited evidence presented before
the Standing Senate Committee for National Security and Defence which “…came from a former airline
security officer and he said by process of deduction it wasn’t hard to figure out where it was likely to
go, that airlines tended to want to move things through in an expeditious way and so there would not
be a 100 percent certainty but the odds would be in favour” of a package being loaded on a certain
flight.
1588 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4249,
1589 Wallis, Combating Air Terrorism, p. 79.
1590 Exhibit P-101 CAF0637, p. 14 of 22.
1591 Exhibit P-101 CAF0039, p. 6 of 10.
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…The current status of airport security is not very good. I
could take anyone in this room and in two minutes train that
person on how to put a bomb on an airplane for any city in
the world. If you are willing to pay the first-duty shipping fee,
we can guarantee what flight you will be on – it is that wide
open….1592
Although precautions such as minimum holding periods are in place for
unknown shippers, such shippers account for only about 5 to 10 per cent
of Canada’s overall shipments, and represent a small fraction of the cargo
industry in Canada.1593 More than 16,000 entities fall into the “known shipper”
category.1594 No evidence was produced at Commission hearings to provide any
assurance that known shippers are prevented from targeting specific flights. On
the contrary, Wallis reported in 2003 that there was a general tendency in the
airline industry to “…sell cargo hold capacity on specific flights.”1595
Whitaker was highly critical of the current system:
Well, simply we have a system in place now which is…the
largely discredited notion of known shippers, which simply
means that companies that are…regular shippers have
their goods accepted, and there is no inspection regime to
determine how secure their…facilities are.1596
Wallis testified that the term “known shipper” was a misnomer. ICAO eventually
began to use the term “regulated agent.”1597 Annex 17 of the Chicago Convention
defines the term as follows:
An agent, freight forwarder or any other entity who conducts
business with an operator and provides security controls that are
accepted or required by the appropriate authority in respect of cargo
or mail.1598
Wallis criticized Canada’s interpretation of the known shipper concept:
1592 Exhibit P-171, p. 53.
1593 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5261.
1594 Final Submissions of the Attorney General of Canada, Vol. II, para. 360.
1595 Wallis, How Safe Are Our Skies?, p. 111.
1596 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4630.
1597 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5003.
1598 Exhibit P-181, Annex 17, p. 1-1.
�Chapter III: Civil Aviation Security in the Present Day
…Now I’ve seen lots of things relative to known shippers in
Canada and I believe that the interpretation of known shipper
in the Canadian sense is totally wrong and it needs to be
looked at again.
That language has changed and we now talk about regulated
agents…. [T]he ideas that were developing in the early 90’s
were that we would regulate agents who [were] a) known
to the airlines, but b) known to the governments. We would
regulate them so that they would operate security programs
within their own sheds.1599
The United States has used a system of “known shippers” similar to Canada’s
system. The Known Shipper program has been described as a “fundamental
element” of air cargo security in the United States since 1976, and has only
recently been codified with the publication of the Final Rule on Air Cargo
Security Requirements in May 2006.1600 The Known Shipper program has been
the “primary approach” for ensuring air cargo security and complying with
legislation in the United States.1601
The US Known Shipper program was created to establish procedures for
differentiating between shippers that are known and unknown to air carriers or
freight forwarders, who act as intermediaries between shippers and carriers.1602
Shippers with “established business histories” with either air carriers or freight
forwarders are permitted to ship their cargo on aircraft.
Following September 11th, the US Transportation Security Administration (TSA),
the body with immediate responsibility for aviation security, issued directives
requiring passenger carriers to transport cargo only from shippers that met
certain eligibility criteria. However, in 2005, the US Government Accountability
Office reported that local TSA officials at airports and numerous industry
stakeholders had expressed concern about the Known Shipper program. The
report stated that, while the “…program may provide some security benefit,
it is by itself an insufficient security safeguard and must be supplemented by
other security measures.”1603 It continued that the TSA requirements may not
adequately deter or prevent terrorists from meeting basic eligibility criteria and
becoming Known Shippers.1604
3.8.1.3.2 Canada Falls Behind
Wallis suggested that Europe has always been ahead of North America in aviation
security because of its history of involvement with terrorism. For this reason, he
1599 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4249.
1600 Exhibit P-415, p. 30499.
1601 Exhibit P-416, p. 8.
1602 Exhibit P-416, p. 31.
1603 Exhibit P-417, p. 32.
1604 Exhibit P-417, p. 32.
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argued, there was always a more pressing need to move forward with security
measures in Europe.1605 However, as the Air India bombing and the September
11th events showed, no region of the globe is immune to terrorism.
In its Final Submissions to the Commission, the Attorney General of Canada
stated that the Government has a long-standing policy of commitment to “…a
regulatory regime, which meets and in many areas exceeds the international
benchmarks set by ICAO.”1606 It cited Canada’s leading role in passengerbaggage reconciliation as an example. The submission cited Wallis, who had
acknowledged that Canada was “at the forefront” in this effort,1607 and that
Canada had “pushed very hard” to take this issue forward at ICAO, because it
had “…been hurt, obviously, by the bombing” of Air India Flight 182.1608 Yet, air
cargo security, which had also been identified as an issue after the Air India
bombings, has remained virtually unimproved since 1980. In air cargo security,
Canada does not meet international standards.
One of the key lessons from the Air India tragedies is that security depends on
using layered measures to produce an acceptable level of protection against
each vulnerability. To address one vulnerability while leaving another entirely
untouched leaves a serious security gap. The current approach to air cargo
security has created such a gap. In its 2007 report, the Senate Committee
concluded that the “known shipper” system in Canada actually lessens aircraft
security.1609 Chern Heed, on behalf of the CATSA Advisory Panel, also had strong
criticism of the program: “…There is a concept called the known shipper but to
our minds it’s not acceptable.”1610
By 1991, the Government of Canada was fully aware of the air cargo security
gap. Almost two decades later, this gap remains.
3.8.1.3.3 Voluntary Programs
Duguay testified about voluntary certification programs that involve security
enhancements for goods crossing the Canada-US border. He testified as
well that many of the large freight forwarder and shipping companies had
voluntarily implemented security programs at their premises.1611 As much as
80 per cent of Air Canada’s cargo shipments is derived from the large freight
forwarders and other large companies with whom Air Canada has a contractual
relationship.1612
1605 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5003.
1606 Final Submissions of the Attorney General of Canada, Vol. II, para. 299.
1607 Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4755; see also Final Submissions of the Attorney
General of Canada, Vol. II, para. 301.
1608 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4477; see also Final Submissions of the Attorney
General of Canada, Vol. II, para. 300.
1609 Exhibit P-172, p. 64 of 155.
1610 Testimony of Chern Heed, vol. 38, June 1, 2007, p. 4650.
1611 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5296.
1612 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5251.
�Chapter III: Civil Aviation Security in the Present Day
There was little testimony about voluntary programs, but this issue merits
discussion. Voluntary border security programs that are limited to trade with
the United States and that are based on goodwill1613 or external certification by
the DHS,1614 do not provide assurance that adequate security procedures will
consistently be applied to air cargo. Such programs amount to a “soft” form of
regulation and are reminiscent of the regime in place for monitoring air carrier
security plans in 1985. At the time, if there were concerns with an air carrier’s
security plan, Transport Canada could notify the carrier but had no authority
to take action.1615 Without effective enforcement mechanisms, there can be no
assurance of security. As well, regional arrangements leave gaps.
Canada should also not rely on external certification programs for the security of
air cargo originating from Canadian sources. This is a national security concern.
Relying on foreign certification processes outsources the responsibility for
protecting national security.
Some shippers and freight forwarders may have their own cargo security
programs, but these voluntary programs in no way solve the problem of air
cargo security. Where plans are voluntary, compliance is often inadequate.1616
Voluntary programs cannot ensure the quality or adequacy of security measures
for the threat being addressed, and any monitoring in the absence of a formal
regulatory arrangement is meaningless, since compliance with measures cannot
be enforced.
Sweet criticized voluntary measures in the United States, particularly in air cargo
security. She testified that compliance could not be guaranteed “…because
security is often the bottom line budget item.”1617 As profit-seeking entities
facing competing interests, businesses may limit the security measures they
choose and apply them inconsistently.
The lessons of history cannot be ignored. The Commission heard how, on June
22, 1985, the Linescan II X-ray machine for checked baggage was not available
in Toronto. Instead, Air India used the PD-4 “sniffer,” despite being informed
of its ineffectiveness in detecting explosives.1618 The evidence suggests that
economic considerations and time constraints in a customer-oriented business
environment influenced the decision not to engage in manual methods of
1613 The Partners in Protection program, administered by the Canada Border Services Agency (CBSA),
“enlists the cooperation of private industry to enhance border and trade chain security.” As such, the
program urges members to improve their physical, infrastructural and procedural security. The
program involves an arrangement “based on goodwill” that addresses security enhancements through
self-assessments, with the goal of minimizing the threat of illegal activity. See Exhibit P-414.
1614 The Customs and Trade Partnership Against Terrorism (C-TPAT) program in the United States enables
shippers, freight forwarders and air carriers to apply to become certified for the purpose of facilitating
trade across the border. Certification in C-TPAT is based on an accreditation process in which a security
program is required. At the moment, certification in C-TPAT is provided by the Department of
Homeland Security (DHS), but this function may be outsourced to third parties in the future.
1615 Exhibit P-157, p. 66 of 135; see also Exhibit P-101 CAC0517, p. 5 of 5.
1616 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4948.
1617 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4948,
1618 Exhibit P-157, p. 61 of 135
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passenger-baggage reconciliation and physical inspection of baggage, even in
light of the security threat at the time.
In a November 1984 memorandum, Sheppard noted the difficulties experienced
by Transport Canada in assisting the air carriers to meet their security
requirements for checked baggage and small freight:
Continuing need for high level security for certain airlines such
as Air India. Baggage matching was so time consuming and
leading to loss of confidence on the part of the passengers
that Air India has leased a large scan ray unit for Mirabel.1619
Programs for air cargo security must be regulated so that all comparable entities
face the same requirements, including meaningful oversight and enforcement.
The regulated agent program approved by ICAO and, by inference, approved
by Canada as a member state of ICAO, is an example of a global program that
effectively addresses the threat posed by air cargo.
3.8.1.3.4 Inadequate Cargo Screening
Note on Terminology
One issue that must be addressed is precision in terminology. The terms
“screening,” “searching” and “inspecting” were used in reference to air cargo
security, often in a seemingly interchangeable manner. When the Commission
sought to better understand these terms, differences in interpretation became
apparent. This was of concern, since confusion over the meanings of these terms
could impact cargo security.
Conrad described “screening” as a broad term that encompasses all methods
of validating and verifying cargo, including “searching” and “inspecting” cargo.
He described “searching” and “inspecting” as equivalent terms that refer to the
examination of cargo by physical, X-ray, trace, canine and other such means.1620
These methods were considered “active” forms of security screening.1621 He
viewed “searching” and “inspecting” as a sub-component of the global term
“screening.”1622
On the other hand, Duguay stated that the current aviation security regime
distinguished between “screening” and “searching.” He described “screening” as
simply referring to the process by which air carriers accept cargo from shippers
or freight forwarders. This involved an assessment of specific security indicators,
1619 Exhibit P-101 CAF0581, p. 1.
1620 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5191; see also Exhibit P-101 CAF0872, p. 3.
1621 Conrad described “passive” forms of screening as including, for example, the use of holding periods or
decompression chambers. See Exhibit P-101 CAF0872, p. 2.
1622 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5191.
�Chapter III: Civil Aviation Security in the Present Day
such as the size, description and source of a cargo shipment, to determine
whether it raised any security concerns. Cargo from an unknown shipper, for
example, required more stringent security controls. Only an air carrier employee
with extensive training in the security indicators linked to cargo acceptance was
allowed to perform this task.1623
Conrad’s description of screening would include the process of cargo acceptance,
as described by Duguay. Throughout the Commission’s hearings on aviation
security, experts and industry stakeholders, including Duguay, frequently used
air cargo “screening” in a sense that incorporated “searching” and “inspecting.”1624
This appears to be consistent with the definitions of “screening” found in the
Aeronautics Act and in the Canadian Aviation Security Regulations. Although the
definition in the Regulations refers only to passengers, baggage and vehicles,
the definition in the Act applies to aviation security generally.1625
There also appears to be confusion about these terms in the United States.1626
The TSA considers “inspection” to be a subset of “screening,” according with
Conrad’s interpretation of these terms.1627
It seems that the broad conceptualization of the term “screening” is part of
common industry parlance, and finds support in legislation. For clarity, however,
greater precision and conformity is necessary.1628 With respect to cargo, this
Report considers the term “screening” as pertaining to all methods of validation
1623 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5254.
1624 Exhibit P-169, p. 48; Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5291.
1625 Aeronautics Act, s. 4.7: “screening” means a screening, including a search, carried out in the manner
and under the circumstances prescribed in aviation security regulations, security measures, emergency
direction or interim orders; Canadian Aviation Security Regulations, SOR/2000-111, s. 1: “screening”
means the checking, identification, observation, inspection or authorized search of persons, goods and
other things in the possession or control of persons who are screened and vehicles under the care or
control of persons who are screened to prevent the carrying or transport, contrary to these
Regulations, of weapons, explosive substances, incendiary devices or their components or other
dangerous items that could be used to jeopardize the security of an aerodrome or aircraft: Exhibit
P-176.
1626 Comments submitted to the Transportation Security Administration following the publication of the
Notice of Proposed Rulemaking (NPRM) on November 10, 2004, regarding proposed air cargo
regulations in the United States included questions about the distinction between the terms “inspect”
and “screen.” See Exhibit P-415, p. 30484.
1627 The TSA defines “screening” as a broad term referring to the “…systematic evaluation of a person or
property to assess whether either poses a threat to security.” The term “inspection” is considered a
subset of “screening,” since it is a method of conducting such an evaluation, but is not the only means
of doing so. The known shipper program in the United States, for example, is considered an
“information-based” method of screening, since it involves screening of cargo using information that
is known about the shipper. As such, the TSA has advised that the terms “inspection” and “screening”
are not interchangeable. See Exhibit P-415, p. 30484.
1628 In a 2005 report on air cargo security, the United States Government Accountability Office also
emphasized the need for clearer definitions for “screening” and “inspection” in order to ensure the
appropriate type of inspection is conducted for air cargo. The report contended that the Transportation
Security Administration (TSA) used the terms interchangeably, creating confusion among stakeholders
about the actions they were required to take in examining air cargo. In particular, it was noted that
some stakeholders were unsure whether “inspection” meant conducting a physical search, and
whether “screening” meant the use of non-intrusive methods such as X-ray machines. See Exhibit
P-417, p. 63.
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and verification, including “searching” and “inspecting,” as well as to cargo
acceptance as outlined by Duguay. The more specific terms will be used here,
where appropriate. The terms “searching” and “inspecting” refer to active forms
of cargo screening.
Minimal Searching of Air Cargo
Air cargo is not routinely searched prior to being placed aboard aircraft.1629
Under the current legislation, the responsibility for searching air cargo by
X-ray or other means lies with the air carrier.1630 The searching is done at the
air carrier’s discretion,1631 or in circumstances specified by the confidential Air
Carrier Security Measures. The air carrier may contract with another agency to
perform this work on its behalf.1632
In the US, the DHS reported that most cargo carried on passenger aircraft is
not physically screened or inspected.1633 Legislation enacted in 2005, however,
required the TSA to increase the percentage of cargo destined for passenger
aircraft that had to be inspected.1634 In August 2007, legislation was enacted to
require 100 per cent screening by 2010.
In Canada, cargo from unknown shippers is subject to a delay before being
carried on aircraft, but cargo from known shippers is accepted for immediate
transport.1635 Known shippers account for most of the cargo carried on passenger
aircraft,1636 yet there is no requirement that these entities secure cargo before its
arrival at the airport, and the shippers themselves are subject to little scrutiny.
Lack of Technological Equipment
Legislation provides for air carriers to employ technical equipment for searching
cargo, but Duguay testified that Air Canada does not have access to such
equipment at airports in Canada.1637 This was startling testimony from the
Director of Security for the nation’s largest airline, especially given the Seaborn
Report’s recommendation almost a quarter century ago for technology to be
employed to screen air cargo.
Even before the Seaborn Report, industry participants had identified the lack of
X-ray facilities for handling cargo at airports as a security gap. The main concern
was the potential for small parcels to target specific flights. This concern was
brought to Transport Canada’s attention no later than November 1984.1638 In
1629 Exhibit P-169, p. 52 of 202.
1630 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5188.
1631 Exhibit P-169, p. 52 of 202.
1632 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5188.
1633 Exhibit P-417, pp. 1-2.
1634 Exhibit P-417, p. 2.
1635 Exhibit P-169, p. 53 of 202.
1636 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5261.
1637 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5291
1638 Exhibit P-101 CAF0637, p. 14 of 22.
�Chapter III: Civil Aviation Security in the Present Day
November 1984, Sheppard appeared to consider using X-ray equipment to screen
cargo in some circumstances. In an internal Transport Canada memorandum,
Sheppard suggested that X-ray units, which had already been deployed at
some airports in the United States, might provide a solution for securing both
checked baggage and small freight. He proposed purchasing mobile “scan ray”
units for Transport Canada’s major facilities and specified that the units should
have openings large enough to accommodate small cargo.1639
It is clear that the use of X-ray equipment for screening cargo was contemplated
before 1985. It was recommended by the Seaborn Report, as were other
methods for searching cargo. By 2007, however, Canada’s largest airline still did
not have access to X-ray machines or any other technology for searching cargo.
This conflicts with the assessment by Marriott in his testimony that Transport
Canada had “aggressively pursued” all the Seaborn recommendations.1640
Challenges in Searching Air Cargo
Cartwright and Conrad both saw developing a program for air cargo screening
as challenging. They testified that air cargo screening is more complex than
either passenger or baggage screening because of the multiple variable
characteristics of cargo. The size, content and makeup of passengers and
baggage are predictable to some degree; this is not the case for much air cargo.
Passenger baggage, for example, must comply with size and weight restrictions.
Since bags are always notionally “attached” to passengers, they tend to contain
similar items.1641 There is no such consistency with air cargo shipments.
Air cargo is highly diverse,1642 consisting of any commodity that can be shipped
by air, from livestock1643 to fresh produce1644 to large machinery.1645 Cargo is
often consolidated into large containers and pallets, making searches difficult.
The smallest packages are the simplest to screen.1646 Although better means to
screen pallets are being developed, the most effective screening occurs when
cargo is in small containers. As a result, the best time to use technology to search
cargo is before it is consolidated with other cargo in a large container.1647
The greater volume of cargo compared to passenger baggage also presents a
challenge for screening,1648 as do the urgent time frames surrounding certain
types of cargo, such as fresh seafood and cut flowers.1649 Air cargo screening
must also contend with geographic variability. Particular types of cargo, such
1639 Exhibit P-101 CAF0581, p. 2.
1640 Testimony of Jim Marriott, vol. 37, May 31, 2007, p. 4504.
1641 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5151.
1642 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5233.
1643 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5261.
1644 Exhibit P-417, p. 9.
1645 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5198.
1646 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5203.
1647 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5201.
1648 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5233.
1649 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5180-5181.
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as fresh or frozen fish, are concentrated in certain locations. Not all screening
equipment works equally well with all types of cargo.1650 Part of the difficulty
in deciding which screening technology to employ stems from the wide
variance in the types of cargo being shipped from different locations across the
country.1651
Cartwright testified about the importance of matching technology to the type
of cargo to ensure that screening is effective and not merely perfunctory.1652 This
is a critical endeavour. One of the most important lessons from the bombing of
Air India Flight 182 was to avoid the merely cosmetic use of technology.1653
Lagging Technological Advancement
Despite the challenges in searching air cargo, it appears that much of the
developed world has long embraced technological means for doing it. In 1990,
the production of mass spectrometry equipment and research into thermal
neutron analysis techniques were accelerated for the purpose of screening air
cargo.1654 Yet in 2007, Transport Canada advised that it was only just considering
some of these techniques.1655 In 1993, X-ray manufacturers had already for some
time been refining products for handling bulk containers.1656 However, Transport
Canada informed the Commission that technologies for screening consolidated,
or bulk, cargo were still in the development stages.1657
In 2003, Wallis argued that the required technology for screening air cargo was
available and had been deployed “in airlines’ cargo warehouses.” He also reported
that mass spectrometry and other vapour analysis systems for handling bulk
shipments had already “proved their potential,” and that “hi-tech” screening
devices had been developed and were positioned in airline cargo warehouses
around the world:
Cargo security has moved with, and in some cases ahead of,
the times. Hi-tech defenses have been harnessed to take air
cargo security into the twenty-first century.1658
Testimony at the Commission hearings supported the contention of Wallis that
the technology for searching cargo exists. Air Canada employs X-ray machines
to search cargo in other countries that require such searches. For example,
X-ray machines have been positioned at Air Canada’s cargo hangars in London
1650 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5151.
1651 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5180-5181.
1652 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5180-5181.
1653 Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 5256-5257.
1654 Wallis, Combating Air Terrorism, p. 78.
1655 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5181.
1656 Wallis, Combating Air Terrorism, p. 78.
1657 Final Submissions of the Attorney General of Canada, Vol. II, para. 363.
1658 Wallis, How Safe Are Our Skies?, p. 112.
�Chapter III: Civil Aviation Security in the Present Day
and Paris, where screening is mandatory. In addition, Air Canada has deployed
screening equipment in areas deemed to be at increased risk, such as some
Caribbean locations.1659 Air Canada has not deployed X-ray equipment for cargo
at Canadian airports mainly because it is not mandatory.1660
The Commission heard that North America has lagged behind the rest of the
world on cargo screening.1661 Other global airlines, such as Lufthansa1662 and
Singapore Airlines, use X-ray technology to screen air cargo.1663 The Commission
was informed, for example, that Lufthansa uses a variety of methods to screen
cargo, including X-ray and trace detection equipment and canine units. It also
screens 100 per cent of air cargo leaving Germany for the United States. For
shipments of air cargo to all other destinations, random screening occurs.1664
Singapore Airlines uses X-ray equipment which can scan larger bulk cargo and
also uses other methods, including canine units.1665 In addition, equipment is
currently being tested in Europe to enable an entire cargo pallet to be screened
at once.1666
In 1990 in the United States, the White House Commission on Aviation Safety
and Security (Gore Commission) recommended using existing technologies
and developing new ones for screening air cargo for explosives.1667 In 2002, a
review of air cargo security in the US revealed several technologies with the
potential for enhancing security. They would be used for detecting explosives
and other threat objects, including radiological, chemical and biological agents.
These technologies and other methods for screening air cargo included:1668
•
•
•
•
•
•
•
Gamma-ray;
Pulsed fast neutron analysis;
Thermal neutron activation;
X-ray, including bulk explosives detection systems (EDS);
Radiation detection;
Trace detection; and
Vapour detection.
The Gore Commission report noted that these technologies all had securityenhancing benefits, but also potential limitations. The report suggested that
1659 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5259.
1660 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5290.
1661 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5260; see also Testimony of Rodney Wallis, vol. 41,
June 6, 2007, p. 5003.
1662 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5253.
1663 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4961.
1664 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5252-5253.
1665 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4961.
1666 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5260; see also Testimony of Rodney Wallis, vol. 41,
June 6, 2007, p. 5003.
1667 Exhibit P-416, p. 12.
1668 Exhibit P-416, p. 11.
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existing trace explosives detection devices and bulk explosives detection
systems used for screening passenger baggage could be used to screen cargo
containers. The TSA reported that “…the use of trace devices to screen cargo
has shown few problems.”1669 In 2005, TSA officials reported that the preliminary
results of pilot testing programs about the applicability of EDS technology for
individual pieces of air cargo (“break bulk cargo”), suggest that the technology
was well suited for such use, although some limitations were identified. This
technology’s potential for screening air cargo was being assessed because it had
already been used for inspecting checked baggage.1670 In addition, electronic
seals were recommended. These are radiofrequency devices that transmit an
alarm when a container is compromised during transport or at cargo handling
facilities.1671
Explosives Detection Dogs
The report made special mention of canines as one of the “most effective” and
“most promising” methods for screening air cargo. The report noted that canine
teams had “proven successful” and that their use had expanded significantly
in the United States in recent years.1672 Sweet testified that canine units are
particularly effective for screening large pallets of cargo. Canines can detect
5,000 to 7,000 different chemicals, organic compounds and other substances.
Well-trained canines with good handlers are invaluable for air cargo screening.
Sweet advised using canine units on a random basis or for individual risk
assessments – for example, on a particular aircraft. She testified that the cost
to train and maintain dogs was much less than the cost of purchasing and
maintaining advanced technology.1673
As with any method of screening, canine units have limitations. When used to
detect explosives and other substances, dogs have limited attention spans. They
can serve for roughly twenty minutes before they need a rest.1674
Wallis agreed that canine units are very effective for screening air cargo and that
they are usually used in specific circumstances. For example, in 1985, Air India
requested bomb-detecting dogs to assist with screening checked baggage.
Even at that time, Wallis testified, “…you had a carrier under high threat realizing
the value of dogs.”1675
1669 Exhibit P-416, p. 12.
1670 Exhibit P-417, pp. 53-54.
1671 Exhibit P-416, p. 10 and footnote 4.
1672 Exhibit P-416, p. 12.
1673 Sweet provided an estimate of the cost of training canine units as approximately $10,000. See
Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4954-4955. There was general consensus
amongst witnesses that canine units are beneficial for screening cargo, although limitations were
noted as discussed above. See also, for example, Testimony of Moses Aléman, vol. 35, May 29, 2007,
p. 4247, Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5260, Testimony of Rodney Wallis, vol. 41,
June 6, 2007, p. 5006.
1674 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4955.
1675 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5006.
�Chapter III: Civil Aviation Security in the Present Day
Working Toward a Cargo Screening Standard
Transport Canada cooperates with the United States on research, development,
testing and evaluation of air cargo screening technologies.1676 It appears that
the United States is ahead of Canada in deploying these technologies. In 2005,
the Government Accountability Office reported that, although a certification
standard was being considered for air cargo inspection technologies, the TSA
would permit air carriers to continue using the technologies and methods
described in existing air carrier standard security programs and TSA security
directives. These technologies and methods included the following: manual
physical searches; X-ray systems; explosives trace detecting equipment;
explosives detection systems; explosives detection canine teams; and
decompression chambers.1677
Cartwright testified that airlines in other countries may screen cargo using
X-ray and other equipment. He suggested, however, that not all such screening
would be sufficiently sophisticated to meet the requirements of Canadian
regulations:
…It’s that screening can mean different things. The fact that
something is run through an imaging system, which, in the
case of a large container, would be a higher energy X-ray
usually or a gamma system, you can produce an image of it.
That doesn’t necessarily mean that you have the capacity or
capability to detect the same criteria that we might establish,
which we talked about as the standard, the standard being
to be able to detect the same thing that you’ve required for
detection for the standard passenger bag.
So without question, I think she [Sweet] is probably accurate in
her statement that the screening is being done. The question
is, is it being done at a level that is equivalent to what we have
defined as being our baseline requirement?
He also questioned the quality of the equipment being used:
…And in some cases, certainly, some of the imaging systems
are much like the imaging systems of old where they have no
tools to assist the operator. And the question is, out of a very
complex image, what level of success are you likely to have in
identifying the kind of target materials and quantities that we
have defined as being our baseline?1678
1676 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5169.
1677 Exhibit P-417, p. 53.
1678 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5213.
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Duguay testified that equipment already in use for hold bag screening (HBS)
could be used for cargo screening.1679 Cartwright stated that technological
developments in other areas of aviation security were applicable to some
aspects of cargo security,1680 but that not all screening equipment was suitable
for all types of cargo.1681 Screening cargo is more complex than screening
passengers or baggage because of its comparatively high variability. It is only in
recent years that Transport Canada has engaged in research and development
to assess air cargo screening technology.1682
Whitaker testified that it was not possible to screen all cargo physically if the
mechanisms to do so were not in place. He cited as an example the delays
experienced in the US when it announced the move to 100 per cent cargo
screening.1683 He attributed the delays to the lack of necessary equipment. In
contrast, Sweet stated that the delay in implementation had more to do with
industry concerns about costs.1684 Whitaker stated that, even though 100 per
cent screening was not easy, it was “…certainly something that should be
pursued quite aggressively.”1685
A further lesson of the Air India bombings is the danger of excessive reliance
on poorly-developed technology. In 1985, the X-ray equipment deployed for
baggage screening was in its infancy and, according to Wallis, was so rudimentary
that its effect was simply cosmetic.1686
In 1985, technology was used in place of both physical searches and passengerbaggage reconciliation – methods that were considered more effective but that
were labour-intensive and time-consuming. Transport Canada itself appeared
to encourage using technology for baggage screening because of the costs and
inconvenience to airlines of slower, manual means of “matching and opening
checked baggage.”1687
If Transport Canada holds a genuine belief, based on objective research, that a
given technology for cargo screening does not meet the standard required, it is
duty-bound not to deploy the technology until it meets that standard. However,
Wallis wrote that good technology was well-established and already in place, at
least by 2003.1688 Cartwright appeared to concede that the technology is now
available when he was asked about the estimated timeline for implementing
screening technologies in Canada:
1679 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5260
1680 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5131.
1681 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5151.
1682 Exhibit P-188, p. 14.
1683 Exhibit P-415.
1684 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4949.
1685 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4631.
1686 Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4256-4257.
1687 Exhibit P-101 CAF0581, p. 1.
1688 Wallis, How Safe Are Our Skies?, p. 112.
�Chapter III: Civil Aviation Security in the Present Day
There are technologies available today. The technology is evolving constantly.
Our goal and our challenge is to come up with enough of
the technologies to be able to satisfy the requirements to be
able to come up with a program. Will the program, five years
from now, be the same as it is today? Probably not. But the
whole purpose is to design it, as we did with the Hold Baggage
Screening, is so that it can evolve and will get better as the
technology comes along to help us.1689
It is important to avoid excessive reliance on technology, but its judicious use
serves as one important layer in the overall scheme of aviation security. Advanced
systems already exist for passenger and baggage screening and have proven
to be effective as part of a multi-layered approach to security. The anticipated
increase in cargo volumes makes all the more important the assistance that
X-ray and other technologies may offer.
Technology is constantly evolving. If good, reliable technology is currently
available, it should be deployed (if necessary, with other measures to compensate
for any limitations of the technology) as one layer in the process of securing
air cargo. Given the security risks posed by air cargo, Canada cannot afford to
wait.
Interim Measures
Even if Transport Canada concludes that appropriate equipment for searching
cargo does not yet exist, this does not absolve the Department of the
responsibility to ensure that cargo is secure. Alternatives to technology must
be used.
Air Canada does precisely this for a certain segment of air cargo. Air Canada is
required to screen “non-exempt”1690 cargo moving out of Montreal, Toronto and
Vancouver destined for the United States.1691 Duguay explained that, though Air
Canada did not have access to technical equipment to screen cargo, screening
alternatives were available. One was a manual search. Guards have been hired at
Air Canada’s three major centres – Vancouver, Toronto and Montreal – expressly
to search US-bound non-exempt cargo manually.1692 Duguay testified that Air
Canada exceeds the US requirement by screening 100 per cent of non-exempt
cargo shipped to the US.1693
1689 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5207.
1690 There are a number of criteria that enable cargo to be classified as “exempt” from the screening
requirement. These are specified in the Canadian regulations as well as in the Model Security Program
of the Transport Security Administration (TSA), which the United States provides to foreign carriers
such as Air Canada. One criterion, for example, is designation as a certified shipper. See Testimony of
Yves Duguay, vol. 43, June 14, 2007, pp. 5252, 5254.
1691 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5253-5254.
1692 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5290.
1693 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5253.
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Clearly, it is possible to search at least a portion of air cargo before it is loaded
onto an aircraft. Where a requirement to do this has existed, air carriers have
complied. Duguay testified that the measures used for searching non-exempt
cargo could be applied to exempt cargo as well, based on risk and threat
analysis.1694
Interim measures have been part of the screening program in the United
States while it awaits more advanced technology. TSA officials reported that,
in the absence of formally approved technology, air carriers will be permitted
to continue to use existing technologies and methods that are described in air
carrier standard security programs and TSA security directives. These measures
include manual physical searches, X-ray equipment, EDT equipment, explosive
detection systems and canine teams.1695
The air cargo industry operates with time-sensitive cargo.1696 That cargo
represents a significant source of revenue for airlines,1697 and many in the industry
maintain that time constraints and the volume of cargo present a challenge for
screening at airports.1698 Yet air carriers seem able to comply with screening
obligations in jurisdictions where cargo searches are required – for example, in
Canada for non-exempt cargo headed to the US. Impediments to searching all
air cargo in Canada may flow more from concerns about ease, convenience and
expense than from valid concerns about the cargo’s time sensitivity or volume.
3.8.1.3.5 Inadequate Training
However searches of cargo are performed, they are of little use if done poorly.
Sweet testified that insufficient training of cargo handlers has resulted in poor
search techniques and a lack of security awareness. She stressed that cargo
loaders and cargo screeners need to better understand their tasks. Cargo
handlers must know what they are looking for in cargo, and they also need to
better appreciate the impact on aircraft security. She gave examples of cursory
physical searches, such as not removing shrink-wrap from cargo because of the
perceived difficulty of doing so, or inspecting only one box of a large pallet.
Sweet stated that such practices provide no assurance that cargo is secure.1699
Along with training, supervision and monitoring of cargo handlers are also
important.
Deficiencies in training worsen an already distressing situation. Following the
loss of Air India Flight 182, new training programs for screeners were developed,
but these appear to have been restricted to passenger screening.1700 This is
consistent with the fact that passengers and baggage were the main priority
1694 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5292.
1695 Exhibit P-417, p. 53.
1696 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5203.
1697 Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4246.
1698 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5187.
1699 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4953-4954.
1700 Exhibit P-263, pp. 68, 70.
�Chapter III: Civil Aviation Security in the Present Day
at the time. The evidence showed that it was not until 2001, in the wake of the
events of September 11th, that cargo training programs began to be addressed.
In October of that year, the Government announced an initiative to fund
training programs for cargo handlers to support the implementation of new
technologies.1701
Training for air cargo security in Canada continues to focus on screening, the
process applied when cargo is presented for acceptance by a carrier. In 2003,
Transport Canada revised its screening training for all employees involved
in cargo acceptance at Class 1 and Class 2 airports. The aim was to give the
employees the knowledge and skills needed to perform their duties as air cargo
screeners.1702 However, no mention was made of any training for the actual
physical search of air cargo. Screening, as Duguay explained, is the process that
occurs when a shipper tries to get cargo accepted by a carrier’s agent, who
considers the description of the merchandise, whether the shipper is familiar,
and other factors. Searching involves actually examining the cargo.1703
There appears to be very little training about searching cargo in Canada. As
previously discussed, the Commission was told that all Air Canada’s non-exempt
cargo transported to the United States is physically searched by guards.1704 The
Commission was also advised that air carriers may choose to search cargo in
certain circumstances.1705 The absence of training, however, provides little
comfort that the searches are performed properly. As Sweet testified, poorly
executed searches are no searches at all.1706
Sweet spoke highly of the UK training system relating to cargo. Training is
required for any person handling cargo and consists of a two-day initial training
session and an annual refresher course. She emphasized that “anybody touching
cargo [by] any means whatsoever” must take the training.1707
3.8.1.3.6 Poor Access Control
Sweet testified that access to air cargo is also not well controlled in the US and
spoke about inadequate non-passenger screening (NPS). She testified that too
many people, whose job functions do not intersect with cargo activities and who
may not have been security-screened or subjected to background clearances,
nonetheless have access to cargo.1708
In 2005, the US Government Accountability Office drew attention to the security
risks posed by air cargo because of inadequate background investigations of
those handling cargo and the illegal shipment of hazardous materials. Cargo
1701 Exhibit P-157, p. 98 of 135.
1702 Exhibit P-263, p. 86.
1703 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5254.
1704 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5290.
1705 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4651.
1706 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4954.
1707 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4958.
1708 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4945-4946.
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theft was seen as an indication of potential weaknesses in air cargo security.1709
Similar concerns exist in Canada. In 2007, the Senate Committee reported its
dismay at the potential connection between organized crime at airports and
airport security. Describing airports as “riddled” with organized crime, the
Committee observed that criminals were profiting from gaps in security. Those
same gaps could help terrorists.
The Committee also concluded that the interests of some organized crime
groups overlap with those of terrorists. Among the solutions proposed by
the Committee were addressing concerns surrounding insufficient policing,
inadequate background checks and inadequate control of access to restricted
areas.1710
3.8.1.3.7 Enhancements Required
The eighth edition of Annex 17, issued in 2006, requires security controls for
cargo and mail:
4.6.4 Each Contracting State shall ensure that operators do
not accept cargo or mail for carriage on an aircraft engaged
in passenger commercial air transport operations unless the
application of security controls is confirmed and accounted for
by a regulated agent, or such consignments are subjected to
appropriate security controls.
Canada does not appear to meet its obligations even under what is acknowledged
to be merely a minimum standard. It has no regulated agent program, nor are
appropriate security controls applied to air cargo.
3.8.1.4 Proposal for an Enhanced Regime: Air Cargo Security Initiative
Only within the last five years has the Government of Canada publicly
acknowledged that air cargo security is wanting. In April 2004, it unveiled its
first National Security Policy, which identified enhanced air cargo security as a
priority.1711
Following this declaration, Transport Canada began to evaluate existing security
requirements for air cargo.1712 It held consultations with industry stakeholders,
assessed air cargo security in other jurisdictions, considered technological
advances and conducted an air cargo risk assessment. As a result, the Department
1709 It was reported that cargo theft in the United States is estimated to range in the billions of dollars
annually. See Exhibit P-417, p. 24.
1710 Exhibit P-172, pp. 17-18 of 155.
1711 Exhibit P-418, p. 38.
1712 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5183.
�Chapter III: Civil Aviation Security in the Present Day
recommended advancing to the next phase of the initiative – program design
and pilot testing.1713
In the federal Budget of 2006, the Government allocated $26 million over two
years to support design and pilot testing.1714 These funds were to assist with
two principal aspects of air cargo security: “…the development of measures to
ensure cargo security throughout the supply chain, as well as the evaluation
of screening technologies.”1715 The Air Cargo Security (ACS) Initiative was
launched as a result,1716 led by Transport Canada and supported by the Canada
Border Services Agency (CBSA).1717 The Initiative’s purpose was “…to address
the continuing threat of terrorism, escalating international aviation security
standards and Canadian security needs.”1718 The CATSA Advisory Panel stated
that this infusion of funding demonstrated Canada’s commitment to take action
on air cargo security and to honour the promise contained in the 2004 National
Security Policy.1719
However, others have been discouraged by an apparent lack of progress. In its
2007 follow-up report on aviation security, the Senate Committee noted that
air cargo security was “… still at the discussion stage more than five years after
9/11….”1720
The Senate Committee was also discouraged by Transport Canada’s apparent
attention to competing economic interests. In its July 7, 2006, response to the
Senate Committee’s 2003 report on aviation security, Transport Canada referred
to policy discussions with stakeholders that started in 2004. The Committee,
responding in its own 2006 report, stated that emphasis was placed on
facilitating the “efficient movement of goods,”1721 and that consultations with
stakeholders amounted to discussions with those having a financial stake in air
transport. The Committee recognized that economic and efficiency interests are
a reality of the air cargo industry, but suggested that such interests may impede
air cargo security. The Committee cautioned that efficiency measures should
not “trump” security measures.1722
The Senate Committee was nonetheless encouraged that Transport Canada
had at last openly acknowledged deficiencies in air cargo security. Although
the Committee felt that Transport Canada had hitherto considered its views
“alarmist,” the Committee praised the Department in its 2007 report for finally
putting “…the Government of Canada firmly on record as acknowledging the
existence of ‘the air cargo security gap’ – a gap the Committee has been pointing
1713 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5183; see also Exhibit P-172, pp. 41-42 of 155.
1714 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5183.
1715 Exhibit P-169, p. 54 of 202.
1716 Exhibit P-419.
1717 Final Submissions of the Attorney General of Canada, Vol. II, para. 354.
1718 Exhibit P-419.
1719 Exhibit P-169, p. 54 of 202.
1720 Exhibit P-172, pp. 66-67 of 155.
1721 Exhibit P-172, pp. 42-43 of 155.
1722 Exhibit P-172, p. 42 of 155.
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to for five years now.”1723 In testimony before the Senate Committee on June
19, 2006, Louis Ranger, Deputy Minister at Transport Canada, also conceded as
much when questioned about the new initiative for cargo security, stating, “We
have been concerned. There are gaps there that we need to deal with.”1724
The ACS Initiative proposed a major overhaul of the air cargo security regime,
the first ever undertaken in Canada. In accordance with the 2006 federal Budget
directive, Transport Canada adopted a “two-pronged approach” to improving
air cargo security: hardening supply chain security and improving cargo
screening. The first involved establishing a national system of regulated agents
to ensure that air cargo was secure from its point of origin to its arrival at an
aircraft. Air cargo that was secured in this way was considered low risk, which
was the primary goal of hardening supply chain security. The second prong of
the approach involved assessing and developing screening technologies and
protocols for air cargo, with an emphasis on high risk or “targeted” cargo.1725
These developments coincided roughly with the first detailed audit of Canada’s
aviation security regime, conducted by ICAO in the spring of 2005.
3.8.1.4.1 Developments in Air Cargo Security in the United States
The development of the proposed ACS Initiative in Canada coincided with air
cargo security developments in the United States.1726 There, the security of air
cargo is the responsibility of the TSA, created in November 2001 by the Aviation
and Transportation Security Act.1727 Until recently, the emphasis of air cargo
security was on passenger aircraft.1728 Air carriers and freight forwarders were
required to have TSA-approved security programs in order to ship cargo on
passenger aircraft.1729 In 2001, the Act required that all cargo carried on board
passenger aircraft be screened and that a system for screening, inspecting or
otherwise ensuring the security of cargo on all-cargo aircraft be established
“as soon as practicable.”1730 In May 2006, new air cargo regulations were issued
to improve the security of air cargo, in part by extending many of the security
requirements for passenger aircraft to all-cargo aircraft. These measures
stemmed from the two risks seen by the US as paramount in air cargo – the use
1723 Exhibit P-172, p. 41 of 155.
1724 Exhibit P-172, p. 66 of 155.
1725 Final Submissions of the Attorney General of Canada, Vol. II, paras. 354-356.
1726 Information respecting air cargo security in the United States is largely limited to documentary
evidence that derives mainly from publicly available government reports. The Commission’s hearings
did not focus in any extensive manner on aviation security in the United States. However, the
Commission felt that the information contained in some publicly available documents provided a
useful basis for comparison in air cargo security.
1727 Exhibit P-416, p. 1.
1728 Exhibit P-416, p. 1.
1729 Exhibit P-416, p. 8.
1730 Exhibit P-416, p. 1. The terms “screen” and “inspect” are understood in the same manner as their
Canadian counterparts. Screening refers to the “…systematic evaluation of a person or property to
assess whether either poses a threat to security.” Inspection is a method of conducting such an
evaluation, but is not the only method. The TSA considers inspection to be a subset of screening. See
Exhibit P-415, p. 30484.
�Chapter III: Civil Aviation Security in the Present Day
of cargo to introduce an explosive device on board passenger aircraft, and the
takeover of an all-cargo aircraft and its use as a weapon.1731
In 2002, the US General Accounting Office (GAO), the predecessor to the
Government Accountability Office, released a report that described the
susceptibility of air cargo to sabotage. The report observed that “…[i]f
vulnerabilities exist in the transport of air cargo, they potentially threaten the air
transport system.”1732 It noted that vulnerabilities in air cargo security had been
identified as early as 1996 by the Gore Commission, and by a number of other
government and industry studies. It cited weaknesses in air carrier and freight
forwarder security procedures, including inadequate background checks for
cargo handlers, and problems with cargo tampering.1733
As in Canada, the GAO report found that aviation security efforts in the US had
focused almost entirely on improving passenger and baggage security, leaving
air cargo exposed. The report noted that, despite the legislative requirement
to screen all cargo travelling on passenger aircraft, only a limited amount was
being screened. This was attributed to the large volume of cargo and the fact
that cargo delivery was considered time-critical.1734
The report noted that the TSA, like the FAA before it, had been slow to move
on numerous recommendations of the Gore Commission and other industry
studies. Like the Gore Commission, the GAO report stressed the need for a
comprehensive security plan outlining long-term goals, performance targets,
time frames for completing security improvements and risk-based criteria
to prioritize actions for achieving those objectives. It also recommended
incorporating a risk management approach into air cargo security to assist in
systematically evaluating and prioritizing various technological and operational
security improvements.1735
In January 2003, the TSA formed a working group with industry stakeholders to
address air cargo security. Of note, the working group involved family members
of the victims of Pan Am Flight 103, as well as groups representing airlines,
pilots, freight forwarders and government agencies.1736 In November 2003, the
TSA issued an Air Cargo Strategic Plan that outlined a layered, threat-based
and risk-managed approach to air cargo security.1737 The plan focused on the
perceived risks of explosive devices on passenger aircraft and of the hijacking of
all-cargo aircraft. As part of its risk-management approach, the plan highlighted
four strategic objectives:1738
1731 Exhibit P-415, p. 30479.
1732 Exhibit P-416, p. 1.
1733 Exhibit P-416, p. 8.
1734 Exhibit P-416, p. 20.
1735 Exhibit P-416, pp. 20-21.
1736 Exhibit P-417, pp. 17, 77.
1737 Exhibit P-415, p. 30479; see also Exhibit P-417, pp. 17-18.
1738 Exhibit P-417, pp.4-5.
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1. Enhancing cargo shipper and cargo supply chain security;
2. Identifying elevated risk cargo through pre-screening and ensuring
that 100 per cent of such cargo is inspected;
3. Identifying technology for inspecting elevated risk cargo; and
4. Strengthening the security of all-cargo aircraft and cargo operation
areas.
The GAO concluded that the air cargo strategic objectives tied into the broader
aviation and homeland security objectives contained in TSA’s agency-wide
strategic plan for transportation. They also reflected the goals of the strategic
plan of the DHS, of which the TSA is a part.1739
The Government of Canada announced its own National Security Plan in April
2004, naming air cargo security as a priority.1740 However, Transport Canada still
does not have a written national civil aviation security program, as required
by Annex 17.1741 With the proposal in Canada for a new initiative in air cargo
security, a clear, written national security program can ensure harmonization
and consistency within the overall aviation security regime.
In November 2004, the TSA published a notice of proposed rulemaking
(NPRM) to solicit public comment on proposed air cargo security regulations.
As outlined in the TSA’s Air Cargo Strategic Plan, the NPRM recommended
adopting a threat- and risk-based approach to air cargo security and focusing
the TSA’s efforts on the two critical risks described above – the use of cargo to
introduce an explosive device on passenger aircraft, and the takeover of an allcargo aircraft and its use as a weapon. The NPRM also proposed creating a new
security regime for all-cargo aircraft that met a minimum weight requirement,
requiring enhanced security controls on access to cargo and improving security
requirements for indirect air carriers,1742 the term given to regulated agents in
the United States.1743
On May 26, 2006, the DHS issued its Final Rule on Air Cargo Security Requirements
(Final Rule), which adopted the regulatory amendments proposed in the NPRM,
with only minor revisions.1744 This marked the first substantial amendments to
air cargo regulations in the United States since 1999.1745 In addition to general
enhancements to air cargo security, the Final Rule sought to extend to all-cargo
aircraft many of the air cargo security procedures that then applied to passenger
aircraft.1746
1739 Exhibit P-417, p. 18
1740 Exhibit P-418, p. 38.
1741 Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5017-5018.
1742 Exhibit P-415, p. 30479.
1743 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5192.
1744 Exhibit P-415, p. 30478.
1745 Exhibit P-421.
1746 Exhibit P-415, p. 30496.
�Chapter III: Civil Aviation Security in the Present Day
Some of the general air cargo security enhancements provided by the Final Rule
included:
• Improved background security checks of individuals working for air
carriers and indirect air carriers;1747
• Extension of designated areas of airports where security controls
apply to protect cargo;1748
• Extension of the TSA’s inspection authority of air carriers to include
off-airport locations or areas operated by an agent in furtherance of
an air carrier’s security responsibilities;
• Enhanced provisions for screening and accepting cargo by foreign
air carriers;1749
• Strengthened requirements for air cargo acceptance;1750
• Criminal background checks for cargo screeners who do not already
possess identification for sterile areas;
• Codification of the “known shipper” program;1751
• Consolidation of private industry “known shipper” lists into one
central “known shipper” database managed by the TSA;1752
• Extension of security requirements to agents of indirect air
carriers;1753 and
• Enhanced training for indirect air carrier employees and agents.1754
Some amendments were consistent with expanding security functions to
persons and property on all-cargo aircraft. They included:
• Security programs for all-cargo aircraft that meet a minimum
weight requirement,1755 certain foreign all-cargo air carriers1756 and
indirect air carriers providing cargo to all-cargo aircraft;1757
• Prohibition of the carriage of weapons, explosives and incendiaries
by individuals;1758 and
• Prevention of unauthorized access to the operational area of the
aircraft while loading and unloading cargo.1759
1747 Exhibit P-415, p. 30496.
1748 Exhibit P-415, p. 30497.
1749 Exhibit P-415, p. 30499.
1750 Exhibit P-415, p. 30498.
1751 Exhibit P-415, p. 30499.
1752 Exhibit P-421, p. 1.
1753 Exhibit P-415, p. 30500.
1754 Exhibit P-415, p. 30501.
1755 Exhibit P-415, p. 30499.
1756 Exhibit P-415, p. 30479.
1757 Exhibit P-415, p. 30500.
1758 Exhibit P-415, p. 30496.
1759 Exhibit P-415, p. 30498.
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In addition, since November 2003, TSA security directives required aircraft
operators and foreign air carriers to inspect a portion of their air cargo. The
NPRM proposed codifying the inspection requirement. Legislation passed in
2005 tripled the percentage of cargo that had to be inspected.1760 In August
2007, legislation was enacted to require 100 per cent screening of air cargo
transported on passenger aircraft by 2010.1761
The changes proposed to air cargo security in Canada echo many of the changes
taking place, or that have already taken place, in the United States. Captain
Craig Hall, Director of the National Security Committee of ALPA, observed that
“…[m]uch of what we do in cargo screening is driven by our friends to the south,
because in many respects our system is going to have to mirror theirs….” He
stated that the US is Canada’s largest trade partner and that Canada’s system will
need to meet US standards.1762
Harmonization and interoperability will always be important, but slow movement
on a security issue in the US must not be allowed to dictate progress in Canada.
The United Kingdom did not wait for others in the European or international
community before it introduced its comprehensive regulated agent program
in 1993. The program became a model for others, including Canada. After the
release of the Seaborn Report in 1985, Canada did not wait for other countries
before introducing passenger-baggage reconciliation.1763
Programs to address threats can be modified, if necessary, as other countries
come on board. In any event, as Cartwright acknowledged, cargo screening
programs can never be static. Newer and better technologies will continuously
appear, but this must not stall implementation of security measures before then.
The best available security procedures should be put in place, using a layered
approach to minimize weaknesses.
3.8.1.4.2 Hardening Supply Chain Security
To harden supply chain security, Transport Canada is focusing on two projects.
The first seeks to establish a system of regulated agents to secure low risk air
cargo throughout the supply chain.1764 Transport Canada proposes a three-tiered
system of regulated entities that will ultimately involve all levels of the supply
chain – shippers, freight forwarders and air carriers.1765 All regulated entities will
be required to apply security measures to air cargo, as specified by Transport
Canada.1766
1760 Exhibit P-415, p. 30479.
1761 Exhibit P-422, pp. 9-10.
1762 Testimony of Craig Hall, vol. 64, October 23, 2007, p. 8009.
1763 Exhibit P-157, p. 66 of 135.
1764 Exhibit P-422, p. 5; see also Final Submissions of the Attorney General of Canada, Vol. II, para. 355.
1765 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5189.
1766 Exhibit P-419.
�Chapter III: Civil Aviation Security in the Present Day
The second project aims to support the supply chain security programs through
a database, known as the Secure Supply Chain Management System (SSCMS).
The SSCMS will act as a central repository of industry information and provide
a portal for industry and government to share information. According to
Transport Canada, data entered into this system will be validated against other
sources1767 and will help government identify secure partners and effectively
manage program participation.1768 Transport Canada plans to evaluate the
interoperability of the SSCMS with various national and international supply
chain security initiatives, including the US Known Shipper Management
System.1769
The Known Shipper database was established in the United States in 20021770
to streamline the process by which shippers, both individuals and businesses,
are made known to the air carriers with whom they conduct business. In
its 2005 report on air cargo security, the US GAO identified factors that may
have limited the effectiveness of this system. In particular, information in the
database was incomplete and potentially unreliable because participation in
the database was voluntary. The report also stated that the TSA had not taken
steps to identify shippers which may pose a security threat.1771 Mandatory
Known Shipper registration, which came into effect with the 2006 Final Rule
on Air Cargo Security Requirements, was expected to rectify some problems.
Concerns similar to those identified with the US system may arise as Canada
develops the SSCMS.
Supply Chain Security Program
Under the Canadian supply chain security program, each regulated entity
will be required to apply security procedures to air cargo at their facilities and
during transport, and to maintain the integrity of secure cargo at all points of
transfer.1772 By applying appropriate security processes to cargo before its arrival
at the airport, regulated agent programs in effect extend the perimeter of the
airport.1773 Stephen Conrad, Transport Canada’s Project Director for Air Cargo
Security, testified that it is not practical in most industrialized nations to wait
to secure all cargo when it reaches the airport. Most large centres receive large
volumes of cargo and face time, space and capacity constraints. A bottleneck
is inevitably created, which can lead to unacceptable delays for time-sensitive
cargo.1774 By redirecting some responsibility for securing air cargo to earlier points
in the supply chain, bottlenecks at the airport can be greatly reduced.1775
1767 Exhibit P-419.
1768 Final Submissions of the Attorney General of Canada, Vol. II, para. 355.
1769 Exhibit P-419.
1770 Exhibit P-417, p. 76.
1771 Exhibit P-417, p. 5.
1772 Exhibit P-419.
1773 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5185.
1774 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5187.
1775 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5190.
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The aim is to have a full, nationwide, regulatory framework in place,1776 with
Transport Canada providing oversight and compliance monitoring, either
directly or through a delegate.1777 Participating shippers, freight forwarders
and air carriers will be required to have security plans and to maintain secure
premises and practices accordingly.1778 All participating shippers, freight
forwarders and air carriers will be certified by Transport Canada1779 and will be
known, respectively, as “Regulated Shippers,”“Regulated Agents” and “Regulated
Air Carriers.” Regulated entities will be subject to inspection by Transport Canada
Security Inspectors or by a combination of inspectors and a governmentlicensed or government-certified body.1780
Shippers represent the most distant point in the supply chain. They are the
originators of cargo and consist of manufacturers and exporters who prepare
cargo for shipment.1781 Shippers participating in the program will be required
to “validate,” upon packaging, that the cargo does not contain anything
harmful to civil aviation.1782 At the point of transfer to another entity in the
supply chain, such as a participating freight forwarder or air carrier, shippers
will be required to certify that 100 per cent of their cargo has been screened or
inspected. Alternatively, shippers must identify cargo that requires inspection
or screening.1783
Freight forwarders are intermediaries, performing functions such as cargo
storage, consolidation and transport.1784 Air carriers are the final recipients of
cargo before its air transport. Participating freight forwarders and air carriers
must verify that cargo is secure when they accept it from another entity in the
supply chain. If they detect a breach in security, they must have the capacity to
screen or inspect cargo.1785
At every point of transfer in the supply chain, there will be a formal process of
certification that the cargo being transferred is secure, as well as verification
that the cargo being accepted has remained secure. At each point of transfer,
each regulated entity must answer one question: “Is the cargo secure?”1786 Using
this process, the cargo can be secured as far back as the shipper and the point
of packaging.1787
Conrad testified that very few countries have regulated agent programs that
include shippers.1788 He stated that Transport Canada believes that establishing
1776 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5200.
1777 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5200.
1778 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5189.
1779 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5190.
1780 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5200.
1781 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5184.
1782 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5189.
1783 Exhibit P-189, p. 6; see also Exhibit P-101 CAF0827, p. 3.
1784 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5189; see also Exhibit P-189, p. 7.
1785 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5189.
1786 Exhibit P-189, p. 7.
1787 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5190.
1788 Exhibit P-101 CAF0872, p. 4.
�Chapter III: Civil Aviation Security in the Present Day
a full regulatory framework for shippers constitutes a further step that will
“close the loop” on the entire supply chain.1789 The Commission agrees that full
regulation of all levels of the supply chain is desirable.
As under the current legislation, air carriers in the proposed supply chain
security program will retain primary responsibility for screening air cargo, in
the broadest sense of the term “screening.”1790 The program recognizes that air
carriers may have a limited ability to screen or search cargo. For example, an
air carrier may not have appropriate equipment, the capacity to screen certain
types of cargo or the ability to perform particular security functions. Whatever
the reason, if an air carrier is not confident that cargo is secure, the cargo must
not travel on an aircraft.1791
As an added layer of security, air cargo at every level of the supply chain will also
be subject to random secondary screening and inspection.1792 In sum, supply
chain security for air cargo consists of a series of validation, certification and
verification processes performed by regulated entities, with additional screening
and inspection measures superimposed on a random and targeted basis.
As is the case for many of the security measures under the US Final Rule,
the regulated supply chain security system applies to air cargo destined for
passenger aircraft and all-cargo aircraft. Also like the US program, the focus of
screening and inspection measures in Canada will differ for all-cargo aircraft,
because the perceived primary risks are different from those of passenger
aircraft. Where cargo is to be transported on passenger aircraft, screening and
inspection procedures will aim at detecting and preventing the introduction of
explosive devices. Where cargo is to be carried on all-cargo aircraft, screening
and inspection will be directed at detecting and preventing stowaways from
commandeering the aircraft.1793 Cargo that is transferred from all-cargo aircraft
to passenger aircraft will require additional screening or inspection.1794
The 2005 report of the US GAO noted that industry stakeholders criticized the
dual focus of air cargo security in the United States – that of preventing the
introduction of explosive devices on passenger aircraft and the hijacking of allcargo aircraft. The criticism was that the focus did not fully address the potential
risks posed by air cargo.1795 Experts and stakeholders spoke of the need to
address a third threat – placing an explosive device containing a weapon of mass
destruction on an all-cargo aircraft. TSA officials stated that the TSA decided to
focus only on two threats because these were the most likely scenarios, though
it would nonetheless address any potential new threats as needed. In fact, the
TSA stated that it had identified and was reviewing a new, emerging threat to
1789 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5196.
1790 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5188.
1791 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5195.
1792 Exhibit P-422, pp. 6-8.
1793 Exhibit P-422, p. 8.
1794 Exhibit P-422, p. 8.
1795 Exhibit P-417, p. 4.
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air cargo on passenger aircraft at the time of its 2005 report. Information about
the threat was “security sensitive” and not disclosed.1796
The Commission agrees that the security focus on stowaways in all-cargo
aircraft may fail to address the additional risk of explosives being placed on such
aircraft. As previously noted, there is disagreement about the degree of risk that
all-cargo aircraft pose in Canada.1797 Transport Canada needs to offer further
justification for focusing only on stowaways.
Figure 1
Supply Chain Security System
Exhibit P-189, p. 7
1796 Exhibit P-417, pp. 20-21 and footnote 38.
1797 Exhibit P-169, p. 53 of 202; Testimony of Colin Kenny, vol. 38, June 1, 2007, p. 4683.
�Chapter III: Civil Aviation Security in the Present Day
Although all commercial air carriers remain subject to formal regulation for air
cargo security, the supply chain security program will not be mandatory for all
shippers and freight forwarders in Canada. Conrad provided two reasons for
this: cost to industry and procedural challenges. Under the supply chain security
program, regulated entities and Transport Canada will pay their own operating
costs.1798 For some private companies dealing with low volumes of air cargo, the
costs could be significant for them and, in some cases, prohibitive.1799 Conrad
described the experience of the United States in attempting to fully regulate
all shippers and freight forwarders. There were difficulties implementing the
program due to the vast number of shippers and the challenges of monitoring
the security status of such a large group.1800
Instead, in Canada, a parallel system of non-regulated shippers and freight
forwarders will operate alongside the supply chain security program. All cargo
originating from non-regulated shippers or freight forwarders will be considered
high risk and will be subject to various screening and inspection methods.1801
Non-regulated shippers will fall into one of three categories: Unknown Shippers
(those not known to freight forwarders or air carriers in the supply chain
program); Known Shippers (those that are “known” to freight forwarders or air
carriers, as that term is defined in the confidential regulations and measures); and
Registered Shippers (those “…vetted by an approved process and recognized
nationally”).1802 Cargo originating from Unknown or Known Shippers will face
additional restrictions if destined for US passenger aircraft.1803 Cargo received
from Non-Regulated Agents will be placed in the same sort of unknown, known
and registered categories.
There will still be many instances where cargo arrives directly at the airport
and requires full security controls. For example, individuals may appear at the
airport to ship a package. The counter services at the airport offered by many
airlines work well for this segment of cargo. Conrad advised that the need to
secure cargo at the airport will continue and that the capacity to do so must be
maintained. One advantage of securing cargo at the airport is the elimination
of vulnerabilities further out in the supply chain. However, as noted earlier, it
would not be feasible to screen all air cargo at the airport, particularly in large
cities.1804
As part of the pilot testing and development phase, Transport Canada introduced
the freight forwarder community to the Regulated Agent Program in June
2007. Since then, about 120 freight forwarders have indicated their interest in
1798 Exhibit P-423, p. 11.
1799 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5193-5194. Conrad indicated that studies have
shown that the costs of infrastructure and security process modifications required to comply with
some supply chain systems have ranged between $20,000 and $250,000.
1800 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5190.
1801 Exhibit P-422, p. 6.
1802 Exhibit P-422, p. 6.
1803 Exhibit P-422, p. 6.
1804 Testimony of Stephen Conrad, vol. 42, June 13, 2007, pp. 5187-5188.
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participating and are at various stages of enrolment.1805 The Regulated Agent
Program was formally launched in June 2008.1806
Oversight and Compliance Monitoring
Key to the hardening of supply chain security is the requirement that every
participating entity, at each level of the cargo supply chain, draft and maintain a
security plan detailing its security measures.1807 During the development phase
of the supply chain security program, MOUs will establish guidelines so that
Regulated Shippers and Regulated Agents can meet this requirement. Transport
Canada has indicated that, when the program is fully implemented, this
requirement will be subject to “possible” formal regulation under the Aeronautics
Act for Regulated Shippers and “likely” formal regulation for Regulated Agents.
Air carriers are already obliged to maintain security plans under the Air Carrier
Security Measures, although enhancements to the Measures are possible as the
program develops, with regulatory amendments to the Aeronautics Act expected
at full implementation of the supply chain security program.1808
MOUs are already being implemented as part of the Regulated Agent Program
launched in 2008.1809 The MOUs describe the respective responsibilities of
Transport Canada and Regulated Agents, and focus mainly on the mandatory
security plans. Under the MOUs, the freight forwarder is responsible for
submitting to Transport Canada specific Air Cargo Security Plans for each of its
facilities. The plans must include required elements as outlined by Transport
Canada.1810 If it considers the plans “acceptable,” Transport Canada will “accept”
the plans and the freight forwarder will be added to a list of Regulated Agents.1811
If the plans are “unacceptable,” Transport Canada will request amendments. If
agreement cannot be reached on the contents of the plans, Transport Canada
will notify the freight forwarder that it will not be added to the list of Regulated
Agents.1812
Regulated Agents will be required to maintain secure premises and secure
methods of transportation,1813 and will require security clearance checks for
employees.1814 Regulated Agents must also ensure that all sub-contractors
engaged to handle air cargo on their behalf meet the required security
standards.1815 Given the grave risks presented by air cargo, it is imperative that
1805 Final Submissions of the Attorney General of Canada, Vol. II, para. 358.
1806 Exhibit P-419.
1807 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5190.
1808 Exhibit P-422, pp. 6-8.
1809 Exhibit P-423.
1810 The Air Cargo Security Plans must contain the elements outlined in the Transport Canada “Air Cargo
Security Plan Required Elements,” as amended from time to time. See Exhibit P-423, clause 5, p. 8.
1811 Exhibit P-423, clause 9(a), p. 8.
1812 Exhibit P-423, clause 9(b), p. 8.
1813 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5189.
1814 Exhibit P-101 CAF0827, p. 3.
1815 Exhibit P-419.
�Chapter III: Civil Aviation Security in the Present Day
security clearance checks cover all employees with potential access to air cargo,
whether or not their work involves direct contact. In addition, access to cargo
must be appropriately restricted at all times.
Compliance will be monitored by Transport Canada Security Inspectors, either
with or without notice to Regulated Agents.1816 Regulated Agents are required to
conduct at least one self-audit annually to determine the effectiveness of their
Air Cargo Security Plans and their implementation. If the self-audit identifies
shortcomings, the Regulated Agent must amend its Air Cargo Security Plans,
in consultation with Transport Canada, and resubmit them.1817 If Transport
Canada Security Inspectors find non-compliance with the Air Cargo Security
Plans, “…every effort will be made by the parties to identify a means to correct
the non-compliance, whether through an amendment or an interim procedure
that ensures an equivalent level of security.”1818 If an agreement to correct noncompliance cannot be reached, the freight forwarder will be removed from the
list of Regulated Agents.1819
There is confusion over the status of MOUs. They contain an express provision
that they are not binding: “…This MOU is a declaration of intentions by the
parties and will not create any binding legal obligations.”1820 However, in its
instructions for completing the MOU, Transport Canada states that freight
forwarders wishing to participate in the program “…must agree to comply with
the terms of this Memorandum of Understanding.”1821
The non-binding character of the MOUs and the apparently cautionary use of
the term “accept” instead of “approve” (when Transport Canada is responding to
an Air Cargo Security Plan that is presented to it) are troublesome, especially in
light of the evidence before the Commission and the lessons learned from the
loss of Air India Flight 182. The current system is reminiscent of the system that
was in place for air carrier security plans in 1985.1822 An insufficient inspectorate
existed in 1985, one that was “…thinly stretched for the tasks and the breadth of
the industry they were responsible for monitoring.”1823 In 1985, the system was
really one of voluntary compliance, with no true enforcement mechanism.
The language used in the MOUs, which speak of security plans being “accepted,”
is imprecise. It is not clear what this term means. As demonstrated by the Air
India bombings, it is important that security plans obtain formal approval by
Transport Canada, and that both parties to the agreement are held to their
respective responsibilities. At the very least, this demands a binding agreement.
The Commission believes that this relationship is best governed by regulation.
1816 Exhibit P-423, clauses 13, 14, p. 9.
1817 Exhibit P-423, clause 15, p. 9.
1818 Exhibit P-423, clause 16, p. 9.
1819 Exhibit P-423, clause 19, p. 10.
1820 Exhibit P-423, p. 11.
1821 Exhibit P-423, p. 4.
1822 Exhibit P-157, p. 54 of 135.
1823 Exhibit P-157, p. 22 of 135.
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Transport Canada has indicated, however, that MOUs may continue to govern
the security plan requirements when the program is fully implemented. Without
a legislated ability to enforce the MOUs, meaningful oversight by Transport
Canada is difficult, as it was with air carrier security plans before Flight 182 was
bombed.
Under the MOU, it appears that removing a Regulated Agent from the list for noncompliance would only occur as a last resort, where consultations between the
two parties fail. Sweet testified that when measures are voluntary, compliance
cannot be guaranteed.1824 A regulatory regime would be preferable.
The Commission is also concerned about quality assurance in the supply chain
security system. Conrad testified that there were more than 100 general aviation
security inspectors, whose responsibilities included the inspection of air cargo
security procedures. Nine additional inspectors were dedicated exclusively to air
cargo security.1825 The Commission did not hear evidence about the adequacy
of inspectorate resources at Transport Canada, or about the training and
education that will be provided for the full implementation of the additional
duties created by a new air cargo security regime. Transport Canada suggested
that government-certified bodies might assist in cargo security inspections for
industry participants.
In 2005, the report of the US GAO stated that the TSA conducts compliance
inspections of air carriers and indirect air carriers. The report noted, however,
that the TSA had not “… determined what constitutes an acceptable level of
performance or compared air carriers and indirect air carriers’ performance
against this standard, analyzed the results of inspections to systematically
target future inspections on those entities that pose a higher security risk to
the domestic air cargo system, or assessed the effectiveness of its enforcement
actions taken against air carriers and indirect air carriers to ensure that they are
complying with air cargo security requirements.”1826 The report also expressed
concern that the TSA had not defined what constitutes a breach of air cargo
security, despite having defined breaches in other areas, including passenger
and airport access controls.
The ACS Initiative has not been finalized. The concerns expressed about similar
systems in the United States may provide useful insights.
3.8.1.4.3 Improving Air Cargo Screening: Use of Technology
The second branch of the ACS Initiative is focused on improving air cargo
screening,1827 in the broadest sense of this term, particularly for high risk
1824 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4948.
1825 Exhibit P-101 CAF0872, p. 2.
1826 Exhibit P-417, p. 6.
1827 Exhibit P-189, p. 3.
�Chapter III: Civil Aviation Security in the Present Day
or targeted cargo.1828 Transport Canada is currently evaluating and testing
technology for screening and searching air cargo.1829
Under the new ACS Initiative, the aim is to screen or search cargo that is loaded
on passenger aircraft to a level comparable to that of HBS.1830 Since January 1,
2006, 100 per cent of hold baggage placed on passenger aircraft and departing
from Canada’s 89 designated airports has been screened using explosives
detection equipment, as required by Annex 17 of the Chicago Convention.1831 The
screening process involves up to five levels of inspection performed by “stateof-the-art” equipment and screening officers. Among the types of equipment
available are computed tomography (CT) X-ray machines.1832
Consistent with its general principles for civil aviation security, Transport Canada
advocates a performance-based approach to air cargo screening. The specific
methodology may therefore vary as long as the end result is screening that is
comparable to HBS.1833
Cartwright testified that Transport Canada has been collaborating with the
US to determine the suitability of various technologies for specific categories
of cargo.1834 Transport Canada has cooperated in simulated tests, known as
“technology readiness evaluations,” which involve challenging each technology
with approximately 5,000 different materials in various orientations to assess
the technology’s ability to detect concealed devices. Cartwright stated that this
testing has required “…an incredible level of work and effort, so that at the end
of the day, we know what would work.”1835
Cartwright said that clusters of products within cargo can facilitate screening
once appropriate technology is selected but that, overall, air cargo screening is
much more complex than HBS.1836
Transport Canada indicated that it is engaged in a six-stage process for
developing its air cargo screening program:
1. Evaluating technology using simulated tests;1837
2. Assessing operational environments for testing screening
technology;1838
3. Defining screening models and options for screening;
4. Establishing pilot projects and test beds to assess real-world
application of screening technology;
1828 Final Submissions of the Attorney General of Canada, Vol. II, para. 356.
1829 Exhibit P-422, p. 15.
1830 Testimony of Stephen Conrad, vol. 42, June 13, 2007, pp. 5204-5205.
1831 Exhibit P-169, p. 61.
1832 Exhibit P-157, p. 108 of 135.
1833 Testimony of Stephen Conrad, vol. 42, June 13, 2007, pp. 5204-5205.
1834 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5151.
1835 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5206.
1836 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5233.
1837 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5206.
1838 Exhibit P-422, p. 15.
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5. Re-evaluating and revising screening models based on pilot project
results; and
6. Implementing a defined air cargo screening program.1839
Transport Canada appears to have reached the fourth stage of this process for
“unconsolidated” cargo, while remaining at the first stage for “consolidated”
cargo. It has now completed assessing the various operating environments
in which to evaluate screening and inspection technologies and protocols for
high-risk and targeted cargo.1840 Screening models for unconsolidated cargo
have been completed and a process of validation has begun, but screening
technologies for explosives detection in consolidated and palletized cargo
are still under development. In its Final Submissions, the Attorney General of
Canada advised that, despite legislation in the United States requiring 100 per
cent screening of air cargo by 2010,1841 it is possible that explosives detection
equipment may not be available for operational deployment by that time.1842
Operational trials are currently taking place in several cargo environments to
assess the use of X-ray, trace and various “specialty” solutions.1843 These projects
were to be completed by March 2009.1844 At that time, Transport Canada was to
have produced a “matrix of appropriate screening models” for industry members.
The matrix was to include non-intrusive elements, including X-ray, trace and
canine detection methods, which can be used for special cargo categories
where physical inspection could cause damage.1845
Participation in the screening development projects is open to air carriers, freight
forwarders and shippers taking part in the supply chain security programs.1846
As with supply chain security, Transport Canada is introducing aspects of the
program in phases, based on its priorities.1847 For now, the air cargo screening
development program is focusing on:
• Freight forwarders and air carriers;
• Locations both on and off airport premises; and
• Matching equipment to the operating environment and cargo
characteristics.1848
1839 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5206.
1840 Exhibit P-422, p. 15: A few months earlier, the Attorney General of Canada reported that the selection
criteria for identifying suitable industry sites to evaluate air cargo screening equipment had been
completed. In order to apply the selection criteria, three rounds of cargo data collection (such as size,
weight and commodity factors) were also completed. See Final Submissions of the Attorney General of
Canada, Vol. II, para. 362.
1841 Exhibit P-422, p. 9.
1842 Final Submissions of the Attorney General of Canada, Vol. II, para. 363.
1843 Final Submissions of the Attorney General of Canada, Vol. II, para. 369.
1844 Final Submissions of the Attorney General of Canada, Vol. II, para. 369.
1845 Exhibit P-419.
1846 Final Submissions of the Attorney General of Canada, Vol. II, para. 356.
1847 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5217.
1848 Exhibit P-422, p. 15.
�Chapter III: Civil Aviation Security in the Present Day
Cartwright noted that technologies used elsewhere in aviation security, such
as for passenger and baggage screening,1849 can work for some aspects of air
cargo screening.1850 Transport Canada was working with CATSA to benefit from
its expertise.1851 He testified that, as technology improves in other sectors, it is
important to “close off ” remaining security gaps by re-applying as many of the
new technologies as is reasonable and feasible to “problem areas” such as air
cargo.1852
Transport Canada is also reviewing possible new applications of older
technologies. One currently being considered for air cargo screening is thermal
neutron activation (TNA), which has already been deployed as a secondary
screening tool in at least one country in the Far East.1853 TNA technology had
been developed before the loss of Pan Am Flight 103 to detect bulk explosives
in suitcases. However, it was abandoned after the loss because the technology
was unable to detect the minimum threshold level of explosives specified at the
time.1854 The technology has since been refined and is being evaluated for use in
the secondary screening of air cargo.1855
It is important to coordinate efforts with international partners. Coordination
permits the sharing of information about technological advances and accords
with one of the key objectives of the overall ACS Initiative, international
harmonization.1856 On cargo screening technology issues, Canada is cooperating
with the European Civil Aviation Technical Task Force, the aviation experts
working group at the Asia-Pacific Economic Cooperation (APEC), and with the
TSA and DHS in the United States.
One goal of the ACS Initiative is to establish the most practical method of
screening air cargo that is also feasible for business. Cartwright maintained that
practices are sustainable if they are viewed as “good business” practices.1857 He
stressed that air cargo is a time-critical business.
Cartwright and Conrad acknowledged that enhanced air cargo screening will
require paying special attention to training. As with all types of screening, there
was a need to guard against screeners becoming complacent or inattentive.1858
Technologies that provide motivation in pre-board and hold bag screening
appear to be equally useful for air cargo screening. These include the Threat
Image Protection System (TIPS), a software training program that projects
fictional images of threat objects within the X-ray image of real baggage, and
1849 Final Submissions of the Attorney General of Canada, Vol. II, para. 364.
1850 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5131.
1851 Final Submissions of the Attorney General of Canada, Vol. II, para. 364.
1852 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5131.
1853 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5181-5182.
1854 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5128.
1855 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5181-5182.
1856 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5182.
1857 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5203.
1858 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5197.
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the X-Ray Tutor (XRT), an interactive computer-based training tool for screening
officers.1859
The challenge in applying these motivation-enhancing technologies in air
cargo screening is to individualize them to cargo type and to take into account
geographic variability of cargo. For example, if cargo containing machinery
parts is not encountered at a particular location, presenting a computer image
of such parts as part of training will be of little value. The training tools need to
be specific to the type of cargo. Conrad advised that this issue is under discussion
with other countries.1860
Transport Canada is currently assessing the role that government agencies
may play in service delivery, including the potential for CATSA and the CBSA to
screen air cargo.1861 CATSA is the authority responsible for screening passengers
and baggage,1862 but under the current legislation, CATSA’s mandate does not
include cargo screening.1863 The CATSA Advisory Panel observed that CATSA
would be an appropriate agency to oversee the operational aspects of a new air
cargo security regime, including validating the screening practices of shippers1864
and conducting screening-related operations.1865
Cartwright advised that using CATSA equipment is one option being reviewed
in the pilot projects. He said that one complicating factor is the Air Travellers
Security Charge (ATSC), a fee paid by air travellers to fund security measures,
including those provided by CATSA.1866 If CATSA were to become involved in
air cargo screening, the ATSC might have the unintended effect of funding the
use of CATSA’s equipment for air cargo. This issue would need to be resolved.
However, this is not a major issue, and it could easily be addressed through
greater transparency and accountability relating to the ATSC. Cartwright testified
that where CATSA screening equipment is available, such as during idle periods,
the possibility of diverting it for screening air cargo cannot be ruled out. For
example, CATSA’s equipment could be used to screen cargo at airports during
the night, when passenger traffic is typically low.1867
Duguay said that CATSA had both the equipment and the expertise to screen
air cargo and could do so, at least at the smaller Class 2 airports.1868 He stated
that air carriers also possessed the requisite expertise and personnel, since they
were currently responsible for air cargo screening. However, he acknowledged
that CATSA had the equipment and was already the screening authority for
1859 Exhibit P-169, p. 202 of 202 (Appendix E); Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5198.
1860 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5198.
1861 Final Submissions of the Attorney General of Canada, Vol. II, para. 356; see also Testimony of Stephen
Conrad, vol. 42, June 13, 2007, pp. 5188-5189.
1862 Exhibit P-169, p. 62 of 202.
1863 Exhibit P-169, p. 68 of 202.
1864 Exhibit P-169, p. 55 of 202.
1865 Exhibit P-169, p. 69 of 202.
1866 Exhibit P-169, p. 168 of 202.
1867 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5204.
1868 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5261.
�Chapter III: Civil Aviation Security in the Present Day
both passengers and baggage.1869 As previously noted, Air Canada does not
itself have access to equipment for screening air cargo.1870
At most Class 2 airports where Air Canada has cargo facilities or cargo counters,
its facilities are located near CATSA HBS operations. Since cargo accepted at
these smaller airports tends to be small parcels, the cargo could very well be
screened by CATSA using the equipment available.1871 However, the effect on
throughput at Class 2 airports would need to be evaluated.1872 Duguay stated
that using CATSA equipment to screen cargo was possible even at some Class 1
airports, although this would need to be assessed on an individual basis.1873
Almost a quarter century after the Seaborn Report was released, the
recommendation to X-ray small parcels still has not been implemented.1874
Duguay also envisioned a role for CATSA in screening larger cargo at a central
location at an airport. With the advent of a supply chain approach to air cargo
security, he saw a potential benefit to having a location at an airport where air
carriers could bring their shipments to be screened using advanced technology.
CATSA would manage and supervise the process. Sophisticated screening
equipment would be required and, given the large size of much cargo, could
be costly. According to Duguay, it was sensible to centralize such equipment
to maximize its use. This was the operational model currently followed in
Europe.1875
Conrad stated that while a centralized screening area operated by CATSA or
another government entity might be feasible at large airports, it was more
problematic for medium-sized and smaller airports. He noted that employing
dedicated air cargo screeners required “volumes of scale” that are not present
in smaller locations, and that this was not cost-effective. This would require
considerable resources and would be extremely complex and difficult to manage
from an oversight perspective. Instead, placing responsibility for screening
cargo at these locations with a third party, such as an air carrier or freight
forwarder, would take advantage of the benefits derived from “multiple duty”
workers. He stated that seeking such efficiencies was important “…because
in Canada, especially with our sparse population, some of the challenge for us
is to make sure that the small and medium size enterprises can still compete
within the marketplace and that they’re still able to provide services in a secure
and efficient fashion.”1876 Different models may, therefore, be appropriate for
different environments.
1869 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5259.
1870 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5291.
1871 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5259.
1872 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5262.
1873 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5259.
1874 Exhibit P-101 CAF0039, p. 6 of 10.
1875 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5261-5262.
1876 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5218.
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Even following the loss of Air India Flight 182, the screening of passengers and
baggage remained in the hands of air carriers. As previously noted, the CATSA
Advisory Panel identified this as a serious security weakness, since security would
not be the carriers’ principal concern.1877 When, after the events of September
11th, CATSA was created, responsibility for screening passengers and baggage
was removed from the carriers.1878
CATSA might play a prominent role in air cargo security. Air cargo screening would
be a natural extension of its existing passenger, non-passenger and baggage
screening duties. CATSA has the expertise, equipment and dedicated personnel,
and is already familiar with the training models that Transport Canada would
modify for air cargo screening. CATSA could provide full or “residual” screening
services at airports, particularly for small cargo, and might also be involved
in oversight and inspection of supply chain participants.1879 CATSA could also
provide centralized screening services for bulkier cargo at larger airports.
At smaller airports, centralized screening areas for larger cargo may be less
practical. Still, facilities may be needed for screening or searching cargo. It
might be more appropriate for freight forwarders or even shippers to perform
screening or searching at their premises prior to consolidation or packaging.
However, under Transport Canada’s proposed program, air carriers would retain
ultimate responsibility for the security of air cargo. The carriers must have the
means to satisfy themselves that cargo is secure.1880
Because the screening of passengers, non-passengers, baggage and cargo
involves overlapping skills, it might be more efficient for CATSA, rather than air
carriers, to conduct cargo screening. Oversight by Transport Canada or a third
party would be required, regardless of the entity – CATSA or an air carrier –
delivering the screening service.
The only issue that appears to differentiate the two delivery modes – CATSA
or the air carriers – for screening at smaller airports is the assumption of costs.
It may be expensive, either for an air carrier or for CATSA, to maintain facilities
for screening larger cargo at small airports. No evidence was presented to the
Commission about how to apportion the costs.
3.8.1.4.4 Funding
The ACS Initiative proposes to establish a nationwide regulatory framework for
a long-neglected sector of aviation security. Conrad testified that oversight and
1877 Exhibit P-157, p. 67 of 135.
1878 Exhibit P-157, p. 67 of 135.
1879 Exhibit P-169, p. 55 of 202.
1880 It should be remembered that the regulated agent program, if implemented as envisaged by ICAO,
should enable airline checks of cargo coming from such agents to be limited to a ‘documentary’ check,
including checks of seals. Cargo delivered by non-regulated agents – e.g. a passenger shipping
baggage ahead of the passenger’s flight (in which case it becomes cargo), or an unknown intending
shipper arriving at a cargo shed – would have to be screened by the airline or an agency, perhaps
CATSA, acting on the airline’s behalf.
�Chapter III: Civil Aviation Security in the Present Day
monitoring compliance with the new regime, still a work in progress,1881 would
involve significant ongoing costs.1882 Robust air cargo security was dependent
upon sufficient and sustained funding.
Transport Canada identified financial sustainability as one of its key objectives
in developing the ACS Initiative.1883 Conrad recognized that government
and industry have limited resources. Several models were being considered,
including government funding, industry funding and user-pay formulas.1884
Conrad stated that, based on the Government’s previous experience in funding
aviation security measures, a user-pay model was likely. Since the “user” in the air
cargo industry was primarily the shipper, much of the cost in this model would
be borne by the shipper.1885
If a user-pay model is adopted, industry resistance can be expected. This has
already been seen with the ATSC, a fee levied on air travellers to fund enhanced
aviation security initiatives, including the creation of CATSA. The ATSC came
into effect in April 2002 and faced sharp criticism by industry stakeholders.1886
The Canadian Airports Council (CAC), the Air Transport Association of Canada
(ATAC), airport authorities and air carriers all strongly opposed the ATSC. They
argued that the purpose of the ATSC was the protection of national security
and that, for this reason, costs should be borne by government, not by the civil
aviation industry or passengers. Concerns have also been raised by industry
stakeholders about the lack of transparency and accountability surrounding the
use of funds generated by the ATSC.1887
The question of who should pay is not new. In 1993, Wallis anticipated that
airlines might not immediately support enhanced security requirements for
cargo, noting that “…[t]he carriage of freight in the hold of passenger aircraft
provides a very valuable contribution to an airline’s income.”1888 Purolator,
Canada’s largest courier company,1889 addressed costs during to the CATSA Act
Review consultation process in June 2006. In a letter to the Review Secretariat,
the Director of Security and Regulatory Affairs for Purolator called for government
to bear the costs:
…[I]t is Purolator’s position that while industry participants
(e.g. air carriers, freight forwarders, shipper and airports) must
share a collective responsibility in effecting compliance with
mandated national air cargo security measures, the costs
1881 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5200.
1882 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5200.
1883 Exhibit P-189, p. 4.
1884 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5186.
1885 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5201.
1886 Exhibit P-169, p. 168 of 202.
1887 Exhibit P-169, p. 169 of 202.
1888 Wallis, Combating Air Terrorism, p. 79.
1889 Exhibit P-191, p. 1.
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associated with achieving such compliance, as in all matters
of national security, are rightly borne by the Government of
Canada.
The ATSC for passengers can be distinguished from a user-pay model for air
cargo. Air cargo in Canada is carried primarily on passenger aircraft, but does
not necessarily have a direct connection to the passengers on the flight, unlike
hold baggage, for example. Air cargo security measures may benefit passengers,
but the presence of air cargo on board aircraft is not, for the most part, for their
specific advantage. In fact, air cargo carried on passenger flights endangers
passengers and crew if adequate security controls are not applied.
Air cargo is carried on passenger aircraft to facilitate trade.1890 Air carriers showed
little interest in air cargo until its revenue potential became apparent. Air carriers
then began to make strenuous efforts to sell their aircraft hold capacity.1891
Security for air cargo also directly benefits the industry by protecting valuable
goods against sabotage.
How to obtain sustainable funding for air cargo security is critical. Air cargo
security, like pre-board screening (PBS), HBS and NPS, is a key component of
aviation security. It is imperative that any air cargo security program remains
intact even in difficult economic or political circumstances.
Using a risk-based analysis, air cargo is one of the major domains of risk in civil
aviation.1892 Consequently, despite limited resources, sufficient funds must
be allocated to air cargo screening – ideally to a level that reflects the ALARA
principle (“as low as reasonably achievable”).1893
Sustained funding for air cargo security also has implications for Transport
Canada’s stated objectives of interoperability1894 and international
harmonization.1895 Air cargo represents a significant portion of Canada’s trade,
and both domestic and international partners will come to rely on a consistent
air cargo security regime. Countries with air cargo security programs will no
doubt expect Canada to maintain a comparable system, and Canada will expect
the same of others.1896
Canada is a member of the G8 and is among the wealthiest nations in the world.
Transport Canada claims that Canada prides itself as a leader in international
civil aviation security.1897 As Wallis noted, wealthy industrialized nations such as
Canada should be able to go well beyond the lowest-common-denominator
1890 Exhibit P-169, p. 52 of 202.
1891 Wallis, Combating Air Terrorism, p. 79.
1892 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11960.
1893 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11961.
1894 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5186.
1895 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5182.
1896 Testimony of Nick Cartwright, vol. 42, June 13, 2007, p. 5183.
1897 Exhibit P-419.
�Chapter III: Civil Aviation Security in the Present Day
standards of Annex 17 of the Chicago Convention. If Canada is seen to have
difficulty sustaining funding for air cargo screening, it will be hard pressed to
ask less wealthy nations to apply similar measures.
IATA recently reported that the international airline industry faces a grim outlook,
with soaring fuel costs and economic turmoil reducing passenger numbers.1898
Measures must be taken to prevent the dismantling of funding for air cargo
security in times of economic downturn.
3.8.1.5 A Call for Action from the Government of Canada
The vulnerability of air cargo to sabotage and the potential consequences to
aviation security were brought to the Government’s attention as early as 1980.
It was not until 2004 that the Government formally acknowledged the need
to address deficiencies in air cargo security. At that time, Transport Canada
began to develop a program to rectify some deficiencies. In 2006, $26 million
was allocated to the development and pilot-testing of an enhanced air cargo
security regime, scheduled to be completed in 2008-09. By 2008, pilot testing of
the program’s initiatives had just begun and cargo carried on passenger aircraft
remained largely unsearched, and thus vulnerable to sabotage. Work to improve
air cargo security must be accelerated.
Conrad testified that improving air cargo security was a complicated task, but
said that progress was being made:
[T]here [have] been lots of comments made that we should
certainly move quicker and…we should put more things
in place faster and one of the things, I think is important to
note…if there were very simple solutions that we felt that
would get us to significant improvement today, I think we
would have done them. But I think the reality is…that there’s
a lot of good things that have been taking place and I think
we are on a really strong path that in a fairly short timeframe
we’re going to make significant strides in improving air cargo
security within Canada.1899
Many years have passed since the bombing of Air India Flight 182 and since
the international civil aviation community established the regulated agents
model for air cargo security. Still, air cargo in Canada has been permitted on
passenger flights with little in the way of security controls. It is no answer after
all this time to say that delay is warranted because of the complexities of air
cargo screening.
1898 Exhibit P-424, p. 1 of 2.
1899 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5199.
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Canada was quick to recognize gaps in passenger and baggage screening.
When CATSA was created in 2002, its mandate was to provide screening solely
for passengers and their baggage. Not long afterwards, in November 2002, the
Minister of Transport assigned two further functions to CATSA. One was the
screening of non-passengers who enter restricted areas of airports, along with
any items carried.1900 Non-passengers who have access to restricted areas can
potentially plant bombs on aircraft.
Conrad conceded that air cargo, although recognized as vulnerable to sabotage,
was ignored in the past due to limited resources:
Not to say that we don’t acknowledge an area of risk, but when
we look at prioritizing and putting resources into those areas,
when it came to moving on hold baggage, we certainly –
within the resource constraints of what we had at the time, we
certainly recognize that we had to get that done. Not that we
wanted to avoid doing cargo, but within the resource envelope
that we had, we certainly had to make some decisions in terms
of where we could put the resources first.1901
Leiss said this reasoning was flawed. One area of risk must not be ignored while
managing another, particularly where the risk being ignored is a high priority
risk.1902 This is irresponsible risk management. While resources will always be
limited,1903 all risks must be managed to an acceptable level within the available
budget.1904 Conrad’s statement suggests that a conscious decision was made
not to allocate resources to air cargo security, despite knowledge of the risk.
Perhaps Transport Canada decided to forego air cargo screening in favour of
passenger and baggage screening because it considered the risk posed by
air cargo to be acceptable. The many industry stakeholders and experts who
appeared before the Commission would disagree. The Senate Committee would
likely consider the conclusion that the risk posed by air cargo was acceptable
to be an example of trade and efficiency concerns inappropriately trumping
necessary security.1905
Cartwright testified that many countries were struggling with air cargo security
issues:
The point I was trying to make is they, along with a number of
other areas of the world, are struggling with the same things
we are, and that is how to put together a program that is
cohesive, integrated and has the capabilities and produces the
1900 Exhibit P-169, p. 61 of 202.
1901 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5212.
1902 Exhibit P-361, Tab 1, p. 3 of 12.
1903 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11990.
1904 Testimony of William Leiss, vol. 91, December 7, 2007, p. 11992.
1905 Exhibit P-172, p. 42 of 155.
�Chapter III: Civil Aviation Security in the Present Day
performance that we all want. So could we have done more?
I’m sure we could have done. Can we do more? I’m sure we
will. But the issue is I don’t know that we are as far behind as
is sometimes portrayed. Again, can we do more? Sure we can.
But…other countries are struggling with the same kinds of
issues and that’s hence the collaboration…in doing the data
gathering, so that we all work from a common data set, so we
make the decisions in the same way. We may not make the
same decisions but we will be basing it on a common data set
of what doesn’t work for which types of cargo.1906
The fact that other countries have also failed to address an area of aviation
security that Canada has identified as severely deficient should not determine
the pace of Canada’s progress on security policies or protocols, nor should it
justify inaction. Many countries have long-established, highly-lauded air cargo
security programs. The UK, for example, produced regulations for a regulated
agent program by 1993, shortly after the concept was incorporated into Annex
17.1907 International harmonization to the lowest common denominator – in this
case, inaction on air cargo security – is not acceptable for Canada. If Canada
indeed has “…one of the best aviation safety and security programs in the
world,”1908 it must move far beyond the lowest common denominator in air
cargo security.
Similar, though less protracted, delays weakened aviation security in 1985. As
is the case today, Transport Canada was well aware by 1985 of gaps within its
aviation security system and “…had work under way to correct them.”1909 This
work included legislative initiatives. At the time of the Air India bombing, draft
regulations prescribing security measures for a new category of “special risk”
flights had been circulating in government for three years, but had not been
implemented.1910 Had the draft regulations been in effect in June 1985, they
would have applied to Air India, which was clearly facing an elevated threat.1911
In addition, at the time of the Air India bombing, a bill to amend the Aeronautics
Act was before Parliament. The bill would have given the Minister of Transport
the power to prescribe new procedures for preventing unlawful interference
with civil aviation.
By June 1985, Transport Canada had been working closely with the National
Research Council“for some time”to develop explosives vapour detection systems
for screening checked baggage, but these were not yet considered ready for
use at Canadian airports. A similar situation exists today, with cargo screening
technology, including explosives detection systems, under evaluation while
1906 Testimony of Nick Cartwright, vol. 42, June 13, 2007, pp. 5219- 5220.
1907 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5003.
1908 Exhibit P-419.
1909 Exhibit P-157, p. 55 of 135.
1910 Exhibit P-157, p. 57 of 135.
1911 Exhibit P-157, p. 57 of 135.
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cargo remains largely unsearched. The CATSA Advisory Panel reported that “…
[i]mmediately following the Air India tragedy, the department expedited the
acquisition and installation of 26 [explosives vapour detection] units at major
Canadian airports.” Equipment that the Department had concluded was not
ready for use on June 22, 1985, was suddenly approved for deployment across
the country in the wake of the Air India bombing. This serves as a cautionary
tale for air cargo. Air cargo in Canada is primed and ready for sabotage, while at
the same time the technology that could help to prevent that sabotage is being
withheld from service until it is further refined.
Transport Canada posted the following about the ACS Initiative on its website:
Working with the aviation and cargo industries, Transport
Canada’s goal is to develop and enhance a comprehensive
Air Cargo Security program that meets the highest standards
in the world, assures the safety and security of the traveling
public, and facilitates the efficient flow of goods in and out of
Canada.1912
As Wallis stated upon hearing accolades bestowed upon attendees at a
ministerial conference for aviation security, there is a need to ensure that these
are not just more “words, words, words.”1913
The CATSA Advisory Panel noted that the “…slow progress in completing
security projects continues today to be a risk factor for Canada as it leaves
significant known gaps unclosed. This points to a need for Transport Canada to
adopt interim measures to fill known gaps while more comprehensive solutions
are being developed.”1914
Canada could implement several measures relatively quickly, such as using
CATSA equipment to X-ray small cargo packages and conducting physical
searches of larger cargo. Yet the Government has failed to take decisive action.
While comprehensive improvements to air cargo security may require time,
interim procedures such as those mentioned in this paragraph could provide an
important, if incomplete, layer of security. As security measures and technology
develop, the gaps in security will diminish. In the meantime, gaps must be
addressed with the measures that are currently available.
Interim measures for searching air cargo have been put in place in the United
States while more advanced technology is being developed.1915 As well, TSA
officials advised that, in the absence of formal vulnerability and criticality
assessments, they would continue to use available threat intelligence, expert
judgment and information about past terrorist incidents to select and prioritize
air cargo security efforts, including how best to distribute the TSA security
1912 Exhibit P-419.
1913 Testimony of Rodney Wallis, vol. 39, June 4, 2007, p. 4722.
1914 Exhibit P-157, p. 67 of 135.
1915 Exhibit P-417, p. 53.
�Chapter III: Civil Aviation Security in the Present Day
inspectorate.1916 The TSA also considered random cargo inspections to be
interim measures.1917
Wallis described action on air cargo security as long overdue:
So again, discussions on these issues have been around a long
time. One of the problems is that discussions go on and on,
and on and people don’t act. People have to act. And I think
that we are at the time when in the cargo scene, for example,
action is called for and governments should be looking at that
particular operation.1918
Industry stakeholders, aviation security experts and the Government of Canada
agree that air cargo security is among the weakest links in the aviation security
chain. The Government must discharge its responsibility to address this
weakness.
3.8.1.6 Conclusion
Terrorists probe for weaknesses in aviation security. For decades, air cargo
has been known to be such a weakness. Today most industry experts and
stakeholders consider it the most significant vulnerability in civil aviation
security. The existing security regime places civil aviation at grave risk. There is
little screening of those who present cargo for transport and very little cargo is
searched before it is carried on aircraft. Almost 80 per cent of air cargo travels
on passenger aircraft.
Despite knowledge of this serious vulnerability, the Government of Canada has
failed to introduce appropriate security measures.
The ACS Initiative is a promising and welcome start. A long overdue system of
regulated agents to secure air cargo along the supply chain, coupled with what
appears to be a comprehensive plan to screen and search all air cargo, will go
a long way towards preventing sabotage. Still, the lessons of Air India Flight
182 need to be kept in mind, and potential weaknesses in the new air cargo
screening regime must be anticipated to the extent possible and addressed
quickly. Models for delivering screening services, including the potential
involvement of CATSA, require thoughtful consideration. Training protocols and
access control must be meaningful and thorough.
1916 Exhibit P-417, p. 28.
1917 Exhibit P-417, p. 29.
1918 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5010.
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Sustainable funding for air cargo security is also imperative. Air cargo security
represents a vital component of the overall aviation security regime. It must not
be allowed to be weakened by lack of funding or political circumstances.
Almost three decades have passed since air cargo security was recognized as
a concern. Interim measures are crucial while permanent solutions are being
determined. As recommended in 1985 by the Seaborn Report, small packages
should be X-rayed immediately, using existing equipment. Physical searches of
consolidated cargo should also be conducted on a random and targeted basis.
Transport Canada should accelerate its program for selecting and deploying
technology for searching air cargo.
3.8.2 Airport Security
Like screening programs, measures to protect the airport environment are
essential. Airports represent the hub of civil aviation, where industry, the
government and the public interact.1919 Almost all aviation security measures,
including passenger and baggage screening, are conducted at the airport.1920
The airport functions as a physical barrier protecting the aircraft. Under a multilayered approach to security, the airport must complement and preserve the
integrity of all other security measures. Otherwise, the aircraft, its passengers
and crew are vulnerable.
However, the Commission learned that there have long been significant
deficiencies in Canadian airport security. In particular, access to airside and
restricted areas of airports is poorly controlled. Financial resources have been
directed primarily at strengthening passenger and baggage security.1921
As a result, unlike the comprehensive, multi-tiered screening process that
1919 The primary industry and government organizations are the airport operator, Transport Canada, air
carriers, CATSA and the police of local jurisdiction. At eight Class 1 designated airports, there are
heightened security requirements and therefore a greater presence of RCMP officers dealing with
non-aviation security matters. CSIS also maintains offices on site at some international airports. In
addition, there are many airport tenants, often consisting of commercial establishments whose
purposes are unrelated to aviation security. See Exhibit P-169, pp. 49-50 of 202.
1920 Under the proposed Air Cargo Security (ACS) Initiative, government-regulated shippers and freight
forwarders would apply security measures to air cargo prior to its arrival at the airport. Such a system
would notionally extend the perimeter of the airport by securing air cargo through its supply chain,
rather than at the airport. See, generally, Exhibit P-422; see also Testimony of Stephen Conrad, Vol. 42,
June 13, 2007, p. 5185.
1921 In 2005, the Auditor General of Canada reported that Budget 2001 “had emphasized passengers as
the key risk and the Budget had directed funding only to passenger transportation.” See Exhibit
P-411, p. 9. Budget 2009 also appeared to be heavily weighted towards passenger and baggage
security, pledging funds to assist CATSA, which it described simply as “providing consistent and
rigorous screening of passengers and baggage,” and announcing the implementation of “a new
passenger assessment system.” However, funding was also announced to support a new program for
air cargo security. See Exhibit P-407. In May 2009, a Transport Canada news release provided more
details about the breakdown of funding for aviation security from Budget 2009: $2.9 million is to be
set aside for the development of aviation security plans, with the priority for the coming year being
airport security plans. Of $355.8 million earmarked for CATSA, $9.2 million will fund “non-passenger
and vehicle access control and screening at critical restricted areas of airports, using biometric
identification technology.” By contrast, approximately $82 million of this funding will go towards
upgrading equipment for screening passengers and baggage at Canadian airports.
�Chapter III: Civil Aviation Security in the Present Day
passengers and their baggage undergo in the airport terminal,1922 the process
applied to non-passengers who obtain access to restricted areas of airports,
along with their belongings, lacks rigour and can easily be circumvented.1923 Lax
perimeter security allows vehicles and their occupants to enter airside portions
of the airport with minimal, if any, screening.1924 There is evidence to suggest
that, once on airport property, the movement of such vehicles is not carefully
monitored. As a result, despite impressive efforts to safeguard the aircraft
against sabotage from passengers and baggage, many opportunities remain
to place bombs aboard aircraft. Even publicly-accessible areas of air terminal
buildings are susceptible to attack by terrorists, who seek large gatherings of
people in confined areas to achieve the greatest impact.1925
Rodney Wallis, former Director of Security at the International Air Transport
Association (IATA) and an international civil aviation security consultant, wrote
that the events of September 11, 2001, “questioned, as no other event ever
could, the adequacy of airport security in North America.”1926
In Canada, the Air India bombings of June 23, 1985, revealed important
weaknesses in airport security, including problems with access control, airport
security plans, perimeter security and general security awareness.1927 By August
1985, an action plan was developed to address these shortcomings.1928 The
terrorist attacks of September 11th led to the creation of a Crown corporation,
the Canadian Air Transport Security Authority (CATSA), which was given the
responsibility for screening non-passengers and for developing the biometric
Restricted Area Identification Card (RAIC).1929
Despite these improvements, many airport security deficiencies identified
in 1985 continue to be cited as major problems that urgently need to be
addressed.1930
Weaknesses in airport security, together with shortcomings in air cargo,1931
Fixed Base Operation (FBO) and General Aviation (GA) security,1932 have led to
a system in which fortress-like security is applied to the more public, visible
side of aviation, while the less visible side remains exposed to possible attack.
As mentioned elsewhere in this volume, the Standing Senate Committee on
National Security and Defence (Senate Committee) likened the current status of
aviation security in Canada to a house in which “…the front door…[is] fairly well
1922 See Section 3.5 for a description of screening procedures currently in place for passengers and
baggage.
1923 Exhibit P-169, p. 58 of 202.
1924 Final Submissions of the Attorney General of Canada, Vol. II, para. 380.
1925 Exhibit P-169, p. 57 of 202.
1926 Wallis, How Safe Are Our Skies?, p. 65.
1927 Exhibit P-101 CAF0695, pp. 1, 3 of 3; see also Exhibit P-457, pp. 11, 20 of 27.
1928 Exhibit P-101 CAF0695, p. 3 of 3.
1929 Exhibit P-169, pp. 16, 67 and 73 of 202.
1930 See, for example, Exhibit P-169, p. 58 of 202.
1931 See Section 3.8.1 for a detailed analysis of the deficiencies in the current air cargo security regime.
1932 See Section 3.8.3 for a detailed analysis of the security deficiencies at FBOs and in the GA sector.
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secured, with the side and back doors wide open.”1933 The protection provided by
the full passenger and baggage security screening is diluted by porous security
in other areas of airport operations.
3.8.2.1 Air India Flight 182: Airport Security Deficiencies Revealed
The Commission was surprised to learn about how long Canada has known
of many weaknesses in airport security that persist today. The bombing of
Flight 182 exposed widespread deficiencies in aviation security, among them
deficiencies at airports. This sparked change, both in Canada and on the
international stage.
Within days of the bombing, IATA, a trade association for the world’s international
scheduled airlines,1934 convened an extraordinary meeting of its Security
Advisory Committee (SAC) to assess the gaps in security procedures that had
been revealed. 1935 Ramp security was identified as one gap.1936 The ramp is the
area of the airport where the physical handling of the aircraft takes place.1937
A working group of security specialists on ramp security was subsequently
established to consider measures to better protect the ramp from infiltration
by terrorists. The working group presented its findings to the SAC in September
1985.1938
Following the loss of Flight 182, airport security also became a priority in
Canada. On July 4, 1985, Transport Canada’s Deputy Minister requested an audit
of airport security at Vancouver, Pearson and Mirabel International Airports1939
– the airports through which the bomb had journeyed.1940 The audit report was
completed on July 24, 1985,1941 and revealed serious deficiencies at all three
airports. Common among the deficiencies were inadequate protection of the
aircraft, inadequate control of access to restricted areas, deficiencies in airport
security plans, and insufficient security awareness among employees.1942 Experts
continue to highlight these as problems today.
The report cited specific examples of parked aircraft that were often not locked or
secured,1943 airport security plans that were not up to date,1944 restricted areas with
1933 Exhibit P-171, p. 13 of 256; see also Exhibit P-172, p. 30 of 155.
1934 Wallis, Combating Air Terrorism, p. 102.
1935 Wallis, Combating Air Terrorism, p. 5.
1936 Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4476-4477.
1937 Wallis, Combating Air Terrorism, p. 59.
1938 Testimony of Rodney Wallis, vol. 37, May 31, 2007, pp. 4476-4477.
1939 Exhibit P-457, p. 3 of 27; The resulting audit report, dated July 25, 1985, had been labeled with the
note: “Report prepared for Department of Justice Counsel Assessing the Potential for Litigation.”
See Exhibit P-457, p. 1 of 27.
1940 Exhibit P-157, p. 11 of 135.
1941 Exhibit P-457, p. 1 of 27.
1942 Exhibit P-101 CAF0695, p. 1 of 3; see also Exhibit P-457, pp. 11, 20 of 27.
1943 Exhibit P-457, pp. 11-12 of 27.
1944 Exhibit P-457, pp. 12 and 21 of 27.
�Chapter III: Civil Aviation Security in the Present Day
open and insecure doors,1945 easily breached locks,1946 non-standard perimeter
fencing1947 and inadequate control and inspection of employee identification
passes.1948 The report noted that unscreened passengers arriving from feeder
airports were able to enter “sterile” areas of these major airports.1949 Some of
the most egregious security breaches were found at Toronto’s Pearson Airport.
They included “several thousand”1950 personnel identification passes which
could not be accounted for because they had been stolen, lost or not returned,
and restricted area entry doors that could be unlocked by inserting a credit
card or because the lock combination was written on the doors themselves.1951
The report also noted that access to aircraft by personnel such as caterers and
groomers was not closely monitored at Pearson, nor was it normal practice to
inspect food delivered to the aircraft or perform a search of the aircraft once
all support personnel had deplaned.1952 The ability to control restricted areas at
Pearson was considered “highly suspect,”1953 and unauthorized access to aircraft
had occurred.1954 Among the security weaknesses found at Mirabel Airport in
Montreal were airport passes that were not always worn in cargo handling
areas1955 and air cargo areas that could be “penetrated almost at will.”1956
In most instances, the problem was not a complete absence of security measures.
Measures were in place, but did not adequately address the security concern, or
their application was insufficiently monitored1957:
…[A]lthough restricted areas are established and physical
measures have been implemented to supplement the policing
function, many areas still remain vulnerable to determined and
even accidental entry.1958
Shortly after completion of the airport security audit, the Canadian Air
Transportation Administration addressed a memorandum, dated August 19,
1985, to Transport Canada’s Deputy Minister. The memorandum stated that
corrective action was being taken to deal with the deficiencies identified by the
review.1959 These actions included facility improvements and repairs, increased
monitoring and inspection, increased vigilance and improved security controls
1945 Exhibit P-101 CAF0695, p. 1 of 3.
1946 Exhibit P-457, p. 14 of 27.
1947 Exhibit P-457, p. 14 of 27.
1948 Exhibit P-457, pp. 13 and 24 of 27.
1949 Exhibit P-457, p. 18 of 27.
1950 Exhibit P-457, p. 13 of 27.
1951 Exhibit P-457, pp. 13-14 of 27.
1952 Exhibit P-457, p. 20 of 27.
1953 Exhibit P-457, p. 20 of 27.
1954 Exhibit P-457, p. 20 of 27.
1955 Exhibit P-457, p. 24 of 27.
1956 Exhibit P-457, p. 23 of 27.
1957 Exhibit P-101 CAF0695, p. 2 of 3.
1958 This comment referred to security measures at Pearson International Airport in Toronto: Exhibit P-457,
p. 14 of 27.
1959 Exhibit P-101 CAF0695, p. 3 of 3.
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for parked aircraft,1960 updated airport security plans,1961 and the development
of a security awareness program for airport workers and airport users.1962 The
memorandum said actions on these matters were “…being undertaken on a
high-priority basis.”1963
The Government of Canada also commissioned a more holistic review of airport
and airline security in Canada, prompted directly by the loss of Air India Flight
182.1964 Known as the Seaborn Report, its findings were released on September
24, 1985. The report acknowledged the recent audit of airports in Vancouver,
Toronto and Montreal that had uncovered “…gaps in the security net, particularly
respecting possible unauthorized access to the airfield and the airside portion
of the terminal.”1965 The report made recommendations for improving airport
security, including:
• the need for security and criminal background checks, as a
condition of employment, for all airside employees and others with
access to sensitive areas of the airport or aircraft;
• requiring airport workers to wear clearly visible and controlled
identification at all times;
• requiring airport management to instill in all workers a high level
of security awareness throughout the airport and on the airfield, as
a priority; and
• the need for public awareness of the security measures in place for
its protection at airports and of the contribution the public could
make to enhancing security.1966
Almost a quarter century later, many of the deficiencies noted by the airport
security audit report and the Seaborn Report, including inadequate access
control, remain urgent concerns. Many of the solutions proposed for bringing
airport security to an appropriate standard are the same as well.1967 The
Commission notes that the 2009 Budget announced $2.9 million in funding
for the development of aviation security plans, with priority being given to the
“initiation of airport security plans”1968 as a result of pilot projects conducted
at several airports in the past year. The Budget also provided funding to hire
additional oversight officers. Virtually all stakeholders and experts recommended
1960 Exhibit P-101 CAF0695, pp. 1-2 of 3.
1961 Exhibit P-101 CAF0695, p. 2 of 3.
1962 Exhibit P-101 CAF0695, p. 3 of 3.
1963 Exhibit P-101 CAF0695, p. 3 of 3.
1964 Exhibit P-101 CAF0039, p. 1 of 10.
1965 Exhibit P-101 CAF0039, p. 8 of 10.
1966 Exhibit P-101 CAF0039, p. 8 of 10.
1967 Exhibit P-169, p. 58 of 202.
1968 “Government of Canada Invests in Aviation Security” (Transport Canada News Release: May 4, 2009),
online: Transport Canada< http://www.tc.gc.ca/mediaroom/releases/nat/2009/09-h065e.htm >.
�Chapter III: Civil Aviation Security in the Present Day
that security awareness programs be offered at airports,1969 as well as various
ways of controlling access to restricted areas.1970
As is the case with air cargo security, Transport Canada has known about
shortcomings in airport security for over two decades.1971 Unlike the case with
air cargo security, there have been significant improvements in protecting
the airport environment. However, non-passengers and others with access to
non-public areas of the airport continue to pose an unacceptable risk. Security
improvements have not fully addressed this risk.
3.8.2.2 Basic Principles
As some aviation security experts who appeared before the Commission
noted, security begins on the ground. Once a plane is airborne, there are only
limited means to address a security threat.1972 This may seem self-evident, but it
cannot be overstated. The “ground” is the airport, where security measures must
be implemented and maintained in a coordinated, mutually reinforcing manner.
Complementary layers of security are necessary.1973 In his 1993 book, Combating
Air Terrorism, Wallis wrote of the important role of the airport in preventing air
terrorism:
Any incident of unlawful interference has its origins on the
ground. To sabotage or hijack an aircraft requires security
defences in place at airports to be breached. For this reason
much of the Security Annex to the Chicago Convention on Civil
Aviation (Annex 17) concentrates on the airport and on the
ground procedures considered necessary to preempt criminal
acts against civil aviation. It is important to note that the annex
defines the minimum criteria required.
The 1985 incidents involving the seizure of the TWA Boeing
727 and the destruction of Air India’s Boeing 747 concentrated
the world’s attention on the security provisions at international
airports. More specifically, focus was given to identifiable
inadequacies.1974
To be fully effective, airport security requires the coordinated efforts of many
aviation stakeholders, including Transport Canada, the airport operator, CATSA,
1969 See, for example, Exhibit P-169, p. 58 of 202.
1970 See, for example, Exhibit P-169, p. 69 of 202.
1971 Exhibit P-101 CAF0695.
1972 Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 4999-5000; see also Testimony of Kathleen Sweet,
vol. 41, June 6, 2007, p. 4940.
1973 Testimony of Jim Marriott, vol. 39, June 4, 2007, p. 4708.
1974 Wallis, Combating Air Terrorism, p. 44. The seizure of TWA Flight 847 by Lebanese Hezbollah terrorists
on June 14, 1985, occurred over the Mediterranean. It was a two-week hostage-taking in which the
hijackers negotiated for the successful release of hundreds of prisoners in Lebanon and Palestine. See
Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
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air carriers and local police. Consultation with all those affected and involved in
the development and implementation of airport security measures will result in
optimal security.1975
3.8.2.3 Air Terminals as Targets of Opportunity
Air terminals themselves are targets. Long line-ups and passenger congestion
at check-in and security counters mean that many people are assembled in a
confined area, creating a target-rich environment.1976 As well, a security breach
that sees passengers evacuated from secure areas creates congestion in nonsecure areas and provides a target of opportunity.1977 This was the concern in
August 2006 at London’s Heathrow Airport, when authorities uncovered a plot
to hide liquid and gel explosives in hand baggage. The rapid security response
resulted in “absolute chaos”1978 at the airport, as large groups of passengers were
made to gather in tents outside the airport. Wallis testified that “…[t]his is the
sort of knee-jerk reaction we have to avoid because the moment you bring
them all out into the open, you’ve created a massive target if the terrorists were
serious.1979”
Many experts view aircraft sabotage as holding the greatest appeal for
terrorists1980 since aircraft can be clearly identified as surrogates for the state
under whose flag they fly,1981 and their dramatic destruction in mid-air may
provide high propaganda returns.1982 Airports themselves have nonetheless
become significant targets since aviation terrorism became more prevalent
in the mid-1960s.1983 An attack in an air terminal building no doubt sends a
powerful message to the country in which it is situated.1984 Several significant
airport attacks have occurred:
• 1965: Seven British children were injured when a grenade was
thrown at the Aden airport terminal in Yemen;
• 1972: In what is referred to as the “Lod Airport Massacre,” the
Popular Front for the Liberation of Palestine (PFLP) and Japanese
Red Army terrorists opened fire in the passenger terminal of Lod
(renamed Ben-Gurion) Airport in Israel, killing 26 and wounding 78;
• 1973: A Black September suicide squad attacked the passenger
terminals at Athens Airport in Greece, killing 3 and injuring 55;
• 1973: Palestinian terrorists bombed a Pan Am office at Fiumicino
Airport in Rome, Italy, killing 32 and injuring 50;
1975 Wallis, Combating Air Terrorism, p. 52; see also Exhibit P-169, p. 49 of 202.
1976 Exhibit P-169, p. 57 of 202.
1977 Exhibit P-169, p. 57 of 202.
1978 Testimony of Peter St. John, vol. 37, May 31, 2007, p. 4510.
1979 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4248.
1980 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4243; see also Exhibit P-169, p. 15 of 202.
1981 Wallis, Lockerbie, p. 152.
1982 Exhibit P-169, p. 15 of 202.
1983 Exhibit P-35, p. 18.
1984 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4244.
�Chapter III: Civil Aviation Security in the Present Day
• 1975: Arab terrorists attacked Orly Airport in Paris, France, seizing 10
hostages in a terminal bathroom;
• 1975: A bomb was detonated at LaGuardia Airport in New York,
killing 11 and injuring 74;
• 1976: PFLP and Japanese Red Army terrorists attacked a passenger
terminal at Istanbul airport in Turkey, killing 4 and injuring 20;
• 1985: A Red Army Faction bomb exploded at Frankfurt Airport,
Germany, killing 3; and
• 1985: Using grenades and machine guns, the Abu Nidal terrorist
group launched suicide attacks on passenger terminals at both
Rome and Vienna airports, killing 16 and injuring more than 100.1985
The 1985 attacks at Rome and Vienna Airports targeted the check-in operations of
the Israeli air carrier, El Al. The attacks signalled the onset of a new phenomenon
– the “disposable” terrorist. Whether the attacks were intended to be suicidal is
disputed,1986 since the terrorists attempted to escape, but “…[t]he absence of a
coordinated, preplanned escape avenue suggests that the planners behind the
attacks were content to have their forces disposed of after the event.”1987 In other
words, the planners appeared not to be concerned if attackers were killed or
captured during their attack.1988
The Rome and Vienna airport attacks led the International Civil Aviation
Organization (ICAO) 1989 to develop a protocol to the Montreal Convention, the
international treaty dealing with sabotage against aircraft. The treaty had not
envisaged attacks on air terminals. On February 24, 1988, the protocol was
finalized. It declared as an offence any act of violence against persons, facilities
or services at an international airport that could cause serious injury, death or
damage, as well as the destruction or damage of aircraft not in service at such
airports.1990
There has been a relative lull in attacks on airport terminals since the 1985 Rome
and Vienna incidents.1991 However, it stands to reason that, as security defences
to safeguard aircraft – for example, passenger and baggage screening – are
1985 See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
1986 According to Rodney Wallis, the terrorists had not planned to “fight to the death” – the usual
expectation of suicide missions. See Wallis, Combating Air Terrorism, p. 11.
1987 Wallis, Combating Air Terrorism, p. 11.
1988 Wallis, Combating Air Terrorism, p. 11.
1989 Established in 1944, ICAO is the supreme law-making body for international civil aviation. See Wallis,
Combating Air Terrorism, p. 91.
1990 Wallis noted that the necessity for such an international protocol to the original Montreal Convention
can be questioned since armed attacks involving injury and death would invariably be addressed by
national criminal statutes. However, by linking such crimes to the Montreal Convention, states were
afforded the opportunity to extradite the offenders to the country against which the crime was
targeted. See Wallis, Combating Air Terrorism, p. 12.
1991 See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
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strengthened, terrorists will turn to other targets.1992 The airport terminal is one
such target.1993
Since 2000, there have been further incidents of sabotage at airport terminals
and there are fears of more. In 2003, a bomb hidden in a backpack exploded in
the terminal in Davao, in southern Philippines, killing 21 people and wounding
148. The Moro Islamic Liberation Front was suspected.1994 Immediately following
the events of September 11th, one of the main concerns in the US was the
vulnerability of airport terminals. The US was particularly concerned about the
ease with which vehicles could gain access to the front entrance of airports and
the potential for an explosives-laden vehicle to drive up to the air terminal and
be blown up. A decision was made to close airport parking within 100 yards
of the front of terminal buildings. Airport industry trade associations objected
because of the significant lost income from the closed parking spots. The
industry rejected the option of searching every vehicle, also because of the cost.
The parking spots were nevertheless closed but, according to Moses Aléman, a
US-based expert in international civil aviation security, concern later appeared
to subside and the vehicle ban was lifted.1995
Complacency and industry concern over lost revenue appeared to play a role
in discontinuing this security measure. Wallis identified complacency as an
ongoing problem:
Complacency is an ever-present problem…. [I]f you go a
period without anything happening complacency sets in. It
can set in with an airline, with an airport or with governments.
Governments don’t continue with their initial big push on
changes in legislation, for example, if nothing has been
happening. They have got other things, other sound bytes
they want to put up to push the current political thinking, et
cetera.1996
Wallis strongly emphasized that cost issues must not take priority over security:
“…[C]ommercial priorities, namely bottom-line figures in the company accounts,
must not be allowed to override security requirements.”1997 He quoted Victoria
Cummock, a disaster victims advocate whose husband was on board Pan Am
Flight 103 and died when it was bombed in 1988. She stated that “…history has
proven the aviation industry’s lack of sincerity and willingness to address safety
1992 Exhibit P-361, Tab 1, p. 8.
1993 Exhibit P-169, p. 57 of 202.
1994 See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
1995 Testimony of Moses Aléman, vol. 35, May 29, 2007, pp. 4245-4246.
1996 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4541.
1997 Wallis, How Safe Are Our Skies?, p. 167.
�Chapter III: Civil Aviation Security in the Present Day
and security on behalf of their customers.” Wallis insisted that such an attitude
must not be allowed to persist in the 21st century.1998
The very event feared by the US recently came to pass, albeit in Scotland. On
June 30, 2007, a sports utility vehicle filled with gas canisters was deliberately
driven through the front doors of the main terminal building at Glasgow Airport
and set ablaze.1999
Although risks must be assessed in their local context, a proactive approach to
security requires an ongoing assessment of trends in aviation terrorism, wherever
they occur. Good risk management principles dictate that significant risks be
reduced to a level that is considered acceptable, given available resources.2000
When the Commission asked whether the Canadian Airports Council (CAC) had
attempted to address the risk presented by target-rich airport environments, it
was told of the many difficulties in determining risk priorities:
…[W]e’re confronted with a broad variety of security threats
and the challenge for Transport Canada, from our perspective,
and the challenge for our [security] committee and our
members, is to identify those risks that are the highest
potential, the ones that are the most urgently demanding of
our attention from a security perspective.
So with each event that occurs it highlights an issue that calls
for an answer from the aviation community but the challenge
is identifying the risk of that event ever happening again,
how to decide whether that is one that’s likely to be exploited
again and how to respond in a measured way by the…aviation
stakeholders.2001
Managing the totality of security risks presents challenges, but adherence to a
common set of risk management protocols based on best practices in the field,
coupled with ongoing consultation with all relevant stakeholders, will lead to
robust aviation security.2002
Several potential solutions may exist for each security weakness. Not all measures
will be practical in all settings. For example, closing off the front of a terminal
1998 Wallis, How Safe Are Our Skies?, p. 168.
1999 Exhibit P-425, pp. 1-2 of 5.
2000 “Good risk management practices dictate that, so far as risk control objectives are concerned,
there must be no gaps in the system: The whole set of risk domains must be managed so as to
achieve performance outcomes according to a predetermined level of acceptable risk. If this cannot be
accomplished in any one domain, either risk control resources must be rebalanced across those
domains, or additional resources must be allocated.” [Emphasis in original] See Exhibit P-361, Tab 1,
p. 9.
2001 Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8122.
2002 Exhibit P-361, Tab 1, pp. 8-10; see also Section 3.3, which describes risk management in civil aviation
security.
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building to vehicles, though likely to enhance security, may be unworkable,
a reality that seems to have been recognized by US authorities. It is a longestablished principle that security measures must not unreasonably impede
air travel.2003 However, industry concerns must not block necessary security
measures. A well-considered balance between security and industry needs is
necessary. Jean Barrette, Director of Security Operations at Transport Canada ,
discussed how security and other considerations are weighed:
In anything we do in security, we always look at the triangle, as
I call it. Security … is your ultimate objective.… [W]e have to
create an environment commensurate to good business; that’s
the business that our colleagues in the air carrier industry are
in. And … keeping in mind the rights and the values of our
Canadian citizens…. [W]hen you are facing a security situation
… [the] impact on the business of the air carrier, that is no
relevancy to us because what comes first is our engagement to
make sure we ensure the safety and security of passengers.
… [W]e are in the business of preventing acts of unlawful
interference and the security of the passengers will also have
precedence over business.2004
The Commission heard of possible solutions as drastic as redesigning air terminal
buildings. Other solutions could involve security measures to reduce the number
of passengers congregating in any one area.2005 Airport authorities in some
countries prohibit anyone other than passengers from entering the terminal
building.2006 Airport security committees also need to reassess emergency
evacuation procedures to avoid large crowds gathering in non-secure areas.2007
3.8.2.4 The Price of Poor Access Control
Access control, perimeter security and facilities protection are vital to airport
security and can directly affect aircraft – and therefore passenger – security.2008
The CATSA Act Review Advisory Panel (CATSA Advisory Panel), an independent
advisory panel, agreed in a 2006 report that access to restricted areas and
airside portions of the airport “… through air terminal buildings, from the ramp
or apron where aircraft are loaded, through the outer perimeter that encloses
the wider airfield, through airfield gates or tenant facilities, on foot or in a
2003 The 1985 Seaborn Report recognized that “…[t]he threat of terrorism must not be permitted unduly to
interfere with the normal activities of daily life, including air travel.” The report recognized, as well, that
air travellers are susceptible to terrorism and that security must therefore be efficient and effective. See
Exhibit P-101 CAF0039, p. 10 of 10.
2004 Testimony of Jean Barrette, vol. 38, June 1, 2007, p. 4567.
2005 Exhibit P-169, p. 57 of 202.
2006 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4244.
2007 Exhibit P-169, p. 57 of 202.
2008 Wallis, How Safe Are Our Skies?, p. 87.
�Chapter III: Civil Aviation Security in the Present Day
vehicle – must be rigorously secured at all times.”2009 All operational areas of
the airport, particularly the ramp, must be protected from terrorist infiltration.
The ramp, which forms part of the airport tarmac, has been described as the
“soft underbelly of an airport.”2010 It is the area immediately beside the terminal
building where most aircraft park.2011 With increasingly large aircraft that require
more vehicles, equipment and personnel to service them, it becomes difficult to
maintain tight security controls around the aircraft2012:
Movement around an aircraft being prepared for flight is
very confused. A multitude of vehicles are used to service
the aircraft while a myriad of staff are needed for the same
purpose. Engineers, caterers, cleaners, and refuelers, together
with persons emptying the waste tanks, are all at or around
the aircraft at some time during its period on the ramp. This
confused mass of staff can be used to cloak the activity of
a terrorist, or someone aiding him, to position an explosive
device or weapons onto an aircraft. Experience has shown that
this approach has been used many times to provision terrorists
who have been able to walk cleanly through airport controls
only to collect their weapons once they are on board.2013
Terrorists have exploited inadequate airport security controls to attack aircraft
on the ground:
• 1968: The PFLP launched a machine gun attack on an El Al aircraft at
the airport in Athens, Greece, killing 1;
• 1969: Using machine guns, Palestinian terrorists attacked an El Al
707 on the runway in Zurich, Switzerland, raking the fuselage with
gunfire and killing the pilot and 3 passengers; and
• 1986: Terrorists breached perimeter security at Karachi Airport in
Pakistan and seized a Pan American 747 that was in the process of
boarding, killing 22 and injuring more than 100.2014
The 1986 incident at Karachi Airport involved terrorists dressed to resemble
airport guards. They obtained a vehicle similar to those used by the airport
authority and drove to a checkpoint at the entrance to the airside of the airport.
Despite security rules that required identity cards to be examined, the terrorists
were simply waved through, giving them unimpeded access to the aircraft.2015
2009 Exhibit P-169, p. 58 of 202.
2010 Wallis, How Safe Are Our Skies?, p. 77.
2011 Wallis, How Safe Are Our Skies?, p. 77.
2012 Wallis, How Safe Are Our Skies?, pp. 70-71.
2013 Wallis, Combating Air Terrorism, p. 59.
2014 See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
2015 Wallis, How Safe Are Our Skies?, p. 87.
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The likelihood of a similar attack in Canada may seem remote. However,
Canada’s experience with air terrorism and the identification of perimeter
security as a key concern in 1985 following the bombing of Air India Flight
182, and a recent occurrence at Toronto’s Pearson International Airport, suggest
the need for greater concern. According to media reports, Senator Colin Kenny,
Chair of the Senate Committee, accompanied by the Minister of Transport, the
Hon. John Baird, staged an undercover incursion at Pearson International Airport
on March 29, 2009, following months of planning. They drove to the perimeter
of the airport in a police van, stepped out of the vehicle and quickly found an
unguarded entranceway through which they passed, unchallenged. They then
spent time wandering about the airport tarmac, mingling with airport workers.
Both intruders wore baseball caps and the Senator had donned “an orange
traffic vest and made a show of carrying around a clipboard, and an array of ID
cards and hotel room keys, none of which were related to airport security.”2016
Although they spoke with airport workers, including fuellers and baggage
handlers, their presence on the tarmac, a restricted area, was never questioned.
The Greater Toronto Airports Authority (GTAA) had evidently provided the pair
with appropriate visitor passes, but these went unchecked and they were never
asked to leave the area. Senator Kenny was said to have claimed that the passes
were “irrelevant for getting on the tarmac.”2017
The impromptu “intrusion test” staged by Senator Kenny and Minister Baird
in many ways mirrored the methods used by terrorists in the Karachi Airport
incident in 1986.
Six months before this incursion, the Commission heard from the Director of
Public Safety at the GTAA. He explained the approach to perimeter security at
Pearson International Airport:
We have a tiered response for all our securities to, in essence,
put the right people at the right place at the right time. In
perimeter security what that means is that everyone who is
on the airfield is responsible for the perimeter checks. So our
standards, just by the nature of who we are, are higher than
the standards that Transport Canada set.
That was our choice. Our checks are more frequent so it’s
not only security that does perimeter checks. [Canine teams
do] security checks. The field operations group does security
checks, airside safety, and it’s a random checking of the
2016 Colin Freeze, “Operation Tarmac: politicians go undercover to expose security flaws at Pearson” The
Globe and Mail (2 April 2009), online: <http://web.theglobeandmail.com/servlet/story/LAC.20090402.
KENNY02//TPStory/National>.
2017 According to the media reports, Senator Kenny and Minister Baird were followed throughout by RCMP
officers, who had briefed the pair prior to the incursion, but did not direct their wanderings on
the airport tarmac. See Colin Freeze, “Operation Tarmac: politicians go undercover to expose security
flaws at Pearson” The Globe and Mail (2 April 2009), online: < http://web.theglobeandmail.com/servlet/
story/LAC.20090402.KENNY02//TPStory/National >.
�Chapter III: Civil Aviation Security in the Present Day
perimeter for obviously holes in the fence but also tire marks
and people hanging around and that sort of thing.2018
The CATSA Advisory Panel conceded that security can never be absolute, but that
it must be brought to an acceptable level, based on relative levels of risk.2019
In his book, Wallis wrote of a series of incidents between 1998 and 2000 where
stowaways were discovered in the nose wheel bay and undercarriage of aircraft
belonging to British Airways, upon their return to the United Kingdom from
abroad. Although Wallis stated that none of the stowaways had threatened the
security of the aircraft, their presence revealed a serious security loophole:
If it is possible for would-be refugees to access an aircraft
undetected, what of terrorists who could so easily plant an
improvised explosive device in this very vulnerable position?
A timing mechanism could be set to detonate a device
at any point in the aircraft’s flight, including over a major
metropolis.2020
An airport’s defence must provide protection against a wide range of potential
attackers.2021 Terrorists can sometimes pretend to be legitimate employees, or
legitimate employees can be “turned” to act as terrorists. For this reason, access to
restricted and airside areas of the airport must be effectively controlled.2022 Nonpassengers include employees of airports, airlines, CATSA, government agencies,
retailers and restaurants, as well as service providers under contract to any of
these entities.2023 As noted earlier, the ramp represents a key vulnerability:
When aircraft arrive or are preparing for departure, the ramp
is a hive of activity. The larger the aircraft, the more airport
workers and service vehicles need access to the area. All have
to be security screened and supervised. The aircraft has to be
guarded against unauthorized entry.2024
The history of air terrorism has shown the risk posed by workers with access
privileges at airports. The earliest suspected case occurred in 1955 and involved
the bombing of an Air India Lockheed 749A. A bomb exploded while the aircraft
flew over the South China Sea. Only three of the 19 persons on board survived.
The flight originated in Hong Kong and was carrying Chinese delegates
and journalists to a conference in Indonesia. A Chinese aircraft cleaner had
2018 Testimony of Jim Bertram, vol. 65, October 24, 2007, pp. 8130-8131.
2019 Exhibit P-169, p. 36 of 202; see also Section 3.3, which describes in greater detail risk management in
civil aviation security.
2020 Wallis, How Safe Are Our Skies?, p. 89.
2021 Wallis, Combating Air Terrorism, p. 51.
2022 Wallis, How Safe Are Our Skies?, p. 91.
2023 Exhibit P-169, p. 67 of 202.
2024 Wallis, How Safe Are Our Skies?, p. 77.
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reportedly been bribed to place an incendiary device in the starboard wheel
well. This illustrates how an airport worker can be used to aid in the sabotage
of an aircraft. Political terrorism was the apparent motive. The Chinese Premier
may have been the target, but his travel plans had been kept secret and he flew
three days later.2025
In 1986, a bomb exploded on an Air Lanka Lockheed 1011 aircraft while it was
on the ground at Colombo Airport, killing more than 20 passengers who were
boarding the aircraft. A customs officer with access to the aircraft’s supplies
and who was believed to be sympathetic to the Tamil separatist movement
was charged with sabotage. The device had been placed in the aircraft’s “flyaway” kit, a collection of essential technical items carried on each aircraft to
facilitate emergency maintenance at overseas airports.2026 In December 1987, a
dismissed US Air employee with a grudge against his former supervisor and the
company boarded a US Air aircraft in Los Angeles. He had retained his airline
identification badge, which permitted access to the airside of the airport. He
reached the aircraft simply by walking around the screening controls. He was
known to the screeners, who apparently did not know that he had been fired.
He is believed to have used a smuggled revolver to kill his former supervisor and
then the flight deck crew, causing the aircraft to crash. All 43 persons on board
were killed.2027
The bombing of Pan Am Flight 103 in December 1988 was initiated by a breach
in airside security involving a former airline security executive. The suitcase
containing the bomb had circumvented regular check-in procedures because
the perpetrator, a former chief of security with Libyan Arab Airlines,2028 had links
to the airline. This gave him access to the baggage makeup area at the airport
in Malta and, ultimately, to the baggage tags. The suitcase was labelled with
an interline tag,2029 placed aboard the Air Malta aircraft and later interlined to
the Pan Am flight in Frankfurt. Following a transit stop and change of aircraft
at Heathrow Airport in London, the bomb exploded while over Lockerbie,
Scotland. All 259 people on board died, along with 11 people on the ground
killed by the aircraft’s debris.2030
As these aviation security incidents demonstrate, stringent airport access
control, including perimeter security, is essential. Only individuals and vehicles
with authorization to enter restricted areas or airside portions of airports should
be allowed to do so.2031 Still, as history has shown, even those who are considered
known and trusted can harm civil aviation.
2025 See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
2026 See Appendix A, Chronology: Significant Acts of Unlawful Interference with Civil Aviation.
2027 Wallis, Combating Air Terrorism, p. 51.
2028 The perpetrator was also an intelligence officer of the Libyan government. In 2001, he was found guilty
of murder in the bombing of Pan Am Flight 103 and was sentenced to 27 years in prison: Wallis,
Combating Air Terrorism, p. 38.
2029 Testimony of Rodney Wallis, vol. 37, May 31, 2007, p. 4516.
2030 See Section 2.3, which provides a detailed analysis of the bombing of Pan Am Flight 103.
2031 Wallis, How Safe Are Our Skies?, p. 156.
�Chapter III: Civil Aviation Security in the Present Day
3.8.2.5 Access Control at Canadian Airports
Despite a recognized need for robust airport security, and despite the measures
already implemented to improve protection of the airport environment, many
witnesses told the Commission that access control at Canadian airports was
one of the key security deficiencies in civil aviation.2032 Inadequate screening
of non-passengers and weak perimeter security were the main concerns.2033
In 2006, the CATSA Advisory Panel completed a review of CATSA’s operations
and enabling legislation. The Panel expressed concern about how easily
unauthorized individuals could enter restricted areas of airports, labelling this
a “major lacuna”2034 in Canada’s defence against air terrorism. Reports by the
Senate Committee2035 and the Auditor General of Canada2036 largely agreed.
The CATSA Advisory Panel found unauthorized access to be a particularly acute
problem at larger airports, where tens of thousands of long-term, temporary
and casual workers were employed. These included baggage handlers, plane
groomers and employees of catering, cargo and retail establishments.2037 At
Canada’s busiest airport, Pearson International Airport in Toronto, more than
45,000 employees had legitimate access to restricted areas.2038
Many areas at major airports were reportedly unguarded, or open for individuals
to roam without challenge or any form of screening. These included such
critical areas as the tarmac, aircraft hangars, catering facilities and the airport
perimeter.2039 Vehicles that entered the perimeter were not searched.2040 Although
it provided anecdotal evidence only, the undercover intrusion conducted by
Senator Kenny and Minister Baird at Pearson International Airport exposed
some of these serious security weaknesses.2041 The Commission is troubled by
these reports.
These criticisms of airport security echo concerns that were identified as early
as 1985 and repeated when measures were introduced to improve access
control after September 11th. On November 5, 2002, CATSA, then a newly
created screening authority, became responsible for the random screening of
non-passengers who sought access to restricted areas at airports, as well as
random screening of their possessions.2042 CATSA was also given responsibility
for developing the Restricted Area Identification Card (RAIC), which used
2032 See, for example, Exhibit P-169, pp. 57-58 of 202.
2033 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4626; see also Exhibit P-169, pp. 57-58 of 202.
2034 Exhibit P-169, p. 58 of 202.
2035 Exhibit P-172, p. 28 of 155.
2036 Exhibit P-173, p. 4.
2037 Exhibit P-169, p. 58 of 202.
2038 Exhibit P-169, p. 31 of 202.
2039 Exhibit P-169, p. 58 of 202.
2040 Exhibit P-172, pp. 30 and 32 of 155.
2041 Colin Freeze, “Operation Tarmac: politicians go undercover to expose security flaws at Pearson” The
Globe and Mail (April 2, 2009), online: The Globe and Mail
< http://web.theglobeandmail.com/servlet/story/LAC.20090402.KENNY02//TPStory/National >.
2042 Exhibit P-169, p. 61 of 202; see also Final Submissions of the Attorney General of Canada, Vol. II, para.
373.
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biometric identifiers to augment and replace the existing Restricted Area Pass
(RAP) system.2043 Non-passenger screening (NPS) is now conducted randomly
at either temporary or permanent locations established at entry points to
restricted areas. NPS activities are currently focused on restricted area access
points in air terminal buildings, where employee traffic is reportedly higher.2044
At the largest Class 1 airports, CATSA uses a combination of permanent NPS
checkpoints and “roving” teams of screeners that move between various
access points “to increase the unpredictability of the program.”2045 By 2006, six
permanent NPS locations at Class 1 airports across Canada were equipped with
walk-through metal detectors.2046 This meant that the majority of doors giving
access to restricted areas did not have a fixed NPS checkpoint. Rather, the NPS
team used a mobile cart that included hand-held metal detectors and moved
on a random basis between access points where there was no fixed metal
detector.2047 Items carried by non-passengers might be checked with X-ray and/
or explosives detection trace (EDT) equipment. Secondary searches might be
conducted to check suspect items. Any non-passenger who refused a search
was denied entry to the restricted area.2048 The Commission had no information
about the number of permanent NPS locations in place at the time of writing.
Perimeter security is the responsibility of the airport operator.2049 In its Final
Submissions, the Attorney General of Canada reported that vehicles “…are
subject to only cursory, visual examination by airport operators at a limited
number of vehicle access gates.”2050 At present, CATSA screening officers do
not search vehicles when they enter a restricted area.2051 However, in July 2006
Transport Canada reported to the Senate Committee that it was working with
CATSA on “implementation strategies for vehicle searches.”2052 The Attorney
General’s Final Submissions also reported that Transport Canada and CATSA
were cooperating to develop options to improve NPS and to conduct vehicle
searches at Class 1 airports.2053
NPS procedures were implemented requiring CATSA to screen non-passengers
and their possessions on a random basis before allowing entry to restricted
areas2054 in the 29 Class 1 and Class 2 airports,2055 but faced much criticism. There
was widespread agreement about the need for NPS, but also concern that
random screening would inescapably miss many individuals, including some
2043 Exhibit P-169, p. 73 of 202; see also Exhibit P-101 CAF0858, p. 1 of 10.
2044 Exhibit P-273, p. 34; see also Final Submissions of the Attorney General of Canada, Vol. II, para. 377.
2045 Final Submissions of the Attorney General of Canada, Vol. II, para. 377; see also Exhibit P-169, p. 67 of
202.
2046 The six permanent NPS checkpoints were reported to be located in Calgary (2) , Halifax (1), Winnipeg
(2) and Edmonton (1). See Exhibit P-172, p. 32 of 155; see also Exhibit P-173, p. 34.
2047 Exhibit P-173, p. 34.
2048 Exhibit P-169, pp. 67-68 of 202.
2049 Exhibit P-169, p. 57 of 202.
2050 Final Submissions of the Attorney General of Canada, Vol. II, para. 380.
2051 Exhibit P-169, pp. 67-68 of 202.
2052 Exhibit P-172, p. 32 of 155.
2053 Final Submissions of the Attorney General of Canada, Vol. II, para. 382.
2054 Exhibit P-169, p. 67 of 202.
2055 Exhibit P-173, p. 10.
�Chapter III: Civil Aviation Security in the Present Day
with ill intentions. For some, this weakness called the effectiveness of the overall
NPS program into question.
In its 2007 report on airport security in Canada, the Senate Committee concluded
that random screening of non-passengers effectively translated into “seldom”
screening.2056 Transport Canada reported in 2006 that about 2,300 airport workers
were screened each day at 89 airports across Canada. However, the Senate
Committee heard evidence suggesting that only about half that number, or
about 1,200 workers a day, were being screened out of a total of about 100,000.2057
The Committee observed that this amounted to “little more than 1 percent of
non-passengers entering restricted areas.”2058 The Commission notes that even
Transport Canada’s higher estimate that 2,300 workers were screened daily covers
a surprisingly low percentage of those who have access to restricted areas of
airports.
The Senate Committee also heard disturbing evidence about how employees
avoided the screening process altogether, such as by using cellphones to warn
others of an NPS check.2059 As well, the NPS program did not operate around
the clock. In 2006, Transport Canada informed the Committee that the hours
of operation for CATSA’s NPS program were to be increased “…[i]n order to
increase the level of service.”2060 Even so, NPS services were not available 24
hours a day. The Committee suggested that non-passengers could circumvent
the screening process by waiting to access a restricted area during times when
NPS was not operating.2061 In Final Submissions to the Commission in 2008,
the Attorney General of Canada reported that NPS coverage at the eight Class
1 airports was generally 16 to 20 hours per day.2062 Choosing to enter during
hours when there was no coverage would avoid even the remote possibility
of being caught by random screening. The Senate Committee concluded that
there was no assurance that random checks were anything but infrequent, and
no assurance that canny employees could not avoid checks altogether.2063 Of
all problems with airport security identified by the Senate Committee, NPS was
its primary concern: “…If there was one thing that…the Committee could fix
tomorrow, it would be non-passenger screening.”2064
In its 2006 Special Examination Report of CATSA, the Auditor General of Canada
similarly singled out NPS as requiring improvement:
Non-passenger screening is another area of concern. Security
measures require CATSA to screen non-passengers randomly
2056 Exhibit P-172, p. 28 of 155.
2057 Exhibit P-172, p. 39 of 155.
2058 Exhibit P-172, p. 33 of 155.
2059 Exhibit P-172, p. 33 of 155.
2060 Exhibit P-172, p. 31 of 155.
2061 Exhibit P-172, p. 33 of 155.
2062 Final Submissions of the Attorney General of Canada, Vol. II, para. 376.
2063 Exhibit P-172, p. 33 of 155.
2064 Testimony of Colin Kenny, vol. 38, June 1, 2007, p. 4687.
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at any restricted area access point. CATSA has not conducted
screening at restricted area access points outside the air
terminal building. The limited number of fixed non-passenger
screening check points where random screening occurs and
the random nature of the “mobile” non-passenger check points
enable the non-passengers to avoid screening.2065
To address the concerns raised, the Senate Committee recommended that all
individuals and vehicles be screened each time they attempt to enter restricted
areas.2066 In addition, the Committee recommended random screening of
non-passengers when they leave restricted areas (primarily to detect criminal
activity, rather than terrorist acts). Each day, at least 10 per cent of those leaving
would be screened.2067 Currently, no screening occurs when non-passengers
leave restricted areas.
Some experts and stakeholders disagreed with 100 per cent NPS. The CATSA
Advisory Panel noted that Canada has 89 airports designated for CATSA
screening services, which “…range from everything from Pearson in Toronto,
which is one of the world’s busiest and largest international airports, to…small
places like Iqaluit and Campbell River…which are very, very small operations.”2068
Because of this diversity, the Panel objected to a “one-size-fits-all approach to
Canadian airports.”2069 Instead, it recommended a differentiated approach based
on risk. For the largest airports, the Panel recommended “random continuous”
NPS, described as follows:
[Random continuous NPS] means that…all points of entry
will have controlled access…but that it will be applied on a
random basis. So it’s not predictable from the point of view [of ]
the employees as to whether they’re going to get screened or
not and we think that would serve the purpose.2070
The Panel recommended that the focus remain on the largest airports – all
Class 1 airports, as well as some Class 2 airports as determined on the basis of
risk – where the risk is perceived to be greatest.2071 The Panel explained that,
because the busier airports may employ tens of thousands of workers, not all
employees know each other. The Panel recommended that random NPS be in
place at all times and at all entry points.2072 As Chern Heed, one of the Panel
2065 Exhibit P-173, p. 10.
2066 Exhibit P-172, p. 30 of 155.
2067 Exhibit P-172, p. 34 of 155.
2068 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4627,
2069 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4627,
2070 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4627.
2071 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4627.
2072 In other words, CATSA would be “continuously present” at all entry points to restricted areas of the
airport to perform NPS on a random basis. See Exhibit P-169, p. 69 of 202.
�Chapter III: Civil Aviation Security in the Present Day
members, testified, this would sufficiently address the risk and reduce NPS
staffing requirements:
…[W]hen an airline worker has gone through ten times in that
particular day, they [the screeners] sort of know that person by
that time and we say that the risk is considerably less in that
situation if on seven of those times he goes through without
being screened….2073
At smaller airports where there were fewer workers and “everybody knows
everybody,” the Panel felt that, once implemented, the RAIC, with its biometric
identifiers, would suffice. The Panel concluded that at some smaller airports,
adding NPS to the responsibilities of CATSA screeners would be prohibitively
expensive.2074 The Panel stated that reliance on active security awareness
at smaller airports, rather than on NPS, would provide the equivalent level
of security.2075 The Panel recommended that, once the RAIC with biometric
identifiers was in place, NPS be discontinued at Class 2 airports, and implemented
only on an as-needed basis in Class 2 and Class Other airports when indicated
by a threat analysis.2076
Yves Duguay, Director of Security at Air Canada, did not support 100 per cent
NPS. He testified that maintaining security at such a high level at all times would
encourage complacency, not vigilance, among screeners. Duguay also raised a
potential logistical concern – that if, for example, 1,500 employees appeared
at the same time for the beginning of a shift at some large airports, this would
present challenges for the screening process. Like the CATSA Advisory Panel,
Duguay saw continuous random NPS as an additional layer of airport security
that would provide sufficient deterrence. He further recommended random
screening for non-passengers when they leave restricted areas.2077
Wallis described access control as “absolutely vital”2078 and insisted that
all individuals getting access to restricted areas be security screened and
supervised.2079 The security of the ramp area, and ultimately the aircraft,
demanded this:
The operational area of the airport, the ramp let’s say, has
always been the soft underbelly of an airport. You’ve got to
protect it. And I don’t believe random screening is acceptable.
I think everybody who passes from land side to airside at an
airport should be screened. Everybody.2080
2073 Testimony of Chern Heed, vol. 38, June 1, 2007, p. 4628.
2074 Testimony of Chern Heed, vol. 38, June 1, 2007, p. 4628.
2075 Exhibit P-169, p. 68 of 202.
2076 Exhibit P-169, p. 69 of 202.
2077 Testimony of Yves Duguay, vol. 43, June 14, 2007, pp. 5263-5264.
2078 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5000.
2079 Wallis, How Safe Are Our Skies?, p. 77.
2080 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5036.
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Wallis testified that it would be unwise to exempt employees from screening
simply because they are “known.” Such a flawed assumption had devastating
results for civil aviation. The customs officer who placed a bomb on an Air Lanka
aircraft at Colombo Airport in 1986 is one example. The officer was a person in
authority, known to everyone, who had access to the ramp, but who was not
screened and who subsequently destroyed an aircraft.2081 Wallis stated that, had
the aircraft been airborne, “…the result would have been as catastrophic as the
Air India disaster.”2082 In December 1987, as noted, a former US Air employee,
known to others at Los Angeles International Airport, was able to bypass
security using airline identification that he had not surrendered, and board
an aircraft with a loaded gun. While the aircraft was in flight, he shot another
passenger, his former supervisor, and then the pilots, sending the aircraft into
a fatal dive and leaving 43 people dead.2083 The bombing of Pan Am Flight 103
also involved a former aviation employee – an airline security executive – whose
actions resulted in the mid-air destruction of an aircraft that killed 270 people.
Some stakeholders have stated that the security background checks conducted
before employees are granted access to restricted areas add a protective layer,
and that employees who have been vetted through this process should not
face screening as extensive as others,2084 such as passengers who walk in “off the
street” with a ticket and are not known to the system.2085
All personnel who require access to restricted areas, whether they are based at
a specific airport or travel between airports, such as air crew and maintenance
workers, are required to hold a Restricted Area Pass (RAP), as provided by the
Aeronautics Act and related regulations, measures and orders. Airport authorities
issue RAPs, but only to those with a valid security clearance from Transport
Canada.2086
In its 2003 report on airport security, the Senate Committee found that, too
often, passes were not checked, that forgery was a potential problem and
that there appeared to be insufficient monitoring to ensure that passes were
returned when workers terminated airport employment.2087 These were some
of the same problems that were identified in the 1985 audit of airport security
performed after the bombing of Air India Flight 182.
Although security background checks may bolster confidence in the
trustworthiness of airport workers, concerns have remained about the adequacy
of the background check process. The Commission learned, for example, that
the credit check component of Transport Canada’s security clearance was
discontinued in 2006. Yet, as Heed testified, credit checks can identify individuals
who might be vulnerable to influence:
2081 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5041.
2082 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5041.
2083 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5041; see also Wallis, Combating Air Terrorism,
pp. 2-3.
2084 Exhibit P-252, Tab 1, p. 4.
2085 Testimony of Jim Bertram, vol. 65, October 24, 2007, p. 8150.
2086 Exhibit P-169, p. 67 of 202.
2087 Exhibit P-171, p. 69 of 256.
�Chapter III: Civil Aviation Security in the Present Day
…[I]n particular, there is a fair amount of theft that occurs at
an airport, and a person’s credit history has a lot to do with
the chances they’ll take if they need the money and [they]
could be easily compromised. On that basis, we feel that it’s an
important indicator of a security risk that person represents.2088
This is all the more concerning in light of reports of extensive and increasing
organized crime at Canada’s airports.2089 Organized crime depends on lapses in
airport security, preys upon the same human weaknesses that assist terrorist
activities and can even have direct ties to terrorism, since some organized crime
groups may fund terrorism.2090 If thieves and smugglers can exploit security
deficiencies, so can terrorists.2091 A 2008 RCMP report, Project Spawn, concluded
that 58 organized crime groups were working in or using the eight Class 1
airports for their criminal activities.2092 Many in the civil aviation community
tend to separate criminal and terrorist activity,2093 but a 2005 independent
review of airport security in Australia, known as the Wheeler Report, recognized
the possibility of a symbiotic relationship between the two:
Terrorism and crime are distinct, but potentially overlap. At
its most basic, a culture of lax security or petty criminality can
provide opportunities for terrorists to exploit weaknesses in
airport security.2094
The RCMP report stated that the main modus operandi of organized crime
groups at airports is to target airport employees and enlist their aid:
Organized crime groups will attempt to exploit airports
by corrupting existing employees or by placing criminal
associates into the airport workforce. Criminal networks are
known to bribe employees to ignore criminality or to assist
in criminal activities, including drug trafficking or theft. The
success of organized crime groups at airports depends on their
ability to take advantage of security gaps to move contraband
without being subject to scrutiny.2095
The RCMP report found that some airport employees with RAICs, and who
therefore had access to restricted areas, were directly involved in organized
2088 Testimony of Chern Heed, vol. 38, June 1, 2007, p. 4641.
2089 Exhibit P-172, p. 17 of 155; see also Exhibit P-434, p. 12; see also March 2009 Status Report of the
Auditor General of Canada, Chapter 1.
2090 Exhibit P-172, p. 17 of 155.
2091 Exhibit P-172, p. 17 of 155.
2092 Exhibit P-434, p. 9.
2093 See, for example, Testimony of Jim Bertram, vol. 65, October 24, 2007, pp. 8140-8141.
2094 As quoted from The Independent Review of Airport Security and Policing for the Government of
Australia (The Wheeler Report), September 2005. See Exhibit P-169, p. 51 of 202.
2095 Exhibit P-434, p. 2.
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crime. Almost half of the 298 employees alluded to in its report were implicated
in criminal activity at Canadian airports, the majority at the three largest airports.
Many had access to some of the most vulnerable areas of the airport:
More than half of the employees in the report worked for
ground services companies that work either around airplanes
or airport terminals or held positions such as baggage
handlers, ramp attendants, cargo handlers, food caterers
and aircraft refuellers. These types of jobs give employees
extensive access to aircraft and/or luggage, which can be used
to smuggle illicit commodities. Other employment sectors
include security companies and passenger services companies
around the terminal.2096
Such individuals can be exploited for terrorist aims as well. As the Wheeler
Report stated:
Staff can be bribed to ignore criminality or paid large sums
to assist in drug trafficking or theft. Once compromised,
such employees may be unable to stand up to terrorists. Any
airport staff who are not thoroughly background checked and
routinely searched are potential weak links.2097
The RCMP report also identified an obvious need for “…vigilance in monitoring
employee access to restricted areas and for determining any unusual patterns
to that access.”2098
Despite the illegal activity in the ramp area of airports, a conviction for a criminal
offence is not in itself a barrier to a transportation security clearance.2099 A 2004
audit by the Auditor General of Canada found that some individuals allowed by
Transport Canada to work in restricted areas of airports had criminal records,
had been involved in criminal conspiracies or had some association with known
criminals.2100 Transport Canada began to require additional information for
reviews of applications for security passes.2101 Even so, a 2009 status report of the
Auditor General of Canada referred to the findings of the 2008 RCMP report –
2096 Exhibit P-434, p. 15.
2097 Exhibit P-434, p. 14.
2098 Exhibit P-434, p. 15.
2099 Exhibit P-434, p. 16.
2100 Transport Canada cited the Aeronautics Act as limiting its ability to withhold a security pass to
situations that relate to “preventing unlawful interference with civil aviation” and that this interference
is confined by international convention to activities such as hijacking and sabotage. Although
Transport Canada officials agreed that transporting drugs by concealing them in aircraft could
be considered unlawful interference, it did not agree that it has a role to play in preventing criminal
organizations from infiltrating airports. See March 2009 Status Report of the Auditor General of
Canada, Chapter 1.
2101 March 2009 Status Report of the Auditor General of Canada, Chapter 1.
�Chapter III: Civil Aviation Security in the Present Day
that criminal activity continued to be a significant problem at Canadian airports
– and concluded that Transport Canada’s progress was unsatisfactory.2102
The Auditor General’s 2009 report noted that the security clearance assessment
process was hampered by incomplete information-sharing between the RCMP
and Transport Canada. Both unnecessarily withheld important information. The
report also criticized Transport Canada for not developing criteria for granting
security clearances to individuals with previous criminal links, and for deciding
about problematic applications case by case. No criteria differentiated those
whose previous offences might indicate a security risk from those whose offences
were less serious. One individual granted a pass, for example, had assault and
weapons convictions and was under investigation for a murder relating to drug
smuggling at a large airport.2103
The 2008 RCMP report stated that its ability to determine the extent of criminal
infiltration at Canada’s airports was reduced because Transport Canada did not
provide information about the percentage of employees with criminal records
and the nature of their offences. In particular, information about employees
with both RAIC access and criminal records would have assisted the RCMP in
its assessment.2104 The RCMP’s inability to acquire this information, and other
concerns about information sharing, are troubling.
Besides criticism about the quality of the security clearance process, the
Senate Committee raised concerns about the infrequency of the background
checks conducted by Transport Canada once a pass was granted. Checks
were conducted every five years. However, concerns about criminality and
the possibility of people’s circumstances changing quickly led the Committee
to recommended background checks every three years.2105 The Air Line Pilots
Association, International (ALPA) noted, however, that the practice of five-year
intervals for background checks was in line with checks of others in sensitive lines
of work, such as the RCMP, and that more frequent background checks could
place undue strain on a security system that already experienced delays.2106
The securing of airport perimeters is an essential aspect of aviation security to
which Canadian authorities have not paid due attention.2107 Wallis remarked
that:
…[L]ooking at the situation in Canada…[i]f I was to prepare a
list of priorities of things to be done, perimeter security with
access control would be right at the top of the list….2108
2102 March 2009 Status Report of the Auditor General of Canada, Chapter 1.
2103 March 2009 Status Report of the Auditor General of Canada, Chapter 1.
2104 Exhibit P-434, p. 5.
2105 Exhibit P-172, p. 28 of 155.
2106 Testimony of Craig Hall, vol. 64, October 23, 2007, pp. 7956-7957; Jim Bertram, Director of Public Safety
at the GTAA, also noted that the length of time to receive a security clearance is concerning because
it can impact security when employees need to work in restricted areas, but have not yet received the
appropriate clearance. See Testimony of Jim Bertram, vol. 65, October 24, 2007, p. 8141.
2107 Exhibit P-169, p. 58 of 202.
2108 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5001.
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The searching of vehicles as part of perimeter security is not a CATSA
responsibility. Perimeter security as a whole is the responsibility of airport
authorities. Fred Jones, Vice President of Operations and Legal Affairs at the
CAC, testified that regulations for perimeter security vary from airport to
airport according to factors such as their size. Fencing requirements differ, and
some smaller airports may not even have fencing. Jones testified that other
measures can secure the perimeter, including foot and vehicle patrols and video
surveillance. He stated that monitoring perimeter fencing at large airports could
present a challenge.2109
Jim Bertram, Director of Public Safety at the GTAA, cautioned that a full vehicle
search could take 10 to 15 minutes. An airport as large as Pearson International
Airport may have 5,000 vehicles crossing the perimeter each day. Full searches
would lead to significant delays. For this reason, the GTAA supported a risk
management-based approach2110 to searching vehicles. Those that were
“unknown” were searched, while no search was done of “known” vehicles.2111
Wallis acknowledged the challenges faced by larger airports in searching
vehicles, but emphasized the importance of having acceptable screening of all
vehicles before they are allowed to enter airport premises. It was not sufficient
to permit entry simply because an occupant held an RAP:
There is little point in screening workers going onto the airside
if you allow them to drive in a vehicle which hasn’t been
screened or hasn’t been subjected to security control.
So you have to check the vehicle. And you’ve got to look at
the operational problems that are going to be associated with
this. Having a string of vehicles lined up while somebody is
searching them all, you don’t want that.2112
Some vehicles, such as those carrying catering supplies for aircraft, should be
security cleared off-airport and appropriately sealed. Any search at the airport
perimeter would be limited to the cab of the vehicle.2113
The objective is always to ensure that dangerous individuals and weapons are
prevented from entering airside portions of the airport.
The CATSA Advisory Panel noted that perimeter security, like access control,
was recognized as a concern in the 1985 Seaborn Report.2114 This is a continuing
weakness that needs to be addressed. The Panel recommended that all vehicles
2109 Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8129.
2110 See Section 3.3, which provides a detailed analysis of risk management in civil aviation security.
2111 Testimony of Jim Bertram, vol. 65, October 24, 2007, p. 8135.
2112 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p 5037.
2113 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p 5037.
2114 Testimony of Jacques Bourgault, vol. 38, June 1, 2007, p. 4640.
�Chapter III: Civil Aviation Security in the Present Day
entering restricted areas at Class 1 airports be searched by CATSA or under
CATSA’s oversight, using CATSA standards and procedures.2115 The Panel called
for non-passenger and vehicle screening in addition to much more rigorous
access control at major airports. In particular, it said that NPS and vehicle
screening should be extended to the outer boundaries of Class 1 airports.2116
Wallis strongly advocated for 100 per cent NPS at points of entry to restricted
areas. He stated that NPS must remain in place at Class 2 airports where the
RAIC system is fully operational because of the need to screen for items brought
into restricted areas:
The RAIC will tell you who is where, but it won’t tell you who is
where with what. In other words, if you have people going into
a vulnerable part of the airport, regardless of what ID that they
are carrying, they should be screened.2117
Wallis stated that screening non-passengers when they left restricted areas
addressed criminal activity such as theft and smuggling. He stated that such
screening may well deter such activity where it is a concern, as at many Canadian
airports.
Wallis wrote that “…throughout much of the developed world, it had been
mandatory for many years for staff, including air crew, to be screened
whenever they were airside.” As early as 1985, IATA and other international
industry associations urged ICAO to make it a firm requirement that all staff be
screened in such cases.2118 Annex 17, the security annex to the Convention on
International Civil Aviation (“Chicago Convention”), currently requires screening
“a proportion”2119 of non-passengers accessing restricted areas, along with the
items they carry. Although the precise proportion is not specified, the security
standard provides that this should be determined “in accordance with” a risk
assessment.2120
According to IATA, no employee group should be granted a blanket waiver from
screening. However, rather than calling for a “one-size-fits-all” approach, IATA
recommended screening employees by a multi-layered system that reflected
their job functions and work sites. The system would rely on thorough employee
vetting, deterrence and detection measures designed to minimize opportunities
for rogue airport or airline employees to place bombs or other weapons on
aircraft or in passenger baggage. IATA emphasized that no stand-alone security
process could effectively and reliably screen airline and airport staff. Security
2115 Exhibit P-169, pp. 58 and 69 of 202.
2116 Exhibit P-169, p. 68 of 202.
2117 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5039.
2118 Wallis, Combating Air Terrorism, p. 51.
2119 Exhibit P-181, p. 4-1, s. 4.2.6.
2120 Exhibit P-181, p. 4-1, s. 4.2.6.
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must be multi-layered. IATA also called for non-passenger screening to be based
on an appropriate risk assessment.2121
Some airports abroad have successfully instituted 100 per cent NPS. Major
UK airports conduct full NPS, and vehicles entering restricted areas are also
screened. The US is also considering extending the partial NPS carried out at
large airports to full NPS. Transport Canada must work closely with airports
and with CATSA to improve access control through NPS. Full implementation
of the RAIC and an enhanced level of security awareness, part of a multi-layered
approach to security, will also help.
3.8.2.5.1 Supervision of Non-Security Cleared Individuals
New or short-term employees sometimes work inside restricted areas before
their security clearances are processed and a RAP issued. They receive a
temporary pass and must be escorted at all times by a RAP holder.2122 The
Senate Committee saw this as problematic since one “cleared” employee might
be responsible for several “non-cleared” workers.2123 The Senate Committee
reported that the ratio of “cleared” airport employees escorting or supervising
those who are not cleared was as high as one cleared employee for every 10
to 15 non-cleared employees. The Senate Committee called for the ratio to be
reduced to one for every five.2124 However, Captain Craig Hall, Director of the
National Security Committee of ALPA, opposed establishing a firm ratio. For
example, if construction workers were working in a confined or fenced-off area,
a 1 to 20 ratio might offer sufficient security. However, if a small group was being
given a guided tour, a ratio of 1 to 2, or 1 to 1, might be appropriate.2125 In every
case, appropriate and vigilant supervision of non-security cleared individuals
who obtain access to restricted areas must be ensured.
3.8.2.5.2 Restricted Area Identification Card
In November 2002, the Minister of Transport made CATSA responsible for
developing and implementing an enhanced pass for restricted areas, the
RAIC. The CATSA Advisory Panel concluded that the RAIC would provide
effective access control. The RAIC uses biometric identifiers. If a security
awareness culture were promoted at the same time, it would complement the
implementation of the RAIC.2126 Biometrics “authenticate” (provide evidence to
prove) a person’s identity by measuring a physical characteristic and comparing
that measurement against a template created from the same characteristic.2127
The RAIC uses smart card technology, which integrates a small computer chip,
including a microprocessor and memory, to store two types of biometric data:
2121 Exhibit P-258, Tab 1, p. 13.
2122 Exhibit P-169, p. 67 of 202.
2123 Exhibit P-171, pp. 67-68 of 256.
2124 Exhibit P-172, p. 17 of 155.
2125 Testimony of Craig Hall, vol. 64, October 23, 2007, p. 7961.
2126 Exhibit P-169, p. 58 of 202.
2127 Exhibit P-101 CAF0858, p. 1 of 10.
�Chapter III: Civil Aviation Security in the Present Day
fingerprint and iris templates. The templates are generated by algorithms that
encode distinctive features from images of an individual’s iris and fingerprint.
Significantly, the templates cannot be used to recreate the iris or fingerprint
images.2128 Transport Canada describes the RAIC as a secure identity card for
aviation personnel, including flight crews, those refuelling aircraft, caterers and
others needing access to restricted areas at major airports.2129 When the program
is fully implemented, about 120,000 aviation workers will hold a RAIC.2130
The RAIC provides three assurances. It establishes the identity of the RAICholder, verifies the cardholder’s security clearance and establishes the need and
right to be in a particular restricted area. Hall described the RAIC program as
one of the foremost in the world.2131
In its 2006 report, the CATSA Advisory Panel stated that full implementation
of the RAIC program had been delayed because resources and a regulatory
framework were lacking.2132 The Auditor General of Canada concluded that
delays in implementing the RAIC system increased risk.2133 The Commission
notes that amendments to the Canadian Aviation Security Regulations have
since introduced provisions about the RAIC program. 2134
According to the Auditor General’s 2006 report on CATSA, the RAIC was deployed
and operational in seven Class 2 airports and one Class 1 airport, although not
all non-passengers were enrolled. Deployment at the remaining 21 Class 1 and
Class 2 airports was ongoing.2135 When fully implemented at all 29 Class 1 and
Class 2 airports, the RAIC system will have multi-airport capabilities, enabling
confirmation of the identity of the holder of an RAIC at any participating
airport.2136
RAICs are issued by individual airport operators, but are activated by CATSA,
which will manage a nationwide identity verification system that can be updated
nearly instantaneously and that includes confirmation of an individual’s security
clearance from Transport Canada. Once notified about a restricted area violation
or security clearance infraction, CATSA would deactivate the card, again nearly
instantaneously, and the card would no longer be functional.2137 Once CATSA
completes implementation of the RAIC system, responsibility for operating and
maintaining the RAIC system will be transferred to Transport Canada.2138
2128 Exhibit P-101 CAF0858, p. 2 of 10.
2129 Exhibit P-101 CAF0858, p. 1 of 10.
2130 Exhibit P-101 CAF0858, p. 2 of 10.
2131 Testimony of Craig Hall, vol. 64, October 23, 2007, p. 7952.
2132 Exhibit P-169, p. 58 of 202.
2133 Exhibit P-173, p. 4.
2134 Canadian Aviation Security Regulations, SOR/2000-111, ss. 37-53.
2135 Exhibit P-173, p. 10.
2136 Exhibit P-169, p. 74 of 202.
2137 Exhibit P-169, p. 74 of 202.
2138 Exhibit P-101 CAF0871, p. 1 of 4.
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Individuals receive approval to enter a restricted area by inserting the RAIC into
a reader and by providing the biometric required – an iris or fingerprint scan.
Individual airport operators may include an access key on the RAIC. If so, the
RAIC reader is linked to a point of access to a restricted area. The access point
will open once the holder’s identity and permission to enter are confirmed. Entry
points can be monitored by airport personnel or by automatic double barriers
that isolate the individual holding the RAIC while confirmation is in progress.
Whether entry points are supervised by airport staff or by mechanical controls,
those holding an RAIC will still undergo NPS by CATSA screening officers where
they are present at entry points to restricted areas.2139
It is also possible to incorporate access keys to multiple airports on a single RAIC.
This facilitates movement by aviation personnel, such as flight crews, who require
access to restricted areas in many airports for their work. Airport operators have
spoken of the need to maintain rigorous access control for restricted areas,
but representatives of flight crews stressed the importance of easy, fast and
reliable access. The CATSA Advisory Panel was persuaded that the RAIC system
would provide the necessary confidence and speed to confirm identities across
Canada and that, as a result, it would form the basis for an effective pass for
access to several, or all, airports in Canada.2140 The Panel recommended that the
RAIC system be implemented at all designated airports across Canada, not just
at the 29 major airports.2141
The Panel recommended further that, once the RAIC system is fully operational,
NPS be discontinued at Class 2 airports, and that it be implemented only as
needed, based on a threat analysis.2142 The Panel concluded that in Class Other
airports, where employees generally know one another, using the RAIC for
electronic entry to secure areas, together with enhanced security awareness,
would provide appropriate security. Even so, the Panel recommended that
CATSA be prepared to implement NPS in Class 2 and Class Other airports if
threat analysis indicates a need.2143
The CATSA Advisory Panel noted that the 2006 federal Budget included new
funding to extend the RAIC system to Fixed Base Operations (FBOs) in 20062007 and to airport perimeters in 2007-2008, once regulatory requirements
were in place.2144
The Senate Committee considered the RAIC alone to be inadequate. It
recommended “geo-fencing” in addition.2145 This would involve passes capable,
not only of confirming identity, but also of maintaining a record of the time of
each attempt to enter or leave a restricted area. This would enable both tracking
of unusual patterns and monitoring of attempts to enter unauthorized areas.
2139 Exhibit P-169, p. 74 of 202.
2140 Exhibit P-169, p. 74 of 202.
2141 Exhibit P-169, p. 75 of 202.
2142 Exhibit P-169, p. 58 of 202.
2143 Exhibit P-169, p. 58 of 202.
2144 Note: The Commission does not have confirmation that the RAIC has been extended to FBOs or to
airport perimeters. Exhibit P-169, p. 58 of 202.
2145 Exhibit P-172, p. 29 of 155.
�Chapter III: Civil Aviation Security in the Present Day
Transport Canada reviewed the possibility of a geo-fencing system, but decided
that it would produce only limited security gains and therefore decided against
it. Barrette testified that geo-fencing could track employees who wear their
passes, but not those who removed them.2146 In 2007, with the RAIC program
under way, the Senate Committee called for a planned expansion of the RAIC
program to include perimeter security – including vehicle gates, FBOs and
tenant facilities – to be implemented more quickly.2147 The Commission endorses
giving priority to expansion of the RAIC program.
3.8.2.5.3 Instilling a Culture of Security Awareness
Much airport security is hidden from public view. Access control, including
perimeter security, profoundly affects security but largely takes place away
from public scrutiny.2148 Responsibilities in airport security are divided among
a number of stakeholders – primarily the airport authority, Transport Canada,
CATSA, air carriers and the local police.2149 For example, CATSA is responsible for
screening non-passengers, and the airport operator is responsible for controlling
access to restricted areas, including perimeter security, and for issuing RAPs to
airport workers.2150 Because many players are involved in airport security, an
effective process to integrate security efforts is needed.2151
In its 2006 report, the CATSA Advisory Panel noted problems in coordinating
security activities:
In discussions with the airport authorities and the various
police forces, it became evident that there is a lack of clarity,
consistency and coordination of aviation security activities. The
2005 Lessons to be Learned report, by the Honourable Bob Rae,
identifies similar issues from 1985 with respect to the bombing
of Air India Flight 182. It is in the interests of all players that
airports be secure.2152
Several measures can help bring greater consistency and coordination in
aviation security, among them a written airport security program and the
establishment of an airport security committee, as stipulated by Annex 17 to
the Chicago Convention.2153 A third is security awareness programs.
2146 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4815.
2147 Exhibit P-172, p. 39 of 155.
2148 Wallis, How Safe Are Our Skies?, p. 87.
2149 Exhibit P-169, p. 49 of 202.
2150 Exhibit P-169, p. 67 of 202.
2151 Exhibit P-169, p. 47 of 202.
2152 Exhibit P-169, p. 48 of 202.
2153 See Section 3.2.2.2.1, which discusses airport security programs and airport security committees in the
context of oversight issues in civil aviation security.
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Airport Security Watch Program
In the context of aviation security, some describe “culture” as a nebulous term
encompassing several initiatives relating to education and awareness and
sharing of intelligence.2154
Transport Canada is moving towards adopting a model called Security
Management Systems (SeMS), which aims to create a more pervasive security
culture in air transportation.2155 All participants, no matter what their specific
role, would be responsible for maintaining security. Responsibility for security
would not be limited to a particular department at the airport. Everyone would
play a role in the security system, providing protection within their own area
of responsibility, but also remaining vigilant about security breaches in other
areas.2156 The CATSA Advisory Panel stressed the importance of a security culture
that engaged the entire airport community, one where all employees together
worked as the “eyes and ears of aviation security.”2157 The Panel suggested that
members of the local community outside the airport should also be encouraged
to participate.
The Panel stated that an effective airport security watch program would have
several features:
•
•
•
•
•
an integrated operational plan;
proactive and methodical threat assessments;
timely and appropriate communications;
operational cooperation; and
accountability that would extend to all layers.2158
The Panel recommended rigorous security awareness programs for all
airports.2159 Such programs function much like “neighbourhood watch”
programs. They would be guided by airport security committees, which would
share relevant intelligence information with all front line staff. The Panel noted
that some airports have already established security awareness programs. It
praised the iWatch Airport Security Action Program at Halifax International
Airport.2160 The program encourages all individuals at the airport to be vigilant
and to report potential security risks. The Halifax program has been adopted
in other places, including Calgary and Vancouver.2161
2154 Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8112.
2155 Testimony of Jim Marriott, vol. 37, May 31, 2007, pp. 4544-4545.
2156 Testimony of Fred Jones, vol. 65, October 24, 2007, pp. 8111-8112.
2157 Exhibit P-169, p.48 of 202.
2158 Exhibit P-169, p. 48 of 202.
2159 Exhibit P-169, p. 48 of 202.
2160 Testimony of Fred Jones, vol. 65, October 24, 2007, pp. 8111-8112.
2161 Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8112.
�Chapter III: Civil Aviation Security in the Present Day
Bertram testified that the security management program at Pearson
International Airport was not limited to security awareness. He described
a three-pronged approach which included engineering, enforcement and
education (including security awareness). All employees who receive an RAIC
must undergo a two-hour security awareness training program. This involves
classroom instruction and testing, as well as specific training for those working
in specialized areas, such as air traffic control and terminal operations. The
goal is to develop a climate where security is not a department, but a way of
thinking.2162
Security awareness programs should continue to be encouraged. Such programs
can help overcome complacency. The Commission notes, however, that the
need for a robust security awareness program was identified by the 1985 airport
security audit following the bombing of Air India Flight 182. A concept paper
was developed then to enhance security awareness among airport workers
and airport users.2163 Also in 1985, the Seaborn Report identified a role for
the travelling public in maintaining aviation security. Seaborn recommended
that the public should be made aware of the security measures in place for its
protection at airports and on board aircraft, and of the contribution the public
can make to enhancing security.2164
3.8.2.6 Conclusion
Airport security is a vital component of an effective civil aviation security
regime. In 1985, shortly after the loss of Air India Flight 182, a review of security
at Canada’s airports revealed major deficiencies. These included inadequate
control of access to restricted areas of airports and deficient perimeter security.
In 2009, access control and perimeter security remain major vulnerabilities that
require urgent attention. Poor control of airside portions of the airport leaves
aircraft vulnerable to sabotage, a lesson that the history of air terrorism has
taught many times.
Security threats can arise both outside the airport community and within it.
Widespread organized crime involvement at Canada’s airports, particularly
those serving the largest cities, confirms that major lapses exist in airport
security. Many failures of security that facilitate the presence of organized crime
at airports can be exploited by terrorists.
Following the events of September 11, 2001, new security measures – NPS and
the RAIC – were introduced to correct some shortcomings in access control.
The RAIC provides a necessary additional layer to the aviation security matrix.
However, the RAIC has yet to be fully implemented across Canada. NPS is also a
key security measure, but the manner in which it has been implemented allows
individuals to circumvent the screening process completely.
2162 Testimony of Jim Bertram, vol. 65, October 24, 2007, pp. 8112-8113.
2163 Exhibit P-101 CAF0695.
2164 Exhibit P-101 CAF0039, p. 8 of 10.
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The Commission urges full NPS at all Class 1 and Class 2 airports when individuals
enter restricted areas, and random NPS at Class 1 airports when they leave. NPS
should be extended to include searches of vehicles entering restricted areas at
all Class 1 airports. Vehicle searches should occur at Class 2 airports when a risk
assessment makes them advisable. CATSA is the appropriate screening authority
to conduct all NPS operations and vehicle searches. CATSA should make it a
priority to implement the RAIC at all 89 designated airports in Canada. It should
also make it a priority to extend the RAIC system outside air terminal buildings
to the airport perimeter, including vehicle gates, FBOs and tenant facilities.
As security measures to protect aircraft are strengthened, terrorists may well try
to exploit remaining weaknesses in airport security. Public areas of air terminal
buildings are susceptible to attack since they present targets of opportunity
whenever large crowds gather there. Little protection currently exists for
terminal buildings.
3.8.3 Fixed Base Operations and General Aviation
Fixed Base Operations (FBOs) and the General Aviation (GA) sector are largely
unregulated. They represent a serious security vulnerability.2165 FBOs operate
charter and corporate flights,2166 while the GA sector provides private aircraft
for recreational flying, business aviation,2167 charter services2168 and specialty
services, such as flight instruction and aerial work.2169 Their facilities are often
located at the periphery of designated airports2170 and usually operate from
separate terminals.2171
With scheduled commercial flights,2172 passengers and baggage must undergo
multiple layers of screening.2173 There is no such requirement for flights that
depart the GA sector or FBOs. Passengers and baggage are allowed onto
flights without any form of screening.2174 Not surprisingly, most FBOs and GA
establishments lack the capacity to screen2175 and their premises are often
poorly secured.2176
2165 Exhibit P-169, p. 55 of 202.
2166 Exhibit P-169, p. 55 of 202.
2167 Exhibit P-101 CAF0828, p. 7.
2168 Final Submissions of the Attorney General of Canada, Vol. II, para. 416.
2169 Exhibit P-101 CAF0828, p. 7.
2170 In Canada, 89 airports have been designated to receive CATSA’s screening services, and this represents
approximately 99 per cent of all passenger traffic. Of the 89 designated airports, nine are considered
Class 1, or major, airports, 20 are considered Class 2, or intermediate, airports, and 60 are considered
Class Other, or smaller, airports. A non-designated airport does not have CATSA presence. See Exhibit
P-169, pp. 103, 199 of 202; see also Exhibit P-172, p. 70 of 155.
2171 Exhibit 157, p. 120 of 135.
2172 “Scheduled” flights involve passengers who purchase the seats they occupy on the plane. Passengers
on “non-scheduled” flights are non-paying passengers, such as are found on business and sports
charters. See Testimony of Jim Bertram, vol. 65, October 24, 2007, p. 8150.
2173 See Section 3.5.3, which describes the procedures and technology in place for screening passengers
and baggage.
2174 Final Submissions of the Attorney General of Canada, Vol. II, para. 402; see also Exhibit P-157, p. 120 of
135.
2175 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4632.
2176 Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8148.
�Chapter III: Civil Aviation Security in the Present Day
Dr. Reg Whitaker, Chair of the CATSA Act Review Advisory Panel (CATSA Advisory
Panel), testified that lack of screening at FBOs and GA establishments has often
been justified on the grounds that the crew and passengers are generally “known
entities.”2177 For example, many of these facilities operate non-scheduled sports
charters and business flights on which the crew members and passengers may
fly repeatedly. Passengers have typically been authorized by, and are known to,
their employers or team managers. They are believed to pose much less of a risk
than an unknown individual who walks in “off the street”2178 with a ticket for a
scheduled commercial flight.2179 Air Canada provides charter flights for national
sports teams that fly from one unscreened FBO to another within Canada, and
which do not normally connect to flights at other airports. Air Canada does not
consider these charter services a major risk and, accordingly, does not see the
need for many security measures.2180
Some experts questioned this trust because of the history of threats to civil
aviation.2181 Others agreed that many charter flights likely posed little risk, but
nonetheless called for security procedures, although less extensive measures
than “full-scale, multi-level screening.”2182 In no case did experts support the
complete absence of security screening for passengers and baggage.
Many FBOs and GA facilities in fact provide other civil aviation services that
present potentially high levels of recognized risk. Some facilities have begun
to offer scheduled commercial flights2183 that often rival the services provided
by larger airlines operating out of main terminals. The rising popularity of such
flights means that the number of passengers using FBOs and the GA sector is
increasing. More passengers mean increased risk.2184 Many large aircraft are
used by FBOs and in GA operations, including wide-bodied jets that can carry
large reserves of fuel,2185 hundreds of passengers2186 and significant volumes of
cargo.2187 There is a real concern that, in addition to targeting these facilities
and aircraft for sabotage, terrorists could commandeer aircraft for use as
suicide weapons or for dispersing chemical or biological weapons.2188 With
a comprehensive security regime lacking, FBOs and GA operations present
significant opportunities for terrorism.
Both experts and stakeholders have noted the contradiction between the
screening requirements at designated airports and those of FBOs and the
2177 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4632.
2178 Testimony of Jim Bertram, vol. 65, October 24, 2007, p. 8150.
2179 Testimony of Jim Bertram, vol. 65, October 24, 2007, pp. 8150, 8165; see also Testimony of Yves Duguay,
vol. 43, June 14, 2007, pp. 5265-5266.
2180 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5266.
2181 Testimony of Rodney Wallis, vol. 41, June 6, 2007, pp. 5039-5040.
2182 Exhibit P-169, p. 55 of 202.
2183 Final Submissions of the Attorney General of Canada, Vol. II, para. 402.
2184 Exhibit P-169, p. 55 of 202.
2185 Exhibit P-169, p. 55 of 202.
2186 Exhibit P-157, p. 120 of 135.
2187 Testimony Colin Kenny, vol. 38, June 1, 2007, p. 4695.
2188 Exhibit P-169, p. 55 of 202; see also Testimony of Jacques Bourgault, vol. 38, June 1, 2007, p. 4633.
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GA sector.2189 Fred Jones, Vice President, Operations and Legal Affairs, for the
Canadian Airports Council (CAC), stated that the CAC brought the issue to
Transport Canada’s attention, highlighting the inconsistent treatment of
basically the same category of flight:
Our members raised concerns…about scheduled operations
operating from the air terminal building that were subjected
to the full spectrum of aviation and airport security while other
scheduled operations of identical aircraft types were taking
place from fixed-base operations in the absence of many
elements of the existing security system which apply in and
around the air terminal building….2190
The security risks presented by FBOs and GA facilities, however, are not limited
to unscreened passengers and baggage. Unscreened passengers from nondesignated airports and FBOs may arrive at designated airports to proceed
to scheduled flights. This commonly occurs in northern Canada. This has the
potential to breach the security of “sterile” areas – areas of airports where the
passengers and baggage have already been screened. Transport Canada
explained that measures are in place to prevent screened and unscreened
passengers from mixing in such circumstances,2191 but these measures are not
always strictly followed, particularly at smaller airports. Unscreened FBO and GA
passengers have mingled with screened passengers in sterile areas, including
the airport tarmac, breaching the integrity of secure areas.2192 At one regional
airport, two streams of passengers were separated merely by the use of an
“invisible line.”2193 In its 2006 report, the CATSA Advisory Panel recommended
that passengers and baggage transiting to scheduled flights be subject to full
screening if not screened at their point of origin.2194 The Commission agrees that
this must become mandatory. It is a fundamental tenet of civil aviation security
that unscreened passengers should never be permitted to mix with screened
passengers.
Where FBOs and GA facilities are located on the grounds of designated airports,
access to unauthorized or restricted areas is also a problem:
Any time you have a runway that has commercial aviation
on one side and a fixed base operator or corporate aviation
on the other side…you’ve got a whole different scheme of
players now because they can all get across the flight line.
They can taxi there. They can use their vehicles…there’s a
2189 See, for example, Exhibit P-169, p. 55 of 202.
2190 Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8148.
2191 Exhibit P-172, p. 69 of 155.
2192 Exhibit P-169, pp. 55-56 of 202.
2193 Exhibit P-169, p. 56 of 202.
2194 Exhibit P-169, p. 55 of 202.
�Chapter III: Civil Aviation Security in the Present Day
manoeuvrability there that gives them access to areas on the
secure side that we don’t want them to have….2195
Toronto’s Pearson International Airport houses FBO and GA facilities within its
restricted areas.2196 The Greater Toronto Airports Authority (GTAA) considers
that, since security controls govern access to restricted areas at Pearson, it is
protected from threats that could originate from these poorly secured FBO and
GA facilities. Vehicles entering restricted areas at Pearson must be escorted and
only persons with the proper identification cards can be admitted.2197 However,
this confidence in these security controls may not be warranted. There are
significant concerns about how effectively they are being applied. Indeed, access
to restricted areas of airports is less than adequately controlled.2198 Poor access
control was highlighted recently at Pearson when the Minister of Transport and
the Chair of the Standing Senate Committee on National Security and Defence
(Senate Committee) themselves entered restricted areas improperly without
being challenged.2199
Recent reports by the RCMP,2200 Auditor General of Canada2201 and Senate
Committee2202 about criminal activity at Class 1 airports demonstrate the porous
nature of airside security at designated airports. Criminal organizations rely on
persistent lapses in airport security to operate.2203 The lax security and presence
of unscreened individuals at FBOs and GA establishments situated alongside
restricted areas of airports magnify the risks of unlawful interference with civil
aviation.
The security risks created by unauthorized access to restricted areas are
heightened because, while FBO and GA establishments monitor their own access
points to restricted areas, the regulatory tools for enforcing this monitoring
are limited. The GTAA, which manages Toronto’s Pearson International Airport,
is ultimately responsible and accountable for access control for all airport
tenants.2204 Tenants may hold lease agreements that are more than a decade
old and that have not kept pace with changes in security requirements. There
is no legal mechanism other than provisions in lease agreements for airport
authorities to force tenants to comply with regulations, such as those that
require monitoring of access points. Instead, airport authorities must rely on
2195 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4984.
2196 Testimony of Jim Bertram, vol. 65, October 24, 2007, p. 8164.
2197 Testimony of Jim Bertram, vol. 65, October 24, 2007, pp. 8149-8150.
2198 See Section 3.8.2, which discusses in detail the deficiencies in non-passenger screening and control of
access to restricted areas of airports. See also Exhibit P-169, pp. 57-58 of 202; Exhibit P-172, p. 28 of 155.
2199 Colin Freeze, “Operation Tarmac: politicians go undercover to expose security flaws at Pearson” The
Globe and Mail (April 2, 2009), online: The Globe and Mail <http://web.theglobeandmail.com/servlet/
story/LAC.20090402.KENNY02//TPStory/National >.
2200 Exhibit P-434, p. 2.
2201 See March 2009 Status Report of the Auditor General of Canada, Chapter 1.
2202 Exhibit P-172, p. 17 of 155.
2203 Exhibit P-172, p. 17 of 155.
2204 Testimony of Jim Bertram, vol. 65, October 24, 2007, p. 8163.
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Transport Canada for enforcement.2205 The CAC called this a security weakness
and articulated the need for greater “teeth” in the oversight mechanism of
airport authorities, so that they can better enforce compliance with measures
that fall within their mandate.2206
Finally, from a risk management perspective,2207 deciding that certain individuals
pose minimal risk to civil aviation simply because they are “known,” without
any formal screening by the civil aviation security community, is troubling. The
Commission heard that passengers of many business and sports charter flights
are considered trustworthy simply because they are recognized or established
consumers familiar to the flight and security staff of the aviation companies
with whom they regularly fly.2208
Even some individuals who have been vetted by the civil aviation security
community, including through security background checks, have proved
dangerous to civil aviation. The bombing of Pan Am Flight 103 in December
1988 was set in motion by the former head of security for Libyan Arab Airlines,2209
who used his knowledge to circumvent normal baggage check-in procedures at
Malta’s Luqa Airport. According to Rodney Wallis, an international civil aviation
security consultant, this “…portrayed the worst possible scenario facing
legitimate governments with respect to attacks against civil aviation targets,
namely direct involvement (rather than coercion) of airline staff with knowledge
of and access to attack aircraft under cover of their legitimate roles.”2210 There
are other examples of civil aviation security incidents which involved “known”
airport employees.2211 Chern Heed, a member of the CATSA Advisory Panel,
described an analogous concept long employed for air cargo security in Canada,
the “known shipper,”2212 as completely deficient as a security tool.2213 Dr. Kathleen
Sweet, an international civil aviation security expert, testified that the “…I know
him, he’s OK” method of screening cannot be viewed as an appropriate security
tool.2214
The security vulnerabilities of FBOs and the GA sector appear to have been
reported publicly for the first time in the Senate Committee’s January 2003 report,
The Myth of Security at Canada’s Airports, although stakeholders had issued a call
2205 Testimony of Jim Bertram, vol. 65, October 24, 2007, pp. 8163-8164.
2206 Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8161.
2207 See Section 3.3, which discusses risk management decision-making in civil aviation security.
2208 Testimony of Jim Bertram, vol. 65, October 24, 2007, pp. 8164-8165; see also Testimony of Yves Duguay,
vol. 43, June 14, 2007, pp. 5265-5266.
2209 Wallis, Lockerbie, p. 59.
2210 Wallis, Lockerbie, p. 38.
2211 In 1955, an aircraft cleaner was reportedly bribed to place an incendiary device in the wheel well of
an aircraft; and in 1986, a customs officer with access to the flight line was charged with placing a
bomb on board an Air Lanka aircraft. See Appendix A, Chronology: Significant Acts of Unlawful
Interference with Civil Aviation.
2212 The concept involves accepting cargo for shipment on passenger aircraft, without the need of any
security controls, where the shipper has an established business relationship with the airline and is
therefore considered to be a “known shipper”: Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4630.
2213 Testimony of Chern Heed, vol. 38, June 1, 2007, p. 4650.
2214 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4959-4960.
�Chapter III: Civil Aviation Security in the Present Day
to action in 2002.2215 The report stated that highly visible measures to strengthen
aviation security in some areas left persistent gaps behind the scenes, including
“…[a] lack of almost any kind of security requirements for private aircraft and
their passengers.”2216 In 2007, the Senate Committee reported that little had
changed, with FBOs and the GA sector still subject to “almost no scrutiny”2217:
You can walk through those facilities without being identified.
You can board charter aircraft without being searched, without
ever producing your identification…. And while a manifest
is given to the pilot of the plane, there is no checking of
baggage, there’s no checking that the individuals match the
manifest, and so it seems to be an extraordinarily vulnerable
place.2218
Terrorists could easily exploit the widely reported2219 gaps in FBO and GA security
to gain access to aircraft and restricted areas of airports. For instance, a terrorist
could simply pose as a passenger at one of these facilities.
Transport Canada acknowledged the deficiencies in FBO and GA sector security
and consulted with stakeholders. It developed a proposal that at least some
stakeholders believe is a legitimate attempt to balance the concerns of the
operators of these facilities with the need to resolve the security threats they
face.2220 Currently, however, these facilities remain inadequately protected and
their passengers and baggage remain unscreened.
Wallis testified that, particularly where FBOs and GA facilities feed into major
transit points, passengers and baggage must be subject to screening.2221 With
passengers and baggage a stated priority of the federal government’s strategy
in aviation security,2222 it is surprising that the security issues facing this sector
have not been wholly addressed. As well, in the post-September 11th world, the
risk of an aircraft being overtaken and used as a weapon is known.2223 A multilayered, risk-based approach to security demands adequate protection for all
domains of risk.2224 Although full-scale security akin to that at Class 1 airports
may not be necessary for all FBO and GA establishments, the current lack of
security must not continue.
2215 Exhibit P-101 CAF0847, p. 6 of 17.
2216 Exhibit P-171, p. 14 of 256.
2217 Exhibit P-172, p. 69 of 155.
2218 Testimony of Colin Kenny, vol. 38, June 1, 2007, p. 4696.
2219 Exhibit P-172, p. 69 of 155; see also Exhibit P-169, p. 51; see also Exhibit P-171, p. 14 of 256.
2220 Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8149.
2221 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5039.
2222 Exhibit P-411, p. 9; see also Exhibit P-101 CAF0872, p. 2.
2223 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4632.
2224 Exhibit P-361, Tab 1, p. 9; see also Section 3.3, which discusses risk management decision-making in
civil aviation security.
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3.8.3.1 Enhancing Security and Meeting the Needs of Industry
In 2006, the CATSA Advisory Panel recommended that FBOs and the GA sector
receive closer attention and regulation. The Panel noted that many small GA
operations pose little security risk and that stricter government regulation could
be disproportionately onerous and costly. Like the experts, stakeholders noted
that security which is too intrusive or expensive could harm the industry.2225
Captain Craig Hall, Director of the National Security Committee of the Air Line
Pilots Association, International (ALPA), which advocates screening passengers
and baggage at FBOs and GA facilities, stated:
…[W]e have to always keep in mind that we can’t take
measures that are so punitive that they destroy our industry,
but at the same time we have to balance that by making sure
that we are able to take the measures that need to be taken.2226
Hall testified that security concerns must not be minimized.2227 Similarly, Whitaker
stated that a balance between security and industry needs is required.2228
In 2006, the CATSA Advisory Panel recommended extending passenger
screening to FBOs where the size of the operation warrants such screening.2229
Sweet testified about care that must be taken to ensure that all facets of risk in
a given situation are evaluated, not just the size of the airport. For example, a
small airport in a remote location may still carry great risk if it is situated close to
critical infrastructure, such as a nuclear power plant or chemical manufacturing
plant.2230 In 2007, the Senate Committee recommended that all persons and
vehicles, including private aircraft, be searched at all FBOs attached to Canada’s
89 designated airports.2231 Stakeholders have generally agreed that any decision
to require screening of commercial passengers on aircraft departing from
facilities that are located away from air terminal buildings, which is currently
being considered by Transport Canada, must be based on threat, vulnerability
and risk assessments, as well as cost-benefit analyses.2232
Transport Canada reported that many operators of FBO and other facilities have
taken steps, even without security requirements, to improve physical security
and to mitigate risk through increased security awareness.2233 The GA community
has implemented security awareness initiatives to encourage a “neighbourhood
watch” approach to security. Such practices have included managing the keys to
aircraft and facilities, ensuring that equipment is locked or secured, and noting
and challenging suspicious activity. Sweet recommended that every FBO and
2225 Exhibit P-101 CAF0847, p. 7.
2226 Testimony of Craig Hall, vol. 64, October 23, 2007, p. 8017.
2227 Testimony of Craig Hall, vol. 64, October 23, 2007, p. 8016.
2228 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 5484.
2229 Exhibit P-169, p. 56 of 202.
2230 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4985.
2231 Exhibit P-172, p. 71 of 155.
2232 Exhibit P-101 CAF0847, p. 7.
2233 Exhibit P-101 CAF0847, p. 8.
�Chapter III: Civil Aviation Security in the Present Day
GA facility draft and implement a security plan2234 and be well-informed about
airport functioning from a security perspective.2235
A culture of security awareness, a desirable and necessary foundation for
improved security, may be sufficient for some smaller establishments where the
security risk is low. However, security awareness alone is not sufficient for FBOs
and the GA sector in general.
Logistical issues arise about the physical location of screening and the authority
to be responsible for it.2236 The CATSA Advisory Panel and the Senate Committee
both saw CATSA as the appropriate agency to oversee screening if it is extended
to FBOs and the GA sector.2237 CATSA’s current screening mandate does not
include flights from FBOs or from the GA sector.2238
Some stakeholders worried that, without additional resources, CATSA
might become overburdened by screening FBOs and might not be able to
accommodate the 24-hour operation of some FBOs. They suggested that
CATSA consider training existing security personnel at facilities such as FBOs to
perform authorized searches as agents of CATSA. CATSA stated that additional
funds would be necessary for training FBO personnel to perform such searches
and that any such arrangement would require further analysis.2239
The CATSA Advisory Panel concluded that “…too many risks and too many
questions” surround the GA and FBO sectors to leave their security deficiencies
unaddressed. 2240 The Commission agrees.
3.8.3.2. Transport Canada: Action Taken but More Required
Transport Canada has recognized the security risks presented by the lack of
screening at FBOs and GA operations. However, it has acted slowly in response.
In the meantime, FBOs and the GA sector remain relatively unprotected and
vulnerable to attack.2241
In late 2002, Canada’s aviation stakeholders recommended that Transport
Canada review FBO and GA security.2242 In the spring of 2004, Transport Canada
launched a review of unscreened commercial flights, aiming to achieve more
consistent security across all commercial operations. As part of this review, the
Department held extensive consultations with stakeholders,2243 conducted a
2234 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4985.
2235 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, p. 4986.
2236 Exhibit P-169, p. 56 of 202.
2237 Exhibit P-169, p. 56 of 202; see also Exhibit P-172, p. 69 of 155.
2238 Exhibit P-101 CAF0847, p. 4.
2239 Exhibit P-101 CAF0847, p. 8 of 17.
2240 Exhibit P-169, p. 56 of 202.
2241 Exhibit P-169, p. 55 of 202.
2242 Exhibit P-101 CAF0847, p. 6 of 17.
2243 Exhibit P-101 CAF0847, pp. 1-2 of 17.
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risk assessment2244 and reviewed how other countries tackled the problem.2245 It
also examined the effects of potential changes on industry operations, as well
as the delivery of screening services and funding.2246
In September 2005, draft recommendations2247 were distributed to stakeholders,
and further consultations were held in the spring of 2006.2248 Many stakeholders
endorsed the recommendations or were neutral, but some were concerned
about the significant financial and operational impacts, especially for private
charter operations.2249 Many suggested that individual charter operations
be allowed to customize their manner of compliance to take account of the
sometimes unique characteristics of their operations.2250
In July 2006, Transport Canada reported that it anticipated phasing in screening
requirements for FBOs beginning in early 2007. The Attorney General of Canada
reported, however, that the effort was hampered by CATSA’s claim that it needed
additional funding.2251
Security improvements in the GA sector suffered a similar fate. In 2002 and
2003, Transport Canada advisories were issued to the GA community to provide
guidance for security measures.2252 However, a GA “Task Team” was not created
until 2007 to review security issues regarding general aviation in Canada. In
May 2008, Transport Canada reported that the GA Task Team had “…met several
times to date, and further discussions will be scheduled as required to advance
the work in this area.”2253
In 2006, the CATSA Advisory Panel criticized the delay in addressing gaps in FBO
and GA security, although it acknowledged the complexities in designing and
implementing a security regime in this area.2254 The following year, the Senate
Committee also criticized the delay:
2244 Final Submissions of the Attorney General of Canada, Vol. II, para. 408. Transport Canada’s current risk
assessment and risk management procedures have been questioned. The Commission was not
provided with a copy of any risk assessment conducted on the issue of FBOs or the GA sector. See,
generally, Section 3.3, which examines risk management procedures in civil aviation security and the
process used by Transport Canada.
2245 Transport Canada noted that the international community has also recognized the vulnerability of
FBOs and the GA sector and has taken steps to improve security at such facilities. G8 countries, in
particular, have expressed a commitment to developing international standards for enhancing FBO
and GA security. In Europe, some airports conduct screening at FBOs, where it is largely the
responsibility of airport operators. In the United States, there has been a strong separation between
FBOs and mainstream commercial traffic. See Exhibit P-101 CAF0847, p. 6; see also Exhibit P-101
CAF0827, p. 6.
2246 Final Submissions of the Attorney General of Canada, Vol. II, para. 408.
2247 The recommendations are considered sensitive security information and cannot be publicly disclosed.
2248 Exhibit P-101 CAF0847, p. 11.
2249 Exhibit P-101 CAF0851, p. 13.
2250 Exhibit P-101 CAF0847, p. 12.
2251 Final Submissions of the Attorney General of Canada, Vol. II, paras. 412, 413.
2252 Final Submissions of the Attorney General of Canada, Vol. II, para. 417.
2253 Exhibit P-101 CAF0827, p. 9 of 19.
2254 Exhibit P-157, p. 120 of 135.
�Chapter III: Civil Aviation Security in the Present Day
The time for considering should be long past. Fixed-Base
Operations on the periphery of airport terminals present
the same potential threats as passenger and cargo terminal
operations. Fairly large aircraft leave from some of these
operations. With no screening, what is to prevent a terrorist
from commandeering one of these planes and flying it into a
building?2255
3.8.3.3 Conclusion
FBOs and the GA sector are subject to few security requirements. These operations
sometimes use large aircraft and transport large numbers of passengers. Yet
FBO and GA facilities are not required to screen passengers or their baggage,
nor are security measures generally imposed on their premises. Terrorists will
naturally seek areas of weakness. Relatively unprotected FBOs and GA facilities
provide prime targets. The largely unhindered access to aircraft makes their use
as weapons a major security risk.
FBOs and GA facilities were identified as uniquely vulnerable to terrorist attack as
early as 2002. However, security measures still have not been implemented. With
the GA sector, enhanced security is still at the discussion stage. As the Senate
Committee noted, the time for discussion is over. At a minimum, passengers and
baggage must be screened at FBO and GA facilities that feed into designated
airports or are located on airport premises. The facilities themselves must also
be secured, guided by a written security plan. Training is necessary to foster a
culture of security awareness.
CATSA is the appropriate screening authority, given that it already fills this role at
main terminal buildings. The Government must change regulations and provide
adequate funding for security measures. Measures should be implemented
based on risk, taking into account that different FBO and GA establishments may
face different risks. These measures will fill a serious security gap and contribute
to the multi-layered approach necessary for an effective security regime in civil
aviation as a whole.
3.9 Duty to Warn and Transparency in Aviation Security
Although the Government of Canada was aware of numerous threats against
Air India in the year leading up to the Air India bombing,2256 it did not notify
the public about them. By June 1985, the Government was also aware of
deficiencies in the airline’s security measures. Transport Canada’s position
before the Commission was that it had neither the jurisdiction nor the duty to
ensure the appropriate implementation of screening measures by Air India at
the time of the bombings. Dale Mattson, Transport Canada’s Manager of Safety
2255 Exhibit P-172, p. 71 of 155.
2256 See Volume Two: Part 1, Pre-Bombing, Section 1.12, A “Crescendo” of Threats.
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and Security at Pearson International Airport in 1985, also stated that there was
no regulatory duty to warn the public about threats against airlines or about
deficiencies in air carrier procedures.2257 The Government had effectively decided
to leave essential aspects of security implementation and decision-making with
third party private enterprises: airlines and their security companies.
Even if the Government were, as it claimed, powerless to effect an appropriate
security response in 1985, it can be argued that it had a duty to warn the
travelling public about at least some security and threat information about Air
India. Passengers could then make informed travel decisions. During Phase I
of the Commission’s work, victims’ family members raised precisely this issue,
asking whether in 1985 there should have been, and whether there currently
needs to be, a public warning system about the threats facing an airline.2258
During the work of the Commission, the need for greater transparency in civil
aviation security was repeatedly raised, as were countervailing concerns about
safeguarding national security, preserving the air travel industry and preventing
undue alarm.
Because of poor communication about threats in 1985, some civil aviation
stakeholders were not aware of the heightened threat facing Air India. Such
information could have led to a dramatically different outcome, one with no lives
lost. In particular, air carriers interlining passengers and baggage to Air India were
not made aware of the threat to Air India, even though this information would
probably have caused them to alter their security operations. Had Canadian
Pacific (CP) Air been warned, it is almost certain that more vigilance would have
been exercised in the decision to interline the “M. Singh” bag to Air India Flight
182 in the absence of a reservation for M. Singh, despite a business culture that
stressed customer satisfaction.2259 The Canadian Air Transport Security Authority
Act Review Advisory Panel (CATSA Advisory Panel)2260 concluded that threat
information was inadequately shared in 1985:
This somewhat tangled tale highlights a crucial weakness
in the chain of intelligence communication. Even where
intelligence was available in advance that gave warning of the
kind of threat that tragically materialized on June 23, 1985,
the linkage to those bodies with capacity to take appropriate
security measures remained problematic. Nowhere is the
problem of inadequate threat communication more apparent
than in the manner in which two bags containing bombs were
allowed to be loaded on two CP Air flights, and interlined to
2257 Testimony of Dale Mattson, vol. 29, May 16, 2007, pp. 3258-3259.
2258 See, for example, Testimony of Perviz Madon, vol. 6, October 4, 2006, p. 601.
2259 Exhibit P-157, pp. 64-65 of 135.
2260 The Panel was appointed to conduct a five-year review of the CATSA Act. The Minister of Transport also
directed the Panel to “review the actions taken since 1985 to address the specific aviation security
breaches associated with the Air India flight 182 bombing, particularly those relating to the screening
of passengers and their baggage” and “to advise the Minister on whether further changes are required
in legislation, regulations or practice to specifically address these breaches”: Exhibit P-157, p. 11 of 135.
�Chapter III: Civil Aviation Security in the Present Day
a high-risk carrier. The story of the Canadian Pacific check-in
official in Vancouver who was harassed by passenger ‘M. Singh’
into permitting the fatal bag to be interlined to Air India Flight
182 … is now well known. If all air carriers in Canada with
flights connecting to Air India had been warned that Air India
was under special security alert, the CP Air agent might have
exercised more caution. If, as would happen today, Transport
Canada had given direction to all airlines not to interline any
baggage to Air India flights, the two individuals in question
might have been deterred at the CP Air check-in. It seems,
however, that the practice in place in 1985 did not include
communication of threat warnings to other connecting
airports and airlines.2261
An emphasis in 1985 on secrecy and the “need-to-know” principle hindered the
communication of important information to some who required it – in particular,
front-line staff making key, on-the-spot decisions. As the CATSA Advisory Panel
stated, “…[t]he Air India tragedy illustrates what happens when excessive
concern with secrecy gets in the way of sound operational decisions.”2262
Many have now called urgently for a move to a new “need-to-share” principle
for security intelligence, while at the same time they recognize the imperative
to maintain secrecy where necessary, and to honour any attached caveats.2263
Clearly, the public must be considered a stakeholder in civil aviation security. The
question of how much information relating to security risks and deficiencies in
security measures can and should be shared with the public will depend on the
nature of the threat, the potential risks associated with disclosure and the need
to prevent disruption within the aviation industry on which the public relies.
3.9.1 Public Warning System for Security Threats against Airlines
Members of the victims’ families stated that had information about threats to
Air India been made public in 1985, at least some victims would have chosen
not to fly on Air India.2264 Over the course of the Commission’s hearings, several
aviation security experts and stakeholder representatives were asked about the
need for a public warning system about threats to airlines. They largely rejected
such a system as being neither desirable nor feasible.
Even the idea of a general notification system to inform the public about ambient
threat levels against the country at large was dismissed as impractical.2265 Dr. Reg
Whitaker, Chair of the CATSA Advisory Panel, described the colour-coded public
notification system implemented by the Department of Homeland Security
2261 Exhibit P-157, p. 50 of 135.
2262 Exhibit P-157, p. 50 of 135.
2263 Exhibit P-169, p. 43 of 202.
2264 See, for example, Testimony of Perviz Madon, vol. 6, October 4, 2006, p. 601.
2265 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4593.
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(DHS) in the US2266 after the 2001 terrorist attacks as both a failure and an object
of some derision.2267 He testified that, after a certain point, the public generally
stopped paying attention to the stated threat levels and the system would lose
its effectiveness.2268 When asked whether a similar notification system ought to
be adopted in Canada, Whitaker responded, “[a]bsolutely not.”2269
Rodney Wallis, an expert in international civil aviation security and former
International Air Transport Association (IATA) Director of Security, examined the
issue of publishing warnings about threats against airlines in his 1993 book,
Combating Air Terrorism. Before the bombing of Pan American (Pan Am) Flight
103 in December 1988,2270 he wrote, there had been limited public disclosure
about a specific threat against Pan Am:2271
Much has been written and broadcast on the subject of the
Helsinki warning. The information had been circulated to other
U.S. embassies and at least one (in Moscow) had posted the
details on a notice board, thus enabling those with access to
it and intending to fly to the United States to reassess their
traveling plans should they wish to do so. The information
was generally made available throughout the two-thousandstrong U.S. community in the Russian capital city. It was not
freely circulated in other countries. It is a point the families
and friends of the victims have reverted to again and again,
although the inquiry conducted by a specially constituted
presidential commission did not find any individuals who
changed their plans as a result of the threat being made
known to them. Even so, to tell or not to tell has become an
international debate.2272
2266 The US Department of Homeland Security’s Color-coded Threat Level System “is used to communicate
with public safety officials and the public at-large through a threat-based, color-coded system so that
protective measures can be implemented to reduce the likelihood or impact of an attack.” Raising
the threat condition has economic, physical, and psychological effects on the nation; to mitigate this,
the Homeland Security Advisory System can place specific geographic regions or industry sectors on
a higher alert status than other regions or industries, based on specific threat information: US
Department of Homeland Security, Homeland Security Advisory System, online: US Department
of Homeland Security <http://www.dhs.gov/xinfoshare/programs/Copy_of_press_release_0046.shtm>
(accessed November 3, 2009).
2267 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4593.
2268 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4593.
2269 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4593.
2270 The bombing of Pan Am Flight 103 is generally considered a “copycat” terrorism incident because it
replicated the precise method of sabotage used to destroy Air India Flight 182. See Wallis, Combating
Air Terrorism, p. 26.
2271 A threat against Pan Am had been made on December 5, 1988, through a telephone call received by
the United States Embassy in Helsinki warning that a bombing attack would take place “within the next
two weeks” against a Pan Am aircraft operating between Frankfurt and the United States. It gave
details of the persons who would allegedly carry out the crime and of the proposed methodology.
Experts agreed this was a detailed threat to be taken very seriously, but Finnish and US government
authorities later decided that the warning was a hoax. Pan Am Flight 103 was destroyed by a bomb on
December 21, 1988, killing 270 people. See Wallis, Combating Air Terrorism, pp. 26-28.
2272 Wallis, Combating Air Terrorism, p. 28.
�Chapter III: Civil Aviation Security in the Present Day
Wallis concluded that public warning systems miss their mark because,
paradoxically, they can promote terrorism. The rationale for publicizing threats
to airlines is to provide information to the public, and people may choose not to
travel as a result. Counting on this very response, terrorists could use the threats
themselves as weapons to obliterate an airline’s customer base. This would not
only have repercussions for the viability of the airline, but potentially for the
entire air travel industry. The prospect of encouraging hoax threats and “copycat”
behaviour further diminished the possible value of such warning systems. In the
end, both the aviation industry and the public would be victimized:
The general rule must be not to advertise threats against
airlines. First, to do so would hand a new weapon to the
terrorists. These criminals would need only to phone in a
threat to drive an airline’s customers away, assuming the
intending passengers reacted in the manner suggested by
the protagonists of the “tell” policy. Used as a weapon, this
method could decimate a nation’s air services with no danger
to the perpetrators. Second, widespread advertising of bomb
threats would encourage a multiplication of the hundreds
upon hundreds of hoax bomb calls made to airlines every
year. As fire and ambulance emergency services know only too
well, there are many maladjusted people who get some sort
of perverted thrill from such behavior. The airlines suffer from
these same individuals. The “copycat” syndrome would come
well to the fore if threats were to become published. The final
victims are, of course, the passengers.2273
Whitaker also rejected as “impractical”2274 a public warning system for security
threats against airlines. He contended that warnings to the public were not
necessary if a specific threat was directed against a flight, since there were already
adequate security responses in Canada. The flight would be grounded or other
appropriate measures taken.2275 Wallis agreed, noting that, where additional
security measures were instituted, passengers would become aware of the
problem and would need assurance that sufficient procedures were in place
to protect them.2276 Passengers might change their itineraries, but this would
occur “…without the publicity that general broadcasting would bring and with
minimum satisfaction going to the perpetrators.”2277 Whitaker described a
public warning system for non-specific threats as impractical, citing commercial
grounds as the primary concern:
2273 Wallis, Combating Air Terrorism, pp. 28-29 [Emphasis in original].
2274 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4593.
2275 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4593.
2276 Wallis also noted that, at least at the time, bomb threats against airlines were extremely common. A
study of bomb threats undertaken by airlines in the United States during a ten-year period between
the late 1970s and early 1980s demonstrated that “no warning had ever led to the discovery of a bomb.
More than ten thousand cases were investigated”: Wallis, Combating Air Terrorism, pp. 29-30.
2277 Wallis, Combating Air Terrorism, p. 30.
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…[I]f there is a specific threat, then the flight doesn’t take off.
If there is not a specific threat, you can’t issue warnings and
consumer advisories that would have enormous implications
for the…commercial viability of whole airlines…on the basis of
speculative intelligence.2278
Although security was always the primary objective, Transport Canada officials
advised that a“triangle”of factors often had to be considered when implementing
security measures. These included effective security, the efficiency of the
aviation industry and respect for individual rights.2279 Whitaker testified that a
public warning system did not strike the right balance between security and
industry concerns.
Counsel for the Air India Victims’ Families Association acknowledged that
public warnings for purely speculative threats provided little value. However,
counsel questioned favouring a blanket protection for the commercial
interests of airlines over the security of the travelling public. Counsel argued
that something less than a specific threat might sometimes warrant a public
warning by government, and that some individuals could then choose not to
fly with a particular air carrier. For example, a threat might be acknowledged by
the appropriate national security agencies as well as by the airline, but not be
directed at a specific flight.2280 As well, the general public might not be aware
of the heightened threat under which some airlines regularly operate. The
question was raised before the Commission whether, when threats are specific
enough to justify assigning extra security, the public, as well as ticket and travel
agents, should be notified.
Some experts opposed a full-scale public notification system managed by
government, but gave some support to promoting at least a limited awareness
of threats once a certain threshold was reached.2281 Whitaker testified that ticket
agents should be notified in such a situation, just as CP Air and other air carriers
interlining passengers to Air India in 1985 should have been notified of the
heightened threat then facing Air India.2282 The CATSA Advisory Panel stated
that Transport Canada would provide direction to air carriers today.2283 Whitaker
argued that providing public warnings was not objectionable in principle,2284
but that that such a system would be unworkable in practice. He questioned the
2278 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4593.
2279 Testimony of Jean Barrette, vol. 38, June 1, 2007, p. 4567.
2280 Norm Boxall, Counsel for the Air India Victims’ Families Association, posed the following question:
“…I could understand why if it’s a purely speculative matter why the public wouldn’t be warned. But
if we’re dealing with a situation where the RCMP acknowledged the threat; CSIS acknowledged the
threat; the airline itself acknowledged the threat and says it’s a threat…why should the public not
know? Why do we have to protect the commercial interest of that airline? Why shouldn’t the customer
know the threat?”: Transcripts, vol. 38, June 1, 2007, p. 4612.
2281 Testimony of Michael Hennessey, vol. 14, November 8, 2006, p. 1357; Testimony of William Leiss, vol. 91,
December 7, 2007, p. 12015.
2282 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4613.
2283 Exhibit P-157, p. 50 of 135.
2284 Testimony of Reg Whitaker, vol. 38, June 1, 2007, pp. 4607-4608.
�Chapter III: Civil Aviation Security in the Present Day
appropriateness, in the absence of specific intelligence, of government-issued
advisories about particular airlines when these could harm their competitiveness
and viability. 2285 He made no comment about the advisability of informing travel
agents about non-specific threats to airlines.2286
A counsel for the families noted a potential inconsistency, however, since the
Government of Canada had what seemed to him an analogous public warning
system – foreign travel advisories. Advisories warned about situations abroad
that might affect the safety and security of the travelling public,2287 including the
threat history of certain countries and expected future threats. The advisories
were intended to enable the public to make informed decisions to minimize
risks while abroad.
Whitaker testified that warnings issued about an entire country were qualitatively
different from those about a specific airline operating as a private enterprise
in Canada. He agreed that travel advisories about some foreign destinations
may have the unintended effect of discouraging travel on particular airlines,2288
but cautioned that there were “considerable implications” for a government
that issued a “consumer advisory” identifying a particular airline as riskier than
others.2289
Wallis agreed that, while one would expect governments to issue travel
advisories about countries with security problems, the concept of governments
advising the public about individual airlines under threat would be “…getting
into some difficult areas.”2290 He stated that the circumstances would have to be
“pretty powerful” for a government to issue any warning about a specific airline,
and that, to date, he had not seen a situation to justify such a warning.2291 In
his 1993 book, he stated that such warnings could effectively shut down the
operation of an airline.2292
Dr. William Leiss, an expert in risk management, differed about the proper role
of government. He testified that the duty to warn the public is a significant
issue in the field of risk management. Since Transport Canada held the ultimate
authority over Canadian airspace, the Department arguably had a duty to
make critical threat information public, particularly where an airline was not
responding appropriately to threats. Nevertheless, he agreed broadly with Wallis
that only particular circumstances would trigger the need for government to
issue a warning.2293
2285 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4593.
2286 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4613.
2287 Anand questioning of Reg Whitaker, Transcripts, vol. 38, June 1, 2007, pp. 4605-4606. See also Foreign
Affairs and International Trade Canada, “Travel Reports & Warnings,” online: Foreign Affairs and
International Trade Canada <http://www.voyage.gc.ca/countries_pays/menu-eng.asp> (accessed
November 3, 2009).
2288 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4606.
2289 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4606.
2290 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5062.
2291 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5063.
2292 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5063.
2293 Testimony of William Leiss, vol. 91, December 7, 2007, p. 12015.
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In its Final Submissions, the Attorney General of Canada expressed concern that
the Commission did not hear sufficient evidence about whether government
officials had a legal or ethical duty to warn the public. The Attorney General
submitted that a more thorough investigation was warranted to address:
• whether, and under what circumstances, the public was warned of
threats to airlines in Canada, if ever;
• whether other countries impose a duty to warn on their
governments; and
• the policy and legal implications of warning the public, including
liability to air carriers whose operations could be compromised by
speculative or classified intelligence.2294
Experts before the Commission gave considerable weight to commercial
considerations, opposing a general public notification system for threats to
airlines. Some agreed that a public warning might be warranted on reaching
a certain threat threshold, but there was difficulty in articulating the threshold.
The consensus seemed to be that it would be difficult to achieve the correct
balance between security and efficiency, at least as the proposal for a warning
system was currently understood. In short, a public warning system did not find
widespread support among aviation security experts.
3.9.2 Informing the Public: Greater Transparency Required in Civil Aviation Security
It was acknowledged, however, that greater transparency, as opposed to
publicity, about measures taken to enhance aviation security could increase
public confidence in aviation security.2295
Still, secrecy is important to prevent terrorists from learning about specific
security measures.2296 The Aeronautics Act2297 enforces secrecy by prohibiting the
disclosure of the details of security measures:
4.79 (1) Unless the Minister states … that this subsection does
not apply in respect of a security measure, no person other
than the person who made the security measure shall disclose
its substance to any other person unless the disclosure is
required by law or is necessary to give effect to the security
measure.
However, accountability in aviation security is also important. The Commission
heard from many experts and stakeholders who were concerned about
2294 Final Submissions of the Attorney General of Canada, Vol. II, paras. 258, 261.
2295 Testimony of Reg Whitaker, vol. 38, June 1, 2007, pp. 4602-4603.
2296 See Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4603.
2297 R.S.C. 1985, c. A-2.
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unnecessary secrecy in aviation security.2298 The Commission was dismayed to
learn that the Government had long known about many significant gaps in civil
aviation security – particularly those relating to air cargo,2299 airside security,2300
Fixed Base Operations (FBOs) and the General Aviation (GA) sector2301 – but
had failed, in some cases for decades, to address these deficiencies. The need
for secrecy must not shield government and prevent reasonable disclosure
of aspects of the aviation security program to the public. The public deserves
assurances that security measures actually enhance security and that the
resources expended are both justified and wisely allocated. Greater public
awareness of the sufficiency of security measures can also deter terrorism.2302
The Commission recognizes the need to balance secrecy with public confidence.
On one hand, this requires disclosing information to reassure the public that the
security system is sufficiently rigorous; on the other, it requires safeguarding
information which, if it falls into the wrong hands, could harm aviation. Aviation
security experts suggested various ways to achieve this balance, but generally
agreed that greater transparency is required about many aspects of aviation
security. Among the policies and measures requiring greater public disclosure
were:
• Risk management methodologies and the risk rationale for resource
allocation;
• The rationale for establishing the Passenger Protect Program, the
selection criteria used for the Specified Persons List (SPL) and the
process for removal of a name from the list;
• Uses of “invasive” technology; and
• The collection and expenditure of user fees, such as the Air
Travellers Security Charge (ATSC).
On risk management, the Commission heard that the Government and
stakeholders should provide the public with sufficient information, without
compromising national security, about the methodology used to assess and
manage aviation security risks, to justify the way resources are allocated. Such
information could strengthen confidence in the public institutions responsible
for civil aviation security.2303 As Leiss testified:
I think we have enough evidence – certainly that I’ve seen
before the Commission – to suggest that we need a higher
level of accountability which [would enable] us to have a
higher level of confidence that the requirements of a risk
2298 See, for example, Exhibit P-172, pp. 78-82 of 155.
2299 See Section 3.8.1, which discusses deficiencies in air cargo security.
2300 See Section 3.8.2, which discusses deficiencies in airport security.
2301 See Section 3.8.3, which discusses deficiencies in FBO and GA security.
2302 See, for example, Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5282. See also Testimony of
Alphonse MacNeil, vol. 65, October 24, 2007, p. 8072.
2303 Testimony of William Leiss, vol. 91, December 7, 2007, pp. 11960-11961.
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management [and] a risk-based decision-making approach,
are being fulfilled by all parties, all together....2304
The Privacy Commissioner of Canada, Jennifer Stoddart, testified that, where
security measures are intrusive and could violate individual rights, more extensive
disclosure would be required.2305 For example, the Passenger Protect Program
drew criticism from experts about the lack of disclosure about the rationale for
the Program,2306 the vague criteria used to select individuals for the SPL2307 and
the sparse details about the reconsideration process.2308 Stoddart also raised
the concern that invasive measures could be employed for purposes other than
security, such as the use of radio-frequency identification (RFID) technology
on boarding passes by airport retailers to track passenger movements within
the terminal. She stated that, where security measures are used to serve nonsecurity objectives, passengers need to be properly informed to ensure that
they are free participants and that they fully consent.2309
Stakeholders strongly opposed in principle the use of passenger fees to fund
aviation security and insisted on proper accounting to track the collection and
use of such fees if the Government nonetheless introduced them. Stakeholders
wanted assurance that the funds were invested solely in aviation security and
that they were not used to subsidize other modes of transportation, such as
marine or rail.2310 The ATSC, a fee collected from passengers expressly to fund
aviation security, was widely condemned because of the lack of comprehensive
accounting applied to its collection and disbursement, and for the inability to
trace the ultimate investment of these funds.2311
The question of whether the results of intrusion tests should be made public
also sparked controversy. These are tests by Transport Canada of the security
screening system. Prohibited items, such as guns, knives and explosives, or
replicas, are surreptitiously passed through security checkpoints to determine
whether the screening process detects them. The Standing Senate Committee
on National Security and Defence (Senate Committee), which generally called
for greater public awareness of the shortcomings in civil aviation security,2312
observed that test results were regularly made public before September 11,
2001, but that they were not publicly available after.2313 The Committee stated
that high-level sources in government had reported that the failure rate of these
intrusion tests – the percentage of prohibited items that get through screening
undetected – was “in the double digits.” Noting that, “…if the public knew the
2304 Testimony of William Leiss, vol. 91, December 7, 2007, p. 12010.
2305 Testimony of Jennifer Stoddart, vol. 72, November 6, 2007, pp. 9072-9073.
2306 Testimony of Jennifer Stoddart, vol. 72, November 6, 2007, pp. 9016-9017.
2307 Testimony of David Lyon, vol. 40, June 5, 2007, p. 4870.
2308 Exhibit P-278, Tab 6, p. 14.
2309 Testimony of Jennifer Stoddart, vol. 72, November 6, 2007, pp. 9067-9068.
2310 See, for example, Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8139.
2311 Exhibit P-169, pp. 168-170 of 202.
2312 Exhibit P-172, p. 80 of 155.
2313 Exhibit P-172, p. 81 of 155.
�Chapter III: Civil Aviation Security in the Present Day
real figures people would be clamoring for action,”2314 the Senate Committee
was a strong proponent of publicizing intrusion test results:
…[W]e are very concerned that Canadians are not being
made aware of [test results] for two reasons. One, we believe
Canadians have a right to choose, with as much knowledge as
reasonable, what risks they want to undertake. And secondly,
there’s a great deal of money going into the process of
screening people and Canadians have a right to know whether
or not it is an effective process, so we believe that these results
should be made public.2315
Both Wallis and Yves Duguay, Senior Director of Security at Air Canada and
Chairman of the IATA Security Committee, disagreed with releasing the results of
intrusion tests.2316 They felt that disclosure would alarm the public unnecessarily
while possibly identifying weaknesses in security measures to those who
might want to cause harm. The Government of Canada cited the possibility of
identifying weaknesses to justify keeping the results of these tests from the
public.2317
The Senate Committee argued that this concern could be alleviated by delaying
the release of test results by six to ten months, or some other reasonable period,
to allow flaws identified in the system to be corrected.2318 Wallis said he could
accept release of such information only if both conditions – correction of failures,
and elapse of time since testing – had been met.2319 Senator Colin Kenny, Chair of
the Senate Committee, told the Commission that the value of public disclosure
lay in informing the public and in providing the necessary incentive for the
Government to address the deficiencies in a timely and effective manner:
…[W]e felt that without that level of transparency, there was
no incentive for the officials to get on with the job and fix the
problem.
Frankly, our view was that if the public was made aware
on a regular basis, say twice a year, with the appropriate
delays that we’re suggesting, that there would be a level of
outrage amongst the population that they’re being forced
to go through this long and cumbersome process, if it’s only
working 80 percent of the time, and we think that would be
2314 Exhibit P-172, p. 81 of 155.
2315 Testimony of Colin Kenny, vol. 38, June 1, 2007, p. 4673.
2316 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5050; Testimony of Yves Duguay, vol. 43, June 14,
2007, p. 5284.
2317 Exhibit P-172, p. 81 of 155.
2318 Exhibit P-172, p. 81 of 155.
2319 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5050.
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a significant incentive to improve the system, to perfect the
system. We don’t ever expect a perfect system but we think
that there should be some form of pressure on it and we don’t
see why just a select group of officials should be the only
people that know how often the system fails.2320
Duguay disagreed with this approach, arguing that the risk of alerting terrorists
to potential vulnerabilities outweighed the benefits of greater public awareness.
He said that the failures identified by intrusion tests were better addressed
through a quality assurance model which relied on oversight measures such as
remedial training.2321
How to disseminate important security information to the most appropriate
recipients is an ongoing issue. Transport Canada, in a briefing to Commission
staff, noted that the GA sector,2322 among the weakest security links,2323 receives
security advisories that are not necessarily provided to the commercial carriers.
Transport Canada indicated that this was to prevent the undue alarm that can
arise when too many people are provided with too much information. A balance
was required so that the “…appropriate information reaches the appropriate
people,”2324 according to the threat. It was essential that this balancing also
consider the risks that too much emphasis on secrecy could cause, as occurred
with the lack of information provided to air carriers whose passengers were
interlined to Air India in June 1985. Had CP Air known of Air India’s heightened
threat environment, it is almost certain that the request to interline the ”M.
Singh” bag without the passenger having a reservation on Air India Flight 182
would have faced greater scrutiny. Similarly, important information about
security threats and measures needs to be shared with the public in a manner
that promotes overall security.
Transport Canada officials advised the Commission that the Department
followed a policy of keeping the public informed about security measures,
and was able to do so effectively without compromising national security.2325
The threat posed by liquid and gel explosives in August 2006 was cited as an
example. An extensive public awareness campaign informed passengers about
new pre-board screening (PBS) measures that had been developed, literally,
overnight. Transport Canada and CATSA each quickly prepared information
materials for air carriers and the public. Transport Canada officials recognized
that the public needed information about the threat from liquid and gel
explosives and about the additional security measures required at screening
checkpoints.2326 This information was provided without giving away secrets that
2320 Testimony of Colin Kenny, vol. 38, June 1, 2007, p. 4674.
2321 Testimony of Yves Duguay, vol. 43, June 14, 2007, p. 5284.
2322 The GA sector consists of private aircraft, including recreational aircraft, business aviation and specialty
air services. See Exhibit P-101 CAF0827, p. 7 of 19.
2323 See Section 3.8.3, which discusses deficiencies in GA security.
2324 Exhibit P-101 CAF0827, p. 8 of 19.
2325 Testimony of Pierre Cyr, vol. 39, June 4, 2007, pp. 4826-4827.
2326 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4842.
�Chapter III: Civil Aviation Security in the Present Day
could assist wrongdoers. For example, the public information did not include
the type or amount of explosives necessary to damage an aircraft, “for obvious
security reasons.”2327
Jean Barrette, Director of Security Operations for Transport Canada, stressed
that the communications effort during the liquids and gels threat was merely
one example of Transport Canada’s commitment to keeping the public informed
about security issues. The Department had been “reaching out to the public,”2328
particularly since September 11, 2001, using a wide variety of materials to raise
awareness about security measures and about the need to remain vigilant
against terrorism.2329
Despite these assurances, the public may still not be sufficiently familiar with
many security measures. Even when information is provided, it may not always
be provided in a timely fashion. Terrorism breeds fear, and knowledge of some
of the security measures in place to counter specific types of threats, such
as those posed by liquids and gels, can provide reassurance to the travelling
public. Superintendent Alphonse MacNeil, Officer in Charge of the Canadian
Air Carrier Protective Program, which places covert in-flight security officers –
commonly called “air marshals” – on select passenger aircraft, acknowledged
that the Program needed to be better publicized, and that this could boost
public confidence, while at the same time serving as a deterrent.2330 He testified
that information could be shared with the public without jeopardizing national
security interests: “…[W]e want the Canadian travelling public to know that the
air marshal program in Canada exists…and that we are on aircraft. We just can’t
be specific about which aircraft.”2331
Counsel for the Air India Victims’ Families Association asked witnesses to
consider whether airlines could use their enhanced security as an advertising
feature, particularly if a public warning system relating to threats against airlines
were established. In fact, in 1985, because of persistent politically-related
interference with civil aviation around the world, Wallis had considered whether
airlines could develop a political risk analysis program for customers as a service
to sell – a novel concept at the time.2332 Whitaker agreed that airlines could use
their security features as a selling point, similar to the way in which automobile
manufacturers advertise safety features such as air bags. He stated that some
airlines, such as Israel’s El Al, already do this, but that the decision to advertise
security measures was for the air carrier to make.2333
Whitaker believed that the public was already aware of airlines that face greater
risks, such as Air India and El Al, due to the heightened security measures
2327 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4842.
2328 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4843.
2329 Testimony of Jean Barrette, vol. 39, June 4, 2007, p. 4843.
2330 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, p. 8072.
2331 Testimony of Alphonse MacNeil, vol. 65, October 24, 2007, pp. 8071-8072.
2332 Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4295.
2333 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4612.
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regularly used by these carriers. Passengers know to arrive at the airport for an
El Al flight many hours earlier than is required for other airlines because of El
Al’s exhaustive screening process. Whitaker stated that “…those passengers
presumably understand that, and accept that they’re in effect buying better,
greater security by undergoing a more intensive process.”2334 This also
demonstrates the challenge of balancing security with efficiency in air travel.
Where there appears to be an increased risk, additional inconvenience may
be both necessary and tolerated by passengers, particularly if they have been
adequately educated about security issues.
Independent reporting is essential. The Commission commends the reviews
of aviation security conducted by the CATSA Advisory Panel,2335 the Senate
Committee2336 and the Auditor General of Canada.2337 Their work greatly
facilitated the Commission’s understanding of the current security weaknesses
and strengths. Such reviews, particularly ongoing monitoring of the effectiveness
of security by the Senate Committee and the Auditor General, must continue.
Because of the ever-changing nature of air terrorism and the fact that gaps in
civil aviation security remain poorly addressed, the Commission recommends
a comprehensive, independent review of the Canadian civil aviation security
regime every five years, similar to that carried out by the CATSA Advisory Panel.
This will increase the accountability of the Government and help to keep the
public adequately informed about security matters.
3.9.3 Conclusion
The aviation security experts and stakeholder representatives who appeared
before the Commission largely opposed introducing a duty to warn the public
about threats against airlines. Such a duty was considered impractical and open
to abuse by terrorists and others wishing to cause disorder. A duty to warn could
effectively shut down an airline.
It was also not considered appropriate for government to assume responsibility
for warning the public, particularly about speculative threats. Only exceptional
circumstances could warrant a public warning, and the appropriate threshold
was difficult for experts to articulate. Further study is required to determine how
the Government could discharge this duty in a manner that would enhance
the security and confidence of the travelling public and respect commercial
interests. Among the issues that should be examined are the policy and legal
implications of a duty to warn, such as liability to affected airlines, commercial
consequences and the appropriate threshold at which the public should be
warned. The concept of a duty to warn is appealing, but its application could
be problematic.
2334 Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4606.
2335 Exhibit P-169.
2336 Exhibits P-171 and P-172.
2337 Exhibit P-173.
�Chapter III: Civil Aviation Security in the Present Day
In general, greater transparency is required in aviation security to bolster
confidence in the system, to ensure that resources are being allocated effectively
and to make certain that government and industry stakeholders remain
accountable for managing their security mandates. A more appropriate balance
between secrecy and keeping the public sufficiently informed is required.
Some aviation security experts opposed disclosing the results of intrusion
tests to the public because of concerns about the release of sensitive security
information. Others said that a limited degree of disclosure, including actions
taken to address weaknesses, could increase public confidence in the Canadian
aviation security system. Public release of such security records could also
provide an incentive for deficiencies to be addressed in a timely and effective
manner.
After carefully weighing the risks of alerting terrorists to potential vulnerabilities
against the benefits of greater public awareness, the Commission does not
recommend the publication of intrusion test results. If a decision is nonetheless
made to publish results, publication should only occur after passage of sufficient
time to enable the specific vulnerabilities in the system to be addressed.
Independent reporting by bodies such as the Senate Committee and the
Auditor General of Canada must continue. Given the dynamic nature of civil
aviation security and the Government’s record of delays in addressing security
deficiencies, a formal, independent review of civil aviation security in Canada
should take place every five years.
3.10 Funding Aviation Security
3.10.1 Cost-effective Security: Reasonable Balance, Flexibility and a Risk
Management Approach
Measures designed to optimize civil aviation security must often be adjusted
to meet the commercial needs of the aviation industry.2338 In 1985, the Seaborn
Report recognized the tension between achieving good security and facilitating
good business:
The threat of terrorism must not be permitted unduly to
interfere with the normal activities of daily life, including air
travel. It must, however, be recognized that air travellers are
vulnerable to terrorist and other similar attacks. It is, therefore,
most important that air security be based on efficient as well
as effective means, as a matter of routine, of security checking
large numbers of persons and their baggage as well as air
2338 Achieving good security and facilitating business are two components of the security “triangle,” the
third being respect for the rights and values of Canadians. See Testimony of Jean Barrette, vol. 40, June
5, 2007, p. 4893.
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cargo and mail. As the threat increases more painstaking
checks become necessary, resulting in proportionately
more inconvenience to the travelling public. The key points,
however, are to ensure a basic standard of security whose
diligent application will satisfy the need to operate the air
system both efficiently and safely….2339
Commissioned in the wake of the Air India bombings, the report noted the “…
need for a reasonable balance between the expeditious movement of passengers
and the assurance of their safety and security.”2340 It stressed the importance of
“…practical means of improving airport and airline security.”2341 This approach
continues today.2342 Annex 17 to the Convention on International Civil Aviation
(“Chicago Convention”) requires effective aviation security and efficient air travel
to be accomplished together.2343
The tension between security and efficiency often surfaces in discussions of cost
and convenience. Government and industry resources are finite and security
measures can be expensive. In 1985, the cost of security measures and the
customer service interests of private industry played a role in Air India’s decision
to use ineffective technology to screen checked baggage instead of relying
on passenger-baggage matching procedures. Manual methods of passengerbaggage matching were known to prevent bags from travelling without their
corresponding passengers in circumstances of high threat, but were timeconsuming and inconvenient.2344 At the time, passenger and baggage screening
was the responsibility of air carriers. As profit-seeking entities, the carriers would
not rank security as their primary concern.2345 However, Transport Canada
knew about the decision to reject passenger-baggage matching measures.2346
The evidence points to the conclusion that, in 1985, given the threat facing Air
India, costs and passenger convenience were not “reasonably balanced” with
security.
The concerns of private industry must not override necessary and otherwise
appropriate security measures. However, those monitoring civil aviation
security have suggested that this does occur and that it has led to serious gaps
in aviation security. Dr. Kathleen Sweet, an international civil aviation security
consultant, contended that considerable industry lobbying against new air cargo
security requirements in the US resulted in a delay in implementing important
2339 Exhibit P-101 CAF0039, p. 10 of 10.
2340 Exhibit P-101 CAF0039, p. 2 of 10.
2341 Exhibit P-101 CAF0039, p. 2 of 10.
2342 Exhibit P-169, p. 23 of 202.
2343 Contracting States are required to ”establish and implement a written national civil aviation security
programme to safeguard civil aviation operations against acts of unlawful interference, through
regulations, practices and procedures which take into account the safety, regularity and efficiency of
flights”: Exhibit P-181, p. 3-1, s. 3.1.1.
2344 Exhibit P-101 CAF0581, pp. 1-2; see also Exhibit P-101 CAF0637, pp. 14-15.
2345 Exhibit P-157, p. 67 of 135.
2346 Exhibit P-101 CAF0581, pp. 1-2.
�Chapter III: Civil Aviation Security in the Present Day
new measures. Passenger airlines, all-cargo carriers and freight forwarders
complained that the measures were too costly. Sweet noted, however, that
despite significant air cargo scanning requirements, air carriers in Europe and
Asia managed to remain profitable.2347
Concerns that security has been sacrificed for efficiency have also been raised in
Canada. In its 2003 report, The Myth of Security at Canada’s Airports, the Standing
Senate Committee on National Security and Defence (Senate Committee)
recommended that cargo and mail be fully screened.2348 Still, cargo and mail
do not undergo routine screening today in Canada,2349 even though both were
recognized as vulnerable to sabotage as early as 1980. In a formal response to
the Senate Committee’s recommendation, Transport Canada acknowledged
the vulnerability of air cargo, stating that the Department had begun policy
discussions with stakeholders and that pilot projects were planned to mitigate
risks and to facilitate “…the efficient movement of goods domestically and
globally.”2350 Facilitating the free flow of commerce is a stated objective of
Transport Canada’s proposed Air Cargo Security (ACS) Initiative.2351 The Senate
Committee was critical of the length of time taken to enhance air cargo security
and was troubled by the possibility that concerns about efficiency were trumping
security concerns.2352
Transport Canada officials explained that cost is “always an issue”2353 when
developing aviation security measures, but that the most relevant concern
was the safety and security of passengers.2354 Transport Canada consults with
stakeholders, most often airports and air carriers, who ultimately implement
the regulatory requirements. Advice from stakeholders about cost implications
“…helps enable the department to carry out a full assessment of costs against
security benefits…and to inform decisions about whether…proposed security
requirements should be adjusted or should be changed in any way.”2355
There is no doubt that costs must be contained, but experts and stakeholders
who appeared before the Commission were resolute that cost-effective security
measures were attainable and that delays in implementing important security
measures were unnecessary. Sweet testified that good security did not have to
be costly:
…[Y]ou need to have things in place on the ground that [are]
preventive in nature…that are common sense and do not cost
a fortune. I think there are so many smaller things that can be
done to protect the terminals, the airport facilities, and the
2347 Lufthansa and Singapore Airlines were specifically cited: Testimony of Kathleen Sweet, vol. 41, June 6,
2007, pp. 4948-4949.
2348 Exhibit P-171, p. 59 of 256.
2349 Exhibit P-169, pp. 52-53 of 202.
2350 Exhibit P-172, pp. 41-42 of 155.
2351 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5184.
2352 Exhibit P-172, pp. 42-43 of 155.
2353 Testimony of Jean Barrette, vol. 38, June 1, 2007, p. 4567.
2354 Testimony of Jean Barrette, vol. 38, June 1, 2007, p. 4567.
2355 Testimony of Jim Marriott, vol. 38, June 1, 2007, p. 4566.
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aircraft before it takes off, that are not really sufficiently being
utilized. There are certain technological things that obviously
we need to be using because technology helps us in many
areas, but I just don’t agree with the concept that technology
is the saviour of aviation security. It isn’t, it’s a component.
It’s another tool in the tool box and it needs to be used
appropriately and I don’t think that any country in the world
frankly is using every tool in the tool box.2356
Sweet gave the example of explosives detection dogs as a less costly measure
than advanced technology for cargo screening. Although dogs had limited
attention spans and needed frequent rests, they were inexpensive and highly
effective, at least for random cargo screening:
…[W]ith those big cargo pallets, you use dogs. Incredibly,
$10,000 to train them; they’ll last for a good 10 to 12 years.
Have a good trainer -- a good handler, and that dog is good.
Those dogs are good. You know, they can sniff out…5,000 to
7,000 different chemicals, organic compounds or more. Use
dogs.2357
Rodney Wallis, an expert in international civil aviation security, agreed that good
security could be economical and did not always require expensive technology.
He testified that many developing countries cannot afford the most advanced
technology and that “…[p]robably the most effective security is when you are
using people, properly managed, at very low costs. And so there is no reason
why most security issues in the [East] couldn’t be handled as effectively as
they are in the West.”2358 He stated, however, that technology was required to
handle large volumes of passengers.2359 He agreed that well-trained dogs were
an inexpensive and effective alternative for cargo screening, particularly where
resources are constrained. However, he testified that relying solely on dogs in a
major facility was not a viable option. The volume of cargo traffic made the use
of technology unavoidable.2360
Wallis testified that having the flexibility to match available resources to security
needs was essential in civil aviation security.2361 For example, passenger-baggage
reconciliation could be achieved by a variety of methods.2362 Where there are
greater resources, automated systems may be an option, but where resources
are more limited, manual systems of reconciliation could be equally effective.
2356 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4940-4941.
2357 Testimony of Kathleen Sweet, vol. 41, June 6, 2007, pp. 4954-4955.
2358 Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4292.
2359 Testimony of Rodney Wallis, vol. 36, May 30, 2007, p. 4292.
2360 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5007.
2361 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5007.
2362 Exhibit P-101 CAF0827, p. 16 of 19.
�Chapter III: Civil Aviation Security in the Present Day
Performance-based or results-oriented security measures, in which the desired
outcome is prescribed but the method for achieving it is not,2363 are essential if
civil aviation security is to have the flexibility it needs. This flexibility promotes
the use of cost-effective measures. Following the bombing of Air India Flight
182, the regulatory framework for aviation security in Canada became much
more prescriptive. Detailed regulations were adopted for such procedures as
passenger-baggage reconciliation. The prescriptive regulatory approach was
reinforced after the events of September 11, 2001.2364
Can a regulatory approach with such an important goal become too prescriptive?
According to the CATSA Act Review Advisory Panel (CATSA Advisory Panel),
the regulatory framework, at least as it applied to the Canadian Air Transport
Security Authority (CATSA), was overly prescriptive. It spelled out “…in the most
minute fashion specifically what has to be done, and by whom, in a certain set of
circumstances, as well as the manner in which to do it.”2365 The Security Screening
Order, which provided instructions to CATSA on how to conduct its screening
responsibilities,2366 was extremely detailed, leaving little room for CATSA to
make operational decisions, deploy resources efficiently or develop innovative
ways to attain its goals.2367
The CATSA Advisory Panel found that budgetary constraints placed on CATSA
as a government organization could also affect security screening performance.
For example, budgets could not be adjusted easily to changes in passenger
volume.2368 The Panel also observed that terrorist efforts to evade existing
security measures put pressure on the aviation security regime to be able to
predict the nature of future attacks, assess risks, set priorities and devise workable
solutions.2369 It further noted that the current prescriptive regulatory framework
for CATSA might be more costly and less efficient to operate, particularly when
flexibility was required.2370
The Panel stated that, with limited resources and the costliness of some security
measures, decisions must be made on a sound risk-assessment basis.2371 Smaller
airports with little traffic and less risk, for example, were subjected to the same
security screening requirements as larger Class 1 airports. Such inflexibility
in the system could be costly for both CATSA and smaller airports. The Panel
suggested that if security were maintained in a more flexible manner based on
risk assessment, more stringent requirements could be warranted for Class 1
airports, while alternative and cost-effective measures could be used at smaller
airports. The Panel noted that this had been done with security measures in
2363 Exhibit P-101 CAF0827, p. 16 of 19.
2364 Exhibit P-169, p. 91 of 202.
2365 Exhibit P-169, p. 91 of 202.
2366 Exhibit P-157, p. 114 of 135.
2367 Exhibit P-169, p. 91 of 202.
2368 Exhibit P-169, p. 104 of 202.
2369 Exhibit P-169, p. 155 of 202.
2370 Exhibit P-169, p. 91 of 202.
2371 Exhibit P-169, p. 155 of 202.
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areas other than screening. It concluded that providing CATSA with greater
flexibility in its screening operations at some smaller airports could reduce costs
and enable resources to be deployed to higher-volume airports, improving
service for the travelling public without compromising security.2372
An overly prescriptive regulatory framework can increase security risks.
Mandatory and highly standardized security procedures can easily become
predictable. This enables those who observe the system for long enough to
circumvent it. Such procedures may also mean that new equipment or measures
are adopted less quickly. An environment of changing threats to civil aviation
security requires the system to be able to respond.2373 The CATSA Advisory Panel
recommended that Transport Canada make it a high priority to develop an
approach to regulation and compliance monitoring that was more performancebased and results-oriented than the existing regulatory model.2374
Transport Canada has indicated that it favours a more performance-based
approach, after having received feedback from stakeholders during the Aviation
Security Regulatory Review.2375 The stated purpose of the review was to renew
the structure of the aviation security regulatory framework, its approach and its
content.2376 Between January and April 2008, Transport Canada held briefings
with stakeholders across Canada to introduce them to the review. Feedback
included a call for flexibility in the regulatory regime, and a recognition that
the industry was diverse and that change must be manageable. However,
Transport Canada also reported that the aviation industry at times preferred
a prescriptive approach from a business perspective because costs were then
more predictable.2377
As an example, Stephen Conrad of Transport Canada explained that one key
objective of the Department’s proposed initiative to enhance air cargo security
was to use a performance-based regulatory approach. The Department
recognized, however, that some prescriptive regulations were needed as
well.2378 Again, balance was required. In 1985, the bombing of Air India Flight
182 occurred under a broadly performance-based regulatory framework.2379
There was little guidance, and required outcomes were vaguely stated.
For the proposed Air Cargo Security Initiative, Conrad testified that Transport
Canada believed a blend of approaches to be necessary:
From a regulatory approach, there’s been some discussions
about performance based versus prescriptive regulations, and,
2372 Exhibit P-169, p. 96 of 202.
2373 Exhibit P-169, p. 92 of 202.
2374 Exhibit P-169, pp. 92-93 of 202.
2375 Exhibit P-101 CAF0827, p. 16 of 19.
2376 The scope of the review included identifying legislative issues and amendments necessary for the
Aeronautics Act and the CATSA Act and all the corresponding regulatory instruments, including
Measures, Orders and Alert Condition and Response Systems: Exhibit P-101 CAF0835, pp. 6-7 of 35.
2377 Exhibit P-101 CAF0827, p. 17 of 19.
2378 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5185.
2379 Exhibit P-169, p. 91 of 202.
�Chapter III: Civil Aviation Security in the Present Day
in our view, you need some of both. We are moving through
security management systems to more performance based
regulations, but there will always be a need in certain areas
where it’s either very technical or very complex where you
need to be prescriptive in certain areas but making sure that
we have the right balance to allow flexibility and industry to
come up with unique and innovative ways of solving new and
emerging problems.2380
Outcomes need to be prescribed in detail, and greater prescription may be
required about the methods to achieve them. Vigilant regulatory oversight will
assist in ensuring adequate compliance. Flexibility, including a balance between
prescriptive and performance-based regulatory approaches, promises to bring
cost-effective solutions to civil aviation security problems.
Adherence to good risk management decision-making principles2381 will also
assist in achieving the right balance between security and efficiency. Risk
management decision-making has, as an express objective, the best allocation of
risk control budgets in the most cost-effective manner possible.2382 Appropriate
risk management practices assess and rank all risks according to a systematic
protocol in order to distribute finite resources:
Managing the risks for which one is responsible costs money.
Since resources are always constrained, an institution’s
“risk budget” must be allocated across the full set of risks in
some defensible scheme. The principle of cost-effectiveness
(maximum benefit per unit of expenditure) can be used here,
with the proviso that no important risk can be short-changed:
In other words, both public expectations and good business
practices demand that corporations and governments
should control specified risks to a level that is regarded as
“acceptable.”2383
Dr. William Leiss, an expert in risk management retained by the Commission,
argued that cost-effective risk management practices needed to be
implemented, not only by government, but by all stakeholders involved in
civil aviation security, using common methods based on current best practices
that are understood by all, since this mandate is a shared responsibility.2384
Concerted and complementary efforts by all entities would help keep civil
aviation security costs manageable. The consultations that occurred when
security measures were being developed2385 could contribute to this process. In
2380 Testimony of Stephen Conrad, vol. 42, June 13, 2007, pp. 5185-5186.
2381 See Section 3.3 for a complete review of risk management decision-making in civil aviation security.
2382 Exhibit P-361, Tab 1, p. 3.
2383 Exhibit P-361, Tab 1, p. 9.
2384 Exhibit P-361, Tab 1, p. 8.
2385 Testimony of Jim Marriott, vol. 38, June 1, 2007, p. 4566.
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addition, discussions about cost-effective security measures should take place
during regular meetings of the Advisory Group on Aviation Security (AGAS) and
its Technical Committees and Working Groups.2386
However, there is reason to doubt that systematic risk management practices
have thus far been employed to assess all risks2387 or that stakeholders have
harmonized these processes.2388 A 2005 report of the Auditor General of Canada
that reviewed the government’s 2001 Anti-Terrorism Initiative recommended
that Transport Canada conduct “…a formal analysis of threats and risks to
the entire air transport system”2389 and that it use the results as the basis for
deploying resources.2390 Transport Canada developed a formal risk assessment
methodology in 2006.2391
Effective risk management procedures should ensure that the security system
has no gaps.2392 However, the CATSA Advisory Panel found that critical gaps
remain in areas such as air cargo and access to airside and restricted areas of
airports, and that these continue to expose passengers to considerable risk
of sabotage.2393 Transport Canada has proceeded with measures designed to
enhance passenger and baggage screening.
Wallis criticized the Passenger Protect Program, the Canadian “no-fly” list initiated
in June 2007.2394 Citing the many difficulties experienced with the US no-fly list,
Wallis questioned the rationale and effectiveness of the Canadian Program and,
consequently, the value of diverting limited resources to it:
And since we know all the problems that have been associated
with [the American] list, I really do wonder why one would
push ahead with the particular program here. I don’t see the
value of it.
…
…[I]t’s going to cost money. It probably has cost a lot of
money [already] to get this far, but it’s going to cost money to
manage and I think that there is always a limit on resources
available in any line of work, and it seems to me that money is
being misspent, misused and it could be used better perhaps
in pushing ahead on one of the other areas of security that
requires action now.2395
2386 Exhibit P-101 CAF0859, pp. 2-3 of 44.
2387 See, for example, Testimony of William Leiss, vol. 91, December 7, 2007, p. 11990.
2388 Exhibit P-101 CAF0873, p. 4 of 6.
2389 Exhibit P-411, p. 9.
2390 Exhibit P-411, p. 9.
2391 Exhibit P-101 CAF0873, p. 3 of 6.
2392 Exhibit P-361, Tab 1, p. 9.
2393 Exhibit P-169, pp. 68-69 of 202.
2394 Exhibit P-278, Tab 15, p. 1.
2395 Testimony of Rodney Wallis, vol. 41, June 6, 2007, p. 5021.
�Chapter III: Civil Aviation Security in the Present Day
This discussion of costs must take into account another major cost – that of
aviation security incidents.
3.10.2 Sustainable Funding
Resources are finite even in times of budgetary surplus. Regardless of the
economic situation, funding for aviation security must be sufficient to cover
all important risks and provide an acceptable level of overall security. In other
words, funding must be sufficient to achieve an acceptable level of overall risk.
Security gaps remain in air cargo,2396 Fixed Base Operations (FBOs) and the
General Aviation (GA) sector,2397 as well as in secure and public areas of airports.2398
Clearly, an acceptable level of overall risk has not been achieved. Resources are
now too heavily weighted towards passengers and their baggage,2399 leaving
other significant vulnerabilities.
A civil aviation security regime that adequately addresses all risks during normal
threat levels and that can respond to heightened levels of threat requires
sustained funding over time. Following the events of September 11, 2001, the
federal Budget allotted $2.2 billion over a five-year period to enhance aviation
security. The Government also introduced the Air Travellers Security Charge
(ATSC), paid by air travellers beginning in April 2002. The Air Travellers Security
Charge Act2400 created the ATSC to fund several aviation security initiatives,
including:
•
•
•
•
•
An enhanced regulatory regime;
Additional Transport Canada security inspectors;
The installation of cockpit doors on passenger aircraft;
Increased policing presence at airports;
The establishment of the RCMP’s Canadian Air Carrier Protective
Program (CACPP); and
• The creation of CATSA for passenger and baggage screening.2401
Of the $2.2 billion provided in the 2001 Budget, 88 per cent was allocated to the
last three initiatives.2402
The Government’s intention was for ATSC revenues to cover the expenditures
required for the enhanced security initiatives over a five-year period. However,
the Commission learned that there was no direct link between the ATSC collected
and subsequent security expenditures. The ATSC is managed by the Department
2396 Exhibit P-169, p. 52 of 202.
2397 Exhibit P-169, p. 55 of 202.
2398 Exhibit P-169, pp. 57, 69-70.
2399 Exhibit P-411, p. 9.
2400 S.C. 2002, c. 9, s. 5.
2401 Exhibit P-169, p. 168 of 202.
2402 Exhibit P-169, p. 168 of 202.
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of Finance, and revenues flow directly into the Consolidated Revenue Fund.
Aviation security expenditures, including those related to CATSA’s operations,
are set by parliamentary appropriations.2403 Because of the inability to track
ATSC funds once they are collected, stakeholders expressed little confidence
that ATSC revenues were ultimately or entirely invested in aviation security.2404
Most aviation industry stakeholders, including the Canadian Airports Council
(CAC), the Air Transport Association of Canada (ATAC),2405 the Air Line Pilots
Association, International (ALPA),2406 airport authorities and air carriers2407 were
strongly opposed to the ATSC. They argued that the ATSC lacked transparency,
comprehensive accounting and appropriate investment in the air transportation
industry.2408 They also complained that the security charge unfairly penalized
the aviation sector, while other modes of transportation that could equally
be targeted by terrorists were not subject to a comparable charge.2409 Most
significantly, as Captain Craig Hall, Director of the National Security Committee
of ALPA, argued, civil aviation security was a national security issue and the
federal government should bear all costs:
…[W]hether we’re talking about 9/11; whether we’re talking
about Air India; whether we’re talking about Pan Am 103;
whether we’re talking about any one of these absolutely
horrible acts…the attack was not against aviation.
The attack was not against the people who were on the
aircraft; it was not against the air carrier; it was not against the
buildings in the case of 9/11. The attack was a fundamental
attack on our way of life; on the things we hold dear as a nation
and as a people. That…falls under the heading of national
security and we believe that funding for security needs to be
borne by the federal government just the way that the federal
government funds [our] national policing force…exactly the
same way that the federal government funds our armed forces.
And it should not be put on the traveling public in terms of punitive air travelers
security charges which are…totally inappropriate…It’s a national security issue.
It should be supported by the federal government.2410
Who should pay for aviation security has long been the subject of debate. In
the 1980s, the International Air Transport Association (IATA) argued that airlines
should not pay for security measures because the government was the real
2403 Exhibit P-169, pp. 168-169 of 202; see also Testimony of Pierre Cyr, vol. 39, June 4, 2007, p. 4798.
2404 Exhibit P-169, p. 172 of 202.
2405 Exhibit P-169, p. 169 of 202.
2406 Testimony of Craig Hall, vol. 64, October 23, 2007, p. 8004.
2407 Exhibit P-169, p. 169 of 202.
2408 Exhibit P-169, p. 169 of 202.
2409 Exhibit P-169, p. 174 of 202.
2410 Testimony of Craig Hall, vol. 64, October 23, 2007, pp. 8003-8004.
�Chapter III: Civil Aviation Security in the Present Day
target when an aircraft was attacked. The attraction of the aircraft lay in the
national flag it carried on its tail, so that “…you have got a small piece of your
target country,”2411 the primary aim of terrorists:
Acts of terrorism of the type experienced by civil aviation
in the mid/late 1980s are unquestionably political in their
concept. They are certainly carried out by clandestine political
organizations who see their actions as being directed against
states. The object of the attack is an aircraft but an aircraft seen
to represent the government of registry, not the shareholders
of the company.2412
Wallis testified similarly that attacking an airport terminal in a target country
sends a powerful political message.2413
The CATSA Advisory Panel responded to arguments that government should
bear the cost of civil aviation security by noting that air travellers and the civil
aviation industry were the primary beneficiaries of aviation security measures
and should therefore pay the associated costs. Enhanced security measures
also provided a significant economic benefit to the aviation industry, without
which consumers might choose other modes of transportation, potentially
reducing the economic viability of some air carriers. The Panel argued that the
cost of funding security measures must be seen as a cost of doing business in
civil aviation.2414 It also argued that the ATSC represented a small fraction of the
additional fees that air passengers paid when they bought tickets, and that this
had a marginal impact on their purchasing decisions.2415
The CATSA Advisory Panel reviewed the arguments about the ATSC and
concluded that imposing a separate charge for security initiatives accorded with
international practice and was not unreasonable. In the US, passengers and air
carriers both pay security fees. In 2005, such fees allowed the Transportation
Security Administration (TSA) to recover about 43 per cent of its security
expenses. In Europe, security operations are funded by a combination of
stakeholders, including airports, air carriers and passengers, as well as by the
states themselves.2416 The CATSA Advisory Panel recommended an annual
public reporting about the ATSC. The Panel concluded that transparency could
be improved by showing expenditures by program or department. Reporting
capital expenditures as they were appropriated, rather than on a depreciation
basis, would also be useful.2417 The Senate Committee also recommended a
2411 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4243.
2412 Wallis, Combating Air Terrorism, p. 1.
2413 Testimony of Rodney Wallis, vol. 35, May 29, 2007, p. 4244.
2414 Exhibit P-169, p. 171 of 202.
2415 The Panel provided the following example: a $415 return ticket between Ottawa and Toronto would
cost a passenger $70 in fees and charges, including the ATSC. Out of a total price of $485, an ATSC of
$9.90 represents approximately 2 per cent of the cost: Exhibit P-169, p. 171 of 202.
2416 Exhibit P-169, p. 172 of 202, note 5.
2417 Exhibit P-169, p. 174 of 202.
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detailed accounting of how and where the ATSC was collected and spent,2418
including itemized revenues and expenditures by airport and an annual
government report on the appropriateness of the amount charged.2419
Stakeholders agreed that, if the ATSC were retained, there must be full
transparency about how the funds are distributed and the funds generated
should be used exclusively for the aviation industry, not for other modes of
transportation.2420 They argued that all or part of the ATSC should be credited to
CATSA’s appropriations, which would directly link CATSA’s funding to passenger
growth and related workload increases.2421 Surpluses could be used to fund
additional screeners and improved equipment and to compensate airports for
lost commercial opportunities because of the space requirements for pre-board
screening (PBS) checkpoints.2422
Both the CATSA Advisory Panel and the Senate Committee noted that the
ATSC had dropped significantly since its introduction. In 2002, the ATSC paid
by travellers was $24 for domestic, continental and international round trip
flights.2423 The ATSC was progressively reduced in the federal budgets of 2003,
2004 and 2005. By 2006, the ATSC dropped to $9.90 for domestic, $16.84 for
continental and $17.00 for international round trip flights.2424 As of April 2009,
these figures were $9.80, $16.68 and $17.00 respectively.2425 The CATSA Advisory
Panel reported that reductions were a result of consultations with stakeholders,
reports by independent consultants, revised forecasts in the growth of air
passenger traffic, CATSA annual reports revealing unspent operating funds
and consecutive revenue and expenditure assessments.2426 According to the
Senate Committee, however, the incremental reductions in the ATSC gave the
impression that the Government was collecting more than it needed to fund
aviation security.2427 The Committee observed that only about 25 per cent of
the improvements required in airport security had been completed by 2007. It
questioned whether the ATSC should be decreasing if the delay in completing
the improvements was a cost issue.2428
The Government has since decided to retain the ATSC to fund security initiatives,
to use surpluses to offset increased operating costs and to fund some future
capital expansions. It has also decided to review and report on the ATSC
periodically.2429
2418 Exhibit P-172, pp. 86, 105 of 155.
2419 Exhibit P-172, p. 88 of 155.
2420 See, for example, Testimony of Fred Jones, vol. 65, October 24, 2007, p. 8139.
2421 Exhibit p-169, p. 174 of 202.
2422 Exhibit P-169, p. 174 of 202.
2423 This figure was inclusive of the excise tax (the GST or the federal portion of the HST), as applicable
under s. 165(1) of the Excise Tax Act. See Exhibit P-172, p. 83; see also Exhibit P-169, p. 170 of 202.
2424 Exhibit P-172, p. 84 of 155.
2425 See Air Travellers Security Charge Act, S.C. 2002, c. 9, s. 5, ss. 12(1), 12(2).
2426 Exhibit P-169, p. 168-169 of 202.
2427 Testimony of Colin Kenny, vol. 38, June 1, 2007, p. 4676.
2428 Exhibit P-172, p. 84 of 155; see also Testimony of Colin Kenny, vol. 38, June 1, 2007, p. 4676.
2429 Exhibit P-169, p. 174 of 202.
�Chapter III: Civil Aviation Security in the Present Day
Initiatives to address current gaps in aviation security will require initial and
ongoing funding. With Transport Canada’s proposed Air Cargo Security (ACS)
Initiative, for example, the Department was considering funding options,
including whether funding from government or industry or through user-pay
models would best ensure sustainability of the program.2430 Moses Aléman, an
expert in civil aviation security, noted that air cargo on passenger flights is a
significant source of revenue for most airlines in the world – so much so that
many airlines would go bankrupt without it.2431 Conrad testified that a user-pay
model would be likely. For air cargo, this would mean that most of the additional
costs would fall to the shipper, as the end-user.2432
Based on the evidence available to it, the Commission has concluded that civil
aviation security is a core part of national security. For this reason, funding must
come primarily from government. But civil aviation security is also a shared
responsibility. Where reasonable and necessary, other sources of funding,
including industry and end-user fees, can and should be sought. If funding
comes from non-governmental sources, a meticulous accounting analysis that
clearly traces the collection and expenditure of funding should be publicly
available.
3.10.3 Conclusion
It is important to strike a reasonable balance between optimal security and a
viable air travel industry. The evidence suggests that good risk management
practices and operational flexibility can both facilitate economical solutions and
enhance security. Key to cost-effective aviation security is a regime based on best
practices in risk management, whose objective is to allocate limited resources
in a manner that minimizes overall risk. The flexibility realized through a more
performance-based, results-oriented approach not only assists in responding
to the changing threats in civil aviation security, but can also help in reducing
costs. However, just as an overly prescriptive regime can lessen security, so too
can one that is overly performance-based. A balance is required here as well.
Rigorous regulatory oversight must be in place to ensure compliance with
specific security objectives.
Regular, sustained funding is required to maintain security at an acceptable
level. Governments must be vigilant in times of fiscal restraint to ensure a level
of funding that reflects the seminal importance of aviation security. While
funding may require a mix of sources, including government, industry and users,
decisions about funding are ultimately political. No matter which approach is
taken, it must be principled, transparent and consistent.
2430 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5186.
2431 Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4246.
2432 Testimony of Stephen Conrad, vol. 42, June 13, 2007, p. 5201.
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Epilogue
The recommendations in this volume address current threats to aviation
security, but those threats are constantly evolving. Additional security measures
not contemplated by these recommendations may be required in future. An
incident that occurred after this volume was completed illustrates this.
On December 25, 2009, a Northwest Airlines aircraft en route from Amsterdam
to Detroit narrowly escaped disaster when a passenger failed in his attempt to
detonate explosives. He had managed to board in Amsterdam with the explosives
hidden in his underwear. He apparently tried to detonate the explosives as the
aircraft approached Detroit. A small fire resulted, but there was no explosion.
Other passengers and the crew subdued him and the aircraft landed safely.
US President Barack Obama immediately ordered an inquiry. The inquiry report
revealed significant security failures:
…[T]he US government had the information – scattered
throughout the system – to potentially uncover this plot and
disrupt the attack. Rather than a failure to collect or share
intelligence, this was a failure to connect and understand the
intelligence that we already had.2433
The Government of Canada responded to the Northwest Airlines incident.
In a January 5, 2010, news release the Government announced that it would
introduce full body scanners at major Canadian airports as a voluntary screening
alternative for passengers who did not want to undergo a physical search.2434
The body scanner is said to enhance the ability to detect articles hidden under
clothing. The release stated that the Government would soon issue a “request for
proposal” for passenger-behaviour observation in screening at major Canadian
airports.
The news release did not discuss the central issue in the December 25 incident:
the failure of the US government to process the intelligence it held about the
passenger that might have led to his apprehension before he boarded the
aircraft.
The Northwest Airlines incident illustrates the point, made in Volume One, that
terrorist threats are constantly evolving and so require flexibility in security
measures. Attempts by suicidal passengers to destroy aircraft have occurred
2433 The White House, Office of the Press Secretary, Remarks by the President on Strengthening Intelligence
and Aviation Security, January 7, 2010: http://www.whitehouse.gov/the-press-office/remarks-presi
dent-strengthening-intelligence-and-aviation-security.
2434 Transport Canada, News Release, “Government of Canada invests in full body scanners and behaviour
screening to further enhance security at Canadian airports”: http://www.tc.gc.ca/eng/mediaroom/
releases-2010-h002e-5794.htm.
�Chapter III: Civil Aviation Security in the Present Day
before, but the method used in this incident to hide explosives was new. The
changing threat environment highlights the importance of a multi-layered
approach to security so that an individual who evades detection by one layer
can be caught by another. Unfortunately, this incident also shows that, even
with a multi-layered approach, absolute security is almost impossible to achieve.
Imperfect application of layers of security – such as inadequate intelligencesharing and analysis, or passenger screening – can combine to create dangerous
vulnerabilities. It was mere good fortune that the explosive device carried by
the Northwest Airlines passenger did not detonate with tragic consequences.
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�VOLUME FOUR
AVIATION SECURITY
CHAPTER IV: RECOMMENDATIONS
I. Oversight of Aviation Security in Canada
The Commission endorses the Government’s decision that responsibility for
national civil aviation security should remain with Transport Canada, and makes
the following recommendations about oversight of aviation security:
Recommendation 1
1. Canada’s regulatory regime must comply with the standards specified
in Annex 17 to the Convention on International Civil Aviation (“Chicago
Convention”) and should comply with its recommended practices.
1.1. Annex 17 standards must be considered minimum standards that
Canada should not only meet, but exceed. Canada should not permit
security deficiencies that would result in it being required to file a
difference with the International Civil Aviation Organization (ICAO)
with respect to any Annex 17 standard.
1.2. In addition to embracing Annex 17 at its core, Canada’s national
regulatory regime must be informed by international best practices
and must address Canada’s unique threat environment.
1.3. Transport Canada should exercise robust regulatory oversight over
civil aviation stakeholders through regular inspection, testing,
auditing and enforcement, carried out by a sufficiently trained,
qualified and resourced inspectorate.
Recommendation 2
2. In accordance with Annex 17, Transport Canada should establish and
implement a single, written National Civil Aviation Security Program
that comprehensively safeguards civil aviation against acts of unlawful
interference.
2.1. The National Civil Aviation Security Program should set out the full
slate of legislative instruments, measures, policies, practices and
procedures, as well as the roles and responsibilities of Transport
Canada, airport operators, air carriers, Fixed Base Operations (FBOs),
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the General Aviation (GA) sector, the Canadian Air Transport Security
Authority (CATSA), the police of local jurisdiction, airport tenants,
caterers and all other entities involved in implementing the Program.
2.2. Transport Canada should require all entities with responsibilities in
civil aviation security, as outlined in Recommendation 2.1, to establish
and implement written security programs that are applicable to their
operations and appropriate to meet the requirements of the National
Civil Aviation Security Program. At a minimum, these programs should
include measures to prevent unauthorized access, assign securityrelated duties, respond to threats and breaches of security, and allow
for periodic review and updating of the programs.
2.3. Transport Canada should require all civil aviation stakeholder
programs to be submitted to it for approval.
Recommendation 3
3. The Commission supports continued coordination between all industry
and government entities responsible for civil aviation security through
the Advisory Group on Aviation Security (AGAS). AGAS must continue to
promote collaboration, shared objectives and shared understanding, and
common solutions to aviation security problems.
3.1. Transport Canada should require all airports to establish an airport
security committee to help in implementing their respective airport
security programs.
3.2. Consideration should be given to the inclusion of the National
Security Advisor (NSA) in AGAS discussions and decisions.
Recommendation 4
4. In addition to adhering to Annex 17 standards, a regulatory regime should
observe a number of key principles:
a.
Ongoing, informed assessment of past, present and future
threats to civil aviation, with timely proactive adjustments made
to the regime as needed;
b.
Adherence to an appropriate national risk management protocol,
as described in Recommendation 6;
c.
Effective, multi-layered and overlapping security measures,
policies, practices and procedures that provide redundancies to
address all significant risks;
�Chapter IV: Recommendations
d.
A flexible, performance-based approach to regulation, in which
objectives are set to meet the highest standards, with a more
prescriptive approach employed where necessary because of
complexities and context;
e.
Robust emergency response planning, with well-defined roles
and responsibilities; and
f.
Establishment of a culture of security awareness and constant
vigilance.
Recommendation 5
5. Independent experts should conduct a comprehensive review of aviation
security every five years.
II. Risk Management
Recommendation 6
6. Transport Canada should ensure that acceptable levels of risk control
have been achieved in all areas of risk pertinent to civil aviation security in
Canada. In doing so, it should adopt a national risk management protocol
based on best practices and using a performance standard of continuous
improvement, delivering levels of risk in all relevant areas that are as
low as reasonably achievable. Where acceptable levels have not been
achieved, resources must be allocated on a priority basis to address the risk
appropriately.
6.1. To facilitate clear communication and understanding, Transport
Canada should require those responsible for aviation security to
follow a common set of risk management protocols consistent
with the national protocol. Transport Canada should require all
stakeholders to:
a.
Provide a detailed description, in their respective security
programs that are submitted to Transport Canada for acceptance
or approval, of the risk management protocol employed for their
operations;
b.
Systematically employ these risk management protocols in the
development and implementation of aviation security measures,
policies, practices and procedures for their operations; and
c.
Promote coordinated risk management decision-making by
engaging in ongoing dialogue with Transport Canada and other
stakeholders through participation in AGAS and its technical
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committees, and elsewhere as necessary, to ensure clarity,
precision and a shared understanding of terminology and
methodologies.
6.2. Each year, the Minister of Transport should certify that the civil
aviation security regime in Canada possesses:
a.
A common set of protocols for carrying out risk management,
based on current best practices;
b.
A performance standard of continuous improvement, delivering
levels of risk in all relevant areas that are as low as reasonably
achievable; and
c.
Acceptable levels of risk control in all domains of risk.
6.3. Periodic assessment of Transport Canada’s risk management protocol
by the Auditor General is encouraged.
Recommendation 7
7. There should be no significant gaps in civil aviation security. When a
significant deficiency is identified, the best interim measures must be
implemented to address the risk while more permanent measures,
including technological solutions, are developed.
7.1. The civil aviation security regime must be capable of redeploying
resources so that all significant threats are adequately addressed and
measures do not disproportionately emphasize a particular threat,
such as the threat posed by passengers and baggage.
7.2. As soon as improved equipment and measures become available,
they should be deployed.
7.3. If, after a systematic risk management process, a decision is made not
to implement measures that address a given threat, measures should
nonetheless be designed for emergency implementation if the threat
subsequently becomes imminent.
7.4. Legislative initiatives to improve civil aviation security should not be
subject to unreasonable delay.
Recommendation 8
8. Transport Canada and others responsible for civil aviation security should
foster a culture of security awareness and constant vigilance. As part of
this endeavour, a comprehensive public education campaign should be
developed to increase awareness of the measures in place for the public’s
protection and the role the public can play in promoting security.
�Chapter IV: Recommendations
III. Use of Intelligence
Recommendation 9
9. Transport Canada must provide timely, relevant and actionable
intelligence information to civil aviation stakeholders, with the primary
recipients being airport operators, air carriers, pilots, CATSA, FBOs and GA
facilities.
9.1. Transport Canada should be guided by the “need to share” principle
and should cooperate more closely with key stakeholders to ensure
they receive the intelligence information they require.
9.2. Aviation stakeholders should provide Transport Canada with feedback
about the quality and timeliness of intelligence they receive. Where
concerns are raised, a collaborative approach to resolving those
concerns should be taken.
9.3. In addition to threats related to airports and air carriers, aviation
stakeholders should be kept abreast of changes to the general threat
environment. Regular security briefings for all stakeholders, including
front-line workers, should occur.
IV. Airport Security
Recommendation 10
10. Non-Passenger Screening (NPS) should be improved at all designated
airports in Canada on a priority basis.
10.1. Full (100 per cent) NPS should be implemented upon entry to
restricted areas at all Class 1 and Class 2 airports, with random NPS
upon exit at Class 1 airports.
10.2. NPS upon entry at Class Other and upon exit at Class 2 and Class
Other airports should be implemented as necessary, based on risk.
Recommendation 11
11. Perimeter security should be improved at all designated airports on a
priority basis.
11.1. Perimeter security should be enhanced with physical and
technological barriers and appropriate monitoring, based on risk.
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11.2. Transport Canada should conduct intrusion tests of airport
perimeters.
Recommendation 12
12. All vehicles entering airside and restricted areas at Class 1 airports should
be subject to a full search, including full NPS of occupants. Vehicles
entering Class 2 airports should be searched as necessary, based on risk.
12.1. Where supply chain security measures have been applied to vehicles,
a search may be confined to the areas of the vehicle that have not
been secured, and should include full NPS of occupants.
CATSA’s mandate should be expanded on a priority basis to include
searching vehicles and screening their occupants. CATSA should be
provided with the necessary funding.
Recommendation 13
13. The Restricted Area Identification Card (RAIC) should be implemented
at all 89 designated airports on a priority basis, and should be expanded
to include perimeter security, including vehicle gates, FBOs and tenant
facilities.
13.1. RAICs, Restricted Area Passes (RAPs) and temporary or visitor passes
should be worn and clearly displayed at all times by all individuals
who access restricted and airside areas of the airport.
13.2. All access control devices, including RAICs and RAPs, should be
implemented in a manner that prevents “piggybacking,” “tailgating”
and other means of gaining unauthorized access.
13.3. All RAICs and RAPs, as well as employee uniforms and any other
form of airport identification belonging to former airport employees,
should be diligently accounted for, retrieved and/or deactivated.
Appropriate penalties should be imposed for failing to return such
items.
Recommendation 14
14. For FBOs and GA facilities attached to designated airports, access to the
airports’ airside and restricted areas should be strictly controlled through
RAICs, full NPS and vehicle searches.
Recommendation 15
15. Transport Canada should improve its policies and procedures governing
transportation security clearances.
�Chapter IV: Recommendations
15.1. Transport Canada and the RCMP should increase efforts to share
information on individuals applying for a transportation security
clearance to work at airports.
15.2. Transport Canada should establish a formal process, including
specific criteria, for reviewing applications for security clearances
made by individuals with a criminal record.
15.3. Transport Canada should reinstate credit checks as a component
of the security clearance process before issuing an RAIC for nonpassengers who require access to restricted areas at airports.
15.4. Transport Canada should take steps to reduce the delay in
processing applications for transportation security clearances.
Recommendation 16
16. Security measures should be developed and implemented to protect
public areas of air terminal buildings at Class 1 airports, based on risk.
Recommendation 17
17. All airports should develop and implement a security awareness and
constant vigilance program that includes training for all airport workers
employed in air terminal buildings and airside portions of airports.
V. Passenger and Baggage Screening
Recommendation 18
18. Current methods for conducting pre-board screening (PBS) are
comprehensive, but improvements are required in their application.
18.1. Although technology has enhanced the ability to effectively conduct
PBS, that technology should rarely be relied upon exclusively.
When selecting equipment and procedures for passenger screening,
consideration should be given to individual rights, including privacy
rights and the rights guaranteed under the Canadian Charter of
Rights and Freedoms. In particular, any consideration of behavioural
analysis techniques as a tool for PBS must include a thorough
review. Concerns about the risk of racial, ethnic and religious
profiling must be given specific and careful attention. If a
decision is made to implement such a program, the following
must be addressed: effectiveness of the measure; competencies,
training (initial and ongoing) and testing required of those
who would conduct the analysis; and oversight requirements.
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18.2. Given the importance of the “no search, no fly” rule and the potential
impact of security measures on individual rights, Transport
Canada and the Office of the Privacy Commissioner of Canada
should collaborate to devise tools and criteria to evaluate proposed
security measures.
Recommendation 19
19. Although the multi-level system in place for Hold Bag Screening (HBS) is
comprehensive, some improvements are required.
19.1. Baggage should never be loaded onto an aircraft without a
passenger-baggage reconciliation. Interlined baggage, in
particular, must be subjected to comprehensive passenger-baggage
reconciliation prior to being loaded.
19.2. Consideration should be given to whether the current administrative
monetary penalties for non-compliance with passenger-baggage
reconciliation procedures provide sufficient deterrence and reflect
the gravity of the potential consequences of non-compliance.
19.3. Although technology has enhanced the ability to effectively screen
checked baggage, that technology should rarely be relied upon
exclusively.
VI. Use of Technology and Explosives Detection Dogs
Recommendation 20
20. Transport Canada should ensure that all screening technology is reliable
and effective. This requires assessment not only during the development
and deployment stages, but also continual assessment during conditions
of actual use.
20.1. Transport Canada should ensure that screening officers operating
equipment are adequately trained and regularly tested to ensure
their competence.
20.2. Transport Canada should ensure that screening equipment is
properly maintained.
Recommendation 21
21. The use of explosives detection dogs should be evaluated and expanded
as appropriate. Consideration should be given to their use in:
�Chapter IV: Recommendations
a.
PBS and HBS;
b.
Screening of air cargo; and
c.
Perimeter security, including the screening of vehicles.
VII. Screeners
Recommendation 22
22. CATSA should find long-lasting solutions to resolve difficulties in the
recruitment of appropriately qualified screening contractors and in the
recruitment, retention, training and oversight of competent screening
officers to ensure the highest quality of screening.
22.1. Because of the voluminous material that all screening officers are
required to master, consideration should be given to specifying
a minimum educational requirement for them in the Designation
Standards for Screening Officers.
22.2. Given the importance of their work, screening officers should
receive appropriate compensation and employee benefits to reduce
difficulties in retaining them.
22.3. Because of the challenges associated with their duties, particularly
repetitive, stressful and monotonous work that only rarely results
in finding prohibited items, CATSA should make
ongoing efforts to instill greater sense of mission and morale among
screening officers:
a.
Consideration should be given to creating an employment
structure that provides opportunities for advancement; and
b.
Consideration should be given to holding regular briefings for
screening officers, particularly at Class 1 airports, to provide
relevant intelligence updates, as well as information relating
to prohibited items, methods of concealment and information
contained in recent Transport Canada bulletins.
22.4. Screening officer duties should focus solely on preventing unlawful
interference with civil aviation. Screening officers should not be
mandated to search for contraband or other items that may interest
law enforcement, but that are not relevant to CATSA’s mandate.
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22.5. Given the changing nature of threats to aviation, training of
screening officers should be continuous. Training should include
instruction in practical skills and in the detection of improvised
explosive devices (IEDs).
22.6. Training of screening officers should be designed to foster a
general culture of security awareness and constant vigilance.
22.7. CATSA should continue to use training and motivational tools such
as X-ray Tutor (XRT) and the Threat Image Projection System (TIPS).
22.8. Where screening officer deficiencies are identified, immediate steps,
primarily additional training, should be taken to ensure competence.
22.9. Transport Canada should define clear and consistent system-wide
performance standards for CATSA, in addition to the failure
rate for infiltration tests, against which compliance and
effectiveness can be assessed. Performance measures should define
whether CATSA’s performance is satisfactory or unsatisfactory:
a.
This should include agreement between Transport Canada and
CATSA regarding the threshold for failure of infiltration tests and
the specific elements that constitute failure; and
b.
CATSA’s response to failed infiltration tests should emphasize
re-training, and should include documentation of corrective
action taken and timely written responses to Transport Canada
enforcement letters and related enquiries.
22.10. Whenever the Auditor General of Canada deems it necessary, the
Auditor General should review the changes implemented by CATSA
to address problems with recruitment, retention, training, testing
and oversight of screening officers.
VIII. Air Cargo and Other Non-Passenger Items
Recommendation 23
23. A comprehensive system for screening air cargo (including mail) for
transport on passenger and all-cargo aircraft should be implemented
as an urgent priority. Canada’s system of Known Shippers should be
discontinued as soon as possible, and a system of Regulated Agents put in
its place in accordance with international best practices. In designing and
implementing the system, the Government should exceed the minimum
requirements of Annex 17 of the Chicago Convention, with the aim of
achieving the highest possible standards of air cargo security.
�Chapter IV: Recommendations
23.1. The Commission supports Transport Canada’s proposed Air Cargo
Security (ACS) Initiative and recommends its implementation on a
priority basis.
23.2. Under the new regime, all air cargo to be loaded onto passenger
aircraft should be screened to a level comparable to that currently
provided for hold baggage.
23.3. All air cargo to be loaded onto all-cargo aircraft should be screened
to a level deemed appropriate, on the basis of risk. When air cargo is
transferred from all-cargo to passenger aircraft, additional screening
should be conducted commensurate with screening requirements
that normally apply to air cargo carried on passenger aircraft.
23.4. Screening for air cargo should take into account the risk posed by
new, emerging or otherwise unaddressed threats as they arise.
23.5. The evaluation of technologies to screen consolidated or bulk
cargo should be accelerated.
23.6. A centralized screening service for all air cargo requiring screening at
the airport should be considered for all Class 1 airports.
23.7. CATSA, with its screening mandate, expertise, equipment and
dedicated personnel, is the appropriate authority to conduct
air cargo screening services at the airport and may have a
role to play in the oversight and inspection of screening
by Regulated Agents. CATSA’s mandate should be expanded by
legislation to include the screening of air cargo.
23.8. Care must be taken to provide adequate training for all air
cargo screeners. This should include rigorous testing for required
competencies. The development and implementation of computer
software training and screening aids should be accelerated.
23.9. Transport Canada should employ a sufficient number of
security inspectors trained and qualified for inspecting, testing,
auditing and enforcing the new air cargo security regime.
23.10. Funding for the ACS Initiative must ensure that it remains
sustainable and can respond to emerging or otherwise unaddressed
threats.
23.11. Annual progress reports on enhancements in air cargo security
should be provided to Parliament by the Minister of Transport for
each of the five years following release of the Commission’s report.
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Recommendation 24
24. The new security regime for air cargo must be governed by legislation, not
by non-binding Memoranda of Understanding. The security regime should
reflect international best practices.
24.1. Legislative provisions should include, but not be limited to, the
following:
a.
Mandatory security programs for all Regulated Agents, with
formal approval from Transport Canada;
b.
Clear definitions for terminology, including the terms “screen,”
“inspect” and “search”;
c.
Measures and technologies for screening air cargo;
d.
Screening requirements for all Regulated Agents, whether
shippers, freight forwarders or air carriers;
e.
Appropriate training requirements for all Regulated Agents, their
employees and sub-contractors;
f.
Requirements to maintain the security of off-airport premises to a
specified level wherever cargo is handled, stored and potentially
accessed;
g.
Requirements to maintain the security of off-airport vehicles to
a specified level for the transport of air cargo to its final point of
transfer;
h.
Requirements for ensuring appropriate access and security
controls for air cargo while on airport premises, during transfer to
the aircraft and on loading onto the aircraft;
i.
Mandatory security clearances, including a credit check, for all
workers who have access or potential access to air cargo from the
point of receipt to the point of transfer, including sub-contractors
engaged to handle cargo on behalf of a Regulated Agent;
j.
A system of inspection, testing, auditing and enforcement by
Transport Canada or its designated agent; and
k.
Methods of enforcement, including administrative monetary
penalties and other penalties that reflect the potential gravity of
the consequences of non-compliance.
�Chapter IV: Recommendations
24.2. Regulated Agent security programs should describe all measures,
practices, policies and procedures applicable to air cargo security
that have been, or will be, implemented by the Regulated Agent,
including security awareness programs and risk management
protocols.
Recommendation 25
25. A supply chain security regime should be established for other nonpassenger items (such as stores and catering) that are prepared at offairport premises before being delivered to an aircraft.
IX. Fixed Base Operations and General Aviation
Recommendation 26
26. As an urgent priority, all passengers and carry-on and checked baggage
boarding flights at FBOs and GA facilities that feed into designated
airports or are attached to designated airports should be screened to a
level comparable to passenger and baggage screening for scheduled
commercial flights.
26.1. As an equally urgent priority, all non-passengers entering such FBO
and GA facilities should be screened to an acceptable level, based on
appropriate risk management protocols;
26.2. All non-passenger items (including air cargo) to be placed on flights
departing from such FBO and GA facilities should be screened to an
acceptable level, based on appropriate risk management protocols.
26.3. On a priority basis, all FBO and GA facilities should develop
and implement a security awareness and constant
vigilance program that supports a “neighbourhood
watch” approach to security. An accompanying training
program should be developed and implemented for all personnel to
foster a culture of security awareness and constant vigilance.
26.4. CATSA should oversee security screening services at FBOs and
GA facilities. If CATSA’s resources are engaged, additional
government funding should be provided.
26.5. The aviation security requirements for FBOs and GA facilities
should be governed by legislation.
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XI. Duty to Warn and Transparency
Recommendation 27
27. The development of a public warning system for threats against airlines
should receive further study. Issues include:
a.
international experience with such systems;
b.
the circumstances under which public warnings of threats have
occurred in Canada;
c.
the proper balance between security and industry interests;
d.
the proper balance between the need for secrecy and the need
to instill public confidence;
e.
the appropriate threshold at which a public warning should be
issued; and
f.
the policy and legal implications, including possible liability to
air carriers whose operations could be compromised by a public
warning.
Recommendation 28
28. In general, greater transparency in aviation security is required to
inspire confidence in the system, to provide assurance that resources
are effectively allocated and to ensure that government and industry
stakeholders remain accountable for managing this mandate.
28.1. The Commission does not recommend publishing intrusion test
results. If a decision is nonetheless made to publish them,
publication should only occur after enough time has passed to
enable vulnerabilities identified by the tests to be addressed.
XII. Funding
Recommendation 29
29. As a core mandate directly related to national security, civil aviation
security should receive sustained funding, regardless of prevailing
economic circumstances, to maintain an acceptable level of security.
�Chapter IV: Recommendations
29.1. Funding for civil aviation security should be derived primarily from
government.
29.2. Funding priorities should be directed to areas of risk that have not
achieved an acceptable level of risk control, such as air cargo and
control of access to airside and restricted areas of airports.
29.3. If additional funds are required for initiatives related to passenger
and baggage security, the Commission supports the continuance of
an Air Travellers Security Charge (ATSC). However:
a.
The collection, retention and disbursement of the ATSC should
be subjected to comprehensive and transparent accounting. All
revenue from the ATSC should be traceable and should be used
solely for civil aviation security;
b.
An annual report of ATSC revenues as well as expenditures by
program or department is recommended; and
c.
CATSA should be the main beneficiary of funds from the ATSC.
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�Chapter IV: Recommendations
APPENDIX A
Chronology:
Significant Acts of Unlawful Interference with
Civil Aviation
1931
February 21, 1931
First recorded incident of air terrorism against
commercial aviation. A Pan American Airways
mail aircraft was hijacked in Peru. The aircraft
was commandeered by a group of Peruvian
revolutionaries with the intention of dropping
propaganda leaflets. There were no casualties.1
1933
October 10, 1933
First proven case of sabotage in the history of
commercial aviation. A United Airlines Boeing 247
crashed while en route from Cleveland, Ohio to
Chicago, Illinois. The aircraft was destroyed by an
explosive device using nitroglycerine, likely attached
to a timing device. The bomb was thought to have
been placed on board, possibly concealed in a
brown package. All 7 on board were killed.2
1948
April 6, 1948
First case of air piracy related to escape from the Iron
Curtain. A CSA flight was hijacked from Prague to
Bratislava, Czechoslovakia. The aircraft was seized by
roughly three-quarters of the 26 persons on board
and landed safely in an American zone of Germany,
near Munich.3
1949
September 9, 1949
1
2
3
4
Near Sault Au Cochon, Quebec, a bomb exploded
in a forward baggage compartment of a Quebec
Airways (Canadian Pacific) DC-3, killing 23 people.
Albert Guay and two accomplices (the bomb
maker and the person who delivered the package
containing the bomb to the plane) were tried,
convicted and executed.4 Guay’s wife had been
insured, with Guay as the beneficiary. Aircraft
bombings to support insurance scams with murder
or suicide as the means was to become a feature of
aviation sabotage in the 1950s and 1960s.
Exhibit P-448, p. 10.
Exhibit P-448, p. 10.
Exhibit P-448, p. 10.
Exhibit P-35, p. 36; Exhibit P-147, p. 14.
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1950
April 13, 1950
An explosive device detonated in the lavatory of a
British European Airways aircraft flying from London,
UK, to Paris. Of the 32 persons on board, 1 crew
member was seriously injured. The aircraft landed
safely.5
1952
September 24, 1952
A bomb placed in a suitcase exploded aboard a
flight from Mexico City to Oaxaca de Juarez, Mexico.
Two passengers suffered injuries.6
1955
April 11, 1955
An Air India International Lockheed 749A,
originating at Hong Kong, was carrying Chinese
delegates and journalists on their way to a
conference in Bandung, Indonesia. A bomb
exploded while the aircraft flew over the South
China Sea. A Chinese aircraft cleaner had reportedly
been bribed to place an incendiary device in the
starboard wheel well, an early example of an airport
worker being used to aid in the sabotage of an
aircraft. Only 3 of the 19 persons on board survived.
Political terrorism was the apparent motive behind
the sabotage of this aircraft.7 It is thought that
Chinese Premier Zhou Enlai was the target of this act
of sabotage. His travel plans had been kept secret
and he left China three days later.8
November 1, 19559
A United Airlines flight exploded over Longmont,
Colorado. All 44 on board were killed. A bomb
had been placed on board by a saboteur, who had
purchased life insurance on his mother, a passenger
on the flight. He was reportedly inspired by the
1949 Albert Guay Affair in Quebec.10
5
6
7
8
9
10
Exhibit P-448, p. 13.
Exhibit P-448, p. 14.
Exhibit P-448, p. 15.
Exhibit P-447, p. 1.
Exhibit P-447, p. 2.
Exhibit P-448, pp. 94-95.
�Chapter IV: Recommendations
1956
March 4 and April 27, A Greek Cypriot EOKA bombing campaign against
British rule in Cyprus led to the destruction of a
1956
British aircraft11 by an explosive device in a cargo
compartment while it was parked at Nicosia airport
on March 4, 1956. A Dakota was destroyed on April
27, 1956.12
1959
A Pan Am flight was hijacked during a coup in Peru.13
A Cuban internal flight was hijacked by Raúl Castro in
1959 as the first political hijacking.14
November 1,1958
A Cuban airliner was hijacked by the Twenty-Sixth
of July Movement and forced to attempt a night
landing in a remote airfield in Cuba. The aircraft
crashed, killing 17 of the 20 people on board.15
September 8, 1959
A bomb in a suitcase was suspected in the mid-air
explosion of a Douglas DC-3 in Mexico. The aircraft
landed safely. The saboteur was the only person
killed when he was ejected from the aircraft during
the explosion. Seven others suffered injuries.16
1960
January 6, 1960
11
12
13
14
15
16
17
Exhibit P-35, p. 36.
Exhibit P-35, p. 36.
Exhibit P-35, p. 36
Exhibit P-35, p. 36.
Exhibit P-35, p. 36.
Exhibit P-448, p. 17.
Exhibit P-448, pp. 96-98.
An explosion occurred in the passenger cabin of a
National Airlines aircraft while in flight. The blast
beneath a seat caused the DC-6B to crash into the
ground in North Carolina. All 34 persons aboard
were killed. A suicide-for-insurance scheme was
suspected.17
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1961
May 1, 196118
First ever successful hijacking of a domestic carrier
in the United States. The aircraft was forced to fly
to Communist Cuba. Puerto Rican born Abntulio
Ramirez Ortiz19 forced the National Airlines Convair
44020 to fly to Havana at gun point, where he was
given asylum. He was imprisoned for twenty years
when he returned to the United States in 1975.21
May 10, 1961
An Air France aircraft crashed in the Sahara Desert,
killing all 78 persons aboard. The airline concluded
that the most probable cause was sabotage with a
nitrocellulose explosive.22
1962
May 22, 1962
First successful sabotage of a commercial jet airliner.
A Continental Air Lines Boeing 707 crashed along
the Iowa/Missouri border in the United States,
killing all 45 persons aboard. Dynamite had been
detonated in the used towel bin in the lavatory.23
1965
A grenade was thrown at the Aden airport terminal
in Yemen, injuring 7 British children.24
1966
El Condor nationalists hijacked an Argentinean
aircraft from Buenos Aires to the British-ruled
Falkland Islands in a bid to bring attention to
Argentina’s claim to the islands. They eventually
surrendered their hostages and were returned to
Argentina by British authorities. 25
November 22, 196626
18
19
20
21
22
23
24
25
26
27
Exhibit P-448, p. 18.
Exhibit P-35, p. 36.
Exhibit P-448, p. 18.
Exhibit P-35, p. 36.
Exhibit P-448, pp. 18-19.
Exhibit P-448, p. 98.
Exhibit P-35, p. 36.
Exhibit P-35, p. 36.
Exhibit P-448, p. 170.
Exhibit P-448, p. 21.
An Aden Airways Douglas DC-3 aircraft was blown
up in mid-air near Aden, Yemen, killing all 30 persons
on board. The bomb had been placed in hand
baggage carried into the cabin.27
�Chapter IV: Recommendations
1967
June 30, 1967
An aircraft carrying Katangan rebel leader Moise
Tshombe was hijacked en route to Ibiza, Spain, and
forced to land in Algeria in a bid to extradite him
to his native Congo. Algeria kept him under house
arrest until he died two years later.28
October 12, 196729
A British European Airways Comet aircraft was
destroyed by a bomb, detonated in the passenger
cabin, while it flew over the Mediterranean Sea. All
66 persons on board were killed.30
1968
February 21, 1968
A Delta Airlines DC-8 was forced to fly to Havana,
Cuba, in the first successful hijacking of a US
commercial airliner since 1961. The hijacker was
granted political asylum.31 This hijacking to Cuba
was followed by a number of such incidents in 1968
involving American and other countries’ aircraft. In
addition, there were failed attempts to take seized
aircraft to Cuba. Hijackings to Cuba continued
throughout the next two decades.32
July 23, 1968
Popular Front for the Liberation of Palestine
supporters seized an El Al Boeing 707 in Rome,
Italy, and diverted it to Algeria, where 32 Jewish
passengers were held hostage for five weeks.33 This
was the first hijacking of a commercial flight in or out
of the Middle East.34
28
29
30
31
32
33
34
Exhibit P-35, p. 37.
Exhibit P-448, p. 119.
Exhibit P-448, p. 119.
Exhibit P-35, p. 37.
For example: 12 March – National; 21 March – Avensa (Venezuela); 19 June – Viasa (Venezuela); 29
June – Southeast; 1 July – Northwest; 17 July – National; 20 September – Eastern; 22 September –
Avianca (Colombia); 6 October – Aeromaya (Mexico); 4 November – National; 18 November – Mexicana
(Mexico); 23 November – Eastern; 24 November – Eastern; 30 November – Eastern; 11 December –
TWA; 19 December – Eastern. See Exhibit P-448, pp. 23-25.
Exhibit P-35, p. 37; see also Exhibit P-263, Tab 4.
Exhibit P-448, p. 67.
421
�422
Volume Four: Aviation Security
December 26, 1968
An Israeli was killed in a Popular Front for the
Liberation of Palestine machine gun attack on an El
Al aircraft at Athens airport, Greece. Two terrorists
were captured but later released by the Greek
government after a Greek aircraft was hijacked to
Beirut. Three days after the Athens attack, Israeli
commandos raided Beirut airport in Lebanon and
blew up 13 Arab airliners in retaliation.35
1969
February 18, 1969
Palestinian terrorists attacked an El Al Boeing 707 on
the runway at Zurich Airport in Switzerland, raking
the fuselage with gunfire and killing the pilot and
3 passengers. An Israeli sky marshal/security guard
returned fire, killing one of the terrorists.36
August 29, 1969
A Trans World Airlines (TWA) aircraft was hijacked
by the Popular Front for the Liberation of Palestine
terrorists after taking off from Rome, Italy. It
was forced to fly to Damascus, Syria. All of the
passengers and crew were released unharmed, but
the terrorists detonated a bomb in the cockpit of the
aircraft.37 The hijackers were led by Leila Khaled who
was to lead the group responsible for the Dawson’s
Field incident in 1970.
December 22, 1969
An Air Vietnam Douglas DC-6B, on a scheduled
domestic flight over South Vietnam, from Saigon
to Da Nang, sustained substantial damage when
an explosive device detonated in its cabin as it
descended to land at Nha Trang, an en-route stop.
Most of the 34 persons killed were on the ground.
Among the 77 persons on board the aircraft, all but
10 passengers survived. The bomb had exploded
near the front left lavatory.38
35
36
37
38
Exhibit P-35, p. 37. See also Exhibit P-448, p. 67
Exhibit P-35, p. 37.
Exhibit P-35, p. 37.
Exhibit P-448, pp. 121-122.
�Chapter IV: Recommendations
1970
February 10, 1970
Three Arab terrorists attempted to hijack an El
Al Boeing 707 at Munich airport, Germany, but
were thwarted by the pilot who grappled with a
terrorist in the terminal lounge. One Israeli was
killed and 11 others were wounded.39
February 21, 1970
Shortly after take-off, a Swissair aircraft reported a
suspected explosion in the aft compartment. The
aircraft crashed into a forest, killing all 47 persons on
board. The bombing was suspected to be the work
of Arab terrorists.40
September 6, 197041
The first coordinated multiple hijacking resulted in
the events that took place at Dawson’s Field, Jordan.
TWA, Swissair and, three days later, a BOAC aircraft,
along with more than 300 hostages, were hijacked
and flown to an abandoned RAF field in the Jordanian
desert42 by the members of the Popular Front for the
Liberation of Palestine. The BOAC VC-10 was seized
following the capture of the ringleader, Leila Khaled,
during a failed attempt to hijack an El Al aircraft, a
target of the original plan. The BOAC hijacking was
used as a bargaining chip to free Khaled, who was
being held in London. Two other members of the
PFLP terrorist group, who had failed to board the EL
Al aircraft in Amsterdam, seized a Pan Am 747 as a
target of opportunity and flew it to Cairo where it was
destroyed after the passengers were released. The
German, Swiss and British Governments all agreed
to the PFLP’s demands and released a number of
terrorists held in their jails, including Leila Khaled.43
This incident is generally considered to represent the
birth of modern air terrorism.44
39
40
41
42
43
44
Exhibit P-35, p. 37
Exhibit P-448, pp. 68-69. .
Exhibit P-448 reports the relevant dates as September 6-12, 1970; see p. 70.
Testimony of Rodney Wallis, vol. 35, May 29, 2007, pp. 4207-4208.
Exhibit P-35, p. 37.
Exhibit P-259: Rodney Wallis, Combating Air Terrorism (New York: Brassey’s, 1993), p. 92 [Wallis,
Combating Air Terrorism].
423
�424
Volume Four: Aviation Security
1971
November 12-13,
1971
A terrorist claiming to be a member of the Irish
Republican Army hijacked Air Canada Flight 812,
which was en route from Vancouver to Toronto.
The hijacker took over the aircraft with a sawed-off
shotgun and was allegedly armed with dynamite.
The aircraft landed twice in Grand Falls, Montana,
first for fuel and money, and the second time to
release all the passengers.45
December 26, 197146
Patrick Critton, a member of the black liberation
group, Republic of New Africa,47 hijacked Air Canada
Flight 932 from Thunder Bay to Toronto, Ontario. He
allegedly brandished a handgun and a grenade and
demanded to be flown to Cuba.48
1972
March 7-8, 1972
In an extortion plot, Trans World Airlines was
informed that bombs had been placed on four of its
aircraft. One bomb was discovered aboard Flight
7, a domestic transcontinental service from New
York City to Los Angeles. On March 8, another bomb
exploded in the cockpit of a Boeing 707 while it was
on the ground in Las Vegas, Nevada. There were
no injuries. Although the perpetrators demanded
$2 million, no money was collected, nor were any
suspects apprehended.49
May 9, 1972
A Belgian Sabena aircraft was hijacked en route from
Vienna and forced to land at Ben Gurion Airport in
Tel Aviv, Israel, where Israeli commandos stormed
the aircraft.50 Four Palestinian Black September
terrorists on board the aircraft were killed and the
hostages were freed. One passenger and 5 Israeli
soldiers were killed.51
45
46
47
48
49
50
51
Exhibit P-448, p. 100.
Exhibit P-488, p. 37.
Exhibit P-147, p. 10.
Exhibit P-35, p. 38.
Exhibit P-448, p. 128.
Exhibit P-147, p. 11.
Exhibit P-35, p. 38.
�Chapter IV: Recommendations
August 16, 1972
An explosive device hidden in a record player
detonated in the aft baggage compartment of an
El Al Boeing 707 jetliner shortly after it left Rome,
Italy, bound for Tel Aviv, Israel. The aircraft landed
safely. There were no serious injuries among the 153
persons aboard the aircraft.52
May 30, 1972
The “Lod Airport Massacre” took place when the
Popular Front for the Liberation of Palestine and
Japanese Red Army terrorists opened fire in the
passenger terminal of Lod (re-named Ben Gurion)
Airport in Israel. Twenty-six civilians were killed and
78 were wounded.53
October 29, 1972
Four hijackers, wanted for murdering a bank
manager and a policeman during a failed bank
robbery, killed a ticket agent and wounded a ramp
serviceman while forcing their way aboard an
Eastern Air Lines Boeing 727. They demanded to be
taken to Cuba.54
November 10, 1972
The longest and perhaps most grueling of the
Cuban hijackings involved Southern Airways Flight
49. The DC-9 was hijacked by three fugitives in the
United States, landing in several locations in the
US, as well as in Toronto, before finally landing in
Havana, Cuba. The incident lasted 30 hours. At one
point, the aircraft circled the country retreat of the
American President, Richard Nixon, and at another,
the hijackers threatened to crash the aircraft into the
atomic power plant in Oak Ridge, Tennessee.55
December 8, 1972
A failed attempt by the Eritrean Liberation Front
to hijack an Ethiopian Airlines Boeing 720B while
in flight from Addis Ababa to Asmara left seven of
the hijackers dead, killed by security guards. Two of
those killed were women. The aircraft returned safely
to Addis Ababa.56
52
53
54
55
56
Exhibit P-448, p. 74.
Exhibit P-147, p. 22.
Exhibit P-447, p. 3.
Exhibit P-448, p. 38.
Exhibit P-448, p. 56.
425
�426
Volume Four: Aviation Security
1973
August 5, 1973
A Black September suicide squad attacked the
passenger terminals at Athens Airport in Greece,
killing 3 civilians and injuring 55.
November 17, 1973
Palestinian terrorists bombed a Pan Am office at
Fiumicino Airport in Rome, killing 32 and injuring
50. The terrorists then took 7 Italian policemen
hostage and hijacked an aircraft to Athens, Greece.
After killing one hostage, they flew to Kuwait. The
terrorists eventually surrendered.57
1974
August 26, 1974
A bomb malfunctioned and a fire was discovered in
the aft baggage compartment of TWA Flight 841, a
Boeing 707, after the aircraft had landed in Rome
on a flight from Athens. There were no injuries, but
Flight 841 was again targeted by terrorists just two
weeks later.58
September 8, 197459
A bomb exploded in the baggage compartment60 of
TWA Flight 841 while it flew over the Ionian Sea off
the coast of Greece. All 88 persons aboard, including
79 passengers and 9 crew members, were killed.61
The attack was the work of the Popular Front for the
Liberation of Palestine.62 The bomb had been placed
on board at Athens, which had been known for its
lax security. Subsequently, TWA instituted a policy of
inspecting all baggage placed on board its aircraft.63
November 23, 1974
A British DC-10 aircraft was hijacked by Palestinian
Rejectionist Front terrorists at Dubai in the United
Arab Emirates. The aircraft was flown to Tunisia
where a German passenger was killed.64
57
58
59
60
61
62
63
64
Exhibit P-35, p. 38; see also Exhibit P-263, Tab 4.
Exhibit P-448, p. 76.
Exhibit P-448, p. 76.
Exhibit P-35, p. 38.
Exhibit P-448, p. 76.
Exhibit P-35, p. 38.
Exhibit P-448, pp. 75-76.
Exhibit P-263, Tab 4.
�Chapter IV: Recommendations
1975
January 13, 1975
A missile fired at an El Al Israel Airlines Boeing 707 jet
struck a parked DC-9 at Orly Airport in Paris, leaving
a hole in its fuselage. Three persons suffered minor
injuries, including a crew member. There were no
casualties among the 148 persons aboard the 707.65
Arab terrorists attacked Orly Airport in Paris, France,
seizing 10 hostages in a terminal bathroom. The
French government eventually provided the
terrorists with a plane to fly them to Baghdad, Iraq.66
December 29, 1975
A bomb was detonated at LaGuardia Airport, New
York. Eleven people died and 74 were injured.
1976
June 27, 1976
An Air France aircraft was hijacked by a joint German
Baader-Meinhof/Popular Front for the Liberation
of Palestine terrorist group, and its crew were
forced to fly to Entebbe Airport in Uganda. The
258 passengers and crew were held hostage, but
all non-Israeli passengers were eventually released.
On 3 July, Israeli commandos flew to Uganda and
rescued the remaining hostages. All of the terrorists
were killed in the rescue, as were 3 passengers, 1
commando and at least 20 Ugandan soldiers.67
August 11, 1976
Popular Front for the Liberation of Palestine and
Japanese Red Army terrorists attacked a passenger
terminal at Istanbul airport in Turkey, killing 4
civilians and injuring 20.68
65
66
67
68
Exhibit P-448, p. 77.
Exhibit P-35, p. 38; see also Exhibit P-263, Tab 4.
Exhibit P-35, p. 38; see also Exhibit P-448, p. 77.
Exhibit P-35, p. 38.
427
�428
Volume Four: Aviation Security
September 10, 1976
A TWA aircraft en route from New York to Paris
was hijacked by Croatian terrorists, who seized 93
hostages. The terrorists surrendered in Paris and
released the hostages.69
October 6, 1976
Cubana Airlines Flight 455 crashed off the coast of
Barbados, killing all 73 people aboard, following the
detonation of explosives left by passengers who
had exited the plane in Barbados, a transit stop. The
attack was blamed on anti-Castro Cuban exiles.70 A
decade later, two men were sentenced to 20 years’
imprisonment for their involvement in the crash.71
1977
October 13, 197772
Four Palestinian terrorists hijacked a German
Lufthansa Boeing 737 and ordered it to fly around
a number of Middle East destinations for four days.
After the terrorists killed the plane’s pilot, the aircraft
was stormed by German counter-terrorist troops,
assisted by two British Army Special Air Service
soldiers, when it landed at Mogadishu in Somalia.
All 90 hostages were rescued, and the 3 terrorists
were killed.73
1978
February 19, 1978
An aircraft was hijacked at Larnaca Airport in Cyprus
by Arab terrorists. After being refused permission
to land at a number of Arab capitals, the hijackers
returned to Larnaca. Egyptian commandos landed
and, without Cypriot government authorization,
tried to attack the plane, resulting in a gun battle
with Cypriot troops. Fifteen Egyptian troops, 7
Cypriot soldiers and a German cameraman were
killed.74
August 20, 1978
An El Al stewardess was killed when a crew bus was
ambushed by the Popular Front for the Liberation
of Palestine terrorists outside the Europa Hotel in
London, UK.75
69
70
71
72
73
74
75
Exhibit p-35, p. 38.
Testimony of Moses Aléman, vol. 36, May 30, 2007, p. 4266.
Exhibit P-448, p. 136.
Exhibit P-447, p. 4.
Exhibit P-263, Tab 4.
Exhibit P-35, p. 39
Exhibit P-263, Tab 4.
�Chapter IV: Recommendations
November 15, 1978
Twelve people were injured in a bomb explosion
on an American Airlines flight in the United States.
The so-called Unabomber is held responsible for the
incident.76
An Air Florida flight from Key West to Miami in the
United States was hijacked by 7 Cubans and flown
to Cuba, where they released their hostages and
were taken into custody. Six further US aircraft
were hijacked to Cuba over the next month. All the
passengers were released unharmed.77
Three passengers were killed when Cubans hijacked
an aircraft in Peru and demanded to be flown to the
United States.78
The president of United Airlines was injured in a
bomb attack in Chicago, that was blamed on the
Unabomber.79
Four Iranian terrorists were killed when Turkish
security forces stormed a hijacked Turkish Airlines
aircraft after it landed in eastern Turkey. The
terrorists killed 1 of the 155 hostages.80
1979
August 27, 1979
76
77
78
79
80
81
A bomb shattered a Turkish airlines office in
Frankfurt, Germany, injuring 1 person. The attack
was later claimed by the Armenian Secret Army for
the Liberation of Armenia (ASALA).81
Exhibit P-35, p. 39.
Exhibit P-35, p. 39.
Exhibit P-35, p. 39.
Exhibit P-35, p. 39.
Exhibit P-35, p. 39; see also Exhibit P-147, p. 14.
Exhibit P-263, Tab 4.
429
�430
Volume Four: Aviation Security
1980
June 27, 1980
A twin-jet Douglas DC-9 was destroyed over the
Tyrrhenian Sea. All 81 persons aboard were killed.
An explosive device, most likely placed between
the outer wall of the lavatory and the skin of the
aircraft, was determined to be the cause of the
crash. No claim of responsibility was ever made,
but the incident may have been related to a wave of
terrorism blamed on right-wing extremists in Italy.82
December 21, 1980
An aircraft crashed shortly after take-off in Colombia.
All 70 persons on board were killed. An explosive
substance, apparently nitroglycerine, had detonated
in a rear lavatory83
1982
February 20, 1982
An explosive device hidden in a suitcase detonated
on a conveyor belt at the international airport
in Managua, Nicaragua. The suitcase had been
unloaded from a Boeing 737 jetliner.84
August 11, 1982
An explosive device detonated under a seat in the
rear cabin of a Pan American World Airways Boeing
747 flying over the Pacific Ocean. Of the 285 persons
aboard, 1 passenger, a 16-year-old boy, was killed in
the blast and 15 others suffered injuries. Despite a
hole in the cabin floor and a rapid decompression,
the aircraft landed safely. The Palestinian
responsible for the bombing was captured and
prosecuted in Greece.85
1983
August 19, 1983
82
83
84
85
86
Exhibit P-448, pp. 143-144.
Exhibit P-448, p. 145.
Exhibit P-448, p. 147.
Exhibit P-448, p. 81.
Exhibit P-448, pp. 81-82
A Syrian Arab Airlines 727 jet was severely damaged
by an incendiary device while on the ground at
Rome, shortly before it was scheduled to depart
for Damascus, Syria. All occupants were safely
evacuated, with no injuries.86 The improvised
explosive device had been placed under a seat in the
cabin. This methodology copied that used against
Pan Am in August 1982. It was used again in 1985
against TWA.
�Chapter IV: Recommendations
September 23, 1983
Gulf Air Flight 771, a Boeing Advanced 737, crashed
in the desert near Abu Dhabi. All 111 persons on
board were killed. Evidence pointed to an act of
sabotage. Baggage assigned to the flight had been
checked in by a ticket-holder who did not board the
aircraft.87
1984
December 4, 1984
A Kuwaiti aircraft was hijacked en route to Pakistan
from Dubai by Iranian-backed Iraqi Shia terrorists.
The aircraft was forced to land in the Iranian capital
of Tehran, after two Americans had been killed. The
terrorists surrendered to the Iranian authorities and
were later released.88
January 18, 1984
An explosion in the cargo hold caused major
damage to an Air France B-747 over Pakistan. The
aircraft landed safely.
1985
April 4, 1985
A rocket was fired into an Alia Jordanian Airlines
Boeing 727 that was taking off at Athens, Greece, on
a scheduled service to Amman, Jordan. The device
failed to explode and the aircraft sustained only
minor damage.89
Hezbollah terrorists were responsible for a bomb
that detonated in the American Airlines offices in
Copenhagen.90
A Red Army Faction bomb exploded at Frankfurt
Airport, Germany, killing 3 people.91
87
88
89
90
91
Exhibit P-448, p. 82.
Exhibit P-35, p. 39.
Exhibit P-448, p. 85.
Exhibit P-263, Tab 4.
Exhibit P-35, p. 39.
431
�432
Volume Four: Aviation Security
June 14, 1985
TWA Flight 847, a Boeing 727 carrying 8 crew and
145 passengers, was hijacked en route to Rome
from Athens by two Lebanese Hezbollah terrorists.
The aircraft was forced to fly to Beirut. A two-week
hostage ordeal began, in which the aircraft flew
twice to Algiers, Algeria. The hijackers demanded
the release of prisoners being held in Kuwait as well
as the release of 700 Shiite Muslim prisoners held
in Israeli and Lebanese prisons. A US Navy diver
was killed and 39 passengers were held hostage
when demands were not met. The hostages were
eventually released after the US Government
pressured Israel into releasing hundreds of Lebanese
and Palestinian prisoners.92
June 23, 1985
Air India Flight 182, a Boeing 747, was destroyed by
a bomb over the Atlantic, killing all 329 people on
board. Sikh extremists were blamed for the attack,
the worst single air terrorism incident to that time.93
The bomb had been placed in unaccompanied
baggage that had been interlined from a CP Air
flight to the Air India flight, even though the ticketholder did not have a reservation on the Air India
flight.
June 23, 1985
Two baggage handlers were killed at Narita Airport
in Tokyo when a bomb, attributed to Sikh extremists,
was placed in an unaccompanied bag that was
later offloaded from a CP Air flight arriving from
Vancouver to be interlined to Air India Flight 301.
The bomb exploded in the transit area.94
92
93
94
Exhibit P-35, p. 40; see also Exhibit P-448, pp. 85-86.
Exhibit P-35, p. 40.
Exhibit P-35, p. 40; see also Exhibit P-147, p. 31.
�Chapter IV: Recommendations
November 26, 1985
An Egyptair B-727 was hijacked while en route from
Athens to Cairo. The aircraft was flown to Malta and
shots were exchanged between the hijackers and
sky marshals while in flight. On the ground, the
terrorists shot 5 passengers, 2 of whom died. An
assault by Egyptian Force 777 commandos resulted
in the death of some 57 passengers in the ensuing
gunfight and when the terrorists set off explosives in
the aircraft.95
December 27, 1985
Simultaneous suicide grenade and gun attacks by
the Abu Nidal terrorist group against passenger
terminals at Rome and Vienna airports resulted in 16
persons killed and more than 100 civilians injured.96
1986
April 2, 1986
A bomb exploded on a Trans World Airways 727
en route from Rome to Athens. Four passengers,
including an infant, were killed when they were
ejected from the aircraft at 10,000 feet. It is believed
that a bomb was assembled by a female passenger
on board using plastic explosives, which she left
under her seat. She had boarded the aircraft in Cairo
and exited at Athens, but the plane flew on to Rome.
The bomb exploded on its return journey.97
April 17, 1986
Plastic explosives were placed in hand luggage and
were carried unknowingly by an Irish woman, who
was to board an El Al Flight in London, UK, bound
for Tel Aviv, Israel. The bomb had passed through
X-ray security at Heathrow Airport, but was caught
by the secondary screening put in place by EL Al.
The woman’s fiancé had planned the attack. He was
subsequently arrested and sentenced to 45 years’
imprisonment.98
95
96
97
98
Exhibit P-35, p. 40.
Exhibit P-35, p. 40; see also Testimony of Moses Aléman, vol. 35, May 29, 2007, p. 4227.
Wallis, Combating Air Terrorism, pp. 12-13.
Exhibit P-448, pp. 87- 88.
433
�434
Volume Four: Aviation Security
May 3, 1986
A bomb exploded on an Air Lanka Lockheed 1011
aircraft parked at Colombo Airport, killing more than
20 passengers who were then boarding the aircraft.
A customs officer who had access to the aircraft’s
supplies and who was believed to be sympathetic
to the Tamil separatists’ movement was arrested and
charged with sabotage. The device had been placed
in the aircraft’s “fly-away” kit, a collection of essential
technical items carried on each aircraft to facilitate
emergency maintenance at overseas airports.99
August 1986
Rebels fighting the government of the Sudan used
a surface-to-air missile (SAM-7) to shoot down an
aircraft in flight, killing 60.100
September 5, 1986
Terrorists seized a Pan American 747 at Karachi
Airport, killing 22 and injuring more than 100.101
Dressed to resemble airport guards, the terrorists
had obtained a vehicle similar to those used by the
airport authority. This enabled them free passage
through the checkpoint guarding the entrance to
the airside. They waved through unchallenged,
giving them unimpeded access to the Pan American
aircraft, which was being boarded at the time.102
December 25, 1986
An Iraqi 737 was seized and ultimately destroyed
following a mid-air gun battle between terrorists and
security guards. Grenades were detonated and the
gunfight was waged over the bodies of passengers.
Seventy-one persons were killed.103
1987
May 1987
99
100
101
102
103
104
An Air New Zealand aircraft was seized while on the
ground at Nandi Airport in Fiji.104 The lone would-be
hijacker, an employee of a handling company, was
persuaded not to carry out the hijacking.
Wallis, Combating Air Terrorism, p. 14.
Wallis, Combating Air Terrorism, p. 14.
Wallis, Combating Air Terrorism, p. 2.
Wallis, Combating Air Terrorism, p. 15.
Wallis, Combating Air Terrorism, p. l7.
Wallis, Combating Air Terrorism, p. 2.
�Chapter IV: Recommendations
November 29, 1987
Korean Air Flight 858 was destroyed in flight over the
Andaman Sea while en route from Baghdad to Seoul,
killing all 115 persons on board. Liquid explosives
had been disguised as alcohol and left in an
overhead rack by two passengers belonging to the
North Korean Workers Party when they disembarked
at a transit stop. They had timed the device to
detonate on its subsequent sector.105
December 10, 1987
A US Air service scheduled to operate from Los
Angeles to San Francisco was destroyed by a former
employee who boarded the aircraft intent on killing
his former supervisor who was a passenger. He killed
the pilot causing the aircraft to crash. All 43 persons
on board died.
1988
March 1, 1988
An explosive device destroyed Commercial Airways
(Comair) Flight 206, which was on an internal South
African service from Phalaborwa to Johannesburg.
The aircraft crashed south-west of Jan Smuts Airport,
where it had been scheduled to land. All 17 persons
on board were killed. Tests confirmed that the
explosive device consisted of nitroglycerine and
ammonium nitrate. The person responsible was
never identified, but a briefcase known to have been
placed aboard at Phalaborwa could not be located.
At the time, there were no requirements to screen
carry-on baggage at the point of departure. In the
wake of this loss, measures to prevent dangerous
goods from being placed aboard aircraft were
urgently recommended for airports which lacked
sufficient security services.106
105 Wallis, Combating Air Terrorism, pp. 18-19.
106 Exhibit P-448, p. 158.
435
�436
Volume Four: Aviation Security
April 5, 1988
December 21, 1988
A Kuwait Airways Boeing 747 aircraft, with 97
passengers and 15 crew on board, was seized by
terrorists. The aircraft was diverted to Mashhad,
Iran, where some hostages, including all the British
passengers, were released, before the aircraft flew on
to Cyprus. The Kuwaiti Government refused requests
by the Iranian-backed Shia hijackers to release 17
convicted terrorists. Two passengers were killed
while the aircraft was on the ground at Cyprus and
the hijackers were allowed to fly to Algeria, where
the remaining hostages were released unharmed
and the terrorists were allowed to go free.107
Pan Am Flight 103, a Boeing 747 aircraft, exploded
over Lockerbie, Scotland. The cause was a bomb in
an unaccompanied suitcase interlined to Pan Am at
Frankfurt Airport in Germany. All 259 people on the
aircraft and 11 people on the ground were killed by
the blast. Abdelbasset Ali Mohmad Al- Megrahi, the
Libyan Arab Airlines head of security and said to be
a member of the Libyan Intelligence Service, was
found guilty of the crime by a Scottish court sitting
in the Hague. 108
1989
September 19,
1989109
107
108
109
110
111
112
A French UTA DC-10 exploded in flight over the
Sahara, killing all 171 persons on board. Plastic
explosives had been hidden in a passenger’s
baggage.110 The bomb was believed to have
been carried on board by a Congolese man who
boarded the flight at Brazzaville in the Congo and
disembarked at Ndjamena, a transit stop. It was
thought that France’s backing of elements opposed
to the government of Libya and/or its support of
anti-Syrian forces in Lebanon were the possible
motivating factors behind this worst case of
sabotage against a European airline.111 The French
government issued warrants for the arrest of four
Libyans.112
Exhibit P-35, p. 40; see also Wallis, Combating Air Terrorism, pp. 19-23,
Exhibit P-35, p. 40; see also Wallis, Combating Air Terrorism, pp. 26-27.
Exhibit P-448, p. 990.
Exhibit P-35, p. 41; see also Wallis, Combating Air Terrorism, pp. 39-40,
Exhibit P-448, pp. 90-91.
Exhibit P-35, p. 41; see also Wallis, Combating Air Terrorism, pp. 39-40,
�Chapter IV: Recommendations
November 1989
An Avianca Boeing 727 was destroyed on a domestic
flight from Bogotá, Colombia, to Cali, killing 107.
Persons with purported connections to a Colombian
drug cartel claimed responsibility.113
November 23, 1989
A loose wire is thought to have prevented the
detonation of a bomb in the baggage compartment
of Saudi Arabian Airlines Flight 367, a Boeing 747,
which was flying over the Arabian Sea on a service
from Islamabad, Pakistan, to Riyadh, Saudi Arabia.
There were 339 persons on board. Ten passengers
were subsequently arrested for their part in what
appears to have been a suicide mission.114
November 27, 1989
A Boeing 727 of Avianca was destroyed by an
explosive device while flying between Bogotá,
Colombia and Cali. All 107 persons on board died.
The sabotage was believed to have been related to a
drug cartel.115
1994
April 6, 1994
Rwandan president Juvenel Habyarimana was killed
when his aircraft was shot down by a surface-to-air
missile while approaching Kigali airport, Rwanda,
on his return from a regional government leaders
meeting.116
July 19, 1994
A Middle East-related act of terrorism was suspected
when an aircraft crashed near Colón, Panama, where
it had taken off shortly before. All 21 persons on
board were killed.117
113
114
115
116
117
Wallis, Combating Air Terrorism, p. 41.
Exhibit P-448, p. 91.
Exhibit P-448, p. 160.
Exhibit P-35, p. 41.
Exhibit P-448, p. 92.
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December 11, 1994
A bomb exploded under a seat in the cabin of a
Philippine Airlines Boeing 747 flying from Manila,
the Philippines, to Tokyo, Japan. The passenger
occupying the seat was killed and 10 of the other
292 persons on board suffered injuries. The aircraft
landed safely in Okinawa, Japan. This had reportedly
been a “trial run” for a plan to blow up a dozen US
airliners on trans-pacific flights, designed to punish
the United States for its continued support of
Israel. The principal saboteur in the plot was later
convicted in a US court.118
December 24,
1994119
Air France Flight 8969, bound for Paris from Algiers,
was hijacked by the Algerian terrorist organization
Armed Islamic Group (GIA). The four hijackers
boarded the aircraft disguised as Air Algérie security
staff. Authorities delayed departure of the aircraft,
but were intimidated into giving the go-ahead when
the hijackers killed 2 of the 227 persons on board.
The French government decided not to allow the
aircraft to approach Paris because its consulate in
Oran, Algeria, had received an intelligence warning
that the hijackers intended to explode the aircraft
over Paris. The flight crew convinced the hijackers
that refueling in Marseille was required. After
the aircraft touched down, hours of negotiations
ensued, whereupon the terrorists demanded fuel.
French police commandos (GIGN) stormed the
aircraft and after a 20-minute gunfight successfully
rescued the 161 remaining passengers (some had
been released during negotiations) and 3 flight
crew.120
Conspirators smuggled improvised explosive device
(IED) components through airport security and onto
Philippine Airlines Flight 434, assembled them in
the aircraft’s washroom and set the IED to detonate
four hours later during the next leg of the flight.
One person was killed and a hole was blown in the
floor of the aircraft, which forced an emergency
landing.121
118
119
120
121
Exhibit P-448, pp. 92-93.
Exhibit P-263, Tab 4.
Exhibit P-263, Tab 4.
Exhibit P-263, Tab 4.
�Chapter IV: Recommendations
1996
February 24, 1996
Two Cuban MiG fighters shot down a light aircraft
flown by four Cuban exiles of the “Brothers to the
Rescue” organization over the Gulf of Mexico.122
August, 1996
Six Iraqi dissidents hijacked a Sudan Airways A310
Airbus airliner en route from Khartoum to Jordan,
diverting it to Stansted, UK. After negotiating with
British authorities the hijackers released all 13 crew
and 180 passengers unharmed.123
November 23, 1996
An Ethiopian Airways Boeing 767 was hijacked by
three former prisoners while it was en route from
Addis Ababa to Nairobi. The captain was ordered to fly
the aircraft to Australia. It ran out of fuel and crashed
into the Indian Ocean near the Comoros Islands killing
123 people. Fifty-two people, including 2 hijackers,
survived.124
2001
September 11, 2001
Four US domestic passenger jets were hijacked and
two of them were deliberately crashed into the
towers of the New York World Trade Centre. Both
buildings collapsed within an hour after the impacts.
The third aircraft was deliberately flown into the
side of the Pentagon building in Arlington, Virginia.
The fourth aircraft crashed into the ground outside
Pittsburgh, Pennsylvania. There were reports that
this aircraft was headed for the White House.125 The
total death toll was in the thousands.
2003
March 4, 2003
122
123
124
125
126
127
Exhibit P-35, p. 41.
Exhibit P-35, p. 41.
Exhibit P-35, p. 41.
Exhibit P-35, p. 42.
Exhibit P-446.
Exhibit P-447, p. 6.
A bomb hidden in a backpack exploded at an airport
terminal in Davao in the southern Philippines, killing
21 people and wounding 148.126 The Moro Islamic
Liberation Front (MILF) was suspected.127
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November 22, 2003
A European Air Transport Airbus carrying 3 crew
members was hit by a surface-to-air missile while
climbing through 8,000 feet shortly after departure
from Baghdad. The missile struck the wing,
penetrating the no. 1A fuel tank and igniting the
fuel. A large portion of the wing burned away. The
aircraft landed safely. There were no casualties.128
2006
August 10, 2006
An alleged terrorist plot to launch a simultaneous
attack on a number of transatlantic flights was
discovered in the United Kingdom. The threat was
considered imminent and involved the alleged use
of liquid and gel explosives concealed in carry-on
baggage. A number of countries, including Canada,
coordinated an immediate ban on all liquids and
gels in carry-on baggage. The ban was eventually
lifted in favour of allowing a restricted volume of
liquids and gels in carry-on baggage, a pre-board
screening measure which remains today.129
2007
June 30, 2007
In what was determined to be a terrorist attack, a
sports utility vehicle filled with gas canisters was
driven into the front doors of the main terminal
building of Glasgow Airport in Scotland and set
ablaze.130
128 Criminal Occurrence Description (November 22, 2003), online: Aviation Safety Network <http://
aviation-safety.net/database/record.php?id=20031122-0> (accessed January 26, 2010).
129 See Testimony of Reg Whitaker, vol. 38, June 1, 2007, p. 4585; Testimony of Jean Barrette, vol. 39, June 4,
2007, p. 4842.
130 Exhibit P-425, pp. 1-2 of 5.
�Chapter IV: Recommendations
APPENDIX B
Report on Security Arrangements Affecting Airports and
Airlines in Canada
[“Seaborn Report”]
Principal Recommendations
Of the Airport/Airline Security Report1
1. The Department of Transport, Canadian Security Intelligence Service
and the RCMP should ensure that they have the means to assess
intelligence from all sources bearing on air security.
2. The Department should participate actively in the committee chaired
by the Solicitor General’s departmental officials to review terrorist
threat assessments and to ensure that users receive the required
intelligence in a timely and usable manner.
3. The Department of Transport, the air carriers and interested
associations should co-operate closely in the development of the
security management system.
4. A graduated, multi-level system of security, with appropriate security
measures for each level, will help to ensure swift and coherent
responses to developing threat situations.
5. Airline personnel should not be exempt from security procedures in
enhance[d] and high threat cases.
6. The Department of Transport must ensure that persons or materials
introduced into international airports from other airfields are subject
to the security standards in force at the international airport
concerned.
7. The Department of Transport, the RCMP and the air carriers must
ensure that the employees of private security firms performing
security functions at airports meet prescribed security
standards.
8. It would be desirable for all Canadian airside employees and others
with regular access to particularly sensitive areas of the airport and
to aircraft to be subject to security and criminal indices checks as a
condition of employment.
1
Exhibit P-101 CAF0039, pp. 9-10.
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9. All workers at airports and the travelling public should be made aware
of the contribution they can make to maintain a high level of air security.
10. The Minister of Transport and his Deputy should be responsible for
ensuring that there is effective operation of all air security systems
regardless of who may actually work them.
11. Significant decisions respecting security levels should be taken by the
airport manager, senior departmental officials or the Minister, depending
on the situation.
12. The Solicitor General should consult with the provincial Attorneys General
to ensure that for each airport there is a police force designated that has
the resources necessary to respond to acts of terrorism.
13. The Solicitor General and the appropriate Attorney General should predesignate a commanding police officer who will have line authority over
all airport, airline and other federal/provincial/municipal bodies that
are likely to be involved in a terrorist incident. Under the Security Offences
Act there is a presumption that this would be a member of the RCMP. This
office should report through an agreed-on chain of command to the
Solicitor General.
14. The Minister of Transport, in consultation with the Solicitor General,
should report annually to the Prime Minister on the adequacy of the
security regulations, the effectiveness with which they are applied, and
the existence at each airport of an up-to-date “war book” for use in
managing the response to terrorist incidents.
15. The Solicitor General should satisfy himself that, in the event of a
terrorist threat or act, he is in a position to provide overall direction
to those responsible for handling the crisis and to receive and disseminate
information concerning such an event. He should test the mechanisms
in place for this and report his findings to the Prime Minister.
�Chapter IV: Recommendations
APPENDIX C
The Myth of Security At Canada’s Airports:
Report of the Standing Senate Committee on National
Security and Defence
Recommendations1
Section I
I.1
Transport Canada should, by March 31, 2003, finalize and issue training
standards programs to equip cabin crews to deal with terrorists and/
or terrorist materials. All flight crews should have completed
training by September 30, 2003.
I.2
The Canada Customs and Revenue Agency and Immigration Canada
should, by June 30, 2003, offer substantive evidence to the
Committee that they have addressed the Auditor General’s
recommendations to improve training that will help
airport personnel identify persons “likely to engage in
criminal activities or endanger the safety of Canadians.”
They should also demonstrate that they have made
arrangements to gain access to police databanks that
would assist in such identification, and have provided
their employees with the training and technology required to
take advantage of these databanks.
I.3
Transport Canada should, by September 30, 2003, ensure that all
Canadian passenger airlines are providing training courses to
maintenance personnel and other personnel working in proximity to
aircraft to help them identify potentially dangerous situations
and materials.
Section II
II.1
All flight crew should be informed when an Aircraft Protective Officer
(APO) is on board.
II.2
Transport Canada should, by June 30, 2003, require design completion
of a double door system or systems to protect cockpits, and order air
carriers to complete the installation of such systems by December 31,
2004.
1
Exhibit P-171, pp. 143-149.
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II.3
II.4
APOs should be instructed by the RCMP to be prepared to intervene in
violent disruptions in passenger cabins, and certainly be prepared to
intervened if crew or passengers’ lives are threatened, and not
necessarily to restrain themselves until the very moment that
any assault is launched on the cockpit.
Pilots should not be armed.
Section III
III.1
Dedicated and trained personnel should immediately begin carrying
out random and targeted screening of all checked baggage, parcels,
mailbags, and cargo.
III.2
CATSA should implement full multi-layer screening (vapour detection
supplemented by x-rays and other kinds of searches) of all checked
baggage, mailbags and cargo by January 1, 2004.
III.3
The practice of offering blanket security shortcuts on the basis of
being a “known shipper” shipping by air carrier should
be discontinued. The Committee encourages the development
of a protocol for shippers based on their known reliability,
similar to the one currently being introduced under the Smart Borders
arrangement with the United States.
III.4
People, cargo and aircraft coming from small airports without
sophisticating screening systems should receive a full screening when
they arrive at an airport under CATSA’s jurisdiction.
Section IV
IV.1
CATSA should issue national passes for air crew and all other persons
who fall more naturally under a national, rather than a regional,
jurisdiction. If local airport authorities are permitted to continue
to issue passes allowing access to restricted areas at their airports,
these local passes should be
• Of national, uniform design, based on national configurations
defined by the Canadian Air Transport Security Association,
• Cancelable by CATSA
• Validated through CATSA’s national database.
IV.2
All Canadian airports, by December 31, 2003, should introduce new
electronic airside access passes, containing biometric identifiers, that
• Are encoded to prevent access to zones beyond any employee’s
work area
• Expire automatically after three years
• Can be deactivated by a central control mechanism at any time
�Chapter IV: Recommendations
IV.3
CATSA should be the issuing authority for passes for all employees,
contract workers, other personnel and vehicles permitted
airside access.
IV.4
CATSA should be responsible for assuring that these persons and
vehicles are physically searched on entry to restricted areas at
Canada’s airports. Persons and vehicles leaving those areas should be
searched on a random basis, with provision for more extensive
exit searches whenever extraordinary threats are perceived.
IV.5
The current 5-point background check for restricted area passes:
Canada Police Information Centre (for criminal record),
CSIS (for potential security threats), and Transport Canada
(domicile, employment background and credit records) should
be conducted every three years, replacing the current schedule
of every five years.
Section V
(This Recommendation repeated from Section IV)
IV.4
CATSA should be responsible for assuring that these persons and
vehicles are physically searched on entry to restricted areas at
Canada’s airports. Persons and vehicles leaving those areas should be
searched on a random basis, with provision for more extensive
exit searches whenever extraordinary threats are perceived.
This Recommendation Repeated from Section IV)
IV.5
The current 5-point background check for restricted area passes:
Canada Police Information Centre (for criminal record),
CSIS (for potential security threats), and Transport Canada
(domicile, employment background and credit records) should
be conducted every three years, replacing the current schedule
of every five years.
(This is a New Recommendation Contained Only in Section V)
V.1
Transport Canada should require that private aircraft departing
airports under CATSA’s supervision should not leave until aircraft,
passengers and their baggage have been screened. Private
aircraft departing from any air facility not supervised by
CATSA should be searched on arrival, whether they arrive from
private air fields in Canada or any locations in foreign countries
in order to ensure the integrity of security at Canadian airports.
Section VI
No recommendations at this time.
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Section VII
VII.1
VII.2
All airport policing directly related to air travel security be removed
from the airport authorities and assigned exclusively to the
RCMP under contract to CATSA.
Local police forces and security guards contracted by airport
authorities be responsible for criminal offences that are not related to
air travel security.
Section VIII
VIII.1
Transport Canada should continue to be responsible for the
development of policy and standards for aircraft and airport security
and should be responsible for verification that security policies
are being implemented to its standards by CATSA, airport authorities,
airlines, and police or other security personnel;
VIII.2
CATSA should be responsible for the design and delivery of all
mechanisms and training to assure air travel security, including the
management and security screening of the restricted areas of
the airport and the security screening of all persons and things
boarding aircraft in Canada.
VIII.3
National standards be effectively and consistently implemented.
CATSA should develop an intelligence capability in order to effectively
carry out its responsibilities.
VIII.4
CATSA should be given the authority to contract the RCMP to
supervise all policing at airports as it relates to passenger, cargo,
aircraft and airside security.
VIII.5
The Auditor General of Canada should conduct audits – including
value for money audits – of security expenditures both by the federal
government and airport authorities (the Minister of Transport
should make this possible through new legislation.)
Section IX
IX.1
The Government of Canada detail how much money is being collected
from the $12 air travellers security charge – better known as the
departure tax – and from which airports;
IX.2.
The Government of Canada account for how much of the $12 air
travellers security charge, is being spent by CATSA, and how much is
being spent by other departments and agencies and
how much is being spent at each airport and for what;
�Chapter IV: Recommendations
IX.3
That CATSA fully report the amounts that it is spending on its internal
administration and report annually how much it has spent at each
airport for: passenger screening, mail and cargo screening,
airside searching of non-passengers, policing; and
IX.4
That the Government of Canada introduce legislation providing the
Auditor General of Canada with the power to audit each airport
authority for accuracy, and value received for all security revenues
and expenditures made by the authority, which would
complement ongoing auditing and supervision by Transport Canada
of security expenditures by airport authorities.
Section X
X.1
The federal government should design and implement
air travel security measures that provide transparency and full
financial accountability to the Canadian public.
X.2
Airport authorities and the airlines must recognize that security of air
travel is the public’s business and be forthright in explaining the
measures they are taking to protect against terrorist or criminal
activity, on the ground, and in the air.
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�Chapter IV: Recommendations
APPENDIX D
Flight Plan: Managing the Risks in Aviation Security
– Report of the Advisory Panel
List of Recommendations1
CHAPTER ONE: REVIEWING CANADIAN AVIATION SECURITY
No recommendations.
CHAPTER TWO: PROTECTING CANADIAN AIR TRAVELERS
Recommendation 2.1
We recommend that responsibility for aviation security remain with the Minister
of Transport.
Recommendation 2.2
Transport Canada should ensure that CATSA continues to receive all the
information and intelligence it requires at the national and local levels to perform
its functions, including timely access to the best intelligence and actionable
information from all sources on explosives, weapons and concealment
techniques.
Recommendation 2.3
Airports of all sizes should implement rigorous security awareness programs
(a type of airport security watch program) for all personnel working at the
airport.
Recommendation 2.4
We recommend that each designated airport establish an Airport Security
Advisory Group, to coordinate and consult on the development and
implementation of the airport’s security plan, to resolve general security issues,
to promote security awareness, and to encourage a collaborative approach to
security issues.
1
Exhibit P-169, pp. 173-179.
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Recommendation 2.5
We recommend that an Airport Security Committee be created at each Class 1
airport to facilitate the sharing of intelligence information and to coordinate the
development of airport-specific threat and risk assessments.
Recommendation 2.6
We recommend that Transport Canada accelerate its work to develop a program
for the security screening of aviation cargo.
Recommendation 2.7
We recommend that screening of passengers be extended to Fixed Base
Operations where the size of the operation warrants.
CHAPTER THREE: CATSA’S MANDATE
Recommendation 3.1
CATSA should retain its current screening mandates in the broadest sense
of screening, that is, screening of people and things, and CATSA should be
considered as the first option for all future aviation screening functions.
Recommendation 3.2
In Class 1 airports, CATSA should be continuously present at all entry points
to the restricted areas of the airport to perform non-passenger screening, on a
random basis.
(a)
Non-passenger screening should be extended to include
searches of vehicles entering restricted areas in Class 1 airports,
and should be performed by CATSA, or under CATSA’s oversight
using CATSA’s standards and procedures.
(b)
Non-passenger screening should be discontinued in Class
2 airports once the Restricted Area Identification Card, with
biometric identifiers, is in place; CATSA should be prepared to
implement NPS on an as-needed basis in Class 2 and Class Other
airports, when threat analysis indicates a need.
Recommendation 3.3
(a)
CATSA’s mandate should be amended to remove responsibility
for managing funding for the Canadian Air Carrier Protective
Program. In the future, funding for the CACPP should be
provided via appropriations directly to the RCMP or through
Transport Canada.
�Chapter IV: Recommendations
(b)
An independent external audit of the CACPP should be
conducted regularly by the Auditor General of Canada or an
independent auditor, on a confidential basis.
Recommendation 3.4
(a)
Responsibility for the airport policing contribution program
should be transferred to Transport Canada.
(b)
Transport Canada should review the existing standards for
police response to all types of screening points to rationalize
the airport policing program, and should fund all reasonable
costs associated with meeting the new standards.
Recommendation 3.5
(a)
CATSA should complete the installation of the Restricted Area
Identification Card system on a priority basis; to facilitate this,
Transport Canada must complete the regulatory framework for
RAIC as soon as possible.
(b)
Once CATSA has completed implementation of the Restricted
Area Identification Card, the RAIC national identity verification
system should be operated and maintained by Transport
Canada.
(c)
The multiple-airport access system should be implemented in
conjunction with RAIC as quickly as possible.
(d)
RAIC should be expanded to all 89 designated airports.
Recommendation 3.6
(a)
The text of the CATSA Act should be amended to remove the
consistency criterion.
(b)
The text of the French version of the CATSA Act should be
amended to add a separate term equivalent to efficient in
section 6 (1).
CHAPTER FOUR: REGULATORY FRAMEWORK
Recommendation 4.1
It is recommended that CATSA develop a more user-friendly format for its
Standard Operating Procedures and for disseminating and integrating updates
to ensure that its front-line screening personnel have ready access to them in
order to carry out their responsibilities.
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Recommendation 4.2
Transport Canada should not retain the power to de-designate screening
officers. CATSA should be accountable for screening officer performance,
including certification and designation.
Recommendation 4.3
We recommend that to the extent possible, Transport Canada standardize the
terminology used in the Aeronautics Act, its attendant regulations, measures
and orders, and in the CATSA Act.
Recommendation 4.4
It is recommended that, as a high priority, Transport Canada develop a more
results-based regulatory framework for aviation security.
Recommendation 4.5
It is recommended that, in line with ICAO Annex 17, Transport Canada develop
a National Civil Aviation Security Program and require CATSA, as well as airport
operators, major tenants and air carriers, to develop security plans for their
areas of responsibility, consistent with the National Program. Transport Canada
should approve the plans and audit the organizations on a periodic basis for
compliance with their plans.
Recommendation 4.6
In line with the results-based regulatory regime, it is recommended that CATSA
assume full responsibility (and accountability) for operational policy, including
operational design and screening solutions, qualifications of screening officers
and service providers, equipment decisions and management of the list of
prohibited items.
CHAPTER FIVE: DELIVERY OF SCREENING SERVICES
Recommendation 5.1
(a)
All three options for CATSA to deliver screening services should
remain in the CATSA Act.
(b)
Airport operators should be eligible to bid on a screening
contract for their own airport.
�Chapter IV: Recommendations
Recommendation 5.2
(a)
CATSA should develop measurable performance standards,
including peak hour throughput and wait-time standards for
each airport that reflect, among other factors, the pre-board
screening configuration at the various screening points.
(b)
CATSA should establish space allocation standards for pre-board
screening lines and a throughput standard for an optimum
configuration.
(c)
CATSA should develop workplace design standards to optimize
screening effectiveness and employee working conditions and
ensure best practices are shared with all airports.
Recommendation 5.3
We recommend that CATSA provide refresher courses to screening officers
on new screening techniques, and changes to the CATSA Standard Operating
Procedures, to ensure that screening officers maintain an up-to-date knowledge
of their complete content.
Recommendation 5.4
CATSA should consider options to improve supervision at all 89 airports. CATSA
should deploy more management personnel in the field in order to provide
closer supervision of security screening services.
Recommendation 5.5
As a high priority, Transport Canada, CATSA, airport operators, air carriers and
police services must develop unambiguous guidelines on the handling of
security breach incidents at all screening points. These guidelines should include
clear and timely communications to the public.
Recommendation 5.6
We recommend that Transport Canada undertake a detailed audit of the
security clearance process to determine the causes of delay, and take remedial
action to correct these deficiencies, in order to speed up the process of issuing
Transportation Security Clearances for persons requiring airport Restricted Area
Passes.
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CHAPTER SIX: GOVERNANCE AND ACCOUNTABILITY
Recommendation 6.1
We recommend that CATSA establish a national-level advisory committee,
reporting to the Board of Directors, to represent the interests of the travelling
public, including travellers with disabilities.
Recommendation 6.2
(a)
It is recommended that the Canadian Air Transport Security
Authority either remain a Crown corporation or be transformed
into a departmental corporation.
(b)
If CATSA remains a Crown corporation, there should be an
increase in the level of compensation provided to Board
members.
(c)
If CATSA becomes a departmental corporation, an advisory
board representing the various stakeholders should be
established. The Minister should appoint its members.
Recommendation 6.3
Whichever organizational model is adopted for CATSA, the organization needs
to be provided with increased flexibility in the areas of operations, finance and
administration.
Recommendation 6.4
(a)
In order to carry out its mandate effectively, CATSA should
be responsible and accountable for operational policy and
decisions (including deployment of human resources and the
lifecycle management of its assets), while Transport Canada
would retain responsibility for overall aviation security policy,
strategy and legislation.
(b)
These responsibilities and accountabilities should be clearly
communicated at all levels of both organizations, and their
acceptance needs to be carefully monitored.
Recommendation 6.5
CATSA should have full responsibility for the lifecycle management of its capital
equipment, including research and development, procurement, maintenance
and replacement.
�Chapter IV: Recommendations
Recommendation 6.6
We recommend that CATSA’s budget reflect passenger volumes as well as
productivity gains realized from enhanced technologies and procedures. CATSA
should also be provided with the capacity to generate revenues, to recover
costs in line with federal government policies, to carry forward operating funds,
to re-profile capital and to transfer operating funds between budget items.
These flexibilities should be awarded once CATSA has demonstrated it has the
appropriate procedures and systems in place.
Recommendation 6.7
We recommend that, if CATSA becomes a departmental corporation, it remain
a separate employer, be granted the same contracting authorities that it has as
a Crown corporation and the maximum administrative flexibilities allowed for
under the Financial Administration Act.
CHAPTER SEVEN: FUTURE AVIATION SECURITY IMPLICATIONS
Recommendation 7.1
We recommend that Transport Canada and CATSA take steps to instill a culture
of continuous learning from past events and forward-looking threat assessment
throughout their organizations, and in collaboration with other security
partners.
Recommendation 7.2
It is recommended that CATSA have responsibility for the assessment (including
pilot projects) of emerging technologies and techniques in the detection of
potential threats, as part of its lifecycle management of its capital program.
CHAPTER EIGHT: OTHER OBSERVATIONS
No recommendations.
455
�456
Volume Four: Aviation Security
�Chapter IV: Recommendations
APPENDIX E
Canadian Security Guide Book 2007 Edition - Airports
APPENDIX III1
Index of New Recommendations
Problem 1(a): Insufficient Airport Policing
A1.
The Committee recommends that the Government of Canada increase
the size of the RCMP by between 600 and 800 full-time equivalents
(FTEs) in order to provide the RCMP with the capacity to:
• Execute a new mandate of oversight and responsibility for security
at airports and,
• Expand its investigative and analytical capabilities at airports within
the National Airport System.
A2.
The Committee recommends that Public Safety and Emergency
Preparedness Canada conduct tests to ascertain the level of
cooperation of multiple police forces operating at major Canadian
airports. These tests should be conducted within the next year, and the
results should be made public and recommendations acted upon six
months after they are issued.
Problem 1(b): Inadequate Background Checks
A3.
The Committee recommends that the ratio of airport employees with
background checks/pass escorting or supervising employees without
background checks/pass be 1 to 5.
Problem 1(c): Inadequate Control of Access to Restricted Areas
A4.
The Committee recommends that the level of random checking on
departure be set at a minimum of 10 percent daily, or at a higher level
so as to ensure that the smuggling of contraband is deterred.
A5.
The Committee recommends that by December 31, 2008 airport
restricted area identification cards should be augmented with geofencing to detect irregular employee behaviour.
Problem 2: Checking the Legitimacy of Flight Crews and Ground Crew
No change – see Appendix II
1
Exhibit P-172, pp. 91-94.
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Volume Four: Aviation Security
Problem 3: Unscreened Airmail and Other Cargo
No change – see Appendix II
Problem 4: Screening Checked Baggage
A6. The Committee recommends that since all passengers are searched for
liquids, gels and weapons, all materials being loaded onto aircrafts should
also be checked for weapons and potentially volatile liquids and gels, which
in combination could be explosive. This includes searching airline catering
service carts.
Problem 5: Vulnerable Cockpit Doors
A7.
The Committee recommends that all future aircraft used by Canadian
airlines should be outfitted with a comprehensive bulletproof divider
between the cockpit and the cabin.
A7a.
The Committee recommends that once these dividers are installed, the
use of Aircraft Protection Officers (APO) should be discontinued on all
flights other than flights to Reagan Airport in Washington.
A7b.
The cost of APOs on flights to Reagan should be incurred by the
airlines, not Canadian taxpayers.
Problem 6: Alerting Air Crews
A8.
The Committee recommends that as long as the Aircraft Protection
Officer program exists, Transport Canada make it a requirement that all
crew members be briefed as to who the APOs are, their seat location,
and how the crew is expected to respond in the event of an attempted
hijacking.
Problem 7: Security Training for Maintenance Workers
No change – see Appendix II
Problem 8: Who’s In Charge of Security at Canadian Airports?
A9.
The Committee recommends that Transport Canada be relieved of
its responsibility for security at airports and that this responsibility
be transferred to the Department of Public Safety and Emergency
Preparedness Canada.
�Chapter IV: Recommendations
Problem 9: “Known Shipper” System Lessens Aircraft Security
A10.
The Committee recommends that the Government of Canada take the
appropriate steps to expedite this study on air cargo security to bring
forth results by Spring 2008.
A11.
The Committee recommends that the Government of Canada use the
results of the study to create a fail-safe system that will fill the gaps in
air cargo security within a year after the study’s results are identified.
Problem 10: Lack of Security at Fixed-Base Operations
A12.
The Committee recommends that all individuals and vehicles,
including private aircrafts, be searched at all fixed-base operations that
are attached to the current 89 designated airports.
A12a.
The Committee recommends that aviation facilities in the
core of municipalities such as Victoria and Vancouver be
immediately designated for CATSA supervision.
Problem 11: Small Airports are Weak Links in the Aviation Security Net
No change – see Appendix II
Problem 12: The Canadian Air Transport Security Intelligence Gap
A13.
The Committee recommends that the Government of Canada ensure
that CATSA has access to all available intelligence related to aviation
safety.
A14.
The Committee recommends that in partnership with the RCMP and
CSIS, CATSA develop its own intelligence analysis capabilities.
Problem 13: Unnecessary Secrecy over Security
A15.
The Committee recommends that the Government of Canada make
public results of “intrusion tests” within six months of the tests being
conducted by the airport, or that the Government of Canada put into
effect a plan that would make the results public on a regular basis after
a longer, but reasonable, period so that it has sufficient time to remedy
the deficiencies uncovered by the tests.
Problem 14: Air Travellers Security Charge
No change – see Appendix II
459
�460
Volume Four: Aviation Security
Problem 15: Lack of Transparency over Security Expenditures Generally
A16.
The Committee recommends that the Government of Canada invite
the Auditor General of Canada to conduct a “Value-for-money” audit
on security expenditures such as the Air Traveller Security Charge to
ensure that the money collected from passengers is in fact going to
technologies and activities that are protecting them effectively.
�
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PDF Text
Text
Air India Flight 182
A Canadian Tragedy
VOLUME FIVE
Terrorist Financing
�©Her Majesty the Queen in Right of Canada, represented by the
Minister of Public Works and Government Services, 2010
Cat. No: CP32-89/2-2010E
ISBN: 978-0-660-19926-9
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
K1A 0S5
Telephone: (613) 941-5995 or 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Publications@pwgsc.gc.ca
Internet: www.publications.gc.ca
�VOLUME FIVE
TERRORIST FINANCING
TABLE OF CONTENTS
CHAPTER I: TERRORIST FINANCING – AN OVERVIEW
1.1 Introduction
1.1.1 Defining Terrorist Financing
1.1.2 Origins of Canada’s Response to Terrorist Financing
1.1.3 Objectives of Canada’s Anti-Terrorist Financing Efforts
1.2 The International System to Combat Terrorist Financing
1.2.1 International Instruments and Organizations to
Combat Terrorist Financing
1.2.1.1 The United Nations (UN)
1.2.1.1.1 The International Convention for the
Suppression of the Financing of
Terrorism
1.2.1.1.2 UN Security Council Resolution
1373 (2001)
1.2.1.1.3 UN Security Council Resolution 1267
(1999) and Subsequent Resolutions
1.2.1.2 The Financial Action Task Force on Money
Laundering (FATF)
1.2.1.3 Other International Organizations
1.2.2 Differing Interpretations among Countries about
TF Issues
1.2.3 Canada’s International Involvement in Anti-Terrorist
Financing Matters
1.3 The Concept of Terrorism
1.3.1 “Terrorism” and “Terrorist Organization”
1.3.1.1 International Efforts to Develop a Universal
Definition of “Terrorism”
1.3.1.2 The Life Cycle of a Terrorist Organization
1.3.1.2.1 Inception
1.3.1.2.2 Growth
1.3.1.2.3 Maturity
1.3.2 Kinds of Terrorist Groups
1.3.3 Costs Flowing from Terrorism
1.3.3.1 Direct Costs
1.3.3.2 Indirect Costs
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1.3.3.3 Costs of Counterterrorism Policies
1.3.3.3.1 Public Costs
1.3.3.3.2 Private Costs
1.3.3.3.3 Economics of Terrorism and
Terrorist Financing
1.4 The Terrorist Financing Concept
1.4.1 The Extent of Terrorist Financing
1.4.2 Understanding the TF Process
1.4.2.1 Operational Funding
1.4.2.2 Organizational Funding
1.4.3 Terrorist Financing in Practice
1.4.3.1 Raising Funds
1.4.3.1.1 State Support
1.4.3.1.2 “Legitimate” Sources of Funds
1.4.3.1.3 Illegal Sources of Funds
1.4.3.1.4 Other Sources of Funds
1.4.3.2 Movement of Funds
1.4.3.2.1 Traditional Banking and Financial
Systems
1.4.3.2.2 Informal and Unregulated Channels
for Moving Funds
1.4.3.2.3 Couriers
1.4.3.2.4 Trade Diversion
1.4.3.3 Terrorist Financing “Typologies”
(Trends and Methods)
1.4.3.3.1 The “Terrorism Operational Cycle”
1.4.3.3.2 The Schmidt “Terrorist Resourcing
Model”
1.4.3.3.3 Possible Sequences in the Terrorist
Financing Process
1.4.3.3.4 Similarities between the Rudner
and Schmidt Models
1.4.3.4 Relationship between Terrorist Financing and
Money Laundering
1.4.3.4.1 Historically
1.4.3.4.2 Differences between Money Laundering
and Terrorist Financing
1.4.4 The Need for an Anti-Terrorist Financing Program
in Canada
1.4.4.1 The Reality of Terrorism
1.4.4.2 Canada’s International Obligations
1.4.4.3 Role of Anti-Terrorist Financing Efforts in
Combatting Terrorism
1.5 Conclusion
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�Volume Five: Terrorist Financing
CHAPTER II: CANADIAN LEGISLATION GOVERNING TERRORIST
FINANCING
2.1
2.2
2.3
2.4
Introduction
The Anti-terrorism Act (ATA)
Bill C-25
The Listing Processes
2.4.1 The United Nations Al-Qaida and Taliban
Regulations (UNAQTR)
2.4.2 Regulations Implementing the United Nations Resolutions
on the Suppression of Terrorism (RIUNRST)
2.4.3 Criminal Code Listing Process
2.5 Conclusion
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CHAPTER III: THE ROLES OF FEDERAL DEPARTMENTS ANDAGENCIES IN
EFFORTS TO SUPPRESS TERRORIST FINANCING
3.1 The Department of Finance (Finance Canada)
3.2 Financial Transactions and Reports Analysis Centre of
Canada (FINTRAC)
3.2.1 Role, Goals, Structure and Overview
3.2.2 Reporting Entities and Their Obligations
3.2.3 Collection or Receipt of Information
3.2.3.1 The Arm’s-Length Arrangement
3.2.3.2 Information Received from Reporting Entities
3.2.3.3 Other Sources of Information for FINTRAC
3.2.3.4 The Voluntary Information Record (VIR) Process
3.2.4 Analysis of Information Received by FINTRAC
3.2.5 Disclosure of Information
3.2.5.1 Conditions for FINTRAC Disclosures
3.2.5.2 What FINTRAC Discloses
3.2.5.3 How FINTRAC Discloses
3.2.6 Relationships between FINTRAC and Other Agencies
3.2.6.1 In General
3.2.6.2 Feedback to FINTRAC from Recipients of
Disclosures Interaction between FINTRAC and
the Private Sector
3.2.7 Interaction between FINTRAC and the Private Sector
3.2.7.1 FINTRAC Measures to Ensure Compliance by
Private Sector Reporting Entities
3.2.7.2 Outreach and Guidance Tools
3.2.7.3 Views of Private Sector Reporting Entities about
the Anti-TF Program
3.3 Royal Canadian Mounted Police
3.3.1 Roles, Goals and Structure
3.3.2 Activities Aimed at Fighting TF
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3.3.3 Resources
3.4 Canadian Security Intelligence Service (CSIS)
3.4.1 Role, Goals and Structure
3.4.2 Activities Related to TF
3.4.3 Resources
3.5 Canada Border Services Agency
3.5.1 Role, Goals and Structure
3.5.2 CBSA Activities
3.5.2.1 In General
3.5.2.2 The “Multiple Borders” Concept
3.5.2.3 Business Line 1: Cross-border Movements of
Currency and Monetary Instruments
3.5.2.4 Business Line 2: The Immigration and Refugee
Protection Act Process and Other Activities
Related to TF
3.5.3 International Cooperation
3.5.4 Funding
3.6 Department of Foreign Affairs and International Trade
3.7 Public Safety Canada
3.8 Office of the Superintendent of Financial Institutions
3.9 Integrated Threat Assessment Centre
3.10 Other Departments and Agencies
3.10.1 Department of Justice
3.10.2 Communications Security Establishment Canada
3.10.3 Privy Council Office
3.11 Cooperation among Agencies
3.11.1 Financial Crimes Interdepartmental Coordinating
Committee (ICC)
3.11.2 Financial Crimes Interdepartmental Steering Committee
(ADM Steering Committee)
3.11.3 Interdepartmental Coordinating Committee on
Terrorist Listings
3.11.4 Integrated National Security Enforcement Teams
(INSETs)
3.11.5 Integrated Border Enforcement Teams (IBETs)
3.11.6 Relationships among Agencies in the Same Ministerial
Portfolio
3.11.7 International Cooperation
3.11.8 Secondments
3.11.9 Private/Public Sector Advisory Committee
3.12 Conclusion
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CHAPTER IV: EXTERNAL REVIEWS OF CANADA’S ANTI-TF PROGRAM
4.1 Domestic Reviews
4.1.1 Auditor General of Canada
4.1.2 EKOS Research Associates Evaluation
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�Volume Five: Terrorist Financing
4.1.3
Senate Review of the Proceeds of Crime (Money Laundering)
and Terrorist Financing Act
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4.1.4 House of Commons Review of the Anti-terrorism Act
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4.1.5 Senate Review of the Anti-terrorism Act
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4.1.6 Commission of Inquiry Concerning Maher Arar
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4.1.7 2004 SIRC Review of CSIS Terrorist Financing Program
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4.2 International Reviews
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4.2.1 The 2008 FATF Mutual Evaluation of Canada
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4.2.1.1 Setting
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4.2.1.2 Results
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4.2.2 The 1997 FATF Mutual Evaluation of Canada
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4.2.3 UN Counter-Terrorism Committee Reviews
183
CHAPTER V: CANADA’S RESPONSE TO REVIEWS OF ITS ANTI-TF
PROGRAM
5.1 Legislative Changes
5.1.1 Department of Finance 2005 Consultation Paper
5.1.2 Bill C-25
5.2 Non-legislative Changes
5.3 Government Response to the Anti-terrorism Act Review
5.4 Government Response to the 2008 FATF Mutual Evaluation
of Canada
5.5 Conclusion
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CHAPTER VI: THE LINKS BETWEEN THE CHARITABLE SECTOR AND
TERRORIST FINANCING
6.1 Charities and Terrorist Financing Generally
6.2 Overview of the Charitable Sector in Canada
6.3 The Vulnerability of the Canadian Charitable Sector to Being
Used for Terrorist Financing
6.4 Regulating the Charitable Sector in Canada
6.4.1 The Federal Government as the de facto Regulator
6.4.2 The Provincial Role in Dealing with Charities
6.5 Canada’s Efforts to Curb the Misuse of Registered Charities
for Terrorist Financing
6.5.1 The Charities Directorate of the Canada Revenue
Agency
6.5.2 The Legal Regime Governing Registered Charities
6.5.2.1 Limitations on Disclosure by CRA
6.5.2.2 Becoming a Registered Charity: Application and
Registration Processes
6.5.2.3 The Monitoring and Audit Processes
6.5.2.4 Intermediate Sanctions
6.5.2.5 Revocation of Charitable Status
6.5.2.6 The Charities Registration (Security Information)
Act (CRSIA) Process
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�Volume Five: Terrorist Financing
6.5.2.7 Collection and Use of Information from Various
Sources
6.5.2.8 Information Sharing between CRA and Other
Agencies
6.5.2.9 Oversight and Review
6.6 Not-for-profit Organizations (NPOs)
6.7 The Findings of the 2008 FATF Mutual Evaluation of Canada about
the Charitable Sector
6.8 Criticisms and Challenges Relating to Canada’s Approach to
Fighting Terrorist Financing in the Charitable Sector
6.8.1 The System May Overreach
6.8.2 The Status and Legal Framework of the CRA Itself
6.8.2.1 The Fiscal Regulator Model and Confidentiality
6.8.2.2 Fewer Sanctions or Means of Redress are
Available to the CRA
6.8.2.3 A New Charities Regulator
6.8.3 The Need for Charities to Receive Practical Guidance
6.8.4 CRA Outreach and Education
6.8.5 More Extensive Disclosure by the CRA
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CHAPTER VII: RESOLVING THE CHALLENGES OF TERRORIST FINANCING
7.1 Introduction
7.2 Current and Potential Performance Indicators for Canada’s Anti-TF
Program
7.2.1 The Need for Better Mechanisms to Review
Performance
7.2.2 Number of Prosecutions or Convictions
7.2.3 The Value of Intelligence Obtained
7.2.4 Number of Entities “Listed” under the Criminal Code
7.2.5 Number and Monetary Value of Frozen Accounts
7.2.6 FINTRAC Performance Indicators
7.3 Lack of Adequate Performance Indicators and Assessment
Mechanisms Generally
7.4 Challenges Relating to FINTRAC
7.4.1 Privacy
7.4.2 The Critical Importance of Voluntary Information
Records in FINTRAC’s Terrorist Financing Work
7.4.3 Limits on FINTRAC’s Disclosures of Designated
Information
7.4.4 FINTRAC Priorities
7.4.5 Adding New Reporting Sectors
7.4.6 The Need for FINTRAC to Provide Better Information
and Training to Private Sector Reporting Entities
7.5 The Legal Profession
7.6 Review of FINTRAC and the Role of the Prime Minister’s National
Security Advisor
7.7 Resources for TF Investigations
7.8 Charities and Not-for-profit Organizations
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�Volume Five: Terrorist Financing
7.8.1
7.8.2
7.8.3
7.8.4
Sharing Intelligence
Intermediate Sanctions
Statistics
The Charities Registration (Security Information) Act
Process
7.8.5 Not-for-profit Organizations
7.8.6 Publicity
7.8.7 Avoiding Harm to Legitimate Charities and NPOs
7.9 International Aspects of Terrorist Financing
7.9.1 Difficulties in Securing International Cooperation
7.9.2 The Problem of “Weak Links”
7.9.3 Trade
7.9.4 Civil Redress for Terrorist Acts Committed Outside
Canada
7.10 The Reality Facing Efforts to Suppress Terrorist Financing
7.11 Ways to Develop “Human Capital” for Anti-Terrorist Financing
Efforts
7.12 The Kanishka Centre(s) for Better Understanding and Preventing
Terrorism
7.13 Conclusion
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�Volume Five: Terrorist Financing
�VOLUME FIVE
TERRORIST FINANCING
CHAPTER I: TERRORIST FINANCING – AN OVERVIEW
1.1 Introduction
The terms of reference for the Commission of Inquiry into the Investigation of the
Bombing of Air India Flight 182 require the Commissioner to make findings and
recommendations with respect to “…whether Canada’s existing legal framework
provides adequate constraints on terrorist financing in, from or through
Canada, including constraints on the use or misuse of funds from charitable
organizations.”1
Addressing terrorist financing (TF) involves responding to two broad
questions:
1.
2.
How do terrorists obtain the resources they need to carry out terrorist
acts or support terrorist networks?
How can governments use this knowledge to defeat terrorists?2
1.1.1 Defining Terrorist Financing
The United Nations International Convention for the Suppression of the Financing
of Terrorism3 refers to TF in the following terms:
Article 2.1. Any person commits an offence within the
meaning of this Convention if that person by any means,
directly or indirectly, unlawfully and wilfully, provides or
collects funds with the intention that they should be
used or in the knowledge that they are to be used, in
full or in part, in order to carry out:
(a) An act which constitutes an offence within the scope
of and as defined in one of the treaties listed in the
annex;4 or
1
2
3
4
Terms of Reference, P.C. 2006-293, para. b(iv).
These two questions guided the terrorist financing-resourcing model and study prepared by John
Schmidt of the Integrated Threat Assessment Centre (ITAC): see Testimony of John Schmidt, vol. 53,
September 27, 2007, p. 6651.
Online: United Nations Treaty Collection <http://untreaty.un.org/English/Terrorism/Conv12.pdf>
(accessed February 20, 2009).
The same treaties are referred to in the Canadian definition of “terrorist activity” and in the FATF
definition of “terrorist act.”
�12
Volume Five: Terrorist Financing
(b) Any other act intended to cause death or serious
bodily injury to a civilian, or to any other person not
taking an active part in the hostilities in a situation of
armed conflict, when the purpose of such act, by its
nature or context, is to intimidate a population, or to
compel a government or an international organisation
to do or to abstain from doing any act.5
UN Security Council Resolution 1373 (2001)6 defines TF as follows:
...[the] wilful provision or collection, by any means,
directly or indirectly, of funds by their nationals or in
their territories with the intention that the funds should
be used, or in the knowledge that they are to be used,
in order to carry out terrorist acts.7
The Financial Action Task Force (FATF), considered to be the main international
body determining policy on TF and money laundering, describes TF as follows:
The term terrorist financing includes the financing of terrorist
acts, and of terrorists and terrorist organisations…. Terrorist
financing offences should extend to any person who wilfully
provides or collects funds by any means, directly or indirectly,
with the unlawful intention that they should be used or in the
knowledge that they are to be used, in full or in part: (a) to
carry out a terrorist act(s); (b) by a terrorist organisation; or (c)
by an individual terrorist.8
These descriptions all support the notion that TF is essentially the collection
and/or use of funds to accomplish or support terrorist acts or to support terrorist
organizations.
5
6
7
8
The World Bank states that the definition in the United Nations International Convention for the
Suppression of the Financing of Terrorism is the one most countries have adopted for purposes
of defining terrorist financing: Reference Guide to Anti-Money Laundering and Combating the
Financing of Terrorism: A Manual for Countries to Establish and Improve Their Institutional
Framework, 2nd. ed. and Supp. on Special Recommendation IX (Washington D.C.: The
International Bank for Reconstruction and Development/The World Bank/The International Monetary
Fund, 2006), p. I-5 [The World Bank Guide to Anti-Money Laundering and Combating Terrorism
Financing].
Online: United Nations <http://daccessdds.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.
pdf?OpenElement> (accessed February 13, 2009).
S. 1(b).
The Interpretative Notes to the Special Recommendations (SR) on Terrorist Financing (TF),
Interpretative Note to Special Recommendation II: Criminalising the financing of terrorism and
associated money laundering, paras. 2, 3, online: Financial Action Task Force <http://www.fatf-gafi.org/
document/53/0,3343,en_32250379_32236947_34261877_1 1 1 1,00.html> (accessed February
11, 2009).
�Chapter I: Terrorist Financing - An Overview
The Criminal Code9 does not provide a definition of terrorist financing, but instead
lists several offences in sections 83.02 to 83.04 under the heading “Terrorist
Financing.” For example, section 83.03 makes it an offence to collect property
or make available property or financial or other related services intending that
they be used for the purpose of facilitating or carrying out any terrorist activity.
1.1.2 Origins of Canada’s Response to Terrorist Financing
Before 2001, no specific TF offences existed in Canadian law. Despite the enormity
of the Air India tragedy in 1985, there was not much focus on TF in Canada at
the turn of the millennium.10 Terrorism-related incidents that occurred before
2001 were dealt with under existing criminal law.11 Discussions and groundwork
leading to Canadian TF legislation were under way before the terrorist attacks
of September 11, 2001 (“9/11”), but began in earnest only many years after the
1985 Air India tragedy. The current provisions concerning TF, now contained in
the Proceeds of Crime (Money Laundering) and Terrorist Financing Act12 (PCMLTFA)
and the Criminal Code, were a product of the terrorist attacks of 9/11.13
Blake Bromley, a Canadian lawyer practising exclusively on charities issues, wrote
in a submission to the Commission that “…[i]t is noteworthy and troubling that
our anti-terrorism legislation was enacted in response to the American tragedy
of 2001, rather than the Canadian tragedy of 1985.”14
Canadian law enforcement authorities did not focus on TF before 2001 simply
because there was no TF legislation.15 Canada’s approach to TF was not
unique. Even foreign law enforcement agencies and other bodies involved in
counterterrorism efforts before 2001 apparently did not focus heavily on TF
activities.16 Keith Morrill, Director of the Criminal, Security and Treaty Law Division
of the Department of Foreign Affairs and International Trade’s Legal Affairs
Bureau, testified that TF issues had come late in the day to the international
scene.17
The RCMP created a task force on terrorist-related financial matters shortly after
9/11, but even that initiative sought primarily to prevent terrorist attacks18 – an
approach sometimes described as “chasing the bomber.”
9
10
11
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17
18
R.S.C. 1985, c. C-46.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6818.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6830.
S.C. 2000, c. 17.
See, for example, Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6939.
Blake Bromley, “Funding Terrorism and Charities,” October 26, 2007, online: Benefic Group
<http://www.beneficgroup.com/files/getPDF.php?id=120> (accessed May 12, 2009).
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6818. But law enforcement authorities were
aware that a crime might still have been committed if the behaviour could be attached to an existing
criminal offence before 2001: Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6818, 6830.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6818.
Testimony of Keith Morrill, vol. 54, September 28, 2007, pp. 6680, 6705.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6819.
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1.1.3 Objectives of Canada’s Anti-Terrorist Financing Efforts
A fundamental goal of Canada’s anti-TF program is to protect Canadians and the
integrity of Canada’s financial system and to ensure that gaps and vulnerabilities
in the financial system are being addressed.19 The Government of Canada’s
stated objectives are to create a “hostile environment” towards TF, to respect
international obligations and to be vigilant in dealing with TF.20
1.2 The International System to Combat Terrorist Financing
International efforts to combat TF flowed from the intersection of existing
money laundering initiatives and the need to respond to the events of 9/11. The
initiative to combat money laundering itself arose because criminal activities
were generating enormous amounts of cash that had to be “laundered” to avoid
detection of the money’s links to crime.21
Professor Nikos Passas of Northeastern University’s College of Criminal Justice
explained that the money laundering model was adapted internationally to
deal with TF:
What characterized our [US] response, especially after the
attacks of September 11th in the United States, was similarly
an adoption of the methods that were in place against money
laundering for the purpose of countering the financing of
terrorism…. This was the approach adopted right after 9/11,
not only in the United States, but internationally.22
Passas testified that the money laundering model was chosen because it was
familiar. As well, governments were going to apply whatever tools they had
available and governments had to convey to the public the impression that
they were “doing something” about terrorism.23 He also suggested that TF
measures may have been created too hastily, although they “…were not resisted
particularly by those to whom they applied. The private sector or politicians
didn’t have any problem with that, or the general public. Everybody wanted
to see something done against terrorism so whatever helps we’re going to go
along with.”24
19
20
21
22
23
24
Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6778-6779, 6753.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6773-6774.
National Commission on Terrorist Attacks Upon the United States, Monograph on Terrorist Financing,
p. 54, online: National Commission on Terrorist Attacks Upon the United States <http://govinfo.library.
unt.edu/911/staff_statements> (accessed February 20, 2009) [National Commission Monograph on
Terrorist Financing]. In many countries, provisions to counter money laundering were necessary
in large part to combat the drug trade: Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6688.
Testimony of Nikos Passas, vol. 53, September 27, 2007, pp. 6568-6569.
Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6569.
Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6570.
�Chapter I: Terrorist Financing - An Overview
In general, money laundering laws focus on the large amounts of money that
are proceeds of crime – “dirty money.” In contrast, TF may involve smaller sums
that are not necessarily proceeds of crime. The question remains: Did adding TF
provisions to existing money laundering provisions lead to the most appropriate
TF measures?
1.2.1 International Instruments and Organizations to Combat Terrorist
Financing
1.2.1.1 The United Nations (UN)
Three UN instruments are important in TF matters: the International Convention
for the Suppression of the Financing of Terrorism, UN Security Council Resolution
1373 and UN Security Council Resolution 1267.
1.2.1.1.1 The International Convention for the Suppression of the Financing
of Terrorism
Ratified by Canada in 2001,25 the International Convention for the Suppression
of the Financing of Terrorism (Financing of Terrorism Convention) states in its
preamble that the parties to the Convention are “…deeply concerned about the
worldwide escalation of acts of terrorism in all its forms and manifestations.” The
Convention requires parties to criminalize TF and to provide for the freezing,
seizure and forfeiture of funds used for TF.
1.2.1.1.2 UN Security Council Resolution 1373 (2001)
The UN Security Council adopted Resolution 1373 on September 28, 2001.
Security Council resolutions passed under Chapter VII of the UN Charter in
response to a threat to international peace and security are binding on all UN
members.26 Each member must then implement the resolutions in its domestic
law.
Resolution 1373 imposes several obligations on member states, including the
following:
1(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalize the wilful provision or collection, by any means,
directly or indirectly, of funds by their nationals or in their
25
26
The treaty was signed by Canada on February 10, 2000: see “Canada Signs International Convention
for the Suppression of the Financing of Terrorism,” online: Foreign Affairs and International Trade
Canada <http://w01.international.gc.ca/minpub/PublicationContentOnly.asp?publication_id=37
7482&Language=E&MODE=CONTENTONLY&Local=False> (accessed February 11, 2009).
Exhibit P-227, Tab 3: Department of Finance Memorandum of Evidence on Terrorist Financing,
February 28, 2007, paras. 3.8-3.9 [Department of Finance Memorandum of Evidence on Terrorist
Financing].
15
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Volume Five: Terrorist Financing
territories with the intention that the funds should be used, or
in the knowledge that they are to be used, in order to carry out
terrorist acts;
(c) Freeze without delay funds and other financial assets or
economic resources of persons who commit, or attempt
to commit, terrorist acts or participate in or facilitate the
commission of terrorist acts; of entities owned or controlled
directly or indirectly by such persons; and of persons and
entities acting on behalf of, or at the direction of such persons
and entities, including funds derived or generated from
property owned or controlled directly or indirectly by such
persons and associated persons and entities;
(d) Prohibit their nationals or any persons and entities within
their territories from making any funds, financial assets or
economic resources or financial or other related services
available, directly or indirectly, for the benefit of persons who
commit or attempt to commit or facilitate or participate in the
commission of terrorist acts, of entities owned or controlled,
directly or indirectly, by such persons and of persons and
entities acting on behalf of or at the direction of such persons;
2(a) Refrain from providing any form of support, active or
passive, to entities or persons involved in terrorist acts,
including by suppressing recruitment of members of terrorist
groups and eliminating the supply of weapons to terrorists.
The UN Office on Drugs and Crime (UNODC) developed model TF legislation
which countries can adopt to comply with the provisions of Resolution 1373
and the Financing of Terrorism Convention.27
Resolution 1373 also established the UN Security Council Counter-Terrorism
Committee (CTC). The CTC is composed of the 15 Security Council members. It
monitors the implementation of the Resolution by member states and facilitates
providing technical assistance to those states.28 The Resolution calls on all
states to report regularly on their progress in implementing the Resolution.
Countries must perform a self-assessment of their legislation and mechanisms
to combat terrorism and TF in light of the requirements of Resolution 1373.
The CTC maintains a website with a directory of international best practices to
help countries improve their counterterrorism infrastructures. The website also
contains model legislation and related information.29
27
28
29
Online: International Money Laundering Information Network <http://www.imolin.org/imolin/tfbill03.
html> (accessed February 11, 2009).
Online: United Nations <http://www.un.org/sc/ctc/aboutus.html> (accessed February 11, 2009).
The World Bank Guide to Anti-Money Laundering and Combating Terrorism Financing, p. III-7. The CTC
website containing the extensive directory of best practices can be found online: <http://www.un.org/
sc/ctc/practices.html> (accessed January 23, 2009).
�Chapter I: Terrorist Financing - An Overview
1.2.1.1.3 UN Security Council Resolution 1267 (1999) and Subsequent
Resolutions
Resolution 1373 was drafted following several Security Council resolutions
requiring member states to freeze the assets of entities or individuals with
links to Al-Qaida30 and the Taliban, including entities listed by Security Council
Resolution 1267 and other resolutions.31 A 2002 World Bank report summarized
the range and scope of these resolutions:
The initial Resolution 1267 of October 15, 1999, dealt with the
Taliban and was followed by 1333 of December 19, 2000, on
Osama Bin Laden and Al-Qaeda. Later Resolutions established
monitoring arrangements (1363 of July 30, 2001), merged
the earlier lists (1390 of January 16, 2002), provided some
exclusions (1452 of December 20, 2002), and measures to
improve implementation (1455 of January 17, 2003).
The 1267 Committee issues the list of individuals and entities
whose assets are to be frozen and has procedures in place
to make additions or deletions to the list on the basis of
representations by member States.32 [references to footnotes
omitted.]
Collectively, these resolutions require all states to take the following measures
“…in connection with any individual or entity associated with Al-Qaida, Usama
bin Laden and/or the Taliban as designated by the Committee”:
• freeze without delay the funds and other financial assets or
economic resources of designated individuals and entities
[assets freeze];
• prevent the entry into or transit through their territories by
designated individuals [travel ban]; and
• prevent the direct or indirect supply, sale and transfer from their
territories or by their nationals outside their territories, or
using their flag vessels or aircraft, of arms and related materiel of
all types, spare parts, and technical advice, assistance, or training
30
31
32
Also referred to as “Al-Qaeda” or “al-Qaeda.” For consistency in this volume, the names “Usama bin
Laden” and “Al-Qaida” are spelled according to the Canadian spelling in the United Nations AlQaida and Taliban Regulations, S.O.R./99-444 and on the website for the United Nations Security
Council Committee established pursuant to Resolution 1267, online: United Nations
<http://www.un.org/sc/committees/1267/index.shtml> (accessed February 20, 2009).
Kevin E. Davis, “The financial war on terrorism,” in Victor V. Ramraj, Michael Hor and Kent Roach, eds.,
Global Anti-Terrorism Law and Policy (Cambridge: Cambridge University Press, 2005), p. 180.
The World Bank Guide to Anti-Money Laundering and Combating Terrorism Financing, pp. III-5-6.
The most recent list of the 1267 Committee is available online: United Nations <http://www.un.org/
sc/committees/1267/consolist.shtml> (accessed February 20, 2009). The list issued by the 1267
Committee should not be confused with Canada’s own list, discussed below.
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related to military activities, to designated individuals and entities
[arms embargo].33
1.2.1.2 The Financial Action Task Force on Money Laundering (FATF)
The G-7 countries established the Financial Action Task Force on Money
Laundering (FATF) as an intergovernmental body in 1989. It was created
informally, not by treaty.34 Its current goals are to develop and promote national
and international policies to combat money laundering and TF. Among other
activities, the FATF works to generate the necessary political will to bring
about legislative and regulatory reforms in these areas.35 It is the principal group
at the international level setting standards on money laundering and TF issues.
The original mandate of the FATF was to provide guidance and a practical
international framework to combat money laundering. In 1990, the FATF
published its first version of “The Forty Recommendations” on money
laundering.36 The FATF met in October 2001 to evaluate the need to take action
against TF activities. The FATF’s mandate was then expanded to include TF.37
Also in October 2001, the FATF published its “Eight Special Recommendations
on Terrorist Financing.” A ninth was added in October 2004.38 The “Nine Special
Recommendations” provide guidance about combatting TF.
The FATF has described one of its fundamental goals as the “[f ]ull and effective
roll-out” of the “40+9” Recommendations.39 However, the FATF’s responsibilities
go far beyond the Recommendations. They include examining money laundering
and TF techniques and trends, reviewing actions taken at the national or
international levels, and recommending measures to combat money laundering
and TF.40 When its mandate was reviewed in 2008, the FATF stated that it would
make efforts to respond to emerging threats created by globalization, such as
“…proliferation financing and vulnerabilities in new technologies which could
destabilise the international financial system.”41 As well, the FATF described the
identification of, and appropriate response to, countries with severe deficiencies
33
34
35
36
37
38
39
40
41
Online: United Nations <http://www.un.org/sc/committees/1267/index.shtml> (accessed February 11,
2009).
Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6688.
Online: Financial Action Task Force <http://www.fatf-gafi.org/pages/0,2987,en_32250379_32235720_1
_1_1_1_1,00.html> (accessed February 20, 2009).
A revision occurred in 1996, followed by a thorough review and update in 2003. The current version is
available online: Financial Action Task Force <http://www.fatf-gafi.org/document/28/0,3343,en_322503
79_32236930_33658140_1,_1_1_1,00.html> (accessed February 11, 2009).
Financial Action Task Force on Money Laundering, Annual Report 2001-2002, June 21, 2002, paras. 1617, online: Financial Action Task Force <http://www.fatf-gafi.org/dataoecd/13/1/34328160.pdf>
(accessed February 20, 2009).
The current version, titled “9 Special Recommendations (SR) on Terrorist Financing (TF)” is available
online: Financial Action Task Force <http://www.fatf-gafi.org/document/9/0,3343,en_32250379_322369
20_34032073_1_1_1_1,00.html> (accessed February 11, 2009).
Financial Action Task Force, FATF Revised Mandate 2008-2012, April 12, 2008, para. 5, online: Financial
Action Task Force <http://www.fatf-gafi.org/dataoecd/3/32/40433653.pdf> (accessed February
11, 2009) [FATF Revised Mandate 2008-2012].
“About the FATF.”
FATF Revised Mandate 2008-2012, para. 2.
�Chapter I: Terrorist Financing - An Overview
in their money laundering and TF programs (“weak links”) as a key element of
its ongoing work.42
The FATF Recommendations have been endorsed by more than 170 jurisdictions
around the world, as well as by the boards of the International Monetary Fund
(IMF) and the World Bank.43 In July 2005, the United Nations Security Council, in
Resolution 1617, stated that it “…strongly urges all Member States to implement
the comprehensive, international standards embodied in the Financial Action
Task Force’s (FATF) Forty Recommendations on Money Laundering and the FATF
Nine Special Recommendations on Terrorist Financing.”44
The “40+9” Recommendations are not legally binding.45 To fulfill its mandate, the
FATF has established partnerships with many regional bodies and international
organizations involved in combatting money laundering and TF.
In addition, the FATF has established a mutual evaluation program where experts
on money laundering and TF matters examine a member state’s activities
against money laundering and TF. The FATF’s 2007-08 annual report stated that,
at that point, 75 countries had been evaluated.46 Canada was evaluated in 200708 (the 2008 FATF Mutual Evaluation of Canada).47 To facilitate its work, the FATF
supports “FATF-style regional bodies” to raise awareness in their geographic
locations and conduct mutual evaluations in partnership with the FATF or
independently.48
42
43
44
45
46
47
48
FATF Revised Mandate 2008-2012, para. 7. For instance, the FATF has recently identified Uzbekistan,
Iran, Pakistan, Turkmenistan and São Tomé and Principe, and the northern part of Cyprus as
jurisdictions with severe deficiencies on ML/TF matters: see FATF Chairman’s Summary,
London Plenary, June 18-20, 2008, online: Financial Action Task Force < http://www.fatf-gafi.
org/dataoecd/50/1/40879782. pdf> (accessed February 11, 2009) [FATF Chairman’s Summary].
FATF Revised Mandate 2008-2012, paras. 1, 16.
S. 7, online: Financial Action Task Force <http://daccessdds.un.org/doc/UNDOC/GEN/N05/446/60/PDF/
N0544660.pdf?OpenElement> (accessed February 11, 2009).
Financial Action Task Force, Annual Report 2006-2007, June 29, 2007, para. 4, online: Financial Action
Task Force <http://www.fatf-gafi.org/dataoecd/46/1/39162982.pdf> (accessed February 11, 2009)
[FATF 2006-07 Annual Report].
For a complete list, see Annex 4 of the FAFT Annual Report 2007-2008, June 30, 2008, pp. 27-28, online:
Financial Action Task Force <http://www.fatf-gafi.org/dataoecd/58/0/41141361.pdf> (accessed
February 25, 2009) [FATF 2007-08 Annual Report].
The results of the 2008 FATF Mutual Evaluation of Canada, and more details on the process, are
discussed below.
The Asia/Pacific Group on Money Laundering (APG), the Caribbean Financial Action Task Force (CFATF),
the Council of Europe Committee of Experts on the Evaluation of Anti-Money Laundering Measures
and the Financing of Terrorism (MONEYVAL), the Grupo de Acción Financiera de Sudamérica (GAFISUD)
and the Middle East and North Africa Financial Action Task Force (MENAFATF) and are Associate
Members: FATF 2007-08 Annual Report, para. 8.
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The membership of the FATF stands at 32 countries and territories, two regional
bodies and two countries with observer status.49 Twenty-two organizations
have observer status.50 All decisions of the FATF are taken by its members by
consensus in plenary meetings. The plenary is assisted by the FATF Secretariat
and chaired by the FATF President. Although the FATF Secretariat is housed at the
Headquarters of the Organisation for Economic Co-operation and Development
(OECD) in Paris, the FATF is a fully independent body.51
Working groups within the FATF are established to further the work of member
countries and of the organization. These include the Working Group on Terrorist
Financing and Money Laundering, the Working Group on Evaluations and
Implementation and the Working Group on Typologies.52
Delegations established by each country usually consist of government officials
working in finance (in Canada’s case, officials from the Department of Finance)
and representatives from other government bodies, such as financial intelligence
units (FIUs), law enforcement, intelligence and border control agencies, and
justice and foreign affairs departments.53
In February 2008, the FATF published a paper entitled “Terrorist Financing.”In part,
it describes various TF “typologies” (methods and trends associated with TF).54
Previous published FATF papers often dealt with both money laundering and TF
issues, but appeared to attach greater importance to money laundering.
Between 1995 and 2004, the FATF published in-depth papers on several subjects
relating to money laundering and TF, including papers about precious metal/
stones dealers, commercial websites and Internet payment systems, the trade
system, real estate, corporate vehicles for raising funds, new payment methods
and general typologies.55 The FATF has agreed to undertake studies in several
additional areas, including TF risks in the securities sector.56 These studies can
49 FATF Chairman’s Summary, notes 3-4. As per this document the 34 members of the FATF are:
Argentina; Australia; Austria; Belgium; Brazil; Canada; China; Denmark; the European Commission;
Finland; France; Germany; Greece; the Gulf Co-operation Council; Hong Kong; China; Iceland; Ireland;
Italy; Japan; Luxembourg; Mexico; the Kingdom of the Netherlands; New Zealand; Norway; Portugal;
the Russian Federation; Singapore; South Africa; Spain; Sweden; Switzerland; Turkey; the United
Kingdom; and the United States. The observer countries are India and the Republic of Korea.
50 FATF Revised Mandate 2008-2012, para. 21.
51 FATF 2006-07 Annual Report, para. 8.
52 FATF 2007-08 Annual Report, paras. 10-11.
53 FATF 2007-08 Annual Report, para. 7.
54 Financial Action Task Force, Terrorist Financing, February 29, 2008, pp. 7-10, online: Financial Action Task
Force <http:/www.fatf-gafi.org/dataoecd/28/43/40285899.pdf> (accessed February 12, 2009) [FATF
Report on Terrorist Financing].
55 The papers can be found on the FATF website. They include: RBA Guidance for Dealers in Precious
Metal and Stones (2008); Money Laundering & Terrorist Financing Risk Assessment Strategies
(2008); Money Laundering & Terrorist Financing Vulnerabilities of Commercial Websites and Internet
Payment Systems (2008); Best Practices Paper on Trade Based Money Laundering (2008); Money
Laundering & Terrorist Financing through the Real Estate Sector (2007); Laundering the Proceeds of VAT
Carousel Fraud (2007); Trade Based Money Laundering (2006); The Misuse of Corporate Vehicles,
Including Trust and Company Service Providers (2006); and Report on New Payment Methods (2006).
56 FATF Chairman’s Summary, p. 1.
�Chapter I: Terrorist Financing - An Overview
help those entities in Canada which must report financial transactions to the
Financial Transactions and Reports Analysis Centre of Canada (FINTRAC).
1.2.1.3 Other International Organizations
The World Bank and the International Monetary Fund also play important roles
in fighting TF, since both normally deal with the financial sectors of countries.
Both organizations assist in monitoring standards for financial institutions and
in studying typologies, as well as provide assistance to countries in TF matters
and in the regulation of financial institutions.57 Other groups, such as the
Basel Committee on Banking Supervision, the Wolfsberg Group of Banks, the
International Association of Insurance Supervisors and the Egmont Group of
Financial Intelligence Units (the Egmont Group58), also contribute.59
1.2.2 Differing Interpretations among Countries about TF Issues
As Professor Passas noted, approaches to TF vary widely among countries:
[T]here is no uniform legal approach to countering the
financing of terrorism (CFT). Some jurisdictions mirror UN
model laws, while others adopt their own methods or merely
extend money laundering provisions to cover CFT. The national
regimes vary with respect to the range of activities and groups
covered, the types of assets or financial activities included,
the origin of funds raised to finance terrorist acts, the intent or
knowledge of individuals, whether an activity, act or group is
financed, etc. 60
Work to counter international TF is complicated by the disagreements which
may arise between countries regarding what conduct is illegal and which
organizations should be pursued – a complication worsened when money
flows, as it often does, between jurisdictions.
57
58
59
60
For more information on the subject, see Jae-myong Koh, Suppressing Terrorist Financing and
Money Laundering (Berlin: Springer, 2006), pp. 168-177 [Koh, Suppressing Terrorist Financing and
Money Laundering]. The World Bank Guide to Anti-Money Laundering and Combating Terrorism
Financing is of interest to all jurisdictions because it describes useful steps which can be taken to
combat TF, based on international standards.
The Egmont Group is the coordinating body for the international group of financial intelligence units
(FIUs). It was formed in 1995 to promote and enhance international cooperation in anti-money
laundering and counter-terrorist financing: The Egmont Group, Press Release, “Egmont Group Appoints
Head of New Permanent Secretariat,” May 17, 2007, online: The Egmont Group <http://www.
egmontgroup.org/ExecSecPR.pdf> (accessed February 12, 2009).
For more information, see Koh, Suppressing Terrorist Financing and Money Laundering, pp. 143-154.
Nikos Passas, “Understanding Terrorism Financing” in Vol. 2 of Research Studies: Terrorism Financing
Charities and Aviation Security, p. 28 [Passas Paper on Terrorism Financing]. Passas also described
how several countries had implemented the international requirements on TF: Passas Paper on
Terrorism Financing, pp. 25-27.
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The Liberation Tigers of Tamil Eelam (LTTE) provides an example of the practical
difficulties caused by differing definitions among countries of “terrorism” and
“terrorist organization.” The LTTE was designated as a “listed entity” (meaning, in
general, a prohibited group), or its equivalent, by the United Kingdom (2001),61
Australia (2001)62 and the European Union (May 2006).63 Canada listed the LTTE
as a terrorist group in April 2006.64
Between 2001 and 2006, it would have been easier to prosecute the LTTE in the
UK or Australia than in Canada because the group was not yet listed here. It was
possible to prosecute an unlisted terrorist group in Canada, but the prosecution
would have needed to prove that the group was terrorist; on the other hand, a
group that had been listed would from that mere fact be considered terrorist,
with no further proof required.65 If Canada had listed the LTTE earlier, the group
would likely have moved its fundraising activities to a country where it was still
unlisted.
1.2.3 Canada’s International Involvement in Anti-Terrorist Financing
Matters
Canada is active on the international scene in anti-TF matters through several
organizations66:
• the FATF: Canada is a founding member, and a former
Canadian government official presided over the FATF in
2006-07. The Department of Finance is the lead Canadian
department for Canada’s dealings with the FATF;67
• the Asia/Pacific Group;
• the Caribbean Financial Action Task Force;68
• the Egmont Group;
61
62
63
64
65
66
67
68
Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001, S.I. 2001/1261.
Charter of the United Nations (Anti-terrorism – Persons and Entities) List 2001 (No. 2), online:
Government of Australia, Department of Foreign Affairs and Trade <http://www.dfat.gov.au/icat/
persons_entities/2_proscribed_entities_10dec2001.html> (accessed February 11, 2009).
Declaration by the Presidency on behalf of the European Union concerning listing of the LTTE as a
terrorist organisation, online: Europa <http://europa.eu/rapid/pressReleasesAction.do?referen
ce=PESC/06/78&format=HTML&aged=0&language=EN&guiLanguage=en> (accessed February 11,
2009). Interestingly enough, the press release mentions that “[t]he decision of the EU to list the
LTTE should come as a surprise to nobody,” since the LTTE had received several warnings.
Public Safety Canada, “Currently listed entities,” online: Public Safety Canada <http://www.publicsafety.
gc.ca/prg/ns/le/cle-en.asp#ltte> (accessed February 11, 2009).
A “terrorist group” is defined in s. 83.01(1) of the Criminal Code, R.S.C. 1985, c. C-46 as either “an entity
that has as one of its purposes or activities facilitating or carrying out any terrorist activity” or an
entity on a list established by the Governor in Council under s. 83.05, and includes “an association
of such entities.”
For a general description of Canada’s efforts, see Testimony of Diane Lafleur, vol. 54, September 28,
2007, pp. 6767-6768.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6753, 6767.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6767.
�Chapter I: Terrorist Financing - An Overview
• the Five Eyes Group;69 and
• the World Bank and IMF.
Because of its role and status in the FATF, Canada is an active member of a core
group of countries that have taken the lead on TF matters. Canada is making
strong efforts to observe its obligations under international law.70 Evaluations
of Canada’s efforts are examined in Chapter IV.
Although the 2008 FATF Mutual Evaluation of Canada criticized Canada in
several respects, reviews of Canada’s anti-TF program show that Canada respects
most of its international obligations. A lawyer who specializes in charities law,
Terrance Carter, even described Canada as doing more than its obligations
require against TF raised through charities, violating principles of natural justice,
criminal law, and due process.71
1.3 The Concept of Terrorism
1.3.1 “Terrorism” and “Terrorist Organization”
Defining and understanding “terrorism” is necessary to develop measures to
combat TF. What constitutes terrorism and, as a result, which financial activities
need to be monitored, prohibited and eliminated?72
The difficulty in defining terrorism helps to explain why there is no single,
international approach to TF, and why it is therefore difficult to secure the
international cooperation needed to deploy effective anti-TF programs.
In his paper for the Commission, Professor Passas highlighted the challenges of
defining terrorism, and of identifying certain groups as terrorist entities:
Rebels, insurgents, resisters, guerrillas, militants, militias,
independence movements, nationalists etc. come in different
sizes, operate in diverse contexts, enjoy differential popular
(or state) support, antagonize different social actors and
represent high or low priorities of domestic, regional and
international controllers. Placing them all in the same category
and discussing this in general terms as ‘terrorist finance and
its control’ obscures more issues than it clarifies. Inevitably,
the label ‘terrorist’ is a blanket political and polemical concept
69
70
71
72
See Chapter III for a description of the Five Eyes Group.
See Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6768-6772 and Exhibit P-227, Tab
2: Presentation of Diane Lafleur, September 28, 2007, Slides 7-10 for a general overview of Canada’s
compliance efforts with the FATF’s 9 Special Recommendations on TF.
Terrance S. Carter, “The Impact of Anti-terrorism Legislation on Charities in Canada: The Need For an
Appropriate Balance,” October 26, 2007, p. 13, online: Carters Professional Corporation <http://www.
carters.ca/pub/article/charity/2007/tsc1026.pdf> (accessed May 12, 2009).
Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6690.
23
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that varies from one legal system to another. As a result, any
discussion of ‘terrorist finance’ is directly affected and infected
by the problem of defining terrorism.73
A 2002 World Bank report stated that terrorism financing was a fundamentally
simple concept, but that terrorism was more difficult to define:
Not all of the countries that have adopted the [International
Convention for the Suppression of the Financing of Terrorism]
agree on specifically what actions constitute terrorism. The
meaning of terrorism is not universally accepted due to
significant political, religious and national implications that
differ from country to country.74
The organization known as “Hamas” provides a case in point. Considered
terrorist by several nations,75 Hamas was elected to the government in Palestine
and thereby gained a degree of legitimacy in some eyes.
In other cases, one arm of a terrorist group may be involved in humanitarian
aid efforts while another arm conducts terrorist operations. Hamas may again
serve as an example. Public Safety Canada’s website provided the following
information from Israeli intelligence officials about the alleged dual activities
of Hamas:
In March 1996, Israeli intelligence officials estimated that
roughly 95 per cent of the estimated $70-million a year that
it [Hamas] collected went into such charities as hospitals,
clinics and schools, with only a small portion siphoned off to
pay for weapons and military operations. While some funds
supposedly raised for charity go directly to the military wing,
some of the charity funds intended for activists, families, and
institutions are “leaked” to the terrorist apparatus and are used
for terrorist activities.76
1.3.1.1 International Efforts to Develop a Universal Definition of “Terrorism”
The United Nations continues to struggle with defining terrorism. In 1996,
UN General Assembly Resolution 51/210 established an ad hoc committee to
negotiate, along with the UN Sixth (Legal) Committee, the Draft Comprehensive
73
74
75
76
Passas Paper on Terrorism Financing, p. 21.
The World Bank Guide to Anti-Money Laundering and Combating Terrorism Financing, p. I-4.
Hamas, or Harakat Al-Muqawama Al-Islamiya, has been a “listed entity” in Canada since 2002: see Public
Safety Canada, “Currently listed entities,” online: Public Safety Canada <http://www.publicsafety.gc.ca/
prg/ns/le/cle-eng.aspx#hhi18> (accessed February 11, 2009).
Public Safety Canada, “Currently listed entities,” online: Public Safety Canada <http://www.publicsafety.
gc.ca/prg/ns/le/cle-en.asp#hhi18> (accessed July 28, 2008).
�Chapter I: Terrorist Financing - An Overview
Convention on Terrorism.77 That process is ongoing. DFAIT witness Keith Morrill
testified that defining terrorism “has proved and will continue to prove, I think,
extraordinarily difficult.”78 In the end, there is no universally accepted definition,
adding to the challenges of the international fight against both terrorism and
TF.
In the meantime, the international community has been dealing with terrorism
by using what Morrill described as a “piecemeal” approach.79 The international
community responds to very specific and defined actions when they occur and
as they have impact on world affairs. Morrill further explained that, “…[i]f you
can’t get people to agree on what terrorism is, you can perhaps get them to
agree that it is always wrong to blow up an aircraft.”80 This latter approach to
terrorism began with the 1963 Convention on Offences and Certain Other Acts
Committed on Board Aircraft (the “Tokyo Convention”).81
As Morrill explained, the international community reacts to a situation by
adopting an appropriate convention that can then be ratified by individual
countries. These countries are then responsible for implementing the
convention’s obligations in their domestic law.
Morrill testified that these conventions are not created in a vacuum. Canadian
officials participate in their negotiation and are vocal about Canada’s views. The
collective views of all participants ultimately form part of the conventions.82
1.3.1.2 The Life Cycle of a Terrorist Organization
The structure and operations of terrorist organizations change over time.
Understanding these changes is important because they may in turn lead
77
78
79
80
81
82
For more information, see C.L. Lim, “The question of a generic definition of terrorism under general
international law” in Victor V. Ramraj, Michael Hor and Kent Roach, eds., Global Anti-Terrorism Law
and Policy (Cambridge: Cambridge University Press, 2005), p. 37; Antonio Maria
Costa, “Drugs, Crime and Terrorist Financing: Breaking the Links,” Speech delivered at the Conference
on Combating Terrorist Financing, Vienna, November 9, 2005, online: United Nations <http://www.
unodc.org/pdf/ED%20speech%20to%20OSCE.pdf> (accessed February 24, 2009).
Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6682.
Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6684.
Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6683.
See the United Nations Treaty Collection, Conventions on Terrorism, online: United Nations <http://
untreaty.un.org/English/Terrorism.asp> (accessed February 24, 2009); Exhibit P-226, Tab 2: Presentation
of Keith Morrill, September 27, 2007. Other such conventions include: Convention for the Suppression
of Unlawful Seizure of Aircraft (1970); Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation (1971); Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents (1973); International Convention against the Taking of
Hostages (1979); Convention on the Physical Protection of Nuclear Material (1980); Protocol on the
Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to
the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1988); Convention
for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988); Protocol for the
Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (1988);
Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991); International
Convention for the Suppression of Terrorist Bombings (1997); International Convention for the Suppression
of the Financing of Terrorism (1999) and International Convention for the Suppression of Acts of Nuclear
Terrorism (2005).
Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6746.
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to changes in financing requirements and the methods used to raise and
move funds. Law enforcement and security intelligence authorities need to
understand where in its life cycle a given organization stands. For example, if a
“mature” terrorist group is preparing an immediate attack, the authorities may,
by monitoring the movement of funds, identify those who are likely to carry out
the strike.
The stages in the life of a terrorist organization are shown in the following chart,
and the main stages are described below.
Inception
Growth
Re-birth/
splinter group
Maturity
Merge with
other groups
Decentralized
philosophical
movement
Loss of
support
Organized
crime
Capture
Success
Irrelevance
1.3.1.2.1 Inception
In their initial stages, terrorist groups often have relatively few members. They
may devote resources to raising their profile, possibly through violent acts
and propaganda. Raising a group’s profile may in turn lead to an increase in
resources.
This stage in which resources are still meagre may be the most vulnerable stage
in the life of a terrorist organization. Professor Bruce Hoffman, a terrorism expert
from Georgetown University in Washington, DC, cited an estimate that at least
90 per cent of all such organizations die out within a year.83
83
Bruce Hoffman, Inside Terrorism, revised and expanded edition (New York: Columbia University Press,
2006), p. 241 [Hoffman, Inside Terrorism].
�Chapter I: Terrorist Financing - An Overview
1.3.1.2.2 Growth
During its growth phase, a terrorist group usually gains recruits and establishes a
support base. This growth leads to the group’s increased influence as it acquires
financial and other resources. This in turn results in an increase in activities, often
violent, which may yield a further increase in size and influence.
As Hoffman noted, “…a terrorist movement’s longevity ultimately depends
upon its ability to recruit new members as well as appeal to an expanding pool
of both active supporters and passive sympathizers.”84
A tension exists between the size of an organization (and the corresponding
influence it exerts) and its ability to maintain its own security. The larger it
becomes, the more resources (human and material) it has at its disposal and
the more influence it can exert through terrorist and other measures. However,
the larger it becomes, the more difficulty it faces operating “underground,”
maintaining its own security and keeping its plans secret.
As a group grows, it may face challenges that require additional resources. These
challenges commonly include the following:
• organizational challenges requiring a more formal structure for
managing and coordinating the group’s operational and support
functions, while ensuring its own security;
• political challenges, such as the need to refine and clarify the
group’s objectives, beliefs and principles to maintain or increase
support;
• identifying ever better targets for violent actions to maintain or
increase the group’s profile; and
• for those organizations initially supported by nation states, the
need to identify new, more independent sources of financial
support.
1.3.1.2.3 Maturity
A mature terrorist organization is well-established in terms of membership,
support and objectives. It is concerned with maintaining the momentum for its
cause and, in some cases, seeking out realistic options for achieving its goals.
After it reaches maturity, the evolution of a terrorist organization may proceed
in one or more of several directions:
• Faced with dissatisfaction with the state of the organization (which
may have become an inefficient and possibly corrupt bureaucracy),
84
Hoffman, Inside Terrorism, p. 225.
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•
•
•
•
•
•
or with its methods (which may have become less violent), smaller
and more violent splinter groups may emerge;85
The organization may merge with, or establish a network of,
affiliated terrorist organizations with similar or complementary
objectives and aspirations;86
It may evolve into a criminal organization that is concerned only
with the accumulation of wealth;87
Key members and resources, or both, may be captured or
destroyed, effectively ending operations or returning the group
to an earlier stage in the life cycle.88
The organization may lose support because its objectives become
stale or its tactics alienate its core support groups (for example, by
engaging in excessively violent actions);89
It may succeed in achieving its goals and gain legitimacy as a
political party or even as the government; and
It may become irrelevant if its objectives and environment change.90
1.3.2 Kinds of Terrorist Groups
Professor Passas underlined the importance of understanding how terrorist
groups operate in order to undermine their TF activities. Understanding the
structure and organizational methods of a group will often provide direct
insight into its fundraising mechanisms and make it more vulnerable to law
enforcement and surveillance efforts.
Professor Passas identified three types of terrorist groups:
• Large and popular groups that control some geographical
areas and engage in providing de facto government services,
85
86
87
88
89
90
MIPT Terrorism Knowledge Base, “Group Profile: Real Irish Republican Army (RIRA),” online: <http://
www.tkb.org/Group.jsp?groupID=91> (accessed February 14, 2007). See also MIPT Terrorism
Knowledge Base, “Group Profile: Continuity Irish Republican Army (CIRA),” online: <http://www.tkb.org/
Group.jsp?groupID=37> (accessed February 14, 2007).
MIPT Terrorism Knowledge Base, “Group Profile: Bersatu,” online: <http://www.tkb.org/Group.
jsp?groupID=3569> (accessed February 14, 2007).
MIPT Terrorism Knowledge Base, “Group Profile: Ulster Volunteer Force (UVF),” online: <http://www.tkb.
org/Group.jsp?groupID=124> (accessed February 14, 2007).
MIPT Terrorism Knowledge Base, “Group Profile: Babbar Khalsa International (BKI),” online: <http://www.
tkb.org/Group.jsp?groupID=4568> (accessed February 14, 2007).
Hoffman notes that “…[t]he more successful ethno-nationalist/separatist terrorist organization will
be able to determine an effective level of violence that is at once ‘tolerable’ for the local populace,
tacitly acceptable to international opinion, and sufficiently modulated not to provoke massive
governmental crackdown and reaction.… For some terrorists, however, the desire for action can
lead to an obsession with violence itself.”: Hoffman, Inside Terrorism, pp. 233, 246.
MIPT Terrorism Knowledge Base, “Group Profile: Contras,” online: <http://www.tkb.org/Group.
jsp?groupID=250> (accessed February 14, 2007). For more details on the decline of terrorist groups,
see Steven Hutchinson and Pat O’Malley, “How Terrorist Groups Decline,” ITAC Presents, Trends
in Terrorism Series, Vol. 2007-1, online: Integrated Threat Assessment Centre <http://www.itac-ciem.
gc.ca/pblctns/tc_prsnts/2007-1-eng.asp> (accessed February 24, 2009).
�Chapter I: Terrorist Financing - An Overview
as well as militant activities (John Schmidt, a senior financial
intelligence analyst seconded from FINTRAC to the
Integrated Thread Assessment Centre (ITAC), referred to these as
“large international hierarchical organizations91); Passas testified
that current anti-TF regulatory programs appear most effective
against this type of group;92
• Small and isolated groups that act independently, even though
they may be inspired by other groups (the fully autonomous “lone
wolves,” as Schmidt described them93); and
• Small groups operating on their own but interacting with wider
networks.94
In testimony, Schmidt added to these categories other groups or individuals
whose role consists solely of funding and directing others to carry out terrorist
acts as surrogates.95
Many terrorist groups have a regional or local focus:
• The terrorist activities of the Euskadi Ta Askatasuna (ETA) are largely
contained within Spain and France. ETA’s fundraising activities focus
on the Basque population of the region, and tend to support
criminal activities;96
• The Liberation Tigers of Tamil Eelam (LTTE) are also regionally
focused in that terrorist acts are directed at Sri Lanka and India.97
Despite having only regional objectives, the LTTE raises funds
abroad through Tamil communities in North America, Europe and
Asia.98
Other terrorist groups may have an international focus. Al-Qaida is the most
notorious example:
Al-Qaeda acts in part to fend off perceived attacks on Muslims,
to replace ‘un-Islamic regimes’ that oppress Muslim citizens
with true Islamic governments, expel U.S. soldiers and Western
influence from the Gulf and Iraq and to take control of
Jerusalem as a Muslim city.99
91
92
93
94
95
96
97
98
99
Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6655.
Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6572.
Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6655.
Passas Paper on Terrorism Financing, pp. 56-57.
Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6655.
Loretta Napoleoni, Terror Incorporated: Tracing the Dollars Behind the Terror Networks (New York:
Seven Stories Press, 2005), p. 38 [Napoleoni, Terror Incorporated]. ETA is a Basque nationalist and
separatist organization, known also by its English name, “Basque Homeland and Freedom.”
Napoleoni, Terror Incorporated, p. 242.
This is the designation given to the LTTE by MIPT Terrorism Knowledge Base: MIPT Terrorism
Knowledge Base, “Group Profile: Liberation Tigers of Tamil Eelam (LTTE),” online: <http://www.tkb.
org/Group.jsp?groupID=3623> (accessed February 14, 2007).
MIPT Terrorism Knowledge Base, “Group Profile: Al-Qaeda,” online: <http://www.tkb.org/Group.
jsp?groupID=6> (accessed February 14, 2007).
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Al-Qaida operations are pursued internationally and so is its fundraising.100
Other groups with international goals may have narrower objectives. Hamas,
for example, is said to aim for broad social, moral and political reform based on
Islamic principles, as well as to destroy Israel and create a Palestinian Islamic
state.101
In general, groups with differing ideologies have differing objectives, targets
and methods. As a result, the sources and uses of financing will also differ.
Recognizing the differences among groups is important. An anti-TF measure
that targets funds flowing to a large regional terrorist organization may not be
successful with a smaller, isolated group. Still other measures may be needed to
suppress the flow of funds to international terrorist networks.
1.3.3 Costs Flowing from Terrorism
Governments and terrorist groups each want to deprive the other of funds.
Terrorists know that government money spent on anti-TF measures cannot be
spent on other programs, while governments know that money seized from
terrorist groups cannot be used for their organizational and operational needs.
Terrorist acts impose both direct and indirect costs on the general public:
• Direct costs include the loss of human life and health and the loss
of physical capital due to the physical destructiveness of a
terrorist attack;
• Indirect costs are those incurred by society as terrorist acts raise the
level of fear in the population.
The cost of losing physical capital is relatively easy to estimate. That, however, is
less true of other direct and indirect costs.
1.3.3.1 Direct Costs
The physical costs of many terrorist attacks are small relative to the value of
national or local economies. For example, the cost when an aircraft is destroyed,
while significant in absolute dollar terms, is small in terms of the overall economy
of a country. The physical cost of the 9/11 attacks, including property damage
and clean-up costs, is estimated at US$21.8 billion,102 only a tiny proportion of
the US Gross Domestic Product.
100 This is the designation given to Al-Qaida by MIPT Terrorism Knowledge Base: MIPT Terrorism
Knowledge Base, “Group Profile: Al-Qaeda,” online: <http://www.tkb.org/Group.jsp?groupID=6>
(accessed February 14, 2007).
101 MIPT Terrorism Knowledge Base, “Group Profile: Hamas,” online: <http://www.tkb.org/Group.
jsp?groupID=49> (accessed February 14, 2007).
102 William C. Thompson, Jr., Comptroller, City of New York, One Year Later: The Fiscal Impact of 9/11 on
New York City, September 4, 2002, p. 2 [New York Comptroller Report on Fiscal Impact of 9/11].
�Chapter I: Terrorist Financing - An Overview
The human cost is impossible to quantify. Even if it were possible, no figure
would reflect the enormity of the trauma suffered by victims and their families.
One option, looking at “human capital” very clinically, is to estimate the lost
earnings of terrorist victims. The Comptroller for the City of New York estimated
that the present value of the total loss in future earnings of those killed during
the 9/11 terrorist attacks was about US$8.7 billion.103
In the Air India bombing, the value of the destroyed Air India aircraft was about
US$260 million. In addition, the loss of 329 individuals carried substantial
financial consequences for their families. All this, it bears emphasizing, was
dwarfed by the unquantifiable and devastating emotional trauma. As detailed
in the Commission’s first report, there was “…an enormous loss of human
potential” on June 23, 1985, and many most promising lives were extinguished
in the bombing – “…[p]arents and children, scholars, scientists, doctors, social
workers, business people, artists, humanitarians and students….”104 The victims
included leaders in many fields.105
Most terrorist attacks to date have inflicted smaller direct costs than did the
9/11 or Air India attacks.
1.3.3.2 Indirect Costs
Terrorist acts are often designed to intimidate and disrupt in a manner that
makes the indirect costs far exceed the direct costs. Following a terrorist
incident, citizens and governments, savaged by fear, take many actions to
avoid a repetition. Both governments and the private sector will step up their
counterterrorism efforts. Many individuals, seeking to avoid becoming victims,
will change their behaviour in ways that carry costs both for them and for society.
Examples include the following:
• because of fears about air travel, an individual might avoid travel
by airplane, causing the longer travel times that other
transportation modes require; might use more dangerous transport
(automobiles, for example); or might forego travel altogether if
a good substitute for air travel is not available;
• an individual might choose to locate business and personal
activities in locations where terrorism is less likely, but where
economic opportunities may also be less attractive; and
• some insurance costs might increase, and, if insurance coverage
were reduced or denied for damage or death caused by terrorism,
the individual might bear a greater level of risk.
103 New York Comptroller Report on Fiscal Impact of 9/11, p. 1.
104 Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, The Families
Remember (Ottawa: Public Works and Government Services Canada, 2007), p. 9 [The Families
Remember].
105 The Families Remember, p. 49.
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1.3.3.3 Costs of Counterterrorism Policies
1.3.3.3.1 Public Costs
Counterterrorism efforts by governments can be expensive, involving airport
security and border control measures, the monitoring of the financial system,
and even military operations. Apart from the benefits to security industries and
to those employed by government to deal with terrorism issues, these efforts
drain resources from economically productive activities.
Increased security expenditures by government may be one response to
terrorism. However, terrorism may also create a political climate for governments
to introduce intrusive and expensive security measures and surveillance that
the public would not otherwise tolerate. In both cases, there is an increased cost
to government and a redirection of limited government resources.
1.3.3.3.2 Private Costs
Examples of costs imposed on the private sector by counterterrorism policies
include:
• direct financial costs borne by individuals and businesses to
comply with enhanced counterterrorism laws and policies (such as
the additional costs incurred by private sector financial institutions
to comply with reporting requirements under the PCMLTFA);
• reduced economic activity caused by greater costs to individuals
and businesses (such as higher taxes to support counterterrorism
efforts); and
• the non-monetary cost of the loss of civil liberties and other
freedoms because of counterterrorism laws and policies.
1.3.3.3.3 Economics of Terrorism and Terrorist Financing
Terrorist groups must be selective, choosing the attacks and other activities that
will best help them reach their objectives. Financial constraints limit both the
number and the type of terrorist acts that a group can carry out. In addition,
financial constraints limit the supporting activities (such as propaganda,
recruiting and fundraising) that a group can pursue.
A “substitution effect” occurs when the costs of terrorist activities change. In
general, terrorist groups will limit costly activities and substitute activities that
are less costly. For example, metal detectors began to be installed at airports
in the 1970s. This did not deplete terrorist resources, but it did raise the cost of
carrying out a successful “skyjacking.” As a result, terrorists moved away from
skyjackings but increased the taking of hostages.106
106 Walter Enders and Todd Sandler, The Political Economy of Terrorism (New York: Cambridge University
Press, 2006), pp. 127-128.
�Chapter I: Terrorist Financing - An Overview
1.4 The Terrorist Financing Concept
1.4.1 The Extent of Terrorist Financing
Much terrorist activity, including TF, is covert. As a result, the value of the funds
and property involved is difficult to estimate.107 Differing definitions among
countries of what constitutes terrorism and, by extension, what constitutes TF
further complicate valuations.108
No witness who appeared before this Commission felt it possible to estimate
the dollar value of TF activity, whether in Canada or globally. In short, anti-TF
measures must seek to contain an activity of unknown value.
In Canada, the sums identified in disclosures by FINTRAC to law enforcement
agencies and CSIS are often used to estimate the value of funds involved in TF.109
In 2006, FINTRAC reported $256 million in disclosures related to suspected TF
and other threats to the security of Canada.110 In 2007, the corresponding figure
was $208 million.111 However, witnesses before the Commission raised doubts
about using these figures as indicators of the value of TF in Canada. Mark Potter,
Assistant Director for Government Relationships at FINTRAC, testified that, at
best, these numbers provide raw intelligence that requires further analysis
to make it useful.112 RCMP Superintendent Rick Reynolds indicated that the
amounts reported by FINTRAC as being connected to TF seemed high in light of
the RCMP’s own observations.113
Other jurisdictions have similar problems in determining the value of funds
involved in TF.
1.4.2 Understanding the TF Process
The purposes for which terrorists use funds are commonly described as
operational or organizational.114 Acts of terrorism themselves may cost relatively
little, while maintaining the groups and networks behind those acts generally
costs more.
107 The World Bank Guide to Anti-Money Laundering and Combating Terrorism Financing, p. I-6; Testimony
of Rick Reynolds, vol. 55, October 1, 2007, p. 6826.
108 Martin Rudner, “Using Financial Intelligence Against the Funding of Terrorism” (2006) 19(1)
International Journal of Intelligence and Counterintelligence 32 at 45 [Rudner Article on Using
Financial Intelligence].
109 A review of several media reports and analyses has shown that these numbers are often cited.
110 Financial Transactions and Reports Analysis Centre of Canada, FINTRAC 2006 Annual Report, p.
8, online: Financial Transactions and Reports Analysis Centre of Canada <http://www.fintrac.gc.ca/
publications/ar/2006/AR-eng.pdf> (accessed February 12, 2009).
111 Exhibit P-440, Tab 7: FINTRAC Response to Outstanding Questions related to Terrorist Financing,
Question 2(e).
112 Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 6952-6953.
113 Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6868.
114 See, for example, the FATF Report on Terrorist Financing.
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1.4.2.1 Operational Funding
Operational funding usually includes the cost of an attack, salaries,
communications, travel and training.115 All these expenditures relate to a
specific terrorist operation. Professor Passas gave the Commission estimates of
the operational costs of several terrorist attacks:
Operational Costs of Terror
Madrid 2004 bombings – about €15,000 (in addition to these operational
costs, explosives were acquired in a barter deal for illicit drugs with a street
value of about €35,000)
Bali nightclub bombings – about $20,000
US embassy bombings in Kenya and Tanzania – about $10,000
Attacks in Istanbul – less than $40,000
9/11 attacks – about $320,000 for 19 hijackers over about two years
Paris bombs – a few hundred euros
USS Cole 2000 attack in Aden – less than $10,000
Bishopsgate IRA attack – £3000
London 2005 attacks – a few hundred British pounds
Jakarta 2003 Marriott Hotel bombing – about $30,000
Chechnya:
$4,000 to down the airplanes;
$7,000 for bomb attacks on Kashirskoye Highway and near metro station.
Nord-West operation in Beslan – $9,500
Germany
Planned 2006 train bomb attempt – less than €200
Cologne bomb – $241
Air India bombings – $3000 CAD
Planned Amman, Jordan chemical attack – $170,000 116
115 FATF Report on Terrorist Financing, pp. 7-8.
116 Passas Paper on Terrorism Financing, p. 55. Passas states the following as the sources for this
information: “Personal interviews with investigators and prosecutors from the US, UK, France,
Germany, Spain, Turkey, FBI; UN Monitoring Team reports; on Jordan: Air Security International;
on Chechnya: Shamil Basaev statement; on US East Africa embassy and Bali bombings, 9/11
Commission Staff report: 27-28. It should be noted that an official inquiry into the London bombings
in 2005 estimated the total cost of overseas and UK trips, bomb-making equipment, rent, car hire,
to less than £8,000. This was funded through defaulted loans, account overdrafts and cheques that
eventually bounced.”: pp. 55-56. See also Testimony of Nikos Passas, vol. 53, September 27, 2007, p.
6610.
�Chapter I: Terrorist Financing - An Overview
Passas testified about the difficulties in estimating the value of actual terrorist
operations: “Everybody is going to have a different counting method and this is
why we have a very wide range of estimates in all of these cases.”117 However,
it is striking that relatively small sums are needed to fund actual terrorist
operations.
1.4.2.2 Organizational Funding
Terrorist groups need money for organizational matters such as recruitment,
planning and infrastructure support.118 As noted, it is significantly more costly to
support terrorist organizations and networks than to carry out terrorist acts.119
1.4.3 Terrorist Financing in Practice120
Some methods of TF are widely used, while others are closely identified with
specific groups.121 One TF method might be more suited to a particular group
than to another, and one group may use several fundraising methods. The
methods (though not the planned uses of the funds) may be legal122 or illegal.
One ITAC intelligence assessment stated, for example, that with Al-Qaida, “…
[i]n the absence of a central command to allocate expenditure, the locally
compartmentalized cells have increasingly resorted to raising funds through
whatever local or regional means are available.”123
The reasons for forming a terrorist group, its location, its means, its members and
its objectives all play a role in the way funds are raised and moved.124 To combat
TF, intelligence and law enforcement agencies must acquire an understanding
of how these differences among terrorist groups influence their fundraising
methods.
In his evidence before the Commission, Detective Inspector Paul Newham of
the United Kingdom’s National Terrorist Financial Investigations Unit discussed
the variety of TF methods used in the UK: “Terrorist financing is quite a complex
117 See also Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6610.
118 Rudner Article on Using Financial Intelligence, p. 35.
119 See, for example, the FATF Report on Terrorist Financing, p. 10: “…[A]lthough individual terrorist attacks
can yield great damage at low financial cost, a significant infrastructure (even if relatively loosely
organised) is required to sustain international terrorist networks and promote their goals over time.”
120 For an in-depth analysis of the phenomenon, see Passas Paper on Terrorism Financing.
121 See Testimony of John Schmidt, vol. 53, September 27, 2007, pp. 6656-6657, for a general description
of fundraising activities, both legitimate and illegitimate.
122 These may be “significant amounts”: Passas Paper on Terrorism Financing, p. 34.
123 Exhibit P-223, Tab 2: Integrated Threat Assessment Centre Intelligence Assessment, “Terrorist Financing:
How it is Done, and How it is Countered,” March 24, 2006, para. 2 [ITAC Intelligence Assessment on
Terrorist Financing].
124 The Passas Paper on Terrorism Financing offers a tentative general typology of why certain terrorists
groups would choose one fundraising/transfer method over others at pp. 56-57. See also Testimony of
Nikos Passas, vol. 53, September 27, 2007, p. 6567.
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picture [in the United Kingdom]. It varies regionally. It varies from organization
to organization in terms of terrorist groupings. So there is no one single method
of terrorist financing.”125
John Schmidt from ITAC also spoke about the variety of TF methods: “…[T]
errorist activities can range from being highly specific, planned and organized
to being essentially random and opportunistic and these differences result in
different resourcing needs, capabilities and mechanisms.”126 He said that TF
methods were constantly evolving.127 Professor Passas wrote about the variety
of fundraising methods: “One aspect of terrorist finance is clear and undisputed:
there is a wide range of fund-raising methods and sources, some of which are
particular to specific groups or contexts, while others are quite common across
the board.”128
One ITAC intelligence assessment spoke of the “…great variety of relatively
anonymous methods for raising and moving money” and stated that “…terrorists
have proven resilient in circumventing restrictions and shifting their reliance
among the many conventional and unconventional financial transaction
options.”129
However, Passas warned that “…trivialized conclusions to the effect that
‘everything funds terrorism’ and ‘all channels are used for fund transfers’ …
would not be particularly helpful to strategic planning, prioritization and focus
of limited resources.”130
Those involved in TF go to great lengths to avoid detection by the authorities.
Professor Passas testified that UK police had discovered a manual attributed to
Al-Qaida. The manual discussed the following:
...how to not put all their eggs in the same basket; to have
operational funds in multiple places; not tell other members of
the group where the funds are; take precautions when carrying
amounts of money; to keep it at lower amounts; and also, using
non-members for the facilitation of their transactions.131
125
126
127
128
Testimony of Paul Newham, vol. 58, October 4, 2007, pp. 7227-7228.
Testimony of John Schmidt, vol. 53, September 27, 20007, p. 6655.
Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6655.
Passas Paper on Terrorism Financing, p. 30. See also Testimony of Nikos Passas, vol. 53, September 27,
2007, pp. 6564-6565.
129 ITAC Intelligence Assessment on Terrorist Financing, para. 1. This document encompasses the
kind of work ITAC does, but it is not an example of a standard threat assessment. The document
attempts to give an overview, which John Schmidt qualifies as “good.” The document and model
are exceptions to the work of ITAC because they focus on methodology instead of a specific threat:
Testimony of John Schmidt, vol. 53, September 27, 2007, pp. 6646-6648.
130 Passas Paper on Terrorism Financing, p. 23.
131 Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6578.
�Chapter I: Terrorist Financing - An Overview
1.4.3.1 Raising Funds
1.4.3.1.1 State Support
A Department of Finance Memorandum of Evidence on Terrorist Financing
provided to the Commission explained that there are two primary sources of
funding: state sponsors and “revenue-generating” activities. The Memorandum
placed wealthy donors in the same category as state sponsors.132 Revenuegenerating activities may involve legal or illegal sources.
State support for terrorism is not new. During the Cold War, for example,
superpowers sponsored militant groups around the globe.133 Examples include
state support for extremist Irish, Palestinian, Central and South American,
Angolan and South African groups.134
Even after the Cold War, state sponsorship continued, though in a different
context and for different purposes. The U.S. Department of State currently
designates the following countries as sponsors of terrorism: Cuba, Iran, Sudan
and Syria.135 Professor Passas identified Hamas, Hezbollah, Hizbul Mujahideen,
the Islamic Militant Union (IMU), Islamic Jihad, Lashkar e Taiba (LeT), Jaish-eMohammad (JeM) and Sipah-e-Sahiba (SSP) as among the groups sponsored
by states.136
Professor Hoffman argued that direct state sponsorship of terrorism is used by
some countries “…as a deliberate instrument of foreign policy: a cost-effective
means of waging war covertly, through the use of surrogate warriors or ‘guns for
hire’ – terrorists.”137
However, dependence on states for funding also means that such groups may
become beholden to the wishes of those states. As a result, some terrorist
groups try to reduce their dependence on state sponsorship. Beginning in the
early 1960s, the Palestine Liberation Organization (PLO) took steps to become
independent of state sponsorship, especially that of Egypt and Syria. The PLO
feared that the flow of funds depended on the perceived usefulness of the
group to the domestic politics of the sponsoring states.138
Professor Passas wrote that state sponsorship may include “turning of blind eyes”
to questionable activities rather than providing direct state funding.139 This might
mean a loose application by states of rules governing financial transactions or
charitable organizations. Such states are referred to in this volume as the “weak
links” in the anti-TF process.
132
133
134
135
136
137
138
139
Department of Finance Memorandum of Evidence on Terrorist Financing, para. 2.2.
Passas Paper on Terrorism Financing, p. 31.
Passas Paper on Terrorism Financing, p. 31.
Office of the Coordinator for Counterterrorism, “State Sponsors of Terrorism,” online: U.S. Department of
State <http://www.state.gov/s/ct/c14151.htm> (accessed February 12, 2009).
Passas Paper on Terrorism Financing, p. 31.
Hoffman, Inside Terrorism, p. 258.
Napoleoni, Terror Incorporated, p. 45.
Passas Paper on Terrorism Financing, p. 19.
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Besides the desire of some terrorist groups to end reliance on state support,
international pressures may have played a role in the decline of state
sponsorship.140 As state sponsorship diminishes, terrorist groups must find other
ways to raise funds. Still, state sponsorship remains an important component
of TF. Passas noted that “…[e]ven though virtually everyone agrees that state
sponsorship is in decline, the phenomenon has not disappeared.”141
1.4.3.1.2 “Legitimate” Sources of Funds
Employment and Business Income
One relatively simple way to raise money for terrorism purposes is to use money
gained by legitimate means.142 The owner of a legal business could use its profits
to subsidize terrorist activities. The profits would be legitimate, but giving them
to a terrorist group would violate the Criminal Code. In other cases, a terrorist
organization itself controls a business. It can both use the profits and rely on any
“synergy” between the business and the objectives of the organization, as in the
following situations:
• The business provides goods or services that the terrorist
organization can use in its own operations; or
• The business provides goods or services that a community needs
but cannot otherwise obtain, generating goodwill among the
community members whose support the terrorist organization is
seeking.
In his report, Professor Passas stated that the most resilient and well-organized
groups were diversifying into legitimate businesses. These included the Abu
Nidal Organisation, LeT, LTTE, the Fuerzas Armadas Revolucionarias de Colombia
(FARC), Hezbollah, the Irish Republican Army (IRA) and Jemaah Islamiya.143
One oft–cited, but controversial, example of a legitimate business that was
reportedly controlled by a terrorist entity and that may have financed terrorism
is the Gum Arabic Company Ltd. Napoleoni wrote that Usama bin Laden had
acquired the company and that it had a near monopoly in the Arabic gum
market.144 The controversy arises about whether the company was actually used
to finance terrorist activity. The U.S. 9/11 Commission, for example, concluded
that Al Qaida did not benefit from businesses belonging to bin Laden or from
his personal fortune.145 Whether or not the business was used to fund terrorist
activity, the Gum Arabic Company stands as a possible example of how a
legitimate business could be controlled by a terrorist organization and used to
facilitate TF.
140
141
142
143
144
145
FATF Report on Terrorist Financing, p. 15.
Passas Paper on Terrorism Financing, p. 31.
Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6564.
Passas Paper on Terrorism Financing, p. 34.
See, for example, Napoleoni, Terror Incorporated, p. 167.
National Commission Monograph on Terrorist Financing, pp. 17, 20.
�Chapter I: Terrorist Financing - An Overview
Self-funding through a business or the personal finances of members of an
organization is ideal for financing smaller attacks,146 and where the group’s
operating costs are not great.
Charitable Organizations147
The 2006 ITAC Intelligence Assessment, Terrorist Financing: How it is Done,
and How it is Countered, states that “…[c]harities constitute, wittingly or not, a
significant source of financing.”148 Professor Passas wrote that “…[w]ith respect
to charities, a distinction can be drawn between those that have had their funds
unknowingly diverted and those that have been corrupted and act as fronts.”149
The funds provided to charities by well-meaning contributors can be diverted
“on the ground.”150 As Professor Rudner, Professor Emeritus and distinguished
research professor at Carleton University, wrote, “…[e]xtremist clerics, corrupt
officials, and well-placed facilitators have functioned as critical enablers for that
redirection of funds from religious institutions and humanitarian organizations
to terrorist activities and operations.”151 In some cases individuals knowingly
contribute to charities that are “fronts” for terrorist organizations.
The FATF noted that, because of the large volume of funds and assets handled
by the charitable sector, even a small part of those funds ending up in terrorist
hands would pose a serious problem.152
An extensive discussion of the role of charities in TF, and particularly the role of
Canadian charities, appears in Chapter VI.
1.4.3.1.3 Illegal Sources of Funds
The relationship between terrorism and other types of crimes is complex.153
Criminal activity can provide funds for terrorist groups, although criminals may
not work in the same ways as terrorist groups to raise funds. Professor Passas
noted that “...criminal groups for-profit have very different motives and often
146
147
148
149
150
151
152
153
FATF Report on Terrorist Financing, p. 14.
See also Testimony of Nikos Passas, vol. 53, September 27, 2007, pp. 6578-6588.
ITAC Intelligence Assessment on Terrorist Financing, para. 5.
Passas Paper on Terrorism Financing, p. 34. For examples of fronts, see Rudner Article on Using
Financial Intelligence, p. 44.
Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6565.
Rudner Article on Using Financial Intelligence, p. 44.
FATF Report on Terrorist Financing, p. 25.
See passages in the Passas Paper on Terrorism Financing, pp. 35-42; Testimony of Nikos Passas, vol.
53, September 27, 2007, pp. 6565-6666; Yvon Dandurand and Vivienne Chin, “Links Between Terrorism
and Other Forms of Crime” (2004), Report to Foreign Affairs Canada and The United Nations Office
on Drugs and Crime, online: International Centre fro Criminal Law Reform and Criminal Justice
Policy <http:/www.icclr.law.ubc.ca/Publications/Reports/TNOC_LINKS_STUDY_REPORT.pdf> (accessed
February 24, 2009); and Pat O’Malley and Steven Hutchinson, “Actual and Potential Links Between
Terrorism and Criminality,” ITAC Presents, Trends in Terrorism Series, Vol. 2006-5, online:
Integrated Threat Assessment Centre <http://www.itac-ciem.gc.ca/pblctns/tc_prsnts/2006-5-eng.asp>
(accessed February 24, 2009) [O’Malley and Hutchinson Article on Links Between Terrorism and
Criminality], among many others.
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different methods, different objectives, than militant ideologically motivated
groups.”154 As a result, security intelligence and law enforcement authorities
must be alert to numerous criminal fundraising options when developing antiTF measures.
An ITAC intelligence assessment described the shift towards criminal activity to
provide TF:
As a result of the crackdown on charities and front companies,
some experts believe terrorist reliance on illegal money has
increased exponentially....Criminal activity associated with
terrorists includes the drug trade, smuggling of weapons and
other goods, fraud, kidnapping, extortion, credit card and bank
account fraud and manipulation, and simple robbery.155
The range of criminal activity that can be used to raise funds is broad. Passas
identified robberies, extortion, kidnapping, hijacking, informal taxation of
both legal and criminal enterprises, blackmail, protection rackets, fraud,
counterfeiting, drug trafficking and smuggling.156 The FATF noted that some
terrorist groups might move from one type of criminal activity to another as the
situation requires.157
The extortion of members of expatriate communities is an oft-used and effective
TF technique, especially where there are substantial expatriate communities
originating from current or former conflict zones. The extortion may involve
the unofficial “taxation” of the legitimate earnings, savings or businesses of
community members.158 They often cooperate out of fear of retribution against
themselves or their families in Canada or abroad.159
In Canada, two groups have been exposed for their alleged extortion – the
LTTE and the World Tamil Movement (WTM). Both target the sizeable Tamil
community in Canada. One RCMP affidavit in a case involving the LTTE stated
that its investigation of the LTTE revealed that the World Tamil Movement
and the LTTE “…have been demonstrated to utilize pressure tactics to elicit
154 Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6565.
155 ITAC Intelligence Assessment on Terrorist Financing, para. 11. The ITAC document also discusses the
North Carolina case and similar examples in Europe at paras. 12-13.
156 Passas Paper on Terrorism Financing, pp. 35-36; Testimony of Nikos Passas, vol. 53, September 27, 2007,
p. 6565.
157 FATF Report on Terrorist Financing, p. 19.
158 FATF Report on Terrorist Financing, p. 18.
159 FATF Report on Terrorist Financing, p. 18.
�Chapter I: Terrorist Financing - An Overview
funds and donations as well as to participate in veiled threats.”160 The same
affidavit presented many examples of alleged TF activities, and stated that “…
[f ]undraising activities were being conducted aggressively by WTM members
in the Montreal area. The WTM members were visiting families and businesses
in the Tamil community, demanding amounts which ranged from $2500 to
$30,000.161
The profit generated by criminal activity can be much greater than that of
legitimate businesses. This is because criminal activity typically involves either
appropriation from others or the enormous profits that criminals make in
illicit (“black”) markets, such as those created by drug prohibition, excessive
or differential tax rates on alcohol and tobacco, high import duties and other
trade barriers.162 In a black market, criminal organizations, often using physical
intimidation, can assert monopoly control, charging exorbitant prices and
bringing in correspondingly large profits.
Smuggling and selling contraband on the black market is not restricted to
developing countries. The trade in illegal drugs is one example of an illegal
market that thrives even in wealthy countries. Hezbollah is known to have
benefited from smuggling cigarettes between North Carolina and Michigan,
exploiting the differences in sales taxes between the two states.163
Because of the black market created by their prohibition, illegal drugs are a major
source of income for some terrorist and insurgent groups. Law enforcement and
security intelligence authorities have observed a recurring link between drugs
and terrorism.164 The 9/11 Commission’s monograph on TF stated that drugs
were an important source of income for the Taliban. However, the Commission
found no substantial evidence of links, before or after 9/11, between Al-Qaida
and the drug trade.165
160 Affidavit of Shirley Davermann, April 1, 2008, para. 3 [Affidavit of Shirley Davermann]. The LTTE also
apparently benefited from pre-authorized payment plans. For an interesting read on the LTTE
in Canada (and other groups), see Stewart Bell, Cold Terror: How Canada Nurtures and Exports
Terrorism Around the World (John Wiley & Sons Canada, Ltd., 2007). Bell quotes a leading world expert
on the LTTE as stating that Canada is the bank of the LTTE. Bell also notes estimates that the LTTE was
raising millions of dollars per year in Canada: pp. 49-50. He gives examples of alleged trade-business
fraud and fraud companies (p. 68), false charitable donations (p. 66), collection jars and the sale of
paraphernalia (pp. 52-65) and government grants (pp. 59-61). Furthermore, according to Bell, one
reason for the significant LTTE presence in Canada is the relative speed with which the organization
was designated in the U.S. (in contrast to Canada): p. 79.
161 Affidavit of Shirley Davermann, para. 239.
162 Napoleoni, Terror Incorporated, p. 202.
163 For more information, see O’Malley and Hutchinson Article on Links Between Terrorism and Criminality,
p. 4.
164 FATF Report on Terrorist Financing, p. 15. In his paper, Passas warned the Commission that links
between drugs and terrorism should not be made too hastily: “Even though such links are not
surprising, it must be impressed that there are very good reasons why any alliances between terrorists
and drug traffickers cannot last for very long, due to fundamental incompatibilities of objectives and
outlook as well as attitudes toward the State.”: Passas Paper on Terrorism Financing, p. 38.
165 National Commission Monograph on Terrorist Financing, pp. 22-23.
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1.4.3.1.4 Other Sources of Funds
Professor Rudner observed that “…[m]ilitant groups have also raised substantial
funds through the sale of inspirational tracts, advocacy literature, audio
cassettes, videos and CDs, and other iconic paraphernalia.”166 Some sales would
be legitimate, but others could be illegal, such as sales of material promoting
hatred.
1.4.3.2 Movement of Funds
Raising funds is the first major component of TF. The second is moving the
funds after they are raised. Funds may need to leave Canada to fund a terrorist
attack or terrorist organization abroad, or they may be sent to Canada to fund
an organization or attack here. Because funds may be more “exposed” while
they are being moved, authorities can sometimes use these movements to help
identify terrorists and TF. FINTRAC and most of the world’s FIUs are set up mainly
to detect movements of money through reports of suspicious transactions.
FINTRAC receives such reports as well as information about other financial
transactions, including international wire transfers. The fundraising mechanisms
themselves, rather than movements of funds, are easier to combat through CSIS
or RCMP operations or, in the case of charities, through monitoring by the CRA.
In his paper, Passas argued that “…one can hardly find a method that has not
been used by one group or another to make payments or transfer funds and
value.”167 In his testimony, he added that “…the range…is only limited by your
imagination.”168 The FATF reached a similar conclusion: “[E]xperience suggests
that all of the mechanisms that exist to move money around the globe are to
some extent at risk” of being used for TF.169
A terrorist group involved in “self-funding” through a business or through the
personal finances of its members might not have to move the funds, making it
much easier to avoid notice by agencies such as FINTRAC and the entities that
report to it.
1.4.3.2.1 Traditional Banking and Financial Systems
Terrorist groups, like most organizations, use formal banking and financial
systems in Canada and abroad to transfer and store money. They may hold
accounts in the names of individuals, businesses, charities and other entities.
In addition, terrorist groups may use traditional fund transfer methods such
as cheques and electronic funds (wire) transfers. They may also use money
laundering methods to disguise the source and intended use of funds, including
the following:
166 Martin Rudner, “Building Canada’s Counter-Terrorism Capacity: A Proactive All-of-Government
Approach to Intelligence-Led Counter-Terrorism” in Vol. 1 of Research Studies: Threat Assessment
RCMP/CSIS Co-operation, p. 120 [Rudner Paper on Building Counter-Terrorism Capacity].
167 Passas Paper on Terrorism Financing, p. 42.
168 Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6566.
169 FATF Report on Terrorist Financing, p. 21.
�Chapter I: Terrorist Financing - An Overview
• opening numerous banking accounts containing relatively small
amounts, to create complex paper trails;
• using “front” businesses to reintegrate funds into the financial
system and make the funds appear to have come from legitimate
sources; and
• placing funds in off-shore tax havens.
In Western countries, financial systems are well developed and involve extensive
electronic records. However, most accounts held with banks in these countries
and the transactions which terrorist organizations conduct through them are
sufficiently small that it is extremely difficult, if not impossible, for authorities to
distinguish these transactions from ordinary banking activity.170
The funds needed to support terrorist groups and acts amount to only a tiny
fraction of the hundreds of millions of dollars of transactions processed by the
Canadian banking system daily, and the billions processed in the United States.
Because transactions linked to terrorism do not have unique characteristics
that allow them to be singled out by electronic searches or the monitoring of
transaction records, it is impossible to identify all flows of funds that could relate
to terrorism.
Financial institutions also have little incentive to monitor flows of funds relating
to terrorism, unless obliged by law to do so. However, most financial institutions
in developed countries likely see value in being good corporate citizens and
would not want to be seen as facilitating or being complicit in TF. However,
would-be good corporate citizens face a cost disincentive since they must bear
the full cost of their monitoring systems.
1.4.3.2.2 Informal and Unregulated Channels for Moving Funds
The focus of anti-TF measures on the conventional banking system may have led
terrorist financiers to shift to methods of moving funds that are more difficult
for authorities to monitor. A 2006 ITAC intelligence assessment observed that,
“…[d]eprived of safe access to conventional banking, terrorists have turned to
harder-to-detect remittance methods, such as hawalas and couriers.”171
Much has been said and written about the use of informal channels to move
terrorist funds, especially hawala,172 an informal value transfer system (IVTS).
Through international migration and the Internet, hawala has spread around
170 See, for example, Ilias Bantekas, “The International Law of Terrorist Financing” (2003) 97(2) American
Journal of International Law 315.
171 ITAC Intelligence Assessment on Terrorist Financing, para. 16.
172 For a history and explanation of hawala, see Nikos Passas, “Demystifying Hawala: A Look Into Its
Social Organisation and Mechanics” (2006) 7(1) Journal of Scandinavian Studies in Criminology and
Crime Prevention 46 [Passas Article on Hawala]; Passas Paper on Terrorism Financing, pp. 44-45;
Testimony of Nikos Passas, vol. 53, September 27, 2007, pp. 6589-6599. INTERPOL also describes hawala
on its website, online: <http://www.interpol.int/Public/FinancialCrime/MoneyLaundering/hawala/
default.asp> (accessed February 24, 2009).
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the world, although it is most popular in the Middle East and Asia and within
immigrant communities in the West.
At a minimum, hawala involves a remitter, a recipient and two hawala operators,
one working in each country with the remitter and recipient respectively. Hawala
has two main elements: 1) the sending and receiving of money (this involves a
hawala operator (hawaladar) and the client), and 2) the settlement process (this
involves intermediaries and agents who play a role in the transaction). According
to Passas, the first element is relatively straightforward, while the settlement
process can be much more complex.173
In 2006, the Canadian Centre for Intelligence and Security Studies described a
transfer of funds using hawala as follows:
Hawala transfers money from one country to another without
actually moving it, and the system is based on trust, to move
funds and settle accounts with almost no paper trail. The
transfer takes place as follows. Person A from country X wants
to send money to person B in country Y. Person A gives the
money to a broker (Hawaladar) in country X, who charges her
a relatively low fee together with a more favorable exchange
rate than what is offered by the bank. The broker then contacts
another broker in country Y by phone, fax or email, who gives
the money to person B based on a prearranged code word
or number. To settle accounts with each other, the broker
in country X can either reduce the debt owed by her to the
broker in country Y, or else, expect a remittance from the
latter.174
In his paper, Passas identified several other informal value transfer systems:
Hawala, Hundi, Black market peso exchange networks,
Fei chien (door-to-door and other Asian varieties), Invoice
manipulation schemes, In-kind transfers, Trade diversion
schemes, Courier services and physical transfer methods,
Corresponding banking accounts, Charities, Gift and money
transfer services overseas via special vouchers and internet
web sites, Digital/Internet based transfers, Stored value (such
as pre-paid telephone cards) and finally, Debit and credit cards
used by multiple individuals.175
173 Passas Article on Hawala, p. 50; Testimony of Nikos Passas, vol. 53, September 27, 2007, pp. 6589-6599.
174 Canadian Centre for Intelligence and Security Studies, “Terrorism Financing and Financial System
Vulnerabilities: Issues and Challenges,” Vol. 2006-3, pp. 7-8, online: Integrated Threat Assessment
Centre <http://www.itac-ciem.gc.ca/pblctns/tc_prsnts/2006-3-eng.pdf> (accessed February 12, 2009)
[CCISS Paper on Terrorism Financing].
175 Passas Paper on Terrorism Financing, p. 43. As can be seen from the list, Passas believed that using
charities, for example, to move money is an informal channel.
�Chapter I: Terrorist Financing - An Overview
There may be other, lesser known, informal transfer methods, and additional
methods will emerge over time.
The chart below illustrates numerous types of informal value transfer
mechanisms, ranging from physical transport using couriers to more
sophisticated means that include brokerage accounts and Internet payment
systems.176
Source: Passas Paper on Terrorism Financing, p. 43.
Passas stated in his paper for the Commission that informal value transfer
systems, especially hawala, became the target of aggressive policy-making “…
after the word was uttered during a US Congressional hearing suggesting that
this was the preferred method for al Qaeda and similar Islamist groups.”177 The
international community views IVTS as a weakness in global anti-TF efforts. As
well, these systems are not always fully understood by Western government
authorities.178 In addition, some see IVTS as a vulnerable point in anti-TF efforts
because they believe that the systems leave a less substantial paper trail than
formal transfer mechanisms. However, in his testimony, Passas criticized the
“absence of paper trail” argument, at least as it related to hawala, stating that
it was a “…myth that [hawala] is something without trails.” He gave several
examples of the types of records that hawala produces. He added, “…instead of
talking about paperless [transactions], lack of trail and so on, sometimes there’s
just too much of it.”179
176
177
178
179
Passas Paper on Terrorism Financing, p. 43.
Passas Paper on Terrorism Financing, p. 44.
See CCISS Paper on Terrorism Financing, p. 7.
Testimony of Nikos Passas, vol. 53, September 27, 2007, pp. 6591-6594.
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The FATF responded to concerns about the use of IVTS in its Special
Recommendation VI:
Each country should take measures to ensure that persons
or legal entities, including agents, that provide a service for
the transmission of money or value, including transmission
through an informal money or value transfer system or
network, should be licensed or registered and subject to all
the FATF Recommendations that apply to banks and non-bank
financial institutions. Each country should ensure that persons
or legal entities that carry out this service illegally are subject
to administrative, civil or criminal sanctions.
Passas warned the Commission to be cautious about demonizing some
mechanisms, especially hawala. He stated that “…there are very legitimate
reasons why this [hawala] is happening.” Pointing during his testimony to a
graphic photo of desolation to show that, in some places “…there is no ATM
machine,” he added, “…[i]f we misapply financial controls and take out useful
services to these regions, they are the victims of misapplied law enforcement
actions – innocent people who rely on Hawala in order to get the means of
survival for them today.”180
Professor Rudner also acknowledged that a system such as hawala might be
used to move money for TF. However, he also cautioned against disproportionate
concern about hawala:
Although terrorism finance may in fact flow through informal
value-transfer systems, little evidence suggests that traditional
hawala-type mechanisms represent terrorists’ preferred vehicle
for financial transfers, or that these informal systems are more
prone to terrorist exploitation than the formal, regulated
financial sector.181
Hawala and other informal value transfer systems can be used for TF. However,
they are not instruments of TF per se – an important distinction. In the end,
hawala is simply one of many ways to move money for TF.182 As Passas testified,
“It is…recognized widely that the overwhelming majority of Hawala customers
are legitimate people sending honestly earned money overseas. But it is also
confirmed that it is subject to abuse just as is any other financial institution you
can think of.” 183
180 Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6660.
181 Rudner Article on Using Financial Intelligence, p. 46. Rudner cited a report from the Netherlands
Ministry of Justice Research and Document Centre that came to the same conclusion.
182 Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6609.
183 Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6609.
�Chapter I: Terrorist Financing - An Overview
1.4.3.2.3 Couriers
FATF Special Recommendation IX calls for countries to have measures in place
“…to detect the physical cross-border transportation of currency and bearer
negotiable instruments, including a declaration system or other disclosure
obligation.” The FATF noted that the movement of cash across borders is
prevalent and that couriers were one means of doing this.184 Couriers might be
more expensive than ordinary wire transfers, but less likely to leave an audit
trail.185
A 2006 ITAC intelligence assessment reported that since 9/11 “…major terrorist
cash transfers are also done by trusted couriers or, for added security, by the
main operatives themselves.”186
1.4.3.2.4 Trade Diversion
Passas identified commercial trade transactions as being vulnerable to TF and
money laundering:187
Literally volumes can be written about the vulnerabilities
to abuse of trade transactions, which constitute a weak link
(possibly the weakest and riskiest link) in AML/CFT [anti-money
laundering/countering the financing of terrorism] efforts and
other regulatory regimes….188
With trillions of dollars changing hands worldwide daily, it is almost impossible
to escape the conclusion that trade transactions provide a “sea of possibilities”
for TF.189
John Schmidt of ITAC agreed with the concerns of Passas about the trade
sector.190 The FATF recently observed that the trade sector is vulnerable191 (and
published a 40-page paper on the subject in 2006192), but it has not made specific
recommendations relating to trade transactions. However, the international
community has addressed some aspects of the trade issue, such as trading in
diamonds produced in conflict zones (“conflict diamonds”).193
184 FATF Report on Terrorist Financing, p. 23.
185 FATF Report on Terrorist Financing, p. 24.
186 ITAC Intelligence Assessment on Terrorist Financing, para. 18. Passas reached a similar conclusion:
Passas Paper on Terrorism Financing, p. 45.
187 For a general study of the commercial trade area as it relates to TF, see Testimony of Nikos Passas, vol.
53, September 27, 2007, pp. 6614-6622.
188 Passas Paper on Terrorism Financing, p. 46.
189 Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6614.
190 Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6658.
191 FATF Report on Terrorist Financing, p. 23.
192 Financial Action Task Force, Trade Based Money Laundering, June 23, 2006, online: Financial Action Task
Force <http://www.fatf-gafi.org/dataoecd/60/25/37038272.pdf> (accessed February 12, 2009).
193 Passas also testified that the gold trade has been used to support terrorism in Colombia. For more
information on gold and the conflict diamonds as they concern TF, see Testimony of Nikos Passas, vol.
53, September 27, 2007, pp. 6614-6618.
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1.4.3.3 Terrorist Financing “Typologies” (Trends and Methods)
The methods and trends associated with a given phenomenon are known as
“typologies.”194 Typologies can help officials to understand a phenomenon and
develop better responses to it.
Several international organizations have identified typologies in money
laundering and TF matters. The FATF considers developing typologies a
key component of its work and has published several documents showing
the typologies of money laundering and TF cases.195 A quick review of these
documents shows that the FATF focuses primarily on money laundering, but
recognizes that there is some similarity between TF and money laundering
typologies. Several FIUs throughout the world, including FINTRAC, provide
typologies to the FATF.
Several of the TF typologies published by the FATF are set out below.
Case study: Diversion of funds from legitimate business
The personal bank account of Person A (a restaurant manager) regularly
received cheques drawn from wooden pallet Company B, as well as significant
cash deposits. The account did not show any “normal” financial activity such
as payment for food, travel, etc. The bank account of Company B also showed
significant cash withdrawals of between EUR 500000 and EUR 1 million.
The bank where A’s account was held became suspicious because of the
inconsistency between Person A’s profession and the nature of Company
B’s business and submitted a suspicious transaction report to the financial
intelligence unit. FIU analysis revealed that the individuals concerned were
linked to Salafist movements, and the case was referred to prosecutors for
wider investigation.
Source: France
194 Financial Action Task Force, Money Laundering & Terrorist Financing Typologies 2004-2005, June 10,
2005, p. 1, online: Financial Action Task Force <http://www.fatf-gafi.org/dataoecd/16/8/35003256.pdf>
(accessed February 17, 2009) [FATF 2004-05 Typologies].
195 FATF 2004-05 Typologies, p. 1.
�Chapter I: Terrorist Financing - An Overview
Case study: Small, self-funding network plans attack
In July 2006, rail employees found two unattended suitcases on two German
regional trains. Improvised explosive and incendiary devices were discovered
in each suitable consisting of a propane tank, an alarm clock as a timer, batteries
for energy supply, various detonating agents as well as a plastic bottle filled
with petrol. The instructions for building an explosive device were taken from
an al-Qaeda-linked website, with components purchased in ordinary shops,
costing no more than EUR 250.
No suspicious funding from abroad was required, and the suspect’s primary
source of funding during this period was from family members to pay for
his education. The only transactions that appear to have been linked to the
planned attack were for plastic bottles, which when filled with petrol and
linked to propane tanks would have made an improvised explosive device.
Source: Germany
Case study: Terrorist organisation extorts money from drug traffickers
An investigation and prosecution carried out by Turkish authorities revealed
that drug trafficking is the principal source of funds for a terrorist organisation.
Drugs are grown in Pakistan, Afghanistan and Iran; and sent from there to
Europe, both through known members of the organisation, and through their
associates and other non-designated militants.
In 2007, more than 10 members of the organisation terrorist group were
arrested and large amounts of money seized. Investigation and testimony by
these members revealed that the organisation extorts money from smugglers
at points of entry in the North of Iraq in the form of “taxes” worth around 7%
of the value of smuggled items. The groups also collect money for each person
or each car crossing their ‘customs points.’ One such “customs point” earns
USD 20,000 - 30 000 per week. One member of the group stated that the most
important income for the group is the money collected from drug traffickers
as ‘taxation’.
Source: Turkey
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Case study: Extortion of a commercial organisation
In September 2007, Company C was sentenced to pay a USD 25 million criminal
fine, placed on five years of corporate probation and ordered to implement
and maintain an effective compliance and ethics program. Earlier in the year,
Company C pleaded guilty to one count of engaging in transactions with a
Specially Designated Global Terrorist (SDGT) in that, from 1997 through 2004,
the company made payments to a terrorist group. The payments, demanded
by the group, were made nearly every month and totalled over USD 1.7 million.
The group was designated as a Foreign Terrorist Organisation in September
2001, and listed as an SDGT in October 2001.
Source: United States
Case Study: Terrorist organization uses MVT mechanisms to move money
Person D, a leader of a terrorist organization based in Country C and once a
resident in Country A, was in hiding in Country B. The FIU in Country A found
out through investigations that persons in Country A were sending money
through money transfers to D’s friends in Country B to financially support him.
The money flow was detected because the transfers were made by nationals
of Country C — which was unusual in Country A. Person D was later arrested in
Country B on suspicion of terrorism. Money transfers from Country A to Country
B were presented in court as supporting evidence of terrorist financing.
Source: The Netherlands
The Egmont Group of Financial Intelligence Units (Egmont Group) has published
a review of 100 “sanitized” cases relating to money laundering.196 Relatively few
deal with TF.197
1.4.3.3.1 The “Terrorism Operational Cycle”
In his testimony and in a related paper, Professor Rudner described his model
of a “terrorism operational cycle.” He developed the model by looking at case
studies of terrorism and “…breaking terrorism down into its functional and
enabling activities.”
196 The Egmont Group, FIU’s in action: 100 cases from the Egmont Group, online: The Egmont Group
<http://www.egmontgroup.org/files/library_sanitized_cases/100casesgb.pdf> (accessed February 12,
2009).
197 These can be accessed online: The Egmont Group <http://www.egmontgroup.org/library_sanitized_
cases.html> (accessed February 12, 2009).
�Chapter I: Terrorist Financing - An Overview
Rudner identified 11 stages of the cycle. Each stage consisted of a set of activities
which enabled terrorism to proceed.198 Rudner testified that the model could
apply to any terrorist phenomenon.199
Rudner described the 11 stages of the cycle as follows:200
•
•
•
•
•
•
•
•
•
•
•
strategic planning;
recruitment;
training;
communication;
financing;
procurement;
infrastructure;
tactical preparations;
propaganda;
reconnaissance; and
terrorist assaults.201
It appears that money plays a role in most, if not all, of the 11 stages of the cycle,
not merely in the “financing” and “procurement” stages. Rudner considered the
financing and procurement stages as among the most sensitive in a democratic
context because of the intrusive legal measures usually required to investigate
the activities involved.202
1.4.3.3.2 The Schmidt “Terrorist Resourcing Model”
John Schmidt of ITAC testified about a model he had developed of the TF
process – the “Terrorist Resourcing Model.”203 Schmidt started developing the
model while at FINTRAC, and eventually enhanced it with information gathered
after he was seconded to ITAC.204 It appears to be the only model of its kind,205
and has been well received by both domestic and international partners.206
Professor Rudner’s model of a “terrorism operational cycle,” discussed above,
breaks “terrorism” into its functional and enabling activities, including financing
and procurement; the Schmidt model focuses solely on TF.
198 Testimony of Martin Rudner, vol. 92, December 10, 2007, p. 12211.
199 Testimony of Martin Rudner, vol. 92, December 10, 2007, pp. 12211-12240.
200 Rudner Paper on Building Counter-Terrorism Capacity, pp. 114-125. Rudner’s testimony and paper
differ slightly in the description of the stages. The Commission is using the description of the stages
from his testimony.
201 In his paper, Rudner uses the term “penetrating sensitive government departments, agencies and
institutions” as the 9th of 12 steps.
202 Testimony of Martin Rudner, vol. 92, December 10, 2007, pp. 12232-12233.
203 The model was first explained to Commission counsel when Schmidt presented it at a seminar on TF
issues in Montreal.
204 Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6651.
205 Testimony of John Schmidt, vol. 53, September 27, 2007, pp. 6661-6662.
206 Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6663.
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Schmidt named his model the “Terrorist Resourcing Model” rather than the
“Terrorist Financing Model” because, in his view, TF does not necessarily involve
money. It can consist of an exchange of goods and, even if money is used, it may
not reach the operating cell if it is exchanged before then for goods.207
Both classified and open-source information were used to build Schmidt’s
model, and it was reviewed by several experts before its description was
published.208 One goal of the model is to inform those working on TF matters,209
and it may also help to identify gaps in efforts to counter TF.210 ITAC and FINTRAC
are cooperating to find ways to test the model.211
The model identifies five stages of TF. The stages need not always occur in
the same order and may not be present in every case. They are summarized
below:212
First Stage: Acquisition
Acquisition activities are fundraising activities. Acquisition can also consist of
the direct contribution or receipt of goods or services – for example, weapons,
vehicles, explosives or food.
Second Stage: Aggregation
This stage consists of pooling resources, either in a few financial institutions (for
money) or in a few physical locations (for goods). In some cases, the aggregation
stage is bypassed completely.
Third Stage: Transmission to a Terrorist Organization
Here, the funds or goods are moved. Schmidt testified that this stage often
involves at least one international movement of the funds or goods. The
movement might occur in several steps.
Fourth Stage: Transmission to a Terrorist Cell (Allocation or
Disaggregation)
The terrorist organization allocates funds or goods to the appropriate cell
in charge of a given activity. In the model, “activity” means much more than
attacks, and includes matters such as direct support, propaganda, intelligence
gathering, recruitment and radicalization. If funds are allocated rather than
converted into goods, this will be the last stage of the process.
207 Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6654. For consistency, this chapter
continues to use the term “terrorist financing.”
208 Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6651.
209 Testimony of John Schmidt, vol. 53, September 27, 2007, pp. 6651-6652.
210 Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6652.
211 Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6661.
212 Testimony of John Schmidt, vol. 53, September 27, 2007, pp. 6657-6659.
�Chapter I: Terrorist Financing - An Overview
Fifth Stage: Conversion
This stage consists of exchanging funds or goods for end-use goods. For
example, money may be used to buy a vehicle.213
1.4.3.3.3 Possible Sequences in the Terrorist Financing Process
The order of the stages in Schmidt’s model may vary and some stages may also
be omitted. Below are examples of possible variations.214
Acquisition
Aggregation
Transmission to
Transmission to
Terrorist Organization
Operational Cell
Conversion
ENDUSE
GOODS
Acquisition
Aggregation
Transmission to
Transmission to
Terrorist Organization
Operational Cell
Conversion
ENDUSE
GOODS
213 Testimony of John Schmidt, vol. 53, September 27, 2007, pp. 6657-6659.
214 Exhibit P-223, Tab 4: John Schmidt, “A Terrorist Financing/Resourcing Model,” August 2007, pp. 18-21
[Schmidt Terrorist Financing Model].
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Acquisition
Aggregation
Transmission to
Operational Cell
Transmission to
Terrorist Organization
ENDUSE
GOODS
Conversion
Acquisition
Aggregation
Transmission to
Terrorist Organization
ENDUSE
GOODS
Transmission to
Operational Cell
Conversion
1.4.3.3.4 Similarities between the Rudner and Schmidt Models
In Professor Rudner’s model of a “terrorism operational cycle,” which involved
eleven stages, the fifth stage was “financing.”215 Financing involved the
following:
215 Testimony of Martin Rudner, vol. 92, December 10, 2007, pp. 12211-12212.
�Chapter I: Terrorist Financing - An Overview
• raising funds;
• remitting them to a safe place; and
• transferring them to their final destination.216
Rudner and Schmidt described the TF process in similar ways. Rudner spoke
of raising funds, remitting them to a safe place and transferring them to their
destination. Schmidt spoke of acquisition, aggregation and transmission.
1.4.3.4 Relationship between Terrorist Financing and Money Laundering
Up to this point, this chapter has discussed two models of how TF works in
practice. It is also useful to understand the relationship between TF and money
laundering to determine whether the techniques used to combat money
laundering are suitable for pursuing TF.
1.4.3.4.1 Historically
The concept of money laundering was first introduced into the international
community in the United Nations Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, 1988.217 The Convention required parties to
establish criminal offences relating to money laundering.
Immediately after 9/11, countries called for measures to fight TF. In an effort to
respond quickly, the money laundering model was chosen.218
UN Security Council Resolution 1373 (2001) spoke of a connection between
international terrorism and money laundering:
[The Security Council] [n]otes with concern the close
connection between international terrorism and transnational
organized crime, illicit drugs, money-laundering, illegal
arms-trafficking, and illegal movement of nuclear, chemical,
biological and other potentially deadly materials, and in this
regard emphasizes the need to enhance coordination of efforts
on national, subregional, regional and international levels in
order to strengthen a global response to this serious challenge
and threat to international security.”219 [Emphasis added.]
Similarly, a 2006 ITAC intelligence assessment stated that “…[m]ost of the
methods used by terrorist groups to ‘process’ their funds (that is, move them
from the source to where they will be used) have also long been used by nonterrorist criminal groups to launder funds.”220
216
217
218
219
Testimony of Martin Rudner, vol. 92, December 10, 2007, p. 12229.
Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6686.
Testimony of Nikos Passas, vol. 53, September 27, 2007, pp. 6568-6569.
S. 4, online: United Nations <http://daccessdds.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.
pdf?Open Element> (accessed February 13, 2009).
220 ITAC Intelligence Assessment on Terrorist Financing, para. 4.
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The same international body, the FATF, oversees both anti-money laundering
and anti-TF efforts. In October 2001, the FATF added special recommendations
about TF to its existing recommendations about money laundering.221
As well, some of the techniques used to deter and detect money laundering
operations (for example, those described in the FATF Forty Recommendations)
have been applied by entities obliged to report to FINTRAC to combat TF.
The Department of Finance Memorandum of Evidence on Terrorist Financing
states that, “…[t]o the extent that funds for financing terrorism are derived
from illegal sources, the same anti-money laundering techniques and legal
framework used to combat the financing of organized crime can be used to
combat terrorist financing.”222 Professor Passas also testified that anti-money
laundering methods can be effective in countering TF.223 In addition, several
officials and experts concluded that money can eventually be laundered in the
TF process and that there is a convergence between the two activities.224
1.4.3.4.2 Differences between Money Laundering and Terrorist Financing
The main objectives of money laundering and TF differ. Money laundering
generally involves organized criminal groups trying to disguise the origins of
money obtained through crime.225 The goal is to have the money appear “clean”
so that it can be spent in the legal economy without drawing suspicion towards
those spending it. In contrast, TF is not necessarily about laundering “dirty”
money so that it can be spent in the legal economy.
Schmidt testified that money laundering and TF do “intersect” on many occasions
and share many of the same techniques, but that TF is not the same as money
laundering. As a result, the money laundering model does not effectively
represent the TF process.226
TF may involve a complex web of activities that differ significantly from those
used to launder money. Schmidt stated that, unlike TF, which generally occurs in
five stages, money laundering occurs in three main stages – placement, layering
221 The FATF’s Nine Special Recommendations on TF must be read in conjuncture with The Forty
Recommendations to adequately understand the whole regime: “The revised Forty Recommendations
now apply not only to money laundering but also to terrorist financing, and when combined
with the Eight [now Nine] Special Recommendations, they provide a set of enhanced measures
that will help countries to prevent terrorism.”: Financial Action Task Force on Money
Laundering, Annual Report 2002-2003, June 20, 2003, para. 20, online: Financial Action
Task Force <http://www.fatf-gafi.org/dataoecd/13/0/34328221.pdf> (accessed February 18, 2009). See
also Koh, Suppressing Terrorist Financing and Money Laundering, p. 125.
222 Department of Finance Memorandum of Evidence on Terrorist Financing, para. 2.3.
223 Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6575.
224 Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6654; Schmidt Terrorist Financing Model;
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 7008; Department of Finance Memorandum of
Evidence on Terrorist Financing, para. 2.5; Testimony of Nikos Passas, vol. 53, September 27, 2007,
p. 6574.
225 Testimony of Keith Morrill, vol. 54, September 28, 2007, pp. 6685-6687.
226 Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6653.
�Chapter I: Terrorist Financing - An Overview
and integration. The placement stage is basically the movement of funds (the
proceeds of crime) into banking or related systems. The layering stage is the
“cover” stage, where the individual or organization tries to move the proceeds
of crime, in whatever form they take at that point, to distance the funds from
their origins. This second stage is often characterized by numerous movements
of the funds. The third stage, integration, occurs when the funds are integrated
into the legitimate marketplace.227
The money laundering model puts great emphasis on the “placement” stage
(the movement of criminal proceeds into the financial system),228 which is
not the case in most TF activities, where the focus is more on how funds are
transmitted to terrorists.
Detective Inspector Paul Newham, Deputy Head of the National Terrorist
Financial Investigations Unit of the Metropolitan Police Service in the UK,
testified that the TF and money laundering phenomena were very different in
several ways:229
With money laundering, you have a crime and then you
have the proceeds of that crime flowing though a variety of
sophisticated mechanisms. The situation you’ve described as
placement, layering and then integration within the financial
system to actually launder the money.
In terms of terrorist financing, there is no predicate offence.
This is – often there is no criminal money. It can be legitimate
donations.
Another distinction would be that in money laundering, you
see large vast sums of money being moved in a variety of ways.
In terms of terrorist financing, we see [in most cases] very small
amounts or relatively small amounts compared to money
laundering.
So, in essence, the distinction with money laundering is we
have a post-criminal act. In terms of terrorist financing, we
have money, either a mixture of donations or potential lowlevel frauds, being used for an intended terrorist activity in the
future which, again, brings its own problems when it comes to
the actual prosecution of terrorist financing.230
227
228
229
230
Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6652.
Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6653.
Testimony of Paul Newham, vol. 58, October 4, 2007, p. 7232.
Testimony of Paul Newham, vol. 58, October 4, 2007, p. 7232.
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As well, in money laundering operations, the money is “in hand” whereas in TF,
the money must first be acquired.231
Keith Morrill of DFAIT stated that “…the impetus of the money laundering
approach internationally” was recognition of the “huge” amounts of money
involved.232 Money laundering has been identified in Canada alone as “a multibillion dollar problem.”233 The large sums known to be involved in money
laundering cases – for example, laundering the proceeds of drug crimes – dwarf
the amounts involved in financing even major terrorist attacks or in sustaining
operating cells, or even larger organizations, such as Al Qaida. Techniques that
might help to identify money laundering, such as a focus on cash transactions
over $10,000, might completely miss many transactions related to TF.
1.4.4 The Need for an Anti-Terrorist Financing Program in Canada
Professor Passas asked this important question in his testimony:
…[C]an terrorist finance be stopped? And it is more or less a
rhetorical question. Unless you seriously disrupt legitimate
trade or you have a police state, you can’t do it.234
Like the crimes of murder or fraud, TF cannot be completely eradicated. RCMP
Superintendent Reynolds testified, however, that authorities can try to make it
more difficult.235
The alleged cost of the actual bombing of Air India flight 182 was under $10,000.236
That excludes the cost of maintaining the organization and individuals involved
in its planning and execution. Money was likely not a factor in the decision to
proceed with the bombing. Still, several reasons have been advanced for Canada
to have an anti-TF program.
1.4.4.1 The Reality of Terrorism
Canadians have their own interests at stake in international efforts to combat
terrorism and terrorism financing.237 In addition, as Keith Morrill of DFAIT testified,
the international community would not go through the difficult process of
adopting treaties and resolutions if an issue were not sufficiently serious.238
231 Schmidt Terrorist Financing Model, p. 7.
232 Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6690.
233 Royal Canadian Mounted Police Departmental Performance Report for the period ending March 31,
2007, p. 76, online: Treasury Board of Canada Secretariat <http://www.tbs-sct.gc.ca/dpr-rmr/20062007/inst/rcm/rcm-eng.pdf> (accessed May 13, 2009).
234 Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6567.
235 Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6878.
236 Passas Paper on Terrorism Financing, p. 55.
237 Keith Morrill of DFAIT appeared to hold a similar view: Testimony of Keith Morrill, vol. 54, September 28,
2007, p. 6681.
238 Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6719.
�Chapter I: Terrorist Financing - An Overview
RCMP Superintendent Reynolds testified that Canada had long been considered
fertile ground for TF and for the procurement of terrorism-related materials, but
it was not seen as a country from which terrorist attacks themselves were being
launched. However, the situation has evolved.239 Canada is not immune to direct
terrorist attacks, and terrorist groups operate in Canada.240
The RCMP Departmental Performance Report for the period ending March 31,
2006 noted that, “…[i]f the RCMP is unable to address terrorist financing issues
in an appropriate manner, Canadians and our allies would be in an environment
of elevated risk.”241 Terrorist financiers could focus on Canada as an operating
base, which could undermine the integrity of Canada’s financial system242 and
its reputation abroad.243 Failure to pursue TF might also put members of some
communities at greater risk of being exploited.
1.4.4.2 Canada’s International Obligations
Morrill testified that Canada has now signed several international instruments
aimed at combatting TF, and that it must follow through domestically and
internationally on its commitments.244 Like many other countries, Canada is
bound by UN Security Council Resolutions 1373 and 1267 and by the International
Convention for the Suppression of the Financing of Terrorism. Morrill stated that
Canada takes its international obligations “very, very seriously.”245
Canada also is under strong pressure to honour the FATF Recommendations.246
As a founding member, Canada committed itself to their implementation.247 As
well, Recommendation 26 requires member states to have a functioning FIU,
and Special Recommendations I and II require ratifying and implementing the
Convention and criminalizing TF.
Countries that do not follow the“40+9”Recommendations face the real possibility
of being blacklisted by the FATF.248 Until recently, the FATF maintained a list of
countries identified as Non-Cooperative Countries and Territories (NCCT). In
2006, the FATF introduced a new surveillance process – the International Co239 Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6826-6827.
240 Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6828-6829.
241 Royal Canadian Mounted Police Departmental Performance Report for the period ending March 31,
2006, p. 62, online: Treasury Board of Canada Secretariat <http://www.tbs-sct.gc.ca/dpr-rmr/20052006/rcmp-grc/rcmp-grc-eng.pdf> (accessed May 13, 2009) [2005-06 RCMP Departmental
Performance Report].
242 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6773; 2005-06 RCMP Departmental
Performance Report, p. 62.
243 One can imagine the outcry if a terrorist attack occurring elsewhere were financed from Canada while
Canada had failed to put TF measures in place. Keith Morrill believed Canada would hear criticism
from the international community if it were not meeting its commitments in this regard: Testimony of
Keith Morrill, vol. 54, September 28, 2007, p. 6721.
244 Testimony of Keith Morrill, vol. 54, September 28, 2007, pp. 6697-6698.
245 Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6711.
246 Testimony of Keith Morrill, vol. 54, September 28, 2007, pp. 6701-6702.
247 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6767.
248 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6774.
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operation Review Group – “to identify, examine and engage with vulnerable
jurisdictions that are failing to implement effective AML/CFT systems.”249
1.4.4.3 Role of Anti-Terrorist Financing Efforts in Combatting Terrorism
John Schmidt of ITAC testified that financial intelligence was a useful component
of the fight against terrorism as a whole: “...[T]he financial intelligence can
and does go a long way to help identify criminal or terrorist networks and
relationships and is very important in the overall process.…[U]nderstanding
terrorist resourcing goes a long way to helping us understand, anticipate, the
overall terrorist activity; how they work together, how their networks operate
and…the [change] that is going on in the nature of many terrorist organizations
and their activities.”250
Financial intelligence can often help law enforcement and related agencies
understand the networks and relationships much better than can other sources
of information.251 Terrorism financing prosecutions have the potential to disrupt
groups that may be accumulating funds for terrorist purposes but have not yet
decided to commit any terrorist act.
In his testimony, Passas gave several reasons why financial controls were a vital
part of all counterterrorism efforts:
• If the would-be terrorists have less money, the harm might be
reduced. Passas cited the example of those involved in the first
World Trade Centre attacks who complained that they didn’t have
more than $19,000 to pack explosives into the rental truck that they
exploded in the parking garage: “They didn’t have more money
so when you limit the resources the harm is reduced”;
• The intelligence that can be gathered in anti-TF operations is
essential to make links and reconstruct events: “Monitoring what
the militant groups are doing is much more important than seizing
and freezing their assets”; and
• If terrorists believe that they are being tracked, it forces them to “…
speak to each other, to communicate, to change methods, to
move things around, to move to low-tech hand-carried
kinds of options, and that generates additional intelligencegathering opportunities.”252
Passas warned, however, that controls may produce negative results. Among his
examples were the following:
249
250
251
252
FATF Revised Mandate 2008-2012, para. 8.
Testimony of John Schmidt, vol. 53, September 27, 2007, pp. 6660-6662.
Testimony of John Schmidt, vol. 53, September 27, 2007, pp. 6663-6664.
Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6623.
�Chapter I: Terrorist Financing - An Overview
• The controls may drive terrorists networks underground and create
organizations that are more difficult to monitor and detect;
• Innocent parties could suffer “significant collateral damage”;
• Legitimate trade could be disrupted;
• Ethnic groups that otherwise would serve as allies in
counterterrorism matters might be alienated; and
• Other countries that are forced to implement measures that they
do not support may simply pass laws that are not enforced. This
“window dressing” would give the appearance of progress even
though none was occurring.253
Detective Inspector Newham of the Metropolitan Police Service in the UK
estimated in his testimony that there was more information and intelligence on
individuals within the financial systems of developed Western economies than
in any other database.254 He spoke of the value of this information:
It’s one of the tools where we can quickly locate individuals; we
can quickly identify trouble patterns; we can identify spending,
procurement activity associations, and we use a number of
covert and overt techniques to actually model behaviours of
individuals and what connectivity they have, again, abroad.255
1.5 Conclusion
It is impossible to obtain a clear picture of the extent of TF. It is clear, however,
that the TF phenomenon is complex. TF can take on innumerable forms256 and
can span many borders.
Several witnesses spoke of the importance in combatting terrorism of the
financial intelligence acquired through anti-TF programs. Fighting TF can
generate leads and serve as an investigative or intelligence-gathering tool.
Anti-TF efforts are therefore one element of a larger process: preventing terrorist
incidents.
253 Testimony of Nikos Passas, vol. 53, September 27, 2007, pp. 6623-6624.
254 Testimony of Paul Newham, vol. 58, October 4, 2007, p. 7228. The Egmont Group also stated that “…
[i]t became apparent over the years that banks and other financial institutions were an important
source for information about money laundering and other financial crimes being investigated by
law enforcement.”: “Financial Intelligence Units (FIUs),” online: The Egmont Group <http://www.
egmontgroup.org/about_egmont.pdf> (accessed February 20, 2009).
255 Testimony of Paul Newham, vol. 58, October 4, 2007, p. 7238.
256 Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6842, agreeing with a description by the
Commissioner.
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�VOLUME FIVE
TERRORIST FINANCING
CHAPTER II: CANADIAN LEGISLATION GOVERNING TERRORIST
FINANCING
2.1 Introduction
Canadian legislation relating to TF consists of criminal and regulatory provisions.
In a paper prepared for the Commission, Professor Anita Anand summarized the
current Canadian legislative framework dealing with TF:
Although anti-terrorist financing law did not exist in 1985
when Air India Flight 182 was bombed, today’s legal regime
appears to be comprehensive.… These legislative initiatives
cover significant regulatory ground in terms of substantive
law, and, generally speaking, they also accord with private and
public international law on terrorist financing.1
2.2 The Anti-terrorism Act (ATA)
Within a few months of the events of September 11, 2001, Canada followed
the example of several other countries and enacted anti-terrorism legislation
– in Canada’s case, the Anti-terrorism Act2 (ATA). Parliament included several TF
offences in the ATA, to comply with the Financing of Terrorism Convention and
UN Security Council Resolution 1373. The ATA also introduced various means to
combat TF.
In its Memorandum of Evidence on Terrorist Financing, the Department of
Finance described the ATA as “…designed to strengthen the ability to identify,
prosecute and convict terrorists, in part by providing new investigative tools
to law enforcement and national security agencies.”3 The ATA amended the
following acts:
• the Criminal Code;4
1
2
3
4
Anita Indira Anand, “An Assessment of the Legal Regime Governing the Financing of Terrorist Activities
in Canada” in Vol. 2 of Research Studies: Terrorism Financing Charities and Aviation Security, p. 121
[Anand Paper on Legal Regime Governing Terrorist Financing].
S.C. 2001, c. 41.
Exhibit P-227, Tab 3: Department of Finance Memorandum of Evidence on Terrorist Financing, February
28, 2007, para. 1.6 [Department of Finance Memorandum of Evidence on Terrorist Financing].
R.S.C. 1985, c. C-46.
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• the Proceeds of Crime (Money Laundering) Act, and renaming it the
Proceeds of Crime (Money Laundering) and Terrorist Financing Act5
(PCMLTFA);
• the Security of Information Act;6
• the Canada Evidence Act;7 and
• the National Defence Act.8
The ATA also created the Charities Registration (Security Information) Act9
(CRSIA).
The ATA introduced three TF offences into the Criminal Code. They cover
(i) providing or collecting property for certain activities, including terrorist
activities, (ii) providing property or services for terrorist purposes, and (iii) using
or possessing property for terrorist purposes. The full text of these offences
reads as follows:
Providing or collecting property for certain activities
Section 83.02 Every one who, directly or indirectly, wilfully and without lawful
justification or excuse, provides or collects property intending that it be used or
knowing that it will be used, in whole or in part, in order to carry out
(a) an act or omission that constitutes an offence referred to in
subparagraphs (a)(i) to (ix) of the definition of “terrorist activity”
in subsection 83.01(1),10 or
(b) any other act or omission intended to cause death or
serious bodily harm to a civilian or to any other person not
taking an active part in the hostilities in a situation of armed
conflict, if the purpose of that act or omission, by its nature or
context, is to intimidate the public, or to compel a government
or an international organization to do or refrain from doing any
act,
is guilty of an indictable offence and is liable to imprisonment for a term of not
more than 10 years.
5
6
7
8
9
10
S.C. 2000, c. 17.
R.S.C. 1985, c. O-5, which replaced the Officials Secret Act.
R.S.C. 1985, c. C-5.
R.S.C. 1985, c. N-5.
S.C. 2001, c. 41, s. 113. The Act was created by the Anti-terrorism Act.
These subparagraphs contain references to various treaties and the related offences under the
Criminal Code that give effect to the treaties in Canadian domestic law. For example, offences under s.
7(2) implement the Convention for the Suppression of Unlawful Seizure of Aircraft. See the earlier
section on the Canadian definition of “terrorism.”
�Chapter II: Canadian Legislation Governing Terrorist Financing
Providing, making available, etc., property or services for terrorist
purposes
Section 83.03 Every one who, directly or indirectly, collects property, provides
or invites a person to provide, or makes available property or financial or other
related services
(a) intending that they be used, or knowing that they will
be used, in whole or in part, for the purpose of facilitating
or carrying out any terrorist activity, or for the purpose of
benefiting any person who is facilitating or carrying out such
an activity, or
(b) knowing that, in whole or part, they will be used by or will
benefit a terrorist group,
is guilty of an indictable offence and is liable to imprisonment for a term of not
more than 10 years.
Using or possessing property for terrorist purposes
Section 83.04 Every one who
(a) uses property, directly or indirectly, in whole or in part, for
the purpose of facilitating or carrying out a terrorist activity, or
(b) possesses property intending that it be used or knowing
that it will be used, directly or indirectly, in whole or in part, for
the purpose of facilitating or carrying out a terrorist activity,
is guilty of an indictable offence and is liable to imprisonment for a term of not
more than 10 years.
Sections 83.18 and 83.19 of the Criminal Code create offences for participating
in or contributing to the activities of a terrorist group to facilitate terrorist
activity. Section 83.2 makes it an offence under the Criminal Code to commit an
indictable offence under any Act of Parliament for a terrorist group, and section
83.21 creates an offence for instructing any person to carry out activities in
support of a terrorist group. TF activities may violate these provisions.
The ATA also created a process in the Criminal Code for designating (“listing”)
entities that, once listed, are considered “terrorist groups” under the Code. The
listing process and related Code provisions are discussed more fully below.
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Besides renaming the Proceeds of Crime (Money Laundering) Act as the Proceeds
of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA), the ATA
amended the act to give the Financial Transactions and Reports Analysis Centre
of Canada (FINTRAC) the added mandate to collect and analyze financial data
relating to TF. The PCMLTFA is now the central law in combatting TF in Canada.
Its main provisions are explored later in this volume as they apply to FINTRAC
and other agencies. The 2008 FINTRAC Annual Report summarizes the general
thrust and evolution of the PCMLTFA:
This statute establishes FINTRAC to collect, analyze, assess
and disclose financial information with respect to money
laundering and terrorist activity financing. Other parts of
the Act require financial institutions and intermediaries to
take prescribed customer due diligence, record keeping,
transaction reporting and compliance program requirements
and establish Canada’s cross-border currency reporting system.
Originally enacted as the Proceeds of Crime (Money Laundering)
Act in June 2000, it was amended in December 2001, to add
combating terrorist activity financing to FINTRAC’s mandate. In
December 2006, the Act was substantially amended to bring it
in line with international standards by expanding its coverage,
strengthening its deterrence provisions and broadening the
range of information that FINTRAC may include in its financial
intelligence disclosures.11
In her paper, Professor Anand explained the relationship between the Criminal
Code provisions and those under the PCMLTFA:
While the Criminal Code addresses a variety of activities that
relate to terrorist financing (from providing property, to assist
in terrorist financing, to money laundering) and criminalizes
such activity, the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act deals with reporting requirements, crossborder movement of currency, and the creation of an agency
to administer the Act.12
When the ATA created the Charities Registration (Security Information) Act (CRSIA),
the purpose was to allow the use of secret evidence in decisions to deny or
revoke charitable status in order to reduce the possibility of groups using their
charitable status to facilitate TF.13
11
12
13
Financial Transactions and Reports Analysis Centre of Canada, FINTRAC 2008 Annual Report,
p. 26, online: Financial Transactions and Reports Analysis Centre of Canada <http://www.fintrac.gc.ca/
publications/ar/2008/ar-eng.pdf> (accessed May 13, 2009).
Anand Paper on Legal Regime Governing Terrorist Financing, p. 127.
The CRSIA is discussed in greater detail in Chapter VI.
�Chapter II: Canadian Legislation Governing Terrorist Financing
Section 145 of the ATA requires a comprehensive review of the ATA within three
years of the Act receiving Royal Assent, which occurred on December 18, 2001.14
The PCMLTFA requires a review of that Act every five years.15
2.3 Bill C-25
On December 14, 2006, Bill C-25 received Royal Assent, becoming An Act to
amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act
and the Income Tax Act and to make a consequential amendment to another
Act.16 The Department of Finance Memorandum of Evidence on Terrorist
Financing stated that the Act would “…bring Canada’s regime in line with FATF
international standards, responding to changing domestic risks and addressing
the recommendations of the Auditor General of Canada, Treasury Board and the
Standing Senate Committee on Banking, Trade and Commerce.”17
Bill C-25 created a registration requirement for money services businesses.18
It strengthened the identification requirements for wire transfers.19 It also
strengthened the regime to confront the misuse of charitable organizations for
TF purposes by providing authority to the Canada Revenue Agency (CRA) to
disclose more extensive information to CSIS, the RCMP and FINTRAC.20
Bill C-25 amended the PCMLTFA to allow FINTRAC, when certain conditions are
met, to disclose information to the CRA for purposes related to determining
charitable status.21 It added to the PCMLTFA the obligation for a reporting
entity to report an “attempted” transaction where the entity suspects that the
attempt was related to the commission or attempted commission of a money
14
15
16
17
18
19
20
21
See also House of Commons Canada, Final Report of the Standing Committee on Public Safety
and National Security, Subcommittee on the Review of the Anti-terrorism Act, Rights, Limits, Security:
A Comprehensive Review of the Anti-terrorism Act and Related Issues, March 2007, online: Parliament
of Canada <http://www2.parl.gc.ca/content/hoc/Committee/391/SECU/Reports/RP2798914/
sterrp07/sterrp07-e.pdf> (accessed May 25, 2009); The Senate of Canada, Fundamental Justice in
Extraordinary Times: Main Report of the Special Senate Committee on the Anti-terrorism Act, February
2007, online: Parliament of Canada <http://www.parl.gc.ca/39/1/parlbus/commbus/senate/Com-e/
anti-e/rep-e/rep02feb07-e.pdf> (accessed February 17, 2009).
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, s. 72
[PCMLTFA].
S.C. 2006, c. 12. Even though Bill C-25 has received Royal Assent, and thus has officially become a
law, it is commonly referred to as Bill C-25 and not by it proper name, An Act to amend the
Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the Income Tax Act and to
make a consequential amendment to another Act.
Department of Finance Memorandum of Evidence on Terrorist Financing, para. 1.9.
A money services business is defined as “a person or entity that is engaged in the business of remitting
funds or transmitting funds by any means or through any person, entity or electronic funds transfer
network, or of issuing or redeeming money orders, traveller’s cheques or other similar negotiable
instruments. It includes a financial entity when it carries out one of those activities with a person
or entity that is not an account holder.”: Proceeds of Crime (Money Laundering) and Terrorist Financing
Regulations, S.O.R./2002-184), s. 1; Proceeds of Crime (Money Laundering) and Terrorist Financing
Suspicious Transaction Reporting Regulations, S.O.R./2001-317), s. 1.
Bill C-25, s. 8, adding s. 9.5 to the PCMLTFA.
Bill C-25, s. 45.
Bill C-25, s. 26(4), introducing s. 55(3)(c) to the PCMLTFA.
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laundering or terrorist activity financing offence.22 Bill C-25 also required the
Privacy Commissioner of Canada to review the measures taken by FINTRAC to
protect the privacy of the information it receives or collects under the PCMLTFA.
This review is to occur every two years.23
Later chapters explore in greater detail the changes that Bill C-25 brought to
Canada’s anti-TF program.
The changes brought by Bill C-25 came into force progressively. The Act was fully
in force in December 2008, and further changes can occur through regulation.
For example, Bill C-25 introduced the concept of “politically exposed persons” to
the PCMLTFA,24 and the concept may be further defined by regulation.
2.4 The Listing Processes
2.4.1 The United Nations Al-Qaida and Taliban Regulations (UNAQTR)25
UN Security Council Resolution 1267 established the Al-Qaida and Taliban
Sanctions Committee (the “1267 Committee”26) and made it responsible for
designating individuals associated or involved with the Taliban, Al-Qaida and
associates of Usama bin Laden. Bin Laden was also designated. The main purpose
of putting individuals on the Committee’s list was to facilitate the freezing of
money and property used for terrorism purposes:
22
23
24
25
26
Bill C-25, s. 5, replacing s. 7 of the PCMLTFA.
Bill C-25, s. 38, replacing s. 72(2) of the PCMLTFA. For comments on the PCMLTFA from a privacy
standpoint, see the submission by Jennifer Stoddart, Privacy Commissioner of Canada, to the
Standing Senate Committee on Banking, Trade and Commerce, June 21, 2006, online: Office of the
Privacy Commissioner of Canada <http://www.privcom.gc.ca/information/pub/sub_ml_060621_e.
asp> (accessed February 18, 2009). For the Privacy Commissioner’s comments specifically on Bill C-25,
see her opening statement and submission to the Standing Senate Committee on Banking, Trade and
Commerce, December 13, 2006, online: Office of the Privacy Commissioner of Canada <http://www.
privcom.gc.ca/parl/2006/parl_061213_e.asp> and <http://www.privcom.gc.ca/parl/2006/
sub_061213_e.asp> (accessed February 18, 2009).
Bill C-25, s. 8, introducing s. 9.3(3) to the PCMLTFA. A politically exposed person is defined as “…a
person who holds or has held one of the following offices or positions in or on behalf of a foreign
state: (a) head of state or head of government; (b) member of the executive council of government or
member of a legislature; (c) deputy minister or equivalent rank; (d) ambassador or attaché or
counsellor of an ambassador; (e) military officer with a rank of general or above; (f ) president of a stateowned company or a state-owned bank; (g) head of a government agency; (h) judge; (i) leader or
president of a political party represented in a legislature; or (j) holder of any prescribed office or
position. It includes any prescribed family member of such a person.”
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review
Mechanism for the RCMP’s National Security Activities (Ottawa: Public Works and Government Services
Canada, 2006) [A New Review Mechanism for the RCMP’s National Security Activities] describes these
regulations as the United Nations Afghanistan Regulations: p. 238, note 411. The Regulations
themselves use both names. The title of the Regulations is United Nations Al-Qaida and Taliban
Regulations. The preamble to the Regulations states, “Her Excellency the Governor General in Council
. . . hereby makes the annexed United Nations Afghanistan Regulations.” For consistency, this volume
refers to the regulations as the United Nations Al-Qaida and Taliban Regulations and uses the acronym
UNAQTR.
Also known as the “Al-Qaida and Taliban Sanctions Committee”: see online: United Nations <http://
www.un.org/sc/committees/1267/information.shtml> (accessed February 17, 2009).
�Chapter II: Canadian Legislation Governing Terrorist Financing
The 1267 Committee lists entities and individuals upon the
request of a member state. Therefore, an individual or entity
listed as a terrorist by the United Nations may have their
assets seized or frozen in any or all UN member states that
incorporate the listings into their domestic laws.27
The 1267 Committee advises states to submit names as soon
as they gather the supporting evidence of association with
Al-Qaida and/or the Taliban. A criminal charge or conviction is
not necessary for inclusion on the 1267 list as the sanctions are
intended to be preventive in nature.28
Canada has incorporated the listing process under Resolution 1267 into Canadian
law by way of the United Nations Al-Qaida and Taliban Regulations (UNAQTR),29
made under the United Nations Act.30 Any individual or entity added to the 1267
list by the 1267 Committee is automatically subject to the provisions of Canada’s
UNAQTR.31
Among other restrictions, sections 3, 4 and 5 of the UNAQTR prohibit any
person in Canada or any Canadian outside Canada from dealing with property
or providing financial services to the Taliban, Usama bin Laden or any of their
associates, as designated by the 1267 list.
Section 5.1 provides that specific Canadian entities,32 including banks, trust
companies and insurance companies, have a “duty to determine” on a continuing
basis whether they are in possession of, or in control of, money or property that
belongs to the Taliban, Usama bin Laden or any of their associates. The entities
must report periodically to their regulators whether or not they are in possession
of such property.
Section 5.2 imposes a “duty to disclose.” Every person in Canada and every
Canadian outside Canada must disclose to the Commissioner of the RCMP and
to the Director of CSIS the existence of property in their possession or control
that they have reason to believe is owned or controlled by, or on behalf of, the
Taliban, a person associated with the Taliban, Usama bin Laden or his associates.
27
28
29
30
31
32
A New Review Mechanism for the RCMP’s National Security Activities, pp. 192-193.
Exhibit P-383, Tab 1: DFAIT Modifications to A New Review Mechanism for the RCMP’s National Security
Activities.
S.O.R./99-444.
R.S.C. 1985, c. U-2.
Response of the Government of Canada to the Final Report of the Standing Committee on Public
Safety and National Security, Subcommittee on the Review of the Ant-terrorism Act, Rights, Limits,
Security: A Comprehensive Review of the Anti-terrorism Act and Related Issues, pp. 9-10, online:
Parliament of Canada <http://cmte.parl.gc.ca/Content/HOC/committee/391/secu/govresponse/
rp3066235/391_SECU_Rpt07_GR/391_SECU_Rpt07_GR-e.pdf> (accessed May 25, 2009) [Canada
Response to House of Commons Report on the ATA].
S. 5.1(1) indicates that the entities are those referred to in ss. 83.11(1)(a) to (g) of the Criminal Code.
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They must also disclose information about any transaction or proposed
transaction in respect of that property.
The Minister of Foreign Affairs is the Minister responsible for the UNAQTR,33
while the 1267 Committee is responsible for the actual listing.
The UNAQTR also allow individuals to petition the Minister of Foreign Affairs to
be removed from the list.34 The delisting process may involve Canada making
representations to the 1267 Committee.
2.4.2 Regulations Implementing the United Nations Resolutions on the
Suppression of Terrorism (RIUNRST)
A second listing process was established under UN Security Council Resolution
1373. It was incorporated into Canadian law by the Regulations Implementing
the United Nations Resolutions on the Suppression of Terrorism (RIUNRST)35 under
the United Nations Act.
Resolution 1373 created a framework for each country to develop its own
list. This list is not “…restricted in geographic and affiliative [sic] scope as are
the UNAQTR.”36 In essence, Resolution 1373 provides that countries must
criminalize persons who wilfully commit TF, and allow for the quick freezing of
the following:
…funds and other financial assets or economic resources of
persons who commit, or attempt to commit, terrorist acts or
participate in or facilitate the commission of terrorist acts;
of entities owned or controlled directly or indirectly by such
persons; and of persons and entities acting on behalf of, or
at the direction of such persons and entities, including funds
derived or generated from property owned or controlled
directly or indirectly by such persons and associated persons
and entities.37
The response of the Government of Canada to a 2007 review of the ATA observed
that, in the absence of an international consensus as to the identification or
designation of the entities involved, the Security Council left the decision as
to which entities should be listed to member states.38 This was because there
was often no consensus about whether a group was a terrorist group. The LTTE
is one example. Canada did not list it until 2006, several years later than some
other countries.
33
34
35
36
37
38
No specific provision in the UNAQTR states this, but the Minister of Foreign Affairs is the only minister
mentioned in the regulations.
S.O.R./99-444, s. 5.3(1).
S.O.R./2001-360.
Canada Response to House of Commons Report on the ATA, p. 10.
S. 1(c), online: United Nations <http://daccessdds.un.org/doc/UNDOC/GEN/N01/557/43/PDF/
N0155743.pdf?Open Element> (accessed February 13, 2009).
Canada Response to House of Commons Report on the ATA, p. 10.
�Chapter II: Canadian Legislation Governing Terrorist Financing
Each country designates entities for listing under Resolution 1373 (for instance,
by way of the RIUNRST in Canada). Peer pressure among countries often leads
recalcitrant countries to list certain entities. Under the RIUNRST, the Governor
in Council may, on the recommendation of the Minister of Foreign Affairs, list
an individual or an entity if the Governor in Council is satisfied that there are
reasonable grounds to believe that they may have been involved in certain
terrorist activities specified in the RIUNRST.39 The Department of Foreign Affairs
and International Trade (DFAIT) is the lead department in the RIUNRST listing
process.
The consequences of listing consist primarily of the freezing of assets and
a prohibition on fundraising.40 Sections 3 and 4 of the RIUNRST impose
requirements to freeze assets similar to requirements in the UNAQTR. Among
other restrictions, the RIUNRST prohibit any person in Canada and any Canadian
outside Canada from dealing with property or providing financial services to a
listed person. Also, like the UNAQTR, the RIUNRST impose a “duty to determine”
(section 7) and a “duty to disclose” (section 8).41 In short, these provisions in
the RIUNRST operate in a way that is almost identical to these provisions of the
UNAQTR.
2.4.3. Criminal Code Listing Process
The ATA introduced a third, exclusively Canadian, listing process – in this case,
through the Criminal Code. This third listing process is considered to fulfill an
important part of Canada’s obligation to implement both Security Council
Resolution 1373 and the Convention on the Suppression of Terrorism Financing.
The Criminal Code provides for consequences beyond freezing assets and
prohibiting fundraising.
Section 83.05 of the Criminal Code provides for the Governor in Council to
create a list of entities on the recommendation of the Minister of Public Safety42
– rather than the Minister of Foreign Affairs, as is the case with the RIUNRST. For
an entity to be included on the Criminal Code list, the Governor in Council must
have reasonable grounds to believe that the entity “…has knowingly carried
out, attempted to carry out, participated in or facilitated a terrorist activity”
or that the “…entity is knowingly acting on behalf of, at the direction of or in
association with” such an entity.
39
40
41
42
S.O.R./2001-360, s. 2(1).
Canada Response to House of Commons Report on the ATA, p. 11.
An amendment to the PCMLTFA contained in Bill C-25 requires that a report also be provided to
FINTRAC if the person or entity is subject to the PCMLTFA: see Bill C-25, s. 6, amending s. 7.1(1) of the
PCMLTFA.
The Minister of Public Safety and Emergency Preparedness identified in the Criminal Code was
renamed the Minister of Public Safety. The Department, Public Safety and Emergency Preparedness
Canada (PSEPC), was renamed Public Safety Canada (PSC). All references to PSEPC in this document
should be read as a reference to Public Safety Canada (PS). Prior to this change, PSEPC had incorporated
the “core activities of the former Department of the Solicitor General of Canada with those of the
Office of Critical Infrastructure Protection and Emergency Preparedness, and the National Crime
Prevention Centre”: Public Safety and Emergency Preparedness Canada, Report on Plans and Priorities
2004-2005, online: Public Safety Canada <http://ww2.ps-sp.gc.ca/publications/corporate/rpp_2004_e.
asp> (accessed February 18, 2009).
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The Government of Canada states that “…the Criminal Code listing regime
carries a higher standard, that is, the belief that the subject has knowingly been
involved in a terrorist activity or acted on behalf of a terrorist entity. In contrast,
the standard for the RIUNRST mechanism is based on the requirements of
Resolution 1373.”43
Section 83.01(1) of the Criminal Code defines the term “listed entity” as “…an
entity on a list established by the Governor in Council under section 83.05.”
Section 83.01(1) defines“terrorist group”to include a listed entity. Hence, an entity
listed under section 83.05 is by definition a terrorist group under the Criminal
Code. There were 41 listed groups as of February 2009.44 These definitions help
Canadian prosecutors since they do not have to prove independently that the
entity is a terrorist group. If the entity is listed under the Criminal Code listing
process, the entity is considered a terrorist group.
Section 83.08 forbids any person in Canada, and any Canadian anywhere,
from knowingly dealing with property or providing financial or other related
services to terrorist groups. Offenders face a fine, incarceration, or both. Section
83.11 requires a number of reporting entities to determine on a continuing
basis whether they are in possession of such property. The entities must make
monthly reports to their supervisory agencies – for example, the Office of the
Superintendent of Financial Institutions (OSFI). The reporting entities described
in section 83.11 have similar reporting obligations under the PCMLTFA
(the obligations under the PCMLTFA are examined in Chapter III). The main
difference between the reporting obligations imposed under the PCMLTFA and
those imposed by section 83.11 of the Criminal Code is that the Criminal Code
obligations apply mainly to institutions taking deposits.
Section 83.1 also creates an obligation for every person in Canada to disclose
to the Commissioner of the RCMP and to the Director of CSIS the existence of
property in their possession that they know is owned or controlled by or for a
terrorist group. In addition, every person or entity obliged to make a disclosure
under section 83.1 must also report to FINTRAC if that person or entity is also
subject to the PCMLTFA.45
To ensure compliance with the Charter,46 the Code provides procedures for
listed entities to apply to be de-listed. Under section 83.05(2) of the Code, the
entity can request the Minister of Public Safety to consider recommending delisting within 60 days. A similar process is available under section 83.07 in cases
of mistaken identity. Under section 83.06, the entity can seek judicial review
of the listing, albeit in a manner that allows the judge to consider intelligence
that is not disclosed to the entity on the grounds that disclosure would injure
national security or endanger the safety of other people.47 The Criminal Code
43
44
45
46
47
Canada Response to House of Commons Report on the ATA, p. 12.
Regulations Establishing a List of Entities, SOR/2002-284.
PCMLTFA, s. 7.1.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (U.K.), 1982, c. 11.
Security-cleared special advocates might play a useful role in such proceedings. They could challenge
the intelligence used to support the listing while not risking the further disclosure of the intelligence,
some of which might have been shared with Canada by allies on condition that it not be disclosed.
�Chapter II: Canadian Legislation Governing Terrorist Financing
also requires that the Minister of Public Safety review the list every two years.48
The following chart, prepared by Public Safety Canada, illustrates the process
for listing entities under the Criminal Code listing scheme:49
Procedure For Listing Entities Under the Criminal Code
Identification of Case
• CSIC or RCMP identifies, develops, evaluates, and assesses the case of listing.
Consultation
•
CSIC and the RCMP to consult and share information to the extent possible related to
potential listing.
Preparation of Security Intelligence Report (SIR)
• CSIS and RCMP internal approval, including internal legal review.
• Independent legal verification or case by Department of Justice.
• SIR prepared for sign off by the Director, CSIS or the Commissioner of the RCMP.
• Following sign off, SIR delivered to Deputy Minister (DM) of Public Safety
Notification of Interdepartmental Community
• DM of Public Safety convenes meeting of DM -level interdepartmental coordinating
committee on listings.
•
DMs are provided with copies of the Explanatory Note, identification of the entity and
aliases, and the proposed web page summary.
Advising the Minister of Public Safety
•
Department of Public Safety advances the SIR and other relevant documents of the Minister.
•
Minister of Public Safety decides whether to make a recommendation to the Governor in
Council (GIC)
GIC Decision
•
Recommendation provided to the GIC
•
GIC deliberates and approves/declines proposal for regulation to list the entity.
•
Regulation is in force upon registration with PCO.
•
Published in the Canada Gazette.
48
49
R.S.C. 1985, c. C-46, s. 83.05(9).
Exhibit P-383, Tab 11: Public Safety Canada’s Submission to the Commission of Inquiry into the
Investigation of the Bombing of Air India Flight 182, October 24, 2007, p. 3.
73
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To help publicize the entities listed under the Criminal Code, RIUNRST and
UNAQTR, the Office of the Superintendent of Financial Institutions regularly
updates a consolidation of the lists on its website.50
Because countries develop their own listing processes in accordance with
Resolution 1373, and possibly under their own domestic legislation (such as
the Criminal Code listing process in Canada), listings among countries may not
match, except for listings made under Security Council Resolution 1267.
2.5 Conclusion
Before 2001, like most other countries, Canada did not expressly prohibit TF. The
2001 Anti-terrorism Act introduced new crimes dealing with TF, a procedure for
“listing” terrorist groups, new obligations to report financial transactions and
provisions that allowed charities involved in terrorism to have their charitable
status revoked or denied. These new provisions provide a weapon in combatting
the complex phenomenon of TF and in ensuring that Canada complies with its
international obligations to suppress TF. As subsequent chapters discuss, efforts
against TF involve cooperation among many government agencies and private
sector entities.
50
Online: Office of the Superintendent of Financial Institutions Canada <http://www.osfi-bsif.gc.ca/osfi/
index_e.aspx?DetailID=525> (accessed February 17, 2009).
�VOLUME FIVE
TERRORIST FINANCING
CHAPTER III: THE ROLES OF FEDERAL DEPARTMENTS AND AGENCIES IN
EFFORTS TO SUPPRESS TERRORIST FINANCING
Many federal departments and agencies1 are involved in national security
matters:
• Canada Border Services Agency (CBSA);
• Canada Revenue Agency (CRA);
• Canadian Security Intelligence Service (CSIS);
• Communications Security Establishment (CSE)2;
• Department of Finance (Finance Canada);
• Financial Transactions and Reports Analysis Centre of Canada
(FINTRAC);
• Department of Fisheries and Oceans/Canadian Coast Guard;
• Department of Foreign Affairs and International Trade (DFAIT);
• Department of Justice (DOJ);
• Department of National Defence (DND) and the Canadian Forces
(CF);
• Integrated Threat Assessment Centre (ITAC);
• Office of the Superintendent of Financial Institutions (OSFI);
• Privy Council Office (PCO);
• Public Safety Canada (PS); and
• Royal Canadian Mounted Police (RCMP).3
The focus of this chapter is on the roles of many of these agencies in attempts to
suppress terrorist financing (TF). The role of the Canada Revenue Agency (CRA)
is examined separately in Chapter VI.
1
2
3
To simplify the narrative in this chapter, the terms “department” and “agency” are used interchangeably.
The use of one term includes the other where the context requires.
The official acronym is now CSEC, but the acronym CSE is still commonly used.
The agencies are not necessarily listed in order of the importance of their role in TF matters. Other
documents and reports describe the inner workings of these agencies; see, for example, the
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review
Mechanism for the RCMP’s National Security Activities (Ottawa: Public Works and Government Services
Canada, 2006) [A New Review Mechanism for the RCMP’s National Security Activities].
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Volume Five: Terrorist Financing
3.1 The Department of Finance (Finance Canada)
Finance Canada is the lead department in the federal government’s overall
initiative to combat money laundering (ML) and TF.4 It was placed in charge of
the National Initiative to Combat Money Laundering in 2000, and remained at
the helm when the Initiative was renamed the Anti-money Laundering and Antiterrorist Financing Initiative (AML/ATF Initiative) after the enactment of the Antiterrorism Act5(ATA) in 2001. Two sections of Finance – Financial Crimes Domestic
and Financial Crimes International – are responsible for money laundering
and TF matters. Both sections are located in the Financial Sector Division of
Finance.6
The Minister of Finance is responsible to Parliament for FINTRAC and for the
Office of the Superintendent of Financial Institutions (OSFI).7
Canada is not unique in having a department such as Finance Canada in a
lead policy and coordination role for TF matters.8 Finance Canada has a broad
range of responsibilities in regulating and overseeing the financial sector and in
policy development. It assesses proposed security initiatives to evaluate their
financial cost, efficiency and potential impact on the economy.9 As part of this
function, the Department is responsible for developing policy relating to the
Proceeds of Crime (Money Laundering) and Terrorist Financing Act10 (PCMLTFA)
and its regulations11. The PCMLTFA and its regulations provide the framework
for Canadian initiatives against TF and money laundering.12
Finance Canada is also responsible for coordinating the activities of the AML/
ATF Initiative, including consultations with stakeholders.13 Its specific goal in the
AML/ATF Initiative is to protect Canada’s financial sector from illicit uses, thus
protecting its integrity.14
The AML/ATF initiative is “horizontal,” meaning that Finance Canada works with
other agencies, many of which are funded by the Initiative for their work on
money laundering and TF matters. The funding arrangements do not earmark
funds specifically for money laundering or for TF.15 As a result, agencies can
4
5
6
7
8
9
10
11
12
13
14
15
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6752.
S.C. 2001, c. 41.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6750-6751.
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, ss. 2, 42(1) [PCMLTFA]; Office of the
Superintendent of Financial Institutions Act, R.S.C. 1985, c. 18 (3rd Supp.), Part I, ss. 3, 4(1) [OSFI Act].
Testimony of Diane Lafleur, vol. 54, p. 6752. For examples in the US and the UK, see Michael Jacobson,
“Extremism’s Deep Pockets: The growing challenge of fighting terrorist financing,” online: The Politic
<http://thepolitic.org/content/view/91> (accessed June 3, 2009).
A New Review Mechanism for the RCMP’s National Security Activities, p. 210.
S.C. 2000, c. 17.
Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/2002-184 [PCMLTFR].
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6752.
Exhibit P-227, Tab 3: Department of Finance Memorandum of Evidence on Terrorist Financing, February
28, 2007, para. 4.25 [Department of Finance Memorandum of Evidence on Terrorist Financing].
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6753.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6754-6755.
�Chapter III: The Roles of Federal Departments and Agencies
direct funds to either activity. With no specific allocation of funds for TF, there is
a danger that agencies will use the funds primarily for anti-money laundering
efforts, leaving anti-TF efforts under funded. The following chart16 shows the
agencies funded by the Initiative:
Anti- Money Laundering/Anti-Terrorist
Financing (AML/ATF) Initiative
Funded Partners
Department of Finance
Financial Transactions
and Reports Analysis
Centre of Canada
(FINTRAC)
Royal Canadian Mounted
Police (RCMP)
Canada Border Services
Agency (CBSA)
Canada Revenue Agency
(CRA)
Department of Justice
& Public Prosecution
Services of Canada
Annual Funding (thousands)
2006-07
2007-08
2008-09 2009-10
$1,800
$1,800
$1,800
$1,800
$37,500
$38,600
$37,400 $37,500
$15,600
$12,000
$12,000
$12,000
$7,800
$7,700
$7,700
$7,700
$2,200
$2,200
$2,200
$2,200
$2,300
$2,300
$2,300
$2,300
Other agencies participate in the Initiative but are not funded by it. These include
DFAIT, Public Safety Canada, CSIS and OSFI.17 FINTRAC, DFAIT and Public Safety
receive funding through a separate program – the Public Security and AntiTerrorism (PSAT) initiative. CSIS also receives funding to deal with its expanded
anti-TF activities.18
The activities of the Financial Action Task Force (FATF) and Finance Canada are
intertwined. Member countries follow the FATF recommendations on money
laundering and TF. For its part, Finance Canada assesses financial sectors to
determine if there is a sufficient vulnerability to money laundering or TF to
warrant applying anti-TF laws to them.
Finance Canada has no intelligence-gathering role, but it uses information
from law enforcement and intelligence agencies for these assessments.19 It
conducts regular media scans about TF activities around the world and obtains
16 Exhibit P-227, Tab 2: Department of Finance Presentation, slide 2 [Department of Finance Presentation].
17 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6755.
18 Exhibit P-439: Department of Finance Response to Supplementary Questions of the Commission,
Question 1(c) [Department of Finance Response to Supplementary Questions of the Commission].
19 Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6788-6789.
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information on TF through its connection with the FATF.20 The Department has
no investigative powers.21
In developing policy, Finance Canada conducts outreach to private sector
reporting entities and refers to them as “partners.” Diane Lafleur, Director of the
Financial Sector Division at Finance Canada, testified that these entities, as front
line players, had a key role in the anti-TF program.22 She stated that the program
could not be effective without their commitment and that Finance Canada
works closely with them to develop policies that make sense in given business
environments. This was to ensure that “… we are not creating wonderful rules
that actually can’t be administered and therefore have no results and can’t be
effective.”23 Ms. Lafleur also saw FINTRAC as a key partner of Finance in policy
development.24
Finance Canada was responsible in 2004 for the coordination and response to
reviews of the AML/ATF Initiative by EKOS, a social research body, and by the
Auditor General. Following those reviews, Finance published a consultation
paper on the future of the Initiative and on proposed legislative changes. It
also consulted private sector reporting entities. With the help of other agencies,
Finance headed the government’s participation in the five-year parliamentary
review of the Initiative and guided the policy development process leading to
the enactment of Bill C-2525 in 2006.
The Department led the government’s efforts to have the FATF revise its initial
2008 criticisms of Canada’s anti-TF efforts as well as Canada’s response to the
final conclusions and recommendations of the 2008 FATF Mutual Evaluation of
Canada.
In short, Finance Canada has the lead in developing policy regarding Canada’s
anti-TF program. As the lead in anti-TF and anti-money laundering policy
development, Finance Canada is responsible for two interdepartmental
committees that have mandates in those matters, and a Finance representative
chairs both committees.26 Finance Canada is also responsible for work on a
“performance management framework” for the Initiative.
Finance Canada also has numerous international responsibilities. It is the lead
department for the Canadian delegation to the FATF, the Caribbean Financial
Action Task Force and the Asia/Pacific Group on Money Laundering. It is also
responsible for the anti-TF issues of concern to other international bodies,
including the G-7, G-8, G-20, the International Monetary Fund, the World Bank,
20 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6788.
21 Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6751, 6785.
22 Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6752-6753.
23 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6756.
24 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6786.
25 An Act to amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the
Income Tax Act and to make a consequential amendment to another Act, S.C. 2006, c. 12 [Bill C-25].
26 The committees are the Financial Crimes Interdepartmental Coordinating Committee (ICC) and the
Financial Crimes Interdepartmental Steering Committee (ADM Steering Committee).
�Chapter III: The Roles of Federal Departments and Agencies
the United Nations, the Organization of American States, the Inter-American
Drug Abuse Control Commission, the Commonwealth Secretariat, all FATFstyle regional bodies and organizations, and other international AML/ATF
organizations.27
3.2 Financial Transactions and Reports Analysis Centre of Canada
(FINTRAC)
3.2.1 Role, Goals, Structure and Overview
The Financial Transactions and Reports Analysis Centre (FINTRAC) is Canada’s
Financial Intelligence Unit (FIU).28 FIUs have three main functions:
• to serve as a centralized repository for financial information;
• to analyze the information; and
• to facilitate the dissemination of the results.29
FIUs can also monitor compliance by AML/ATF programs with FATF requirements,
block transactions and freeze bank accounts, and train those in the financial
sector, research and public education.30
FINTRAC is an intelligence agency that receives financial information from
private sector entities and government agencies and then produces financial
intelligence.31 FINTRAC is the product of Canada’s attempt to comply
with Recommendation 26 of the FATF’s “40 Recommendations” on Money
Laundering:
Countries should establish a FIU that serves as a national
centre for the receiving (and, as permitted, requesting),
analysis and dissemination of [Suspicious Transaction Reports]
and other information regarding potential money laundering
or terrorist financing.32
FINTRAC is one of many federal agencies that Parliament has established to fight
TF. FINTRAC’s evidence of success is that it has produced valuable information
27
28
29
30
31
32
Department of Finance Memorandum of Evidence on Terrorist Financing, para. 4.27.
Much of Canada’s legislation dealing with terrorist financing was examined earlier in this volume,
but an important part of this legislation, specifically the PCMLTFA, is reserved for FINTRAC’s work. The
finer points of the PCMLTFA are therefore discussed in this section.
Jae-myong Koh, Suppressing Terrorist Financing and Money Laundering (Berlin: Springer, 2006), p. 54
[Koh, Suppressing Terrorist Financing and Money Laundering].
Koh, Suppressing Terrorist Financing and Money Laundering, p. 54.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6950.
FATF’s “40 Recommendations” can be found online: Financial Action Task Force <http://www.fatf-gafi.
org/document/28/0,3343,en_32250379_32236930_33658140_1_1_1_1,00.html> (accessed
September 14, 2009).
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and identified links between individuals, organizations and transactions
that help law enforcement and security intelligence agencies further their
investigations.33 FINTRAC believes that its activities help to create a hostile
environment and a deterrent for those who want to use legitimate financial
channels to launder money or finance terrorism34 and that, without FINTRAC,
the RCMP and CSIS would face greater difficulties in obtaining information and
financial intelligence.35
In 1997, a FATF evaluation criticized Canada’s anti-money laundering program,
in part due to the absence of an FIU. In response to the evaluation and to the
FATF’s “40 Recommendations,” Canada established FINTRAC in July 2000 through
the Proceeds of Crime (Money Laundering) Act. FINTRAC’s initial operations were
targeted solely at money laundering. In 2001, the ATA added TF to FINTRAC’s
mandate. The Act regulating FINTRAC was accordingly renamed the Proceeds of
Crime (Money Laundering) and Terrorist Financing Act.
FINTRAC began operating in October 2001.36 It is a young agency.37 FINTRAC’s
TF work is even more recent. In addition, the implementation of its roles and
responsibilities, both legal and operational, has occurred in stages.
FINTRAC’s mission is to assist in combatting financial crime, whether generated
by money laundering or TF. It is often involved in reviews of Canada’s anti-TF
program, including the 2008 FATF Mutual Evaluation of Canada. FINTRAC
receives significantly more than half of the federal funds dedicated each year to
the AML/ATF Initiative.
In general terms, FINTRAC’s role is as follows:
…as Canada’s financial intelligence unit (FIU)…to safeguard
Canada’s financial system by contributing to the creation of a
more hostile environment for money laundering and terrorist
activity financing in Canada; by supporting the public safety
and national security of Canadians; and by upholding personal
privacy.38
33
34
35
36
37
38
Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, p. 6957.
Financial Transactions and Reports Analysis Centre of Canada, Report on Plans and Priorities For the
years 2007-2008 to 2009-2010, p. 7, online: Treasury Board of Canada Secretariat <http://www.tbs-sct.
gc.ca/rpp/0708/fintrac-canafe/fintrac-canafe-eng.pdf> (accessed June 3, 2009) [FINTRAC Report
on Plans and Priorities for 2007-08 to 2009-10]; Testimony of Mark Potter, vol. 56, October 2, 2007,
p. 6952.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6979.
UN CTC Report Submitted by Canada pursuant to Security Council resolution 1373 (2001), S/2004/132,
p. 3, online: United Nations Security Council Counter-Terrorism Committee <http://daccessdds.un.org/
doc/UNDOC/GEN/N06/297/90/PDF/N0629790.pdf?OpenElement> (accessed September 17, 2009).
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6967.
Financial Transactions and Reports Analysis Centre of Canada, Departmental Performance Report For
the Period ending March 31, 2007, p. 6, online: Financial Transactions and Reports Analysis Centre
of Canada <http://www.fintrac.gc.ca/publications/DPR/2007/DPR-eng.pdf> (accessed September
14, 2009) [FINTRAC 2006-07 Departmental Performance Report].
�Chapter III: The Roles of Federal Departments and Agencies
The PCMLTFA sets out the objects of FINTRAC, calling it an independent agency
that does the following:
(a) acts at arm’s length from law enforcement agencies and
other entities to which it is authorized to disclose information;
(b) collects, analyses, assesses and discloses information in
order to assist in the detection, prevention and deterrence of
money laundering and of the financing of terrorist activities;
(c) ensures that personal information under its control is
protected from unauthorized disclosure;
(d) operates to enhance public awareness and understanding
of matters related to money laundering; and
(e) ensures compliance with Part 1 of the PCMLTFA [which sets
out the obligations of the reporting entities].39
The FINTRAC 2008 Annual Report describes the activities of the agency as
follows:
• Receiving financial transaction reports in accordance with the
legislation and regulations and safeguarding personal information
under our control.
• Ensuring compliance of reporting entities with the legislation and
regulations.
• Producing financial intelligence on suspected money laundering,
terrorist activity financing and other threats to the security of
Canada.
• Researching and analyzing data from a variety of information
sources that shed light on trends and patterns in financial crime.
• Enhancing public awareness and understanding of money
laundering and terrorist activity financing.40
The Department of Finance Memorandum of Evidence on Terrorist Financing
offers a slightly fuller description of FINTRAC’s responsibilities. They are to:
• receive and analyze financial transaction reports submitted
by reporting entities in accordance with the PCMLTFA and
its regulations, reports on the cross-border movement of currency
39
40
PCMLTFA, s. 40.
Financial Transactions and Reports Analysis Centre of Canada, FINTRAC 2008 Annual Report, page
following cover page, online: Financial Transactions and Reports Analysis Centre of Canada <http://
www.fintrac.gc.ca/publications/ar/2008/ar-eng.pdf> (accessed February 24, 2009) [FINTRAC 2008
Annual Report].
81
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Volume Five: Terrorist Financing
or monetary instruments, and information from international and
domestic partners and from the general public;
• provide domestic police forces and foreign financial intelligence
units (FIUs) (with which it has concluded an agreement to exchange
information) with financial intelligence that it suspects would be
relevant to the investigation or prosecution of money laundering
and terrorist activity financing offences;
• provide the Canadian Security Intelligence Service (CSIS) with
financial intelligence that it suspects would be relevant to threats
to the security of Canada, including information on suspected
terrorist activity financing;
• provide information to the CRA on suspected cases of terrorist
financing involving charities, pursuant to an amendment made
to the PCMLTFA;41 and
• help fulfill Canada’s international commitments to participate in the
fight against transnational crime, particularly money laundering
and terrorist financing.42
FINTRAC identified its three key priorities in its Report on Plans and Priorities for
the years 2007-2008 to 2009-2010:
• deliver timely and high quality financial intelligence to law
enforcement, security and intelligence agencies, and foreign
financial intelligence units;
• ensure compliance with the PCMLTFA; and
• disseminate strategic information on money laundering and
terrorist activity financing to partners, stakeholders, and the general
public.43
FINTRAC’s work products are (i) disclosures of information (based on its analysis
of the information it holds or receives about financial transactions) to agencies
such as the RCMP, CSIS, CRA, CSE and CBSA and (ii) the production of macroanalyses and research documents on money laundering and TF. FINTRAC’s
“program activity architecture” is illustrated below:44
41
42
43
44
This was an amendment introduced by Bill C-25.
Department of Finance Memorandum of Evidence on Terrorist Financing, para. 4.29.
FINTRAC Report on Plans and Priorities for 2007-08 to 2009-10, p. 6.
FINTRAC Report on Plans and Priorities for 2007-08 to 2009-10, p. 26.
�Chapter III: The Roles of Federal Departments and Agencies
Strategic Outcome
Financial intelligence that contributes to
the detection and deterrence of money
laundering and terrorist activity financing in
Canada and abroad
Collection, Analysis
and Dissemination of
Financial Information
Corporate Support
Technology
Driven Collection,
Analytics and Case
Management
Financial
Intelligence
Analysis
Agency
Management and
Corporate
Services
Security and
Privacy
Protection
Compliance
Domestic and
International
Relationships and
Communications
Accommodation
IT Support and
Maintenance
The Minister of Finance is responsible for FINTRAC and reports to Parliament
on its activities.45 It might have made sense to put FINTRAC, the central agency
under the PCMLTFA, under the umbrella of Public Safety Canada since other
agencies under that umbrella have significant responsibilities in terrorism
matters. However, Finance Canada, with its regulatory responsibility for many
parts of the financial sector, is better suited for dealing with reporting entities
from the financial world.
FINTRAC operates as an agent of the Crown46 and acts “…at arm’s length from
law enforcement agencies and other entities to which it is authorized to disclose
information.”47 At least part of the rationale for having Finance take on oversight
was to avoid real or perceived conflicts of interest that might arise if FINTRAC
were housed in a department or agency that might benefit from FINTRAC
disclosures. Under Finance’s umbrella, FINTRAC stands at arm’s length from law
enforcement.48
Besides reporting to Parliament through the Minister of Finance, FINTRAC
maintains a close working relationship with the Department of Finance itself.49
45
46
47
48
49
PCMLTFA, ss. 2, 42(1).
PCMLTFA, s. 41(2).
PCMLTFA, s. 40(a).
Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6760-6761.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6786.
83
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However, Finance officials are not involved in FINTRAC operations, and have no
access to data provided to FINTRAC by reporting entities.50
FINTRAC also maintains relationships with several branches of the federal and
provincial governments,51 as well as with international organizations and foreign
agencies.52
FINTRAC is an“administrative”FIU – the most common FIU model internationally.53
Among other things, this means that it is separate from law enforcement and
intelligence agencies and from other bodies that receive information from it. It
also means that FINTRAC is a stand-alone administrative and regulatory agency
responsible for ensuring that reporting entities comply with the PCMLTFA and
for analyzing the information received from them. Other, less common FIU
models are the “law enforcement” model, where the FIU is part of a larger law
enforcement apparatus, and the “prosecutorial” model, where the FIU falls under
the jurisdiction of a public prosecutor’s office.
Each model has merits. Some argue that the administrative model is more trusted
by private sector reporting entities, since the FIU acts as a buffer between the
entities and law enforcement agencies, and it permits more efficient information
exchanges with foreign FIUs. However, an administrative model FIU does not
have the same range of powers as the other two models, and may not be able to
get information into the hands of law enforcement agencies as efficiently as an
FIU where the law enforcement function is an integral part of the FIU itself.54
Mark Potter, Assistant Director for Government Relationships at FINTRAC,
testified about the importance of FINTRAC’s international connections in antiTF matters:
I think we all recognize we’re part of a global network and that
money launderers, terrorist financiers, will seek the weakest
link. So to the extent we can cooperate, both at a policy and
standard-setting level, through groups like the FATF and at an
operational level, through groups like [the Egmont Group of
50
51
52
53
54
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6787; Testimony of Mark Potter, vol. 56,
October 2, 2007, p. 7003.
These include national and provincial financial regulators, the RCMP and provincial and municipal
police forces, CBSA, CRA, Department of Finance, Department of Justice, PSEPC, DFAIT, PCO and
Treasury Board: Financial Transactions and Reports Analysis Centre of Canada, FINTRAC 2006 Annual
Report, p. 7, online: Financial Transactions and Reports Analysis Centre of Canada <http://www.fintrac.
gc.ca/publications/ar/2006/ar-eng.pdf> (accessed June 3, 2009) [FINTRAC 2006 Annual Report].
Including foreign financial intelligence units (FIUs), The Egmont Group of FIUs, FATF, the World Bank,
the International Monetary Fund and the United Nations Global Programme against Money
Laundering (UNGPML): FINTRAC 2006 Annual Report, p. 7.
Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 7006-7007.
For the pros and cons of the various models, see International Money Fund and World Bank, Financial
Intelligence Units: An Overview, pp. 9-17, online: International Monetary Fund <http://www.imf.org/
external/pubs/ft/FIU/fiu.pdf> (accessed August 8, 2008) [IMF and World Bank Overview of FIUs]. See
also Koh, Suppressing Terrorist Financing and Money Laundering, pp. 54-55.
�Chapter III: The Roles of Federal Departments and Agencies
Financial Intelligence Units], in being able to share information
efficiently, in sharing best practices with respect to training,
with respect to information technology, helps us all reach
a similar level of capacity to be able to – to combat global
money laundering and terrorist financing.55
Since June 2002, FINTRAC has been a member of the Egmont Group of Financial
Intelligence Units (the Egmont Group), an international organization founded
in 1995 to foster communication and improve the exchange of information,
intelligence and expertise, with a worldwide membership of more than 100
FIUs. The Egmont Group’s purpose is to “…enhance cooperation and information
exchange in support of member countries’ anti-money laundering and terrorist
financing regimes.”56 FINTRAC saw joining the Egmont Group as a milestone since
it “…allows us to strengthen relationships with FIUs from around the globe and
will facilitate the establishment of bi-lateral information exchange agreements
that will assist domestic and global efforts to detect, deter and prevent money
laundering and terrorist financing.”57
FINTRAC collaborates with foreign FIUs individually in addition to relying on
formal cooperation channels. For example, in 2006-07, FINTRAC worked with
its Australian counterpart, AUSTRAC,58 on technology upgrades and to improve
data capture and data analysis capabilities.59
3.2.2 Reporting Entities and Their Obligations
The PCMLTFA imposes reporting obligations on entities from many sectors of
the financial world.60 Reporting entities are required to provide FINTRAC with
information on certain financial transactions involving them. These entities
include federally-regulated banks, provincially-regulated caisses populaires and
credit unions, Money Services Businesses (MSBs) and securities dealers.
55
56
57
58
59
60
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 7006.
Financial Transactions and Reports Analysis Centre of Canada, “FINTRAC is a member of the Egmont
Group,” online: Financial Transactions and Reports Analysis Centre of Canada <http://www.fintrac.
gc.ca/publications/inter/egmont-eng.asp> (accessed December 7, 2007).
FINTRAC’s then Director was the chair of the Transition Sub-committee of Egmont in 2005-06 to “lead
the group towards becoming a more sustainable and permanent institution”: FINTRAC 2006 Annual
Report, p. 5.
Prof. Martin Rudner has stated that “the Australian Financial Intelligence Unit is regarded as the gold
standard, much more robust and much more capable in the prosecution, in both senses of the word,
of people engaged in terrorism finance”: Testimony of Martin Rudner, vol. 92, December 10, 2007,
p. 12232.
Financial Transactions and Reports Analysis Centre of Canada, FINTRAC 2007 Annual Report, pp.
2, 25, online: Financial Transactions and Reports Analysis Centre of Canada <http://www.fintrac.gc.ca/
publications/ar/2007/ar-eng.pdf> (accessed June 3, 2009) [FINTRAC 2007 Annual Report]; FINTRAC
2006-07 Departmental Performance Report, p. 14.
Although reporting entities are mostly from the private sector, s. 5(l) of the PCMLTFA also requires
“departments and agents of Her Majesty in right of Canada or of a province that are engaged in
the business of accepting deposit liabilities, that sell money orders to the public or that sell prescribed
precious metals, while carrying out the activities described in regulations made under paragraph 73(1)
(c)” to report.
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Reporting entities are not a part of FINTRAC but critically aid its work. They
provide most of the information received by FINTRAC61 and have become the
“eyes and ears” of the Centre.
Section 5 of the PCMLTFA identifies the entities required to report:
(a) authorized foreign banks within the meaning of section 2 of
the Bank Act in respect of their business in Canada, or banks to
which that Act applies;
(b) cooperative credit societies, savings and credit unions
and caisses populaires regulated by a provincial Act and
associations regulated by the Cooperative Credit Associations
Act;
(c) life companies or foreign life companies to which the
Insurance Companies Act applies or life insurance companies
regulated by a provincial Act;
(d) companies to which the Trust and Loan Companies Act
applies;
(e) trust companies regulated by a provincial Act;
(f ) loan companies regulated by a provincial Act;
(g) persons and entities authorized under provincial legislation
to engage in the business of dealing in securities, or to provide
portfolio management or investment counselling services;
(h) persons and entities engaged in the business of foreign
exchange dealing;
(i) persons and entities engaged in a business, profession or
activity described in regulations…;
(j) persons and entities engaged in a business or profession
described in regulations...while carrying out the activities
described in the regulations;
(k) casinos, as defined in the regulations, including those
owned or controlled by Her Majesty;
(l) departments and agents of Her Majesty in right of Canada
or of a province that are engaged in the business of accepting
deposit liabilities or that sell money orders to the public, while
carrying out the activities described in regulations…; and
61
PCMLTFA, s. 54.
�Chapter III: The Roles of Federal Departments and Agencies
(m) for the purposes of section 7 [which sets out the obligation
to report certain transactions], employees of a person or entity
referred to in any of paragraphs (a) to (l).
Sections 5(i) and 5(j) make it possible to add new reporting entities by way
of regulation. The following organizations have been added: legal counsel
and legal firms,62 British Columbia notaries public and notary corporations,
accountants and accounting firms, dealers in precious metals and stones, and
real estate developers.
FINTRAC monitors reporting sectors to identify appropriate additions to the list
of reporting entities. For example, in its 2007 Annual Report, FINTRAC stated
that it had noticed a stronger presence of Internet payment systems and “white
label” ATMs in its disclosures of financial intelligence to other agencies.63 The
ability to add new financial sectors is particularly important if those who finance
terrorism shift their fundraising activities to sectors that may still not be subject
to reporting requirements.
3.2.3 Collection or Receipt of Information
FINTRAC receives information from three main sources: (i) private sector
reporting entities, (ii) foreign FIUs and (iii) federal government agencies such as
the RCMP, CSIS and the CBSA.64 It must retain any reports received or information
collected for a minimum of 10 years.65 Identifying information contained in a
report must be destroyed after 15 years if, during that time, the report has not
been disclosed to certain bodies (for example, CSIS or the RCMP) identified in
the PCMLTFA.66
3.2.3.1 The Arm’s-Length Arrangement
FINTRAC does not have the legal authority to compel other agencies to
provide information to it.67 Nor can other agencies compel FINTRAC to provide
information to them, except by obtaining a production order, discussed below.
This is because FINTRAC stands at arm’s length from other agencies.
62
63
64
65
66
67
However, the obligation to report contained in ss. 7 and 9 of the PCMLTFA does not apply to
legal counsel or legal firms when they are providing legal services: PCMLTFA, s. 10.1. Furthermore,
s. 11 of the PCMLTFA states that nothing in Part 1 of the Act (which deals with record keeping, verifying
identity, reporting of suspicious transactions and registration) requires a legal counsel to disclose any
communication that is subject to solicitor-client privilege.
FINTRAC 2007 Annual Report, p. 24. “White label” ATMs dispense cash, but are not affiliated with a
bank.
Department of Finance Memorandum of Evidence on Terrorist Financing, para. 4.31.
PCMLTFA, s. 54(d). The retention requirement is subject to s. 6 of the Privacy Act, R.S.C. 1985, c. P-21,
which sets out requirements for the retention and disposal of personal information collected by federal
government institutions.
PCMLTFA, s. 54(e).
Exhibit P-382: Dossier 4: Terrorist Financing, December 13, 2007, p. 40 [Terrorist Financing Dossier].
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Intelligence Cycle: Flows of information to FINTRAC in TF matters
(sections refer to the PCMLTFA unless otherwise indicated)
Reporting entities
and persons
Must report:
• certain financial transactions related to the
commission or the attempted commission of a
terrorist activity financing offence (section 7(b))
• disclosures made under sections 83.1 of Criminal Code
or under RIUNRST (section 7.1(1))
• prescribed financial transactions (section 9(1))
Persons or entities
required by other
acts or regulations
to report to
FINTRAC
CBSA
CBSA must disclose: reports of import or export of
currency or monetary instruments (section 12(5));
incomplete reports of forfeited currency or monetary
instruments (section 14(5)); circumstances of seizure
of currency or monetary instruments (section 20);
information received under agreement with foreign
counterpart (section 38(3))
May disclose under section 36(3)
FINTRAC
OSFI
(under
MOU)
Anyone
FINTRAC must receive
information about
suspicions of TF (section
54(a))
Law enforcement agencies or government
institutions or agencies, foreign FIUs (section
54(a))
FINTRAC may on its own
collect publicly available
and commercial
information, and some
information from law
enforcement and
national security
databases (section 54(b))
�Chapter III: The Roles of Federal Departments and Agencies
3.2.3.2 Information Received from Reporting Entities
Under the PCMLTFA, reporting entities must do more than simply report certain
transactions to FINTRAC. They have specific obligations about record-keeping,
verifying clients’ identities, complying with other legislation besides the
PCMLTFA, and reporting suspicious and other transactions.68
Reporting entities must provide information to FINTRAC about the following:
• suspicious transactions (through Suspicious Transaction Reports
(STRs)) related to the possible commission of a money laundering
or terrorist activity financing offence;69
• the possession or control of property by listed entities (Terrorist
Property Reports (TPRs));70
• cash transactions of $10,000 or more,71 or two or more cash
transactions within 24 hours that amount to $10,000 or more (Large
Cash Transaction Reports),72 other than withdrawals;73 and
• electronic funds transfers of $10,000 or more, or two or more
transactions within 24 hours that amount to $10,000 or more,
where the sender or the recipient is located outside Canada
(Electronic Funds Transfer Reports (EFTRs)).74
All the reports described above are submitted to FINTRAC on standardized
forms. Reports are typically made using FINTRAC’s electronic online system,
known as F2R.75
Reporting entities have no specific legal authorization to report any transactions
that could be considered a threat to the security of Canada.76 Still, reporting
entities, unsurprisingly, are not prohibited from reporting these types of
transactions.
68
69
70
71
72
73
74
75
76
PCMLTFA, ss. 6-11.1.
PCMLTFA, s. 7.
Section 7.1 was added to the PCMLTFA in 2001 as part of the Anti-terrorism Act, S.C. 2001, c. 41
[Anti-terrorism Act] and requires a person or entity who is required to make a disclosure under s. 83.1
of the Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code] to file a report with FINTRAC if that person or
entity is subject to the PCMLTFA. Bill C-25 amended the provision by adding the obligation for a person
or entity who is required to report under the Regulations Implementing the United Nations
Resolutions on the Suppression of Terrorism, S.O.R./2001-360 [RIUNRST] and who is subject to the
PCMLTFA.
PCMLTFR, s. 12(1)(a).
PCMLTFR, s. 3(1).
PCMLTFR, s. 12(1)(a).
PCMLTFR, ss. 12(1)(b), 12(1)(c), 3(1).
FINTRAC presented a demonstration of the F2R system to Commission Counsel during the course of
the Inquiry.
A document prepared by FINTRAC also mentions this: see Exhibit P-233, Tab 11: Reasonable
Grounds to Suspect, p. 1 [FINTRAC Response on Reasonable Grounds to Suspect].
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Amendments to section 7 of the PCMLTFA came into force in June 2008.
They require a reporting entity to report to FINTRAC when it has reasonable
grounds to suspect that a transaction or attempted transaction is related to the
commission or the attempted commission of a money laundering or terrorist
activity financing offence.77 Before, there was no obligation to report attempted
transactions.
In fiscal year 2007-08, FINTRAC received slightly more than 21.6 million reports,
a substantial increase over the previous year, and about twice as many reports
as it received in 2004-05. However, only a very small percentage of reports to
FINTRAC in recent years have been Suspicious Transaction Reports. The vast
majority have been Electronic Funds Transfer Reports, followed by Large Cash
Transaction Reports. The following chart78 illustrates the breakdown of the
reports received by FINTRAC, by fiscal year and type:
REPORTS RECEIVED BY FISCAL YEAR AND TYPE
25,000,000
21,626,007
20,000,000
17,615,233
14,974,454
15,000,000
10,831,071
10,000,000
5,000,000
2004-05
2005-06
2006-07
2007-08
Electronic Funds Transfer Reports
Large Cash Transaction Reports
Suspicious Transaction Reports
Cross-Border Currency Reports/
Cross-Border Seizure Reports
Although FINTRAC has over the years received relatively few STRs as a proportion
of the total reports, STRs are particularly important because reporting entities
have applied their financial experience to flag these transactions as problematic.
Mark Potter testified that the STR is “…often one of the richest and most useful
types of reports for getting at particularly the terrorist financing side of things.”79
77
78
79
The amendments were introduced by Bill C-25, s. 5.
FINTRAC 2008 Annual Report, p. 17.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 7029.
�Chapter III: The Roles of Federal Departments and Agencies
Unlike STRs, other reports are triggered mechanically, without analysis by the
reporting entity, when an objective threshold is met – cash transactions of
$10,000 or more, for example.
”Objective threshold” reports also supply useful information.80 For example,
FINTRAC documents state that 93 per cent of its disclosures of information to
other agencies about TF or threats to the security of Canada contained at least
one EFTR, based on objective thresholds.81 Even so, FINTRAC’s own statistics
show that Voluntary Information Records82 (VIRs) provided by government
agencies, along with STRs, are the most common sources of information leading
to investigations.83
Section 7 of the PCMLTFA requires “…every person or entity [to] report to
[FINTRAC] … every financial transaction that occurs or that is attempted in the
course of their activities and in respect of which there are reasonable grounds
to suspect that the transaction is related to…” the commission, or the attempted
commission, of a money laundering offence or a terrorist activity financing
offence. There is no definition in the PCMLTFA of “suspicious transaction,” but
FINTRAC has issued a guideline.84 According to FINTRAC, the omission of a
definition from the Act was deliberate, thereby leaving it up to the reporting
entities, which were in the best position to make the determination.85 There is no
monetary limit below which STRs are not required.86 The guideline indicates that
“reasonable grounds to suspect” is “…determined by what is reasonable in your
circumstances, including normal business practices and systems within your
industry.”87 Furthermore, the guideline offers broad parameters for determining
when a transaction might qualify as suspicious:
As a general guide, a transaction may be connected to money
laundering or terrorist activity financing when you think that
it (or a group of transactions) raises questions or gives rise to
discomfort, apprehension or mistrust.
80
81
82
83
84
85
86
87
Exhibit P-438: FINTRAC Response to Supplementary Questions of the Commission, January 9, 2008,
Question 3(a) [First FINTRAC Response to Supplementary Questions of the Commission].
First FINTRAC Response to Supplementary Questions of the Commission, Question 3(b). This is
consistent with the international nature of terrorism. See also Financial Action Task Force, Third Mutual
Evaluation on Anti-Money Laundering and Combating the Financing of Terrorism, Canada, February
29, 2008, para. 101, online: Financial Action Task Force <http://www.fatf-gafi.org/
dataoecd/5/3/40323928.pdf> (accessed April 1, 2009) [2008 FATF Mutual Evaluation of Canada].
As discussed below, the RCMP and other government agencies can voluntarily provide information to
FINTRAC through Voluntary Information Records.
Exhibit P-233, Tab 14: FINTRAC Originators Chart [FINTRAC Originators Chart].
Financial Transactions and Reports Analysis Centre of Canada, “Guideline 2: Suspicious Transactions”
(December 2008), online: Financial Transactions and Reports Analysis Centre of Canada <http://
www.fintrac.gc.ca/publications/guide/Guide2/2-eng.asp> (accessed July 10, 2007) [FINTRAC Guideline
on Suspicious Transactions].
FINTRAC Response on Reasonable Grounds to Suspect, p. 1.
FINTRAC Guideline on Suspicious Transactions, para. 6.1.
FINTRAC Guideline on Suspicious Transactions, para. 3.1.
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The context in which the transaction occurs or is attempted
is a significant factor in assessing suspicion. This will vary
from business to business, and from one client to another.
You should evaluate transactions in terms of what seems
appropriate and is within normal practices in your particular
line of business, and based on your knowledge of your client.
The fact that transactions do not appear to be in keeping
with normal industry practices may be a relevant factor for
determining whether there are reasonable grounds to suspect
that the transactions are related to money laundering or
terrorist activity financing.88
The guideline also identifies indicators of suspicious transactions relating to
TF,89 stating that these indicators resemble and complement indicators of
suspicious transactions in money laundering cases. The guideline states that it
can be difficult to distinguish between a suspicion of money laundering activity
and a suspicion of TF activity.90 For FINTRAC, the important point is whether the
entity has suspicions, not whether the suspicions relate to money laundering or
TF.91 FINTRAC stated that most STRs that form the basis of disclosures to other
agencies about possible TF were originally brought to FINTRAC’s attention for
their suspected relation to money laundering.92
The guideline notes that TF often involves smaller amounts than money
laundering cases.93 Entities are urged to provide as many details as possible, “…
including anything that made you suspect that it might be related to terrorist
financing, money laundering, or both.”94
The guideline identifies more than 100 indicators that, alone or together,
might point to suspicious activity.95 Many are general, while others relate to
specific activities or industries. Specific indicators are provided for financial
sector entities, securities dealers, real estate brokers, non-profit organizations
(NPOs) and Money Service Businesses (MSBs), among others. Below are several
examples of indicators contained in the guideline:
88
89
90
91
92
93
94
95
FINTRAC Guideline on Suspicious Transactions, para. 6.1.
FINTRAC Guideline on Suspicious Transactions, paras. 7, 8.
FINTRAC Guideline on Suspicious Transactions, para. 6.2.
FINTRAC Guideline on Suspicious Transactions, para. 6.2.
Exhibit P-440: FINTRAC Response to Supplementary Questions of the Commission, February 5, 2008,
Question 2(m)(i) [Second FINTRAC Response to Supplementary Questions of the Commission].
Janet DiFrancesco also testified that TF transactions are more difficult to identify than money
laundering transactions because they involve “much smaller amounts of money”: Testimony of Janet
DiFrancesco, vol. 56, October 2, 2007, p. 6956.
FINTRAC Guideline on Suspicious Transactions, para. 6.2.
The guideline clearly states that: “These indicators were compiled in consultation with reporting
entities, law enforcement agencies and international financial intelligence organizations. They are not
intended to cover every possible situation and are not to be viewed in isolation.”: FINTRAC Guideline
on Suspicious Transactions, para. 6.3.
�Chapter III: The Roles of Federal Departments and Agencies
• Client appears to have accounts with several financial institutions in
one area for no apparent reason.
• Client conducts transactions at different physical locations in an
apparent attempt to avoid detection.
• Client is accompanied and watched.
• Client shows uncommon curiosity about internal systems, controls
and policies.
• Client uses aliases and a variety of similar but different addresses.
• Client spells his or her name differently from one transaction to
another.
• Client makes inquiries that would indicate a desire to avoid
reporting.
• Client has unusual knowledge of the law in relation to suspicious
transaction reporting.
• Client is quick to volunteer that funds are “clean” or “not being
laundered.”
• Client appears to be structuring amounts to avoid record keeping,
client identification or reporting thresholds.
• Client refuses to produce personal identification documents.
• All identification documents presented appear new or have recent
issue dates.
• Client presents uncounted funds for a transaction. Upon counting,
the client reduces the transaction to an amount just below that
which could trigger reporting requirements.
• Stated occupation of the client is not in keeping with the level or
type of activity (for example a student or an unemployed individual
makes daily maximum cash withdrawals at multiple locations over a
wide geographic area).
• Cash is transported by a cash courier.
• Transaction is unnecessarily complex for its stated purpose.
• Activity is inconsistent with what would be expected from declared
business.
• Account with a large number of small cash deposits and a small
number of large cash withdrawals.
• Establishment of multiple accounts, some of which appear to
remain dormant for extended periods.
• Unusually large cash deposits by a client with personal or business
links to an area associated with drug trafficking.
93
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Volume Five: Terrorist Financing
• Multiple personal and business accounts are used to collect
and then funnel funds to a small number of foreign beneficiaries,
particularly when they are in locations of concern, such as countries
known or suspected to facilitate money laundering activities.
• Client and other parties to the transaction have no apparent ties to
Canada.
• Transaction crosses many international lines.
• Transactions involving high-volume international transfers to third
party accounts in countries that are not usual remittance corridors.
• Client visits the safety deposit box area immediately before making
cash deposits.
• Client makes large cash withdrawals from a business account not
normally associated with cash transactions.
• The non-profit organization appears to have little or no staff, no
suitable offices or no telephone number, which is incompatible with
their stated purpose and financial flows.
• The non-profit organization has operations in, or transactions to or
from, high-risk jurisdictions.
• Sudden increase in the frequency and amounts of
financial transactions for the organization, or the inverse, that
is, the organization seems to hold funds in its account for a very
long period.96
FINTRAC has compiled some of the most common reasons for sending STRs to
FINTRAC:
• Customer known to authorities;
• Unusual business activity;
• Unable to ascertain source of funds;
• Multiple deposits at different branches;
• Many third party deposits, appears to be operating MSB through
the account.97
Below is a chart98 showing the number of STRs, by sector, that FINTRAC received
in TF matters between 2001 and mid-2007.
96
97
98
FINTRAC Guideline on Suspicious Transactions, paras. 7, 8.
These and other reasons are found at Exhibit P-233, Tab 22: FINTRAC, “Tactical Financial Intelligence,”
pp. 18-20 [FINTRAC Presentation on Tactical Financial Intelligence].
Exhibit P-233, Tab 6: STRs Received by Sector, 2001-07.
�Chapter III: The Roles of Federal Departments and Agencies
Potter testified that banks provide a preponderance of the financial transaction
reports submitted to FINTRAC,99 including the most STRs, but that MSBs also
contribute a significant number. The relatively large number from MSBs is
surprising because of the small size of the MSB sector in Canada and the absence,
until Bill C-25 was enacted, of requirements for such entities to register with
FINTRAC. The new registration requirements for MSBs should produce more
and better reports from that sector.100
99
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6975. In fact, banks were the first institutions to
be subjected to the reporting obligations under the FATF’s original 40 Recommendations. Although
non-bank financial institutions were also included in principle, no list of such institutions was provided:
IMF and World Bank Overview of FIUs, p. 35.
100 Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 6973-6974.
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Several detailed guidance documents are also available to reporting entities to
help them report properly.101 These documents are updated as circumstances
and legislation change.
The 2008 FATF Mutual Evaluation of Canada explained that federal officials felt
that asking for further information would violate section 8 of the Charter,102
although no court has yet made such a finding. Nonetheless, FINTRAC officials
indicated that FINTRAC does go back to reporting entities to ask for additional
information about an individual or a transaction.103
Many private sector reporting entities see the reporting system as complex
and as imposing considerable responsibilities on them, especially because of
the numerous reporting obligations, including client identification rules (also
sometimes referred to as “customer due diligence”). The inherent complexity
of the financial world and its myriad types of transactions further complicate
matters. Some reporting entities complain in particular about the one-way flow
of information that leaves them wondering whether their reporting efforts were
at all useful.
3.2.3.3 Other Sources of Information for FINTRAC
The CBSA must send a Cross-Border Currency Report (CBCR) to FINTRAC for any
cross-border movement of currency or monetary instruments of $10,000 or
more.104 CBSA also reports seizures of currency or monetary instruments via a
Cross-Border Seizure Report (CBSR).105 In addition, CBSA may provide information
to FINTRAC if it has reasonable grounds to suspect that such information would
be of assistance in the detection, prevention or deterrence of money laundering
or financing of terrorist activities.106
The RCMP and other municipal or provincial police forces, CSIS, CSE, ITAC, CBSA,
CRA, DFAIT and other agencies can all (if their governing legislation permits)
provide information to FINTRAC by way of a form entitled a Voluntary Information
Record (VIR). FINTRAC must also receive reports that are made to it by foreign
101 These guidelines are more technical than substantive. They include Guideline 3A: Submitting
Suspicious Transaction Reports to FINTRAC Electronically, Guideline 3B: Submitting Suspicious
Transaction Reports to FINTRAC by Paper, Guideline 5: Submitting Terrorist Property Reports, Guideline
7A: Submitting Large Cash Transaction Reports to FINTRAC Electronically, Guideline 7B: Submitting
Large Cash Transaction Reports to FINTRAC by Paper, Guideline 8A: Submitting Non-SWIFT Electronic
Funds Transfer Reports to FINTRAC Electronically, Guideline 8B: Submitting SWIFT Electronic Funds
Transfer Reports to FINTRAC and Guideline 8C: Submitting Non-SWIFT Electronic Funds Transfer
Reports to FINTRAC by Paper: see Financial Transactions and Reports Analysis Centre of Canada,
“FINTRAC Guidelines,” online: Financial Transactions and Reports Analysis Centre of Canada <http://
www.fintrac.gc.ca/publications/guide/guide-eng.asp> (accessed July 10, 2008).
102 2008 FATF Mutual Evaluation of Canada, para. 402.
103 Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 6987-6989.
104 A New Review Mechanism for the RCMP’s National Security Activities, p. 186; PCMLTFA, ss. 12(1), 12(5);
Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412, s. 2(1) [Crossborder Currency and Monetary Instruments Reporting Regulations].
105 PCMLTFA, ss. 18, 20.
106 PCMLTFA, s. 36(3).
�Chapter III: The Roles of Federal Departments and Agencies
FIUs as well as other information voluntarily provided to it about suspicions
of TF.107 In addition, FINTRAC can collect information stored in databases
maintained by the federal and provincial governments for law enforcement
or national security purposes, such as the Canadian Police Information Centre
(CPIC).108 FINTRAC also relies on open source information – information available
in the public domain, such as corporate registries. FINTRAC expressed concern,
however, that it could not obtain access to CSIS databases.109
Media scans concerning money laundering, TF and possible threats to the
security of Canada are reviewed daily by FINTRAC analysts. This open source
information is then matched against FINTRAC’s database. Such a process was
used in the recent case of the “Toronto 18.”110
FINTRAC also reviews past and present TF cases around the world to enhance its
own research and analysis.111
3.2.3.4 The Voluntary Information Record (VIR) Process
VIRs may relate to investigations of money laundering or TF offences.112 Federal
officials spoke of their importance. For example, James Galt of CSIS testified
that his first reflex on handling a new TF file would be to determine whether
FINTRAC had been consulted. He stated that he could not think of a reason why
the information in a file should not be sent to FINTRAC.113 RCMP Superintendent
Rick Reynolds testified that, in TF matters, “…we provide…as many voluntary
information reports as we feel appropriate and our resources allow.”114 Once it
receives a VIR, FINTRAC’s TF Unit assesses the information to determine if it can
produce an analysis for the agency that submitted the VIR.115
As noted, the VIR is usually sent to FINTRAC using a standardized form.116
Potter stated that the form was developed because the information FINTRAC
was receiving before then was of “mixed quality.”117 The form, developed with
FINTRAC’s partners, speeds up the analysis process within FINTRAC.118 During
testimony, FINTRAC officials showed the Commission a “sanitized” case of actual
TF activity. They also explained the content of the VIR in that case.
107 PCMLTFA s. 54(a).
108 PCMLTFA s. 54(b); Terrorist Financing Dossier, p. 39.
109 Exhibit P-442: Summary of Meeting between Commission Counsel and FINTRAC, April 10, 2008, p. 3
[Summary of Meeting with FINTRAC].
110 Exhibit P-233, Tab 20: FINTRAC Response to Various Questions of the Commission, p. 1. The informal
name of the case has changed several times, as charges were dropped against some of the defendants.
The term “Toronto 18” is used here.
111 Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, pp. 7009-7010.
112 Department of Finance Memorandum of Evidence on Terrorist Financing, p. 37.
113 Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6941.
114 Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6886.
115 Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, p. 6957.
116 English and French versions of a VIR form were entered into evidence: see Exhibit P-233, Tab 9.
117 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6960.
118 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6961.
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[Exhibit P-233, Tab 21, p.3 (Public Production 3759)]
The preparation of VIRs in agencies such as the RCMP and CSIS is centralized,
with at least one senior staff member tasked with overseeing the information
provided in the VIRs.119 There is no coordination between the RCMP and CSIS in
preparing VIRs.
FINTRAC documents indicate that if a VIR is received from an agency such
as CSIS, and if FINTRAC concludes that it meets the threshold for disclosing
the information to law enforcement as suspected TF activity, it would seek
permission from CSIS before such disclosure. Similarly, it would seek permission
from a law enforcement agency before disclosing information to CSIS.120 James
Galt of CSIS stated that VIRs prepared by CSIS often contain an authorization to
release the information to another agency.121 CSIS documents indicate that this
is done with about half of VIRs. For the remainder, FINTRAC would need to seek
permission and CSIS would decide on a case-by-case basis.122
This arrangement whereby FINTRAC must seek permission from CSIS
potentially conflicts with FINTRAC’s legal obligation under the PCMLTFA to
119
120
121
122
Testimony of Jim Galt, vol. 55, October 1, p. 6917;
Second FINTRAC Response to Supplementary Questions of the Commission, Question 1(d).
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6920.
Exhibit P-441: CSIS Response to Supplementary Questions of the Commission, March 5, 2008, Question
2 [CSIS Response to Supplementary Questions of the Commission].
�Chapter III: The Roles of Federal Departments and Agencies
disclose designated information to a relevant agency when the threshold for
disclosure is met. For example, section 55(3) of the PCMLTFA obliges FINTRAC
to disclose information to “the appropriate police force” if FINTRAC has
reasonable grounds to suspect that designated information would be relevant
to investigating a terrorist activity financing offence. Even if CSIS had provided
information in confidence, FINTRAC would be obliged to disclose it to the police
if the information, combined with other information, gave FINTRAC “reasonable
grounds to suspect.” Thus, the conflict arises between FINTRAC’S agreement
with CSIS and its obligations under the PCMLTFA.
FINTRAC officials have stated that, in most cases where they have not received
prior authorization, they do receive it after they approach the agency that
submitted the VIR. The two principal situations where the agency refuses
permission are when the VIR contains information from a foreign FIU or
information about undercover sources.123
FINTRAC gives priority to possible TF cases, regardless of the size of the
operation.124 Responding to VIRs submitted in TF matters is important to FINTRAC
because of the possibility of loss of life from terrorist incidents.125
The amounts of money at issue in TF, typically smaller than in money laundering
cases, make it more difficult for FINTRAC to generate TF leads on its own. Janet
DiFrancesco, Assistant Director for Macro-Analysis and Integration within
the Operations Sector at FINTRAC, gave evidence that the smaller number of
independent TF investigations generated by FINTRAC was primarily due to the
nature of TF cases: “…[T]ypically we’re dealing with much smaller amounts of
money moving.”126
Unlike money laundering, where the large sums involved may arouse FINTRAC’s
suspicion, the small amounts sometimes involved in TF may give FINTRAC no
reason to become suspicious. As a result, FINTRAC has difficulty identifying
possible TF by relying solely on its internal analysis. Galt testified that FINTRAC
had identified cases on its own three times in the last few years.127 In most cases,
it must rely on others – reporting entities or agencies such as the RCMP or CSIS
– who are reporting their own suspicions to FINTRAC. FINTRAC can then add
value through its analysis of the information that comes into its possession.
About 90 per cent128 of the possible TF cases that come to FINTRAC’s attention
do so because FINTRAC has received law enforcement or CSIS VIRs. FINTRAC
then responds to these VIRs, which can be viewed as unofficial requests for
123 Summary of Meeting with FINTRAC, p. 1.
124 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6962; Second FINTRAC Response to
Supplementary Questions of the Commission, Question 2(b).
125 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6962.
126 Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, p. 6956.
127 Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6920.
128 Testimony of Janet DiFrancesco, vol. 56, October 2, 2007 at p. 6956. Mark Potter could not give a
number for the operations of FIUs in other countries: see Testimony of Mark Potter, vol. 56, October 2,
2007, p. 6965.
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information from FINTRAC – requests made by way of VIRs – by searching its
own databases, analyzing the combined information and, if the legal criteria
for disclosure are met, disclosing designated information to the appropriate
agency.
Ms. DiFrancesco testified that FINTRAC identifies additional links, entities,
individuals or accounts in regard to a particular investigation or matter. As
well, to further advance the investigation, FINTRAC verifies links that law
enforcement agencies have already made.129 Because FINTRAC has information
about electronic funds transfers (EFTs), information that law enforcement
agencies usually do not hold, FINTRAC is well-positioned to identify links with
foreign countries.130 Potter testified that the VIR process also helped to maintain
an appropriate relationship with other agencies:
…[P]articularly with law enforcement and CSIS, it allows us to
balance two things: on the one hand being able to respond
to the investigative priorities of those agencies by receiving
VIRs from them on targets and entities of interest to them, and
on the other hand to balance the need to maintain an arm’slength relationship and not have direct access to our database
by those agencies and ensure that any cases we do ultimately
disclose in which a VIR is a factor, reach our threshold of
reasonable grounds to suspect. So there is a balance that is
achieved through the use of that mechanism and that piece of
information.131
During 2005-06, FINTRAC received 47 VIRs that it classified as relating to national
security. This represented nine per cent of the total VIRs received. During the
same period, FINTRAC made 33 disclosures to other agencies relating to TF
or threats to national security. Recipients made seven follow-up requests and
FINTRAC responded by providing additional information for six of the seven.
The 33 disclosures were not necessarily the product of the 47 VIRs received
during 2005-06 because some disclosures could have been the result of VIRs
from previous years.132
The 2008 FATF Mutual Evaluation of Canada spoke of FINTRAC’s excessive
reliance on VIRs for its TF work, stating that “…[t]his raises serious concern with
respect to the capability of FINTRAC to generate new ML/TF cases independent
from existing investigations.”133 The number of FINTRAC disclosures on TF
matters which could lead to new investigations by other agencies should
129 Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, p. 6957.
130 Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, p. 6957. In fact, FINTRAC is one of several FIUs
in the world to receive EFTs, which puts it in a good position in Canada’s fight against TF and ML:
FINTRAC 2007 Annual Report, p. 24.
131 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6959.
132 Exhibit P-233, Tab 10: FINTRAC Response on Voluntary Information Record Statistics, p. 1.
133 2008 FATF Mutual Evaluation of Canada, para. 21.
�Chapter III: The Roles of Federal Departments and Agencies
increase in coming years because the FINTRAC database is becoming more fully
populated. Potter gave an example of a possible lead initiated by a FINTRAC
review of media reports about terrorist activities. That information would then
be combined with information in FINTRAC’s database and analyzed.134
3.2.4 Analysis of Information Received by FINTRAC
Section 54(c) of the PCMLTFA provides that FINTRAC must analyze and assess the
reports and information it receives. The analysis process consists of assembling
all relevant information from various sources, trying to identify connections
between various parties and, finally, trying to identify transactions that could
be linked to either TF or money laundering.135
FINTRAC’s 2008 Annual Report described the two general categories of financial
intelligence that FINTRAC produces: “The first is information about specific
suspicious transactions, that is, those that suggest movements of illicit money.
The second is information showing overall patterns and trends as they emerge
in the ever-evolving world of money laundering and terrorist financing.”136
Each of FINTRAC’s four Tactical Financial Intelligence Units, part of its Operations
section, plays a role in the analysis process:
• One unit deals with VIRs, performing a general triage function and
handling less complicated cases, as needed;
• One unit deals with money laundering;
• One unit deals with TF and queries from foreign FIUs; and
• One unit deals with STRs and open source information which might
feed into the money laundering and TF units.137
Ms. DiFrancesco testified in 2007 that the TF unit at that time had a staff of
approximately ten.138 (The 2007 FINTRAC Annual Report stated that FINTRAC had
264 employees in total).139 Employees in other units may also work on TF matters.
FINTRAC’s 2008 Annual Report stated that staffing increased to 329 employees
during that year, but did not indicate how many devoted their time wholly or
partly to TF matters.140 The 2008 Annual Report spoke of how the efficiency of its
electronic systems avoided the need to hire many more employees:
134
135
136
137
138
139
140
Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 6963-6964.
FINTRAC Presentation on Tactical Financial Intelligence, p. 8.
FINTRAC 2008 Annual Report, p. 7.
Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, pp. 6953-6955.
Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, pp. 6955-6956.
FINTRAC 2007 Annual Report, p. 30.
FINTRAC 2008 Annual Report, p. 21.
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Annually, [FINTRAC’s] powerful systems collect, capture,
cleanse, and move 20 million reports into appropriate
databases, all within two hours of receipt. Because of this, we
have been able to cut down our use of paper files drastically,
and we are saving immeasurable amounts of staff time.
(Indeed, if we had to key in these reports manually, we would
need another thousand employees.) We then scan these
huge volumes of reports – using analytical tools designed
specifically for FINTRAC’s unique requirements – and quickly
zero in on patterns of possible suspicious transactions.141
The 2008 Annual Report stressed the utility of these systems:
…FINTRAC benefits from being one of the few FIUs that has
developed electronic systems that permit the automated
receipt of high volumes of financial reports and the rapid and
precise mining of information from the millions of reports of
various types in our databases.
…
We receive more than twenty million reports annually. Thirty
years ago, the processing of this data would have required
an army of sorters, filers and compilers to collect and analyze
such volumes, as well as an airplane hangar in which to store
the records. Today however, FINTRAC is up to the task at
hand thanks to the advanced technological infrastructure –
electronic systems that we constantly revamp and upgrade –
that lies at the core of our operations.142
The Annual Report claimed that FINTRAC’s technology and analysis provided
considerable benefits for police and other recipients of FINTRAC disclosures:
FINTRAC’s sophisticated data mining techniques are able, for
example, to look for links among transaction reports received
from a multiplicity of different reporting entities. In so doing
they can uncover the trail left by money launderers who
typically use several banks – sometimes more than a dozen in
widely dispersed locations – to try to evade detection…. [H]
alf of our case disclosures this past year were based on reports
from six or more reporting entities.
…
141 FINTRAC 2008 Annual Report, p. 21.
142 FINTRAC 2008 Annual Report, p. 7.
�Chapter III: The Roles of Federal Departments and Agencies
[T]he financial intelligence that FINTRAC discloses takes
a variety of forms and is derived through many different
methods. Often information provided to us by law
enforcement and intelligence agencies leads us to comb
through our databases to find connections that would
otherwise elude investigators. What we are then able to
disclose gives the investigators a valuable return on that initial
lead.
In other instances, our automated technology will find
suspicious patterns of financial transactions, and these enable
our analysts to construct a case that is wholly new to police
and other disclosure recipients. Common to all cases, however,
is the scope and detail of the intelligence that FINTRAC is able
to provide.143
In analyzing the information it holds, FINTRAC looks at a broad array of indicators
of TF. The following are examples:144
• Sending or receiving funds by international transfers from and/or to
locations of specific concern;
• Atypical business/account behaviour;
• Charity/relief organization linked to transactions;
• Media coverage of account holder’s activities;
• Ongoing investigation; and
• Large and/or rapid movement of funds;
The 2008 FATF Mutual Evaluation of Canada criticized FINTRAC because of the
indicators it used to determine whether a transaction was related to TF. The FATF
concluded that the indicators were solely based on FATF typologies (examples
of trends and methods) and indicators, as well as those of the Egmont Group
and other FIUs, rather than developed by FINTRAC. The FATF concluded that,
the list based on TF trends identified by FINTRAC itself spots “relatively basic and
unsophisticated indicators.”145
FINTRAC officials presented to the Commission a “sanitized” TF scheme. The
scheme is complex, as the diagrams below show. This and other cases of such
complexity may require FINTRAC to perform a very sophisticated analysis.146
143 FINTRAC 2008 Annual Report, p. 11.
144 The FINTRAC Presentation on Tactical Financial Intelligence includes a more complete list: see
pp. 21-24.
145 2008 FATF Mutual Evaluation of Canada, para. 378.
146 Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, pp. 6989-6995.
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[Exhibit P-233, Tab 21 pp. 6 and 8 (Public Production # 3759)]
Disclosure of Information
Conditions for FINTRAC Disclosures
�Chapter III: The Roles of Federal Departments and Agencies
[Exhibit P-233, Tab 21 pp. 6 and 8 (Public Production # 3759)]
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3.2.5 Disclosure of Information
3.2.5.1 Conditions for FINTRAC Disclosures
After completing its analysis,147 FINTRAC must or may, if the legal threshold
is met, disclose “designated information” to specific agencies. The following
chart148 explains the different tests for disclosure by FINTRAC:
Flows of “designated” and other“designated” andFINTRAC in TF
Intelligence Cycle: Flows of information from other information from
matters
FINTRAC in TF matters
( ll
f
(all references to tsections refer to the PCMLTFA)
t
ti
f
th PCMLTFA)
CRA*
Section 55(3)(b) or (c)
Appropriate
police force*
CSIS*
Section 55.1(1) and
where there are
reasonable grounds
to suspect that
designated info.
would be relevant to
investigating or
prosecuting a TF
offence
Mandatory if
threshold met
Mandatory if
threshold met
Section 55(3)(a)
Mandatory if
threshold met
FINTRAC
discloses
designated
information
Mandatory if
threshold met
CSE
Section 55(3)(f)
* PCMLTFA also empowers
court to issue order requiring
FINTRAC to disclose
information to police
(section 60(4)), CSIS (section
60.1(3)) or CRA (section
60.3(3))
Discretionary
even if threshold
met and
agreement in
place
Mandatory if
threshold met
CBSA
Section 55(3)(b.1), (d) or
(e)
Foreign
FIUs
Sections 56.1(1) and
(2)
147 PCMLTFA, s. 54(c).
148 Some provisions were in place before the Anti-terrorism Act – for example, in the Proceeds of Crime
(Money Laundering) Act in regard to money laundering. The purpose of this chart is to differentiate
between the provisions contained in Bill C-25 and those in place before in regard to TF. Anything
which preceded Bill C-25 is labelled “ATA.” Likewise, since agencies such as the Canada Customs and
Revenue Agency and the Department of Citizenship and Immigration have changed, disclosure
rules that may have been modified to apply to different recipients were not identified as “new” in the
chart. For example, the previous s. 55(3)(b) was been amended and disclosure can now be made to two
agencies instead of one because of organizational changes. As such, the “new” provisions are still
labelled as originating in the Anti-terrorism Act.
�Chapter III: The Roles of Federal Departments and Agencies
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Using an example from the chart, FINTRAC is required to disclose designated
information to a law enforcement agency or CSIS if it meets the first test
described in the chart – that FINTRAC has “…reasonable grounds to suspect that
designated information would be relevant….” The conditions for disclosing to
agencies other than CSIS and the RCMP are stricter. FINTRAC must satisfy not
only the first test, but a second test as well. For example, the PCMLTFA requires
FINTRAC to disclose designated information to the CRA under section 55(3)(b)
of the PCMLTFA, but only if FINTRAC satisfies two tests:
• It has reasonable grounds to suspect that designated information
would be relevant to investigating or prosecuting a money
laundering offence or a terrorist activity financing offence, and
• It determines that the information is relevant to an offence of
obtaining or attempting to obtain a rebate, refund or credit
to which a person or entity is not entitled, or of evading
or attempting to evade paying taxes or duties imposed under
an Act of Parliament administered by the Minister of National
Revenue.
Potter explained the reason for a more stringent test when FINTRAC deals with
the CRA:
I think the intent of the original legislation and the way we
were put together was, we’re a money laundering/terrorist
financing financial intelligence unit, so that’s our core focus.
There are other agencies, like CRA that deal with tax evasion
most directly. So I think there was a concern that might – at a
minimum, there would be the perception that somehow this
new agency was created and was going to be looking at your
taxes.149
There is no definition of “reasonable grounds to suspect” in the PCMLTFA and no
case law about its interpretation in the context of that legislation.150 FINTRAC
therefore relies on the case law interpreting the expression in other contexts:151
Based on [various courts’ interpretations of similar phrases],
it would appear clear that FINTRAC would have “reasonable
grounds to suspect” that information it would be disclosing
would be relevant to investigating or prosecuting a terrorist
149 Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 6970-6971.
150 FINTRAC Response on Reasonable Grounds to Suspect, p. 3.
151 FINTRAC Response on Reasonable Grounds to Suspect, p. 3. See pp. 4-5 of the same document for
jurisprudence on this subject.
�Chapter III: The Roles of Federal Departments and Agencies
activity financing offence when police provide FINTRAC with
voluntary information regarding individuals and businesses of
interest to them in the context of a particular investigation.152
The PCMLTFA requires FINTRAC to disclose designated information to CSIS if
FINTRAC has reasonable grounds to suspect that designated information would
be relevant to threats to the security of Canada.153 One FINTRAC document
provided to the Commission states that any “terrorist activity financing offence,”
as defined in the PCMLTFA, would constitute a “threat to the security of Canada” as
defined in the Canadian Security Intelligence Service Act (CSIS Act).154 Accordingly,
if the FINTRAC interpretation is accurate, when FINTRAC has reasonable grounds
to suspect that financial intelligence would be relevant to investigating a terrorist
activity financing offence, this would also constitute reasonable grounds
to suspect that the intelligence would be relevant to “threats to the security
of Canada.” FINTRAC would be obliged to disclose the information to CSIS as
well as whichever other agency to which the PCMLTFA requires disclosure. In
short, if FINTRAC finds information that could be relevant to investigating or
prosecuting a TF offence – barring possible limits on disclosure contained in
VIRs sent to FINTRAC – FINTRAC must disclose information to CSIS as well as to
other recipients.
However, the converse is not necessarily true. “Threats to the security of Canada”
can take many forms that do not involve TF. If FINTRAC has reasonable grounds
to suspect that designated information would be relevant to a threat to the
security of Canada that does not involve TF – espionage, for example – FINTRAC
must disclose the information only to CSIS.
FINTRAC has the discretion to disclose information to foreign FIUs with which
it has a memorandum of understanding (MOU) on grounds similar to those
for which it is obliged to disclose information to Canadian law enforcement
agencies.155 These MOUs must be approved by the Minister of Finance156 and
are limited in scope.157 Before entering into an MOU with a foreign FIU, FINTRAC
assesses the country’s legal regime, relying on input from local partners.158
FINTRAC seeks assurances that the country has adequate privacy measures to
152 FINTRAC Response on Reasonable Grounds to Suspect, p. 5. This does not appear to be far removed
from direct access by recipients of FINTRAC information to FINTRAC’s database, notwithstanding the
prohibition to do so.
153 PCMLTFA, s. 55.1.
154 Second FINTRAC Response to Supplementary Questions of the Commission, Question 1(d).
155 PCMLTFA, s. 56.1(2); Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 7010-7012. The Terrorist
Financing Dossier notes that, “When FINTRAC decides whether to enter into an information-sharing
agreement with a foreign financial intelligence agency, it considers the country’s willingness and ability
to protect the information that FINTRAC provides and to honour the restrictions that FINTRAC places
on the information”: p. 41, note 188. For a list of FINTRAC’s MOU Partners as of July 2007, with the name
of each FIU and the date of signature, see Exhibit P-233, Tab 18: FINTRAC MOU Partners.
156 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 7010; PCMLTFA, s. 56(2). The Minister may also
enter into MOU agreements: see PCMLTFA, s. 56(1).
157 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 7011.
158 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 7011.
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protect the information sent to its FIU.159 Privacy concerns are one reason for
FINTRAC’s reluctance to sign MOUs with some foreign FIUs:
Ideally, FINTRAC would be able to exchange information with
every FIU in the world in pursuit of the money trail, without
reservations, wherever that trail may lead. Practically, however,
this desire to obtain information must be balanced with
the need to ensure that FINTRAC is exchanging information
with partners who will safeguard that information from
unauthorized disclosure.160
In its 2007 Annual Report, FINTRAC stated that it had agreements with FIUs from
45 countries.161 The 2008 Annual Report stated that FINTRAC signed agreements
with two new FIU partners in Sweden and the island of St. Kitts and Nevis.162
When asked why none of the FIUs with whom FINTRAC had signed MOUs are
located in countries that are “hotspots” of terrorism, FINTRAC offered two main
explanations:
• FINTRAC’s selection of MOU partners does not exclusively focus
on TF, but also on money laundering. The MOU may be directed at
money laundering alone and reflect the fact that a country is a
money laundering “hotspot,” but not a significant source of
terrorism or TF; and
• Many jurisdictions that could be considered terrorism “hotspot”
may have FIUs, but the FIUs may be in the early stages of
development and they may not yet be members of the Egmont
Group. All Egmont members undergo an operational evaluation
before admission to ensure that they are able to maintain an agreed
level of standards and practices. [The implication of this response
by FINTRAC is that FINTRAC is reluctant to make an agreement with
an FIU that has not passed the Egmont evaluation.]163
FINTRAC did note, however, that it had MOUs with countries that have been
targets of terrorist acts, including Spain, France, Israel, Indonesia, Colombia, the
US and the UK.164 After MOUs are in place, FINTRAC continues to monitor foreign
countries’ legal frameworks.165
159 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 7011.
160 Second FINTRAC Response to Supplementary Questions of the Commission, Question 6(a)(i).
161 FINTRAC 2007 Annual Report, p. 27. FINTRAC had MOUs with 30 FIUs in 2006 and 20 in 2005: see
FINTRAC 2007 Annual Report, “FINTRAC Highlights 2005-2007,” on the page following the report cover.
162 FINTRAC 2008 Annual Report, p. 20.
163 Second FINTRAC Response to Supplementary Questions of the Commission, Question 6(a).
164 Second FINTRAC Response to Supplementary Questions of the Commission, Question 6(a).
165 Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 7011-7012. As of January 2008, FINTRAC had
conducted outreach visits to the FIUs of Australia, Bahamas, Barbados, Belgium, Cayman Islands,
Hong Kong, Israel, Italy, Mexico, Netherlands, Spain and the United States: Second FINTRAC Response
to Supplementary Questions of the Commission, Question 6(d).
�Chapter III: The Roles of Federal Departments and Agencies
3.2.5.2 What FINTRAC Discloses
FINTRAC discloses only “designated information.” The PCMLTFA defines
“designated information”in three places,166 and the applicable definition depends
on the identity of the proposed recipient. Before the changes introduced by
Bill C-25, only limited information – basically raw data167 – could be disclosed,
limiting the potential value of FINTRAC disclosures. As a result, recipients often
had to do their own analysis of the information they received, causing delay and
wasting resources.
Bill C-25 added new categories of information to what constituted “designated
information” in the PCMLTFA. FINTRAC’s 2008 Annual Report spoke of how this
enhanced the value of FINTRAC’s disclosures to other agencies:
With the new provisions, our case disclosures can include a
greater range of information relating to financial transactions,
and the number of agencies to which we are authorized to
make them has increased. Consequently, because our financial
intelligence is enriched, its value in investigations is enhanced.
Feedback from the law enforcement and intelligence
communities already reflects this enhancement. 168
The same report spoke of the more general “products” of FINTRAC’s analysis that
it discloses:
In 2007-08, we produced and disseminated a wide range
of well-received strategic analysis products to our partners.
Among these were “The Watch”, an environmental scan
focused on money laundering and terrorist activity financing
issues; “Backgrounders”, which present a general overview of
emerging trends and typologies; and financial intelligence
“Briefs” which provide a more in-depth assessment of our
reports and disclosures. As in the past, “Perspectives” were
also produced to offer a retrospective of our disclosures and
reports, and to identify typologies and patterns of transactions
in relation to a particular subject or theme.169
The chart below shows the expanded categories of information included in the
definition of “designated information” (the definitions in sections 55(7), 55.1 and
56.1 are identical at present).
166
167
168
169
PCMLTFA, ss. 55(7), 55.1(3), 56.1(5).
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6918.
FINTRAC 2008 Annual Report, p. 4.
FINTRAC 2008 Annual Report, p. 8.
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�Chapter III: The Roles of Federal Departments and Agencies
As the chart shows, Bill C-25 brought a significant increase in the information
qualified as designated information. FINTRAC now discloses links between the
various parties identified in the disclosures, as well as the indicators of suspicious
activity and the original grounds for an STR. Still, FINTRAC cannot of its own
accord disclose its analysis in a specific case or the written justification for its
disclosures.170 FINTRAC explained that “…[t]he decision to allow disclosure of
strictly factual information was, once again, a deliberate one to counterbalance
the fact that FINTRAC would be making its disclosures based on the ‘reasonable
grounds to suspect’ threshold, which is the least onerous legal standard possible
that is not entirely subjective.”171
Although Bill C-25 added new categories to the information that FINTRAC
discloses, law enforcement agencies or CSIS may still need to analyze the
information – in essence, repeating the analysis that FINTRAC has already done.
Law enforcement agencies, CRA and CSIS can obtain a FINTRAC analysis (as
opposed to designated information) only by obtaining a production order.172
The 2008 FATF Mutual Evaluation of Canada stated that 14 production orders had
been sought to that point by law enforcement.173 It is not known whether any
of these orders related to TF, but the main point is the relatively small number of
orders, even if all had related to TF.
3.2.5.3 How FINTRAC Discloses
FINTRAC has a rigorous internal case approval process that aims to ensure that
the required threshold for disclosures is met.174 The final decision to disclose
rests with FINTRAC’s Disclosure Committee, chaired by the Director of FINTRAC.
If the disclosure package is approved, it is provided to recipients. The process
can extend over a few weeks in a money laundering case, a period which
may be reasonable since such an investigation is essentially reactive and the
circumstances of the case do not generally threaten lives. In TF cases, however,
lives can be at immediate risk and there may be a need to disclose information
promptly. FINTRAC assured the Commission that the turnaround time in TF
cases from receipt of a VIR to disclosure to an agency can be as fast as 24 hours
and that FINTRAC gives TF disclosures priority.175
FINTRAC disclosures are made without any caveat on the use of the
information. It is expected that the recipient will use the information to further
its investigations.176 The information disclosed by FINTRAC could potentially
become public if a prosecution proceeds or if the recipients decide for any other
reason to make the information public.
170
171
172
173
FINTRAC Response on Reasonable Grounds to Suspect, p. 2.
FINTRAC Response on Reasonable Grounds to Suspect, p. 2.
Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, p. 7016; PCMLTFA, ss. 60, 60.1, 60.3.
These numbers are probably current as of the time of the FATF on-site visit, which occurred early in
2007.
174 See Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 6983-6984 for an explanation of the process.
175 Second FINTRAC Response to Supplementary Questions of the Commission, Question 4(a). See also
2008 FATF Mutual Evaluation of Canada, para. 375.
176 Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, p. 6994.
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FINTRAC’s 2008 Annual Report stated that FINTRAC made 210 disclosures
of cases during the year under review. Of this total, 171 were associated with
money laundering, 29 with TF and other “threats to Canada’s safety,” and 10
with both money laundering and TF.177 The 2008 Annual Report did not state
the value of the disclosures. However, the 2007 Annual Report indicated that
there were roughly $10 billion in suspicious transactions,178 of which about $208
million related to suspected TF or threats to the security of Canada.179
The amounts involved in individual disclosures are generally much smaller in TF
cases than in money laundering cases. In 2005-06, the biggest single disclosure
in a TF case involved about $98 million, with the average being $919,000 and
the smallest being under $10,000. In contrast, the amounts involved in money
laundering disclosures were at least $10,000, with the largest being $886
million.180 The following chart shows the range in value of FINTRAC disclosures
related to suspected TF:181
177 FINTRAC 2008 Annual Report, p. 9.
178 FINTRAC 2007 Annual Report, p. 8.
179 Second FINTRAC Response to Supplementary Questions of the Commission, Question 2(e); FINTRAC
2007 Annual Report, p. 8. In 2005-06, FINTRAC made 168 case disclosures involving slightly more than
$5 billion in suspect financial transactions. Of these disclosures, 33 were for suspected terrorist activity
financing and/or other threats to the security of Canada. One disclosure involved both suspected
money laundering and suspected terrorist activity financing and/or threats to the security of Canada.
Of the roughly $5 billion in suspicious transactions, approximately $256 million related to suspected
terrorist activity financing and other threats to the security of Canada: FINTRAC 2006 Annual Report,
p. 8.
180 Exhibit P-233, Tab 13: FINTRAC Disclosure Value Chart, p. 1.
181 Second FINTRAC Response to Supplementary Questions of the Commission, Question 2(i).
�Chapter III: The Roles of Federal Departments and Agencies
The number and dollar value of FINTRAC disclosures has steadily increased over
the years for both TF and money laundering. According to FINTRAC, the increase
in the value of disclosures flows from its strategy of focusing on large cases,
its deeper knowledge of trends, more experienced staff, improved computer
systems, and its growing database.182
In its 2007 Annual Report FINTRAC stated that the demand for its intelligence
attested to its quality. The report also stated that feedback from law enforcement
offered a clear indication of the value of the financial intelligence it provided.183
As noted above, however, the 2008 Annual Report provided no indication of the
dollar value of FINTRAC’s disclosures for the period covered by the report.
FINTRAC officials explained that the dollar value of disclosures did not indicate
the actual amount of TF taking place. This was because FINTRAC only needs to
suspect that certain transactions are relevant to investigating a TF offence for it
to disclose information. Even so, it included the value of these transactions in
the total value of its disclosures.
One FINTRAC document stated that the value of a particular transaction is
“…not necessarily the most relevant piece of the intelligence puzzle,” adding
that, for example, names of individuals and account numbers may have more
intelligence value.184
3.2.6. Relationships between FINTRAC and Other Agencies
3.2.6.1 In General
As noted earlier, FINTRAC stands at arm’s length from other agencies.185 The
arm’s-length relationship is intended to address privacy concerns. A central
issue is how to achieve a workable compromise between investigative efficiency
and privacy rights. The objects of the PCMLTFA are relevant in searching for this
compromise, since they include responding to the needs of law enforcement
“…while ensuring that appropriate safeguards are put in place to protect the
privacy of persons with respect to personal information about themselves.”186
The 2008 FATF Mutual Evaluation of Canada described the justification advanced
for the arm’s-length relationship:
The decision to provide police and other recipients with
designated information only when FINTRAC reaches its
threshold, rather than to provide unrestricted access to
FINTRAC’s data holdings, reflects the fact that FINTRAC receives
182
183
184
185
186
FINTRAC 2007 Annual Report, p. 9.
FINTRAC 2007 Annual Report, pp. 4, 10.
Second FINTRAC Response to Supplementary Questions of the Commission, Question 1(b).
The term “arm’s length” is used in the PCMLTFA: see s. 40(a).
PCMLTFA, s. 3(b).
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a large amount of varied financial information on persons
and entities, the vast majority of which is legitimate and not
relevant to any investigation or prosecution.187
Janet DiFrancesco of FINTRAC testified that standing at arm’s length from other
bodies is an advantage:
[O]ur regime…was created to be consistent with the Charter of
Rights, and it does of course consider privacy laws but I think
one of the advantages that FINTRAC does have, having been
created at arm’s length, is that we are also able to collect what
we call more objective reports, prescribed transactions in
terms of international wire transfers and large cash transaction
reports.188
The relationship between FINTRAC and Finance Canada was described earlier
in this chapter. Potter testified that FINTRAC’s relationship with both CSIS and
the RCMP, the most typical recipients of its disclosures, was “positive.”189 He
described the relationship as follows:
We would work with them…in a number of [areas other than
disclosures], whether it be policy and legal development,
whether it be research on new methods being used,
typologies work; so there are a number of ways in which we
would interact with the RCMP and CSIS beyond just the core
relationship of providing disclosures.190
Potter described FINTRAC’s relationship with CBSA as less close, since CBSA is
a recipient of FINTRAC disclosures under different conditions from those that
exist for the RCMP and CSIS.191 FINTRAC continues to work on understanding
and clarifying the conditions for disclosure to CBSA.
In 2004, the Auditor General192 reported reluctance among law enforcement
agencies to share information with FINTRAC. However, Ms. DiFrancesco testified
that there was no longer any reluctance to share.193
FINTRAC also gives its partners macro-analyses (not to be confused with its
analyses in individual cases, which it cannot disclose unless compelled by a
187
188
189
190
191
192
2008 FATF Mutual Evaluation of Canada, para. 382.
Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, pp. 6967-6968.
Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 7004-7005.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 7004.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 7005.
Report of the Auditor General of Canada to the House of Commons, November 2004, Chapter 2:
“Implementation of the National Initiative to Combat Money Laundering,” para. 2.25, online: Office
of the Auditor General of Canada <http://www.oag-bvg.gc.ca/internet/docs/20041102ce.pdf>
(accessed January 16, 2009) [2004 Auditor General Report on Money Laundering].
193 Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, pp. 7018-7019.
�Chapter III: The Roles of Federal Departments and Agencies
production order) and research documents on money laundering and TF. In
2006-07, it provided macro-analyses to ITAC and to the Criminal Intelligence
Service Ontario.194 FINTRAC also contributed to assessments and studies by
the RCMP and CSIS.195 One FINTRAC document provided to the Commission
stated that, during recent years, “…strategic information has been provided on
FINTRAC’s drug, fraud, and FIU query related disclosures and on the use of NPOs
and internet payment systems.”196
FINTRAC has specialized staff – Law Enforcement Liaison Officers – responsible
for delivering disclosure packages to and obtaining feedback from law
enforcement agencies. These officers also assist law enforcement agencies
when they provide VIRs to FINTRAC.
Privacy concerns may arise from using secondments between FINTRAC and
other agencies because of a fear that employees seconded from FINTRAC may
use their FINTRAC connections to obtain information for the agency to which
they are seconded, even if FINTRAC is not legally allowed or required to disclose
the information.
3.2.6.2 Feedback to FINTRAC from Recipients of Disclosures
FINTRAC was criticized in the past for not disclosing sufficient information. Bill
C-25 expanded the types of information that FINTRAC can or must disclose.
The Auditor General’s November 2004 report found that police forces did not“give
much weight” to unsolicited disclosures by FINTRAC.197 RCMP Superintendent
Reynolds assured the Commission that this was not the case, at least for the TF
portion of the RCMP’s work.198
FINTRAC provides voluntary Disclosure Feedback Forms with all of its disclosures.
It has been encouraging disclosure recipients to complete the form and to
identify leads that the FINTRAC information may have produced. FINTRAC
receives some, though not regular, feedback. FINTRAC does not view such
feedback as a necessity, but admits that it is useful to learn about the impact of
its work.199 In some cases, FINTRAC does receive follow-up information from law
enforcement agencies about ongoing investigations.
FINTRAC officials indicated that the issue of feedback from disclosure recipients
will be addressed in the “performance management framework” that is being
developed under Finance Canada’s leadership. This framework will involve all of
the partners in the federal government’s AML/ATF Initiative.
194
195
196
197
198
199
FINTRAC 2007 Annual Report, p. 24.
Second FINTRAC Response to Supplementary Questions of the Commission, Question 2(d).
Second FINTRAC Response to Supplementary Questions of the Commission, Question 2(d).
2004 Auditor General Report on Money Laundering, para. 2.25.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6885.
Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, pp. 6994-6995.
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�Chapter III: The Roles of Federal Departments and Agencies
As of January 2007, feedback to FINTRAC about the value of its disclosures
produced the following results.200 The disclosures:
• related to persons/business/entity of interest:
79%
• were useful for intelligence purposes:
75%
• provided names/leads on previous unknowns:
62%
• were a major contribution:
24%
• were a minor contribution:
23%201
Ms. DiFrancesco agreed with one counsel that feedback has a double benefit. If
it is negative, it forces FINTRAC to make the appropriate changes. If it is positive,
it can act as a morale booster.202
In addition to the voluntary feedback form, and in compliance with the Auditor
General’s recommendation encouraging FINTRAC to expand exchanges of
information with other agencies, FINTRAC has initiated more frequent meetings
with disclosure recipients. Meetings with the RCMP provide an opportunity to
meet with RCMP investigators at both senior and working levels.203
Obtaining feedback through meetings and feedback forms is an ad hoc approach
to evaluating the usefulness of FINTRAC. It is not required by law. As a result,
meetings and feedback forms do not help to measure FINTRAC’s performance
systematically.
3.2.7 Interaction between FINTRAC and the Private Sector
Ms. Lafleur testified that FINTRAC and the anti-TF program are dependent on
reporting entities.204 Millions of transaction reports are sent to FINTRAC every
year, producing an ever-growing database.205 The FINTRAC Report on Plans and
Priorities For the years 2007-2008 to 2009-2010 noted that “…[t]he production
of timely, high quality financial intelligence is dependant on reporting entities
fulfilling their obligations to report and ensuring that the reported data is of
high quality.”206 In short, if FINTRAC does not receive reports of sufficient quality,
its own analysis suffers.207 This in turn impedes the work of those to whom it
discloses information.
200 See FINTRAC Disclosure Feedback Form, section 1, for the various categories. Disclosure recipients can
select more than one answer.
201 Exhibit P-233, Tab 17: FINTRAC Disclosure Feedback Statistics.
202 Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, pp. 7014-7015.
203 Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 6997-6998.
204 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6756.
205 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6950. At the time of the Commission’s hearings,
the database was said to contain around 60 million reports: see Testimony of Janet DiFrancesco, vol. 56,
October 2, 2007, p. 6957.
206 FINTRAC Report on Plans and Priorities for 2007-08 to 2009-10, p. 9.
207 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6985.
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3.2.7.1 FINTRAC Measures to Ensure Compliance by Private Sector
Reporting Entities
FINTRAC has the obligation to ensure that reporting entities comply with the
PCMLTFA and its regulations.208 A budget of $16.2 million was designated for
FINTRAC’s compliance efforts during the 2007-08 fiscal year.209 FINTRAC’s
compliance examinations continue to demonstrate that the vast majority
of reporting entities want to, and do in fact, comply with their legislative
obligations.210
FINTRAC cannot oversee compliance by all reporting entities because of their
numbers. Instead, compliance focuses “…primarily [on] those sectors and entities
that are most at risk for non-compliance.”211 Compliance efforts consist of the
following: awareness activities; monitoring data quality; questionnaires; on-site
examinations; and taking appropriate remedial action when non-compliance is
detected.212
FINTRAC has begun to refocus its compliance activities to invest more resources
in examining reporting entities. Entities are selected using a risk-based approach,
focusing on reporting entities at highest risk of non-compliance.213 The
FINTRAC 2008 Annual Report stated that, in 2007-08, FINTRAC conducted 277
examinations, and the national and provincial regulatory agencies with which
FINTRAC had a memorandum of understanding conducted 257 examinations.
FINTRAC disclosed five cases of suspected non-compliance with reporting
obligations to law enforcement for investigation and prosecution.214
The FINTRAC 2008 Annual Report did not identify the deficiencies that
examinations revealed. However, the 2007 Annual Report, covering 2006-07,
identified the deficiencies found during that period:215
208
209
210
211
212
PCMLTFA, s. 62.
FINTRAC Report on Plans and Priorities for 2007-08 to 2009-10, p. 13.
FINTRAC Report on Plans and Priorities for 2007-08 to 2009-10, p. 15.
Exhibit P-233, Tab 7: FINTRAC’s Risk-Based Approach, p. 1 [FINTRAC’s Risk-Based Approach].
FINTRAC Report on Plans and Priorities for 2007-08 to 2009-10, p. 13; Testimony of Mark Potter, vol. 56,
October 2, 2007, p. 6986; FINTRAC’s Risk-Based Approach.
213 FINTRAC Report on Plans and Priorities for 2007-08 to 2009-10, p. 14.
214 FINTRAC 2008 Annual Report, p. 17.
215 FINTRAC 2007 Annual Report, p. 19.
�Chapter III: The Roles of Federal Departments and Agencies
In performing compliance work, FINTRAC considers a wide range of factors, such
as “…open source information, reporting volumes, observations gleaned from
outreach activities, voluntary information which FINTRAC has received on noncompliance, results from compliance questionnaires completed by reporting
entities, information received from regulators, quality and quantity assurance
reviews, and the results of compliance examinations.”216 FINTRAC assigns a
general risk level to reporting sectors based on these factors, although riskbased assessments of individual entities within the various reporting sectors
are also done.217
Compliance questionnaires, which FINTRAC considers an effective tool for
monitoring compliance, are widely used. As a result, FINTRAC can cover many
reporting entities at low cost.218 In 2007-08, more than 6,000 questionnaires
were sent to reporting entities.219
Bill C-25 introduced a requirement for reporting entities to establish and
implement a compliance program in addition to their reporting duties. The
program is “risk-based,” since it must include “…the development and application
of policies and procedures for the person or entity to assess, in the course of
their activities, the risk of a money laundering offence or a terrorist activity
216 FINTRAC’s Risk-Based Approach, pp. 1-2.
217 FINTRAC’s Risk-Based Approach, p. 2.
218 Questionnaires assess compliance by reporting entities by asking about several subjects, such as
the size and scope of the reporting entity’s operation, the entity’s business lines, the implementation
of a compliance regime, compliance policies and procedures, review of compliance policies and
procedures, and ongoing compliance training: see FINTRAC’s Risk-Based Approach, p. 2.
219 FINTRAC 2008 Annual Report, p. 17.
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financing offence.”220 This risk-based approach is not designed to replace an
approach based on simply complying with rules that require reporting (a “rulesbased” approach). FINTRAC provides guidance on its website about setting up
programs.221
FINTRAC documents describe the risk-based approach for reporting entities in
their compliance programs as consisting of the following elements:
• risk assessment of its business activities, using certain factors;
• risk-mitigation to implement controls to handle identified risks;
• keeping client identification and, if required for its sector, beneficial
ownership information up to date; and
• ongoing monitoring of financial transactions that pose higher
risks.222
One submission on behalf of the Indian Nationals proposed greater reliance on
a risk-based approach.223
FINTRAC also consults with other agencies that have responsibility for regulating
entities covered under the PCMLTFA.224 FINTRAC states that this facilitates its
compliance work and can help minimize duplication of effort and the burden
imposed upon reporting entities. As of March 2007, FINTRAC had MOUs with
the following agencies:
• Office of the Superintendent of Financial Institutions (OSFI);
• Investment Dealers Association of Canada (IDA);
• Alberta Gaming and Liquor Commission (AGLC);
• Financial Institutions Commission of British Columbia (FICOM);
• Gaming Policy and Enforcement Branch (BC)(GPEB);
• Credit Union Deposit Guarantee Corporation of Manitoba (CUDGC);
• Brunswick Credit Union Federation Stabilization Board Limited
(“Risk Management Agency” (RMA));
• New Brunswick Department of Justice and Consumer Affairs,
Insurance Branch;
220 PCMLTFA, ss. 9.6(1), 9.6(2).
221 Financial Transactions and Reports Analysis Centre of Canada, “Guideline 4: Implementation of a
Compliance Regime” (December 2008), online: Financial Transactions and Reports Analysis Centre
of Canada <http://www.fintrac.gc.ca/publications/guide/Guide4/4-eng.asp> (accessed July 18, 2008).
222 Financial Transactions and Reports Analysis Centre of Canada, “Guideline 4: Implementation of a
Compliance Regime” (December 2008), Chapter 6: “Risk-Based Approach,” online: Financial Transactions
and Reports Analysis Centre of Canada <http://www.fintrac.gc.ca/publications/guide/Guide4/4-eng.
asp#66> (accessed August 6, 2008).
223 Submissions of the Family Members of the Crew Victims of Air India Flight 182 and Indian Nationals, Air
India Cabin Crew Association, Sanjay Lazar and Aleen Quraishi, p. 45.
224 FINTRAC’s Risk-Based Approach, p. 2; PCMLTFA, s. 65(2).
�Chapter III: The Roles of Federal Departments and Agencies
• Office de stabilisation de la Fédération des caisses populaires
acadiennes;
• Credit Union Deposit Guarantee Corporation of Newfoundland and
Labrador (CUDGC);
• Nova Scotia Environment and Labour, Alcohol and Gaming Division;
• Nova Scotia Credit Union Deposit Insurance Corporation (NSCUDIC);
• Alcohol and Gaming Commission of Ontario (AGCO);
• Deposit Insurance Corporation of Ontario (DICO);
• Autorité des marchés financiers (Québec) (AMF);
• Credit Union Deposit Guarantee Corporation (Saskatchewan); and
• Saskatchewan Liquor and Gaming Authority (SLGA).225
These MOUs allow FINTRAC to “…regularly exchange statistics, risk assessment
information, examination results, and examination plans” with these agencies.226
The arrangements do not constitute a delegation of authority to ensure
compliance, since FINTRAC still conducts examinations in reporting sectors that
are covered by MOUs.227 FINTRAC has described the work of its MOU partners as
providing “significant supervisory coverage”:
The work done by regulators to assess risk, examine entities,
identify deficiencies, require corrective action and possibly
sanction entities under their own powers serves to provide
significant supervisory coverage of financial intermediaries
with [Anti-money Laundering/TF] requirements.228
Besides concern about the adequacy of reports from reporting entities – in 200607, FINTRAC identified over 1300 cases where transaction reports were sent
back to the originator, for what were considered mostly substantive issues229
– there is concern that not all reporting entities are reporting to FINTRAC.
FINTRAC uses various strategies to identify non-reporting. These include media
scans of entities that provide financial services, complaints from other reporting
entities, identification by compliance officers or law enforcement agencies
and information provided voluntarily by the public.230 FINTRAC also does a
comparative analysis of reporting volumes among activity sectors.231 As well,
when it knows the identities of entities that fail to report, it contacts them in
order to “bring them into the fold,” and it undertakes on-site examinations in
appropriate cases.232
225
226
227
228
229
FINTRAC 2007 Annual Report, p. 22.
FINTRAC’s Risk-Based Approach, p. 3.
FINTRAC’s Risk-Based Approach, p. 3.
FINTRAC’s Risk-Based Approach, p. 3.
FINTRAC 2007 Annual Report, p. 18; First FINTRAC Response to Supplementary Questions of the
Commission, Question 2(j).
230 Exhibit P-233, Tab 8: FINTRAC Determining and Dealing with “Non-Reporting,” p. 1 [FINTRAC
Determining and Dealing with “Non-Reporting”].
231 FINTRAC Determining and Dealing with “Non-Reporting,” p. 1.
232 FINTRAC Determining and Dealing with “Non-Reporting,” p. 1.
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Amendments introduced by Bill C-25233 gave FINTRAC the authority to impose
monetary penalties on entities that fail to comply with reporting requirements.234
Under the PCMLTFA, FINTRAC also has the authority to disclose non-compliance
to the police.235 Fewer than 20 cases of non-compliance had been reported (as
of the time of FINTRAC’s 2008 Annual Report) to law enforcement agencies
since the beginning of the compliance program in 2004.236 FINTRAC indicated
that it disclosed non-compliance to law enforcement agencies when it saw little
likelihood of compliance by an entity.237
Monetary penalties add flexibility to FINTRAC’s compliance work. However, the
Office of the Privacy Commissioner of Canada argued that if reporting entities
become fearful of the penalties and the attendant negative publicity, they could
try to minimize the risk and over-report to ensure compliance as a result.238
This would expand FINTRAC’s databases to the point of allowing it to compile
information on an even greater number of perfectly lawful transactions.
Other factors might lead to under-reporting of suspect transactions. For
example, the lack of feedback by FINTRAC to reporting entities might lead the
entities to conclude that the STRs they provide have little value in countering TF;
as a result, the entities may become less vigilant and less likely to submit STRs,
although they would still presumably report transactions that exceed a given
monetary threshold.
3.2.7.2 Outreach and Guidance Tools
FINTRAC offers information sessions for reporting entities about changes in
legislation,239 as well as to help them comply with their reporting obligations.
Private sector reporting entities are reminded regularly how important it is to
provide reliable information to FINTRAC.240
233 Bill C-25, s. 40, introducing ss. 73.1-73.5 to the PCMLTFA; 2008 FATF Mutual Evaluation of Canada, p. 311.
234 The IMF and World Bank Overview of FIUs mentions that: “To obtain compliance with the AML/CFT
reporting obligations, there needs to be in place a set of measures intended to foster improvements in
the flow and quality of reports without resort to sanctions, such as awareness raising and training,”
but that “…[a]fter an outreach program has been in place for a certain length of time, the FIU needs
to consider the case of entities that fall below the level of reporting of the sector as a whole [...] [a]n
array of administrative sanctions may be set out in the legislation to deal with non-compliant entities,
and the application of the sanction varies according to the gravity of the offense”: pp. 53-54.
235 PCMLTFA, ss. 65(1), 65(2).
236 FINTRAC 2008 Annual Report, p. 17.
237 First FINTRAC Response to Supplementary Questions of the Commission, Question 2(l)(i).
238 Exhibit P-278, Tab 5: Office of the Privacy Commissioner of Canada, Submission in Response to the
Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, “Canada’s Financial
Monitoring Regime,” September 2007, p. 4.
239 Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6985.
240 See, for example, Financial Transactions and Reports Analysis Centre of Canada, “Feedback on
Suspicious Transaction Reporting: Banking Sector,” para. 1.2, online: Financial Transactions and Reports
Analysis Centre of Canada <http://www.fintrac.gc.ca/publications/FOR/2007-04-04/bsf-eng.asp#112>
(accessed October 3, 2008).
�Chapter III: The Roles of Federal Departments and Agencies
In 2007-08, FINTRAC employees delivered 370 presentations and seminars
to reporting entities, reaching over 18,000 individuals. Among these were 24
information sessions in 10 cities about the new requirements of the PCMLTFA
brought about by Bill C-25.241 FINTRAC’s 2008 Annual Report acknowledged
that financial institutions and intermediaries subject to the PCMLTFA were
“undoubtedly” in a “challenging period” as they prepared for changes to their
legal obligations under the PCMLTFA.242
In addition, FINTRAC operates a call centre to answer general inquiries about
FINTRAC’s operations, as well as more specific questions about reporting
requirements.243 In 2006-07, information officers answered 3,206 inquiries and
the FINTRAC website received more than 600,000 “hits.”244 The website contains
guidance on several topics for reporting entities and the public. In addition,
FINTRAC employees publish articles in trade journals and newsletters.245
FINTRAC also has on its website a section for “Feedback on reporting,” where
several topics are explored, such as suspicious transactions in the banking
sector.246 The section offers several examples of typologies.
3.2.7.3 Views of Private Sector Reporting Entities about the Anti-TF Program
This Commission used various tools to learn the views of parties involved in the
current anti-TF program. These included a survey of a group of private sector
reporting entities conducted by the Deloitte consultancy. Deloitte asked a
selection of reporting entities from across Canada for their observations about
the anti-TF program. The survey was designed to provide a snapshot of views by
sector. Two aspects of the Deloitte report warrant particular mention:
• The report was not intended to serve as hard evidence of the
deficiencies of the anti-TF program. It was to be seen as an advisory
report on various themes to inform the Commission, and as an
opportunity for the Commission to receive other views; and
• The financial services sector received particular attention, since
banks provide most of the financial transaction reports submitted
to FINTRAC.
The Deloitte report raised several issues facing the private sector reporting
entities. The issues are summarized below.
241
242
243
244
FINTRAC 2008 Annual Report, p. 16.
FINTRAC 2008 Annual Report, p. 4.
Department of Finance Memorandum of Evidence on Terrorist Financing, para. 4.33.
FINTRAC 2007 Annual Report, p 28. The FINTRAC 2008 Annual Report provided no statistics on this
point.
245 Exhibit P-233, Tab 23: FINTRAC, “Overview of Canada’s Financial Intelligence Unit – FINTRAC,” CFE
Ottawa Chapter Professional Development Day, October 18, 2006, p. 11.
246 Online: Financial Transactions and Reports Analysis Centre of Canada <http://www.fintrac.gc.ca/
publications/general-general-eng.asp#1> (accessed October 3, 2008).
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A. Lack of Understanding of the Distinction between Money Laundering and TF247
The report concluded that private sector reporting entities lack an understanding
of how terrorist organizations fund their operations. The report noted that
very few practical examples of TF have been provided to reporting entities,248
although FINTRAC and other bodies have identified the indicators that should
lead a reporting entity to prepare an STR in TF matters.
B. Lack of Prominence of the TF Issue
Representatives from some reporting entities who were interviewed by Deloitte
suggested that TF and terrorism in general do not appear to be a concern in
Canada. One representative offered an explanation:
I mean quite frankly the threat of terrorism, although we hear about it and we talk
about it to some degree as a Canadian entity, it’s not that high a profile. I think
because nothing’s happened in the country yet, that’s my personal belief.249
C. Lack of Feedback from FINTRAC to Reporting Entities250
According to Deloitte, reporting entities viewed their information as being sent
on a one-way trip to FINTRAC. At present, said one interviewee, “…it’s difficult
to keep staff motivated and interested in screening for [terrorism property
matches] without them feeling that they’re contributing to something.”251 The
report continued:
Those interviewed would like to see more feedback from
FINTRAC in terms of whether or not their reporting is assisting,
is useful and is of a benefit based on the time, effort, energy
and cost that each institution expends to comply with the
legislation.252
The lack of feedback also meant that reporting entities did not know whether
they should continue to do business with some of their clients whose activities
they had reported. One representative stated:
One of the things we asked ourselves was, okay, well if we’ve
identified suspicious activity and we report it and then it
happens again and we report it again… at what point…do
247 Exhibit P-241, Tab 2: Deloitte, Report of Findings as a Result of the Interviews of Regulated Entities on
the Topic of Terrorist Financing In, Through and Out of Canada, September 28, 2007, para. 5.1.1
[Deloitte Report on TF].
248 Deloitte Report, para. 5.1.4.
249 Deloitte Report, para. 5.1.12.
250 Deloitte Report, para. 5.1.3.
251 Deloitte Report, para. 5.1.9.
252 Deloitte Report, para. 5.1.3.
�Chapter III: The Roles of Federal Departments and Agencies
we look at this and say we really shouldn’t be or we need to
be looking at whether we want to be doing business with this
particular firm or client or entity.253
The Deloitte report included suggestions for improving feedback from FINTRAC.
Some reporting entities expressed interest in more regular contact with the
agencies responsible for national security matters – the RCMP and CSIS.254
FINTRAC does face some constraints in providing feedback. FINTRAC cannot
provide feedback on the results its use of the information that reporting entities
provide. Another reason invoked for restricting feedback is the possibility
of alerting the individuals or groups being investigated.255 As well, FINTRAC
receives so many reports that it would be impossible to follow up with reporting
entities on each report, even if it wanted to.
FINTRAC believed that its current approach of providing guidance, but not
feedback, was appropriate. Mark Potter of FINTRAC testified that FINTRAC
spends considerable time providing “feedback” (more like guidance) to the
private sector:
[W]e spend a lot of time providing feedback to the reporting
entities, their associations and individual members on the
quality of reports we’re seeing, how they can improve, ways we
can work better with them in implementing system changes,
ensuring that they have sufficient lead time to change their IT
systems if necessary, getting their views on what are the best
means to provide the reports to us….256
Potter could not say whether it would be more effective if FINTRAC had the
discretion to advise reporting entities on how their information was applied:
I’m not sure. I think I’d step back and ask: What is the objective
here? And if the objective is to get consistent, high quality
reporting from these entities there are other ways we can
achieve that objective, giving them some sort of feedback on
their individual forms that they provide and the reports they
provide to us and providing general feedback on the results of
the initiative broadly.257
253
254
255
256
257
Deloitte Report, para. 5.1.3.
Deloitte Report, para. 5.1.5.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6987.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6986.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6988.
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D. Costs of Complying with the PCMLTFA
Private sector reporting entities bear the cost of reporting to FINTRAC. The
federal government considers this appropriate.258 It also appears to be in line
with the current FATF policy.
Some reporting entities examined in the Deloitte report argued that complying
with the PCMLTFA was costly.259 One called for federal government financial
assistance to help all entities acquire appropriate technologies,260 especially
since this would help them comply more effectively with the PCMLTFA and
because they are doing this for the government’s benefit.
Some reporting entities also wanted a “level playing field” for reporting entities
and “broadly similar compliance obligations” as banks in other countries.261 They
wanted all private sector entities to be required to submit reports to FINTRAC.
They complained that the obligations imposed on them were sometimes not
applied to other types of reporting entities.262 They spoke of gaps in coverage by
the PCMLTFA: “white label” ATMs (ATMs that are not affiliated with a bank), money
services businesses (MSBs), provincial mortgage brokers, pre-paid credit cards,
stored value cards, Internet clearing houses such as PayPal, Internet gaming,
precious metals, the legal profession and various religious communities.263
Several of the problems with gaps in coverage were corrected by Bill C-25 or are
currently being reviewed. For example, MSBs and precious metals dealers are
now covered by the PCMLTFA. The federal government is weighing options for
white label ATMs and stored value and pre-paid cards.
E. Ineffectiveness of the Listing System
Some reporting entities complained that the lists of individuals identified
as being associated with terrorism contained little biographical data beyond
individuals’ names. The entities claimed that this produced many false matches
when an individual’s name was similar to that of someone on the list, and that
this in turn created much additional work for the entities, with no corresponding
benefit.264 Some entities also believed that having to report on “politicallyexposed persons” (PEPs) would increase their workload. The FATF defines PEPs as
“…individuals who are or have been entrusted with prominent public functions
such as Heads of State, senior politicians, senior government, judicial or military
258
259
260
261
262
263
264
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6985.
Deloitte Report, para. 5.1.8.
Deloitte Report, para. 5.1.16.
Deloitte Report, para. 5.1.10; Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6985.
Deloitte Report, para. 5.1.11.
Deloitte Report, para. 5.1.11.
Deloitte Report, para. 5.1.9.
�Chapter III: The Roles of Federal Departments and Agencies
officials, senior executives of state-owned corporations and important political
party officials.”265
Many reporting entities criticized the listing process. However, many names
that appear on the lists used in Canada are not entirely its responsibility. For
example, the United Nations Al-Qaida and Taliban Regulations266 (UNAQTR)
listings are made by the United Nations Security Council and then adopted by
Canada through regulation.
One interviewee noted that, since the lists were public, there was little chance
that a listed individual would open a bank account using a name as it appeared
on a list.267 For that reason, the lists were of little value. Their only benefit could be
rapid checks by reporting entities immediately after the listing of an individual,
but before the individual learned of the addition of their name to the list.
However, despite its limitations, Canada is bound by international instruments
to participate in the listing process.268
This concern about the utility of the listing process in dealing with suspect
individuals did not apply to the Criminal Code269 list, which identifies terrorist
groups, not individuals.
F. Other Issues
One reporting entity called for financial entities to increase the exchange
of information about money laundering and TF.270 Some entities, aware that
charitable organizations can be used to finance terrorist activity, believed that
such organizations should be more actively monitored.271
265 Department of Finance, Enhancing Canada’s Anti-Money Laundering and Anti-Terrorist Financing
Regime, Consultation Paper, June 2005, p. 12, online: Department of Finance <http://www.fin.gc.ca/
activty/pubs/enhancing_e.pdf> (accessed October 2, 2008). The Consultation Paper continues:
“While the FATF Recommendation focuses on foreign PEPs, countries are increasingly expanding the
coverage of their regimes to both foreign and domestic PEPs, in line with the requirements of the
United Nations Convention against Corruption and other international agreements. There is
international concern, particularly for some foreign jurisdictions, that PEPs constitute higher risk
customers for financial institutions and intermediaries as they have potentially greater opportunities
to engage in corrupt activities, and Canada will do its part in the global fight against corruption. To
prevent the laundering of the proceeds of corruption, financial institutions and intermediaries should
take additional steps to identify customers that are PEPs and apply enhanced due diligence measures.”
266 S.O.R./99-444.
267 Deloitte Report, para. 5.1.9.
268 For other criticisms of the listing regime (from an international standpoint), see Koh, Suppressing
Terrorist Financing and Money Laundering, pp. 103-106.
269 R.S.C. 1985, c. C-46.
270 Deloitte Report, para. 5.1.16.
271 Deloitte Report, para. 5.1.13.
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3.3 Royal Canadian Mounted Police
3.3.1 Roles, Goals and Structure
As an agency in the portfolio of the Minister of Public Safety, the RCMP acts
as Canada’s national police force and as a contract provincial or local police
force in several Canadian provinces, territories, municipalities and aboriginal
communities.272 The RCMP is considered to be the “default” law enforcement
agency in TF matters.
A recent RCMP publication estimates that “…[a]s many as 50 terrorist
organizations are present in some capacity in Canada, involved in a range of
activities that include fundraising (with money sent abroad to finance terrorist
efforts), weapons procurement, and human and commodity trafficking.”273
The RCMP considers terrorism to be a priority. The RCMP’s terrorism strategy
is summarized in the following chart274 from its 2008-09 Report on Plans and
Priorities:
272 According to the RCMP’s website, the RCMP provides a total federal policing service to all Canadians
and policing services under contract to the three territories, eight provinces (except Ontario and
Quebec), more than 190 municipalities, 184 aboriginal communities and three international airports:
online: <http://www.rcmp-grc.gc.ca/about-ausujet/index-eng.htm> (accessed December 3, 2007).
273 Royal Canadian Mounted Police, Royal Canadian Mounted Police Report on Plans and Priorities 20082009, p. 47, online: Treasury Board Secretariat of Canada <http://www.tbs-sct.gc.ca/rpp/2008-2009/
inst/rcm/rcm-eng.pdf> (accessed June 3, 2009) [RCMP 2008-09 Report on Plans and Priorities].
274 RCMP 2008-09 Report on Plans and Priorities, p. 48. A chart dealing with the Economic Integrity
Strategy is found at p. 57.
�Chapter III: The Roles of Federal Departments and Agencies
The RCMP participates in the federal government’s AML/ATF Initiative. The 2008
FATF Mutual Evaluation of Canada describes the RCMP’s involvement in national
security and TF matters:
469. The RCMP has an integrated model for responding to
National Security Investigations (NSI), which forms part of
the overall Public Safety Anti-Terrorism (PSAT) initiative. The
NSI centrally coordinates and directs all national security
investigations, intelligence and policy. At the operational level
in each province of Canada, NSI serves as the policy centre for
the Integrated National Security Enforcement Teams (INSETs)
and the National Security Investigation Sections (NSIS).
470. The NSI includes a unit in Ottawa called the Anti-Terrorist
Financing Team which consists of the RCMP and CRA. The
team is responsible for (1) monitoring and coordinating
major ongoing investigational projects related to terrorist
organizations focusing primarily on their financial and
procurement infrastructures and (2) liaising on a routine basis
with partner agencies such as FINTRAC, CSIS and CRA Charities
Directorate. The unit has also hosted terrorist financing courses
in 2005 and 2006.
471. National Security Operations Branch (NSOB) supports and
coordinates all national security field operations by reviewing,
analyzing and disseminating information from all sources,
including international partners, the CSIS, third parties and
RCMP field investigations. NSOB also prepares subject profiles,
case briefs and briefing notes for senior management, ensures
compliance with RCMP policy, and tasks RCMP liaison officers
in support of RCMP National Security investigations.
472. The Anti-Terrorist Financing Team (ATFT) supports
counter-terrorism strategies with respect to financial
intelligence investigations, enforcement, and the listing
process in respect to Terrorist Entities.275
The RCMP created an Anti-Terrorist Financing Task Force in October 2001, making
the Task Force permanent under its Financial Intelligence Branch in April 2002:
This intelligence/investigative body was established to support
national security efforts to identify financial intelligence and
enforcement opportunities related to terrorist financing, as
well as to provide direction and support to field units. An
Internet investigation team was established as part of the
branch to investigate terrorist fundraising on the Internet.276
275 2008 FATF Mutual Evaluation of Canada, paras. 469-472.
276 Department of Finance Memorandum of Evidence on Terrorist Financing, p. 36.
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Since October 2006, RCMP responsibilities in TF matters have fallen under
the National Security Investigations Branch (NSI). The NSI is supervised by
its own Assistant Commissioner, who reports to the Deputy Commissioner,
Operations.277 One component of the NSI, the Anti-Terrorist Financing Team
(ATFT), is dedicated to TF matters. The tasks of the ATFT are as follows:
• Monitor and coordinate major national security ongoing
investigations (and projects) in terrorist matters, more specifically
on the financing and procurement sides;278
• make recommendations based on the analysis of financial
information received from various sources in matters related to TF
offences;
• liaise with other anti-TF partners in Canada;279
• support the listing process.280
The ATFT consists of the RCMP and the CRA.281 The RCMP also sends liaison
officers to some countries to assist in the fight against money laundering and
TF, and to perform other roles.282
3.3.2 Activities Aimed at Fighting TF
For about 18 months after TF offences appeared in the Criminal Code in late 2001,
RCMP activity on terrorism matters as a whole remained focused on preventing
attacks283 rather than on “following the money.” RCMP Superintendent Reynolds
testified that this was because it takes time after legislation is adopted to put
resources in place and to do investigations and gather evidence.284
Superintendent Reynolds also testified that the RCMP saw TF investigations as
“highly complex” and lengthy. Simply gathering the evidence in a single case
could take three years.285 He stated that every significant national security
investigation includes a TF component.286 TF investigations address matters
such as raising and moving funds and the procurement of materials.287 As of
March 31, 2006, there were 90 active intelligence investigations and four major
project investigations with respect to TF.288
277 Exhibit P-230, Tab 2: RCMP Organizational Chart.
278 2008 FATF Mutual Evaluation of Canada, para. 470. The FATF Mutual Evaluation contains a description
of the structure of the RCMP and other law enforcement agencies in regard to TF matters: see paras.
460-480
279 2008 FATF Mutual Evaluation of Canada, para. 470.
280 2008 FATF Mutual Evaluation of Canada, para. 472.
281 2008 FATF Mutual Evaluation of Canada, para. 470.
282 2008 FATF Mutual Evaluation of Canada, paras. 179, 1554.
283 This is also described as “chasing the bomber.”
284 Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6819.
285 Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6819-6820.
286 Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6823.
287 Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6820-6821.
288 Royal Canadian Mounted Police Departmental Performance Report for the period ending March 31,
2006, p. 62, online: Treasury Board of Canada Secretariat <http://www.tbs-sct.gc.ca/dpr-rmr/20052006/rcmp-grc/rcmp-grc-eng.pdf> (accessed May 13, 2009).
�Chapter III: The Roles of Federal Departments and Agencies
When the RCMP receives information or intelligence relating to TF, it
first determines whether a criminal investigation is warranted.289 In all TF
investigations, RCMP Headquarters provides direction, international liaison,
and central coordination with other agencies such as CRA and FINTRAC.290
Investigative teams gather the necessary intelligence.291 The RCMP also relies to
a great extent on Integrated National Security Enforcement Teams (INSETs) to
investigate TF cases. The work of the INSETs is described later in this chapter.
Reynolds testified that the priority of the RCMP in TF investigations is always to
prevent the loss of life, and that prevention and disruption of terrorist activities
as a whole are by-products of TF investigations.292 He testified that, although
disruption can prevent individual terrorist incidents, it does not stop the desire
to raise funds.293 Reynolds explained that another key goal of investigations is
to understand the reach and capacity of organizations and identify the persons
involved with the activities.294
Significant resources are devoted to the investigation of potential TF offences.295
Reynolds identified two main areas of concern: (i) micro-financing in respect of
operations in support of individual terrorist actions and (ii) macro-financing to
support certain organizations. He testified that investigations cannot be focused
solely on the “bomber” (the terrorist act). They must focus as well on the larger
organization behind the terrorist act.296 He stated that the RCMP does not have
the capacity to investigate all potential TF matters.297
The RCMP also provides information to the CRA to help the Charities Directorate
review applications for charitable status and assess whether existing charities
comply with the Income Tax Act.298
The RCMP is the main recipient of FINTRAC’s disclosures of designated
information.299 The PCMLTFA does not specifically require FINTRAC to disclose
information to the RCMP, requiring disclosure only to “the appropriate police
force.”300 However, the Criminal Code specifically identifies the RCMP when
setting out the obligations of reporting entities. These entities must disclose
to the RCMP Commissioner the existence of property in their possession that is
connected to a terrorist group.301
289
290
291
292
293
294
295
296
297
298
Department of Finance Memorandum of Evidence on Terrorist Financing, p. 36.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6825-6826.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6890.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6823.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6824.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6823.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6880.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6827-6828.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6839.
Department of Finance Memorandum of Evidence on Terrorist Financing, p. 36; FINTRAC 2008 Annual
Report, p. 11.
299 According to the Department of Finance, “The RCMP, through its money laundering and terrorist
financing units, is the major recipient of disclosures from FINTRAC”: Department of Finance
Memorandum of Evidence on Terrorist Financing, p. 36.
300 PCMLTFA, s. 55(3)(a).
301 Criminal Code, s. 83.1(1).
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As well, in both money laundering and TF matters, the RCMP receives information
from the CBSA, private sector reporting entities, other RCMP units, CSIS,302
foreign partners and the public.303
The RCMP is involved in training and raising awareness among AML/ATF
Initiative partners and the private sector, as well as police forces abroad. The
Department of Finance Memorandum on Terrorist Financing noted that “…the
RCMP has provided direct technical assistance and training to police forces in
developing countries to help them conduct anti-money laundering and antiterrorist financing investigations and enhance their investigative techniques.”304
The ATFT also offers a course on TF,305 including Internet TF.
The RCMP participates in several domestic and international groups dealing
with TF matters, such as the Financial Action Task Force, the G8 Law Enforcement
Projects Subgroup (Roma/Lyon Group), the International Working Group on
Terrorist Financing, the Terrorist Financing Working Group of the Canadian
Bankers Association, the Five Eyes Terrorist Financing Working Group, and the
Bi-lateral (US-Canada) Anti-Terrorist Financing Working Group.306
3.3.3 Resources
Superintendent Reynolds testified that in 2001 the RCMP had projected a need
for about 126 individuals to cover both intelligence and investigations.307 That
year, the RCMP acquired 17 positions for TF matters, of which three were assigned
to three separate INSETs and 14 were assigned to RCMP Headquarters in Ottawa.
Existing personnel in some INSETs were taken off other duties and assigned to
TF matters. In 2006, the RCMP received additional funding. As a result, 33 new
positions were created, for a total of 50 positions on TF matters.308
According to Reynolds, the resources challenge extended beyond proper
funding. It took time to develop employees with the required skills for TF
investigations. There were also problems with retaining employees because of
competition for the same candidates within the private and public sectors. As
well, not everyone in law enforcement was attracted to financial investigations.309
Reynolds testified that “court time” also took time away from investigations:
So, there has been an increase in the amount of court time,
which isn’t criticism by any standpoint but bearing in mind,
as we spend more time authoring court processes, defending
court processes or providing disclosure and responsibility to it,
302
303
304
305
306
307
308
309
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, s. 19(2)(a) [CSIS Act].
Department of Finance Memorandum of Evidence on Terrorist Financing, p. 36.
Department of Finance Memorandum of Evidence on Terrorist Financing, p. 37.
2008 FATF Mutual Evaluation of Canada, para. 470.
Exhibit P-383, Tab 7: Description of RCMP’s Anti-Terrorist Financing Team.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6838.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6824-6825.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6838-6841, 6892-6893.
�Chapter III: The Roles of Federal Departments and Agencies
that of course reduces the amount of time that could be spent
on investigations.310
The FATF addressed RCMP resources in its 2008 Mutual Evaluation of Canada:
[T]he RCMP lacks the resources that would allow it to focus
on a larger spectrum of ML/TF investigations. The RCMP
acknowledges that, due to resources constraints, it essentially
dedicates its resources to large and complex ML investigations
related to organised crime groups.311
The dissenting opinion of two MPs, Joe Comartin and Serge Ménard, who sat
on the House of Commons subcommittee that reviewed the Anti-terrorism
Act in 2007, described the importance of “operations” – intelligence and law
enforcement efforts:
Terrorism cannot be fought with legislation; it must be fought
through the efforts of intelligence services combined with
appropriate police action. ...Therefore, one cannot expect that
new legislation will provide the tools needed to effectively
fight terrorism. Legislation can, however, be amended if police
do not seem to have the legal means needed to deal with the
new threat of terrorism.312
Bromley emphasized in a paper for the Commission the need for law enforcement
and other authorities to ask intuitive questions instead of relying on the analysis
of complicated data.313 Quiggin testified in support of being “on the ground”
and on the front lines through community engagement.314
310 Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6842-6843.
311 2008 FATF Mutual Evaluation of Canada, para. 517. See also 2008 FATF Mutual Evaluation of Canada,
para. 468.
312 House of Commons Canada, Final Report of the Standing Committee on Public Safety and National
Security, Subcommittee on the Review of the Anti-terrorism Act, Rights, Limits, Security: A
Comprehensive Review of the Anti-terrorism Act and Related Issues, March 2007, p. 116, online:
Parliament of Canada <http://www2.parl.gc.ca/content/hoc/Committee/391/SECU/
Reports/RP2798914/sterrp07/sterrp07-e.pdf> (accessed May 25, 2009).
313 Blake Bromley, “Funding Terrorism and Charities,” October 26, 2007, online: Benefic Group <http://www.
beneficgroup.com/files/getPDF.php?id=120> (accessed May 12, 2009), p. 9.
314 Testimony of Thomas Quiggin, vol. 91, December 7, 2007, p. 12078. Quiggin stated that, “... in order
to be effective in counterterrorism intelligence, you have to be literally on the ground with the
people involved right out at the front lines; that means community engagement….If you have
good community engagement programs, if you’re out working with people on the street day by day by
day, you will be able to identify who the perpetrators are, who the radicals are.”
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3.4 Canadian Security Intelligence Service (CSIS)
3.4.1 Role, Goals and Structure
CSIS is a civilian intelligence agency, established in 1984 and governed by the
Canadian Security Intelligence Service Act (CSIS Act).315
CSIS investigates threats to the security of Canada, analyzes information and
reports to and advises the Government of Canada about those threats. The CSIS
website identifies the key threats that it investigates: terrorism, the proliferation
of weapons of mass destruction, espionage, foreign interference and cybertampering affecting critical infrastructure.316 Terrorism is its main priority.317
Neither the definition of “threats to the security of Canada” in the CSIS Act nor
the description of the key threats investigated by CSIS specifically mention TF,
but TF clearly forms part of the work of CSIS.318 As noted earlier in this chapter,
FINTRAC has concluded that the definition of “terrorist activity financing offence”
in the PCMLTFA comes within the definition of “threats to the security of Canada”
in the CSIS Act.319
The ATA required FINTRAC to make disclosures to CSIS about threats to the
security of Canada, whereas, before 2001, FINTRAC was focused solely on money
laundering.320
The increase in concern about TF led CSIS to create a Terrorist Financing Unit
(TFU) within its Counter Terrorism Branch in 2002, although CSIS had done
some work on TF issues before then.321 The mandate of the TFU is to identify
and track financial structures which support terrorist organizations and to be
a source of reliable intelligence for the Government of Canada.322 A Security
315 Canadian Security Intelligence Service, “History of CSIS,” online: Canadian Security Intelligence Service
<http://www.csis-scrs.gc.ca/hstrrtfcts/index-eng.asp> (accessed September 15, 2009).
316 Online: <http://www.csis-scrs.gc.ca/bts/rlfcss-eng.asp> (accessed July 28, 2008). For more information
on the various roles and responsibilities of CSIS, see the several backgrounder documents available
online: <http://www.csis-scrs.gc.ca/nwsrm/bckgrndrs/index-eng.asp> (accessed August 8, 2008).
317 Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6912; Canadian Security Intelligence Service,
“Backgrounder No. 8 – Counter-Terrorism,” online: Canadian Security Intelligence Service <http://
www.csis-scrs.gc.ca/nwsrm/bckgrndrs/bckgrndr08-eng.asp> (accessed August 6, 2008) [CSIS
Backgrounder on Counter-Terrorism], which states that: “Ensuring the safety and security of Canadians
is one of the Government of Canada’s most important responsibilities. With this in mind, the
government has identified counter-terrorism as the Canadian Security Intelligence Service (CSIS)
number one priority.”
318 Canadian Security Intelligence Service, Public Report 2005-2006, p. 5, online: Canadian Security
Intelligence Service <http://www.csis-scrs.gc.ca/pblctns/nnlrprt/2005/rprt2005-eng.pdf> (accessed
July 28, 2008).
319 Second FINTRAC Response to Supplementary Questions of the Commission, Question 1(d).
320 PCMLTFA, s. 55.1. Jim Galt of CSIS testified that “Money laundering is not part of CSIS mandate. It’s a
criminal matter. If it came to our attention we’d immediately draw it to the attention of the RCMP but
it’s not something that we look at. It’s not our -- as I say, it’s not our mandate.”: Testimony of Jim
Galt, vol. 55, October 1, 2007, p. 6921.
321 Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6939.
322 Exhibit P-232, Tab 2: Security Intelligence Review Committee, Review of the CSIS Investigation of
Terrorist Financing Activities in Canada (SIRC Study 2004-10), August 5, 2005, p. 5 [SIRC Study 2004-10].
�Chapter III: The Roles of Federal Departments and Agencies
Intelligence Review Committee (SIRC) study of a CSIS investigation of TF noted
that, in 2002-03, a ministerial directive for the first time specifically directed CSIS
to investigate and advise the Government of Canada about the threat arising
from TF.323 The same SIRC study noted that the growing international focus on
TF created the need for CSIS to focus more specifically on TF and to develop a
level of expertise and continuity in this area.324
In May 2006, in a reorganization of CSIS operational branches, the TFU was
moved from the Counter Terrorism Branch to the Human Sources/Operational
Support Branch and renamed the Financial Analysis Unit (FAU).
The SIRC study described the CSIS approach to TF issues:
In February 2003, CSIS HQ issued a directional statement to
explain the nature and objectives of the investigation into
terrorist financing. According to this statement, its primary
purpose was to collect and assess information in order to
provide the Government of Canada with reliable intelligence
on the extent and nature of terrorist financial support efforts in
Canada, to provide assistance as required to law enforcement
organizations, to respond as required under the [Regulations
Implementing the United Nations Resolutions on the Suppression
of Terrorism] and the Anti-Terrorism Act, and to fulfill other
international commitments. The investigation was intended “to
deter and disrupt the flow of funds to terrorists, thus hindering
their ability to mount operations.”325
3.4.2 Activities Related to TF
Jim Galt, Director of the FAU at CSIS, testified that the FAU’s responsibility is
to support the operational branches of CSIS through financial analysis. The
FAU is the only unit of its kind at CSIS and it supports three major operational
branches.326 Its mandate is to provide support to investigations with respect to
financial aspects, and is not limited to TF.327 Besides using information in the
CSIS database and open source information,328 the FAU receives reports that are
sent to CSIS by private sector entities.329
Investigations are run by the operational unit that has conduct of and
responsibility for a particular file.330 The FAU’s main responsibility is to view an
operational file from a financial perspective to provide the operational branches
323
324
325
326
327
328
329
330
SIRC Study 2004-10, p. 6.
SIRC Study 2004-10, p. 9, referencing CSIS Counter Terrorism Program 2003-2004.
SIRC Study 2004-10, p. 13.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6907.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6906.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6933.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6927.
Testimony of Jim Galt, vol. 55, October 1, 2007, pp. 6906-6908.
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with additional investigative leads, identify new targets or direct operational
branches in other ways to further an investigation.331 In his evidence, Galt stated
that almost all CSIS operational files had a financial aspect.332 The FAU brings
together all the financial information received from FINTRAC or from regular CSIS
investigations. Financial analysts on staff provide analysis of the information to
the operational branches.333 The FAU’s work may involve providing an operational
branch with a quick analysis of a particular matter. In most cases, however, the
FAU’s work is part of an ongoing counterterrorism effort.334
CSIS sends VIRs, prepared by the FAU, to FINTRAC.335 Disclosure to FINTRAC was
one of the first steps by the FAU after it receives a file.336 CSIS relies on section 12
of the CSIS Act to share information within government.
During fiscal year 2006-07, CSIS sent 30 to 40 VIRs to FINTRAC. In these VIRs,
CSIS explains why a particular individual or group is considered a threat to the
security of Canada.337 This helps FINTRAC to prepare its own analysis and its
response to the VIR. FINTRAC must disclose “designated information”338 to CSIS
if FINTRAC has reasonable grounds to suspect that the information would be
relevant to threats to the security of Canada.339 CSIS is currently satisfied with the
extent and quality of the disclosures from FINTRAC and finds the information it
receives more detailed and useful than in the past.340
After obtaining approval from the Minister of Public Safety, CSIS can also apply
to a judge for a production order requiring FINTRAC to disclose information – for
example, information in addition to the designated information FINTRAC must
disclose – to facilitate an investigation “in respect of a threat to the security of
Canada.”341 CSIS does not maintain statistics on the usefulness of disclosures by
FINTRAC. Galt testified that, like the RCMP, the FAU would prefer that the arm’slength relationship with FINTRAC become closer.342
Galt testified that the FAU now receives “some of their [FINTRAC’s] analysis.” There
were some compatibility problems between CSIS and FINTRAC technology,
leading to a less efficient transfer of information to the CSIS system.343 At the time
of the Commission’s hearings, discussions were underway to resolve this.344
331
332
333
334
335
336
337
338
339
340
341
342
343
344
Testimony of Jim Galt, vol. 55, October 1, 2007, pp. 6908-6909.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6909.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6909.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6921.
PCMLTFA, s. 54(a); CSIS Act, ss. 12, 19; Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6917.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6941.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6917.
For the purposes of disclosures to CSIS, “designated information” is defined in s. 55.1(3) of the PCMLTFA.
CSIS Act, s. 55.1.
CSIS Response to Supplementary Questions of the Commission, Question 3.
PCMLTFA, s. 60.1.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6933.
Testimony of Jim Galt, vol. 55, October 1, 2007, pp. 6918-6919.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6919.
�Chapter III: The Roles of Federal Departments and Agencies
One of the main counterterrorism activities of CSIS is to provide information for
Canada’s listing process. In the process under the Regulations Implementing the
United Nations Resolutions on the Suppression of Terrorism,345 CSIS prepares an
assessment for DFAIT and sits on the interdepartmental committee on listings.346
A CSIS background document on counterterrorism states that, since the creation
of the list, CSIS has played a role in the listing of 40 entities, including Al Qaida,
the Liberation Tigers of Tamil Eelam (LTTE) and Hezbollah.347 The FAU itself is not
involved in this process.348
CSIS also has responsibility for making recommendations to the Minister of Public
Safety regarding the issuance of a certificate under the Charities Registration
(Security Information) Act (CRSIA) process – a process which can lead to denial of
eligibility for charitable status or revocation of existing charitable status.349
The SIRC study mentioned above noted that efforts to combat TF required
cooperation with domestic partners and that partners depended on CSIS for
their enforcement actions. The study further stated that CSIS worked most closely
with FINTRAC and the CRA’s Charities Directorate in this regard.350 CSIS “liaised
and cooperated closely with CRA in ongoing efforts to prevent the exploitation
of registered Canadian charities to finance terrorist activity.”351 In fact, CRA often
consults with CSIS before granting registered charity status, and Galt testified
that CSIS would become involved as well in the process of issuing certificates
under CRSIA.352 The SIRC study stated that it had reviewed all CSIS exchanges
of information with domestic partners and found that “with the exception of
a few omissions in the use of tracking codes, they complied with the CSIS Act,
Ministerial Direction, operational policy and relevant MOUs.”353
SIRC also noted that CSIS respected its legal obligations, policies and MOUs in its
dealings with foreign partners. SIRC observed that CSIS, during the period of its
investigation, cooperated with more than 35 foreign partners on TF issues and
that it gathered information on foreign legal frameworks that were aimed at
fighting TF. CSIS representatives also attended several international conferences
and presentations on TF.354
345
346
347
348
349
350
351
352
353
354
S.O.R./2001-360.
SIRC Study 2004-10, pp. 20-21.
CSIS Backgrounder on Counter-Terrorism.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6927.
A New Review Mechanism for the RCMP’s National Security Activities, p. 190. The RCMP also makes
recommendations to the Minister.
SIRC Study 2004-10, p. 15.
SIRC Study 2004-10, p. 17.
Testimony of Jim Galt, vol. 55, October 1, 2007, pp. 6929-6930, 6865.
SIRC Study 2004-10, p. 18.
SIRC Study 2004-10, p. 19.
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3.4.3 Resources
When Galt testified before the Commission, the FAU had four permanent and
three “borrowed” employees, occupied as follows:
• head;
• two contractual financial analysts (a chartered accountant and an
RCMP officer formerly with the Integrated Proceeds of Crime unit);
• one individual seconded from CRA; and
• three intelligence officers.355
A tactical analyst position was not filled, at least in part because of a shortage
of resources.356 CSIS as a whole had 2,449 full-time employees as of March 31,
2007.357 Galt testified that resources were a significant challenge358 and that he
would have liked to see the FAU’s resources doubled or tripled.359 The lack of
resources was limiting the service that the unit could provide:
[W]e are not able at this point to take on all operational files
within the Service, mainly because of resourcing issues. So we
have – we have gone through an exercise of creating a priority
list of operational files that we look at, and with more resources
obviously, I could expand that list. So resources are always an
issue.360
CSIS made a request for 13 additional positions in 2008 to deal specifically with TF
issues that had arisen since 2006. In addition, the February 2008 federal budget
provided $10 million between 2008-09 and 2009-10, to be shared by CSIS and
CRA for their anti-TF efforts. CSIS stated that it will consider itself adequately
financed on anti-TF matters if planned funding allocations are implemented.361
3.5 Canada Border Services Agency
3.5.1 Role, Goals and Structure
The Canada Border Services Agency (CBSA), in the portfolio of the Minister of
Public Safety, was created through a merger of departments. Since 2003, the
355 Testimony of Jim Galt, vol. 55, October 1, 2007, pp. 6909-6910.
356 Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6915.
357 Canadian Security Intelligence Service, Public Report 2006-2007, p. 6, online: Canadian Security
Intelligence Service <http://www.csis-scrs.gc.ca/pblctns/nnlrprt/2006/rprt2006-eng.pdf> (accessed
June 3, 2009).
358 Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6922.
359 Testimony of Jim Galt, vol. 55, October 1, 2007, pp. 6910-6911.
360 Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6910.
361 CSIS Response to Supplementary Questions of the Commission, Question 1(b); Department of Finance,
The Budget Plan 2008, Responsible Leadership, pp. 138, 140, online: Department of Finance <http://
www.budget.gc.ca/2008/pdf/plan-eng.pdf> (accessed September 18, 2009). The budget allocation was
intended to “bolster existing capacities”: p. 138.
�Chapter III: The Roles of Federal Departments and Agencies
CBSA has included the customs component of the former Canada Customs
Revenue Agency, the enforcement/intelligence component of Citizenship and
Immigration Canada and the enforcement component of the Canadian Food
Inspection Agency. The Canada Border Services Agency Act 362 (CBSA Act) sets out
the mandate of the CBSA, which includes the following:
…providing integrated border services that support national
security and public safety priorities and facilitate the free flow
of persons and goods, including animals and plants, that meet
all requirements under the program legislation, by
(a) supporting the administration or enforcement, or both, as
the case may be, of the program legislation…
… and
(e) providing cooperation and support, including advice
and information, to other departments and agencies of
the Government of Canada to assist them in developing,
evaluating and implementing policies and decisions in relation
to program legislation for which they have responsibility.363
The FATF Special Recommendations on Terrorist Financing call for countries to
have “…measures in place to detect the physical cross-border transportation
of currency and bearer negotiable instruments, including a declaration system
or other disclosure obligation.” Furthermore, “…[c]ountries should ensure that
their competent authorities have the legal authority to stop or restrain currency
or bearer negotiable instruments that are suspected to be related to terrorist
financing or money laundering, or that are falsely declared or disclosed.”364
Separate divisions of the CBSA deal with enforcement, intelligence and policy
development. The activities and responsibilities of these divisions in TF matters
are outlined below.
3.5.2 CBSA Activities
3.5.2.1 In General
CBSA’s responsibilities in relation to terrorism and TF are to gather and
disseminate intelligence in support of the administration and enforcement
362 S.C. 2005, c. 38.
363 Canadian Border Services Agency Act, S.C. 2005, c. 38, s. 5(1).
364 See Special Recommendation IX of the FATF’s “9 Special Recommendations (SR) on Terrorist Financing
(TF),” online: Financial Action Task Force <http://www.fatf-gafi.org/document/9/0,3343,en_32250379
_32236920_34032073_1_1_1_1,00.html#IXCashcourriers> (accessed February 11, 2009). The FATF
has also published interpretive notes and best practices to help countries put in place the necessary
regulations.
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of the applicable rules regarding cross-border movements of currency and
individuals.365 The CBSA is also in charge of the Immigration and Refugee
Protection Act process involving foreign nationals or permanent residents who
may have been involved in criminal activities such as TF, or who may pose a
threat to the security of Canada.366 In short, the CBSA has two main “business
lines” relating to terrorism and TF:
• detecting and monitoring the cross-border movement of currency
and monetary instruments; and
• preventing the entry into Canada of persons who are not
admissible because they may have been involved
in terrorism or TF.367
Border Services Officers (BSOs) are trained to identify suspicious individuals
as well as those who may be hiding contraband.368 The CBSA also uses “sniffer
dogs” that can detect money,369 as well as scanners and other sophisticated
equipment370 – technologies recently acquired in the fight against terrorism.371
The Borders Enforcement Division of the CBSA provides guidance to BSOs in
their anti-TF activities. Denis Vinette, Director of the CBSA Borders Enforcement
Division, testified about how CBSA attempts to identify illegal activity among
the large volume of individuals and vehicles entering Canada:
[We use] information we have in advance, either through our
intelligence program [or] through our partnerships with other
individuals, the training, the rigorous training our officers go
through to prepare them to try and find those anomalies,
either within individual behaviours, within documents, within
patterns or trends…to try and deal with [the] significant
challenge of finding that needle in the haystack.372
CBSA employees receive extensive training, including from the RCMP.373 Instead
of creating a single unit charged with pursuing money laundering and TF, the
CBSA has trained its 7,200 BSO officers across the country to deal with these
matters.374 As a result, Vinette testified, “…[w]e didn’t get 40 or 50 or 100 resources
that solely worked on this. We get the benefit of 7000.”375
365 Testimony of Tyson George, David Quartermain and Denis Vinette, vol. 56, October 2, 2007, pp. 70337035.
366 Testimony of Tyson George, vol. 56, October 2, 2007, pp. 7033, 7052-7053. See also the Department of
Finance Memorandum of Evidence on Terrorist Financing, p. 37.
367 Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7053.
368 Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7036.
369 Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7084.
370 2008 FATF Mutual Evaluation of Canada, para. 585.
371 For examples of the technologies, such as the “Snake Eye Camera” and the “Merlin Density Meter,” see
2008 FATF Mutual Evaluation of Canada, para. 588.
372 Testimony of Denis Vinette, vol. 56, October 2, 2007, pp. 7056-7057.
373 2008 FATF Mutual Evaluation of Canada, para. 594.
374 Testimony of Denis Vinette, vol. 56, October 2, 2007, pp. 7043-7044, 7049.
375 Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7063.
�Chapter III: The Roles of Federal Departments and Agencies
CBSA’s Strategic Intelligence Analysis Division has as its sole purpose producing
analytical products on a number of topics, including TF and proceeds of crime.376
CBSA also collaborates with international partners in identifying TF cases.377
Within the Intelligence Directorate, the Borders Intelligence Division is charged
with providing guidance to intelligence officers in the regions. The Division is
the point of contact between headquarters and regional offices on TF matters.
It has 44 “migration integrity officers” in 39 countries as well as three intelligence
liaison officers overseas.378
3.5.2.2 The “Multiple Borders” Concept
The CBSA follows “multiple borders”379 concept to identify problematic
behaviours or activities. This approach affords the CBSA multiple opportunities
to identify individuals who may pose some threat to Canada. The concept is
illustrated in the following chart380:
376
377
378
379
380
Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7062.
Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7062.
Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7034.
Sometimes abbreviated to “multi borders,” and also called a “layered safety net,” or the “onion.”
Exhibit P-235, Tab 7: Multiple Borders Concept Model [Multiple Borders Concept Model].
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The outer layer of the “onion” is the country of origin of the person or activity
being monitored. There are several components to this “outer layer”:
1.
2.
3.
4.
5.
6.
CBSA working with Citizenship and Immigration Canada visa officers;
CBSA’s 44 Migration Integrity Officers, posted in various overseas
locations, communicating with airline check-in staff. These officers act
as liaison officers with local law enforcement agencies as well as with
airline employees;
CBSA checking passenger lists (usually when a flight bound for
Canada is in the air) against CBSA’s database at its Risk Assessment
Centre in Ottawa. This step allows CBSA to verify if there is a “look-out”
(a mention in CBSA computers) or any other relevant information
about a particular individual;
CBSA checks at transit areas in Canadian airports;
CBSA inspections at Canadian airports; and
The Inland Enforcement Program for cases where a potentially
inadmissible person has managed to enter Canada.381
This layered approach also largely applies to cargo traffic.382
There are many ways to inspect cargo and individuals seeking to enter Canada.
Still, the sheer volume of individuals and vehicles entering Canada is a key
operational challenge for CBSA. As Vinette testified, “…you couldn’t inspect
every shipment; the border would shut down essentially.”383 As a result, the
CBSA must be efficient and creative in minimizing the risks of contraband and
ill-intentioned individuals entering Canada.
3.5.2.3 Business Line 1: Cross-border Movements of Currency and Monetary
Instruments
Part 2 of the PCMLTFA, Reporting of Currency and Monetary Instruments, deals
with two components of CBSA’s work on cross-border activities – administrative
rules governing the process for making declarations when entering Canada,
and search and seizure powers.384
It is not illegal for an individual entering or leaving Canada to carry money in
cash or other instruments, but this must be reported in certain cases. At or
above a certain amount (currently $10,000) persons385 must declare the import
381 For a description of the concept, see Testimony of David Quartermain, vol. 56, October 2, 2007, pp.
7057-7060.
382 Testimony of Denis Vinette, vol. 56, October 2, 2007, pp. 7060-7061.
383 Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7075.
384 Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7044.
385 The persons are defined in s. 12(3) of the PCMLTFA and include mainly exporters and people
transporting money.
�Chapter III: The Roles of Federal Departments and Agencies
or export to an officer,386 usually a BSO.387 Designated persons must complete
reports on both the import and export of currency, including import or export
by mail, courier or any means of transportation.388 CBSA also watches for crossborder movements of gold and precious metals and stones.389
Vinette stated that some individuals may understandably be reluctant to report
– for example, if they are not familiar with Canada’s border control system or
come from a country where there is distrust of the authorities.390 All reports about
movements of funds – legitimate or improper – are forwarded to FINTRAC as
Cross-Border Currency Reports (CBCRs).391 FINTRAC then adds the information
to its database.
After a report is made, the person entering or leaving Canada must answer
any questions posed by the BSO and must present the currency or monetary
instruments if the BSO requests.392
If a BSO suspects on reasonable grounds that an individual is hiding on or about
themselves currency or monetary instruments worth $10,000 or more which
has not been reported,393 the BSO may search a person within a reasonable time
after the person arrives in Canada. A BSO may on the same grounds search a
person about to leave Canada at any time before the person’s departure. BSOs
also have the power to stop, board and search any means of transportation
to determine if currency or monetary instruments of $10,000 or more are on
board and have not been reported.394 Similar powers exist to search baggage
and mail.395 Documents on concealment methods are circulated regularly, and
officers also have access to a database of information and analysis.396
386 The PCMLTFA, at s. 2, defines the term “officer” to have the same meaning as in subsection 2(1) of
the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) [Customs Act]. The Customs Act defines “officer” as “a
person employed in the administration or enforcement of this Act, the Customs Tariff or the Special
Import Measures Act and includes any member of the Royal Canadian Mounted Police.”
387 “Monetary instruments” is defined to include stocks, bonds, debentures, treasury bills, bank drafts,
cheques, promissory notes, travellers’ cheques and money orders, other than warehouse receipts
or bills of lading: Cross-border Currency and Monetary Instruments Reporting Regulations, s. 1(1). It
appears that in around 90% of cases, currency is seized. See 2008 FATF Mutual Evaluation of Canada,
para. 603. The Bank of Canada and several financial entities are exempt from reporting: Cross-border
Currency and Monetary Instruments Reporting Regulations, ss. 15, 15.1; PCMLTFA, s. 12(1); Cross-border
Currency and Monetary Instruments Reporting Regulations, s. 2(1). Section 2 of the Regulations
provides that the amount is in Canadian currency or its equivalent and explains how to calculate it.
Several exceptions to the reporting rules are specified.
388 PCMLTFA, s. 12(3).
389 Under the general provisions of s. 110 of the Customs Act and s. 489(2) of the Criminal Code. See 2008
FATF Mutual Evaluation of Canada, para. 583.
390 Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7039.
391 PCMLTFA, s. 12(5).
392 PCMLTFA, s. 12(4).
393 PCMLTFA, s. 15; Cross-border Currency and Monetary Instruments Reporting Regulations, s. 2(1).
394 PCMLTFA, s. 16(1).
395 PCMLTFA, ss. 16(2), 17; Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7041. Officers do
not have the authority to open mail that weighs 30 grams or less unless either the addressee or the
sender agrees or is present: see PCMLTFA, ss. 17(2), 17(3). For other provisions specific to mail, see s. 21
of the PCMLTFA.
396 Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7065.
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Air passengers arriving from foreign countries must complete a Declaration
Card.397 For outbound flights, CBSA relies on intelligence and random searches
on targeted flights where individuals are asked whether they are transporting
currency or monetary instruments worth $10,000 or more.398 Similar controls
are in place at other types of border points.
The CBSA allocates a large portion of its time and resources to incoming flights,
mainly because couriers might use such flights to bring money into Canada
for terrorist purposes. However, the CBSA plays a limited role with departing
passengers, so currency or monetary instruments can easily escape detection
on flights leaving Canada. Remedying this would require the CBSA to devote as
many resources to departing passengers as it does to incoming passengers.
If a BSO has reasonable grounds to believe that reporting obligations were
not followed, the currency or monetary instruments may be seized.399 Various
“levels” of seizures are described in CBSA regulations, except for “Level 4” seizures
(involving suspected proceeds of crime or TF funds, and the most serious of all
seizures), which are described in the PCMLTFA. The seizure levels appear below:
397 Examples of declaration cards were entered into evidence: see Exhibit P-235, Tab 4: Declaration Card
and Exhibit P-235, Tab 5: Family Declaration Card.
398 2008 FATF Mutual Evaluation of Canada, para. 563.
399 PCMLTFA, s. 18(1). Various procedural obligations must be respected, as set out in ss. 18(2)-(4) of the
PCMTLFA. The Minister of Public Works and Government Services receives the seized currency or
monetary instruments: see PCMLTFA, s. 22(2).
�Chapter III: The Roles of Federal Departments and Agencies
Level Circumstances
Prescribed Reference
Penalty
1
In the case of a person or entity who:
i.
has not concealed the currency or monetary instruments,
ii.
$250
Regulations,
section 18 (a)
has made a full disclosure of the facts concerning the
currency or monetary instruments on their discovery, and
iii.
2
has no previous seizures under the Act [PCMLTFA];
In the case of a person or entity who:
i.
$2500
has concealed the currency or monetary instruments, other
Regulations,
section 18 (b)
than by means of using a false compartment in a
conveyance, or who has made a false statement with
respect to the currency or monetary instruments, or
ii.
has a previous seizure under the Act, other than in respect
of any type of concealment or for making false statements
with respect to the currency or monetary instruments;
3
In the case of a person or entity who:
i.
$5000
has concealed the currency or monetary instruments by
Regulations,
section 18 (c)
using a false compartment in a conveyance, or
ii.
has a previous seizure under the Act for any type of
concealment or for making a false statement with respect
to the currency or monetary instruments;
4
In the case of the officer having reasonable grounds to suspect
No specific
PCMLTFA,
that the currency or monetary instruments are proceeds of crime
amount
section 18(2)
within the meaning of subsection 462.3(1) of the Criminal Code or
prescribed
funds for use in the financing of terrorist activities.
“Regulations” refers to the Cross-border Currency and Monetary Instruments Reporting Regulations,
SOR/2002-412.
147
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When currency or monetary instruments are seized, the officer who made the
seizure must without delay (using a Cross-Border Seizure Report (CBSR)) report
the seizure to FINTRAC. The officer must also notify the President of the CBSA.400
If a foreign national or non-Canadian citizen is suspected of involvement in TF,
the file is forwarded to CBSA’s Organized Crime Section.401 After the information
is analyzed, the CBSA can request help from law enforcement agencies, CSIS
and FINTRAC.402
After seizing currency or monetary instruments, the BSO refers to the information
available to him or her to determine if the items are proceeds of crime or
connected to money laundering or TF. With Level 4 seizures, this determination
has already been made before the seizure, since Level 4 seizures occur only
if an officer has reasonable grounds to suspect that the currency or monetary
instruments are proceeds of crime or funds for use in TF. No subsequent
determination is therefore necessary.403
The 2008 FATF Mutual Evaluation of Canada reported that, between January
2003 and September 2006, CBSA filed 174,938 CBCRs and 5,322 CBSRs with
FINTRAC.404 About 18 per cent of FINTRAC’s disclosures to recipients contained
information from a CBCR or CBSR.405
Numerous methods are used to smuggle money or goods into Canada.406
Several were explained to the Commission during the hearings. CBSA’s Strategic
Intelligence Analysis Division circulates information to help BSOs and other
CSBA employees stay current on new concealment methods.407 Annual seizures
are split about evenly between those at land border crossings and those at
airports.408
Because of the potential seriousness of a Level 4 seizure, BSOs work with CBSA
intelligence officers whenever such a seizure occurs.409 David Quartermain,
Director of the Borders Intelligence Division of CBSA’s Intelligence Directorate,
testified that intelligence officers transfer this information and their analysis to
an Integrated Proceeds of Crime Unit (IPOC) within the RCMP. The IPOC may
in turn transfer the file to an Integrated National Security Enforcement Team
(INSET) or elsewhere in the RCMP if there are suspicions of TF.410 In all cases
400
401
402
403
404
405
406
407
408
409
410
PCMLTFA, s. 20.
2008 FATF Mutual Evaluation of Canada, para. 581.
2008 FATF Mutual Evaluation of Canada, para. 581.
Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7045.
2008 FATF Mutual Evaluation of Canada, para. 596.
2008 FATF Mutual Evaluation of Canada, para. 597.
Exhibit P-235, Tab 8: CBSA Currency Concealment Presentation. See also Testimony of Denis Vinette,
vol. 56, October 2, 2007, pp. 7054-7055.
Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7040.
Testimony of Denis Vinette, vol. 56, October 2, 2007, pp. 7054-7055.
Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7045; Testimony of David Quartermain, vol. 56,
October 2, 2007, p. 7048.
Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7051.
�Chapter III: The Roles of Federal Departments and Agencies
involving a suspicion of money laundering or TF, the information is shared with
law enforcement and intelligence agencies, including FINTRAC.411
Quartermain stated that amendments introduced by Bill C-25 helped address
“…some of the information-sharing issues that [CBSA] had identified as gaps”
with FINTRAC and other partners:
[I]n the past, the information flow was more from CBSA into
FINTRAC, and now…we can obtain information back from
FINTRAC if it is relevant to investigating or prosecuting a
money laundering offence or terrorist activity, as it relates to
smuggling goods or subject to duties or evading taxes.
Another issue was the exchange of information with foreign
states. In the past, we couldn’t do that. Now, amendments
allow [sharing] information or disclosing seizure information
that has been collected under Part II of the PCMLTFA with
foreign agencies which have regimes similar to a centre such
as FINTRAC. So I will use the example of the U.S. We’re in the
midst of negotiating with the various agencies in the United
States …which will allow us then to share [information with
U.S. organizations] with respect to seizures. 412
Vinette testified that, between January 2003 and September 2007, CBSA had
made about 900 seizures at border crossings involving suspected proceeds of
crime, including TF. A total of roughly $48 million was involved.413 However, CBSA
had no breakdown to show how much of that total involved suspected TF.
Quartermain testified that the CBSA does not receive feedback in all cases where
it shares information about suspected TF funds with its partners, and he was
uncertain if there was a way to find out what percentage of those funds could
be related to TF. There was no legislated requirement for feedback.414
CBSA provided the following Selected Commodities Seizure Report415 to the
Commission.
411 Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7055. See also PCMLTFA, s. 36(2) which states:
“An officer who has reasonable grounds to suspect that information referred to in subsection (1) would
be relevant to investigating or prosecuting a money laundering offence or a terrorist activity financing
offence may disclose the information to the appropriate police force.”
412 Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7069.
413 Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7050.
414 Testimony of David Quartermain, vol. 56, October 2, 2007, pp. 7053-7056.
415 Exhibit P-235, Tab 10: CBSA Selected Commodities Seizure Report, January 1, 2003 to September 26,
2007.
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The PCMLTFA provides a review and appeal procedure for seizures by CBSA and
also specifies the penalties for failing to report currency imports or exports
as required by section 12(1).416 The PCMLTFA Act permits a person from whom
currency or monetary instruments have been seized, or the lawful owner, to
ask the Minister of Public Safety to review the seizure.417 Vinette confirmed that
seven attempts, all unsuccessful, had been made to challenge Level 4 seizures
in court.418 At the time of the 2008 FATF Mutual Evaluation of Canada, 45 cases
challenging Level 4 seizures were before the courts.419 It is not known how many
of these, if any, were related to TF.
416
417
418
419
PCMLTFA, ss. 24-31. The PCMLTFA also sets out a procedure for third party claims: see ss. 32-35.
PCMLTFA, s. 25.
Testimony of Denis Vinette, vol. 56, October 2, 2007, p. 7049.
2008 FATF Mutual Evaluation of Canada, para. 601.
�Chapter III: The Roles of Federal Departments and Agencies
Information that CBSA gathers can be used in other ways.420 In addition to
the information provided through CBCRs and CBSRs, a BSO may provide
information to FINTRAC if the BSO has reasonable grounds to suspect that it
would be of assistance to FINTRAC in the detection, prevention or deterrence
of money laundering or the financing of terrorist activities – a sort of “catch-all”
provision.421
In turn, FINTRAC must disclose information to CBSA when FINTRAC concludes
that any of the following conditions are met:
(i) the information is relevant to an offence of evading or
attempting to evade paying taxes or duties imposed under an
Act of Parliament administered by the CBSA;422
(ii) the information is relevant to determining whether a person
is a person described in sections 34 to 42 of the Immigration
and Refugee Protection Act or is relevant to an offence
under any of sections 117 to 119, 126 or 127 of the Act;423 or
(iii) the information is relevant to investigating or prosecuting an
offence of smuggling or attempting to smuggle goods subject
to duties or an offence related to the importation of goods that
are prohibited, controlled or regulated under the Customs Act
or under any other Act of Parliament.424
The 2008 FATF Mutual Evaluation of Canada gave Canada a “Compliant” rating for
its cross-border procedures. The FATF noted as well that the monetary threshold
($10,000 – explained below) triggering the need to make a currency declaration
was even lower than that recommended by the FATF, and that Canada has
implemented the border control measures outlined in the FATF Best Practices
Paper.425
3.5.2.4 Business Line 2: The Immigration and Refugee Protection Act Process
and Other Activities Related to TF
Besides monitoring the cross-border movement of currency and monetary
instruments, the CBSA has a role in immigration matters. One of CBSA’s goals
is to prevent individuals who may have been involved in TF from entering the
country.426
420 Information in this context is that referred to in s. 36(1) of the PCMLTFA and consists of: (a) information
set out in a report made under section 12(1) of the PCMLTFA, (b) any other information obtained
for the purposes of Part 2 of the PCMLTFA, and (c) information prepared from information referred to in
paragraph (a) or (b).
421 PCMLTFA, s. 36(3).
422 PCMLTFA, s. 55(3)(b.1).
423 PCMLTFA, s. 55(3)(d).
424 PCMLTFA, s. 55(3)(e).
425 2008 FATF Mutual Evaluation of Canada, para. 585.
426 Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7053.
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Section 37(1) of the Immigration and Refugee Protection Act427 sets out the
activities which make a permanent resident or a foreign national inadmissible
to Canada on grounds of “organized criminality.” Tyson George, a Senior Analyst
with the Organized Crime Section of the National Security Division of the CBSA,
testified that TF could be one such activity.428
If Citizenship and Immigration Canada visa officers overseas have reason
to believe that a person may be inadmissible under section 37, they send
that information to the Organized Crime Section. The Section analyzes the
information and, if it believes that there is a possibility of TF being involved,
it consults its partner agencies, including FINTRAC. It may also submit a VIR to
FINTRAC. FINTRAC in turn may disclose designated information to the Section.
Based on any information it receives from FINTRAC and other agencies, and
on its own analysis, the Section provides its opinion to the visa officers about
whether the person is inadmissible.429
3.5.3 International Cooperation
The PCMLTFA allows the Minister of Public Safety, with the consent of the Minister
of Finance, to enter into an agreement with a foreign state, or an institution
or agency of that state, to allow for an exchange of information from reports
about currency or monetary instruments between CBSA and a similar foreign
counterpart.430 Information obtained by Canada under the agreement must
also be sent to FINTRAC.431
The 2008 FATF Mutual Evaluation of Canada described the exchanges of
information allowed by a partnership agreement between Canada and the
United States under the Shared Border Accord. The exchanges were to help both
countries manage the flow of refugee claimants at their shared border (some of
the information-sharing would also relate to TF):
• Advance Passenger Information and agreed-to Passenger Name
Records on flights between Canada and the United States, including
in-transit flights, in order to identify risks posed by passengers on
international flights arriving in each other’s territory;
• Data related to customs fraud, and agreed-upon customs data
pursuant to NAFTA, as well as any additional commercial and trade
data, for national security purposes;
• Advance information on designated individuals and organizations
for the purpose of freezing terrorist assets;
• Refugee and asylum claimants, in order to ensure that applicants
are thoroughly screened for security risks;
427
428
429
430
431
S.C. 2001, c. 27.
Testimony of Tyson George, vol. 56, October 2, 2007, p. 7052.
Testimony of Tyson George, vol. 56, October 2, 2007, pp. 7052-7053.
PCMLTFA, s. 38(1).
PCMLTFA, s. 38(3).
�Chapter III: The Roles of Federal Departments and Agencies
• Marine in-transit containers arriving in Canada and the United
States; and
• Anti-terrorism efforts, through the Cross-Border Crime Forum and
Project Northstar.432
As noted above, Quartermain told the Commission that negotiations were
underway with various agencies in the United States to share information about
seizures with US organizations.433
3.5.4 Funding
In 2006-07, the CBSA was allocated $7.8 million under the AML/ATF Initiative
and was allocated $7.7 million for each of the subsequent three fiscal years.434
3.6 Department of Foreign Affairs and International Trade
The Department of Foreign Affairs and International Trade (DFAIT), through the
Minister of Foreign Affairs, is responsible for matters relating to the conduct
of the external affairs of Canada, including international trade and commerce
and international development, where those matters have not been assigned
to another federal department, board or agency.435 The Department of Foreign
Affairs and International Trade Act requires the Minister to perform the following
duties, among others:
• conduct all official communication between the Government of
Canada and the government of any other country and between the
Government of Canada and any international organization;
• conduct and manage international negotiations as they relate to
Canada;
• coordinate the direction given by the Government of Canada to the
heads of Canada’s diplomatic and consular missions; and
• foster the development of international law and its application in
Canada’s external relations.436
Several sections of DFAIT play a role in TF matters. The Commission heard
evidence from Keith Morrill, Director of the Criminal, Security and Treaty Law
432
433
434
435
2008 FATF Mutual Evaluation of Canada, para. 577.
Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7069.
Department of Finance Presentation, slide 1.
Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E-22, s. 10(1) [Department of
Foreign Affairs and International Trade Act].
436 Department of Foreign Affairs and International Trade Act, s. 10(2).
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Division, part of the Legal Bureau at DFAIT.437 The Division helps address legal
issues at the international and domestic levels. The Division has two goals:
(i) to ensure that Canadian views are put forward at the
international level and that its objectives are integrated at
that level, as well as being consistent with Canadian
domestic policy; and
(ii) to ensure that Canadian foreign policy and the appropriate
domestic legislation is in line with Canadian contributions at
the international level in regard to terrorism, TF and
other related issues.438
Two other groups within DFAIT also deal with these issues: the International
Crime and Terrorism Division and the Economic Crime Section of the International
Humanitarian and Human Rights Law Section.439
DFAIT coordinates Canada’s international TF activities and “develops and
advocates Canadian positions” by representing Canada at the United Nations,
G8 (in particular through the Roma/Lyon Anti-Crime and Terrorism Experts
Group), Asia-Pacific Economic Cooperation, Organization of American States,
and Organization for Security and Co-operation in Europe, among other
organizations.440 DFAIT supports its Minister in the fulfillment of the Minister’s
responsibilities for the terrorist listing mechanisms implemented under
Canada’s United Nations Act, through the United Nations Al-Qaida and Taliban
Regulations (UNAQTR) and the Regulations Implementing the United Nations
Resolutions on the Suppression of Terrorism (RIUNRST).441 Finally, DFAIT co-chairs
the Interdepartmental Working Group on Terrorist Listings with Public Safety
Canada in support of the Minister’s legal responsibility to recommend entities
to be listed under the RIUNRST. DFAIT also ensures that Canadian foreign
policy and international programming complies with Canada’s international
obligations and domestic regulations to counter TF.442
3.7 Public Safety Canada
Public Safety Canada (PS) is responsible for providing support and policy advice
to the Minister of Public Safety on all matters of public safety and national
security, including money laundering and TF.443 The Public Safety website
describes its areas of activity as emergency management, national security, law
437 Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6677.
438 Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6678; Department of Finance Memorandum
of Evidence on Terrorist Financing, pp. 39-40.
439 Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6679.
440 Department of Finance Memorandum of Evidence on Terrorist Financing, p. 39.
441 Department of Finance Memorandum of Evidence on Terrorist Financing, p. 39.
442 Department of Finance Memorandum of Evidence on Terrorist Financing, pp. 39-40.
443 Department of Finance Memorandum of Evidence on Terrorist Financing, p. 40.
�Chapter III: The Roles of Federal Departments and Agencies
enforcement, corrections and crime prevention,444 and its mandate as being to
“…keep Canadians safe from a range of risks such as natural disasters, crime and
terrorism.”445
Public Safety works with the agencies within its portfolio, such as the RCMP
and CSIS, other levels of government, first responders, community groups, the
private sector and foreign countries.446 Departmental staff members advise the
Minister of Public Safety on enforcement and intelligence matters, including
those related to money laundering and TF. The Department coordinates policy
advice received from its portfolio agencies, as well as the input of these agencies
in government-wide exercises, such as the 2008 FATF Mutual Evaluation of
Canada.447
Two important administrative processes involve the Minister of Public Safety
directly in TF matters – the Criminal Code listing of terrorist groups and the
process under the Charities Registration (Security Information) Act (CRSIA):
• The Criminal Code authorizes the Minister of Public Safety to
recommend to the Governor in Council the listing of terrorist
entities under the Code.448 Public Safety maintains a current
Criminal Code listing on its website.449 Along with DFAIT, PS cochairs the Interdepartmental Working Group on Terrorist Listings;
and
• The Minister, with the Minister of National Revenue, is responsible
under the CRSIA for preventing the use of charitable organizations
for TF purposes.450 Both CSIS and the RCMP make recommendations
to the Minister of Public Safety in this regard.451 This process and
the Minister’s role are described in Chapter VI.
3.8 Office of the Superintendent of Financial Institutions
The Office of the Superintendent of Financial Institutions (OSFI) was established
by the Office of the Superintendent of Financial Institutions Act (OSFI Act).452 The
Minister of Finance presides over and is responsible for OSFI.453 OSFI has a
444 Public Safety Canada, “What we do,” online: Public Safety Canada <http://www.ps-sp.gc.ca/abt/wwd/
index-eng.aspx> (accessed April 22, 2009) [Public Safety Canada, “What we do”].
445 Public Safety Canada, “What we do.”
446 Public Safety Canada, “What we do.”
447 Exhibit P-383, Tab 11: Public Safety Canada’s Submission to the Commission of Inquiry into the
Investigation of the Bombing of Air India Flight 182, October 24, 2007, p. 1 [Public Safety Submission to
the Commission].
448 Criminal Code, s. 83.05.
449 See Public Safety Canada, “Currently listed entities,” online: Public Safety Canada <http://www.
publicsafety.gc.ca/prg/ns/le/cle-en.asp> (accessed April 22, 2009).
450 Department of Finance Memorandum of Evidence on Terrorist Financing, p. 40.
451 Public Safety Submission to the Commission, p. 1; A New Review Mechanism for the RCMP’s National
Security Activities, p. 190.
452 R.S.C. 1985, c. 18 (3rd Supp.), Part I.
453 OSFI Act, ss. 3, 4(1).
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broad supervisory authority over financial institutions coming under federal
jurisdiction and responsibility for providing guidance to these institutions.
OSFI’s powers are derived from several statutes besides the OSFI Act. These
include the Bank Act,454 Insurance Companies Act,455 Trust and Loan Companies
Act,456 Pension Benefits Standards Act, 1985457 and Cooperative Credit Associations
Act.458 The financial institutions regulated by OSFI include the following:
(i) banks;
(ii) foreign bank branches in Canada;
(iii) federally regulated trust and loan companies;
(iv) federally regulated cooperative credit associations;
(v) federally regulated property and casualty insurance
companies; and
(vi) fraternal benefit societies.459
OSFI’s objects relating to financial institutions are as follows:
(i) to supervise financial institutions in order to determine whether they are
in sound financial condition and are complying with their governing
statute and supervisory requirements;
(ii) to promptly advise the management and board of directors of a financial
institution if the institution is not in sound financial condition or is not
complying with its governing statute or supervisory requirements and, in
such a case, to take, or require the management or board to take, the
necessary corrective measures or series of measures to deal with the
situation in an expeditious manner;
(iii) to promote the adoption by management and boards of directors of
financial institutions of policies and procedures designed to control and
manage risk; and
(iv) to monitor and evaluate system-wide or sectoral events that may have a
negative impact on the financial condition of financial institutions.460
454
455
456
457
458
459
S.C. 1991, c. 46.
S.C. 1991, c. 47.
S.C. 1991, c. 45.
R.S.C. 1985, c. 32 (2nd Supp.).
S.C. 1991, c.48.
See the definition of “financial institution” in s. 3 of the OSFI Act, and Office of the Superintendent
of Financial Institutions Canada, “Who We Regulate,” online: Office of the Superintendent of Financial
Institutions Canada <http://www.osfi-bsif.gc.ca/osfi/index_e.aspx?DetailID=568> (accessed August 1,
2008).
460 OSFI Act, s. 4(2).
�Chapter III: The Roles of Federal Departments and Agencies
OSFI states that it contributes to public confidence in the financial system.461 It
does not have any specific legislated role in TF matters but conducts its TF work
as part of its obligation to regulate and monitor the financial sector.462
OSFI disseminates information about terrorist entities listed under the Criminal
Code or under the two lists adopted by Canada through the RIUNRST and
UNAQTR. OSFI has consolidated these three lists into two – one covering
entities and the other covering individuals – and posts them on its website.463
It distributes updated information to the institutions under its jurisdiction.464
OSFI also communicates changes to the lists to provincial regulators and
supervisors and several associations, such as the Canadian Bankers Association,
the Canadian Life and Health Insurance Association and the Canadian Securities
Administrators.465 OSFI provides monthly reminders to institutions under
its jurisdiction that they must report any transaction related to an entity or
individual named on the lists.
Financial institutions must report to OSFI whether they are in possession or
control of property owned or controlled by or on behalf of a listed entity.466
“Reporting entities” must also report to FINTRAC,467 CSIS and the RCMP468 if
property in their possession belongs to a listed entity or person. OSFI issues a
monthly written reminder that financial institutions are required to file a report
showing, in aggregate, the number of accounts and the dollar value of terrorist
property frozen and reported to law enforcement.469
Unlike the case with other FINTRAC partners such as the RCMP, CSIS, CBSA
and the CRA, there is no provision in the PCMLTFA permitting or requiring
FINTRAC to disclose designated information to OSFI. Under a Memorandum of
Understanding between OSFI and FINTRAC, OSFI sends FINTRAC copies of all
OSFI’s dealings with the entities obliged to report to OSFI. Furthermore, OSFI
461 Office of the Superintendent of Financial Institutions (OSFI), Plans and Priorities 2008-2011, p. 1,
online: Office of the Superintendent of Financial Institutions Canada <http://www.osfi-bsif.gc.ca/
app/DocRepository/1/eng/reports/osfi/PP_2008_2011_e.pdf> (accessed August 1, 2008) [OSFI 2008-11
Plans and Priorities].
462 Department of Finance Memorandum of Evidence on Terrorist Financing, p. 42.
463 “Terrorism Financing,” online: Office of the Superintendent of Financial Institutions Canada <http://
www.osfi-bsif.gc.ca/osfi/index_e.aspx?DetailID=525> (accessed August 1, 2008) [OSFI, “Terrorism
Financing”].
464 For list of OSFI notices, see OSFI, “Terrorism Financing.”
465 See, for example, online: Office of the Superintendent of Financial Institutions Canada <http://www.
osfi-bsif.gc.ca/app/DocRepository/1/eng/issues/terrorism/updates/2008_08_01_e.pdf> (accessed
August 1, 2008).
466 All entities listed in s. 83.11(1) of the Criminal Code are required to report the information “to the
principal agency or body that supervises or regulates it under federal or provincial law.” In the case of
federal institutions, it is OSFI: Criminal Code, s. 83.11(2); RIUNRST, s. 7(2); United Nations Al-Qaida
and Taliban Regulations, S.O.R./99-444, s. 5.1(2) [UNAQTR].
467 S. 7.1(1) of the PCMLTFA. A person or entity who is required to make a disclosure under s. 83.1 of the
Criminal Code, or s. 8 of the RIUNRST, must file a report with FINTRAC if that person or entity is
also subject to the PCMLTFA (as described in s. 5 of the PCMLTFA).
468 Criminal Code, s. 83.1(1), RIUNRST, s. 8(1), UNAQTR, s. 5.2(1).
469 2008 FATF Mutual Evaluation of Canada, para. 332.
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meets regularly with senior FINTRAC officials to discuss findings, trends and
emerging issues.470
Besides issuing reminders and notices and providing current listings, OSFI
conducts educational programs for financial institutions. For example, OSFI holds
annual information sessions for compliance and risk management senior officers
to discuss money laundering and TF.471 As of May 2008, OSFI was scheduled to
begin consultations with the private sector on a revised AML/ATF guideline that
would take into account OSFI’s accumulated experience with money laundering
compliance efforts since 2004, the changes brought by Bill C-25 and the 2008
FATF Mutual Evaluation of Canada.472 Another OSFI priority, identified in its
2008-2012 Plans and Priorities, was to respond to the recommendations of the
FATF Mutual Evaluation.473
3.9 Integrated Threat Assessment Centre
The Integrated Threat Assessment Centre (ITAC) was created in 2004. Following
the release of the National Security Policy later that year, it replaced the former
CSIS Integrated National Security Assessment Centre.474
ITAC’s role is to produce comprehensive and integrated assessments of threats
to Canada’s national security and to distribute them within the intelligence
community and to first-line responders. 475 ITAC focuses primarily on terrorist
trends and on domestic and international events related to terrorism. ITAC
threat assessments may be classified or unclassified.476
ITAC’s director is appointed by the National Security Advisor (NSA) in consultation
with the Director of CSIS. ITAC’s Assessment Management Committee (composed
of assistant deputy ministers from ITAC partners) advises the Management Board
on the focus, effectiveness and efficiency of ITAC’s activities.477 ITAC is staffed
by representatives of several organizations, normally for two-year terms: CBSA,
CSIS, Correctional Service of Canada, CSE, DND, DFAIT, FINTRAC, the Ontario
470 Department of Finance Memorandum of Evidence on Terrorist Financing, p. 42.
471 Department of Finance Memorandum of Evidence on Terrorist Financing, p. 42.
472 Remarks by Superintendent Julie Dickson, Office of the Superintendent of Financial Institutions Canada
(OSFI), to the OSFI AML/ATF Conference, Toronto May 7, 2008, p. 3, online: Office of the Superintendent
of Financial Institutions Canada <http://www.osfi-bsif.gc.ca/app/DocRepository/1/eng/speeches/
JDickson_OSFI_AML_ATF_e.pdf> (accessed August 1, 2008).
473 OSFI 2008-11 Plans and Priorities, p. 9.
474 Canadian Security Intelligence Service, “Backgrounder No. 13 - The Integrated Threat Assessment
Centre (ITAC),” p. 1, online: Canadian Security Intelligence Service <http://www.csis-scrs.gc.ca/nwsrm/
bckgrndrs/bckgrndr13-eng.pdf> (accessed August 6, 2008) [CSIS Backgrounder on ITAC]; A New
Review Mechanism for the RCMP’s National Security Activities, p. 141. For further information about
the structure, mission and activities of ITAC, see the testimony of Daniel Giasson, Director, Integrated
Threat Assessment Centre, Canadian Security Intelligence Service, Proceedings of the Standing Senate
Committee on National Security and Defence, Issue 16 – Evidence, May 28, 2007, online: Parliament of
Canada <http://www.parl.gc.ca/39/1/parlbus/commbus/senate/Com-e/defe-e/16ev-e.htm?Language=
E&Parl=39&Ses=1&comm_id=76> (accessed December 3, 2007).
475 CSIS Backgrounder on ITAC, p. 2.
476 A New Review Mechanism for the RCMP’s National Security Activities, p. 141.
477 CSIS Backgrounder on ITAC, p. 2.
�Chapter III: The Roles of Federal Departments and Agencies
Provincial Police, PS, Privy Council Office, the RCMP, the Sûreté du Québec and
Transport Canada.478 Individuals who are seconded to ITAC bring with them
knowledge acquired at their home agencies. 479
Besides providing threat assessments, ITAC has published studies either
specifically about TF480 or about both terrorism and TF.481 For example, in 2006 it
published Terrorist Financing - How It’s Done and How It’s Countered.482
At the international level, ITAC carries out its functions mainly as part of the
Five Eyes Terrorist Financing Working Group – a group with representatives
from Canada, the UK, the US, Australia and New Zealand. Part of the work of the
Five Eyes Working Group is to exchange threat assessments among members
of the Group – the Joint Terrorism Analysis Centre in Britain, the National
Counterterrorism Center in the United States, the National Threat Assessment
Centre in Australia, the Combined Threat Assessment Group in New Zealand,
and ITAC.483 Threat assessments produced by ITAC are shared with international
partners unless designated “for Canadian eyes only.” ITAC also shares information
with other foreign partners on a case-by-case basis.484
3.10 Other Departments and Agencies
Other federal departments and agencies have smaller roles in the fight against
terrorism and TF, notably the Department of Justice, the Communications
Security Establishment and the Privy Council Office.
3.10.1 Department of Justice
The Department of Justice is headed by a single Minister who serves as both
Minister of Justice and Attorney General of Canada. The Minister is responsible
for the development of law and procedure in regard to criminal law. The
Minister is also responsible for the Mutual Legal Assistance in Criminal Matters
478 Testimony of John Schmidt, vol. 53, September 27, 2007, pp. 6642-6643; CSIS Backgrounder on ITAC,
p. 2. ITAC can also draw information and expertise as needed from Agriculture Canada, Health Canada,
Environment Canada and Natural Resources Canada. FINTRAC became a partner only in April 2006: see
Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6644.
479 CSIS Backgrounder on ITAC, p. 2; Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6645.
480 Canadian Centre for Intelligence and Security Studies, The Norman Paterson School of International
Affairs, Carleton University, “Terrorism Financing and Financial System Vulnerabilities: Issues and
Challenges” (ITAC Presents, Trends in Terrorism Series, Volume 2006-3), online: Integrated Threat
Assessment Centre <http://www.itac-ciem.gc.ca/pblctns/tc_prsnts/2006-3-eng.pdf> (accessed
December 3, 2007).
481 Canadian Centre for Intelligence and Security Studies, The Norman Paterson School of International
Affairs, Carleton University, “A Framework for Understanding Terrorist Use of the Internet” (ITAC
Presents, Trends in Terrorism Series, Volume 2006-2), online: Integrated Threat Assessment Centre
<http://www.itac-ciem.gc.ca/pblctns/tc_prsnts/2006-2-eng.pdf>; Canadian Centre for Intelligence
and Security Studies, The Norman Paterson School of International Affairs, Carleton University, “Actual
and Potential Links Between Terrorism and Criminality” (ITAC Trends in Terrorism Series, Volume
2006-5), online: Integrated Threat Assessment Centre <http://www.itac-ciem.gc.ca/pblctns/tc_
prsnts/2006-5-eng.pdf> (accessed December 3, 2007).
482 Other similar classified studies were examined by Commission counsel.
483 CSIS Backgrounder on ITAC, p. 3.
484 A New Review Mechanism for the RCMP’s National Security Activities, p. 142.
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Act.485 The 2008 FATF Mutual Evaluation of Canada criticized Canada’s mutual
legal assistance program, saying that “…[t]here are concerns about the ability
of Canada to handle [mutual legal assistance] requests in a timely and effective
manner and effectiveness of the current regime cannot be demonstrated due
to the lack of adequate data.”486
The PCMLTFA allows the Attorney General to apply for a production order for an
investigation of a TF offence.487 The Attorney General, by way of the Director of
Public Prosecutions and the Public Prosecution Service of Canada, has concurrent
jurisdiction with provincial Attorneys General for TF prosecutions.488
3.10.2 Communications Security Establishment Canada
The Communications Security Establishment Canada (CSE) is Canada’s
cryptologic agency.489 Its mandate has three components:
a. to acquire and use information from the global information
infrastructure for the purpose of providing foreign intelligence,
in accordance with Government of Canada intelligence
priorities;
b. to provide advice, guidance and services to help ensure
the protection of electronic information and of information
infrastructures of importance to the Government of Canada;
and
c. to provide technical and operational assistance to federal law
enforcement and security agencies in the performance of their
lawful duties.490
CSE can be involved in TF work in several ways:
• by providing technical and operational assistance to the RCMP or
CSIS (mandate “c” above);491
• by receiving information through its own activities (mandate “a”)
and forwarding it to the relevant agency, including FINTRAC; and
• by being the recipient of disclosures of designated information
by FINTRAC. FINTRAC must disclose designated information to CSE
if FINTRAC has reasonable grounds to suspect that the information
485
486
487
488
489
R.S.C. 1985, c. 30 (4th Supp.).
2008 FATF Mutual Evaluation of Canada, p. 298.
PCMLTFA, s. 60(2).
Department of Finance Memorandum of Evidence on Terrorist Financing, p. 39.
Communications Security Establishment Canada, “Welcome to the Communications Security
Establishment Canada,” online: Communications Security Establishment Canada <http://www.cse-cst.
gc.ca/index-eng.html> (accessed September 16, 2009).
490 National Defence Act, R.S.C. 1985, c. N-5, s. 273.64(1).
491 Testimony of Jim Galt, vol. 55, October 1, 2007, pp. 6930-6931.
�Chapter III: The Roles of Federal Departments and Agencies
would be relevant to investigating or prosecuting a money laundering
or TF offence and if FINTRAC also determines that the information is
relevant to the mandate of CSE.492
3.10.3 Privy Council Office
The Privy Council Office (PCO) reports directly to the Prime Minister and is
headed by the Clerk of the Privy Council and Secretary to the Cabinet. The PCO
acts as the Cabinet secretariat and as the Prime Minister’s main source of public
service advice for the policy questions and operational issues of concern to the
government of the day. The Clerk of the Privy Council is Canada’s most senior
public servant supporting the Prime Minister and has three main responsibilities:
serving as the Prime Minister’s Deputy Minister, Secretary to the Cabinet and
Head of the Public Service. 493
The National Security Advisor to the Prime Minister and Associate Secretary to the
Cabinet assists the Clerk and provides information, advice and recommendations
to the Prime Minister as follows:
• as Associate Secretary to the Cabinet, by acting on the Clerk’s behalf
on any of the policy and operational issues that come before the
PCO; and
• as National Security Advisor to the Prime Minister, by ensuring the
effective coordination of Canada’s security and intelligence
community and, together with the Deputy Minister of National
Defence, by being responsible for CSE. The National Security
Advisor also oversees the provision of intelligence assessments
to the Prime Minister, other ministers and senior government
officials.
3.11 Cooperation among Agencies
As this chapter has explained, several federal agencies are involved in
implementing Canada’s anti-TF program. Cooperation is not limited to formal
interdepartmental committees. Some agencies work with each other one-onone. RCMP Superintendent Reynolds testified, for example, that the RCMP works
in this manner on a regular basis with CSIS, CRA and FINTRAC.494
492 PCMLTFA, s. 55(3)(f ).
493 Privy Council Office, “The Role and Structure of the Privy Council Office,” November 2008, p. 1, online:
Privy Council Office <http://www.pco-bcp.gc.ca/docs/information/Publications/Role/docs/2008/
role2008-eng.pdf> (accessed September 16, 2009) [PCO, “The Role and Structure of the Privy Council
Office”].
494 Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6841.
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Several formal cooperation mechanisms are discussed below.
3.11.1 Financial Crimes Interdepartmental Coordinating Committee (ICC)
The head of the Financial Crimes Section (Domestic/International) of Finance
Canada chairs this working-level committee, which meets at least quarterly
to “…address operational and administrative issues related to Canada’s AntiMoney Laundering and Anti-Terrorist Financing regime and to coordinate policy
in this area.”495 Meetings may occur more often when Parliament is revising
legislation and regulations. Diane Lafleur of Finance Canada testified that the
committee can deal with both policy and operational issues related to the AML/
ATF Initiative.496
The ICC’s tasks include the following:
• to provide a forum for government working-level stakeholders to
assess the operational efficiency and effectiveness of the AML/ATF
Initiative, and identify problems/solutions;
• to coordinate and manage all parliamentary, Treasury Boardmandated and Auditor General reviews and audits related to
the AML/ATF Initiative; and
• to provide input and advise on Government policy relating to
Canada’s AML/ATF Initiative.497
The ICC’s participants are the Departments of Finance, Justice, Public Safety and
DFAIT and the following agencies: CRA, FINTRAC, RCMP, CBSA, CSIS and OSFI.498
The Committee coordinated the 2008 FATF Mutual Evaluation of Canada and
met several times for that purpose.
3.11.2 Financial Crimes Interdepartmental Steering Committee (ADM
Steering Committee)
The Assistant Deputy Minister of the Financial Sector Policy Branch of
Finance Canada chairs this committee, often referred to as the ADM Steering
Committee. It meets twice a year, or as necessary, and provides strategies and
general guidance for Canada’s AML/ATF Initiative. The terms of reference of the
committee describe its functions as follows:
495 Exhibit P-227, Tab 4: Financial Crimes Interdepartmental Committees (Coordinating & Steering) Terms
of Reference, p. 1 [Financial Crimes Interdepartmental Committees Terms of Reference].
496 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6782.
497 Financial Crimes Interdepartmental Committees Terms of Reference, p. 2.
498 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6782; Financial Crimes Interdepartmental
Committees Terms of Reference, p. 1. DFAIT participates only when international AML/ATF matters are
involved.
�Chapter III: The Roles of Federal Departments and Agencies
• to provide a forum for ADM-level government stakeholders to
assess the overall effectiveness of the AML/ATF Initiative;
• to provide guidance on the Government’s AML/ATF
communications strategy;
• to provide input and advice on Government policy relating to
Canada’s AML/ATF Initiative; and
• to oversee the work of a related working-level group, including
providing feedback on issues of strategic importance that arise
in the group.499
The participants are officials at the assistant deputy minister level from the same
departments and agencies that belong to the ICC except that DFAIT does not
participate in the ADM Steering Committee.
3.11.3 Interdepartmental Coordinating Committee on Terrorist Listings
The Interdepartmental Coordinating Committee on Terrorist Listings is cochaired by officials from Public Safety and DFAIT. It coordinates the activities of
all departments and agencies involved in the listing processes – not only the
Criminal Code listing process but also the processes flowing from the RIUNRST
and the UNAQTR. The committee consists of PS and DFAIT as co-chairs, RCMP
and CSIS as intelligence providers, and the Privy Council Office, Department of
Finance, CBSA, Department of Justice, CRA and OSFI.500 CSIS and the RCMP are
the lead agencies responsible for preparing recommendations to list an entity
and for collecting intelligence in support of the recommendation.
3.11.4 Integrated National Security Enforcement Teams (INSETs)
The RCMP describes the purpose of the INSETs as being to increase the capacity
for the collection, sharing and analysis of intelligence among partners with
respect to individuals and entities that are a threat to national security, create
an enhanced investigative capacity to bring such individuals and entities to
justice, and enhance partner agencies’ collective ability to combat national
security threats.”501 National Security Investigation Sections502 (NSISs) and INSETs
operate at the divisional level of the RCMP and have the primary responsibility
for carrying out criminal investigations in national security matters.503
INSETs deal with TF issues as well as with terrorist investigations. They also
provide a forum for the exchange of information among the agencies that may
be involved alongside the RCMP – for example, CSIS, CBSA, Citizenship and
499 Financial Crimes Interdepartmental Committees Terms of Reference, pp. 3-4.
500 Public Safety Submission to the Commission, p. 2.
501 Royal Canadian Mounted Police, “Integrated National Security Enforcement Teams,” online: Royal
Canadian Mounted Police <http://www.rcmp-grc.gc.ca/secur/insets-eisn-eng.htm> (accessed August
28, 2008) [RCMP, “Integrated National Security Enforcement Teams”].
502 Since renamed “National Security Enforcement Sections.”
503 A New Review Mechanism for the RCMP’s National Security Activities, p. 102.
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Immigration Canada, CRA, provincial and municipal police forces and other
federal and provincial agencies.504 INSETs are located in Vancouver, Toronto,
Ottawa and Montreal.505 Their activities are coordinated by RCMP National
Headquarters. The RCMP is fully accountable for INSET operations and RCMP
policies and rules apply to the work of INSET members.506
3.11.5 Integrated Border Enforcement Teams (IBETs)
In TF matters, Integrated Border Enforcement Teams (IBETs) coordinate the work
of various agencies in monitoring the cross-border transportation of currency
and other monetary instruments.507 The RCMP states that IBETs “…enhance
border integrity and security along the shared Canada/US border, between
designated ports of entry.”508
IBETs consist of Canadian and American partners: the RCMP, the CBSA, the
US Customs and Border Protection/Office of Border Patrol, the US Bureau
of Immigration and Customs Enforcement, and the US Coast Guard. 509 The
RCMP and the CBSA share responsibility for collecting information to develop
intelligence for investigations relating to national security or crimes such as
organized crime and human smuggling.510
3.11.6 Relationships among Agencies in the Same Ministerial Portfolio
David Quartermain, Director of the Borders Intelligence Division of CBSA’s
Intelligence Directorate, testified to having a close relationship with agencies
within Public Safety Canada (for example, the RCMP and CSIS).511 Denis
Vinette, Director of the CBSA Borders Enforcement Division, testified about the
advantages of working with agencies from the same department:
[T]here is a benefit, I guess, to our reporting into the same
organization, as well as to the same Minister, in terms of what
the direction is in terms of our strategies and priorities of the
day. And so it ensures that, as we work through the portfolio,
Department of Public Safety, that those priorities are shared
amongst all the agencies because we all have different roles
504 A New Review Mechanism for the RCMP’s National Security Activities, p. 102. The report states that, for
example, “in 2004, O-INSET (located in Toronto) had members from the Ontario Provincial Police,
Toronto Police Service, York Regional Police, Durham Regional Police, Peel Regional Police, CSIS and the
CBSA. As of August 2004, O-INSET comprised 53 RCMP regular members, two RCMP civilian members
and 22 people on secondment from other agencies and RCMP units.”
505 RCMP, “Integrated National Security Enforcement Teams.”
506 A New Review Mechanism for the RCMP’s National Security Activities, p. 102.
507 2008 FATF Mutual Evaluation of Canada, para. 572.
508 Royal Canadian Mounted Police, “Integrated Border Enforcement Teams (IBETs),” online: Royal Canadian
Mounted Police <http://www.rcmp-grc.gc.ca/ibet-eipf/index-eng.htm> (accessed February 18, 2009)
[RCMP, “Integrated Border Enforcement Teams”].
509 RCMP, “Integrated Border Enforcement Teams.”
510 2008 FATF Mutual Evaluation of Canada, para. 574.
511 Testimony of David Quartermain, vol. 56, October 2, 2007, p. 7071.
�Chapter III: The Roles of Federal Departments and Agencies
to play, but in the same fight, if you will, when it comes to
different types of priorities. And so it just ensures that all of our
activities are aligned, be it intelligence information sharing, be
it operationally on the ground.512
3.11.7 International Cooperation
The number of interdepartmental activities513 involving TF matters has increased,
in part because Canadian agencies need to collaborate to fulfill international
commitments and programs. The 2008 FATF Mutual Evaluation of Canada
was one example. As well, FINTRAC has contributed to the typology exercises
of a subgroup of FATF on topics such as the use of casinos and “proliferation
financing.”514
CSIS and the RCMP participate in the Five Eyes Terrorist Financing Working
Group.515 CSIS described its participation in the Working Group as follows:
The intent of the Five-Eyes working group is to bring together
law enforcement and intelligence agencies to develop
recommendations on countering terrorist financing through
a coordinated international response. The [CSIS] Financial
Analysis Unit has benefited from its continued participation
in the Five-Eyes group. It serves to identify areas of mutual
interest and emerging trends, and it assists in identifying issues
that the Unit should consider in its provision of operational
support on terrorist financing.516
The meetings of the Working Group – involving representatives from Australia,
Canada, New Zealand, the United Kingdom and the United States – are held
under high security, which allows for the sharing of operational information
about cases of mutual interest, including information about investigative and
analytical techniques.517
3.11.8 Secondments
As is the case in the federal government generally, secondments are common
among the partners of the AML/ATF Initiative and are an effective means of
promoting cooperation and better communication.518 FINTRAC has a person
512
513
514
515
516
517
518
Testimony of Denis Vinette, vol. 56, October 2, 2007, pp. 7072-7073.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6997.
Second FINTRAC Response to Supplementary Questions of the Commission, Question 2(d).
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6928.
CSIS Response to Supplementary Questions of the Commission, Question 3.
CSIS Response to Supplementary Questions of the Commission, Question 3.
Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6642; Testimony of Jim Galt, vol. 55,
October 1, pp. 6909-6910.
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seconded to the RCMP Integrated Proceeds of Crime Unit.519 CRA has employees
seconded to the RCMP National Security Operations Branch and to CSIS. ITAC is
staffed by representatives of several organizations.
Tom Quiggin, an expert in terrorism matters, testified about the value of personal
contacts – the types of contacts that secondments help to develop:
During a time of crisis, during a time of stress, an organization
like CSIS or an organization like the RCMP will almost never
refuse to share information assuming there is a personal
contact somewhere.520
3.11.9 Private/Public Sector Advisory Committee
The Department of Finance chairs a private/public sector advisory committee
that was created in 2007 in response to recommendations from the November
2004 Auditor General’s Report.521 Its first meeting was held in November 2007.
The membership of the committee includes representatives of many federal
agencies and private sector organizations.522
A summary of the proceedings of the first meeting of the committee showed
that it focused on guidance for the benefit of reporting entities and on opinions
of the private sector about the anti-TF program. Several questions for future
consideration by the private sector were raised on topics such as feedback
from government authorities, the consultation process that led to Bill C-25 and
communication between government authorities and the private sector.523
This committee offers government agencies direct contact with private sector
representatives.
3.12 Conclusion
Those engaged in raising and moving funds for terrorist purposes have a
host of means to do so. Many of those means are very difficult to detect
among the massive number of legitimate movements of funds around the
globe. Responding to TF involves many government agencies, international
organizations and private sector entities.
This chapter has shown the range of government agencies and private sector
entities involved in anti-TF efforts. It has also pointed to the complexity of the
relationships among these agencies and entities, both in how they cooperate in
practice and in the laws that frame their cooperation.
519 Summary of Meeting with FINTRAC, p. 3.
520 Testimony of Thomas Quiggin, vol. 91, December 7, 2007, pp. 12053-12054.
521 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6784; 2004 Auditor General Report on
Money Laundering, para. 2.29.
522 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6784.
523 Department of Finance Response to Supplementary Questions of the Commission, Question 3(b).
�VOLUME FIVE
TERRORIST FINANCING
CHAPTER IV: EXTERNAL REVIEWS OF CANADA’S ANTI-TF PROGRAM
Diane Lafleur, Director of the Financial Sector Division at the Department of
Finance, testified that Canada’s Anti-Money Laundering/Anti-Terrorist Financing
(AML/ATF) Initiative has been “heavily evaluated,” including by international
organizations.1 These reviews have attempted to measure the effectiveness
of Canada’s anti-TF efforts and have not been restricted to reviewing only the
propriety of governmental actions with respect to TF. This chapter examines the
reviews completed to date.
4.1 Domestic Reviews
4.1.1 Auditor General of Canada
In a November 2004 report, the Auditor General reviewed the implementation
of the National Initiative to Combat Money Laundering in relation to both
money laundering and TF. Since work on TF was still in its early stages at that
time, the report focused mainly on money laundering. As was typical with that
type of review, it was a value-for-money audit.2 It sought to determine whether
the management framework for implementing the Initiative was “…designed
appropriately to promote the detection and deterrence of money laundering
and terrorist financing and [provided] accountability to Parliament for results
achieved.”3
The audit focused primarily on the operations4 of tlhe Financial Transactions and
Reports Analysis Centre of Canada (FINTRAC), but also described the work of other
agencies and their interactions with FINTRAC. The Auditor General concluded
that “…Canada now has a comprehensive strategy against money laundering
and terrorist financing that is generally consistent with international standards.”5
The report recognized that, since the anti-money laundering program was then
1
2
3
4
5
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6764. Mark Potter, Assistant Director for
Government Relationships at FINTRAC, made similar remarks: see Testimony of Mark Potter, vol. 56,
October 2, 2007, pp. 6979-6980.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6766; Exhibit P-227, Tab 3: Department
of Finance Memorandum of Evidence on Terrorist Financing, February 28, 2007, para. 5.5 [Department
of Finance Memorandum of Evidence on Terrorist Financing].
Report of the Auditor General of Canada to the House of Commons, November 2004, Chapter 2:
“Implementation of the National Initiative to Combat Money Laundering,” para. 2.14, online: Office
of the Auditor General of Canada <http://www.oag-bvg.gc.ca/internet/docs/20041102ce.pdf>
(accessed January 16, 2009) [2004 Auditor General Report on Money Laundering].
2004 Auditor General Report on Money Laundering, para. 2.15.
2004 Auditor General Report on Money Laundering, paras. 2.1, 2.18.
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relatively new, many problems could reflect “inevitable growing pains.”6 It also
mentioned that it takes time to establish effective networks for cooperation and
to build trust.7 The report nevertheless identified several deficiencies:
• Disclosures by FINTRAC did not contain enough information to be
useful to law enforcement and security intelligence;8
• There were frictions at the operating level: notably, the reluctance
of law enforcement to share information with FINTRAC, law
enforcement’s hesitancy to give weight to FINTRAC’s unsolicited
disclosures, connectivity problems between the information
technology systems of FINTRAC and the Canada Border Services
Agency (CBSA), and the burden on reporting entities;9
• There were difficulties in assessing the impact of FINTRAC’s
disclosures as no prosecutions had yet been initiated as a result of
FINTRAC information. Furthermore, follow-up on the disclosures
by FINTRAC to receiving agencies was lacking; 10
• There was no management framework to “…direct complementary
actions in separate agencies” and it was said that “…more effective
mechanisms and leadership are needed for co-ordinating efforts
both within the federal government and among all stakeholders.”
The report noted that, at the federal level, the interdepartmental
working group chaired by Finance Canada lacked the “…scope and
mandate for effective support of a co-ordinated campaign against
money laundering and terrorist financing.”11 Furthermore, “…[t]he
Initiative would also benefit from mechanisms that would bring
in provincial and private sector stakeholders;”12
• Feedback from FINTRAC to the reporting entities was limited;13 and
Limited information was available about the effectiveness of
the Initiative. This could be partly because FINTRAC was then
still a fairly young agency.14 The Initiative was also in its early
stages. Accountability mechanisms were not yet all in place.15
The report went on to state that “…[i]t is not possible to assess
the Initiative’s effectiveness without information on the impact
that FINTRAC disclosures have had on the investigation and
prosecution of money-laundering and terrorist-financing
offences. All partners in the Initiative thus have a shared interest
in co-operating to establish mechanisms for tracking the use of
6
7
8
9
10
11
12
13
14
15
2004 Auditor General Report on Money Laundering, para. 2.26.
2004 Auditor General Report on Money Laundering, para. 2.26.
2004 Auditor General Report on Money Laundering, paras. 2.38-2.46, 2.94.
2004 Auditor General Report on Money Laundering, para. 2.25.
2004 Auditor General Report on Money Laundering, para. 2.22.
2004 Auditor General Report on Money Laundering, para. 2.27.
2004 Auditor General Report on Money Laundering, para. 2.28.
2004 Auditor General Report on Money Laundering, para. 2.56.
2004 Auditor General Report on Money Laundering, para. 2.88.
2004 Auditor General Report on Money Laundering, para. 2.93.
�Chapter IV: External Reviews of Canada’s Anti-TF Program
FINTRAC disclosures and measuring their effects, to the extent
that is possible. For accountability purposes, summary information
on these results needs to be reported to Parliament regularly.”16
The Auditor General made the following recommendations:
• The government should establish an effective management
framework to provide direction and to co-ordinate antimoney laundering efforts at the federal level. It should consider
establishing an anti-money laundering advisory committee
with representatives from government, industry and law
enforcement to discuss issues of common interest regularly and
to develop approaches for dealing with emerging issues;17
• In cooperation with law enforcement and security agencies,
FINTRAC should establish a set of written criteria to guide
its analysts and its Disclosure Committee in determining which
transactions should be disclosed to designated recipients;18
• The government should carry out a review to identify changes that
would improve the value of FINTRAC disclosures and the means to
bring about those changes;19
• FINTRAC should establish target turnaround times for voluntary
information reports (VIRs) which it receives from law enforcement
and security agencies, and should make those targets public;20
• In consultation with the Canada Revenue Agency (CRA), FINTRAC
should establish criteria for disclosure to the CRA of cases involving
possible tax evasion and should refer cases to the CRA that meet
the criteria;21 and
• The government should establish effective mechanisms to
monitor the results of disclosures, including the extent to
which disclosures are used and the impact they have on the
investigation and prosecution of money laundering and TF
offences. It should regularly provide summary information on these
results to Parliament.22
16
17
18
19
20
21
22
2004 Auditor General Report on Money Laundering, para. 2.91.
2004 Auditor General Report on Money Laundering, para. 2.29.
2004 Auditor General Report on Money Laundering, para. 2.37. FINTRAC mentioned that it had
developed “indicators” with the assistance of the FATF and the Egmont Group, but stated that “…
the analysis and disclosure processes will continue to rely heavily on judgment, as
each suspected case of money laundering, terrorist activity financing, or
threat to the security of Canada must be assessed on its own merit.”
2004 Auditor General Report on Money Laundering, para. 2.46.
2004 Auditor General Report on Money Laundering, para. 2.54.
2004 Auditor General Report on Money Laundering, para. 2.67.
2004 Auditor General Report on Money Laundering, para. 2.92.
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4.1.2 EKOS Research Associates Evaluation
Also in 2004, EKOS Research Associates published an evaluation of Canada’s
AML/ATF Initiative.23 The Treasury Board of Canada had requested the evaluation.
Diane Lafleur of the Department of Finance described the evaluation as
follows:
The Treasury Board evaluation was to assess whether the
initiative was broadly in line with Canada’s overall stated
objectives in international commitments and whether
the initiative was actually going in the right direction and
continued funding for the initiative was contingent on the
successful completion of that evaluation.24
In 2002, EKOS had performed an interim evaluation only about money
laundering matters. The November 2004 EKOS review was directed at both
money laundering and TF.
Among other conclusions, the 2004 report found that:
• “…[t]he Initiative [was] well aligned with the federal government’s
concern with fighting organized crime and maintaining public
security;”25
• the Initiative was effective;26
• the Initiative compared well internationally;27 and
• “…[t]he relationship between the Initiative’s activities (as a whole)
and expected outcomes was logical and appropriate.”28
The EKOS report made several additional observations:
• At that time, it would be difficult to measure the contribution of the
Initiative, particularly since it had then been fully operational for
less than two years;29
• In many cases, the impact on prosecutions would not be realized for
a number of years;30
23
24
25
26
27
28
29
30
EKOS Research Associates Inc., Year Five Evaluation of the National Initiatives to Combat Money
Laundering and Interim Evaluation of Measures to Combat Terrorist Financing (November 30, 2004),
online: Department of Finance <http://www.fin.gc.ca/activty/pubs/nicml-incba_e.pdf> (accessed
January 16, 2009) [EKOS Report on Money Laundering and Terrorist Financing].
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6766.
EKOS Report on Money Laundering and Terrorist Financing, p. 20.
EKOS Report on Money Laundering and Terrorist Financing, p. 55.
EKOS Report on Money Laundering and Terrorist Financing, p. 55.
EKOS Report on Money Laundering and Terrorist Financing, p. 21.
EKOS Report on Money Laundering and Terrorist Financing, p. 42.
EKOS Report on Money Laundering and Terrorist Financing, p. 52.
�Chapter IV: External Reviews of Canada’s Anti-TF Program
• The Initiative had “…contributed to investigations, seizures and
prosecutions as intended;”31 and
• ”[T]he evidence indicates that the Initiative’s measures are having
some impact.”32
The Department of Finance Memorandum of Evidence on Terrorist Financing
noted that “…[m]any of the conclusions of [the EKOS] report echoed the findings
of the Auditor General report.”33
The EKOS report made the following recommendations to the Government of
Canada:
• Continue to conduct consultations with representatives
of the financial services sector, including organizations
at the national and other jurisdictional levels, to help
representatives see the value of their contributions. Before
implementing any future changes to regulations or
compliance activities, ensure that timely input is obtained from
these organizations and that the potential for compliance fatigue in
the financial services sector is taken into account.34
• At a minimum, consider maintaining current funding allocations to
the Initiative’s partners. In addition, consider responding
over the short term to certain funding pressures, including: (i)
funding needed to finance IT renewal needs at FINTRAC; (ii)
funding increases identified by the CBSA to expand the CBCR
[Cross-Border Currency Reporting] Teams and Currency Detector
Dog Teams; to collect, develop, and to coordinate the
dissemination of tactical and operation intelligence (CBSA
Intelligence) and to deal with the high volume of appeals
of currency seizures (CBSA Adjudication); (iii) increased
funding identified by the RCMP to enhance its capacity
for investigation of money laundering and terrorist financing
intelligence, leads and tips provided by all sources; capacity to
analyse and measure the impact of intelligence received; and
delivery of educational programs for the private sector; and (iv)
future funding pressures associated with the planning and conduct
of the next full evaluation of the Initiative.35
• Assess the feasibility of increasing the amount of information that
may be included in FINTRAC disclosures in order to improve their
value to recipients.36
31
32
33
34
35
36
EKOS Report on Money Laundering and Terrorist Financing, p. 46.
EKOS Report on Money Laundering and Terrorist Financing, p. 50.
Department of Finance Memorandum of Evidence on Terrorist Financing, para. 5.6.
EKOS Report on Money Laundering and Terrorist Financing, p. 35.
EKOS Report on Money Laundering and Terrorist Financing, pp. 41-42.
EKOS Report on Money Laundering and Terrorist Financing, p. 44.
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• Devote efforts to assessing the capacity of the existing evaluation
model in demonstrating the outcomes and cost effectiveness of the
Initiative. Efforts needed to occur at several levels:
a. The existing logic model had not been revisited since its
development several years earlier. As logic models are
not intended to be static, it should be revisited and
updated to accurately reflect activities and intended
outcomes of the Initiative;
b. The evaluation framework for the Initiative would need to
be updated to establish clear expectations around how
to measure the future success of the Initiative;
c. There was a need for special studies to identify appropriate
measurement tools and models to further
assess current difficulties in determining outcomes, or at
least to understand the degree to which such tools and
models could best be used; and
d. A continued focus on performance measurement was
needed across partners to ensure ongoing
data collection tied to the revised evaluation
framework.37
• Since the evaluation occurred when the measures had been
implemented for only a short time, and given the measurement
difficulties, a full evaluation of the Initiative should be conducted
again before 2009.38
• Canada should maintain its current strong level of commitment
to combat money laundering and terrorist financing through the
continued active support of the Initiative.39
4.1.3 Senate Review of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act
Section 72(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing
Act40 (PCMLTFA) requires a review of the administration and operation of the Act
every five years. In October 2006, the Standing Senate Committee on Banking,
Trade and Commerce published its interim report on the review of the PCMLTFA:
37
38
39
40
EKOS Report on Money Laundering and Terrorist Financing, p. 55.
EKOS Report on Money Laundering and Terrorist Financing, p. 55.
EKOS Report on Money Laundering and Terrorist Financing, p. 56.
S.C. 2007, c. 17.
�Chapter IV: External Reviews of Canada’s Anti-TF Program
Stemming the Flow of Illicit Money: A Priority for Canada.41 The interim report
recommended that:
1.
2.
3.
4.
5.
6.
7.
41
42
43
44
45
46
47
48
the federal government develop a registration system for money
services businesses;42
the federal government amend the PCMLTFA to require dealers in
precious metals, stones and jewellery to report suspicious cash
transactions above $10,000 to FINTRAC. The Act’s customer duediligence and record-keeping requirements should also apply to
these dealers when they are involved in cash transactions exceeding
$10,000;43
the federal government, within the context of the PCMLTFA, ensure
that customer-identification requirements as they relate to non-faceto-face transactions are appropriate to the risks associated with these
transactions. To the extent practicable, these requirements should be
consistent with the practices used by other industrialized countries
regarding similar transactions;44
the federal government, in considering amendments to the PCMLTFA,
employ a risk-based approach in determining the level of clientidentification, record-keeping and reporting requirements for entities
and individuals that are required to report under the Act;45
the federal government complete its negotiations with the Federation
of Law Societies regarding the client-identification, record-keeping
and reporting requirements imposed on solicitors under the PCMLTFA.
These requirements should respect solicitor-client privilege, the
Canadian Charter of Rights and Freedoms and the Quebec Charter of
Human Rights and Freedoms;46
the federal government amend the PCMLTFA to permit FINTRAC to
disclose to law enforcement and intelligence agencies its rationale
for disclosing information, as well as additional publicly available
information;47
the federal government meet with representatives from FINTRAC,
law enforcement and intelligence agencies, and the entities and
individuals required to report under the PCMLTFA, to develop an
information-sharing protocol with respect to how reports and
disclosures under the Act might be modified to be more useful;48
Online: Parliament of Canada <http://www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/bank-e/
rep-e/rep09oct06-e.pdf> (accessed January 16, 2009) [Senate Review of the PCMLTFA]. Hearings were
held in May and June 2006: Senate Review of the PCMLTFA, p. 1.
Senate Review of the PCMLTFA, p. 10.
Senate Review of the PCMLTFA, p. 10.
Senate Review of the PCMLTFA, p. 11.
Senate Review of the PCMLTFA, p. 12.
Senate Review of the PCMLTFA, p. 14.
Senate Review of the PCMLTFA, p. 16.
Senate Review of the PCMLTFA, p. 16.
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8.
9.
10.
11.
12.
13.
14.
49
50
51
52
53
54
55
the federal government, following the development of very
clear guidelines about the identification of suspicious attempted
transactions and, after thorough consideration of the international
experience with the identification and reporting of such transactions,
amend the PCMLTFA to require the reporting of suspicious attempted
transactions;49
the federal government meet with FINTRAC, the RCMP and other
relevant stakeholders in an effort to determine the likelihood, nature
and extent of money laundering and terrorist activity financing using
such emerging methods of financial services delivery as white label
ATMs and internet banking. Appropriate legislative and other actions
should be taken once the likelihood, nature and extent of these
activities is determined;50
the federal government examine the extent to which the objective
reporting threshold of $10,000 contained in the PCMLTFA is
appropriate for Canada and consistent with other countries. Should
the threshold be found to be inappropriate, the Act should be
amended to establish an appropriate objective reporting threshold;51
the federal government ensure that FINTRAC is adequately funded to
fulfill its responsibilities under the PCMLTFA. As well, the government
should examine the role, if any, that the Office of the Superintendent
of Financial Institutions could play in providing FINTRAC with
information that would assist it in meeting its compliance obligations
under the Act;52
the federal government collaborate with the Office of the Privacy
Commissioner in the development of legislation to amend the
PCMLTFA, with a view to ensuring that the proposed amendments
meet domestic and international requirements without unduly
compromising the privacy of Canadians;53
the federal government amend the PCMLTFA to permit FINTRAC to
provide information to foreign financial intelligence units only in
countries which have privacy legislation consistent with Canada’s
Privacy Act;54
the federal government amend the PCMLTFA to require periodic
review of the operations of FINTRAC, with an annual report to
Parliament. This review should be undertaken by the Security
Intelligence Review Committee (SIRC), which should receive adequate
resources to enable it to fulfill this broader mandate;55
Senate Review of the PCMLTFA, p. 17.
Senate Review of the PCMLTFA, p. 18.
Senate Review of the PCMLTFA, p. 19.
Senate Review of the PCMLTFA, p. 20.
Senate Review of the PCMLTFA, p. 21.
Senate Review of the PCMLTFA, p. 22.
Senate Review of the PCMLTFA, p. 22.
�Chapter IV: External Reviews of Canada’s Anti-TF Program
15. the RCMP make publicly available its rules and regulations regarding
information retention and disposal. The rationale underlying the
periods of time articulated in any rules and regulations that do not
reflect legislated obligations should be justified to the Minister of
Public Safety;56 and that
16. the federal government provide the Royal Canadian Mounted Police
with the additional resources needed to pursue investigation of
the money laundering and terrorist activity financing cases that it
believes are necessary to protect Canadians.57
4.1.4 House of Commons Review of the Anti-terrorism Act
Section 145 of the Anti-terrorism Act58 (ATA) required a comprehensive review of
its provisions and operation within three years of Royal Assent.59
In March 2007, the House of Commons Standing Committee on Public Safety
and National Security60 published its final report on the review of the ATA: Rights,
Limits, Security: A Comprehensive Review of the Anti-terrorism Act and Related
Issues.61 The report also examined issues relating to all legislation amended
or created by the ATA, including TF matters covered by the PCMLTFA and the
Charities Registration (Security Information) Act62 (CRSIA). However, TF was not
the main issue discussed in that report. Money laundering issues were not
considered.
• On topics related to TF, the Commons Committee review
recommended that:
56
57
58
59
60
61
62
Senate Review of the PCMLTFA, p. 23.
Senate Review of the PCMLTFA, p. 24.
S.C. 2001, c. 41.
In this case, both chose to conduct a review. The House of Commons recommended that the Antiterrorist Act be amended so that another review would be conducted in 2010-11: House of Commons
Canada, Final Report of the Standing Committee on Public Safety and National Security, Subcommittee
on the Review of the Anti-terrorism Act, Rights, Limits, Security: A Comprehensive Review of the Antiterrorism Act and Related Issues, March 2007, p. 84, online: Parliament of Canada <http://www2.
parl.gc.ca/content/hoc/Committee/391/SECU/Reports/RP2798914/sterrp07/sterrp07-e.pdf> (accessed
May 25, 2009) [House of Commons Report on the ATA].
Subcommittee on the Review of the Anti-terrorism Act.
House of Commons Report on the ATA.
S.C. 2001, c. 41, s. 113.
175
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• [16]63 section 83.1 of the Criminal Code be amended to exempt legal
counsel or law firms when they are providing legal services and not
acting as financial intermediaries;64
• [17] section 83.08 of the Criminal Code be amended to allow for a
due diligence defence;65
• [18-22] several inconsistencies in the wording of the Criminal Code
be fixed;66
• [23] consideration be given to further integrating the terrorist
entity listing regimes established under the Criminal Code,
the Regulations Implementing the United Nations Resolution
on the Suppression of Terrorism, and the United Nations
Al Qaida and Taliban Regulations insofar as the departmental
administration, applicable test for inclusion, and legal
consequences of listing are concerned;67
• [24] section 83.05 of the Criminal Code be amended so that, when
a listed entity wishes to have an initial decision to list reviewed, it
is not required to make an application to the Minister of Public
Safety, but may instead apply directly to a court;68
• [25] section 83.05 of the Criminal Code be amended so that, when
a listed entity applies to no longer be a listed entity in accordance
with subsections (2) or (8), the Minister of Public Safety and
Emergency Preparedness must make a recommendation within
60 days, failing which he or she is deemed to have recommended
that the applicant be removed from the list. Furthermore,
any recommendation or deemed recommendation on the part
of the Minister should expressly be referred to the Governor
in Council, which is to make a final decision within 120 days of
the entity’s application, failing which the entity is deemed to be
removed from the list;69 and
63
64
65
66
67
68
69
The numbers in the square brackets are the recommendation numbers.
House of Commons Report on the ATA, p. 24. [This is not the same requirement as the requirement
in the PCMLTFA to report suspicious transactions, which is dealt with in a separate section as “the
legal profession issue.” In the case of the PCMLTFA, lawyers would be required to
report suspicious transactions. With regard to what is mentioned here in the House of Commons
report, there is already a requirement in the Criminal Code that “…every person” shall disclose the
existence of property in their possession or control that they know is owned or controlled by or on
behalf of a terrorist group. This includes lawyers and the House Review proposes to change that. The
Senate Review of the ATA, on the other hand, disagreed, stating that “The Committee has concluded
that no special exemptions need to be created for lawyers when providing legal services to or
representing those accused of terrorist offences. Solicitor-client privilege does not appear to be placed
in jeopardy by section 83.1 of the Criminal Code, and the Crown would be required to prove subjective
intent, on the part a lawyer, before he or she could be convicted under sections 83.03 or 83.18.”: at p.
56.]
House of Commons Report on the ATA, p. 24.
House of Commons Report on the ATA, pp. 25-26.
House of Commons Report on the ATA, p. 29.
House of Commons Report on the ATA, p. 30.
House of Commons Report on the ATA, pp. 31-32.
�Chapter IV: External Reviews of Canada’s Anti-TF Program
• [26] section 83.05 of the Criminal Code be amended so that, during
each two-year review of the list of entities under subsection
(9), it be made clear that the Governor in Council has the final
decision as to whether or not an entity should remain a listed
entity. Furthermore, the decision should be made within 120
days of the commencement of the review, failing which the entity is
deemed to be removed from the list.70
The Commons committee also made recommendations relating to the CRSIA.
These are discussed in Chapter VI.
The 2007 Commons Committee report asked the government to table a
comprehensive response,71 which it did in July 2007.72
4.1.5 Senate Review of the Anti-terrorism Act
In February 2007, the Special Senate Committee on the Anti-terrorism Act
published its report, Fundamental Justice in Extraordinary Times: Main Report of the
Special Senate Committee on the Anti-terrorism Act.73 That report examined issues
relating to all legislation amended or created by the ATA, including TF matters
related to the application of the PCMLTFA and the CRSIA. However, TF matters
were not the main issue reviewed. The Commons Committee report described
above and the Senate Committee report arrived at opposite conclusions on
some issues, especially due diligence matters and the listing process.
The Senate Committee recommended that:
• [2] the government legislate a single definition of terrorism;74
•
[10] the government provide written justification for listing
each terrorist entity under its three listing regimes;75
• [11] the Department of Justice be required to review, and provide
an independent evaluation of, the information that security and
intelligence agencies provide to the Minister of Public Safety before
he or she recommends to Cabinet the addition, retention or
removal of a terrorist entity from a list of such entities;76
• [25] the government put information-sharing arrangements in
relation to national security investigations in writing; ensure that
Canadian law enforcement and security agencies attach written
caveats regarding the use of shared information; require Canadian
70
71
72
73
74
75
76
House of Commons Report on the ATA, p. 32.
House of Commons Report on the ATA, p. 113.
The government’s response is examined in section 5.3.
Online: Parliament of Canada: <http://www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/anti-e/
rep-e/rep02feb07-e.pdf> (accessed January 16, 2009) [Senate Report on the ATA].
Senate Report on the ATA, p. 17.
Senate Report on the ATA, p. 46. But only when the listing differs from the UN list.
Senate Report on the ATA, p. 49.
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agencies to make formal complaints to foreign agencies
regarding the misuse of shared information; and produce annual
reports assessing the human rights records of various countries;77
• [38] the government implement more effective oversight of the
RCMP, akin to the level and nature of oversight that SIRC performs
in relation to CSIS, particularly in terms of access to information and
the capacity to audit day-to-day national security functions;78
and that
• [39] a standing committee of the Senate, with dedicated staff and
resources, be established to monitor, examine and periodically
report on matters relating to Canada’s anti-terrorism legislation and
national security framework.79
No recommendations were made about TF. The Committee saw the need for
a special advocate in charitable status cases under the CRSIA.80 As well, the
Committee concluded that a “due diligence” defence was not necessary to
protect individuals who donated to charities or transferred money by way of
the informal value transfer system known as “hawala.”81
4.1.6 Commission of Inquiry Concerning Maher Arar
The Commission of Inquiry into the Actions of Canadian Officials in Relation
to Maher Arar (“O’Connor Commission”), in its policy report, A New Review
Mechanism for the RCMP’s National Security Activities,82 explored not only RCMP
activities in national security matters, but also those of other parties, such as
CSIS, the Integrated Threat Assessment Centre (ITAC), CSE and the Department
of National Defence (DND). The O’Connor Commission also briefly considered
TF issues. It recommended a revised review mechanism for the RCMP and also
called for independent review of the activities of several other agencies:
There should be independent review, including complaint
investigation and self-initiated review, for the national security
activities of the Canada Border Services Agency, Citizenship
and Immigration Canada, Transport Canada, the Financial
Transactions and Reports Analysis Centre of Canada and
Foreign Affairs and International Trade Canada.83
77
78
79
80
81
82
83
Senate Report on the ATA, p. 92.
Senate Report on the ATA, p. 118.
Senate Report on the ATA, pp. 122.
Senate Report on the ATA, pp. 30-31.
Senate Report on the ATA, pp. 60-61.
(Ottawa: Public Works and Government Services Canada, 2006) [A New Review Mechanism for the
RCMP’s National Security Activities].
A New Review Mechanism for the RCMP’s National Security Activities, p. 558.
�Chapter IV: External Reviews of Canada’s Anti-TF Program
The report spoke specifically about the impact of the activities of FINTRAC:
FINTRAC’s activities have the potential to significantly affect
the lives of individuals. Much of the information it deals with
is highly confidential. To the extent that suspected threats
to national security or criminal activity are identified and
information passed on to the RCMP, CSIS or a foreign agency,
there could be further impacts on individual rights and
interests. When creating FINTRAC, the government recognized
the significant nature of these potential impacts and put in
place a number of restrictions on when, to whom and how
FINTRAC may disclose information. The sensitive nature of
the information that FINTRAC deals with has, for good reason,
resulted in an agency whose activities lack transparency.
FINTRAC works in co-operation with other national security
actors, such as the RCMP, CSIS and the CBSA. In my view,
FINTRAC is a prime candidate for independent review.84
Justice O’Connor proposed that SIRC be put in charge of the review mechanism
for FINTRAC.85 He also recommended that SIRC’s powers be enhanced86 and that
all review mechanisms be able to provide for the “…exchange of information,
referral of investigations, conduct of joint investigations and coordination
in the preparation of reports.”87 The focus of that recommendation was on an
independent review mechanism to examine the propriety of FINTRAC’s actions
with respect to values such as lawful protections for privacy rather than on its
efficacy in terms of contributing to counterterrorism.
4.1.7 2004 SIRC Review of CSIS Terrorist Financing Program
The activities of CSIS are subject to review by the Security Intelligence Review
Committee (SIRC) and the Inspector General of CSIS. The SIRC mandate is
focused on a review of past operations and does not involve current matters.
Reviews of past activities are designed to help Parliament determine if CSIS has
complied with the law and whether its activities involved any unreasonable or
unnecessary exercise of its powers.88 The Canadian Security Intelligence Service
Act89 (CSIS Act) gives SIRC broad access to CSIS information.90
84
85
86
87
88
89
90
A New Review Mechanism for the RCMP’s National Security Activities, pp. 567-568. Commissioner
O’Connor makes additional comments at pp. 569-573 as to why he recommended independent review
for FINTRAC and other agencies.
A New Review Mechanism for the RCMP’s National Security Activities, p. 573.
A New Review Mechanism for the RCMP’s National Security Activities, p. 578.
A New Review Mechanism for the RCMP’s National Security Activities, pp. 580-590.
Online: Security Intelligence Review Committee <http://www.sirc-csars.gc.ca/rvwetd/index-eng.html>
(accessed April 21, 2009).
R.S.C 1985, c. C-23.
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, s. 39.
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In 2004, SIRC conducted a study of the investigation of TF in Canada by CSIS.91
The conclusion to the study stated that, “…[i]n our review of [a CSIS] terrorist
financing investigation, we found that the Service had reasonable grounds to
suspect that the activities of targeted individuals and groups posed a threat to
the security of Canada.”92
4.2 International Reviews
According to the EKOS report mentioned above, monitoring the implementation
of the AML/ATF Initiative overall is partly done through FATF self- and mutual
assessments.93 Many government officials who testified before the Commission,
especially those from the Department of Finance, saw preparation for the 2008
FATF Mutual Evaluation as an important part of their international activities
regarding TF. They had no doubt about the importance of the FATF review in
providing oversight of Canada’s anti-TF program.
4.2.1 The 2008 FATF Mutual Evaluation of Canada
4.2.1.1 Setting
In February 2008, the FATF published its Third Mutual Evaluation on Anti-Money
Laundering and Combating the Financing of Terrorism of Canada.94 This evaluation
was a review by peers – other member countries of the FATF – to which Canada
and all member countries are subject as a condition of joining the FATF.95
This evaluation was the third for Canada since joining the FATF, but the first to
deal with the FATF’s revised 2003 anti-money laundering recommendations
and the Nine Special Recommendations on Terrorist Financing.96 The evaluation
itself was conducted mostly during 2007, starting with a questionnaire.97 An onsite visit to Canada by FATF officials took place in March 2007.98 The assessment
team consisted of individuals with competence in areas such as finance, law
enforcement and law,99 and involved FATF secretariat staff and volunteers from
member countries.100 The assessment team met with many Government of
Canada officials responsible for implementing the FATF recommendations, as
91
Exhibit P-232, Tab 2: Security Intelligence Review Committee, Review of the CSIS Investigation of
Terrorist Financing Activities in Canada (SIRC Study 2004-10), August 5, 2005 [SIRC Study 2004-10].
92 SIRC Study 2004-10, p. 23.
93 EKOS Report on Money Laundering and Terrorist Financing, p. 36.
94 The summary was made public on February 29, 2008, and the complete document was made available
a few weeks later. The summary is available onlinalso available online: Financial Action Task Force
<http://www.fatf-gafi.org/dataoecd/5/3/40323928.pdf> (accessed January 16, 2009) [2008 FATF
Mutual Evaluation of Canada].
95 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6779.
96 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6779.
97 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6779.
98 2008 FATF Mutual Evaluation of Canada, para. 1.
99 2008 FATF Mutual Evaluation of Canada, para. 2.
100 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6780.
�Chapter IV: External Reviews of Canada’s Anti-TF Program
well as with representatives from the provinces and private sector bodies.101 A
first draft of the evaluation report was prepared and submitted to Canada for
comment, leading to further discussions between the FATF and Canada.102
A few weeks prior to the FATF plenary session where evaluations are adopted,
they are circulated among FATF member countries.103 There can be discussions
about the evaluation before its adoption at the plenary session.104
The 2008 FATF Mutual Evaluation of Canada summarized the AML/ATF measures
adopted by Canada.105 More significantly, it provided an assessment of Canada’s
compliance with the FATF “40 + 9 Recommendations” aimed at money laundering
and TF. The report was lengthy and highly technical. It provided a detailed
assessment of Canada’s level of compliance with all FATF recommendations.
4.2.1.2 Results
The 2008 FATF Mutual Evaluation was critical of Canada’s AML/ATF Initiative and
of Canada’s implementation of the FATF Recommendations.106 The executive
summary stated that, “…[w]ith regard to legal measures (money laundering and
TF offences, confiscation, freezing mechanisms), the legal framework is generally
in line with the FATF standards; however further steps could be taken to enhance
effective implementation.”107 The Evaluation was more severe in the ratings it
gave to Canada’s performance in meeting each FATF recommendation.
The FATF rates compliance using the following ratings: Compliant (C), Largely
Compliant (LC), Partially Compliant (PC) and Non-Compliant (NC). While the FATF
explains in detail the reason underlying the ratings for each recommendation,108
the difference between the ratings can be small. Canadian officials stated that
there is not much difference between the two passing ratings (C and LC), but
there is between the two failing grades (PC and NC).109
In total, the 2008 FATF Mutual Evaluation gave Canada seven Compliant Ratings,110
twenty-three Largely Compliant Ratings,111 eight Partially Compliant Ratings112
101
102
103
104
105
106
107
108
109
110
111
112
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6780.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6780.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6780-6781.
Testimony Diane Lafleur, vol. 54, September 28, 2007, p. 6781.
2008 FATF Mutual Evaluation of Canada, para. 3.
For Canada’s response, see section 5.4.
2008 FATF Mutual Evaluation of Canada, para. 5.
See Table 1 of the 2008 FATF Mutual Evaluation of Canada for a summary of the ratings. They are also
scattered throughout the document with their respective explanations.
Exhibit P-443: Summary of Meeting between Commission Counsel and Department of Finance, April
10, 2008, p. 1.
Of the 7 Compliant ratings, 6 related to the 40 Recommendations and 1 to the 9 Special
Recommendations.
Of the 23 Largely Compliant ratings, 17 related to the 40 Recommendations and 6 to the 9 Special
Recommendations.
All related to the 40 Recommendations.
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and eleven Non-Compliant Ratings.113 Although the FATF “40 Recommendations”
are generally considered to be directed at money laundering, they can also be
considered to apply to TF. As such, the 40 Recommendations are included in the
TF assessment process, in addition to the 9 Special Recommendations which
deal specifically with TF.
The rating for compliance with Recommendation 26 was of particular interest
because the recommendation related to the importance and role of FIUs – in
Canada’s case, FINTRAC. In the 2008 FATF Mutual Evaluation, FINTRAC received
a rating of PC (Partially Compliant).114 The FATF explained this rating as follows:
1. FINTRAC has insufficient access to intelligence information from
administrative and other authorities (especially from CRA, CSIS and
Customs);
2. FINTRAC is not allowed by the PCMLTFA to gather additional financial
information from reporting entities;
3. Effectiveness:
a. The number of staff dedicated to the analysis of potential
money laundering/TF cases is low, especially in comparison
with the number of reports coming in, which may have an
impact on the number of cases that FINTRAC generates;
b. Feedback from law enforcement authorities outlines the
relatively limited added value of FINTRAC disclosures
in law enforcement investigations;
c. The timeliness of FINTRAC disclosures to law enforcement
authorities was raised as an issue at the time of the
FATF’s visit to Canada;
d. Eighty per cent of the disclosures made by FINTRAC result
from voluntary information received from law enforcement;
only 20% result from Suspicious Transaction Reports
(STRs), which raises serious concerns with respect
to the capability of FINTRAC to generate money
laundering/TF cases on the basis of STRs or other
reports it receives from the private sector; and
e. So far, very few, if any, convictions for money laundering
or TF have resulted from a FINTRAC disclosure, a fact to be
considered in any assessment of the usefulness of FINTRAC’s
intelligence in criminal investigations and prosecutions.115
113 Of the 11 Non-Compliant ratings, 9 related to the 40 Recommendations and 2 related to the 9 Special
Recommendations.
114 The FATF recently revised the rating on Recommendation 26 to “Compliant.”
115 2008 FATF Mutual Evaluation of Canada 2008, Table 1, Recommendation 26.
�Chapter IV: External Reviews of Canada’s Anti-TF Program
Canada was given an NC rating concerning FATF’s Special Recommendation
VI, about money/value transfer services, as well as concerning Special
Recommendation VII, about wire transfer rules.
The 2008 FATF Mutual Evaluation criticized Canada for its risk assessment of
financial activity sectors.116 The Evaluation stated that Canada’s approach to risk
did not reflect FATF’s approach. The FATF noted that Canada’s approach was to
cover an activity sector only if there was a proven risk of money laundering or
TF. The FATF argued that entities in any area of activity must be covered unless
there was “a proven low risk” of money laundering or TF. The FATF report also
stated that Canada did not have a consistent methodology for evaluating the
risk of TF through financial activity sectors.
4.2.2 The 1997 FATF Mutual Evaluation of Canada
The 1997 FATF Mutual Evaluation of Canada occurred before the FATF was
assigned responsibility for TF matters and before the enactment of Canada’s
provisions on TF. The 1997 Evaluation appears to have been largely responsible
for the creation of FINTRAC, since Canada did not have an FIU at the time and
was criticized on that account. FINTRAC was created in 2000 and the National
Initiative to Combat Money Laundering was set in motion.117
4.2.3 UN Counter-Terrorism Committee Reviews
UN Resolution 1373 (2001) created the United Nations Counter-Terrorism
Committee (UN CTC) and required UN member states, among other things,
to prevent and suppress TF, criminalize TF and freeze funds used to support
terrorism.118 All member states have an obligation to report on progress to
implement that resolution (as well as on implementation of Resolution 1624
(2005), dealing with prohibition of incitement to commit terrorist acts).119
The report is in the form of a questionnaire which is completed by member
countries.
Canada has provided all the required reports. The Commission examined the
2006 report. The questionnaire for that report dealt with several terrorism-related
topics, including TF. The UN CTC was interested in learning about the status of
116 2008 FATF Mutual Evaluation of Canada, paras. 630-640.
117 2004 Auditor General Report on Money Laundering, para. 2.8; EKOS Report on Money Laundering and
Terrorist Financing, p. 2.
118 See the discussion of Resolution 1373 in Chapter I.
119 The reports submitted by the various member states can be read on the United Nations Security
Council Counter-Terrorism Committee website, online: <http://www.un.org/sc/ctc/countryreports/
Creports.shtml> (accessed January 15, 2009).
183
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a registry for money services businesses (MSBs),120 and how alternative money
transfer agencies (such as hawalas) and the financial activities of charitable
organizations were being monitored.121 The questionnaire also asked about the
lack of prosecutions for terrorist activities.122
120 UN CTC Report Submitted by Canada pursuant to Security Council resolution 1373 (2001) and
resolution 1624 (2005), S/2006/185, Question 1.1: “The Committee acknowledges laws and regulations
adopted by Canada in suppressing terrorist financing in accordance with resolution 1373 (2001). The
Committee is aware that Canada has mentioned in its fourth report that it is looking at options to
establish a registration or licensing system for MSBs. The Committee would be glad to know whether
a licensing/registration system has been established. If so, please give the Committee an update as
to its functions and legal authority.”: online: United Nations Security Council Counter-Terrorism
Committee <http://daccessdds.un.org/doc/UNDOC/GEN/NO6/297/90/PDF/NO629790.
pdf?OpenElement> (accessed January 15, 2009) [UN CTC 2006 Report by Canada].
121 UN CTC 2006 Report by Canada, Question 1.2: “The Committee may wish to know how Canada
monitors alternative money transfer agencies, such as the ‘Hawala’ which do not work at all through
the banking system. How many such informal money transfer agencies do you believe exist? How do
the Canadian authorities intend to make sure that these entities would not serve for terrorist
purposes?”; Question 1.3: “The Committee is aware also that with respect to the money laundering,
Canada has put in place administrative control on the financial institutions: However, the Committee
would be grateful to have further clarification on the measures that Canada is employing in order
to monitor the financial activities of charitable organizations. How, for example, does Canada make
sure that these charitable organizations report their financial activities (donations and disbursements)?
How does Canada prevent charities from being a source for misuse of funds that could be diverted to
terrorist activities?”
122 UN CTC 2006 Report by Canada, Question 1.4: “Canada has also mentioned in its fourth report that
since September 2001, no entities or persons have been prosecuted by the Canadian authorities in
relation to terrorist activities. Could Canada please provide the Committee with an updated data
relating to persons, entities, non-profit organizations being prosecuted for terrorist activities since
September 2001?”
�VOLUME FIVE
TERRORIST FINANCING
CHAPTER V: CANADA’S RESPONSE TO REVIEWS OF ITS ANTI-TF
PROGRAM
5.1 Legislative Changes
5.1.1 Department of Finance 2005 Consultation Paper
In June 2005, the Department of Finance published a consultation paper,
Enhancing Canada’s Anti-Money Laundering and Anti-Terrorist Financing Regime,
setting out the Government of Canada’s proposals to strengthen the AML/
ATF Initiative.1 The paper had several objectives: meeting FATF obligations2
generally, preparing for the 2008 FATF Mutual Evaluation, addressing the
recommendations of both the EKOS and Auditor General’s reports of 2004,3
responding to the concerns of various stakeholders and, finally, preparing for
the parliamentary reviews to be held in 2006-07.4
The paper contained proposals on substantive matters such as customer
due diligence provisions, correspondent banking, electronic funds transfers,
reporting of suspicious attempted transactions, sharing of information between
agencies and a registration scheme for MSBs. It also proposed minor legal
changes,5 including some technical amendments.6 The paper explained the
basis for each of the proposals. For example, proposal 4.1, which recommended
expanding the information contained in FINTRAC disclosures, cited both the
Auditor General and the EKOS recommendations in support.7 Proposal 3.1
called for the creation of an MSB registration system, as required by FATF’s
1
2
3
4
5
6
7
The document can be found online: Department of Finance <http://www.fin.gc.ca/activty/pubs/
enhancing_e.pdf> (accessed January 15, 2009) [Consultation Paper on AML/ATF Regime]. In the
introductory paragraph, both ML and TF are mentioned. The Department states that “…[m]oney
laundering is not only a serious threat to the integrity of the financial system, but it funds and creates
incentives for further crime.” However, it says nothing about the risks associated with TF.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6778. The existing FATF obligations had
been somewhat modified in 2003: see Consultation Paper on AML/ATF Regime, p. 6.
For example, the EKOS report stated: “However, the FATF recommendations were revised in June
2003 and Canada will now have to amend its legislative and regulatory framework to meet these
new recommendations, particularly with respect to client due diligence and record keeping. This
indicates a continued need for action on the part of Canada in this area.”: EKOS Research Associates
Inc., Year Five Evaluation of the National Initiatives to Combat Money Laundering and Interim
Evaluation of Measures to Combat Terrorist Financing (November 30, 2004), p. 19, online: Department
of Finance <http://www.fin.gc.ca/activty/pubs/nicml-incba_e.pdf> (accessed January 16, 2009) [EKOS
Report on Money Laundering and Terrorist Financing].
Consultation Paper on AML/ATF Regime, p. 1.
Consultation Paper on AML/ATF Regime, pp. 39-49.
Consultation Paper on AML/ATF Regime, pp. 50-51.
Consultation Paper on AML/ATF Regime, p. 34.
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Special Recommendation VI.8 Many submissions were made in response to the
consultation paper.9
5.1.2 Bill C-25
On October 5, 2006, Bill C-25, An Act to amend the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act and the Income Tax Act and to make
a consequential amendment to another Act, was introduced in the House of
Commons.10 The Bill received Royal Assent on December 14, 2006. Its provisions
came into force in stages, over two years, and were all in force by December
2008. Officials told Commission counsel that Parliament adopted a staggered
approach to bringing into force various provisions in Bill C-25 because
stakeholders needed time to adapt to the changes.11
Bill C-25 was designed to implement changes to Canada’s AML/ATF Initiative
and to prepare for upcoming reviews of the Initiative, including the FATF
Mutual Evaluation.12 For example, both the Auditor General and EKOS reports
had recommended that FINTRAC be permitted to increase the detail of the
information contained in its disclosures to law enforcement and security
intelligence agencies. Bill C-25 amended sections 55(7) and 55.1(3) of the
PCMLTFA to allow FINTRAC to accomplish this.
Although the report of the Senate committee examining the PCMLTFA was
published after Bill C-25 received Royal Assent, the Bill reflected several of
the committee’s ideas. For example, the recommendation that a registration
mechanism be created for MSBs,13 the inclusion of dealers in precious metals,
stones and jewellery under the reporting requirements in the PCMLTFA14 and
the amendment of the PCMLTFA to allow FINTRAC to make fuller disclosures
to law enforcement and intelligence agencies15 – all measures eventually
recommended by the Senate committee – were included in Bill C-25.
8
9
10
11
12
13
14
15
Consultation Paper on AML/ATF Regime, p. 29.
More than 25 submissions can be found online: Department of Finance <http://www.fin.gc.ca/activty/
consult/regime_e.html> (accessed January 15, 2009). It appears that a majority of the submissions
were concerned with ML issues.
1st Sess., 39th Parl. See online: Parliament of Canada <http://www.parl.gc.ca/LEGISINFO/index.asp?
Language=E&Chamber=N&StartList=A&EndList=Z&Session=14&Type=0&Scope=I&query=4832&List=
stat> (accessed January 16, 2009).
Exhibit P-443: Summary of Meeting between Commission Counsel and Department of Finance, April
10, 2008, p. 6.
See, for example, Testimony of Diane Lafleur, vol. 54, September 28, 2007, pp. 6778-6779.
Senate of Canada, Interim Report of the Standing Senate Committee on Banking, Trade and
Commerce, Stemming the Flow of Illicit Money: A Priority for Canada, Parliamentary Review of the
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, October 2006, p. 10, online:
Parliament of Canada <http://www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/bank-e/rep-e/
rep09oct06-e.pdf> (accessed January 16, 2009) [Senate Review of the PCMLTFA].
Senate Review of the PCMLTFA, p. 10.
Senate Review of the PCMLTFA, p. 16. Sections 55(7) and 55.1(7) of the PCMLTFA now allow FINTRAC
to disclose more information, such as indicators (ss. 55(7)(n), 55.1(3)(n)), the relationships suspected by
the Centre on reasonable grounds to exist between any persons or entities referred to in paragraph (a)
and any other persons or entities (ss. 55(7)(h), 55.1(3)(h)) and other details.
�Chapter V: Canada’s Response to Reviews of its Anti-TF Program
5.2 Non-legislative Changes
The federal government responded to the Auditor General and EKOS reports
through measures other than legislation as well. For instance, the Auditor
General’s recommendation that an anti-money laundering advisory committee
be created was implemented without the need for legislative change.
The EKOS Report had recommended that a “Logic Model” for the Initiative be
revisited and updated, and that an evaluation framework be updated to “…
establish clear expectations around how the future success of the Initiative will
be measured.”16 Diane Lafleur of the Department of Finance testified that officials
had been “…working diligently in the wake of the recommendations from the
Auditor General, among others, to develop a better performance framework for
the initiative and that is ongoing work right now.”17 A document on the topic,
Evaluation Framework for the AML/ATF Regime, was prepared for the Department
of Finance at the end of 2007. It attempted to create a model to evaluate the
Initiative.
5.3 Government Response to the Anti-terrorism Act Review
The Government of Canada responded to the House of Commons report, Rights,
Limits, Security: A Comprehensive Review of the Anti-Terrorism Act and Related
Issues.18 The response was in part as follows:19
[16]20 The solicitor-client privilege should not be used to
conceal property and, accordingly, the Government rejected
Committee’s proposal to exempt the legal profession from the
requirements of section 83.1 of the Criminal Code;21
[17] The mens rea element as required by section 83.12 of the
Criminal Code was sufficient and a due diligence defence was
not necessary;22
16
17
18
19
20
21
22
EKOS Report on Money Laundering and Terrorist Financing, p. 55.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6765.
The House of Commons Canada, Final Report of the Standing Committee on Public Safety and National
Security, Subcommittee on the Review of the Anti-terrorism Act, Rights, Limits, Security: A
Comprehensive Review of the Anti-terrorism Act and Related Issues, March 2007, online: Parliament
of Canada <http://www2.parl.gc.ca/content/hoc/Committee/391/SECU/Reports/RP2798914/sterrp07/
sterrp07-e.pdf> (accessed May 25, 2009) is discussed in section 4.1.4. The request for response is found
at p. 113 of the report. The Response of the Government of Canada to the Final Report of the Standing
Committee on Public Safety and National Security, Subcommittee on the Review of the Anti-terrorism
Act, Rights, Limits, Security: A Comprehensive Review of the Anti-terrorism Act and Related Issues is found
online: Parliament of Canada <http://cmte.parl.gc.ca/Content/HOC/committee/391/secu/govresponse/
rp3066235/391_SECU_Rpt07_GR/391_SECU_Rpt07_GR-e.pdf> (accessed May 25, 2009) [Canada
Response to House of Commons Report on the ATA].
These are the responses which are most relevant to TF matters. Some technical changes, such as the
House of Commons Recommendation 32, were accepted by the government and were not reproduced
in that listing.
The numbers in the square brackets are the recommendation numbers.
Canada Response to House of Commons Report on the ATA, p. 8.
Canada Response to House of Commons Report on the ATA, p. 9.
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[23] The Government wished to maintain the current listing
system, with multiple lists, because each listing complements
the others and because several other countries, such as
Australia, the US and the UK, maintain separate listing
systems;23
[24] Enabling an entity to make a direct application for judicial
review to challenge a listing under the Criminal Code listing
process without first applying to the Minister of Public Safety
would run counter to the goal of effective and timely decisionmaking;24 and
[26] The creation of an automatic “delisting” system that would
de-list individuals or entities after a set period of time could
result in Canada failing to comply fully with its international
obligations.25
5.4 Government Response to the 2008 FATF Mutual Evaluation of
Canada
On February 29, 2008, the Minister of Finance issued a news release stating that
“…[w]hen the actions the Government has taken recently are fully implemented,
Canada will be compliant with virtually all of the FATF’s Recommendations.”26
After the FATF’s on-site visits to various Canadian agencies in the course of
conducting its evaluation, Canadian officials were shown a copy of the draft
of the FATF Mutual Evaluation for comment. A series of discussions followed
between Canadian and FATF officials, leading up to the FATF plenary meeting
in February 2008, where the Evaluation was adopted. During these discussions,
Canadian officials made their case about several of the FATF’s proposed ratings,
a common practice. Representatives from the Canadian agencies responsible
for Canada’s response to the FATF Mutual Evaluation, including law enforcement
and FINTRAC officials, attended the February plenary.
Some descriptions of the anti-TF program that Canadian stakeholders gave
to FATF during its on-site visits were outdated by the time of the FATF plenary
meeting, since legislative and other changes had been made to the Canadian
program in the interval. This was one reason for the concern of Canadian
officials about the criticisms. For example, the FATF Evaluation stated that, “…
[a]t the time of the on-site visit, the feedback provided by some organizations
that receive FINTRAC disclosures was generally negative (unsatisfactory
timelines for disclosures, relatively limited added value of FINTRAC disclosures
23
24
25
26
Canada Response to House of Commons Report on the ATA, p. 12.
Canada Response to House of Commons Report on the ATA, p. 12.
Canada Response to House of Commons Report on the ATA, p. 12.
“Canada Makes Progress in Combatting Money Laundering and Terrorist Financing” (February 29,
2008), online: Department of Finance <http://www.fin.gc.ca/news08/08-023e.html> (accessed January
15, 2009) [“Canada Makes Progress in Combatting Money Laundering and Terrorist Financing”].
�Chapter V: Canada’s Response to Reviews of its Anti-TF Program
in law enforcement investigations, FINTRAC disclosures positively contributed
to existing investigations but rarely generated new ones).”27 The FATF did not
appear to take into account the implementation of provisions from Bill C-25,
which increased the amount of information that FINTRAC must disclose to law
enforcement and security intelligence agencies.28
Table 3 of the FATF Mutual Evaluation, “Authorities’ Response to the Evaluation,”29
summarizes Canada’s response. Canada commented on each recommendation
for which Canada received a rating of Non-Compliant (NC), and on almost all
recommendations for which Canada received a Partially Compliant (PC) rating.
Canada’s response was often to cite upcoming legislative changes and their
date of coming into force and contained the following general statement:
Legislative amendments to the PCMLTFA passed in December 2006 and
associated regulations enacted in June 2007 and December 2007 will address a
substantial number of deficiencies identified in this report. Please see Annex 1
for a detailed list of legislative and regulatory amendments to Canada’s AML/CFT
regime that came into force after June 2007 and have not been considered in
this evaluation. Canada’s regulations allow a period of time between enactment
and coming into force to provide an opportunity for businesses and sectors to
modify systems.30
The Annex referred to in Canada’s response is reproduced immediately below.
27
28
29
30
Financial Action Task Force, Third Mutual Evaluation on Anti-Money Laundering and Combating the
Financing of Terrorism, Canada, February 29, 2008, para. 21, online: Financial Action Task Force <http://
www.fatf-gafi.org/dataoecd/5/3/40323928.pdf> (accessed April 1, 2009) [2008 FATF Mutual Evaluation
of Canada].
“Canada Makes Progress in Combatting Money Laundering and Terrorist Financing.”
2008 FATF Mutual Evaluation of Canada, pp. 308-310.
2008 FATF Mutual Evaluation of Canada, p. 308.
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�Chapter V: Canada’s Response to Reviews of its Anti-TF Program
As an example, the FATF gave Canada a Non-Compliant rating for its failure to
comply with Special Recommendations dealing with money services businesses
(MSBs) and wire transfers. The Annex showed that MSB registration regulations
would come into force in June 2008 (to comply with Special Recommendation
VI)31 as would regulations concerning wire transfers (to comply with Special
Recommendation VII).32
Many FATF recommendations were similar to those flowing from domestic
reviews of the anti-TF program. Several recommendations took an approach
similar to the following: “Canada should ensure that the new provisions enacted
in June 2007 are fully in line with the FATF requirements and ensure that reporting
entities implement measures that meet the FATF standards.”33 This showed the
FATF’s awareness that several deficiencies had been remedied by more recent
legislative changes.
After the plenary meeting adopted the Mutual Evaluation of Canada in February
2008, Canada requested one year to show that it was in fact complying with
many of the obligations about which it had received criticism. Since the last of
Bill C-25’s changes to the anti-TF program came into force in December 2008,
Canada will be able to state clearly the extent to which it complies in practice,
and not merely theoretically, with FATF recommendations. Even so, the NC and
PC ratings given in the 2008 Evaluation will not change since the FATF does not
have a procedure for modifying these ratings.
5.5 Conclusion
International and domestic reviews of Canada’s anti-TF program have led to
improvements in the program. These reviews have shown the government and
Canadian agencies, with the Department of Finance in the lead, to be willing
to correct deficiencies. However, the length of time required to restructure
the anti-TF program remains a significant concern. The process that led to the
introduction of Bill C-25 in October 2006 began after EKOS and the Auditor
General identified deficiencies in late 2004. In 2005, the Department of Finance
issued a consultation paper about the AML/ATF Initiative, albeit with more
emphasis on money laundering issues. Consultations with various stakeholders
occurred during 2005 and 2006. Bill C-25 received Royal Assent in December
2006. Its provisions came into force over a two-year period, with the last
provisions coming into effect in December 2008, more than four years after the
EKOS and Auditor General reports.
31
32
33
2008 FATF Mutual Evaluation of Canada, p. 309.
2008 FATF Mutual Evaluation of Canada, p. 309.
2008 FATF Mutual Evaluation of Canada, p. 302.
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�VOLUME FIVE
TERRORIST FINANCING
CHAPTER VI: THE LINKS BETWEEN THE CHARITABLE SECTOR AND
TERRORIST FINANCING
6.1 Charities and Terrorist Financing Generally
Charities and not-for-profit organizations (NPOs)1 around the world can be
misused to facilitate TF, either with or without the knowledge of those operating
or contributing to the organizations. Among the many ways that charities and
NPOs can be misused are the following:
1.
2.
3.
4.
5.
6.
7.
8.
1
2
3
4
5
6
7
8
Their apparent legitimacy allows charities and NPOs to raise funds
in many different areas of the world, especially those plagued by
conflict;2
Transferring funds to other countries may make it easier for charities
and NPOs to avoid accountability for the use of those funds;3
Charities and NPOs have a long history of important work and are
seen as vital parts of society. Organizations interested in raising funds
for terrorism can gain credibility simply by calling themselves charities
or NPOs, or by becoming registered with government authorities as
charities. This credibility helps these organizations to raise funds;4
Some charities and NPOs can reach large numbers of donors to raise
funds;
The activities of charities and NPOs are often cash-intensive, making it
difficult for authorities to track uses of the funds;5
Registered charities can issue tax receipts, thus allowing donors to
reduce the cost to themselves of giving to the charity;6
Registered charities and NPOs may receive tax benefits7 which leave
them with additional funds to support terrorism; and
Charities and NPOs may be able to launder money to hide its
intended improper uses.8
The differences in Canada between NPOs and registered charities are described below.
Financial Action Task Force, Terrorist Financing, February 29, 2008, p. 8, online: Financial Action Task
Force <http:/www.fatf-gafi.org/dataoecd/28/43/40285899.pdf> (accessed February 12, 2009) [FATF
Report on Terrorist Financing]; Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6863.
Testimony of Kenneth Dibble, vol. 59, October 9, 2007, p. 7297.
Testimony of Maurice Klein, vol. 57, October 3, 2007, p. 7121.
FATF Report on Terrorist Financing, p. 11.
At the hearings, the Commissioner expressed doubt that an individual inclined to finance terrorist
organizations would be deterred by the lack of a tax receipt: Transcripts, vol. 54, September 28, 2007, p.
6809.
Testimony of Maurice Klein, vol. 57, October 3, 2007, p. 7122.
Testimony of Nikos Passas, vol. 53, September 27, 2007, p. 6579.
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The international community is well aware of the misuse of charitable or nonprofit status for TF. When the Financial Action Task Force (FATF) expanded its
mission in 2001 to include TF, it issued a special recommendation on NPOs (Special
Recommendation VIII) as part of its “Nine Special Recommendations on Terrorist
Financing.” Special Recommendation VIII spoke of non-profit organizations
(which would include charities in the context of the recommendation) being
“particularly vulnerable” to abuse:
Countries should review the adequacy of laws and regulations
that relate to entities that can be abused for the financing of
terrorism. Non-profit organisations are particularly vulnerable,
and countries should ensure that they cannot be misused:
•
by terrorist organisations posing as legitimate
entities;
•
to exploit legitimate entities as conduits for
terrorist financing, including for the purpose of
escaping asset freezing measures; and
•
to conceal or obscure the clandestine diversion
of funds intended for legitimate purposes to
terrorist organisations.9
Some charitable organizations in Canada and elsewhere have long been
suspected of helping terrorists10 by raising and helping to move funds. However,
as with the extent of TF in general, it is difficult to determine the extent of TF
involving charities and NPOs.
Donna Walsh, Director of the Review and Analysis Division in the Charities
Directorate of the Canada Revenue Agency (CRA), testified that it was not
possible to state how many registered charities could be or are involved in TF.11
However, some rough indications were available. In its 2006 Annual Report, the
Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) reported
that a third of its disclosures of “designated information” to law enforcement
9
10
11
“9 Special Recommendations (SR) on Terrorist Financing (TF),” VIII: Non-profit organisations, online:
Financial Action Task Force <http://www.fatf-gafi.org/document/9/0,3343,en_32250379_32236920_3
4032073_1_1_1_1,00.html#VIIINonprofit> (accessed February 12, 2009) [FATF Special
Recommendation VIII: Non-profit organisations].
For example, see the discussion of fundraising in chapter 2 of Senate of Canada, Special Committee
on Security and Intelligence, “The Report of the Special Senate Committee on Security and Intelligence”
(January 1999), online: Parliament of Canada <http://www.parl.gc.ca/36/1/parlbus/commbus/senate/
com-e/secu-e/rep-e/repsecintjan99part2-e.htm#Fundraising> (accessed March 3, 2009).
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7127. Similar remarks appear in Testimony of
Kenneth Dibble, vol. 59, October 9, 2007, p. 7294. “Registered charities” are those charities that have
been granted charitable status by the CRA.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
and intelligence agencies related to a charity or NPO in some capacity.12 RCMP
Superintendent Rick Reynolds testified that “a significant number” of major TF
investigations in Canada involved a charity or NPO “…in some context…. [p]
erhaps not in fundraising but in some context…either wittingly or unwittingly
… and some of them may be very minor in nature….”13
Professor David Duff of the Faculty of Law at the University of Toronto testified
that there were a number of allegations that money from some Canadian Sikh
temples was improperly diverted during the 1990s for terrorist purposes.14
The Babbar Khalsa, which both CSIS and the RCMP believed to be centrally
implicated in the Narita and Air India bombings and terrorist acts and plots in
both Canada and India, managed to obtain charitable status in the early 1990s,
although its charitable status was revoked in 1996.15
Blake Bromley, a Canadian lawyer practising exclusively on charities issues,
testified that concern long ago about funds from Canadian charities being used
for political causes in India led that country to enact laws to restrict the flow of
funds:
…Indian legislation aimed at restricting the flow of charitable
funds to finance terrorism was passed a quarter century
before the post 9/11 global war on terrorism, and it was aimed
specifically at Canadian donors supporting the political cause
espoused by the bombers of Air India flight 182. India was
worried about donations coming from Canadian charities
to fund the political struggle in Khalistan. Nine years before
the bombing of Air India flight 182, India passed the Foreign
Contributions (Regulation) Act, 1976 to regulate the acceptance
and utilization of charitable contributions from foreign
countries.16
12
13
14
15
16
Financial Transactions and Reports Analysis Centre of Canada, FINTRAC 2006 Annual Report,
p. 19, online: Financial Transactions and Reports Analysis Centre of Canada <http://www.fintrac.gc.ca/
publications/ar/2006/AR-eng.pdf> (accessed February 12, 2009). This assessment was based on a
review of 120 disclosures of suspected terrorist activity financing and other threats to the security
of Canada. Some 32 per cent of the NPOs were found to be registered Canadian charities, 7 per cent
were Canadian NPOs not registered as charities and 61 per cent were foreign NPOs.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, pp. 6864-6865. The Royal Canadian Mounted
Police Departmental Performance Report for the period ending March 31, 2006 also stated at p. 62 that
“Furthermore, it is important to note that the majority of terrorist financing involves registered
charities”: online: Treasury Board of Canada Secretariat <http://www.tbs-sct.gc.ca/dpr-rmr/0506/RCMPGRC/rcmp-grc-eng.pdf> (accessed February 24, 2009) [2005-06 RCMP Departmental Performance
Report].
Testimony of David Duff, vol. 85, November 29, 2007, p. 10890.
Testimony of David Duff, vol. 85, November 29, 2007, p. 10890; David G. Duff, “Charities and Terrorist
Financing: A Review of Canada’s Legal Framework” in Vol. 2 of Research Studies: Terrorism Financing
Charities and Aviation Security, p. 201 [Duff Paper on Charities and Terrorist Financing].
Blake Bromley, “Funding Terrorism and Charities,” October 26, 2007, p. 3, online: Benefic Group <http://
www.beneficgroup.com/files/getPDF.php?id=120> (accessed May 12, 2009) [Bromley Paper on
Funding Terrorism and Charities].
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Charitable organizations have been identified as supporting
terrorism in some American TF prosecutions, notably those
involving the Benevolence International Fund and the Holy
Land Foundation.
The 9/11 Commission reported that, before the 9/11 attacks, Al Qaida relied
on diversions of funds from Islamic charities and on financial facilitators who
gathered money from witting and unwitting donors located primarily in the
Arabian Gulf region.17
One witness from the UK, Kenneth Dibble of the England and Wales Charity
Commission, stated that “...with over 190,000 registered charities [in the UK], the
incidence of terrorist abuse for charities is very, very low.”18
6.2 Overview of the Charitable Sector in Canada19
In Canada, the federal government encourages charitable giving by allowing
registered charities to issue income tax receipts to donors and by exempting
charities from the obligation to pay certain taxes. Because these measures reduce
government revenues, the government has an interest in ensuring that benefits
accrue only to organizations that truly qualify as charities under Canadian law.
In a paper prepared for the Commission, Professor Duff concluded that the
federal government had foregone $2 billion in revenue in 2003 because of the
tax benefits arising from donations to registered charities. He estimated that
foregone revenues could increase to about $2.5 billion in 2008.20 The federal
interest in charities also increasingly flows from another concern – that some
charities may be involved in TF.
There are about 83,000 registered charities in Canada.21 Their annual revenues
total more than $US5.5 billion.22 The 2008 Financial Action Task Force (FATF)
Mutual Evaluation of Canada reported that 95 per cent of the value of all
donations made to the non-profit organization (NPO) sector in Canada goes to
registered charities.23
17
18
19
20
21
22
23
National Commission on Terrorist Attacks Upon the United States, Monograph on Terrorist Financing,
pp. 19-21, online: National Commission on Terrorist Attacks Upon the United States <http://govinfo.
library.unt.edu/911/staff_statements> (accessed February 20, 2009).
Testimony of Kenneth Dibble, vol. 59, October 9, 2007, p. 7300.
For an in-depth review of Canada’s regime as it relates to charitable organizations, see Duff Paper on
Charities and Terrorist Financing.
Duff Paper on Charities and Terrorist Financing, pp. 206-207. Duff quotes the Department of Finance,
Tax Expenditures and Evaluations (Ottawa: Her Majesty the Queen in Right of Canada, 2006), pp. 17, 26
as the source of this information.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7099; Testimony of David Duff, vol. 85,
November 29, 2007, p. 10893.
Financial Action Task Force, Third Mutual Evaluation on Anti-Money Laundering and Combating the
Financing of Terrorism, Canada, February 29, 2008, para. 1412, online: Financial Action Task Force
<http://www.fatf-gafi.org/dataoecd/5/3/40323928.pdf> (accessed March 2, 2009) [2008 FATF Mutual
Evaluation of Canada].
2008 FATF Mutual Evaluation of Canada, para. 1412.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
Registered charities in Canada range from large, often international, groups with
Canadian operations, to smaller community charities. The majority have five or
fewer employees, receive less than $100,000 in annual revenues24 and depend
on volunteer work.25 Most charities in Canada do not carry out international
activities.
6.3 The Vulnerability of the Canadian Charitable Sector to Being
Used for Terrorist Financing
Canada has made efforts to assess the vulnerability of the charitable sector to
being used for TF.26 Bromley told the Commission that he saw “…a potential
problem with charities funding terrorism which needs to be brought out in the
open and discussed with the communities that are most vulnerable.”27 Kenneth
Dibble explained that there was a fine line between giving money to a charity
for humanitarian purposes and giving for ideological purposes. Donors may
give to a charity expecting it to alleviate poverty, only to have part of the funds
go to terrorists. Some charities, he said, may be the only aid organizations in a
particular part of the world, and terrorists themselves might benefit from the
hospitals and other services that the charities provide. Dibble spoke of the need
for clarity in the rules for charities to prevent terrorist groups from benefiting
from the funds held by charities.28
6.4 Regulating the Charitable Sector in Canada
Canada relies heavily on the federal government to monitor charities.
Historically, the provinces have done little to regulate charities despite their
clear constitutional role. Under section 92(7) of the Constitution Act, 1867,29
provinces may exclusively make laws for the establishment, maintenance and
management of charities. However, very few have done so. Even among those
that regulate charities in some way, there is no uniform approach.
Professor Duff described the constitutional situation:
[P]rovincial legislatures in Canada are granted exclusive
authority to make laws in relation to: “The Establishment,
Maintenance, and Management of … Charities, and
Eleemosynary [pertaining to charity] Institutions in and for
the Province.” In addition, provinces have exclusive jurisdiction
over “Property and Civil Rights in the Province” – allowing them
24
25
26
27
28
29
Testimony of David Duff, vol. 85, November 29, 2007, p. 10891.
Duff Paper on Charities and Terrorist Financing, p. 207.
See 2008 FATF Mutual Evaluation of Canada, paras. 1413-1414 for a brief summary of the efforts in this
regard.
Bromley Paper on Funding Terrorism and Charities, p. 24.
Testimony of Kenneth Dibble, vol. 59, October 9, 2007, pp. 7293, 7297.
(U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.
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to regulate the transfer and use of property for charitable
purposes. Federal jurisdiction over charities, on the other
hand, is limited to the incidental powers that the Parliament
of Canada derives from its taxation power. To the extent that
the [Income Tax Act] confers special tax benefits on charities
and their contributors, supervision and regulation of charities
in order to ensure that they satisfy the terms on which these
benefits are conferred constitutes a legitimate exercise
of this federal power. While provincial governments have
broad powers to regulate charities and charitable property,
therefore, federal jurisdiction to supervise and regulate
charities is limited to conferral of fiscal benefits under the ITA.30
[References to footnotes omitted]
6.4.1 The Federal Government as the De Facto Regulator
Because of constitutional limits on Parliament’s powers, the CRA’s regulatory
jurisdiction over charities is more limited than that of the provinces.31 Despite
this, the federal government over time became the de facto primary regulator
of charities.32 The CRA has regulated charities in Canada since the process for
registering as a charity was established in 1967.33 It has done this through its
taxation power,34 in recent years sometimes denying or revoking charitable
status in part due to suspicions that the organization was involved with TF.
The CRA has begun an initiative and established working groups on charityrelated matters with the provinces, but TF is not being addressed.35 One
impediment to cooperation with the provinces arises from CRA’s obligation to
comply with confidentiality provisions, primarily those in the Income Tax Act36
(ITA), that limit the disclosure of some types of information about charities.37
6.4.2 The Provincial Role in Dealing with Charities
The provinces have the exclusive right under the Constitution Act, 1867 to make
laws to establish, maintain and manage charities. Professor Duff noted that only
Ontario has enacted specific legislation:
Notwithstanding their constitutional authority to regulate
charities and charitable donations, most provinces have
either chosen not to exercise this jurisdiction, or have done
30
31
32
33
34
35
36
37
Duff Paper on Charities and Terrorist Financing, p. 203. For more on the constitutional framework, see
generally, Duff Paper on Charities and Terrorist Financing.
Duff Paper on Charities and Terrorist Financing, pp. 203-204.
Testimony of David Duff, vol. 85, November 29, 2007, p. 10894.
Testimony of David Duff, vol. 85, November 29, 2007, p. 10895; Exhibit P-236, Tab 4: Canada Revenue
Agency Presentation: “Canada’s Charities and Anti-terrorism Measures,” October 3, 2007 [CRA
Presentation on Canada’s Charities and Anti-terrorism Measures].
Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91(3).
Testimony of Terry de March, vol. 57, October 3, 2007, pp. 7160-7161.
R.S.C. 1985, c. 1 (5th Supp.).
Testimony of Terry de March, vol. 57, October 3, 2007, p. 7161.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
so only sparingly.38 Although a few provinces have enacted
legislation regarding charitable fundraising, and provincial
Attorneys-General have the right and duty to supervise
and assist charities under their parens patriae jurisdiction as
representatives of the Crown, only Ontario has enacted specific
legislation regulating the operation of charitable organizations
and the use of charitable property in the province.39
A recent Ontario government discussion paper explains the origins of Ontario’s
regulation of charities:
In Ontario the Attorney General’s powers were codified and
expanded with the enactment of the Charities Accounting Act
in 1915. In 1919 with the enactment of the Public Trustee Act,
the Charities Accounting Act was amended to give the statutory
supervisory authority to the Public Trustee, renamed the Public
Guardian and Trustee in 1995.40 [References omitted.]
However, the Ontario Public Guardian and Trustee is not a regulator of charities.
It has very little power to make decisions in this area. It has no registration listings
and does not grant charitable status.41 Still, it has authority over all charitable
property, no matter who or what entity holds the property.42
The Ontario Charities Accounting Act43 is primarily concerned with standing
and procedure rather than with substantive legal standards for the proper
administration of charitable property.44 Unlike the UK system, where a charities
commission operates as a quasi-judicial body, the Ontario model is “courtcentred.”45
The provincial Crown also has a parens patriae jurisdiction for supervising
charitable property, but that power is seldom exercised. Thus, the provincial
Crown has had a longstanding right and duty to supervise and come to the
assistance of charities.46 However, a 1996 Supreme Court decision held that
38
39
40
41
42
43
44
45
46
Duff mentions the Charitable Fund-raising Act, R.S.A. 2000, c. C-9 (Alberta), The Charities Endorsement
Act, C.C.S.M. c. C60 (Manitoba) and The Charitable Fund-raising Businesses Act, S.S. 2002, c. C-6.2
(Saskatchewan): Duff Paper on Charities and Terrorist Financing, p. 203, note 18.
Duff Paper on Charities and Terrorist Financing, p. 203.
Exhibit P-384, Tab N: Ken Goodman, “Discussion Paper: Mandate of the Public Guardian and Trustee”
(Ontario), January 2004, p. 2 [Discussion Paper on Mandate of the Ontario Public Guardian and Trustee].
Discussion Paper on Mandate of the Ontario Public Guardian and Trustee, pp. 3-4.
Discussion Paper on Mandate of the Ontario Public Guardian and Trustee, p. 4.
R.S.O. 1990, c. C.10.
Discussion Paper on Mandate of the Ontario Public Guardian and Trustee, p. 10.
Discussion Paper on Mandate of the Ontario Public Guardian and Trustee, pp. 2, 10. For a more
thorough overview of the British, American and Australian regimes relating to the regulation and
supervision of charities, see Mark Sidel, “Terrorist Financing and the Charitable Sector: Law and Policy
in the United Kingdom, the United States, and Australia” in Vol. 2 of Research Studies: Terrorism
Financing Charities and Aviation Security [Sidel Paper on Terrorist Financing and the Charitable Sector].
Discussion Paper on Mandate of the Ontario Public Guardian and Trustee, pp. 1-2.
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the parens patriae concept does not exist as such in Quebec, since the concept
emanates from the common law.47
Corporate registries (provincial or federal) also exercise very limited control
over the activities of incorporated charities. These registries do not investigate
TF issues. For the most part, they receive annual returns and related forms from
registered corporate bodies. These forms provide limited information.
6.5 Canada’s Efforts to Curb the Misuse of Registered Charities for
Terrorist Financing
6.5.1 The Charities Directorate of the Canada Revenue Agency
The CRA is the federal agency that oversees registered charities in Canada as part
of its mandate to implement Canada’s tax system. Its Charities Directorate was
created to deal with registered charities, especially regarding the benefits and
tax treatment they receive. Through the Directorate, CRA registers qualifying
organizations as charities and provides technical advice on their operation. It
also undertakes audit and compliance activities.48
The 2008 FATF Mutual Evaluation of Canada found that the compliance program
of the Charities Directorate is largely based on information from annual returns
from charities, internal analysis of trends in the charitable sector, complaints
from the public and tips from informants.49
Before 9/11, there was no counterterrorism function in the Directorate or in the
CRA as a whole.50 In 2004, the Review and Analysis Division (RAD) was created
within the Charities Directorate and charged mainly with TF issues.51 A senior
position was later added to the RAD to deal with terrorism issues – Senior
Advisor, Anti-terrorism and Charities Directorate.
The Charities Directorate has made an effort to hire staff with diverse
backgrounds, such as defence intelligence, law enforcement, security intelligence
and law, and with experience from international agencies and FINTRAC.52 Many
employees also have credentials in forensic investigation and are able to speak
other languages, including Farsi, Arabic, Spanish and Urdu.53
Maurice Klein, Senior Advisor, Anti-terrorism and Charities Directorate, testified
about the challenges inherent in identifying TF done by charities:
47
48
49
50
51
52
53
W.(V.) v. S.(D.), [1996] 2 S.C.R. 108 at para. 59.
Canada Revenue Agency, “Charities and Giving,” online: Canada Revenue Agency <http://www.cra-arc.
gc.ca/tx/chrts/menu-eng.html> (accessed March 3, 2009).
2008 FATF Mutual Evaluation of Canada, para. 1419.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7109.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7098.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7115.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7115.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
[T]he enormous amounts of money that are donated to
charities each year, combined with the fact that we have
83,000 registered charities currently operating in Canada,
make the diversion of relatively smaller amounts of funds more
difficult to detect.54
Charities in Canada can be monitored or investigated in at least three ways. First,
individuals linked with charities, or the charities themselves, can be monitored
by law enforcement and security intelligence agencies. Second, FINTRAC may
receive reports of activities relating to charities. FINTRAC, in turn, might conclude
that it must send designated information to law enforcement and security
intelligence bodies or to the CRA, which may then conduct further monitoring
or investigations. Finally, CRA might decide on its own that a registered charity
or applicant for charitable status could have ties to terrorism.
6.5.2 The Legal Regime Governing Registered Charities
The CRA, in dealing with registered charities, is guided by three statutes: the
Proceeds of Crime (Money Laundering) and Terrorist Financing Act55 (PCMLTFA),
the Charities Registration (Security Information) Act56 (CRSIA) and the ITA.57 CRA
defines its approach in fighting TF as being to “…change the risk equation”
and “…[take] away ‘enabling conditions.’”58 CRA considers that it has “…a
responsibility to mitigate and manage the risk of terrorist involvement in the
registration system.”59 A CRA briefing document explains several ways in which
the CRA can help counterterrorism efforts and limit TF:
• identifying linkages between individuals and organizations;
• identifying charities operating in countries or regions of concern
regarding terrorist activities;
• identifying “money trails”;
• countering the ability of terrorist supporters to take over existing
legitimate charities; and
• discovering predictive patterns and indicators of risk.60
In addition, the CRA’s power to deny charitable status allows it (and government
as a whole) to dissociate itself from, and denounce, charities that may be involved
in TF. Denial of charitable status amounts at least to symbolic disapproval by
54
55
56
57
58
59
60
Testimony of Maurice Klein, vol. 57, October 3, 2007, pp. 7121-7122.
S.C. 2000, c. 17.
S.C. 2001, c. 41, s. 113.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7105.
CRA Presentation on Canada’s Charities and Anti-terrorism Measures, slides 9, 20.
Exhibit P-236, Tab 9: Canada Revenue Agency, “Managing and Mitigating Risk of Terrorist Involvement,”
p. 1 [CRA Document on Managing and Mitigating Risk of Terrorist Involvement].
CRA Presentation on Canada’s Charities and Anti-terrorism Measures, slide 18.
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government and can be a signal to potential supporters of a charity to distance
themselves from it.61
6.5.2.1 Limitations on Disclosure by CRA
The CRA must obey stringent rules about the confidentiality of taxpayer
information. It can disclose information only in limited cases. These limitations
are set out in the ITA and PCMLTFA and have limited even the information
available to this Commission.62 These confidentiality rules do not, however,
limit the ability of the CRA to receive information from intelligence and law
enforcement agencies.
Some information held by CRA can be disclosed publicly, such as information
regarding applications for registered status, annual returns of charities, directors’
names, financial statements and letters revoking charitable status.63 This
information may relate to current or former registered charities and is accessible
either on the CRA’s website or, for financial information about a specific charity,
on request to CRA.64
6.5.2.2 Becoming a Registered Charity: Application and Registration
Processes
A major part of the CRA’s work to counter TF occurs during the review of
applications for registered charity status. Ms. Walsh told the Commission that the
CRA had committed additional resources to ensure “…early detection through
specialized screening and analysis.”65 She said, however, that the CRA was not
the first defence against terrorism, but that its work does help to support other
agencies such as the RCMP and CSIS.66
Section 248(1) of the ITA defines “registered charity” as follows:
(a) a charitable organization, private foundation or public
foundation, within the meanings assigned by subsection
149.1(1), that is resident in Canada and was either created or
established in Canada, or
(b) a branch, section, parish, congregation or other division of
an organization or foundation described in paragraph (a), that
is resident in Canada and was either created or established in
Canada and that receives donations on its own behalf,
61
62
63
64
65
66
See p. 166 of the Sidel Paper on Terrorist Financing and the Charitable Sector for a discussion of how
the UK Charity Commission was able to remove Abu Hamza from the Finsbury Park Mosque.
The matter was discussed before the Commission on October 3, 2007. However, CRA officials prepared
several “sanitized” cases for the Commission to help it understand CRA’s work.
CRA Presentation on Canada’s Charities and Anti-terrorism Measures, slide 8.
Testimony of Donna Walsh, vol. 57, October 3, 2007, pp. 7102-7103. Exceptions are the home addresses,
telephone numbers and dates of birth of the charity’s directors.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7114.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7187.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
that has applied to the Minister in prescribed form for registration and that is at
that time registered as a charitable organization, private foundation or public
foundation.
The Act requires that charitable organizations and charitable foundations be
exclusively charitable and that their resources be used for charitable activities
or for charitable purposes.67 Professor Duff wrote that Canadian courts have
generally sought guidance in the common law of trusts to interpret the terms
“charitable activities” and “charitable purposes.” Specifically, the purposes of the
organization must fall within one or more of the following categories, known
as the ”Pemsel“ categories (from a 19th century House of Lords case of that
name68):
• the relief of poverty;
• the advancement of education;
• the advancement of religion; or
• other purposes beneficial to the community in a way the law
regards as charitable.69
Seeking to achieve political purposes generally renders an applicant ineligible
for charitable registration. A CRA document explains this more fully:
The courts have decided that organizations seeking to achieve
political purposes, in whole or in part, cannot be recognized as
a registered charity. Political purposes include:
• furthering the aims of a political party;
• promoting a political doctrine;
• persuading the public to adopt a particular view on a broad social
question; and
• attempting to bring about or oppose changes in the law or
government policy.
Purposes that are so broad as to allow for unlimited political
activity, or organizations with unspecified political purposes,
will not qualify for charitable registration. In addition, the Act
specifically prohibits a registered charity from engaging in any
67
68
69
Duff Paper on Charities and Terrorist Financing, pp. 207-212.
Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531.
Canada Revenue Agency, “Summary Policy,” Ref. No. CSP-C01, online: Canada Revenue Agency <http://
www.cra-arc.gc.ca/tx/chrts/plcy/csp/csp-c01-eng.html> (accessed March 3, 2009). See Canada
Revenue Agency, “Registering a Charity for Income Tax Purposes,” T4063(E) Rev. 08, p. 8, online: Canada
Revenue Agency <http://www.cra-arc.gc.ca/E/pub/tg/t4063/t4063-08e.pdf> (accessed March 3, 2009)
[“Registering a Charity for Income Tax Purposes,” T4063(E) Rev. 08] for a description of each category.
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partisan political activity. A partisan political activity is one
that involves direct or indirect support of, or opposition to, any
political party or candidate for public office.70
Although the CRA document sets out this general prohibition on engaging in
political activities, it also states that organizations can engage in limited, nonpartisan, political activity in some circumstances:
Under the [Income Tax Act], a registered charity that is
established exclusively for charitable purposes can engage,
to a limited extent, in non-partisan political “activities” that
directly help accomplish the charity’s purposes.
For example, a registered charity with a charitable purpose
to provide for the welfare of children can engage in activities
that take a public position about certain legislation in the
field of child welfare, provided the activities are within [the
limits described above]. However, an organization established
solely for purposes of pressuring for a change in the legislation
affecting the welfare of children cannot be registered as a
charity.71
To be registered as a charity, an organization must also pass a public benefit
test. The organization must show that its “…activities and purposes provide a
tangible benefit to the public” and that “…those people who are eligible for
benefits are either the public as a whole, or a significant section of it, in that they
are not a restricted group or one where members share a private connection,
such as social clubs or professional associations with specific membership.”72
Applicants complete form T2050 to apply as a registered charity.73 The 14-page
form includes questions about the name of the organization and its directors,
its structure, financial information and information about its activities. Ms.
Walsh stated that, once the form is submitted, “…[e]ach application is subject
to a risk-based evaluation which takes into account the potential risk that the
organization could be used to support terrorist activities.”74
With the substantial changes introduced by Bill C-25,75 the CRA can disclose
new classes of information to other agencies. In addition, information that was
70
71
72
73
74
75
“Registering a Charity for Income Tax Purposes,” T4063(E) Rev. 08, p. 5. See also Testimony of Donna
Walsh, vol. 57, October 3, 2007, p. 7168; Duff Paper on Charities and Terrorist Financing, pp. 211-212;
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), ss. 149.1(6.1)-(6.2) [Income Tax Act].
“Registering a Charity for Income Tax Purposes,” T4063(E) Rev. 08, p. 5.
“Registering a Charity for Income Tax Purposes,” T4063(E) Rev. 08, p. 7.
A blank form was entered into evidence: see Exhibit P-236, Tab 6: Application to Register a Charity
under the Income Tax Act.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7101.
An Act to amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the
Income Tax Act and to make a consequential amendment to another Act, S.C. 2006, c. 12 [Bill C-25].
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
already shared for the administration and enforcement of the CRSIA can now
be used for investigations. Walsh testified that “…the impediments [for sharing
information with other agencies] were too high”76 before these changes:
[E]ven with the passage of the CRSIA there were still significant
restrictions upon information sharing between the CRA and
other agencies mandated to counter terrorist financing. For
one thing, there was still no legislative authority for the CRA to
give or receive information from FINTRAC or to FINTRAC. For
another, information that the CRA provided to CSIS and the
RCMP could not be used in their own investigations. Its use
was restricted to the administration and enforcement of the
CRSIA.77
Bill C-25 added a new subsection to section 241 of the ITA to accomplish
this improved flow of information. Section 241(9) allows the CRA to do the
following:
. . . provide, to an official of the Canadian Security Intelligence
Service, of the Royal Canadian Mounted Police or of the
Financial Transactions and Reports Analysis Centre of Canada,
(a) publicly accessible charity information;
(b) designated taxpayer information, if there are reasonable
grounds to suspect that the information would
be relevant to
(i) an investigation by the Canadian Security
Intelligence Service of whether the activity of any
person may constitute threats to the security of
Canada, as defined in section 2 of the Canadian
Security Intelligence Service Act,
(ii) an investigation of whether an offence may have
been committed under
(A) Part II.1 of the Criminal Code, or
(B) section 462.31 of the Criminal Code, if that
investigation is related to an offence under Part
II.1 of that Act, or
(iii) the prosecution of an offence referred to in
subparagraph (ii); and
76
77
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7165.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7110.
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(c) information setting out the reasonable grounds referred to
in paragraph (b), to the extent that any such grounds
rely on information referred to in paragraph (a) or (b).78
Only CSIS, the RCMP and FINTRAC can receive publicly accessible charity
information and designated taxpayer information.
Designated taxpayer information consists of a wider range of information than
publicly accessible charity information.79 Designated taxpayer information is
defined as taxpayer information — other than designated donor information —
of a registered charity, or of a person who has at any time made an application
for registration as a registered charity, that is:
(a) in respect of a financial transaction
(i) relating to the importation or exportation of
currency or monetary instruments by the charity or
applicant, or
(ii) in which the charity or applicant has engaged a
person to whom section 5 of the Proceeds of Crime
(Money Laundering) and Terrorist Financing Act applies,
(b) information provided to the Minister by the Canadian
Security Intelligence Service, the Royal Canadian Mounted
Police or the Financial Transactions and Reports Analysis
Centre of Canada,
(c) the name, address, date of birth and citizenship of any
current or former director, trustee or like official, or of any
agent, mandatory or employee, of the charity or applicant,
(d) information submitted by the charity or applicant in
support of an application for registration as a registered charity
that is not publicly accessible charity information,
(e) publicly available, including commercially available
databases, or
78
79
The amendment was introduced by s. 45(2) of Bill C-25.
The Income Tax Act defines “taxpayer information” in s. 241(10). It provides in s. 241(3.2) that “An official
may provide to any person the following taxpayer information relating to another person that was at
any time a registered charity (in this subsection referred to as the “charity”).” The phrases “publicly
accessible charity information” and “designated taxpayer information” are used in s. 241(9). “Publicly
accessible charity information” is defined in s. 241(10) as “taxpayer information that is (a) described in
subsection (3.2), or that would be described in that subsection if the words ‘that was at any time a
registered charity’ were read as ‘that has at any time made an application for registration as a registered
charity’, (b) information -- other than designated donor information -- submitted to the Minister with,
or required to be contained in, any public information return filed or required to be filed under
subsection 149.1(14), or (c) information prepared from information referred to in paragraph (a) or (b).”
[Emphasis added.]
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
(f ) information prepared from publicly accessible charity
information and information referred to in paragraphs
(a) to (e)....80
As a result of the Bill C-25 amendments, the CRA can now provide the basic
information – publicly accessible charity information – to CSIS, the RCMP and
FINTRAC about an application, and can also provide designated taxpayer
information if further conditions set out in section 241(9)(b) are met.
During each of fiscal years 2005-06 and 2006-07, the CRA received approximately
4,000 applications for registration.81 In 2006-07, registrations for welfare and
religious purposes were the most popular, each representing 29 per cent of overall
new registrations. Applications for education and benefit to the community
purposes stood at 19 and 15 per cent respectively. These proportions appear to
have been consistent over the last five years.82
The CRA registration process is explained in a document submitted to
the Commission as an exhibit, “Managing and Mitigating Risk of Terrorist
Involvement.”83 The risk assessment comes into play when the initial screening
of an application raises concerns about terrorist involvement. The CRA may
then request further information from the applicant through a Request for
Information (RFI) . Ms. Walsh testified that the CRA often has a “very highly
developed case” already if it is requesting more information.84
Professor Duff observed that the Federal Court of Appeal has characterized
the registration of charities as a “strictly administrative function,” and that the
Court has found no obligation on the Minister to notify the applicant and
invite representations or conduct a hearing before refusing its application for
charitable status.85 Nonetheless, the CRA currently does allow representations.
After assessing an application, CRA will send an Administrative Fairness Letter
(AFL) to the applicant explaining the reasons for denying charitable status. The
AFL gives the applicant 90 days to respond.86 The CRA can refuse the application
by way of a Final Determination (FD), also described as a Final Turn Down (FTD),87
or it may decide to register the applicant (REG).
In response to registration applications received in 2006-07, the CRA issued 326
FDs, compared to 52 in 2005-06. CRA attributes this to the implementation of
80
81
82
83
84
85
86
87
Income Tax Act, s. 241(10).
Exhibit P-236, Tab 10: Assessment, Determinations & Monitoring (ADM) Division, Year End Report
2006/2007, Charities Directorate, Legislative Policy and Regulatory Affairs Branch, p. 4 [ADM 2006/2007
Report].
ADM 2006/2007 Report, p. 8.
CRA Document on Managing and Mitigating Risk of Terrorist Involvement.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7133.
Duff Paper on Charities and Terrorist Financing, pp. 212-213.
Duff Paper on Charities and Terrorist Financing, p. 212, citing Canada Revenue Agency, Registered
Charities Newsletter, No. 25 (Fall 2005), p.3, online: Canada Revenue Agency <http://www.cra-arc.
gc.ca/E/pub/tg/charitiesnews-25/charitiesnews25-e.pdf> (accessed March 3, 2009).
The CRA Document on Managing and Mitigating Risk of Terrorist Involvement uses the acronym “FD”;
the ADM 2006/2007 Report uses “FTD.”
207
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new procedures.88 The principal categories of reasons for denials of registration,
in 2006-07, were: (i) broad/vague objects, (ii) lack of information and (iii) noncharitable activities.89 The chart below shows the results of the CRA’s “risk
mitigation effort” over several years for cases originally evaluated as having
some element of risk for support for terrorism:
Fiscal Period
RFI
AFL
FD
REG
Total
April 1, 2007 Sept 21, 2007
8
12
2
2
24
April 1, 2006 March 31, 2007
12
12
6
3
33
April 1, 2005 March 31, 2006
4
13
1
2
20
April 1, 2004 March 31, 2005
4
5
0
7
16
April 1, 2003 March 31, 2004
10
6
0
3
19
April 1, 2002 March 31, 2003
17
15
5
1
38
April 1, 2001 March 31, 2002
7
7
0
2
16
Total
62
70
14
20
Exhibit P-236, Tab 9
Ms. Walsh testified that some registration applications had been denied in part
because of terrorist involvement, including TF.90 However, she could not identify
the exact number of organizations denied charitable status for this reason, since
a given organization might make several applications. In addition, CRA may have
several reasons (including those not related to terrorism) to deny registration.
In some cases it may be impossible for CRA to attribute a denial of registration
solely to terrorism or TF factors, although statistics on when concerns about
TF were one of the grounds for denying charitable status would obviously
be valuable.91 The above chart shows that from 2001 until the time of the
Commission’s hearings on this subject, the CRA denied registration in 14 cases
that had some terrorism connection.92 In addition, the RCMP reported that in
2005-06, three organizations were denied charitable registration because they
had links to terrorist activities or groups.93
88
89
90
91
92
93
ADM 2006/2007 Report, p. 5.
ADM 2006/2007 Report, p. 9.
Testimony of Donna Walsh, vol. 57, October 3, 2007, pp. 7171-7172.
Testimony of Donna Walsh, vol. 57, October 3, 2007, pp. 7170-7171; ADM 2006/2007 Report, p. 9.
CRA Document on Managing and Mitigating Risk of Terrorist Involvement, p. 2; Testimony of Donna
Walsh, vol. 57, October 3, 2007, pp. 7172-7173.
RCMP 2005-06 Departmental Performance Report, p. 62.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
Ms. Walsh stated that CRA “probably” examines the background of directors
and trustees listed on an application for charitable status to determine whether
the organization is going to be operated wholly for charitable purposes and
activities: “ information of any sort that is relevant to making that determination
is information that we could look at.”94 Furthermore, the names of directors and
trustees can now be shared with CSIS and the RCMP.95
For confidentiality reasons, no specific examples of registration applications
were provided to the Commission, but the CRA did offer several “sanitized” real
examples to illustrate the work done in assessing applications:
[Example 1] A Canada-based organization applied for
registered charitable status. Research revealed that the
organization provided propaganda and financial support to
promote the ideology and the agenda of a proscribed terrorist
organization abroad that was seeking to undermine the
stability of another country. The applicant’s political activities
in Canada and its support for a terrorist entity overseas
disqualified it from obtaining Canadian registration as a
charity. The application was denied.96
[Example 2] An organization’s application to CRA for registered
charitable status did not provide sufficient information to
allow the federal government to understand how it intended
to conduct or protect its activities in an active combat zone
overseas. The onus is on the applicant to substantiate that its
purposes and activities are charitable in the legal sense. In
addition, the organization proposed to conduct its work in
areas under the control of groups listed by Canada and the
United Nations as terrorist entities. The documents provided
by the organization indicated that it intended to work with
these groups. The application was denied.97
[Example 3] This application for registration was seen to
be problematic because of the wide span of the applicant
organization’s objects, which would not restrict it to pursuing
exclusively charitable goals. Of major concern was that the
organization was not responsible for running the programs
that it supported. Instead, the organization’s financial and
material resources were provided to non-qualified recipients
who operated in conflict zones controlled by groups listed by
Canada as terrorist entities. The information provided by the
applicant organization indicated that it did not have adequate
mechanisms in place to prevent its resources from being made
94
95
96
97
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7169.
See para. (c) of the definition of “designated taxpayer information” in the Income Tax Act, s. 241(10).
Exhibit P-236, Tab 8: “CRA Case Summaries,” Case 5 [CRA Case Studies].
CRA Case Summaries, Case 8.
209
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available to those terrorist entities. In addition, the applicant
operated under the auspices of another organization whose
objects and activities were political in nature and were aimed
at providing benefits to a specific segment of the community.98
These examples show that denials of registration occur because of various
deficiencies, possibly including TF.
Professor Duff suggested that a more demanding regulatory regime in recent
years may have reduced the number of organizations that would otherwise have
obtained registered status. He described a sizeable decrease in the number
of applications approved for registered charity status – from 90 per cent of
applications in 1995-96 to about 65 per cent in 1996-97 – after the revocation of
the charitable status of Babbar Khalsa in 1996.99 He also described the decrease
in applications for charitable status between 1999 and 2002 following the
attacks of September 11, 2001, and the enactment of the CRSIA later that year.
He concluded:
Although the explanation for these shifts is not clear, they
suggest that the CRA may have become more rigorous in
its assessment of applications for registered status after the
Babbar Khalsa Society’s charitable status was revoked, which
– together with the subsequent enactment of the CRSIA – may
have led to fewer applications for registered status. If so, a
more demanding regulatory regime may have reduced the
number of organizations that would otherwise have obtained
charitable status.100
Duff suggested that current provisions for the exchange of information would
have made it doubtful that the Babbar Khalsa could register as a charity today.101
The CRA can be more thorough in reviewing registration applications, given its
increased investigative powers and the resulting decrease in registrations.
6.5.2.3 The Monitoring and Audit Processes
The CRA’s powers include the power to inspect, audit and examine the books,
records and property of a taxpayer (including a registered charity), as well as the
power to enter premises and to be given reasonable assistance in such cases.102
Once a charity is registered with CRA, it is subject to regular monitoring.
Monitoring is part of the ongoing audit process, which occurs on both a random
98
99
100
101
102
CRA Case Summaries, Case 12.
Duff Paper on Charities and Terrorist Financing, pp. 213-214.
Duff Paper on Charities and Terrorist Financing, p. 214.
Duff Paper on Charities and Terrorist Financing, p. 238.
Income Tax Act, s. 231.1(1); Duff Paper on Charities and Terrorist Financing, pp. 227-229.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
and a targeted basis.103 This audit process is separate from the audit program
for regular taxpayers.104 The charities audit process is risk-based, and the risk
indicators are constantly evolving.105 Terry de March, Acting Director General of
the Charities Directorate, testified that “…at different times the money leaving
the country for foreign activities has been a focus of our audit program.”106
An audit can occur even before registration.107 CRA conducts field audits of
about 800 registered charities each year – about one per cent of all registered
charities.108
Registered charities are subject to multiple requirements to maintain their
charitable status. These include the following:
• filing an annual information return and a public information return
within six months of the end of their taxation year;109
• maintaining books and records in Canada;110 and
• not becoming involved in commercial activities.111
A registered charity must file an annual Registered Charity Information Return
(form T3010). This form requires information such as a summary of the year’s
activities, changes to governing documents, directors’ names and personal
information, information on international activities, information about sources
and uses of funds, financial statements and the charity’s web site address.112
There is no automatic mechanism or process for CRA to be advised of changes
in the annual return information between annual filings. The only tools at CRA’s
disposal to deal with such changes are the audit process (but only about one
per cent of charities are audited every year), information supplied to CRA by
other agencies and publicly available information.
A survey of the information collected in 2005 from these forms appears in the
CRA document “Assessment, Determinations & Monitoring (ADM) Division.”113
It shows that 13,326 charities reported charitable activities outside Canada (17
per cent of all charities) and that 44,108 charities reported annual revenue of
$100,000 or less (56 per cent of all charities). The document surveyed the top
reporting “flags” – cases where charities had not provided all the requested
103
104
105
106
107
108
109
110
111
Testimony of Terry de March, vol. 57, October 3, 2007, p. 7125.
Testimony of Terry de March, vol. 57, October 3, 2007, pp. 7125-7126.
Testimony of Terry de March, vol. 57, October 3, 2007, p. 7126.
Testimony of Terry de March, vol. 57, October 3, 2007, p. 7125.
Testimony of Terry de March, vol. 57, October 3, 2007, p. 7126.
2008 FATF Mutual Evaluation of Canada, para. 1425.
Income Tax Act, s. 149.1(14).
Income Tax Act, s. 230(2); CRA Presentation on Canada’s Charities and Anti-terrorism Measures, slide 4.
The prohibition is on an unrelated business: Income Tax Act, s. 149.1(2)(a); Duff Paper on Charities and
Terrorist Financing, p. 215, note 73.
112 CRA Presentation on Canada’s Charities and Anti-terrorism Measures, slide 6.
113 ADM 2006/2007 Report, pp. 10-13.
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information – and found 28,640 charities (36 per cent)114 did not provide a Basic
Information Sheet as part of their annual return.
6.5.2.4 Intermediate Sanctions
Before 2005, the only option available to the CRA in the case of a non-compliant
charity was to revoke the charity’s registration. Since then, several intermediate
measures have been introduced to provide greater flexibility in enforcement.115
These include monetary penalties and the suspension of a charity’s power to
issue tax receipts for donations. The penalties can be appealed.116
Professor Duff testified that intermediate measures let a charity know that it has
to “shape up,” and let the public know that a charity is having difficulty complying
with its legal obligations.117 Such measures might also help those who seek to
regain control of charities which are experiencing governance problems118:
To the extent that existing and potential supporters are
given notice of the charity’s failings through [suspension
of power to issue tax-receipts], they may be in a position to
persuade the charity to take remedial measures including the
removal and replacement of directors or trustees, which the
federal government could not accomplish directly given the
constitutional limits of its jurisdictional authority.119
The CRA does not have a power like that of the Charity Commission of England
and Wales to suspend or remove trustees and take measures to protect charities
in difficulty. In his paper prepared for the Commission, Professor Mark Sidel
detailed how this power was used in the UK to remove Abu Hamza from the
Finsbury Park Mosque in London even before he was convicted of inciting murder
and hatred in the United Kingdom and indicted on terrorism support charges
in the United States.120 In Canada, direct interventions to remove directors or
trustees would fall under provincial jurisdiction. However, the creative use of
intermediate sanctions by the CRA could indirectly produce some of the same
results. For example, it might be possible to suspend an organization’s charitable
status temporarily. This would alert trustees, directors and donors to problems
in the organization. They might themselves then take remedial actions that are
not open to federal authorities because of a lack of federal jurisdiction.
114 ADM 2006/2007 Report, p. 11.
115 Testimony of David Duff, vol. 85, November 29, 2007, p. 10896. See pp. 238-239 of Duff Paper on
Charities and Terrorist Financing for more on intermediate penalties.
116 See Duff Paper on Charities and Terrorist Financing, pp. 219-221.
117 Testimony of David Duff, vol. 85, November 29, 2007, p. 10896.
118 Testimony of David Duff, vol. 85, November 29, 2007, p. 10903.
119 Duff Paper on Charities and Terrorist Financing, p. 220.
120 Sidel Paper on Terrorist Financing and the Charitable Sector, p. 166.
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Since these intermediate sanctions have been allowed only since 2005, empirical
evidence about their value is scarce. However, as Professor Duff argues, it must
surely be a factor in the decrease in the number of revocations since 2005.
6.5.2.5 Revocation of Charitable Status
A charity has 90 days to file an objection after the CRA issues a revocation notice,
and appeals may also be involved.121 Even after revoking a charity’s registration,
the CRA continues to collect information about the charity.122
Year
Revocations by
Request
Revocations for Failure to File
Information Return
Revocations for
Cause
Total Revocations
2002
800
1,599
5
2,404
2003
788
1,127
6
1,921
2004
709
1,261
8
1,978
2005
438
963
11
1,412
The above chart123 shows that most revocations are due to a request by a charity
or failure to file an information return. There have been very few revocations
for cause – ranging from 5 to 11 annually – between 2002 and 2005. Professor
Duff testified that the small number might mean either that the charitable
sector is healthy or that improper activities are not being caught, but that it was
impossible to know which reason applied.124
The 2008 FATF Mutual Evaluation of Canada described several types of conduct
that have caused registrations to be revoked:
Recent experience suggests that, on average, about 10
charities a year lose their registrations as a result of serious
non-compliance issues, including dubious fund-raising
schemes, political activities, lack of proper books and records,
and improper personal benefit. In addition, registered charities
that have failed to demonstrate sufficient control over their
foreign operations have been de-registered.125
In the end, it is difficult to determine from justifications for revoking registrations
if the revocations occurred partly or wholly because of links with terrorism or
TF.
6.5.2.6 The Charities Registration (Security Information) Act (CRSIA) Process
Following 9/11, the role of the Charities Directorate changed substantially. This
was, in large part, a result of the enactment of the Charities Registration (Security
121
122
123
124
125
See p. 217 of Duff Paper on Charities and Terrorist Financing for further details.
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7103.
Duff Paper on Charities and Terrorist Financing, p. 218.
Testimony of David Duff, vol. 85, November 29, 2007, p. 10901.
2008 FATF Mutual Evaluation of Canada, para. 1425.
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Information) Act (CRSIA). The Department of Justice summarizes the purpose of
CRSIA as follows:
CRSIA makes possible the use of classified information in
determining whether organizations can register as charities
under the Income Tax Act or whether, previously having been
registered, they can retain this status. Before the passage of
CRSIA, all decisions on charitable registration were subject
to appeal in an open court, and thus only information that
could be disclosed publicly could be used in reaching these
decisions.126
A CRA document similarly spoke of the importance of being able to rely on
classified information in making the case for denying or revoking registration:
Regular rules and procedures under the Income Tax Act are
used to deny or revoke registration where publicly available
information combined with information an organization is
required to provide to the CRA is sufficient to make the case
that an organization is not exclusively dedicated to charitable
purposes. But the option to undertake the certificate process
authorized by the [CRSIA] also is an important tool for cases
where it is necessary to rely on classified information to
substantiate an organization’s ties to terrorism.127
The Government of Canada described the CRSIA as an administrative process
which includes an administrative measure with an administrative remedy.128
Section 2(1) of the CRSIA explains the Act’s formal purpose:
The purpose of this Act is to demonstrate Canada’s
commitment to participating in concerted international efforts
to deny support to those who engage in terrorist activities,
to protect the integrity of the registration system for charities
under the Income Tax Act and to maintain the confidence of
Canadian taxpayers that the benefits of charitable registration
126 Department of Justice, Fact Sheet, “Outline of the Charities Registration (Security Information) Act,”
online: Department of Justice <http://www.justice.gc.ca/eng/antiter/sheet-fiche/CRSIA-LEOBRS.
HTML> (accessed April 17, 2009).
127 CRA Document on Managing and Mitigating Risk of Terrorist Involvement, p. 1.
128 Response of the Government of Canada to the Final Report of the Standing Committee on Public
Safety and National Security, Subcommittee on the Review of the Anti-terrorism Act, Rights, Limits,
Security: A Comprehensive Review of the Anti-terrorism Act and Related Issues, p. 14, online:
Parliament of Canada <http://cmte.parl.gc.ca/Content/HOC/committee/391/secu/govresponse/
rp3066235/391_SECU_Rpt07_GR/391_SECU_Rpt07_GR-e.pdf> (accessed May 25, 2009) [Canada
Response to House of Commons Report on the ATA].
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are made available only to organizations that operate
exclusively for charitable purposes.129
Section 2(2) requires the Act to be carried out “in recognition of, and in
accordance with,” the following principles:
(a) maintaining the confidence of taxpayers may require
reliance on information that, if disclosed, would injure national
security or endanger the safety of persons; and
(b) the process for relying on the information referred to in
paragraph (a) in determining eligibility to become or remain a
registered charity must be as fair and transparent as possible
having regard to national security and the safety of persons.
Professor Duff testified that the spirit of the CRSIA predated 9/11 since its
provisions existed in draft form before then. After 9/11, the draft provisions
were integrated with the bill that became the ATA.130 Ms. Walsh stated that the
enactment of the CRSIA was important “…because it created the foundation for
an intelligence-assisted compliance effort that we did not have previously.”131
The CRSIA permits the Minister of Public Safety and the Minister of National
Revenue to issue a certificate stating that it is their opinion, based on information,
that there are reasonable grounds to believe132:
that an applicant or registered charity has made, makes or will
make available any resources, directly or indirectly, to an entity
that is a listed entity as defined in subsection 83.01(1) of the
Criminal Code;
that an applicant or registered charity made available any
resources, directly or indirectly, to an entity as defined in
subsection 83.01(1) of the Criminal Code and the entity was at
that time, and continues to be, engaged in terrorist activities as
defined in that subsection or activities in support of them; or
that an applicant or registered charity makes or will make
available any resources, directly or indirectly, to an entity as
defined in subsection 83.01(1) of the Criminal Code and the
entity engages or will engage in terrorist activities as defined
in that subsection or activities in support of them.133
129 See also Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7106; CRA Presentation on Canada’s
Charities and Anti-terrorism Measures, slide 11.
130 Testimony of David Duff, vol. 85, November 29, 2007, p. 10897.
131 Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7109.
132 The Charities Registration (Security Information) Act, S.C. 2001, c. 41, s. 113 [CRSIA] uses the “reasonable
grounds to believe” standard rather than the criminal law standard of proof. See Testimony of Donna
Walsh, vol. 57, October 3, 2007, p. 7110.
133 CRSIA, s. 4(1).
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Both ministers assess the available intelligence before signing a certificate. To
facilitate this, the RCMP and CSIS analyze relevant information and provide their
recommendation to the Minister of Public Safety. The CRA performs a similar
assessment and provides advice to the Minister of Revenue.
The following chart summarizes the CRSIA certificate process:134
IDENTIFICATION OF CASE
• CSIS or the RCMP, with CRA identify, and initially assess the case for a security
certificate
CONSULTATION
• CSIS/RCMP and CRA to consult and share information to the extent possible
related to potential certificate.
DECISION TO PROCEED
• CSIS/RCMP and CRA determine whether to pursue action under CRSIA
• Security Intelligence Report (SIR) prepared by CSIS or RCMP
INTERNAL APPROVAL
• SIR verified by RCMP or CSIS legal counsel
• SIR approved by the Director of CSIS/Commissioner of the RCMP
• Following sign off, SIR delivered to Deputy Minister (DM) of Public Safety and the
Commissioner of the Canada Revenue Agency
NOTIFICATION OF INTERDEPARTMENTAL COMMUNITY
• DM of Public Safety convenes DM-level meeting of relevant departments.
• Submission is reviewed and recommendation to Ministers confirmed
ADVISING THE MINISTER OF PUBLIC SAFETY
• Unsigned security certificate and SIR forwarded to the Minister of Public Safety.
• If the Minister of Public Safety signs the certificate, it is provided to the Minister of
National Revenue for signature
SUBSEQUENT PROCESS
• Public Safety Canada provides implicated organization with a copy of the
certificate once both Ministers have signed
• The certificate is filed in the Federal Court not earlier than seven days later
• If upheld by the court, the certificate is published in the Canada Gazette
134 Exhibit P-383, Tab 11: Public Safety Canada’s Submission to the Commission of Inquiry into the
Investigation of the Bombing of Air India Flight 182, October 24, 2007, p. 3.
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If the certificate is issued, it is then sent to the charity or applicant for charitable
status with a notice that the certificate will be referred to the Federal Court.
A Federal Court judge may receive into evidence anything that, in the judge’s
opinion, is reliable and appropriate, even if it is probably inadmissible as
evidence in a court of law, and may base the decision on that information.135
The judge must hear all or part of the information or evidence in the absence of
the applicant or registered charity named in the certificate and their counsel if,
in the judge’s opinion, its disclosure would be injurious to national security or
endanger the safety of any person.136 The judge must then provide a summary of
that evidence to the applicant or registered charity to enable it to be reasonably
informed of the circumstances giving rise to the certificate. This summary
must not include anything that the judge concludes would be injurious to
national security or endanger a person if disclosed.137 The judge must also
give an opportunity for the applicant or registered charity to be heard.138 After
completing this process, the judge must determine whether the certificate is
reasonable, and must quash it if of the opinion that it is unreasonable.139
A determination by the judge that the certificate of review is reasonable is
conclusive proof that the applicant is ineligible to become a registered charity or,
in the case of a registered charity, that it does not comply with the requirements
to continue to be a registered charity.140 The judge’s determination is final and is
not subject to appeal or judicial review.141 That determination can be reviewed
only through an application to the Minister of Public Safety on the basis of a
“material change in circumstances” since the determination was made.142 Unless
cancelled sooner, the certificate is valid for seven years.143
No certificate had been issued under the CRSIA as of January 2009.144 This may be
in part because support for terrorist activities would also violate ITA requirements
for charitable status. It is likely simpler for the CRA to revoke or deny charitable
status because of a failure to satisfy the ITA than it is to undertake the CRSIA
certificate process to achieve the same result. The CRA continues to operate on
135
136
137
138
139
140
141
142
143
144
CRSIA, s. 6(j).
CRSIA, s. 6(e).
CRSIA, s. 6(h).
CRSIA, s. 6(i).
CRSIA, s. 7.
CRSIA, s. 8(1).
CRSIA, s. 8(2).
CRSIA, s. 10(1).
CRSIA, s. 13.
House of Commons Canada, Final Report of the Standing Committee on Public Safety and National
Security, Subcommittee on the Review of the Anti-terrorism Act, Rights, Limits, Security: A
Comprehensive Review of the Anti-terrorism Act and Related Issues, March 2007, p. 34, online:
Parliament of Canada <http://www2.parl.gc.ca/content/hoc/Committee/391/SECU/Reports/
RP2798914/sterrp07/sterrp07-e.pdf> (accessed March 3, 2009) [House of Commons Report on the
ATA]; The Senate of Canada, Special Senate Committee on the Anti-terrorism Act, Fundamental Justice
in Extraordinary Times: Main Report of the Special Senate Committee on the Anti-terrorism Act,
February 2007, p. 60, online: Parliament of Canada <http://www.parl.gc.ca/39/1/parlbus/commbus/
senate/Com-e/anti-e/rep-e/rep02feb07-e.pdf> (accessed March 3, 2009) [Senate Report on the ATA].
217
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the premise that it is preferable to deal with TF issues under the ITA because the
process under the ITA is more transparent.145
If a registered charity or an organization applying for registration is included in
either of the UN terrorist entity lists or in the Criminal Code list, the CRA evaluates
the organization and takes action under either the CRSIA or the ITA.146
In his paper, Professor Duff suggested that the onus of proof under the ITA may
make it a more attractive vehicle than the CRSIA in revoking charitable status:
[S]ince the onus of proof under an ordinary revocation
proceeding falls on the charity to disprove the assumptions of
fact on which the decision to revoke is based, it may be easier
to revoke registered status on this basis than under the CRSIA,
notwithstanding the “reasonable belief” standard on which
revocation under the CRSIA may be based.147
Although no certificate has yet been issued under the CRSIA, Ms. Walsh, Director
of the Review and Analysis Division in the Charities Directorate of the Canada
Revenue Agency (CRA), stated that the certificate process constitutes a prudent
reserve power.
The Commission heard concerns that the CRSIA might deter legitimate charities
from doing good works abroad. In his paper, Terrance Carter, a lawyer specializing
in charities law, argued that “the immediate practical concern for charities
is not that they will be prosecuted … but that they may be vulnerable to deregistration under [CRSIA].”148 As well, he described several possible deficiencies
in the CRSIA procedure for obtaining a certificate denying or revoking charitable
registration.149 Professor Duff also suggested that there were several deficiencies
in the CRSIA:
• The grounds on which charitable status may be denied or revoked
are extremely broad;
• There is no due diligence defence or, in the alternative, a
requirement of intent;
• The level of secrecy surrounding the proceedings is very high, such
that it may create insurmountable hurdles for a registered charity or
applicant that wants to mount an adequate defence; and
145 Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7157.
146 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review
Mechanism for the RCMP’s National Security Activities (Ottawa: Public Works and Government Services
Canada, 2006), p. 190.
147 Duff Paper on Charities and Terrorist Financing, p. 227.
148 Terrance S. Carter, “The Impact of Anti-terrorism Legislation on Charities in Canada: The Need For an
Appropriate Balance,” October 26, 2007, p. 18, online: Carters Professional Corporation <http://www.
carters.ca/pub/article/charity/2007/tsc1026.pdf> (accessed May 12, 2009) [Carter Paper on Impact of
Anti-terrorism Legislation on Charities in Canada].
149 Carter Paper on Impact of Anti-terrorism Legislation on Charities in Canada, pp. 38-39.
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• There is a lack of provision for intermediate penalties (as
an alternative to the outright revocation of status or denial of an
application) in CRSIA certificate proceedings.150
In March 2007, the House of Commons Standing Committee on Public Safety
and National Security151 made several recommendations relating to the CRSIA,
among them that:
• [27] the CRSIA be amended so that a Federal Court judge to whom
a certificate is referred shall not find the certificate to be reasonable
where an applicant or registered charity has established that it has
exercised due diligence to avoid the improper use of its resources
under section 4(1);152
• [28] in consultation with the charitable sector, the Canada Revenue
Agency develop and put into effect best practice guidelines to
provide assistance to applicants for charitable status and registered
charities in their due diligence assessment of donees;153
• [29] section 8(2) of the CRSIA be amended to allow for an appeal to
the Federal Court of Appeal of a decision by a Federal Court judge
that a referred certificate is reasonable;154 and
•
[33] subsections 5(3) and (4) of the CRSIA be repealed and the
Act be amended so that, beginning from the time that an applicant
or registered charity is being investigated for allegedly making
resources available to a terrorist entity, its identity cannot be
published or broadcast, and all documents filed with the
Federal Court in connection with the reference of the certificate
must be treated as confidential, unless and until the certificate
is found to be reasonable and published under section 8.155
The Government of Canada responded to the aspects of the House of Commons
report dealing with charities as follows:156
• [27-28] The Government wished to maintain the status quo in
the system under the ITA and CRSIA for the registration
of charities and the revocation of registration because
doing otherwise would mean that organizations with links
150
151
152
153
154
155
156
Duff Paper on Charities and Terrorist Financing, pp. 240-241.
Subcommittee on the Review of the Anti-terrorism Act.
House of Commons Report on the ATA, p. 36.
House of Commons Report on the ATA, p. 36.
House of Commons Report on the ATA, p. 37.
House of Commons Report on the ATA, p. 40.
Canada Response to House of Commons Report on the ATA, pp. 14-15. The numbers in square brackets
refer to the recommendations in the House of Commons Report on the ATA.
219
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to terrorism could possibly learn about Canadian counterterrorism measures and structure their affairs to
create a defence against CRSIA measures. The changes
to the law proposed by the Commons report would also weaken
Canada’s conformity with its international obligations;157
• [29] In considering the possible value of judicial appeals under
the CRSIA, further study was necessary to assess the implications
of the judicial consideration of provisions governing access
to appeals under the Immigration and Refugee Protection Act
security certificate scheme;158 and
• [33] Adding to the CRSIA a provision prohibiting the publication of
information in relation to a charity that was under investigation,
and a general confidentiality ban on documents filed in
Federal Court, would depart from the principle of openness
in court proceedings and would run a serious risk of contravening
the Charter.159
In February 2007, the Special Senate Committee on the Anti-terrorism Act
published its report, Fundamental Justice in Extraordinary Times: Main Report of
the Special Senate Committee on the Anti-terrorism Act.160 The report contained
a general recommendation about the need for a special advocate in charitable
status cases.161
The Commons and Senate reports both addressed the due diligence and mens rea
issues, but came to different conclusions. The Commons report recommended
adding a due diligence defence to the certificate proceedings triggered by
section 4(1) of the CRSIA.162 The Senate report concluded that adding a due
diligence defence to the CRSIA “…could have the unintended effect of making
157 Canada Response to House of Commons Report on the ATA, p. 14. Furthermore, the government
stated that “…[t]o require in the CRSIA that an organization ‘knew or ought to have known’ could,
in some circumstances, effectively result in the Government of Canada providing a tax subsidy for
resources tied to terrorism.”
158 Canada Response to House of Commons Report on the ATA, p. 15.
159 Canada Response to House of Commons Report on the ATA, p. 15.
160 Senate Report on the ATA.
161 Senate Report on the ATA, p. 60: “The Committee is also satisfied that the appointment of a special
advocate, by specifically addressing problems inherent in the judicial review process, would help
to address witness anxiety about the ‘chill’ effect of the CRSIA on charitable giving or work. The special
advocate would test the evidence raised against charitable organizations in security and intelligence
reports, and better enable them to respond to allegations that they have made, made or will make
resources available to terrorist groups or in support of terrorist activities. The availability of a special
advocate during judicial review would therefore restore balance to the processes under the CRSIA,
helping to ensure that charities are treated fairly.”
162 See Recommendation 27 in House of Commons Report on the ATA, p. 36.
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charities more vulnerable to being used as front organizations for terrorists.”163
Carter also called for a due diligence defence and for a mens rea element in CRSIA
certificate proceedings.164 Duff argued that the current broad provisions for
denial or revocation of registration under the CRSIA, along with the absence of
a due diligence defence or requirement of intent, might create uncertainty that
could deter well-meaning charities from pursuing activities abroad, especially in
conflict zones.165 Duff recommended that a mens rea requirement of “intent” be
included in section 4(1) of the CRSIA166 for the certificate proceedings permitted
by the Act to come into play. He also recommended a due diligence defence. The
due diligence defence could be explained in a “made-in-Canada” best practices
paper that would guide charities.167
6.5.2.7 Collection and Use of Information from Various Sources
The PCMLTFA requires FINTRAC to disclose “designated information” to the
CRA in some situations. If FINTRAC has reasonable grounds to suspect that
designated information would be relevant to investigating or prosecuting
a money laundering offence or a terrorist activity financing offence, it must
disclose information to the CRA:
if [FINTRAC] also determines that the information is relevant
to an offence of obtaining or attempting to obtain a rebate,
refund or credit to which a person or entity is not entitled, or
of evading or attempting to evade paying [certain taxes or
duties];168 or
if [FINTRAC] also has reasonable grounds to suspect that the
information is relevant to determining (i) whether a registered
charity…has ceased to comply with the requirements of [the
ITA] for its registration as such, or (ii) whether a person or
163 Senate Report on the ATA, p. 60. The report also stated: “The Committee is also satisfied that the
appointment of a special advocate, by specifically addressing problems inherent in the judicial review
process, would help to address witness anxiety about the ‘chill’ effect of the CRSIA on charitable giving
or work. The special advocate would test the evidence raised against charitable organizations in
security and intelligence reports, and better enable them to respond to allegations that they have
made, made or will make resources available to terrorist groups or in support of terrorist activities. The
availability of a special advocate during judicial review would therefore restore balance to the
processes under the CRSIA, helping to ensure that charities are treated fairly. Having said this, however,
the Committee urges the government to use its powers to deny or revoke charitable status under the
CRSIA with caution, in order to ensure that charities are not penalized for legitimate aid activities that
might occasionally tangentially benefit terrorist organizations or groups”: pp. 60-61.
164 Carter Paper on Impact of Anti-terrorism Legislation on Charities in Canada, p. 55.
165 Duff Paper on Charities and Terrorist Financing, p. 241.
166 This is the provision allowing the Minister of Public Safety and Minister of National Revenue to sign a
certificate stating that it is their opinion that there are reasonable grounds to believe that an applicant
or charity has made, is making or will make resources available to a listed entity as defined in s. 83.01(1)
of the Criminal Code.
167 Duff Paper on Charities and Terrorist Financing, p. 241.
168 Proceeds of Crime (Money Laundering) and Terrorist Financing Act, s. 55(3)(b) [PCMLTFA].
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entity that [FINTRAC] has reasonable grounds to suspect has
applied to be a registered charity…is eligible to be registered
as such.169
CRA may use this information from FINTRAC to start a new enforcement action
or support an ongoing action.170
As well, the PCMLTFA allows the CRA to apply for a judge’s order requiring
FINTRAC to provide additional information about an investigation of an offence
that was the subject of a FINTRAC disclosure made under section 55(3)(b) (which
deals with improper refunds or evading taxes).171
The CRA receives intelligence reports from, and has liaison arrangements with,
both the RCMP and CSIS.172 The Charities Directorate also has its own pool of
information. In particular, the CRA has considerable investigative powers under
the ITA.173 As well, the CRA actively monitors the media and the Internet and it
reviews case law, academic papers and texts.174 Two staff members are dedicated
to the collection of information.175 As well, “…[r]esources are … devoted to the
collection and analysis of program-derived and publicly available information
specifically relating to the use of social, community, religious, and humanitarian
organizations to provide cover and legitimacy for international terrorism.”176
6.5.2.8 Information Sharing Between CRA and Other Agencies
As noted earlier, Bill C-25 amended the ITA to allow the CRA to disclose
information to CSIS, the RCMP and FINTRAC.177
The CRA has the discretion to decide whether or not to share information with
the RCMP or CSIS. Ms. Walsh testified that the CRA usually discloses information
to both agencies.178 However, there was no set procedure for those agencies
to report back to CRA on whether the information had led to a successful
prosecution. Ms. Walsh said that this information would be useful and that CRA
was seeking such information from other agencies as part of CRA’s performance
evaluation framework.179
The system is now focused on a more extensive sharing of information about
registered charities. Still, as Ms. Walsh testified, the new information-sharing
169 PCMLTFA, s. 55(3)(c).
170 Exhibit P-227, Tab 3: Department of Finance Memorandum of Evidence on Terrorist Financing, February
28, 2007, p. 37 [Department of Finance Memorandum of Evidence on Terrorist Financing].
171 PCMLTFA, s. 60.3.
172 CRA Document on Managing and Mitigating Risk of Terrorist Involvement, p. 1.
173 Testimony of David Duff, vol. 85, November 29, 2007, p. 10898.
174 Testimony of Donna Walsh, vol. 57, October 3, 2007, pp. 7127-7129.
175 Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7128.
176 CRA Document on Managing and Mitigating Risk of Terrorist Involvement, p. 1.
177 Department of Finance Memorandum of Evidence on Terrorist Financing, p. 38.
178 Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7116.
179 Testimony of Donna Walsh, vol. 57, October 3, 2007, pp. 7120-7121.
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powers were so recent that CRA officials did not yet know how well they were
working and what shortcomings might appear.180
6.5.2.9 Oversight and Review
The CRA’s work is subject to several forms of oversight – by the Auditor General,
the Treasury Board, the Office of the Privacy Commissioner of Canada (under
the Privacy Act181), the Office of the Information Commissioner of Canada (under
the Access to Information Act182) and the courts. The CRA’s annual public report183
also contains an evaluation of the work of the CRA. As well, CRA activities are
examined during parliamentary reviews of the ATA, which can touch on the
CRSIA, and during the FATF mutual evaluation process.
Still, there is no equivalent for the CRA to the review performed by the Security
Intelligence Review Committee (SIRC) of CSIS activities. CRA’s stringent protection
of taxpayer information could make such a review difficult. Unless the law were
changed, only taxpayer information such as defined in section 241(3.2) of the
ITA (information relating to registered charities) would be available for review.
Such restrictions applied when the CRA was reviewed by the FATF in 2007-2008,
as well as during parliamentary and other reviews of the anti-TF program.
Commissioner O’Connor did not recommend oversight of the CRA in his report
of the Arar Inquiry.184 Commissioner O’Connor focused on the review of the
propriety of conduct, including the effect that actions could have on privacy
values.
6.6 Not-for-profit Organizations (NPOs)
There may be confusion among members of the public about the distinction
between registered charities and not-for-profit organizations (NPOs).185
Terrance Carter, a lawyer specializing in charities law, testified that even “…the
FATF and the international best practice refers to both as well, both non-profit
organizations and charities are all in the same document.” 186
NPOs are defined in the ITA. In essence, they are clubs, societies and similar
organizations:
(i) that can be created for any purpose except profit;
180
181
182
183
Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7165.
R.S.C. 1985, c. P-21.
R.S.C. 1985, c. A-1.
Final Submissions of the Attorney General of Canada, Vol. III, February 29, 2008, para. 173; Testimony of
Maurice Klein, vol. 57, October 3, 2007, p. 7155.
184 Testimony of Maurice Klein, vol. 57, October 3, 2007, pp. 7155-7156.
185 Testimony of Donna Walsh, vol. 57, October 3, 2007, pp. 7174-7175.
186 Testimony of Terrance Carter, vol. 67, October 26, 2007, p. 8375.
223
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(ii) with no distribution of any profits to members or
shareholders (that means that all profits, if any, are kept within
the organization for its purposes); and
(iii) which are not charities in the opinion of the minister.187
Like registered charities, NPOs pay no income tax.188 Unlike charities, NPOs
cannot issue tax receipts for donations. Most NPOs are registered with a
provincial corporate or other registry.
Terry de March, Acting Director General of the Charities Directorate, told the
Commission that there are about 80,000 NPOs in Canada and 83,000 registered
charities.189
A not-for-profit organization that does not seek to become a registered charity
can nonetheless qualify for tax-exempt status with the CRA as an NPO. An NPO’s
lack of authority to issue a tax receipt may not deter donors who are committed
to the NPO’s cause. In his paper, Blake Bromley gave the following example,
based on his experience with Sikh charities, of a situation where charitable tax
receipts are not important to donors:
Sikhs generally give anonymously by placing their offerings in
a large locked box so that no one knows how much is given
and by whom. Tax receipts are not generally issued, because
many worshippers are recent immigrants who are not used
to receiving tax benefits for religious donations. However, if
a gurdwara receives most of its donations from donors who
are not claiming tax benefits, then the gurdwara suffers no
disadvantage from being an NPO rather than a charitable
organization. In fact, given the problems that gurdwaras face
in obtaining charitable status if they carry on cultural and
language programs, we advise some of these organizations
that it would be a waste of money to apply for registered
charity status.190
Many organizations that may be prepared to support TF may not see issuing
tax receipts as a priority. Creating a “legitimate” vehicle to raise funds and
move them abroad is the main objective. Incorporation provides legitimacy to
terrorist organizations that need a respectable public face.191 Furthermore, an
NPO can call itself a charity, even if it is not a registered charity. Professor Duff
testified that an NPO “…can certainly obtain funds and present [itself ] and gain
187 Income Tax Act, s. 149.1(1). See also Testimony of Donna Walsh, vol. 57, October 3, 2007, pp. 7174-7175
and Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7196.
188 Bromley Paper on Funding Terrorism and Charities, p. 13.
189 Testimony of Terry de March, vol. 57, October 3, 2007, pp. 7161-7162.
190 Bromley Paper on Funding Terrorism and Charities, p. 14.
191 Testimony of Ron Townshend, vol. 57, October 3, 2007, pp. 7197, 7208.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
the legitimacy of being a charity by passing [itself ] off as such.”192 Even if an NPO
does not call itself a charity, simply being an NPO can give it legitimacy in the
mind of the public.
Ron Townshend, Registrar with BC Registry Services, testified that legislation
regulating NPOs in most provinces is similar.193 He also spoke about the almost
complete lack of oversight of NPOs:
...I questioned my fellow Registrars across the country on this
because I was interested in finding out how much time they
spend working with their non-profit organizations. Some
spend some time but most of them spend very little time,
actually. They basically say it’s not their mandate and they let
the [NPOs] work internally or go to court or whatever.194
The role of a provincial registrar includes ensuring that NPOs comply with relevant
provincial legislation and providing registration assistance.195 Townshend
explained that his office has four full-time staff members responsible for handling
NPOs.196 As Registrar, he reviews the applications and constitutions, but not the
bylaws, of NPOs seeking registration in the provincial corporate registry.
Not all provinces require NPOs to submit their bylaws to their registrar.197
Townshend did not believe that it was his role to become involved in an NPO’s
internal affairs.198 The BC Registrar has very limited authority to investigate
NPOs.199 The Registrar can issue a certificate confirming that an NPO is in good
standing in meeting its filing requirements, although this does not necessarily
mean that the NPO is in good standing in respect of its conduct.200 Responses
from all jurisdictions to a questionnaire about oversight showed no evidence of
greater scrutiny or control of NPOs in other provinces and territories.
Townshend explained that there is “…a fair amount of confusion” in BC in
the discussion of NPOs,201 which might be unincorporated or incorporated,
provincial or extra-provincial:
I have to say that there is a fair amount, at times, of confusion
that goes on with the public and others around the role of the
192
193
194
195
196
197
198
199
Testimony of David Duff, vol. 85, November 29, 2007, p. 10910.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7205.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7199.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7197.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7195.
Testimony of Ron Townshend, vol. 57, October 3, 2007, pp. 7198-7199.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7199.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7199. Townshend believed that he was going
further than his predecessors in this regard.
200 Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7197.
201 Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7200.
225
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Registrar and what all these different kinds of societies and
charitable status really mean.202
The confusion arises in part because there is no single department or
government source in BC for complete information about NPOs.203 Provincial
governments in general are content simply to confirm registration.
Townshend testified that some 658 extra-provincial NPOs were operating in
BC, of which 375 were federally registered and 150 were registered in other
provinces. The remaining NPOs originated abroad.204 Generally speaking,
foreign NPOs can choose whether to register in BC For example, a charity or
NPO from Japan can operate in BC without registering there. Townshend said
that, as Registrar, he had the power to force extra-provincial NPOs to register,
but had never done so.205
Townshend described NPOs as a “maze.”206 He said that when an NPO wants to
register as a charity, it is referred to the CRA. That same NPO may later register
with the BC Corporate Registry as a provincial NPO.207 Even if the CRA revokes
the charitable registration of the NPO, it can remain registered as a provincial
NPO208 and can still call itself a charity (although it cannot issue tax receipts).
There is no single common identifier for NPOs in Canada that would allow a crossCanada search to identify existing NPOs. However, some provinces were using
the federal business identifier numbering system (for federally incorporated
bodies) for NPOs. Such an approach will apparently be considered for use on a
wider scale.209 Townshend noted that the Charities Directorate has approached
BC Registry officials to explore a joint filing process for NPOs that are seeking
registered charity status.210 That would alleviate at least some of the confusion
surrounding the status and registration of NPOs.
Townshend said he was vaguely familiar with the processes for listing of terrorist
entities but had not worked with the lists.211 He testified that this Commission
was the first body to ask him, as Registrar, about TF issues.212 He said that “…
for the most part it’s not something we get involved in, or have at least at this
point.”213 He also stated that corporate registrars across the country were part of
202
203
204
205
206
207
208
209
210
211
212
213
Testimony of Ron Townshend, vol. 57, October 3, 2007, pp. 7197-7198.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7198.
Testimony of Ron Townshend, vol. 57, October 3, 2007, pp. 7200-7201.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7201.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7201.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7204.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7216.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7203.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7206.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7212.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7207.
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7208.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
a close-knit group which met annually but that, to that point, TF had not been
discussed.214
Townshend had assisted RCMP investigators with inquiries about particular
NPOs.215 He expressed a clear willingness to become involved in TF issues if
asked by the province.
Remaining an NPO reduces government oversight of the organization’s activities
and also reduces controls on how the funds obtained by the NPO can be
disbursed. For example, NPOs can have political or other purposes that are not
permitted of registered charities. Bromley made similar points in his testimony:
…[When] there is no tax receipt given, there is much less
regulatory supervision on how the funds are then distributed
out of the non-profit and I don’t think that’s unreasonable but
the reality is that they then can make unrestricted grants by
simply writing a cheque to any non-proprietary organization
internationally and they don’t have to worry about agency
agreements. They don’t have to worry about the same
accountability for those funds and there aren’t the limitations
on them actually being charitable. Anything that is [a] public
good in the broadest sense, you know, qualifies.216
In his paper prepared for the Commission, Bromley expressed concerns about
the lack of attention to NPOs in anti-TF efforts:
In my opinion, the collective discussion on how Canada’s legal
framework might facilitate terrorist financing has put too much
emphasis on the favoured tax position of registered charities
and not enough emphasis on the position of the non-profit
organizations.217
Professor Duff called for more extensive federal-provincial cooperation in
regulating both NPOs and charities:
Since federal regulation applies only to charities that seek or
obtain registered status, moreover, not charities that do not
apply for registered status, nor other nonprofit and voluntary
organizations, federal and provincial governments should
also consider what joint initiatives might be taken to establish
a more extensive regulatory regime for charities and other
214
215
216
217
Testimony of Ron Townshend, vol. 57, October 3, 2007, p. 7209.
Testimony of Ron Townshend, vol. 57, October 3, 2007, pp. 7207-7208.
Testimony of Blake Bromley, vol. 67, October 26, 2007, pp. 8431-8432.
Bromley Paper on Funding Terrorism and Charities, p. 13.
227
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nonprofit and voluntary organizations, irrespective of their
registered status under the ITA.218
Several months after Townshend testified, a report in The Globe and Mail said
that his office had begun to vet organizations to check for links to terrorism:
“We’re starting to monitor organizations that are getting incorporated over
whether or not they have been identified by the United Nations or the federal
government as a terrorist organization.”219
6.7 The Findings of the 2008 FATF Mutual Evaluation of Canada
about the Charitable Sector
The FATF’s 2004 Special Recommendations on Terrorist Financing called for
countries to review the adequacy of laws and regulations that relate to entities
that can be used for TF.220 The 2008 FATF Mutual Evaluation of Canada reviewed
Canada’s regulation of the charitable sector221 and gave Canada a rating of
“Largely Compliant.” The FATF explained how the Canadian regime functions,
identified the treatment of NPOs as a potential gap, and made the following
recommendations:
Canada has taken considerable steps to implement SR
VIII [the FATF’s Special Recommendation VIII on non-profit
organizations] in relation to registered charities, which it
considers to be the sector most at risk, based on the risk
assessment studies it has done. A large segment of the NPO
population is not covered by the current measures using the
risk based approach, but Canada should continue to monitor
the risks in these other sectors. Canada should improve the
existing co-ordination mechanisms between competent
authorities, especially between the CRA and the parties
responsible for listing and freezing applications. Again, Canada
should review the capacity of CRA and FINTRAC to share
information with law enforcement authorities related to the
non-profit sector.222
218 Duff Paper on Charities and Terrorist Financing, p. 239.
219 Robert Matas, “Provinces to watch charities for links to terror groups,” The Globe and Mail (February 5,
2008), online: The Globe and Mail <http://www.theglobeandmail.com/servlet/Page/document/v5/
content/subscribe?user_URL=http://www.theglobeandmail.com%2Fservlet%2Fstory%2FLAC.20080
205.BCREGISTERY05%2FTPStory%2FNational&ord=3350358&brand=theglobeandmail&force_
login=true> (accessed March 3, 2009).
220 FATF Special Recommendation VIII: Non-profit organisations.
221 2008 FATF Mutual Evaluation of Canada, paras. 1411-1441.
222 2008 FATF Mutual Evaluation of Canada, para. 1442. See also p. 306 of the same document.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
6.8 Criticisms and Challenges Relating to Canada’s Approach to
Fighting Terrorist Financing in the Charitable Sector
6.8.1 The System May Overreach
Bromley and Carter both testified that charitable registrations are more difficult
to obtain now, due to new requirements imposed by the CRA.
Carter testified about the interpretive notes to FATF’s Special Recommendation
VIII, noting the provision that anti-TF legislation should not disrupt or discourage
legitimate charitable activities.223 In his paper prepared for the Commission, he
made similar comments:
[W]hile Canada’s anti-terrorism legislation is very much
a product of a complex array of international initiatives,
conventions and multilateral agreements that establish
daunting requirements for charities, these same international
requirements at least acknowledge the need to strike a
balance between efforts to thwart terrorist financing and
ensuring that legitimate charitable programs can continue to
operate. Specifically, the Financial Action Task Force (“FATF”),
in a key policy document concerning the oversight of the nonprofit organizations sector internationally, reminds its member
countries to ensure that “(m)easures adopted by countries
to protect the NPO sector from terrorist abuse should not
disrupt or discourage legitimate charitable activities” and
also that those measures “should to the extent reasonably
possible avoid any negative impact on innocent and legitimate
beneficiaries of charitable activity”.224
6.8.2 The Status and Legal Framework of the CRA Itself
The Commission heard a range of views, both in testimony and in papers, about
the suitability of having charities regulated by the CRA. Bromley criticized having
the CRA as regulator of charities. The CRA is, at its core, the regulator of Canada’s
taxation system. This model can be described as the “fiscal regulator” model. In
contrast, the Charity Commission of England and Wales is set up expressly to
regulate charities. The Charity Commission has more extensive powers than the
CRA to regulate, monitor and impose sanctions on charities that breach the law.
The Canadian fiscal regulator (tax-based) model has other deficiencies as well:
223 Testimony of Terrance Carter, vol. 67, October 26, 2007, p. 8376.
224 Carter Paper on Impact of Anti-terrorism Legislation on Charities in Canada, pp. 2-3.
229
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• It may allow fiscal considerations to trump the charities’ best
interests and may create distrust of government; and
• The need for confidentiality can impede the work of the regulator
and reduce the effectiveness of measures to reduce TF.
However, Kenneth Dibble of the England and Wales Charity Commission testified
that a tax-based model that provides fiscal relief (such as Canada’s) had some
advantages over the Charity Commission model, including the ability to revoke
registration and removing tax benefits.225
The Charities Directorate, as part of the CRA, has no choice but to operate under
the general rules and approaches of that fiscal regulator. Bromley, in his paper,
not only expressed doubts that CRA was the appropriate regulator of charities226
but noted that this could weaken relationships with charities:
CRA also has difficulty building strong relationships with
charities because it is a tax collection agency, which
understands that in regulating the charitable sector its
‘mandate is to protect the tax base.’227
The Commission’s hearings explored the differing functions of regulators.
Professor Duff testified about the considerable trust that exists between the UK
charitable sector and the UK Charity Commission:
I think the UK Charity Commission generally is regarded as
having a fair bit of trust from the charitable sector, and I don’t
blame anyone at the CRA, but they’re kind of the gatekeepers
on the fiscal benefits.... they’re going to always have a more
adversarial relationship...[with the charitable sector.]228
Mark Sidel made similar points in a paper prepared for the Commission. The
paper contains an extensive analysis of the positive experience that the United
Kingdom has had with its Charity Commission.229
Duff ’s paper went on to elaborate on the limited role that the CRA can play
because of the federal division of powers:
225 Testimony of Kenneth Dibble, vol. 59, October 9, 2007, p. 7328. Dibble stated that “…[o]ne significant
difference is one you touched on before about the removal of registration or the removal of status as
a compliance remedy, and … many people have said to me why can’t the commission remove this
charity from the register because of what it’s done. And you can argue this is a weakness in our system.
And the North American model, where there is a sort of an ability to remove the tax advantages
or perhaps even de-registration of a non-compliant organization, is a shorter more effective and more
resource-effective way of actually dealing with the problem.”
226 Bromley Paper on Funding Terrorism and Charities, p. 7.
227 Bromley Paper on Funding Terrorism and Charities, p. 19.
228 Testimony of David Duff, vol. 85, November 29, 2007, p. 10908.
229 Sidel Paper on Terrorist Financing and the Charitable Sector, pp. 162-175.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
[B]ecause federal jurisdiction over charities is incidental to
its taxing power, federal regulatory efforts in this area have
tended to emphasize monitoring and investigation in order
to assess eligibility for tax benefits, rather than advice and
support in order to assist charities to carry out their activities in
a manner consistent with their legal obligations and charitable
purposes.230
Professor Duff argued that there has been a growing emphasis in recent years
on federal initiatives to provide advice and support to charities, such as the
Charities Partnership and Outreach Program.231 Nonetheless, the risk remained
that the CRA could lean towards enforcing its fiscal rules rather than towards
assisting charities.
However, Terry de March, the Acting Director General of CRA’s Charities
Directorate, denied that the CRA had been pressured to recoup fiscal benefits
rather than allowed to help charities comply with the legislation.232 For example,
the amounts identified by Statistics Canada as “foregone revenue” from tax
deductions were never used as a benchmark by the Charities Directorate in its
work.
6.8.2.1 The Fiscal Regulator Model and Confidentiality
Bromley argued in his paper that the confidentiality provisions binding a fiscal
regulator such as the CRA can make its fight against TF, less effective.233
Despite the expanded disclosure now allowed under the ITA because of
amendments introduced by Bill C-25, the ITA still prevents the CRA from
disclosing some information that may be relevant to fighting TF. In contrast, the
Charity Commission of England and Wales discloses on its website examples of
cases where the Commission has investigated registered charities for various
matters, including alleged involvement in terrorism. There were 20 reports
on the Commission’s website as of June 2008. In a 2008 report about one
investigation, the Charity Commission released information that included the
name and general description of the charity, the source of the Commission’s
concern, when the Commission initiated its inquiry, the issues at stake, the time
scale of the inquiry, the findings, the regulatory action taken, the impact of the
Commission’s intervention, the resources applied to the investigation, the action
required of the charity’s trustees and, finally, “lessons for other charities.”234
230
231
232
233
234
Duff Paper on Charities and Terrorist Financing, p. 204.
Duff Paper on Charities and Terrorist Financing, p. 204.
Testimony of Terry de March, vol. 57, October 3, 2007, p. 7182.
Bromley Paper on Funding Terrorism and Charities, p. 16.
As an example, see the Newham Foursquare Church, online: United Kingdom Charity Commission
<http://www.charity-commission.gov.uk/investigations/inquiryreports/newham4.asp> (accessed June
6, 2008).
231
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The ITA limits the information that can be disclosed to any person about a charity
to the following:
(a) a copy of the charity’s governing documents, including its
statement of purpose;
(b) any information provided in prescribed form to the Minister
by the charity on applying for registration under [the ITA];
(c) the names of the persons who at any time were the charity’s
directors and the periods during which they were its
directors;
(d) a copy of the notification of the charity’s registration,
including any conditions and warnings;
(e) if the registration of the charity has been revoked or
annulled, a copy of the entirety of or any part of any
letter sent by or on behalf of the Minister to the charity
relating to the grounds for the revocation or annulment;
(f ) financial statements required to be filed with an information
return referred to in subsection 149.1(14);
(g) a copy of the entirety of or any part of any letter or notice
by the Minister to the charity relating to a suspension under
section 188.2 or an assessment of tax or penalty under [the
ITA] (other than the amount of a liability under subsection
188(1.1)); and
(h) an application by the charity, and information filed in
support of the application, for a designation, determination
or decision by the Minister under subsection 149.1(6.3), (7),
(8) or (13).235
6.8.2.2 Fewer Sanctions or Means of Redress are Available to the CRA
Because charities in many respects fall under provincial jurisdiction, the CRA
cannot remove a charity’s trustees or appoint managers. In this respect, it has
fewer powers than the England and Wales Charity Commission. However, the
CRA now has more sanctions available to it than before. Several intermediate
sanctions were introduced in 2005, giving the CRA more flexibility in dealing
with charities thought to be delinquent, including those found to be involved
in terrorism or TF.
235 Income Tax Act, s. 241(3.2).
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
6.8.2.3 A New Charities Regulator
Some parties before the Commission called for a new charities regulator in
Canada. The Air India Victims’ Families Association recommended that Canada
should consider adopting the Charity Commission model:
The federal government should work cooperatively with the
provinces and territories, to consider reforming the Canadian
regulatory framework for charitable and non-profit sectors,
in order to adopt where possible, the jurisdiction, structure,
powers, and modus operandi of the Charity Commission of
England and Wales.236
Professor Sidel summarized the advantages of the UK model when he wrote
about how “…the Charities Commission employs a broad range of investigative
and regulatory responses to concerns that charities have links with terrorism.”237
As well, the IN-AICCA238 submitted that the federal government,“…in conjunction
with the provincial regulatory authorities, adopt the approach of the Charities
Commission of the U.K. with respect to charities in order to provide a broad
range of investigative and regulatory responses.”239
Professor Duff addressed the constitutional problems associated with
regulating charities in Canada in his paper for the Commission, arguing that the
federal government and the provinces could jointly delegate their powers to a
regulatory agency and thereby avoid a bedevilling division of responsibility:
[F]ederal and provincial governments should consider
alternative arrangements to facilitate a more robust regulatory
regime for charities, involving at the very least the exchange
of information about charities and more ambitiously the
possible delegation of federal and provincial authority over
charities to an administrative agency that could exercise broad
supervisory and regulatory powers.”240
Professor Duff also called for measures that will treat charities and NPOs as allies
against terrorism:
[T]he other policy objective, I think, is to provide support to
charities and other voluntary organizations so that they can
236 Where is Justice?, AIVFA Final Written Submission to the Commission of Inquiry into the Investigation
of the Bombing of Air India Flight 182, February 29, 2008, p. 159.
237 Sidel Paper on Terrorist Financing and the Charitable Sector, p. 196.
238 Submissions of the Family Members of the Crew Victims of Air India Flight 182 and Indian Nationals, Air
India Cabin Crew Association, Sanjay Lazar and Aleen Quraishi [IN-AICCA Submission].
239 IN-AICCA Submission, p. 46.
240 Duff Paper on Charities and Terrorist Financing, p. 239.
233
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function appropriately and I think that they should be viewed
... as allies in the struggle against terrorism for the most part
rather than potential enemies or suspects in the struggle
against terrorism; allies in many respects that they build social
solidarity.241
The CRA has explored reform of the charity sector as part of CRA’s Voluntary
Sector Initiative (VSI) process,242 which included a brief consideration of the UK
model.
6.8.3 The Need for Charities to Receive Practical Guidance
Some Canadian charities believe that they are being left to fend for themselves
in an environment which they do not always fully understand.
In his paper, Carter argued that registered charities could unwittingly be affected
by new legislation aimed at fighting terrorism and TF. He described the Criminal
Code provisions dealing with terrorism and TF as producing a “Super Criminal
Code.” Almost any charity, particularly one conducting overseas operations,
could find itself caught by the provisions.243 Carter also suggested that the
“learning curve” for charities to understand the anti-TF regime was very high.244
He had not encountered any charity whose officials knew of the requirements
for charities carrying out international activities.245
Professor Sidel commented in his paper about the difficulties that many charities
face in complying with American best practices. He explained how the US Treasury
was required to withdraw guidelines drafted in 2002 because of widespread
concerns that they created unrealistic standards. New guidelines were issued in
2005, but the nonprofit community “…remained deeply concerned that these
so-called ‘voluntary best practices’ were in fact stealth law.”246
There is some support for new guidelines for Canadian charities. For example,
Carter recommended as follows:
241 Testimony of David Duff, vol. 85, November 29, 2007, p. 10891.
242 Treasury Board of Canada Secretariat, “Voluntary Sector Initiative,” online: Treasury Board of Canada
Secretariat <http://www.tbs-sct.gc.ca/rma/eppi-ibdrp/hrdb-rhbd/archive/vsi-isbc/description_e.asp>
(accessed March 3, 2009). See also Testimony of Blake Bromley, vol. 67, October 26, 2007, p. 8448.
243 Carter Paper on Impact of Anti-terrorism Legislation on Charities in Canada, pp. 6-24.
244 Testimony of Terrance Carter, vol. 67, October 26, 2007, p. 8397.
245 These requirements are set out in the US Department of the Treasury paper on best practices for
US-based charities and have been incorporated by reference into the CRA’s requirements for charities
in Canada. Testimony of Terrance Carter, vol. 67, October 26, 2007, p. 8401; U.S. Department of the
Treasury Anti-Terrorist Financing Guidelines: Voluntary Best Practices for U.S. – Based Charities, online:
US Department of the Treasury <http://www.treasury.gov/offices/enforcement/key-issues/protecting/
docs/guidelines_charities.pdf> (accessed March 3, 2009).
246 Sidel Paper on Terrorist Financing and the Charitable Sector, p. 180.
�Chapter VI: The Links Between the Charitable Sector and Terrorist Financing
In consultation with the charitable sector, the Canada Revenue
Agency [should] develop and put into effect “made-in-Canada”
best practice guidelines to provide assistance to applicants for
charitable status and registered charities in their due diligence
initiatives.247
The House of Commons Subcommittee on the Review of the Anti-terrorism Act
made a very similar recommendation:248
Such best practice guidelines would be based on the
experience of Canadian applicants and registered charities
in carrying out due diligence assessments in the Canadian
context, especially when such organizations have limited
resources and expertise to carry out such examinations. These
best practice guidelines should suggest both general policies
and checklists that could be administered by applicants
and registered charities in carrying out their due diligence
assessments.249
6.8.4 CRA Outreach and Education
The CRA has relationships with both national and international charities. As a
result, it is in a unique position to acquire information to help in the fight against
terrorism and TF. There appear to be no legislative constraints preventing the
Charities Directorate from conducting further outreach activities in vulnerable
communities and helping to strengthen existing bonds.
Even though the Charities Directorate, due to constitutional limitations, does not
have a broad range of tools, it could, as is the case with the Charity Commission
of England and Wales, become more involved at the “ground level,” and possibly
be seen more as an ally that can provide appropriate and timely information to
the public. A “hands-on” outreach program, especially in communities that are
more vulnerable to TF and to possible exploitation, might lessen the chances of
community members being co-opted to assist extremists.250
6.8.5 More Extensive Disclosure by the CRA
At present, section 241(3.2) of the ITA permits the CRA to publish certain
information about current or previously registered charities. Duff suggested that
it would be appropriate for information about applicants for charitable status to
be disclosed.251 The CRA could then publish, on its website or elsewhere, the
247
248
249
250
251
Carter Paper on Impact of Anti-terrorism Legislation on Charities in Canada, p. 43.
See Recommendation 28 in House of Commons Report on the ATA, p. 36.
House of Commons Report on the ATA, p. 36.
See Bromley Paper on Funding Terrorism and Charities, p. 17.
Testimony of David Duff, vol. 85, November 29, 2007, p. 10906.
235
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same information about applicants for charitable status that it now publishes
about registered charities. This would make more information available to
the public and to overseas communities in Canada. In turn, individuals and
communities, not only the CRA, could then monitor applicants for charitable
status, just as they are now able monitor registered charities.
�VOLUME FIVE
TERRORIST FINANCING
CHAPTER VII: RESOLVING THE CHALLENGES OF TERRORIST FINANCING
7.1 Introduction
Suppressing terrorism by attacking the financing efforts behind it is an uphill
battle. Terrorist acts themselves may cost very little. The direct costs of the actual
bombing of Air India Flight 182 that claimed 329 lives have been estimated at
under $10,000, although the costs of maintaining the conspiracy that led to the
bombing would have been higher. The cost of the 2004 Madrid train bombings
that claimed 191 lives was estimated at €15,000, not including significant
organizational costs.
Terrorist financing (TF) is also complex. There are many sources of the relatively
small sums needed to finance terrorism, including open fundraising, extortion,
use of charities, contributions from legitimate employment and business income,
proceeds of organized crime and direct state support. There are also many
hard-to-detect ways to move funds to their destination. The 9/11 Commission
concluded that “…trying to starve the terrorists of money is like trying to catch
one kind of fish by draining the ocean.”1
It is impossible to obtain a clear picture of the extent of TF in Canada. In 2006-07
alone, FINTRAC disclosed to other agencies 33 cases involving $200 million of
suspicious transactions that may have involved TF or other threats to the security
of Canada. In addition, it disclosed eight cases involving suspicious transactions
that may have involved money laundering and TF or threats to the security of
Canada. The dollar value of the disclosures in these eight cases was $1.6 billion.2
Even if only a small percentage of those suspicious transactions turned out in
fact to involve TF, the dollar value would be significant.
Terrorist groups can respond quickly to efforts to suppress TF in one sector, such
as financial institutions, by moving to another, such as informal value transfer
systems. Revoking the registration of a charity that has been associated with
TF may simply result in the organization becoming a not-for-profit body that
continues to funnel funds to terrorists. Professor Martin Rudner suggested
1
2
National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report,
p. 382, online: National Commission on Terrorist Attacks Upon the United States <http://www.911commission.gov/report/911Report.pdf> (accessed September 23, 2009).
Financial Transactions and Reports Analysis Centre of Canada, FINTRAC 2007 Annual Report,
p. 8, online: Financial Transactions and Reports Analysis Centre of Canada <http://www.fintrac.gc.ca/
publications/ar/2007/ar-eng.pdf> (accessed June 3, 2009).
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that an operating assumption behind any financial intelligence strategy “…
must surely be that criminal and terrorist (mis-)behavior is almost infinitely
adaptable.”3
Much of Canada’s anti-TF effort is based on an anti-money laundering model
that focuses on transactions of $10,000 or more. Although there is some overlap,
the money laundering model is not easily transferred to TF, which often involves
smaller sums and “clean” money – money not derived from the proceeds of crime.
The small sums needed to finance terrorist acts are not likely to be discovered
through routine collection and processing of information by FINTRAC and the
CRA in compliance with their governing laws. Legislation is only one of several
approaches needed to combat TF. Current and accurate intelligence about
terrorists is also necessary because many transactions involving TF may not
otherwise attract attention.
In dealing with TF, Canada does not make the best use of its resources. Neither
FINTRAC nor the CRA are sufficiently integrated into the flow of intelligence
to maximize their efforts at detecting TF. Nor can they easily provide the best
financial intelligence about TF cases to CSIS and the RCMP.
In Canada, there has been only one TF conviction – the Khawaja4 case – and that
case came to light through security intelligence and police investigations, not
through the anti-TF work of FINTRAC.
Deficiencies in Canada’s TF regime have been identified by many external
reviews, conducted both domestically and by international bodies such as
the Financial Action Task Force (FATF). Such reviews serve to underline the
importance of subjecting all counterterrorism activities to ongoing review of
their effectiveness.
Even improved anti-TF efforts will not always succeed. It needs to be recognized
that the criminals who surreptitiously gather and disburse funds to terrorists are
cunning and ideologically-driven. No single effort by government can defeat
them. Constant vigilance and a cooperative approach among agencies are
necessary.
Initiatives to counter TF should be seen as one part of a comprehensive strategy
to counter terrorism. Even if they cannot stop the flow of funds, these initiatives
can produce financial intelligence that in turn can show links among terrorists
– links that might otherwise not be discovered. Anti-TF measures can also
produce evidence for TF prosecutions which can disrupt terrorist plans and
punish terrorists well before a plot is carried out.
TF prosecutions, like terrorism prosecutions in general, will be very challenging.
However, they will be more manageable with the improvements to the
3
4
Martin Rudner, “Using Financial Intelligence Against the Funding of Terrorism” (2006) 19(1)
International Journal of Intelligence and Counterintelligence 32 at 50 [Rudner Article on
Using Financial Intelligence].
R. v. Khawaja, [2008] O.J. No. 4244 (Sup. Ct.) at para. 133.
�Chapter VII: Resolving the Challenges of Terrorist Financing
prosecution system recommended in Volume Three of this report: expert
prosecutors serving under a Director of Terrorism Prosecutions and fairer and
more efficient means to decide when the disclosure of intelligence is necessary
for a fair trial.
7.2 Current and Potential Performance Indicators for Canada’s AntiTF Program
7.2.1 The Need for Better Mechanisms to Review Performance
“Performance” or “result” indicators facilitate assessing programs or systems.5
However, it is not always easy to show concrete results against terrorism or TF.
There is a shortage of evidence that the anti-TF program has produced
concrete results. Federal government officials stressed the difficulty of doing
performance assessments about activities that involve preventing some future
event or deterring crime.6 Accurately evaluating a system to combat a covert
phenomenon is invariably difficult. As Keith Morrill of DFAIT testified, “…
[n]obody notices a war that is averted….”7 Diane Lafleur of the Department of
Finance made similar remarks about assessing the AML/ATF Initiative as a whole.
She did, however, suggest that some performance indicators existed:
[I]t’s hard to measure what hasn’t happened as a result of
the actions that you’ve taken, but there are other indicators
that you can look to; statistics, for example; [the] number
of FINTRAC disclosures; [the] number of seizures by Canada
Border Services Agency…prosecutions, arrests, et cetera, that
eventually, I think, will be able to paint a much better picture
of the success of the initiative.8
In his paper, Professor Nikos Passas stated that one advantage of using antimoney laundering measures for TF purposes was the acquisition of statistics
and numbers that could be provided as evidence of the value of work done by
the authorities:
Some advantages of [using anti-money laundering measures
for TF purposes] were also that quantitative measures of action
and success could be provided: one could cite the numbers of
designated suspected terrorists, accounts closed, amounts or
5
6
7
8
For the remainder of this chapter, these will be called “performance” indicators.
Testimony of Keith Morrill, vol. 54, September 28, 2007, pp. 6721-6722; Testimony of Donna Walsh, vol.
57, October 3, 2007, pp. 7152-7153.
Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6721.
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6765.
239
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assets frozen, the growing number of countries following the
lead, etc.9
However, not all these types of statistics are collected in Canada. At best, the
development of quantitative measures is a work in progress.10 The 2008 FATF
Mutual Evaluation of Canada gave a “Largely Compliant” rating for Canada’s
efforts to collect statistics, but the FATF also identified several areas where
Canada needs to improve.11
More comprehensive statistics would give a better understanding of the antiTF program and facilitate regular international and domestic assessments of
its performance. As was mentioned during the Commission hearings, further
information that can be used to assess performance will be collected in the
work leading up to the completion of the Performance Evaluation Framework,
work led by Finance Canada.
7.2.2 Number of Prosecutions or Convictions
Disrupting and preventing terrorist activities are important objectives, but the
public may understandably measure “success” by the number of TF prosecutions
or convictions. As of January 2009, more than seven years after the enactment
of the Anti-terrorism Act12 (ATA), there has been only one successful conviction
in Canada in a case that included TF charges, although a few other prosecutions
are now under way and may lead to convictions.
The current number of prosecutions and convictions in Canada does not appear
to show that the anti-TF program has achieved significant success. This lack
of prosecutions can be blamed only in part on the inherent challenges of TF
prosecutions or on the relative infancy of the anti-TF program.13
9
10
11
12
13
Dr. Nikos Passas, “Understanding Terrorism Financing,” Report prepared for the Major Commission of
Inquiry into the Investigation of the Bombing of Air India Flight 182 in Vol. 2 of Research Studies:
Terrorism Financing Charities and Aviation Security, p. 77 [Passas Report on Terrorism Financing].
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6765; Testimony of Donna Walsh, vol. 57,
October 3, 2007, p. 7153.
Financial Action Task Force, Third Mutual Evaluation on Anti-Money Laundering and Combating the
Financing of Terrorism, Canada, February 29, 2008, p. 289, online: Financial Action Task Force <http://
www.fatf-gafi.org/dataoecd/5/3/40323928.pdf> (accessed January 27, 2009) [2008 FATF Mutual
Evaluation of Canada].
S.C. 2001, c. 41.
In a paper prepared for the Commission, Professor Robert Chesney of Wake Forest University
commented on the efficacy of TF charges. In the United States, such charges are usually pursued
through charges of material support for terrorism. Chesney observed that “…even if the government
has insufficient evidence to prosecute the suspect for a past act of violence or, more to the point,
for an anticipated act of violence, it may yet have the option of pursuing a support charge in the spirit
of preventive charging”: Robert M. Chesney, “Terrorism and Criminal Prosecutions in the United
States” in Vol. 3 of Research Studies: Terrorism Prosecutions, p. 91 [Chesney Paper on Terrorism and
Criminal Prosecutions]. This is sometimes described as the “Al Capone” method of charging. The
appendices to Chesney’s paper reveal the aggressive efforts of American officials with respect to TF
charges and indicate that the United States has far more experience with TF prosecutions than Canada:
see Chesney Paper on Terrorism and Criminal Prosecutions, pp. 121-148.
�Chapter VII: Resolving the Challenges of Terrorist Financing
In the one successful prosecution to date that involved TF charges – the Khawaja
case – the indictment listed several terrorism-related charges, namely offences
relating to the facilitation of terrorism and the preparation of explosive devices
to perpetrate a terrorist attack. Khawaja was also charged with two offences
related to TF. The first TF charge stemmed from instructing an individual to “…
open a bank account and conduct financial transactions on [Khawaja’s] behalf
for the benefit of a terrorist group.” The second charge related to providing,
inviting a person to provide and making available property and financial services
intending or knowing that they would be used for the purpose of facilitating or
carrying out a terrorist activity or for the purpose of benefiting others who were
facilitating or carrying out terrorist activity.14
In October 2008, Khawaja was found guilty of five of the original seven counts
charged, including both counts that had TF elements, and not guilty on two
counts (although he was found guilty of included offences with respect to
those two counts). He was subsequently sentenced to ten-and-a-half years’
imprisonment, in addition to the five years he had already spent in custody
awaiting trial.15
In early 2009, another terrorism prosecution with TF elements was still underway
– the “Toronto 18.”16 In both the Khawaja and “Toronto 18” prosecutions, TF
charges were among others relating to terrorism. However, Canada’s approach
in general continues to reflect an emphasis on “chasing the bomber.”
TF prosecutions can be expensive and time-consuming. Because of this, they
should be used strategically to disrupt groups that pose the greatest risk.
As discussed in Chapter II of Volume Three of this report, there should be
mechanisms within government, including the National Security Advisor, to
facilitate decisions about whether it is appropriate to refer TF matters to police
or prosecutors or to use them as an ongoing source of intelligence. If a decision
is made to prosecute, the Director of Terrorism Prosecutions – a new position
that the Commission recommends – should facilitate the process.
In the Khawaja case, the evidence of TF was not the product of financial
intelligence provided by FINTRAC or another agency.17 Rather, it was the product
of traditional intelligence and investigative techniques.
After the Commission’s hearings, another RCMP investigation resulted in TF
charges against an individual. The charges involved allegations of financing the
Liberation Tigers of Tamil Eelam (LTTE) in Canada through the recently “listed”
World Tamil Movement (WTM). This was the first Canadian prosecution based
14
15
16
17
Contravening s. 83.03(a) of the Criminal Code, R.S.C. 1985, c. C-46.
The Reasons for Sentence can be found online: The Globe and Mail <http://images.theglobeandmail.
com/v5/content/pdf/ReasonsforSentences0312.pdf> (accessed September 24, 2009).
The informal name of the case has changed several times, from the “Toronto 18” to the “Toronto 13” to
the “Toronto 11,” as some charges were dropped against various defendants. The term “Toronto 18” will
be used here.
The Commission was not privy to all the facts of the Khawaja investigation. It has relied on what has
been made public and on informal discussions with the lead prosecutor.
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primarily on TF charges since the Anti-terrorism Act came into force. It would be
inappropriate to comment on the merits of the case, but it is proper to note that
the LTTE has been suspected for years of being one of the main actors in TF in
Canada.
Federal officials stated that building strong TF cases is a lengthy process, with
many dead ends and variables. Other countries appear to face similar problems.
RCMP Superintendent Reynolds described TF investigations as “an extremely
complex type of investigation.”18 He noted that investigations can very easily
extend up to three years.19 It takes time, he said, to put resources in place and
gather intelligence once new legislation comes into force.20 This adds to the
length of investigations. He added that the disclosure requirements imposed
on the Crown by the Supreme Court of Canada in R. v. Stinchcombe21 often
create additional hurdles and lengthen terrorism investigations. Other issues
(for example, dealing with national security claims under the Canada Evidence
Act22) further complicate investigations.
Mark Potter, Assistant Director for Government Relationships at FINTRAC, made
a similar observation about the length of time it takes to bring a TF case to court:
“…[S]o many of these investigations take a long time and, to get to the stage of
a prosecution from when we provided intelligence, the investigation can take
several years.”23
In his testimony before the Commission, John Schmidt, a senior financial
intelligence analyst seconded from FINTRAC to the Integrated Threat Assessment
Centre (ITAC), described the complex nature of TF: “[T]he terrorist financing or
resourcing trail is not like a piece of string one can follow from its beginning to
its end, but more like a river system with many tributaries and outflows, many
obstructions and alternative routes, many different things floating along its
course….”24
A 2007 Court of Quebec decision involving an investigation of the alleged
financing of the LTTE by the WTM demonstrates the potential complexity of
TF investigations.25 The investigation began in 2003. Search warrants issued in
April 2006 led to the seizure of documents and various types of multimedia,
such as CDs, DVDs and videotapes. In 2007, the RCMP asked for a court order
under section 490(3) of the Criminal Code26 to allow the continued detention of
items seized during the investigation.
18
19
20
21
22
23
24
25
26
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6819.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6820.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6819.
[1991] 3 S.C.R. 326. These disclosure requirements are discussed in Chapter V of Volume Three.
R.S.C. 1985, c. C-5. For more on the subject, see Testimony of Rick Reynolds, vol. 55, October 1, 2007,
pp. 6843-6847. The Canada Evidence Act is discussed more extensively in Volume Three.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6998.
Testimony of John Schmidt, vol. 53, September 27, 2007, p. 6655.
Boudreau v. World Tamil Movement (May 31, 2007), Montreal District, 500-01-017300-044 (C.Q. (Crim &
Pen. Div.)), Villemure, Q.C.J.
R.S.C. 1985, c. C-46.
�Chapter VII: Resolving the Challenges of Terrorist Financing
Most of the documents seized were in Tamil. Of almost 5,000, more than 3,400
needed translation. In addition, 18 computer hard drives containing files
written in Tamil were seized. The case involved 63 suspects and international
transfers of funds. The investigation required forensic accountants, computer
technicians and lawyers. From the time of the seizure in April 2006 to the time of
the application to continue the detention of items seized, eight police officers,
a civilian and an interpreter worked full time on the investigation. The judge
concluded that detention of the items seized for a further year was justified. In
April 2008, the case was the subject of a 184-page affidavit, another indicator of
its complexity.27
Investigations of TF by law enforcement authorities may not always lead to TF
prosecutions. They may, however, lead to the disruption of terrorist plans or
activities and unearth previously unknown links among terrorists. In the end, a
TF investigation may help prosecute a non-TF offence. TF investigations may also
help authorities understand wider terrorist networks. It may be worthwhile to
forego prosecution of minor TF players to obtain, over the long term, intelligence
and evidence about more important figures. For this reason, measuring the
success of anti-TF measures by looking at the number of TF prosecutions might
not capture the true value of the work.
7.2.3 The Value of Intelligence Obtained
Obtaining further intelligence from a TF investigation can be an indicator of the
value of anti-TF operations, although the impact of this intelligence is difficult
to assess.
7.2.4 Number of Entities “Listed” under the Criminal Code
The various listing processes in Canada were described in Chapter II of this
volume. Listing is an important component of the TF tool kit since reporting
entities are required to determine whether their accounts and services involve
listed entities.28 Any transaction linked to one of the listed entities will be reported
to FINTRAC as a suspicious transaction. Listed entities also become prime targets
for any agency with a role in the fight against terrorism generally.
It could be argued that the increasing number of listed entities is an indication
that Canada is making progress in the fight against terrorism and TF.29
Furthermore, the listings under the Criminal Code – unlike the listings under UN
Resolution 126730 – are made using a Canadian process.
27
28
29
30
Affidavit of Shirley Davermann, April 1, 2008.
Criminal Code, R.S.C. 1985, c. C-46, ss. 83.08-83.12.
Since each listing is revised at regular intervals, this should weed out any entities that are no longer
involved in terrorism. Any increase in the number of entities listed would therefore not be due to
entities remaining on the list after their terrorist activities have ceased.
The listing process is explained in section 2.4.
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7.2.5 Number and Monetary Value of Frozen Accounts
The value of funds held in frozen bank accounts belonging to listed entities
changes over time, since funds may be forfeited or released. A total of $186,335
was held frozen in 10 accounts in Canadian financial institutions as of November
2006.31 As of April 2008, $69,625 was held frozen in nine accounts.32 These
numbers simply show the total funds that may belong to a listed entity, held by
Canadian financial institutions at a given time. There is nothing to indicate what
portion of those funds, if any, was linked to terrorism.
7.2.6 FINTRAC Performance Indicators
FINTRAC’s performance was a prominent topic before the Commission. In
many ways, FINTRAC is the centerpiece of the Canada’s anti-TF program. For
this reason, FINTRAC receives a large portion of the resources available for this
purpose. However, FINTRAC’s effectiveness has often been questioned. There
has been little evidence of value in FINTRAC’s contribution to TF investigations,
prosecutions or convictions. In addressing privacy concerns relating to FINTRAC
operations, the Office of the Privacy Commissioner of Canada criticized FINTRAC
for failing to demonstrate results:
[T]he Centre has compiled a detailed database on individual
Canadians and their finances, maintaining these records for a
decade or more in some cases. And from this regime has come
little discernable benefit.33
That is not to say that FINTRAC is not doing its work as it should. Existing
performance evaluation mechanisms simply may not yet fully capture the
value of FINTRAC’s work. Furthermore, concrete results in complex financial
investigations could be long in coming and so may not reflect the true value in
the short term.
FINTRAC publishes an annual report, a performance report and a report on plans
and priorities each year.34 FINTRAC officials argued that several performance
indicators are already available. As a starting point, according to Mark Potter
of FINTRAC, the number of its disclosures can be considered an indication of
value.35 These numbers are its most commonly mentioned indicators in media
reports and are featured in annual reports. However, questions remain about
31
32
33
34
35
Final Submissions of the Attorney General of Canada, Vol. III, February 29, 2008, para. 165.
Exhibit P-443: Summary of Meeting between Commission Counsel and Department of Finance, April
10, 2008, p. 5.
Exhibit P-278, Tab 5: Office of the Privacy Commissioner of Canada, Submission in Response to the
Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, “Canada’s Financial
Monitoring Regime,” September 2007, p. 2 [OPC Submission on Canada’s Financial Monitoring Regime].
A senior official of the OPC stated that this opinion may change once the OPC completes its audit of
FINTRAC: see Testimony of Carman Baggaley, vol. 71, November 6, 2007, p. 9095.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6972.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6951.
�Chapter VII: Resolving the Challenges of Terrorist Financing
what those numbers prove. In the 2005-06 reporting period, for example,
FINTRAC made disclosures of suspected TF and other threats to the security of
Canada valued at $256 million, but how much, if any, of that amount was related
to TF is not clear.36 One RCMP official questioned the $256 million figure in his
testimony:
I can only comment from the perspective of the RCMP and
our investigation and we don’t – we can’t see that – we’re not
seeing that level of funding that we can attribute to terrorist
financing. So I don’t know how [FINTRAC is] attributing that.37
Decreases in the dollar value of disclosures in a given year may be because (i) the
program is working, (ii) TF cases are more difficult to identify or (iii) FINTRAC is
not effective. It is difficult to view the dollar value of disclosures as a performance
indicator.
Professor Anita Anand criticized the use of the number of disclosures as a
performance indicator: “…I think there’s a gap in the legal regime at that very
point that if FINTRAC is reporting a suspicious activity and that is supposed to
be evidence of its efficacy, in my mind that is insufficient for us to draw that
conclusion.”38
Potter stated that the fact that FINTRAC had received 15 million financial
transaction reports during the 2005-06 fiscal year (the number rose to 21.6
million for the 2007-08 fiscal year39) showed that the deterrence aspect of its
work was effective.40 However, the Office of the Privacy Commissioner of Canada
suggested that entities might simply “over-report” to ensure compliance with
reporting requirements and to avoid penalties for failing to report.41
As Professor Anand suggested in her paper for the Commission, a cost-benefit
analysis is needed, especially since much of the cost of FINTRAC’s reporting
requirements are borne by private sector reporting entities.42
The routine collection of transaction reports should continue, as required by
the Proceeds of Crime (Money laundering) and Terrorist Financing Act43 (PCMLTFA),
36
37
38
39
40
41
42
43
Financial Transactions and Reports Analysis Centre of Canada, FINTRAC 2006 Annual Report,
p. 8, online: Financial Transactions and Reports Analysis Centre of Canada <http://www.fintrac.gc.ca/
publications/ar/2006/ar-eng.pdf> (accessed June 3, 2009).
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6868.
Testimony of Anita Anand, vol. 85, November 29, 2007, p. 10936.
Financial Transactions and Reports Analysis Centre of Canada, FINTRAC 2008 Annual Report,
p. 16, online: Financial Transactions and Reports Analysis Centre of Canada <http://www.fintrac.gc.ca/
publications/ar/2008/ar-eng.pdf> (accessed February 24, 2009).
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6952
OPC Submission on Canada’s Financial Monitoring Regime, p. 4.
Anita Indira Anand, “An Assessment of the Legal Regime Governing the Financing of Terrorist Activities
in Canada” in Vol. 2 of Research Studies: Terrorism Financing Charities and Aviation Security [Anand
Paper on Legal Regime Governing Terrorist Financing].
S.C. 2007, c. 17.
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but the focus of performance measures should shift to end results such as
prosecutions and the distribution of valuable intelligence to other agencies.
FINTRAC’s performance should not be measured mainly by how many
transaction reports it receives.
7.3 Lack of Adequate Performance Indicators and Assessment
Mechanisms Generally
Most, if not all, current performance assessments do not show whether Canada
is winning or losing the fight against TF. It may simply be that appropriate data
is not available or is not being used to assess Canada’s performance.
The lack of relevant statistics to help measure Canada’s performance in TF
matters is not a recent problem. Others noted the deficiency even before the
Commission began its investigation of TF. The Auditor General of Canada made
the following observation in 2004:
The Treasury Board requires that departments and agencies
measure program performance, relate it to program objectives,
and report on results achieved. Indicators by which to
measure performance are to go beyond activities and outputs
to outcomes. Weighed against these requirements, the
information on the [AML/ATF] Initiative that has been collected
and reported to date is limited.44
It would help evaluations of the anti-TF program if federal agencies were
required to compile statistics about the program’s workings.
Diane Lafleur of the Department of Finance stated that Canada has “…been
working diligently in the wake of recommendations from the Auditor General,
among others, to develop a better performance framework for the [AML/ATF]
initiative, and that is ongoing work right now.”45 The federal government now has
a plan to prepare future assessments of the AML/ATF Initiative. The Department
44
45
Report of the Auditor General of Canada to the House of Commons, November 2004, Chapter 2:
“Implementation of the National Initiative to Combat Money Laundering,” para. 2.86, online: Office
of the Auditor General of Canada <http://www.oag-bvg.gc.ca/internet/docs/20041102ce.pdf>
(accessed January 24, 2009) [2004 Auditor General Report on Money Laundering]. This lead to the
recommendation, in para. 2.92, that: “The government should establish effective mechanisms for
monitoring the results of disclosures, including the extent to which disclosures are used and the
impact they have on the investigation and prosecution of money-laundering and terrorist-financing
offences. It should report summary information on these results to Parliament regularly.”
Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6765. See also Testimony of Mark Potter,
vol. 56, October 2, 2007, p. 6951, where he said that “…there are certainly efforts under way to
strengthen results management, to strengthen the evaluation framework for the regime, so that all
partners involved in combating money laundering and terrorist financing are able to provide
information that contributes to a better way of measuring our overall results, which is getting at the
very end point of how many people are convicted.”
�Chapter VII: Resolving the Challenges of Terrorist Financing
of Finance has retained an external consulting firm to prepare a performance
evaluation framework.46 The framework has several objectives:
• Describe the objectives, activities, outputs and expected outcomes
of the Regime;
• Summarize the roles and responsibilities of each of the partner
departments and agencies;
• Identify the principal evaluation issues that should be addressed
during the full evaluation of the Regime; and
• Identify the performance indicators for each of these issues and
assess data requirements to support analysis of these indicators,
including responsibility for collecting the data and frequency.47
The continuing lack of a viable performance evaluation program is not
acceptable. The framework described above should facilitate future assessments
of the Initiative. Review of the effectiveness of all anti-TF measures should be
ongoing.
The framework document being prepared should be implemented as quickly
as possible, and should be made public except where national security or
operational interests forbid. Such a framework should be nuanced enough to
avoid focusing simply on qualitative measures, and should assess how well the
anti-TF program supports Canada’s overall anti-terrorism strategy.
7.4 Challenges Relating to FINTRAC
7.4.1 Privacy
FINTRAC collects significant personal information about individuals who carry
out financial transactions. It keeps that information for up to 15 years, depending
on the nature of the information.48
In Canada, privacy considerations play a major role in shaping policies and laws
on TF. Mark Potter of FINTRAC testified that privacy considerations appear to
have been accorded greater weight in Canada than in some other countries.49
Satisfying privacy concerns in light of the needs of the anti-TF program, the
complex nature of TF and Canada’s international TF obligations, presents
significant challenges.
The Office of the Privacy Commissioner of Canada described its concerns about
intrusiveness of the main legislative tool of the anti-TF program, the PCMLTFA:
46
47
48
49
The document was shown to Commission Counsel. At the request of Department of Finance officials,
the document has not been made public.
Exhibit P-439: Department of Finance Response to Supplementary Questions of the Commission,
Question 2 [Department of Finance Response to Supplementary Questions of the Commission].
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, ss. 54(d), (e) [PCMLTFA].
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6967.
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[T]he PCMLTFA regime has created a mandatory reporting
scheme allowing government to access personal information
for investigatory purposes without judicial authorization and
without satisfying the standard requirement of reasonable and
probable grounds but with sharp penalties for organizations
and individuals who fail to report. As Stanley Cohen (General
Counsel, Department of Justice) remarked before a Senate
Committee reviewing C-25, such a mandatory reporting
of suspicious transactions tests the limits of constitutional
authority in Canada.50
The Office of the Privacy Commissioner also raised concerns about the expansion
of the reporting program – the increase in the range of private sector entities
required to report to FINTRAC – that Bill C-2551 introduced into the PCMLTFA.52
Mark Potter of FINTRAC testified that the limits contained in the Charter and
privacy laws were “simply the reality in Canada.” Furthermore, he said, the
changes introduced by Bill C-25 responded to law enforcement’s desire for more
information from FINTRAC while still “...maintaining that balance of Charter and
privacy rights in what we are allowed to provide.”53
The federal government appears to have gone a considerable way towards
addressing privacy concerns in legislation dealing with TF. FINTRAC cannot
divulge certain information to private sector reporting entities. In addition,
FINTRAC cannot compel private sector entities to provide information about
a specific transaction that has been identified to FINTRAC in a Voluntary
Information Record (VIR) – for example, a VIR from the RCMP. This should satisfy
some Charter privacy concerns about unreasonable search or seizure.
The government appears to have understood the specific privacy considerations
attached to the information that comes under the purview of FINTRAC. In
addition, Bill C-25 has added another review mechanism for the AML/ATF
Initiative – the Privacy Commissioner of Canada. Every two years, the Privacy
Commissioner must “…review the measures taken by [FINTRAC] to protect
information it receives or collects” under the PCMLTFA.54 The review will focus on
the privacy measures and how personal information is protected and handled
by FINTRAC. It will not consider the substantive work and mandate of FINTRAC.
The Privacy Commissioner, Jennifer Stoddart, testified that her Office would
not have an oversight role: “We’re simply going to be looking at…[FINTRAC’s]
information handling procedures and processes through our audit.”55
50
51
52
53
54
55
OPC Submission on Canada’s Financial Monitoring Regime, pp. 4-5, 7.
An Act to amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the
Income Tax Act and to make a consequential amendment to another Act [Bill C-25].
OPC Submission on Canada’s Financial Monitoring Regime, pp. 2-4.
Testimony of Mark Potter, vol. 56, October 2, 2007, pp. 6966-6967.
PCMLTFA, s. 72(2).
Testimony of Jennifer Stoddart, vol. 72, November 6, 2007, p. 9006.
�Chapter VII: Resolving the Challenges of Terrorist Financing
Reviews of the effectiveness of FINTRAC should occur alongside privacy audits.
Effectiveness is not entirely divorced from privacy considerations because
privacy intrusions are more easily justified if shown to be effective in preventing
TF and acts of terrorism.
FINTRAC is described in the PCMLTFA as an independent agency that “…acts
at arm’s length from law enforcement agencies and other entities to which it
is authorized to disclose information.” 56 It was positioned this way because
reporting entities must report a broad range of financial transactions to
FINTRAC. The drafters of the PCMLTFA thought that it would constitute an
unacceptable privacy intrusion to allow FINTRAC freely to give information
about an individual’s financial transactions, or even an analysis based on that
information, to law enforcement. Privacy concerns also explain in part why the
O’Connor Commission recommended that FINTRAC be subject to review by the
Security Intelligence Review Committee (SIRC).
The 2008 FATF Mutual Evaluation of Canada described the justification offered
for the arm’s-length relationship:
The decision to provide police and other recipients with
designated information only when FINTRAC reaches its
threshold, rather than to provide unrestricted access to
FINTRAC’s data holdings, reflects the fact that FINTRAC receives
a large amount of varied financial information on persons
and entities, the vast majority of which is legitimate and not
relevant to any investigation or prosecution.57
Janet DiFrancesco, Assistant Director for Macro-Analysis and Integration within
the Operations Sector at FINTRAC, testified that being at arm’s length from other
bodies is an advantage:
[O]ur regime is -- was created to be consistent with the Charter
of Rights, and it does of course consider privacy laws but I
think one of the advantages that FINTRAC does have, having
been created at arm’s length, is that we are also able to collect
what we call more objective reports, prescribed transactions in
terms of international wire transfers and large cash transaction
reports.58
It has been suggested that FINTRAC’s arm’s-length relationship with other
agencies is necessary to ensure compliance with the right to protection against
56
57
58
PCMLTFA, s. 40(a).
2008 FATF Mutual Evaluation of Canada, para. 382.
Testimony of Janet DiFrancesco, vol. 56, October 2, 2007, pp. 6967-6968.
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unreasonable search or seizure guaranteed by section 8 of the Charter.59 Both TF
and money laundering laws might be challenged as violating Charter rights; in
the absence of any judicial guidance, this remains an open question dependent
on the circumstances and on the exceptions in the Charter.
The “arm’s-length” concept originated in money laundering and does not
necessarily fit with the state’s more compelling interests with respect to TF.
Although the arms-length arrangement is designed to ensure that the FINTRAC
system respects privacy values and does not allow law enforcement or security
intelligence agencies unimpeded access to the vast amount of financial
information that FINTRAC has collected without warrant, the arrangement has
disadvantages.
The most significant disadvantage is that the arm’s-length concept could
encourage FINTRAC to operate in its own silo. FINTRAC might be reluctant to pull
information into it, and other agencies might be reluctant to give information
to FINTRAC. Instead, CSIS, the RCMP, CBSA, CSE and other agencies should all be
encouraged to share information with FINTRAC, and FINTRAC should actively
seek intelligence from these agencies to help guide its work.
As well, the arm’s-length metaphor is misleading to the extent that it suggests
that FINTRAC cannot receive or even provide information to law enforcement
and security intelligence agencies. The PCMLTA does not prevent FINTRAC from
receiving information from the RCMP, CSIS and other agencies, and Bill C-25 has
significantly expanded the range of information that FINTRAC can disclose to
other agencies.
The arm’s-length relationship between FINTRAC and the recipients of its
disclosures should be re-examined in light of the need for more extensive
sharing of information among agencies in TF matters.
Even if moving away from an arm’s-length relationship did violate the Charter
provision against unreasonable search or seizure in section 8, there may be
sufficient flexibility in section 1 of the Charter to justify such an infringement.
The Supreme Court of Canada concluded in Hunter v. Southam60 that a lower
standard could be justified to authorize searches in the national security context
than in ordinary criminal cases. This possibility has largely been left unexplored.
Courts might rely on Hunter v. Southam to accept lower standards for searches
dealing with TF than with money laundering. A national security justification,
coupled with the need to meet Canada’s international commitments with
respect to TF, makes the government’s case for justifying limits on privacy and
other Charter rights much stronger in TF matters than in the money laundering
context. As a result, more extensive information-sharing arrangements may
be constitutionally acceptable in terrorism and TF matters than in “ordinary”
criminal money laundering cases.
59
60
Stanley A. Cohen, Privacy, Crime and Terror: Legal Rights and Security in a Time of Peril (Markham:
LexisNexis, 2005), pp. 266-272.
Hunter v. Southam, [1984] 2 S.C.R. 145.
�Chapter VII: Resolving the Challenges of Terrorist Financing
7.4.2 The Critical Importance of Voluntary Information Records in
FINTRAC’s Terrorist Financing Work
The smaller amounts that are typically involved in TF cases than in money
laundering cases impede attempts by FINTRAC to generate TF leads on its own.
Fortunately, FINTRAC is empowered to receive information volunteered by
anyone. As noted in Chapter III, the RCMP, CSIS, CSE, ITAC, CBSA, CRA, DFAIT
and other agencies can voluntarily provide information to FINTRAC by way of a
form entitled a Voluntary Information Record (VIR). Foreign FIUs and individuals
can also volunteer information,61 although they would not use a VIR to do so.
Private sector reporting entities provide Suspicious Transaction Reports (STRs)
to FINTRAC, in addition to reports about transactions that exceed a given
monetary threshold.
The VIR process is vital to the success of FINTRAC’s work on TF. As noted in
Chapter III, about 90 per cent62 of the possible TF cases that come to FINTRAC’s
attention do so because FINTRAC has received law enforcement or CSIS VIRs.
This illustrates the importance of shared intelligence to help identify targets. It
is not surprising that VIRs from CSIS or the RCMP are better at identifying targets
than the millions of transaction reports that financial institutions routinely make
to FINTRAC each year.
Once FINTRAC receives a VIR, its TF Unit determines whether it can produce an
analysis for the submitting agency. FINTRAC should also, in appropriate cases,
provide that same analysis to other relevant agencies, a step that at present
can be inhibited by caveats attached by the agency submitting the VIR. Where
appropriate, FINTRAC should seek exceptions to the caveats to allow further
dissemination of the intelligence that the originating agency provided.
There are limits to the effectiveness of transaction reports. The solution is not
always to add inflexible financial controls that may adversely affect legitimate
activities and impose substantial costs on private sector partners. The key is
to take an approach to sharing information and identifying targets flexible
enough to respond to the ways that terrorists adapt to changing regulations.
As Professor Passas stressed, “…[w]e have to clearly identify our main problems
and targets, collect and analyze critically the evidence on their modus operandi,
motives, aims, financing and support, and then focus on carefully planned and
consistently applied policies that are instrumental to our goals and minimize the
externalities and adverse effects.” 63 Furthermore, “…the objectives and functions
of financial controls must be well understood, and particularly the point that
61
62
63
PCMLTFA s. 54(a). CSIS provides more VIRs to FINTRAC than any other agency.
Testimony of Janet DiFrancesco, vol. 56, October 2, 2007 at p. 6956. Mark Potter could not give a
number for the operations of FIUs in other countries: see Testimony of Mark Potter, vol. 56, October 2,
2007, p. 6965.
Passas Report on Terrorism Financing, p. 106.
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intelligence gathering and investigative leads are the key goals, rather than
‘drying up’ the financial resources of terrorism, which is an impossible task.”64
As noted in Chapter III, FINTRAC had rarely identified cases on its own in recent
years,65 yet the FATF criticized FINTRAC for excessive reliance on voluntary
reports.66 The Commission does not share FATF’s negative view of FINTRAC’s
reliance on leads and intelligence provided by other agencies. Such reliance is
consistent with an approach that uses intelligence to help identify targets. The
amounts of money at issue in TF, typically smaller than in money laundering
cases, make it difficult for FINTRAC to generate leads on its own. This is further
demonstration of the limits of using the money laundering model for TF
matters.
7.4.3 Limits on FINTRAC’s Disclosures of Designated Information
As discussed in greater detail in Chapter III, even after the Bill C-25 amendments,
some limits remain on the information that FINTRAC can disclose to agencies
such as the RCMP and CSIS. If an agency wants information beyond “designated
information” – for example, FINTRAC’s own analysis that led to its decision to
disclose – a production order from a judge is required. The 2008 FATF Mutual
Evaluation of Canada stated that 14 production orders had been sought to that
point by law enforcement. It is not known whether any of these orders related
to TF. The main point is the relatively small number of orders. The FATF Mutual
Evaluation identified two possible explanations for this:
Law enforcement authorities cite two basic reasons for the
reluctance to apply for production orders. One is that the
legislative threshold is high, the same as for a search warrant:
the applicant must satisfy the court that there are “reasonable
grounds to believe” an offence has been committed. A search
warrant is preferable because it provides direct access to
target information that could be used as evidence. Second, the
information contained in [a] FINTRAC disclosure is generally
considered below the legislative threshold [of evidence] that a
production order requires.67
64
65
66
67
Passas Report on Terrorism Financing, p. 90. Passas also states at p. 79 that there are risks that
inadequate or ill-thought CFT measures may: drive networks and transactions underground, losing
the opportunity to monitor, prevent, better understand and design long-term strategies; cause
collateral damage and unnecessary economic disruptions; alienate ethnic groups; undermine our
own legitimacy; induce superficial (paper) compliance by various countries or agencies, thereby having
an ineffective international CFT regime (i.e. rules and laws may be in place, but they are of little use
if they go un-enforced); neglect of more serious problems (regarding terrorist financial vulnerabilities
or other serious crimes); produce more grievances and provide more fertile ground for the recruitment
of new militants. Moreover, if the root causes of terrorism are ignored, the problems the international
community faces will remain in place despite apparent successes: that is, even if designated individuals
or groups are arrested or killed in action, other groups or secular radicalism may follow.
Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6920.
2008 FATF Mutual Evaluation of Canada, para. 21.
2008 FATF Mutual Evaluation of Canada, para. 387.
�Chapter VII: Resolving the Challenges of Terrorist Financing
The lack of authority in the PCMLTFA for FINTRAC to disclose information beyond
designated information, including its own analysis of the basic financial data,
is a significant deficiency. If FINTRAC’s analysis were automatically included
in its disclosures of designated information, recipients could make better and
more timely use of the disclosure, and the links between FINTRAC and its
counterterrorism partners would be strengthened.
One solution could be to amend the PCMLTFA to require FINTRAC to include its
analysis in disclosures if it had “reasonable grounds to believe,” for example, that
information would be relevant to investigating or prosecuting a TF offence, a
more stringent precondition than “reasonable grounds to suspect.” A “reasonable
grounds to believe” provision would result in a less serious privacy intrusion.
Any privacy concerns that remained could be somewhat allayed by limiting
the requirement to disclose to TF cases. It should be easier under the Charter
to justify infringements of privacy to counter terrorism than to counter money
laundering.68
7.4.4 FINTRAC Priorities
FINTRAC gives priority to possible TF cases regardless of the size of the
operation.69 However, there may be cases where money laundering increases
the wealth and power of criminal organizations, in turn facilitating violent
activities that could rival the violence associated with terrorism. For this reason,
FINTRAC should not automatically give priority to TF investigations, although
it may normally be appropriate to do so. In some cases, FINTRAC may want to
consult with the RCMP and CSIS in deciding its priorities.
7.4.5 Adding New Reporting Sectors
Under the PCMLTFA, reporting entities must report certain financial transactions
to FINTRAC. These entities include federally-regulated banks, provinciallyregulated caisses populaires and credit unions, money services businesses and
securities dealers. The PCMLTFA also makes it possible to add other types of
entities or individuals to the list of reporting entities.
Although FINTRAC monitors various sectors to determine if they should be
added as reporting entities, Canada was reprimanded in the 2008 FATF Mutual
Evaluation of Canada for not following appropriate risk-management techniques
in this regard.70 The ability to add new financial sectors is important since those
who finance terrorism seem able to adjust their behaviour to avoid dealing with
entities that are obliged to report. Ideally, FINTRAC should be able to obtain
financial transaction reports from all sectors that can be used for TF.
68
69
70
Hunter v. Southam [1984] 2 S.C.R. 145; Re Section 83.28 of the Criminal Code [2004] 2 S.C.R.
Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6962; Exhibit P-440: FINTRAC Response to
Supplementary Questions of the Commission, February 5, 2008, Question 2(m)(i) [Second FINTRAC
Response to Supplementary Questions of the Commission].
2008 FATF Mutual Evaluation of Canada, paras. 630-640.
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7.4.6. The Need for FINTRAC to Provide Better Information and Training to
Private Sector Reporting Entities
Private sector reporting entities are essential partners in FINTRAC’s work to
detect and deter TF. The reporting entities provide, at their own expense, most
of the information and data which FINTRAC receives.71 Suspicious Transaction
Reports (STRs) from reporting entities play an important role in alerting FINTRAC
to possible TF. These STRs, like the VIRs supplied by government agencies, show
the value of shared intelligence in identifying targets for further examination
by FINTRAC, as opposed to reliance on the automatic reporting of certain
prescribed transactions, such as those of $10,000 or more, or those involving
listed terrorist individuals or organizations.
The preparation of STRs that are useful depends on the ability of private sector
reporting entities to identify what is suspicious. However, FINTRAC perhaps has
not done a good job of communicating to reporting entities the distinction
between TF and money laundering, and some reporting entities do not see
TF as a priority.72 FINTRAC should make every effort to help reporting entities
identify transactions that may involve TF.73 Better education on TF issues should
lead to better and more frequent STRs about TF from private sector entities.
FINTRAC and other authorities should also supply reporting entities with current
and user-friendly lists of terrorist entities and other relevant information, even if
terrorists will not likely often conduct financial transactions using listed names.
CSIS and the RCMP could also assist in the training of reporting entities on TF
issues. They could provide feedback to the entities about the importance of
the information they supply to FINTRAC, something that FINTRAC does not at
present do.
7.5 The Legal Profession
Members of the legal profession have been identified by the FATF as possible
conduits for TF or money laundering. The “40 Recommendations” of the FATF on
money laundering explain that jurisdictions are responsible for ensuring that
the legal profession is covered by anti-TF measures.74 The “Interpretative Notes
to the 40 Recommendations of the FATF” also state that each jurisdiction must
determine the extent of legal professional privilege, and that lawyers might be
71
72
73
74
PCMLTFA, s. 54.
Exhibit P-241, Tab 2: Deloitte, Report of Findings as a Result of the Interviews of Regulated Entities on
the Topic of Terrorist Financing In, Through and Out of Canada, September 28, 2007, paras. 5.1.4, 5.1.12.
This could be done using a three-pronged approach: adding more information on the listings
page about each organization’s suspected means of TF; creating an open-source database, possibly
to be maintained by an academic institution with funding by government; and providing more
extensive information about specific groups, if that information is available.
Recommendations 12 and 16, online: Financial Action Task Force <http://www.fatf-gafi.org/document/
28/0,3343,en_32250379_3226930_33658140_1_1_1_1,00.html> (accessed January 24, 2009).
�Chapter VII: Resolving the Challenges of Terrorist Financing
allowed to send STRs to their regulatory bodies instead of to their country’s FIU
if there is appropriate cooperation between the two bodies.75
In November 2001, regulations made under the predecessor to the PCMLTFA
came into force. The regulations would have required lawyers to report
suspicious transactions. The Law Society of British Columbia and the Federation
of Law Societies of Canada successfully challenged this obligation.76 In granting
a temporary exemption, Justice Allan of the Supreme Court of British Columbia
spoke of the regulation’s damage to the solicitor-client relationship:
The proclamation of s. 5 of the Regulations authorizes an
unprecedented intrusion into the traditional solicitor-client
relationship. The constitutional issues raised deserve careful
consideration by the Court. The petitioners seek a temporary
exemption from the legislation until the merits of their
constitutional challenge can be determined. I conclude that
the petitioners … are entitled to an order that legal counsel are
exempt from the application of s. 5 of the Regulations pending
a full hearing of the Petitions on their merits.77
Following this interlocutory decision, the federal government and the Federation
of Law Societies of Canada agreed that the matter would be adjourned
indefinitely if the government agreed, which it did, not to require lawyers
to report to FINTRAC without the Federation’s consent. If, however, a future
government required lawyers to report, the case could go to a full hearing.
In 2005, then FINTRAC Director Horst Intscher stated that, “I would be happier
if there were some reporting requirement for lawyers because, at present,
the reporting we get is not by them but about them by other financial
institutions.”78
Solicitor-client privilege was addressed during both Senate and House of
Commons committee reviews of the Anti-terrorism Act. However, both reviews
primarily discussed the Criminal Code offence of not reporting terrorist property,
rather than the proposed reporting obligations of lawyers under the PCMLTFA.
The Commons and Senate committees reached opposite conclusions. The
75
76
77
78
Interpretative Note to Recommendation 16, online: Financial Action Task Force <http://www.fatf-gafi.
org/document/28/0,3343,en_32250379_32236920_33988956_1_1_1_1,00.html#Interpretative_Note_
to_r_16> (accessed January 24, 2009).
2004 Auditor General Report on Money Laundering, para. 2.30; The Law Society of B.C. v. A.G. Canada,
2001 BCSC 1593. Mark Potter testified that at the time the Anti-terrorism Act was drafted in 2001,
Canada recognized the possibility that lawyers could become involved in money laundering and
TF, and included the legal profession in the category of entities which were required to file reports with
FINTRAC: Testimony of Mark Potter, vol. 56, October 2, 2007, p. 6976.
2001 BCSC 1593 at para. 108.
The Senate of Canada, Fundamental Justice in Extraordinary Times: Main Report of the Special Senate
Committee on the Anti-terrorism Act, February 2007, p. 57, online: Parliament of Canada <http://www.
parl.gc.ca/39/1/parlbus/commbus/senate/Com-e/anti-e/rep-e/rep02feb07-e.pdf> (accessed February
17, 2009) [Senate Report on the ATA].
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Commons Committee recommended a limited exemption for the legal profession
from reporting requirements under the Criminal Code. The Senate Committee
concluded that lawyers should be subject to the reporting requirements under
the Criminal Code, arguing that the reporting scheme sufficiently protected
solicitor-client privilege.
The Senate Committee report called for the government to continue its current
dialogue with the legal community on the subject of reporting requirements
under the PCMLTFA.79 The preceding year, another Senate committee, the
Standing Senate Committee on Banking, Trade and Commerce, recommended
that the federal government complete negotiations with the Federation of
Law Societies regarding the client-identification, record-keeping and reporting
requirements imposed on solicitors under the PCMLTFA. The Committee called
for the requirements to respect solicitor-client privilege, the Charter and the
Quebec Charter of Human Rights and Freedoms.80
In December 2008, provisions of a regulation made under the PCMLTFA came
into force, subjecting the legal profession to client identification, verification,
record-keeping and compliance obligations, although it did not impose any
reporting obligations in the normal course of providing legal services.
In its 2008 Mutual Legal Evaluation of Canada, the FATF criticized Canada because
its reporting requirements did not extend to the legal profession.81 However,
the regulation governing lawyers was not then in force. It is not clear whether
FATF will see this new regulation as satisfying its concerns when it comes into
force. The regulation deals primarily with identification, verification and recordkeeping, not with reporting, but should help identify when particular targets of
an investigation have dealings with lawyers.
The concern over imposing reporting obligations on the legal profession is
driven by the legitimate need to respect solicitor-client privilege – an important,
but not absolute principle.82 However, excluding certain sectors from the
obligation to report suspicious transactions has the potential to weaken the
entire reporting component of the anti-TF program.
This is a live issue. Other organizations have looked at this question, and
their analyses should be taken into account when assessing the appropriate
79
80
81
82
Senate Report on the ATA, p. 57.
Senate of Canada, Interim Report of the Standing Senate Committee on Banking, Trade and Commerce,
Stemming the Flow of Illicit Money: A Priority for Canada, Parliamentary Review of the Proceeds of
Crime (Money Laundering) and Terrorist Financing Act, October 2006, p. 14, online: Parliament of
Canada <http://www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/bank-e/rep-e/rep09oct06-e.
pdf> (accessed January 16, 2009).
2008 FATF Mutual Evaluation of Canada, para. 1235. In fact, Canada received a Non-Compliant rating
on Recommendation 12 because several sectors were not covered, including the legal profession.
Several of these deficiencies were remedied by Bill C-25. On the subject of the legal profession, the
FATF mentioned that: “The participation of lawyers in the AML/CFT effort is essential since their current
exemption leaves a very significant gap in coverage.”
R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445.
�Chapter VII: Resolving the Challenges of Terrorist Financing
obligations of lawyers in combatting money laundering and TF. Lawyers, of
course, should not be immune from legitimate TF investigations, especially if a
reasonable suspicion exists of their involvement in TF. In addition, regulations
relating to the obligations of lawyers to engage in client identification should
be carefully monitored to address solicitor-client privilege issues and to ensure
that there are no inappropriate gaps in their obligations under the PCMLTFA that
could weaken the anti-TF program.
7.6 Review of FINTRAC and the Role of the Prime Minister’s National
Security Advisor
Greater attention should be paid to the process by which FINTRAC’s work is
reviewed. The Commission of Inquiry into the Activities of Canadian Officials in
Relation to Maher Arar recommended that the jurisdiction of SIRC be expanded
to include review of FINTRAC. As discussed in Chapter IV, the O’Connor
Commission’s recommendations were aimed mainly at reviewing FINTRAC’s
work to ensure that it was proper and lawful and that it respected privacy
values. This type of review is valuable and can help promote public confidence,
but it should be distinguished from a review of the efficacy or effectiveness of
FINTRAC’s work. Indeed, Justice O’Connor drew this important distinction and
was clear that his focus was on propriety.83 That focus was understandable given
the events that led to his Inquiry. This Commission’s focus on the effectiveness of
Canada’s anti-terrorism efforts is also understandable, given that the bombing
of Air India Flight 182 led to the current Inquiry.
In her paper for the Commission, Professor Anand argued that “…no body
undertakes an assessment of the efficacy of the existing [TF] regime. Indeed,
in the absence of such an assessment mechanism, there appears to be an
assumption that the regime is effective.”84 She continued that “…it appears that
SIRC may not be the appropriate body to perform this oversight role.”85 She also
stressed that proper evaluation cannot be done simply by examining FINTRAC
on its own. Other agencies, such as the RCMP and CSIS, needed to be examined
as well.86
Enhancing the role of the National Security Advisor (NSA), as recommended
in Chapter II of Volume Three of the Commission’s report, would help the NSA
evaluate how well FINTRAC works with other agencies such as CSIS, the RCMP,
CBSA, CRA and CSE.
Among the Commission’s recommended new responsibilities for the NSA
would be working on problems associated with the distribution of intelligence,
helping resolve issues related to the exchange of information among agencies
83
84
85
86
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review
Mechanism for the RCMP’s National Security Activities (Ottawa: Public Works and Government Services
Canada, 2006), pp. 523-524.
Anand Paper on Legal Regime Governing Terrorist Financing, p. 148.
Anand Paper on Legal Regime Governing Terrorist Financing, p. 149.
Anand Paper on Legal Regime Governing Terrorist Financing, p. 151.
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and providing feedback about the utility of information shared. The NSA could
play a role in ensuring that intelligence agencies provide FINTRAC and the CRA
with relevant information. The NSA could work on coordination issues made
more difficult by the fact that not all agencies involved in TF matters (such as
FINTRAC on the one hand and CSIS, the RCMP and CBSA on the other) are within
the same minister’s portfolio.87
The success of initiatives against TF will depend on the appropriate sharing
of intelligence and on cooperation among multiple agencies. An NSA with
enhanced responsibilities would be well-positioned to ensure appropriate
coordination and review of TF efforts. Just as the NSA would have to respect
police and prosecutorial independence, the NSA would have to respect statutory
restrictions imposed on FINTRAC and the CRA about the information that they
are permitted to distribute.
The NSA would be able to evaluate the work of the agencies in a confidential
setting that would not risk security breaches. The fact that the NSA reports to
the Prime Minister should make certain that the NSA has the necessary power to
ensure that agencies operate effectively as part of the overall system to counter
TF and terrorism.
7.7 Resources for TF Investigations
Previous chapters of this volume describing the roles of various agencies also
discussed resources. The 2008 FATF Mutual Evaluation of Canada concluded
that “…[o]verall, authorities seem to be well-equipped, staffed, resourced and
trained,”88 but representatives of some agencies testified about inadequate
funding. The federal government appears to have resolved some of these
concerns, but should continue to monitor the adequacy of resources closely.
As noted during the hearings, the term “resources” means more than money.
Just as important, the term refers to the capacity to recruit and retain qualified
individuals. One submission to the Commission suggested that the federal
government should “…[r]eview for adequacy, the levels of financial and human
resources across all government agencies responsible for combating terrorism
financing, and where appropriate, increase financial and human resources.”89
One way to enhance the quality of work of those involved in the anti-TF program
would be to share training across agencies and to take steps to cut duplication
of services within the agencies dealing with TF. For example, one agency could
take the lead in training and make it available to other agencies. This would make
efficient use of limited training funds. Training across several agencies might
also help break down organizational barriers and build inter-agency linkages
87
88
89
Testimony of Tyson George, vol. 56, October 2, 2007, p. 7072.
2008 FATF Mutual Evaluation of Canada, para. 53. The FATF did mention that FINTRAC lacks sufficient
resources for analysis.
Where is Justice?, AIVFA Final Written Submission to the Commission of Inquiry into the Investigation
of the Bombing of Air India Flight 182, February 29, 2008, p. 160 [AIVFA Final Written Submission].
�Chapter VII: Resolving the Challenges of Terrorist Financing
that could pay important dividends later. Joint training would also complement
the enhanced use of secondments among agencies.
In some cases, it may be possible to avoid duplication of services among
agencies – for example, in collecting open source material about common TF
issues. Avoiding duplication might not only save resources, but may promote
increased daily cooperation and exchange of information among the agencies.
7.8 Charities and Not-for-profit Organizations
As explained in detail in Chapter VI, charities and not-for-profit organizations
(NPOs) can be among the many vehicles used for raising and moving funds for
terrorism. Although much concern has been expressed about the use of these
organizations – particularly registered charities – it is important to remember
that charitable status is not necessarily important to those committed to raising
and moving funds. Many terrorist acts cost so little to carry out that setting up a
charity to raise funds is not necessary. Those committed to financing terrorism
are not likely to be deterred from providing funds simply because the recipient
cannot issue tax receipts to them. Furthermore, the process of obtaining
and maintaining charitable status involves being monitored by the Charities
Directorate – additional attention that those interested in financing terrorism
certainly do not want.
That said, there are other reasons for groups that want to finance terrorism to
seek charitable or not-for-profit status. Many of these reasons were identified
in Chapter VI. They include the frequently cash-intensive nature of transactions
involving such organizations, making it more difficult for the authorities to
identify TF, and the ability of such organizations to transfer funds to other
countries with relative ease.
Federal and provincial governments must recognize their shared responsibility
for the regulation of charities. Constitutional obstacles preclude a regulated
system similar to that of the England and Wales Charity Commission. The ideal
would be federal-provincial agreements on the monitoring and regulation of
charities. If there is no agreement, federal and provincial governments must
individually assume their responsibilities to deal with the possible use of
charities for TF. For example, the federal government could examine which
parts of the UK Charities Commission model could be implemented without
provincial involvement.
The following several sections provide specific suggestions and
recommendations to reduce the likelihood that charities and NPOs will
be used to finance terrorism.
7.8.1 Sharing Intelligence
The denial of charitable status should be one stage in a whole-of-government
effort that could, in appropriate cases, see further investigation of a charity by
CSIS or the RCMP.
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The CRA should continue to work closely with other agencies to identify charities
that may be involved in TF. The CRA should be included in the overall network
of agencies that are concerned with TF, and it should have access to appropriate
information from domestic and foreign agencies. It would be almost impossible
for any regulator to find the indicia of TF by sifting through information about
all charities. Intelligence must be shared to help identify targets. This will require
the RCMP, and especially CSIS, to work closely with the CRA and to provide it
with the best possible intelligence. Greater effort should be made to share
general information about TF that is of common interest to all these agencies.
For example, CRA is not a member of ITAC, while FINTRAC is. CRA could benefit
from such membership.
The CRA has limited resources to devote to audits of charities. It is essential that
the CRA receive the best intelligence possible from all sources about charities
that may be involved in financing terrorism to make optimal use of its audit
resources.
Largely because of changes introduced by Bill C-25 to the PCMLTFA late in 2006, the
CRA can now share more extensive information with other agencies. However, it
took considerable time for the changes allowing this increased sharing to come
into effect. The impetus for change occurred on September 11, 2001. Bill C-25
was enacted only in 2006 and came into effect in stages. Its provisions were fully
in force only in December 2008. Such delays are unacceptable.
As well, the CRA, RCMP, CSIS and FINTRAC would all benefit if reporting on
the value of the exchanged information were made mandatory, or at least
encouraged. Such follow-up would also help the National Security Advisor to
review the effectiveness of Canada’s efforts to combat TF, including how well
the CRA, FINTRAC, CSIS and the RCMP are working together.
A charitable organization whose registration is revoked for terrorism or
TF reasons should be reported to the appropriate agencies for further
investigation. Revocation of charitable status should be only part of a response
that includes continued intelligence operations and, possibly, law enforcement
investigations.
7.8.2 Intermediate Sanctions
It is particularly helpful for the CRA to make full use of the “intermediate
sanctions” now available to it (for example, monetary penalties or the suspension
of a charity’s power to issue tax receipts for donations) to encourage charities
to “clean house” by removing directors and trustees who may be involved in
terrorist activities. Creative and robust use of intermediate sanctions can
indirectly achieve some of the goals that are obtained in the United Kingdom
through a charity commission.
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7.8.3 Statistics
It would be helpful to have statistics indicating the role that terrorism or TF
issues play in decisions to revoke charitable registrations or to use intermediate
sanctions. Such statistics would help determine the extent to which the
Charities Directorate contributes to government-wide efforts to stop TF. Such
information could also assist other agencies such as CSIS, RCMP, FINTRAC and
the NSA. It would also be of value to have statistics, to the extent that these can
be assembled, on the extent of TF through charities.
7.8.4 The Charities Registration (Security Information) Act Process
The question arises whether the Charities Registration (Security Information) Act90
(CRSIA) process is necessary if it is not being used.
Canada has a legitimate interest in protecting information that could endanger
national security or endanger persons if it were disclosed. The CRSIA allows
secret intelligence to be presented to a judge while only a summary containing
non-sensitive information is disclosed to the charity or person challenging
the CRA. The CRSIA has a potential value in deterring TF and also underlines
Canada’s commitment to stopping the subversion of charitable status through
TF. For these reasons, it should be retained.
Still, the CRA appears to have managed without invoking the CRSIA process.
Although the CRSIA was created to allow the CRA to revoke or deny registration
on the basis of classified information, organizations that support terrorism will
likely also fail to meet other requirements for charitable registration and not
obtain or lose charitable status for those reasons.
It is difficult to fault the government for not using the untested procedures of
the CRSIA if it is possible to deny or remove charitable status on other grounds.
Nevertheless, to demonstrate its ability to refuse to register charities without
making use of the CRSIA, the CRA should be more transparent and keep better
statistics about when concerns about TF have led to denial of charitable status.
Chapter VI described the debate about whether the CRSIA should contain a due
diligence defence. The need for such a defence is difficult to assess at this time
because no CRSIA certificate proceedings have yet occurred. However, the loss
or denial of charitable status is not a consequence of the same magnitude as the
prospect, for example, of detention or punishment for an individual. This may
make the lack of a due diligence requirement in the CRSIA more defensible.
The lack of experience with the CRSIA also makes it difficult to assess other
possible deficiencies, such as enabling the government to rely on secret
evidence and the fact that the CRSIA does not on its face contemplate allowing
security-cleared special advocates to see and challenge secret evidence. It
90
S.C. 2001, c. 41, s. 113.
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would be helpful to have a track record of CRSIA certificate proceedings. Claims
about deficiencies in the CRSIA could then be examined as real, rather than
speculative, issues.
7.8.5 Not-for-profit Organizations
A serious obstacle hinders the fight against TF in Canada. Each province can
control and regulate NPOs under section 92 of the Constitution Act, 1867.91 Rules
vary among the provinces. In fact, there are few reporting rules in any of the
provinces. As the organizations are non-profit, the CRA is normally not involved.
The problem lies in the ability of NPOs to operate in a clandestine manner and
to ignore what rules there are, making it almost impossible to identify TF within
them.
There is obviously much to be gained by federal and provincial governments
harmonizing their treatment of NPOs. The federal government should take the
lead in bringing together provincial authorities to coordinate responses to the
abuse of charitable or not-for-profit organizations. It is especially important
that regulators be provided with the information and assistance they need to
identify the abuse of charities and not-for-profit organizations for TF.
Organizations should also be prohibited from using the description “charity,”
“non-profit organization,” “not-for-profit organization,” or similar descriptions,
unless registered as such with the CRA or the appropriate provincial agency.
7.8.6 Publicity
The CRA should, when practicable, publish reasons for denying or revoking the
registration of charities or NPOs and for applying intermediate sanctions to
charities. Indeed, publicity will be an important factor if these sanctions are to
influence charities and NPOs to reform themselves and to alert potential donors
that a given organization supports terrorism. The Commission acknowledges
the tradition of keeping income tax information confidential. These concerns
are laudable, but the traditional protection of tax information from disclosure
needs to be reconsidered in light of concerns about terrorism.
7.8.7 Avoiding Harm to Legitimate Charities and NPOs
It is essential that measures to defeat the use of charities or NPOs for TF not
unnecessarily impede the valuable activities of legitimate organizations. Any
new guidelines or best practices that the CRA may contemplate to help it
address TF in the charitable sector should be developed in close cooperation
with the charitable sector. The work of honest charities should not be hindered
because of unrealistic guidelines or best practices.
91
(U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.
�Chapter VII: Resolving the Challenges of Terrorist Financing
7.9 International Aspects of Terrorist Financing
Funds can move across multiple jurisdictions and finance terrorists throughout
the world. A 2007 Department of Finance Memorandum of Evidence on Terrorist
Financing described the challenge that this presents:
Because of the global reach of terrorist networks, the
increasing integration of financial systems and the speed and
facility with which money can be moved between jurisdictions,
tracing and intercepting terrorist funding represents a major
transnational challenge that is most effectively addressed
through complementary international and domestic actions.92
FINTRAC reported that Electronic Fund Transfer Reports, provided by reporting
entities, were contained in 93 per cent of its disclosures to law enforcement and
security intelligence agencies in matters relating to TF or threats to the security
of Canada.93 The international nature of terrorism and TF makes the resulting
investigations more complex and much lengthier than if the transactions
involved were domestic only.94 Superintendent Reynolds testified:
[B]y the very nature of terrorism it’s international. And the fact
that it moves across borders and into areas where perhaps the
infrastructure is broken down, it makes it extremely difficult
to follow the paper trail as far as the cash – the movement of
cash, the movement or procurement of materials.95
There is a need to integrate TF into the work of agencies including CSIS, DND
and DFAIT. The Integrated Threat Assessment Centre (ITAC) situated in CSIS
already provides some integration in terms of threat assessments.
Canada’s cryptologic agency, the Communications Security Establishment (CSE),
also needs to be integrated more effectively into anti-TF efforts. The NSA should,
in his or her expanded role, ensure that CSE makes appropriate and necessary
disclosures to FINTRAC. Such intelligence could help FINTRAC perform its
analyses and make more useful disclosures of designated information to the
RCMP, CSIS and other agencies.
92
93
94
95
Exhibit P-227, Tab 3: Department of Finance Memorandum of Evidence on Terrorist Financing, February
28, 2007, para. 2.6. The FINTRAC Report on Plans and Priorities for the years 2007-2008 to 2009-2010
expresses a similar view at p. 7, online: Treasury Board of Canada Secretariat <http://www.tbs-sct.gc.ca/
rpp/0708/fintrac-canafe/fintrac-canafe-eng.pdf> (accessed January 26, 2009).
Exhibit P-438: FINTRAC Response to Supplementary Questions of the Commission, January 9, 2008,
Question 3(b).
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6820.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6820.
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7.9.1 Difficulties in Securing International Cooperation
The definition of terrorism varies from jurisdiction to jurisdiction. This in turn
leads to inconsistencies in deciding what constitutes TF. In addition, anti-TF
rules and programs are not identical, or interpreted identically, in all countries.
This poses major challenges for attempts to secure cooperation from other
countries. Keith Morrill of DFAIT highlighted the difficulties through a fictitious
example:
If Canada has an offence of terrorist financing, and we have
listed the Faroffistan Widows and Orphans Fund because
we know that that is being used to fund terrorists in the
mythical country of Faroffistan, and the money moves from
a bank account in Canada to a bank account in France, and
France does not regard the Faroffistan Widows and Orphans
Fund as being linked to a terrorist group, that greatly limits
our capacity to have criminal law enforcement cooperation
because what is to us an activity which seems to be linked
to an offence is to France … simply a legitimate transfer of
funds.96
A foreign country is not necessarily a “weak link” country. In fact, it could be a
well-regulated country with an otherwise adequate anti-TF program, but the
country may differ with Canada about whether a person or entity should be
considered a terrorist or whether a given act constitutes terrorism.
In addition, as Superintendent Reynolds testified, it is “…[n]ot that it is difficult
to get cooperation, but you’re now into different judicial systems, different
understanding, the priority of the organizations that you’re dealing with
changes, yours may not be the priority, so it slows down the process.”97
Cooperation among agencies in Canada is often heavily regulated (such
as through FINTRAC’s and CRA’s disclosure rules). When FINTRAC makes
arrangements for international cooperation in TF, it faces even more hurdles
than it encounters when cooperating with agencies in Canada. For example,
FINTRAC can share information with financial intelligence units abroad, but only
under the same conditions that it may share information with law enforcement
agencies in Canada, and only if FINTRAC has a memorandum of understanding
with the foreign FIU.98 Furthermore, the FIU receiving information from FINTRAC
must have specific provisions for the protection of privacy interests.99 This
process for sharing information is both formal and lengthy.
96
97
98
99
Testimony of Keith Morrill, vol. 54, September 28, 2007, p. 6703.
Testimony of Rick Reynolds, vol. 55, October 1, 2007, p. 6843.
PCMLTFA, s. 56.1.
Second FINTRAC Response to Supplementary Questions of the Commission, Question 6(b).
�Chapter VII: Resolving the Challenges of Terrorist Financing
Professor Rudner commented on this in his paper for the Commission:
Whereas the Egmont Group and other international
organizations generally encourage and promote the sharing
of financial intelligence, actual flows and exchanges of
information between and among FIUs seem to be constrained
by national privacy concerns, perhaps even more so than in
other areas of security intelligence or law enforcement. In
practice, national FIUs have tended to restrict the sharing of
financial intelligence to foreign units and countries with whom
bilateral agreements have been reached specifying the terms
of such exchanges.100
As the 2008 FATF Mutual Evaluation of Canada noted, the mutual legal assistance
(MLA) process is laborious.101 The Commission did not receive evidence on
this point, but it is clear that some countries, even Western countries, do not
cooperate as fully with each other on TF matters as is warranted. While the
FIU process described by Professor Rudner appears to function relatively well,
information does not flow as freely as it should. As the passage of time dims
the memory of 9/11, London and Madrid, Western countries will likely see even
less urgency in cooperating on TF matters – unless there is a new major act of
terrorism.102
7.9.2 The Problem of “Weak Links”
Adding to the difficulties in securing international cooperation is the reality
that some countries are notoriously weak links in the global anti-TF system. For
example, the FATF has warned about financial dealings in Iran and Uzbekistan
because of heightened money laundering and TF risks.103
Countries that are considered state sponsors of terrorism are obviously the
most problematic. Other countries, without being “official” state sponsors, are
sometimes seen as sources, even if unwitting, for TF.
When funds leave Canada, they become more difficult to track. That difficulty
increases if the funds enter a country deficient in financial controls and law
enforcement – for example, Afghanistan or Sudan. “Weak links” in the global
100 Rudner Article on Using Financial Intelligence, p. 49.
101 See 2008 FATF Mutual Evaluation of Canada, paras. 1477-1502. The report mentions that, on TF matters,
Canada received 14 requests for assistance (during 2001-2006), with 8 being executed, 2 withdrawn
and 4 being active. By way of comparison, 143 requests for assistance had been made on ML matters:
see para. 1522.
102 A recent U.S. National Intelligence Estimate noted the likelihood that international cooperation will
wane as 9/11 grows more distant: see Michael Jacobson, “Extremism’s Deep Pockets: The growing
challenge of fighting terrorist financing,” p. 22, online: The Politic <http://thepolitic.org/content/
view/91> (accessed June 3, 2009).
103 See FATF Chairman’s Summary, London Plenary, June 18-20, June 20, 2008, online: Financial Action Task
Force <http://www.fatf-gafi.org/dataoecd/50/1/40879782.pdf> (accessed January 29, 2009).
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anti-TF system are valuable for terrorists. As American academic Philip Bobbitt
wrote, “…[t]he system of global terrorist financing depends upon the inability of
states to compel other states to disclose financial holdings and transfers.”104
Some jurisdictions, including the UK, have attempted to help strengthen the
anti-TF system in “weak link” countries.105
7.9.3 Trade
Professor Passas identified poor surveillance of trade transactions as an
important deficiency in countering TF in most countries, including Canada:
Currently, there are serious gaps in the way government
authorities deal with trade transactions. Incomplete, erroneous
or illegal documentation can be found through routine review
of forms filed with Customs agencies. There is plenty of room
for improving enforcement action and attempts at rendering
the transactions accurate and transparent. Mistakes and misstatements concerning country of origin, ultimate consignee,
counter-parties or value abound and reveal significant
opportunities for misconduct, including terrorist finance. In
other instances, trade diversion practices and mis-invoicing
cannot be easily detected as the paperwork in such cases is
not forged or fake but the content of the documents is wrong.
Very high values can be moved literally under the nose of even
quite careful inspectors. Such infractions may only be detected
through inside information or in-depth checks and inquiries,
which cannot be routinely instituted.
Such vulnerabilities were found in the trade of precious
stones and metals, electronics, medicine, cosmetics, textiles,
foodstuff, tobacco, car or bicycle parts, etc.. In short, trade is
currently not transparent and represents a serious threat to all
efforts countering money laundering, terrorist finance or other
financial crime.
Given that financial and trade transactions are not jointly
monitored and matched, irregularities, suspicious transactions
and blatant abuses may be going undetected. Research has
shown that irregularities amounting to billions of US dollars
go undetected and uninvestigated. In the light of the large
volumes of trade conducted daily, the risk of financing serious
crime includes activities not only related to more expensive
forms of terrorism as well as proliferation and weapons of mass
destruction.106
104 Philip Bobbitt, Terror and Consent: The Wars for the Twenty-First Century (New York: Knopf, 2008),
p. 455.
105 Testimony of Paul Newham, vol. 58, October 4, 2007, p. 7244.
106 Passas Report on Terrorism Financing, pp. 83-84 [references omitted].
�Chapter VII: Resolving the Challenges of Terrorist Financing
The FATF has discussed trade-based money laundering in two papers.107 Although
the FATF has made no recommendations about trade to date, some are said to
be forthcoming. The FATF describes the problem with trade as follows:
The Financial Action Task Force (FATF) has recognised misuse
of the trade system as one of the main methods by which
criminal organisations and terrorist financiers move money
for the purpose of disguising its origins and integrating it into
the formal economy. As the anti-money laundering (AML)
and counter-terrorist financing (CFT) standards that have
been applied to other money laundering techniques have
become increasingly effective, such abuse of the trade system
is expected to become increasingly attractive. However,
currently, many customs agencies, law enforcement agencies,
financial intelligence units (FIU), tax authorities and banking
supervisors (i.e. competent authorities) appear less capable
of identifying and combating trade-based money laundering
than they are in dealing with other forms of money laundering
and terrorist financing.108
7.9.4 Civil Redress for Terrorist Acts Committed Outside Canada
Several parties and intervenors forcefully suggested that the Commission
support passage of a Private Senator Public Bill that was introduced to facilitate
civil lawsuits against terrorists and their sponsors. Professor Ed Morgan of the
Faculty of Law at the University of Toronto described civil remedies as “…one of
the most effective and targeted means of curtailing the financing of terrorism
that the legal system can endorse.”109 The Bill was S-225, An Act to amend the
State Immunity Act and the Criminal Code (deterring terrorism by providing a civil
right of action against perpetrators and sponsors of terrorism).110 Proponents of
civil redress argued that such lawsuits are a good vehicle for drying up terrorist
funds. Lawsuits would thus become a component of the fight against TF.
At present, Canadian law allows civil suits against foreign states for a breach of
contract or a personal injury that happened in Canada, but this does not include
remedies for sponsoring acts of terrorism which occur abroad and injure or
kill Canadians. The summary that accompanied the first reading version of Bill
S-225, which died on the Order Paper when Parliament was prorogued for the
107 “Trade Based Money Laundering,” June 23, 2006, online: Financial Action Task Force <http://www.
fatf-gafi.org/dataoecd/60/25/37038272.pdf> (accessed January 24, 2009); “Best Practices Paper on
Trade Based Money Laundering,” June 20, 2008, online: Financial Action Task Force <http://www.fatfgafi.org/dataoecd/9/28/40936081.pdf> (accessed January 24, 2009) [FATF Best Practices Paper on Trade
Based Money Laundering].
108 FATF Best Practices Paper on Trade Based Money Laundering, para. 1. See also FATF Annual
Report 2007-2008, June 30, 2008, online: Financial Action Task Force <http://www.fatf-gafi.org/
dataoecd/58/0/41141361.pdf> (accessed January 27, 2009).
109 Testimony of Ed Morgan, vol. 55, October 1, 2007, p. 6897.
110 2nd Sess., 39th Parl., 2007. Several similar bills have been introduced over the years.
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October 2008 election, described the purpose of the Bill as follows:
This enactment amends the State Immunity Act to prevent a
foreign state from claiming immunity from the jurisdiction
of Canadian courts in respect of proceedings that relate to
terrorist conduct engaged in by the foreign state.
It also amends the Criminal Code to provide victims who suffer
loss or damage as a result of conduct that is contrary to Part II.1
of the Criminal Code (Terrorism) with a civil remedy against the
person who engaged in the terrorist-related conduct.111
The main provisions of Bill S-225 can be summarized as follows:
• A foreign state is not immune from the jurisdiction of a court in any
proceedings that relate to terrorist conduct engaged in by the
foreign state on or after January 1, 1985;
• The Minister of Finance and the Minister of Foreign Affairs must
assist any judgment creditor to identify, locate and execute against
the property of the foreign state or certain other entities; and
• Any person who has suffered loss or damage on or after January 1,
1985, as a result of conduct by any person, including a foreign state,
that constitutes an offence set out in Part II.1 of the Criminal Code
(dealing with terrorism) can, in any court of competent jurisdiction,
sue the person or foreign state.112
The first provision mentioned above would have allowed victims of the Air India
tragedy to sue in Canadian courts any foreign actor that may have contributed
to the tragedy. Professor Morgan testified that the clause was meant to apply to
state sponsors of terrorism. If the Bill had been enacted, it would have allowed
some degree of enforcement by private individuals of laws against terrorism
and TF.113
Bill S-225 would have allowed a victim of terrorism to sue a bank that may have
provided financial services to terrorists. What is not clear is how, if the bank was
not convicted criminally, the victim would be able to demonstrate on a balance
of probabilities that the bank had contravened the Criminal Code. The courts
would also have to determine the validity of the Bill’s attempt to give Criminal
Code provisions a retroactive effect, if only for the limited purposes of civil, not
criminal liability.
111 Summary notes of Bill S-225, online: Parliament of Canada <http://www2.parl.gc.ca/content/Senate/
Bills/392/public/S-225/S-225_1/S225-e.htm> (accessed January 24, 2009).
112 This includes the Criminal Code anti-TF provisions. Morgan stated that: “That proposal is, more or less,
modeled on section 36 of the Competition Act which, as you know, gives a civil cause of action
to anyone who has suffered damages as a result of a defendant engaging in any of the quasi-criminal
provisions of the Competition Act”: Testimony of Ed Morgan, vol. 55, October 1, 2007, p. 6902.
113 Testimony of Ed Morgan, vol. 55, October 1, 2007, p. 6903.
�Chapter VII: Resolving the Challenges of Terrorist Financing
As mentioned earlier, several parties and intervenors made submissions about
civil liability, most notably the Canadian Jewish Congress and the Canadian
Coalition Against Terror (C-CAT).114 C-CAT maintained that the Canadian legal
framework does not provide adequate constraints to combat TF and that the
campaign against TF requires innovative strategies such as those proposed in Bill
S-225.115 According to C-CAT, Bill S-225 would “…(i) deter future acts of violence
(by bankrupting or financially impairing the terrorist infrastructure); (ii) hold
the wrongdoers responsible (even where the criminal system has failed); (iii)
compensate victims; and (iv) enable terrorist assets to be located and seized.”116
C-CAT cited American examples to support its position.
As noted above, Bill S-225 died with the calling of the 2008 federal election.
Despite the failure of this Bill to proceed, Canadian citizens filed a civil lawsuit
in Quebec Superior Court in July 2008 against the Lebanese Canadian Bank,
whose sole foreign representative office was in Montreal.117 The claim alleged
that the plaintiffs were injured while in Israel in 2006 by rockets launched by
Hezbollah. The plaintiffs also alleged that the bank provided extensive financial
and banking services to Hezbollah. The total compensation sought was $6.15
million. In August 2008, the matter was adjourned indefinitely. While this
lawsuit did not involve a foreign state, it did represent a new way of fighting
TF, as recommended by C-CAT, and the progress of this and future cases merits
watching.
7.10 The Reality Facing Efforts to Suppress Terrorist Financing
Donna Walsh, Director of the Review and Analysis Division in the Charities
Directorate of the CRA, testified that “…countering terrorist financing is a
complex issue. No one strategy or measure will stop it.”118 In his paper, Professor
Passas called measures to counter TF “necessary and vital,” but also called for
“realistic expectations and targets.”119
An approach involving shared intelligence provides the best prospect for
success against TF, especially in an environment of limited resources. Agencies
such as the RCMP and CSIS will play a critical role in providing information to
FINTRAC and the CRA. In TF matters, the RCMP and, in particular, CSIS are best
suited to adapt quickly, observe the evolution of events, identify the important
players and understand the variables involved. For example, an individual’s
deposit of a small amount of money might not raise a bank’s suspicion. As a
result, information about the transaction would not be reported to FINTRAC.
However, a front-line intelligence agent who knew about the individual’s links to
terrorism might have suspicions about the transaction. Furthermore, the agent
114 Both also made submissions to the Standing Senate Committee.
115 Final Submissions by the Canadian Coalition Against Terror (C-CAT) to the Commission of Inquiry into
the Investigation of the Bombing of Air India Flight 182, January 31, 2008 [C-CAT Final Submissions].
116 C-CAT Final Submissions, p. 7.
117 Yefet, Sappir, Shalmoni v. Lebanese Canadian Bank (Qc. Sup. Ct.), Docket No. 500-17-043962-086.
118 Testimony of Donna Walsh, vol. 57, October 3, 2007, p. 7109.
119 Passas Report on Terrorism Financing, p. 106.
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might understand how a group raises and moves money, and the transaction
might follow that pattern. In short, the agent might understand the subtleties of
TF that would escape detection by a formal and mechanical reporting system.
The entire AML/ATF Initiative must shift from relying primarily on formal
reporting systems and instead ensure adequate resources for law enforcement
and security intelligence agencies to work together effectively.120 As mentioned
above, there is also a need to invest more in educating private sector entities to
help them identify suspicious transactions and report them to FINTRAC.
7.11 Ways to Develop “Human Capital” for Anti-Terrorist Financing
Efforts
An effective approach to TF will require both an increase in the sharing of
information and increased investment in human capital. One way to achieve
the latter goal is to facilitate increased secondments among agencies working
on TF issues. This is now done for the Integrated Threat Assessment Centre and
is suggested in Volume Three for the office of the National Security Advisor.
FINTRAC already has a secondee from the RCMP Proceeds of Crime Unit,121 and
this program should be expanded to include secondees from agencies involved
in counterterrorism. Secondment opportunities allow limited resources to be
shared. Moreover, they allow junior and senior officials to develop a wholeof-government perspective on TF issues and improve cooperation among
agencies.
Employees seconded to one agency would face the same statutory restrictions
on access to their home agency database as any other employee of the agency
to which they are seconded. In other words, the agency to which a FINTRAC
employee is seconded (for example, the RCMP) would not receive greater access
to FINTRAC information simply because a FINTRAC employee is seconded to
that agency.
The response of one senior official in charge of the CSIS anti-TF program
to a question about the magnitude of the problem illustrates the gaps in
understanding: “I haven’t been able to sit back and do a proper analysis like
that. So I really can’t comment on that. I know we’re very busy in my office and
there is no lack of files.”122 The official cannot be faulted if the resources were not
available for such an analysis.
Professor Passas expressed concern about the lack of reliable information about
TF:
The lack of confirmed and validated information about
terrorism finance limits the effectiveness of [anti-TF] efforts.
120 This view is supported by Passas: see Passas Report on Terrorism Financing, pp. 95-98.
121 Exhibit P-442: Summary of Meeting between Commission Counsel and FINTRAC, April 10, 2008, p. 3.
122 Testimony of Jim Galt, vol. 55, October 1, 2007, p. 6913.
�Chapter VII: Resolving the Challenges of Terrorist Financing
Canadian authorities have stressed the integration of the
various agencies involved in counter-terrorism. This may be the
case in Canada, but not everywhere else. Limited intelligence
distribution to different domestic agencies and overseas
counterparts is a long standing problem that could be resolved
through the use of a terrorism finance database supported by
open source information.123
FINTRAC officials were asked whether a database existed on matters such as TF
cases, prosecutions and media reports worldwide, and whether, if one did not
exist, such a database would be helpful. They responded as follows:
There are numerous databases that contain valuable
information on terrorist groups and incidents that FINTRAC
consults as part of its analytical work. To FINTRAC’s knowledge
there is no comprehensive database which includes all
relevant TF information that would be of value to FINTRAC
exercising its mandate. Any database that contained reliable
information on all aspects of every terrorist activity financing
case would be very useful.124
The type of database on TF cases proposed by Professor Passas would provide
a relatively inexpensive tool to help government agencies and private sector
entities improve their understanding of TF and related issues.
7.12 The Kanishka Centre(s) for Better Understanding and
Preventing Terrorism
There is a need to develop the next generation of security professionals in
government and to provide a means for existing professionals to enrich their
understanding of terrorism and TF. Many of the recommendations made by
the Commission flow from the realization that much work needs to be done
if Canada is to match international best practices regarding the relationship
between intelligence and evidence, terrorism prosecutions, witness protection,
TF and aviation security. There is a need for continuing study of these issues
in light of both rapidly changing circumstances in the world and Canada’s
own experience. Canada cannot afford to wait until the next terrorism tragedy
occurs and another public inquiry is appointed to study the adequacy of its
counterterrorism measures.
A number of researchers who prepared reports for this Commission commented
on the lack of dedicated governmental support for research on terrorism issues.
They spoke of the adverse effects that this lack of funding has had on public
understanding of the challenges of terrorism and on the availability of trained
123 Passas Report on Terrorism Financing, p.92.
124 Second FINTRAC Response to Supplementary Questions of the Commission, Question 7.
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people to do vital counterterrorism work. For example, Professor Rudner argued
that, despite increased interest in terrorism among the public and students
after 9/11, the capacity of Canadian institutions of higher education to exercise
knowledge leadership remained “grossly inadequate”:
Very few university courses or programs dealing with
intelligence and/or National Security studies are currently on
offer in Canada….[R]esearch remains grievously constrained
by a dire lack of financial support, even from official funding
councils, coupled with acute staff shortages. It is indicative of
the absence of priority that out of more than 1,800 Canada
Research Chairs established in Canadian universities since
2000….not a single one was dedicated to Intelligence Studies.
Not one. Just one Canada Research Chair relating to terrorism
studies was recently established at Université Laval in Quebec
City. Compared to the rather more dynamic situation in
American, Australian and British universities and research
institutions, Canada’s educational and research capacity in
these fields of vital national security concern remains woefully
understrength.125
Professor Wesley Wark of the Munk Centre for International Studies at the
University of Toronto stressed the need “…to open up both our historical and
our present national security activities to greater and more informed public
scrutiny”126 in order to learn from past mistakes and develop a baseline for
determining success.
Professor Kent Roach of the Faculty of Law at the University of Toronto noted that
“…Canadian research into terrorism related issues has generally been relatively
sparse. There is no dedicated governmental funding for research related to the
study of terrorism and optimal counter-terrorism measures as there is in other
fields such as military studies.”127
In its final submissions, the Air India Victims Families Association suggested
that “…[t]he federal government should provide funding for the establishment
of an academic Centre of Excellence to be known as The Kanishka Centre as a
living memorial to the victims and families of the bombing of Air India Flight
182.”128 The Association contemplated a “multi-disciplinary Centre within a
University setting” that could “bring together expertise and discourse from
policy, operational, and academic communities to address the study of terrorism
125 Martin Rudner, “Building Canada’s Counter-Terrorism Capacity: A Proactive All-of-Government
Approach to Intelligence-Led Counter-Terrorism” in Vol. 1 of Research Studies: Threat Assessment
RCMP/CSIS Co-operation, pp. 141-142.
126 Wesley Wark, “The Intelligence-Law Enforcement Nexus” in Vol. 1 of Research Studies: Threat
Assessment RCMP/CSIS Co-operation, p. 181.
127 Kent Roach, “Introduction” in Vol. 1 of Research Studies: Threat Assessment RCMP/CSIS Co-operation,
p. 8.
128 AIVFA Final Written Submission, p. 98.
�Chapter VII: Resolving the Challenges of Terrorist Financing
prevention and its related fields, with the intent of working with and assisting
governments in this endeavour.”129
Careful consideration could usefully be given to setting up such a research
organization. A precedent for such a research program exists in the longrunning Security and Defence Forum (SDF) sponsored by the Department of
National Defence. The Department funds 12 “centres of expertise” in Canadian
universities, with grants of between $100,000 and $165,000 per centre per year,
as well as a Chair of Defence Management Studies.
Creating a research organization would respond to some of the problems that
the Commission has identified, including inadequate public understanding of
the dangers of terrorism. Exchanges between governments and such a research
organization could enrich human capital on terrorism issues both within and
outside of government.
7.13 Conclusion
Canada’s anti-TF program is still relatively young.130 The Anti-terrorism Act
received Royal Assent in late 2001, and anti-TF operations began shortly after.
The provisions governing the anti-TF program during its first few years limited
its potential for success, but Bill C-25, which came into force in stages beginning
in late 2006, enhanced that potential. However, it is still too early to tell if the Bill
C-25 changes will increase the effectiveness of anti-TF measures.
The time may have come to use distinct legislative schemes to deal with money
laundering and TF. By pursuing the fight against TF on the basis of the current
money laundering model, there is a danger that TF transactions will be lost
among the much larger sums involved in money laundering and organized
crime. There is a danger as well that private sector reporting entities might view
their anti-TF work almost as an afterthought, less important than their work on
money laundering.
At several points, this chapter discussed the need for better sharing of information
among agencies involved in countering TF. Such an approach is necessary
because of the difficulties that FINTRAC would face if it were to rely solely on
examining the millions of financial transaction reports that it receives yearly.
The CRA processes thousands of applications for charitable status each year
and faces a similar problem of pinpointing suspicious activity. FINTRAC and the
CRA both require good intelligence to help them focus their limited resources.
Hence, the RCMP, CSIS and other agencies should continue to work closely with
FINTRAC and the CRA to provide them with the best possible intelligence about
TF.
129 AIVFA Final Written Submission, p. 98.
130 Testimony of Diane Lafleur, vol. 54, September 28, 2007, p. 6765; Testimony of Mark Potter, vol. 56,
October 2, 2007, p. 6967.
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FINTRAC and the CRA also need to be better integrated into the broader
intelligence community through measures such as secondments and joint
training. They need to see themselves as a vital part of an intelligence cycle that
may, in some cases, contribute to successful prosecutions and may, in other
cases, facilitate preventive or disruptive measures.
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
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Commissions of inquiry
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A name given to the resource
Report of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 (2010)
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The topic of the resource
Commissions of inquiry
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A related resource from which the described resource is derived
Archived at Library and Archives Canada <a href="http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/air_india/2010-07-23/www.majorcomm.ca/en/reports/finalreport/default.htm">here</a>.
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2010
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An account of the resource
Commission of inquiry report on the bombing of Air India Flight 182 (1985), focusing on issues such as the intelligence-to-evidence problem and coordination and cooperation problems between the RCMP and CSIS.
Air India
Aviation security
cooperation
CSIS
Deconfliction
information-sharing
intelligence failure
Intelligence-to-evidence
RCMP
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Memorandum of Understanding between Public Safety Canada, Transport Canada, CBSA, CSIS and RCMP regarding Passenger Protect (2013)
Description
An account of the resource
This MOU establishes the terms and conditions for mutual cooperation and information-sharing between Public Safety, Transport Canada, CBSA, CSIS and RCMP with respect to the implementation of the Passenger Protect program (the no-fly list).
Released under 2015 access request seeking all current CSIS MOUs.
Source
A related resource from which the described resource is derived
ATIP CSIS A-2015-352
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A point or period of time associated with an event in the lifecycle of the resource
2013
Aviation security
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A name given to the resource
Memoranda of Understanding
Subject
The topic of the resource
Memoranda of Understanding (MOUs) between agencies.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
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Memorandum of Understanding between Transport Canada Aviation Security Directorate, RCMP, CSIS, CBSA and the Canadian Air Transport Security Authority (CATSA) (2015)
Subject
The topic of the resource
MOUs
Description
An account of the resource
The MOU governs agency support to airport operators in carrying out airport security program obligations though Multi-Agency Advisory Committees.
Released pursuant to a 2015 access request seeking all current CSIS MOUs.
Source
A related resource from which the described resource is derived
ATIP CSIS A-2015-352
Date
A point or period of time associated with an event in the lifecycle of the resource
2015
Aviation security
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information-sharing
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Dublin Core
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Title
A name given to the resource
Memoranda of Understanding
Subject
The topic of the resource
Memoranda of Understanding (MOUs) between agencies.
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Memorandum of Understanding between Transport Canada and CSIS on the Passenger Protect Program
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MOUs
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Memorandum of Understanding between Transport Canada and CSIS for purposes of implementing the Passenger Protect (no-fly) list under the then-Aeronautics Act. The memo was current as of 2015, but I assume it has been since updated to reflect Bill C-51 (2015)'s new Secure Air Travel Act.
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ATIP
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2007
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